The Cambridge Handbook of China and International Law 1009041134, 9781009041133

Citation preview

the cambridge handbook of china and international law This handbook provides a comprehensive road map of China’s engagement with international law and an upgraded bridge between Chinese and Western approaches in times of turmoil. Written by a leading group of Chinese and Western specialists, it examines how China is assimilating into and putting its stamp on the global legal order. It offers updated analyses of China’s relationship with international institutions, human rights law, international trade law, the law of the sea, the laws of peace and war, international criminal law, global health law, international investment law, international environmental law, climate change, international terrorism law, outer-space law, intellectual property law, cyberwarfare, international financial law, international dispute settlement, territorial disputes, judicial application of international law, state immunity, treaty practices, the international rule of law, extraterritorial application of Chinese laws, as well as international law in its own constitutional law, the Belt and Road Initiative and the Community of Shared Future for Mankind. Ignacio de la Rasilla holds the Han Depei Chair and is a One Thousand Talents Plan Professor at the Wuhan University Institute of International Law and Wuhan Academy of International Law and Global Governance in China. He is the author or editor of six books including International Law and History: Modern Interfaces (Cambridge University Press, 2021). Congyan Cai is a professor of international law at the School of Law and an adjunct professor in the School of International Relations and Public Affairs at Fudan University. He is the author of The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (2019).

Published online by Cambridge University Press

Published online by Cambridge University Press

The Cambridge Handbook of China and International Law Edited by

IGNACIO DE LA RASILLA Wuhan University

CONGYAN CAI Fudan University

Published online by Cambridge University Press

Shaftesbury Road, Cambridge CB 2 8EA , United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781316517406 DOI :

10.1017/9781009041133

© Cambridge University Press & Assessment 2024 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2024 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Rasilla, Ignacio de la, editor. | Cai, Congyan, editor. TITLE : The Cambridge handbook of China and international law / edited by Ignacio de la Rasilla, Wuhan University; Congyan Cai, Fudan University. DESCRIPTION : Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2023. | Series: Cambridge law handbooks | Includes bibliographical references and index. IDENTIFIERS : LCCN 2023026469 (print) | LCCN 2023026470 (ebook) | ISBN 9781316517406 (hardback) | ISBN 9781009041133 (ebook) SUBJECTS : LCSH : International law – China. | China – Foreign relations. CLASSIFICATION : LCC KZ 4376 .C 36 2023 (print) | LCC KZ 4376 (ebook) | DDC 341.0951–dc23/eng/20230609 LC record available at https://lccn.loc.gov/2023026469 LC ebook record available at https://lccn.loc.gov/2023026470 NAMES :

ISBN

978-1-316-51740-6 Hardback

Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published online by Cambridge University Press

Contents

page viii

List of Figures

ix

List of Contributors Foreword by H.E. Hanqin Xue

xiii

Acknowledgements

xvi

List of Abbreviations

xvii

Introduction: China and International Law – Not a Map but Perhaps a Compass Ignacio de la Rasilla and Congyan Cai part i

taking centre stage in global governance and the international legal order

1

China’s Reform and Opening-Up and Its Move to International Institutions Yun Zhao

2

The Belt and Road Initiative and the International Legal Order: Why It Happened, What It Does and How, and What It Brings About Congyan Cai

3

The Community of Shared Future for Mankind and International Law Ignacio de la Rasilla and Yayezi Hao part ii

4

5

6

1

15

31

49

interfaces between national and international law

The Constitution of China and International Law: From Selective Adaptation to Normative Consensus Chao Wang and Xin Xiang

73

Chinese and Western Perspectives on the Rule of Law and Their International Implications Karen J. Alter and Ji Li

94

113

International Law in Chinese Courts Bjo¨rn Ahl

v Published online by Cambridge University Press

vi

Contents

part iii

selected areas of chinese state practice

7

China’s Treaty Practices: Politicization of Law or Legalization of Politics? Carrie Shu Shang and Wei Shen

133

8

The Solid State of State Immunity in the People’s Republic of China Timothy Webster

161

9

The ‘Effect Doctrine’ and the Extraterritorial Application of Chinese National Laws: It’s Easier Said Than Done Yongping Xiao and Lei Zhu part iv

181

international peace and security

10

The Chinese Approach to Jus ad Bellum in International Law and Cyberwarfare Zhixiong Huang and Yaohui Ying

203

11

China and International Terrorism Law Congyan Cai and Yifei Wang

219

12

China and International Criminal Law: A Dual-Identity Dilemma Dan Zhu

238

part v

human-centred international law

13

China and International Human Rights Law Ruijun Dai

261

14

China and Global Health Law in the Face of Covid-19 Qingjiang Kong and Shuai Guo

284

15

China and International Humanitarian Law Binxin Zhang

302

part vi 16

17

the habitat and the global commons

China and International Environmental Law: Sageliness Within and Kingliness Without? Nengye Liu

323

China and Global Climate Change Governance: A Union of Top-Down Governance and Multi-stakeholder Engagement Tianbao Qin and Bingyu Liu

339

18

China and the Law of the Sea Haiwen Zhang

19

China and the Non-weaponization of Outer Space: Towards a Relational Normativity Matthias Vanhullebusch

Published online by Cambridge University Press

358

379

Contents

part vii 20

international economic law

China and International Trade Law: Rising from Within the System or Always an Outlier? Jiangyu Wang

21

China: An Emerging Rule-Maker in International Investment Law? Freya Baetens and Sheng Zhang

22

China and International Intellectual Property Law: Striving to Become a Respected Player Jianqiang Nie

23

Chinese Multilateralism in International Financial Law Bin Gu part viii

vii

397

423

450

476

international dispute settlement

24

China and International Dispute Settlement by Adjudicative and Other Means Ignacio de la Rasilla and Yayezi Hao

497

25

China and the Settlement of Territorial Disputes Xinjun Zhang and Xidi Chen

522

Index

Published online by Cambridge University Press

548

Figures

3.1 7.1 23.1

The community of shared future for mankind China’s outbound FDI along the BRI countries Quota and governance reform: a simple illustration of the phasing and interlinkages

viii Published online by Cambridge University Press

page 51 154 481

Contributors

Bjo¨rn Ahl is Professor and Chair of Chinese Legal Culture at the University of Cologne in Germany. Karen J. Alter is the Norman Dwight Harris Professor of International Relations Law at Northwestern University in the USA and a permanent visiting professor at the iCourts’ Center for Excellence at the University of Copenhagen Faculty of Law in Denmark. Freya Baetens is Professor of Public International Law at Oxford University in the UK, affiliated with the Europa Institute at Leiden University and the PluriCourts Centre at Oslo University, and a member of the Brussels Bar. Congyan Cai is Professor of International Law at the School of Law and Adjunct Professor at the School of International Relations and Public Affairs at Fudan University in China. Xidi Chen is a PhD candidate in international law at the School of Law, Tsinghua University in Beijing, China. Ruijun Dai is Professor of International Law at the Institute of International Law, Chinese Academy of Social Sciences in Beijing, China. Ignacio de la Rasilla holds the Han Depei Chair in International Law and is a One Thousand Talents Plan Professor at the Wuhan University Institute of International Law and the Wuhan Academy of International Law and Global Governance in China. Bin Gu is Associate Professor of International Law at Beijing Foreign Studies University in China. Shuai Guo is a lecturer in international law at the School of International Law of the University of Political Science and Law in Beijing, China. Yayezi Hao is a lecturer in international law at the School of Law of Wuhan University in China. Zhixiong Huang is Luoija Professor at the Institute of International Law, Director of the Institute for Cyber Governance and Vice Dean at the School of Law of Wuhan University in China. Qingjiang Kong is Professor of Law and Dean of the School of International Law at the University of Political Science and Law in Beijing, China.

ix Published online by Cambridge University Press

x

List of Contributors

Ji Li is the John S. and Marilyn Long Professor of US–China Business and Law at the University of California–Irvine in the USA. Bingyu Liu is Associate Professor at the School of International Law at China University of Political Science and Law in Beijing. Nengye Liu is Associate Professor of Law at Yong Pung How School of Law, Singapore Management University. Jianqiang Nie is Professor of International Law and Deputy Director of the Wuhan University Institute of International Law in China. Tianbao Qin is Professor of Law and Director of the Research Institute of Environmental Law at the School of Law of Wuhan University in China. Carrie Shu Shang is Assistant Professor of Business Law at California State Polytechnic University in the USA. Wei Shen is KoGuan Distinguished Professor of Law, Shanghai Jiao Tong University Law School in Shanghai, China. Matthias Vanhullebusch is Professor and Executive Director of the Asian Law Center at the KoGuan Law School at Jiaotong University in Shanghai, China. Chao Wang is Professor of Law and Associate Director of the Centre for Constitutional Law and Basic Law Studies at the University of Macau, Macao Special Administrative Region (SAR), China. Jiangyu Wang is Professor of Law and Director of the Centre for Comparative and Chinese Law at Hong Kong City University in China. Yifei Wang is lecturer in international law at the East China University of Political Science and Law in Shanghai, China. Timothy Webster is Professor of Law at Western New England University in the USA. Xin Xiang is PhD candidate at the Faculty of Law, University of Macau and advisor to the Secretary for Administration and Justice, Government of Macao SAR in China. Yongping Xiao is Cheung Kong Scholar Distinguished Professor and Director of the Wuhan University Institute of International Law and the Wuhan Academy of International Law and Global Governance in China. H. E. Hanqin Xue has been a judge of the International Court of Justice since 2010 and was formerly its vice-president. Yaohui Ying is lecturer in international law at the School of Law, Zhongnan University of Economics and Law in Wuhan, China. Binxin Zhang is a PhD scholar in political science at the International Research Centre (CERI) at Sciences Po in Paris, France. Haiwen Zhang is Adjunct Professor at the Wuhan University Institute of International Law and at the Ocean College of Zhejiang University, Vice-President of the China Society of

Published online by Cambridge University Press

List of Contributors

xi

International Law and a former director-general of the China Institute for Marine Affairs (CIMA), Ministry of Natural Resources, China. Sheng Zhang is Professor of International Law at the Law School of Xi’an Jiaotong University in China. Xinjun Zhang is Professor of International Law at the School of Law at Tsinghua University in Beijing, China. Yun Zhao is Henry Cheng Professor in International Law and Associate Dean of the Faculty of Law at the University of Hong Kong in China. Dan Zhu is Associate Professor of International Law at Fudan University Law School in Shanghai, China. Lei Zhu is Associate Professor of International Law at the Wuhan University Institute of International Law in China.

Published online by Cambridge University Press

Published online by Cambridge University Press

Foreword

I have been living and working in Europe for more than eighteen years so far, first as the Chinese Ambassador to the Netherlands (2003–8) and then as a judge at the International Court of Justice (since 2010). Perhaps because of my background in international law, one of the questions that I have frequently been asked is about China’s perspectives on international law. Such interest in the West continues to grow, certainly not just out of intellectual curiosity but out of concern over China’s role in international affairs in the twenty-first century. This handbook, a project initiated and organized by Professors Ignacio de la Rasilla and Congyan Cai, is intended to give a comprehensive review of China’s perspectives on and practice of international law, partly addressing the West’s ‘anxiety’ over China’s rapid development in the past four decades, which, as some scholars have claimed, ‘may lead to a gradual erosion of the rules-based liberal international order’.1 Although a question mark remains over whether this project will be able to address such concern, this collective scholarship will definitely be conducive to promoting intellectual interactions between China and the West and will further clarify the direction in which international law studies in China should go. I wish to express my warm congratulations and pay tribute to all the participants in the project for their valuable contributions. By its virtue, international law has often been perceived as a universal or cosmopolitan system, where national perspectives and practice deserve only limited recognition. The West’s anxiety over China’s practice, in a way, reaffirms the research conclusion reached by Professor Anthea Roberts, namely that national approaches to international law generally feature in international law studies, at least with major power states. International lawyers neither are taught with the same understanding and appreciation of the law nor graduate from an invisible college of international lawyers’, as liberalism wishes people to believe.2 Instead, international law students are taught with textbooks and teaching materials that inevitably reflect the national interests, policy preferences and practice of certain major states. Although the normative character of international law as a credible international legal system governing the conduct of states and international relations is in no way diminished by the fragmented pedagogical approaches, it is imperative to bear in mind that as the rules are created, interpreted and applied by states, the conduct of those states, individual or collective, as well as their perspectives on the law constitute the basis of legal studies. 1 2

See the Introduction to this volume. According to the cover of Roberts’s book, ‘[i]nternational lawyers in different states, regions and geopolitical groupings are often subject to distinct incoming influences and outgoing spheres of influences in ways that reflect and reinforce differences in how they understand and approach international law. These divisions manifest themselves in contemporary controversies, such as debates about Crimea and the South China Sea.’ Anthea Roberts, Is International Law International? (Oxford: Oxford University Press, 2017).

xiii https://doi.org/10.1017/9781009041133.001 Published online by Cambridge University Press

xiv

Foreword

This handbook is an updated presentation of China’s perspectives on and practice of international law, with many young Chinese scholars participating in the project. In the past forty-five years since China embarked on economic reforms and adopted the opening-up policy in 1978, China has gradually shifted to the market economy and fully integrated into various multilateral legal systems. In the process, it has amended, revised and repealed hundreds of national laws and regulations in light of the international obligations it has undertaken. In fulfilling its socioeconomic development agendas and pursuing United Nations Millennium Development Goals, China has alleviated the poverty of more than seven hundred million people and achieved enormous economic and social progress, which is unprecedented in human history. China’s rise is a great success story of a developing country in its national construction and development. Its engagement with international law and international institutions, of course, is part of the process. Each chapter of the handbook records those efforts. China’s renewal of its commitments to multilateralism and international law should not be regarded as a change of its foreign policy; China has consistently and relentlessly maintained those commitments as the basis of its foreign relations. The purpose of its reassurance, in my view, is twofold. First, it is a direct response to the prevailing scepticism over existing multilateral institutions and the role of international law in maintaining world peace and security. The world is undergoing turbulent times; crises such as the Covid-19 pandemic, regional armed conflicts, climate change and green energy each require concerted and effective global actions. Never before has consensus-building proven to be so crucial in dealing with these common challenges. China’s reassurance in relation to multilateralism and international law demonstrates its political will to defend the role of the United Nations and the principles of the Charter as the basic norms of international relations. Second, China’s renewal of its commitments is also a response to the West’s concern over its development strategy. As illustrated in this handbook, instead of aiming at creating a new order, China has embraced the existing institutions earnestly. Its proposals of reform are intended not to replace but to strengthen the legal order. The characterization of the existing legal order as ‘a rules-based liberal international order’ admits the Western dominance in the current political, economic and legal order, which, as pointed out by Professor Andrew Hurrell, is oriented by the preferences of the Western world and mainly reflects Western liberal values.3 The West’s anxiety over China’s rise apparently relates to whether this legal order can be maintained. While this handbook does not directly address that concern, it does provide a comprehensive and objective presentation of China’s positions and practice in various fields of international law. The reader may tell for themselves whether China intends to change the legal order. The distinction between ‘liberal international order’ and ‘authoritarian international law’ has no basis either in theory or in practice.4 It carries political and ideological implications and preferences that contemporary international law does not recognize. Historically, international law was supposedly solely applicable among states that were deemed ‘civilized’ or ‘semicivilized’. Those states or colonial territories that were described as ‘barbarians’ had no status in international law, hence no entitlements or legal interests to be protected. Western cultural supremacy and discrimination against other forms of civilization were gradually abandoned in international law after World War II, particularly with the process of decolonization, when most colonial states got independence and became active players on the world stage. In the post-war legal order, by virtue of the fundamental principles of international law as enshrined in the 3

4

Andrew Hurrell, ‘International Law 1989–2010: A Performance Appraisal’ in James Crawford and Sarah Nouwen (eds.), Select Proceedings of the European Society of International Law, Volume III: 2010, ch. 1 (Oxford: Hart, 2012), 3. Tom Ginsburg, ‘Authoritarian International Law?’ (2020) 114 American Journal of International Law, 221, 225.

https://doi.org/10.1017/9781009041133.001 Published online by Cambridge University Press

Foreword

xv

Charter of the United Nations, all states, being members of the international community, enjoy equal rights and obligations, regardless of their political, economic, social and cultural differences. Every state is entitled to choose and develop freely its own political and social systems without external interference.5 In other words, for purposes of peaceful coexistence and common development, international law must transcend different forms of political system, ideology and cultural tradition. Notwithstanding the liberal pluralism that features in the post–Cold War legal order and recognizes non-state actors and their role in international law, states remain the major and decisive players for the direction of international law development. Geopolitical tensions among major powers, while threatening the security and stability of the existing legal order, will in any event accelerate the process of legal reforms in global governance. The emerging powers, including China, will exert their influences in the contemporary debates on the global issues, enhancing the voices of the Global South in international law. Hopefully, constructive dialogues and interactions among the various actors will prevail over detrimental confrontation, promoting mutual understanding and cooperation among states. I am confident that this handbook will contribute to such dialogues and interactions. Xue Hanqin Judge of the International Court of Justice, The Hague

5

See, in particular, Principles 4 and 6, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, A/RES/25/2625, 24 October 1970.

https://doi.org/10.1017/9781009041133.001 Published online by Cambridge University Press

Acknowledgements

Every book begins somewhere. This book began in Haikou, on the island of Hainan, and Xiamen, in the Province of Fujian, two warm and scenic southern coastal locations in mainland China, during the fiery summer of 2020. It has since then accompanied its editors, and several of its contributing authors, to their home universities in Wuhan and Shanghai, respectively, as well as following other authors to universities and research centres in Cologne, Paris, The Hague, Oxford, Chicago, Springfield, Hong Kong, Macau, Los Angeles, Singapore, Xi’an and Beijing. It is to the members of this distinguished mini ‘invisible college’ of Chinese and Western international lawyers scattered through China and other faraway places around the globe that our gratitude goes first. Their commitment to the project and the generosity with which they engaged with our multiple editorial requests during the difficult days of the past pandemic cannot be praised enough. We are also extremely grateful for the institutional support of the Wuhan University Institute of International Law and the Fudan University School of Law, each of which, respectively, generously hosted one of the two authors’ workshops held in the spring and autumn of 2021. These workshops enabled authors to engage with and contribute to each other’s work and this dialogue is mirrored in the present volume. Our sincere thanks go also to Joe Ng at Cambridge University Press in Singapore for his professional support and to the eight peer-reviewers appointed by Cambridge University Press who in their greatest majority favourably appraised the potential merits and opportunity of this collective volume at its early stage. Chapter 3 is an updated version of ‘The Community of Shared Future for Mankind and China’s Legalist Turn to International Relations’, Chinese Journal of International Law, 20(2), June 2021, 341–79; Chapter 24 is an updated version of ‘China and International Adjudication – Picking Up Steam?’, Journal of International Dispute Settlement, 12(4), December 2021, 637–68. Congyan Cai would like to express his gratitude to Dean Wang Zhiqiang, Professor Zhang Naigeng, Ms Xu Jing and many other colleagues from Fudan Law School for their tremendous support and encouragement of his scholarship. Gratitude also goes to his parents and his wife for their endless support and understanding, and his two sons for their questions about what international law is, whether it matters and how it works. Ignacio de la Rasilla extends his gratitude to Professor Xiao Yongping, Director of the Wuhan University Institute of International law, and its managing and deputy director Dr Deng Zhaohui, as well as all his other esteemed colleagues at this top national think tank in China for providing him with a home away from home and a highly supportive research environment. Gratefully acknowledged, furthermore, is the assistance of his many promising PhD and master’s students including Shi Weimin, Chen Mohan, Yu Hong, Liang Zuodong and Liu Jintong. However, as ever, Ignacio de la Rasilla dedicates this book to his wife, Dr Hao Yayezi, and to their daughter, Cristina Rya de la Rasilla Hao, who is, to his eyes, as bright a bridge between East and West as the sun in the blue sky of a summer day. xvi Published online by Cambridge University Press

Abbreviations

3GPP AAAQ AB ABNJ ACFTA ADB ADR AI AIIB AML AMS AOA APA APEC APSCO ASAT ASCM ASEAN ASEM ATT AUCL B3W BBNJ BDN BIT BLEU BOT BRFIC BRI BRI-DSF CAAC CAI CASCF

Third Generation Partnership Project availability, accessibility, acceptability and quality (of health facilities) WTO Appellate Body areas beyond national jurisdiction ASEAN–China Free Trade Agreement Asian Development Bank alternative dispute resolution artificial intelligence Asian Infrastructure Investment Bank Anti-Monopoly Law 2008 aggregate measurement of support articles of agreement alternative procurement arrangements Asia-Pacific Economic Cooperation Asia-Pacific Space Cooperation Organization anti-satellite Agreement on Subsidies and Countervailing Measures Association of Southeast Asian Nations Asia–Europe Meeting Arms Trade Treaty Anti-Unfair Competition Law Build Back a Better World biodiversity beyond national jurisdiction Blue Dot Network bilateral investment treaty Belgium–Luxembourg Economic Union build–operate–transfer Belt and Road Forum for International Cooperation Belt and Road Initiative Debt Sustainability Framework for Participating Countries of the Belt and Road Initiative Civil Aviation Administration of China China–EU Comprehensive Agreement on Investment China–Arab States Cooperation Forum xvii

Published online by Cambridge University Press

xviii

CAT CBD CBDR CBTT CCAMLR CCCC CCG CCM CCP CCS CCW CD CED CEDAW CESCR CFA CFCLR CFIUS CHM CHR CHS CICC CIETAC CIS CISG CITES CLCS CMPort CMW COMRA COP Covid-19 CPL CPTPP CRA CRC CRPD CSFM CSIL CTL CTS

List of Abbreviations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Convention on Biological Diversity Common But Differentiated Responsibilities capacity building and the transfer of marine technology Convention on the Conservation of Antarctic Marine Living Resources China Communications Construction Co. Ltd China Coast Guard Convention on Cluster Munitions Chinese Communist Party Convention on the Continental Shelf Convention Prohibiting Certain Conventional Weapons Conference of Disarmament International Convention for the Protection of All Persons from Enforced Disappearance Convention on the Elimination of All Forms of Discrimination Against Women Committee on Economic, Social and Cultural Rights Hong Kong Court of Final Appeal Convention on Fishing and Conservation of the Living Resources of the High Seas Committee on Foreign Investment in the United States common heritage of mankind United Nations Commission on Human Rights Convention on the High Seas China International Commercial Court China International Economic and Trade Arbitration Commission Commonwealth of Independent States United Nations Convention on Contracts for the International Sale of Goods Convention on International Trade in Endangered Species of Wild Fauna and Flora Commission on the Limits of the Continental Shelf China Merchant Port Holdings International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families China Ocean Mineral Resources Research and Development Association Conference of the Parties coronavirus disease Civil Procedure Law Comprehensive and Progressive Agreement for Trans-Pacific Partnership contingency reserve arrangement Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Community of Shared Future for Mankind Chinese Society of International Law Counter-Terrorism Law Convention on the Territorial Sea and the Contiguous Zone

Published online by Cambridge University Press

List of Abbreviations

CUSMA DOC DPRK DSB DSS DSU ECOSOC ECRL ECT EDB EEC EEZ EIA EJV EMDCs ESF ESG ESSs ETS EU FAO FDI FIE FIL FOCAC FTAs FTZ G8 G20 G77 GATS GATT GBF GDP GGE GHG GMD GPA HKSAR HPC HRC IAEA ICANN ICC ICCPR ICDPASO

xix

Canada–US–Mexico Agreement Declaration on Conduct for the South China Sea Democratic People’s Republic of Korea WTO Dispute Settlement Body WTO’s Dispute Settlement System Understanding on the Rules and Procedures Governing the Settlement of Disputes United Nations Economic and Social Council East Coast Rail Link (Malaysia) Energy Charter Treaty European Development Bank European Economic Community exclusive economic zone environmental impact assessment Equity Joint Venture emerging markets and developing countries Environmental and Social Framework environmental, social and governance Environmental and Social Standards Emissions Trading System European Union United Nations Food and Agriculture Organization foreign direct investment foreign-invested enterprises foreign investment law Forum on China–Africa Cooperation free trade agreements free trade zone Group of Eight Group of Twenty Group of Seventy-Seven General Agreement on Trade in Services General Agreement on Tariffs and Trade Global Biodiversity Framework gross domestic product Group of Governmental Experts greenhouse gases Guomindang WTO’s Agreement on Government Procurement Hong Kong Special Administrative Region High People’s Court United Nations Human Rights Council International Atomic Energy Agency Internet Corporation for Assigned Names and Numbers International Criminal Court International Covenant on Civil and Political Rights International Commercial Dispute Prevention and Settlement Organization

Published online by Cambridge University Press

xx

ICEC ICERD ICESCR ICJ ICoC ICP ICRC ICS ICSID ICSID ICTR ICTs ICTY IFC IFD IFIs IHL IHR IIAs ILC ILO IMF IMO IMTFE INB INF IP IPBES IPCC IPRs IPSF IR ISA ISA ISDS ITLOS LAC LAWS LCD LIC-DSF LOAC LPCT MC12 MCDF

List of Abbreviations

International Commercial Expert Committee International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Court of Justice International Code of Conduct for Outer Space Activities internet content provider International Committee of the Red Cross investment court system International Convention on the Settlement of Investment Disputes between States and Nationals of Other States International Centre for Settlement of Investment Disputes United Nations International Criminal Tribunal for Rwanda international criminal tribunals United Nations International Criminal Tribunal for the former Yugoslavia international finance corporation investment facilitation for development international financial institutions international humanitarian law International Health Regulations international investment agreements United Nations International Law Commission International Labour Organization International Monetary Fund International Maritime Organization International Military Tribunal for the Far East intergovernmental negotiating body intermediate-range nuclear forces intellectual property Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services United Nations Intergovernmental Panel on Climate Change intellectual property rights International Platform on Sustainable Finance international relations International Seabed Authority investor–state arbitration investor–state dispute settlement International Tribunal of the Law of the Sea Line of Actual Control lethal autonomous weapons systems liquid crystal display Debt Sustainability Framework for Low-Income Countries law of armed conflict Law on the Procedure of the Conclusion of Treaty 12th Ministerial Conference Multilateral Cooperation Center for Development Finance

Published online by Cambridge University Press

List of Abbreviations

MDB MEE MEPA MFA MFN MGRs MILs MOU MPAs MPIA MSC MSMEs MSR NAFTA NASDAQ NATO NBSAP NDB NDC NDRC NGO NHRAP NPC NPCSC NPT NYSE OECD OEWG OHCHR OPSCC PAFMM PAROS PCIJ PCT PFC PHEIC PLA POW PPM PPP PPWT PRC R2P RCEP RMB

xxi

multilateral development bank Ministry of Ecology and Environment Marine Environment Protection Act 1982 Ministry of Foreign Affairs most favoured nation marine genetic resources multilateral investment treaties memorandum of understanding marine protected areas WTO multi-party interim appeal arrangement Mediterranean Shipping Company micro, small and medium-sized enterprises Maritime Silk Road North American Free Trade Agreement National Association of Securities Dealers Automated Quotations North Atlantic Treaty Organization National Biodiversity Conservation Strategy and Action Plans New Development Bank nationally determined contribution National Development and Reform Commission non-governmental organization National Human Rights Action Plan National People’s Congress National People’s Congress Standing Committee Treaty on the Non-Proliferation of Nuclear Weapons New York Stock Exchange Organisation for Economic Co-operation and Development Open-Ended Working Group Office of the High Commissioner for Human Rights (UN) Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography People’s Armed Forces Maritime Militia Prevention of an Arms Race in Outer Space Permanent Court of International Justice patent cooperation treaty Priority Foreign Country public health emergency of international concern People’s Liberation Army prisoner of war Project-affected People’s Mechanism Policy on Prohibited Practices Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects People’s Republic of China Responsibility to Protect regional comprehensive economic partnership renminbi

Published online by Cambridge University Press

xxii

ROC ROK ROL RTAs S&D SAIC SAR SCM SCMI SCNPC SCO SCS SDGs SDR SEPs SOE SPC SPP SREB TLO TORNIL TPP TRIPS UCS UDHR UK UN UNAIDS UNAOC UNCHR UNCITRAL UNCLOS UNCTAD UNDP UNEP UNESCO UNFCCC UNGA UN GGE UNIDO UNMICT UNOOSA UNSC UPR USA USSR USTR

List of Abbreviations

Republic of China Republic of Korea rule of law regional trade agreements special and deferential treatment State Administration for Industry and Commerce Special Administrative Region Subsidies and Countervailing Measures Sustainable Capital Markets Initiative Standing Committee of the National People’s Congress Shanghai Cooperation Organization South China Sea Sustainable Development Goals special drawing rights standard essential patents state-owned enterprises Supreme People’s Court Supreme People’s Procuratorate Silk Road Economic Belt transnational legal ordering Theory on the Relational Normativity of International Law Trans-Pacific Partnership Agreement on Trade-Related Aspects of Intellectual Property Rights use of country systems United Nations Universal Declaration of Human Rights United Kingdom United Nations Joint United Nations Programme on HIV/AIDS United Nations Alliance of Civilizations United Nations High Commissioner for Refugees United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change United Nations General Assembly United Nations Group of Governmental Experts United Nations Industrial Development Organization International Residual Mechanism for Criminal Tribunals United Nations Office for Outer Space Affairs United Nations Security Council Universal Periodic Review United States of America Union of Soviet Socialist Republics United States Trade Representative

Published online by Cambridge University Press

List of Abbreviations

VCLT VCST VET WA WBG WEOG WHA WHO WIC WIPO WTO XUAR

xxiii

Vienna Convention on the Law of Treaties Vienna Convention on Succession of States in Respect of Treaties vocational education and training Wassenaar Arrangement on Export Controls for Conventional Arms and DualUse Goods and Technologies World Bank Group Western Europe and Others Group World Health Assembly World Health Organization World Internet Conference World Intellectual Property Organization World Trade Organization Xinjiang Uyghur Autonomous Region

Published online by Cambridge University Press

Published online by Cambridge University Press

Introduction China and International Law – Not a Map but Perhaps a Compass Ignacio de la Rasilla and Congyan Cai

INTRODUCTION

The new assertiveness of China in international law and global governance since the beginning of the tenure of Xi Jinping as China’s Communist Party General Secretary and President has marked an overall shift from Deng Xiaoping’s doctrine of ‘hiding brightness’ (韬光养晦) to ‘striving with vigour’ (奋发有为) and ‘great renaissance’ (伟大复兴). This development has triggered a mixture of apprehension and positive expectations in the West and the Global South. On the one hand, amidst the turbulent times of Covid-19 and the war in Ukraine, there is a common anxiety in the West that the consolidation of China as a new great power may lead to a gradual erosion of the rules-based liberal international order, with some commentators pointing to the dawn of a new age of ‘authoritarian international law’ in the twenty-first century.1 On the other hand, however, the Western preoccupation with the rise of China is partly assuaged by China’s long-standing commitment to its grand strategy of ‘peaceful rise/development’. This is shown by reiterated pledges to be a ‘staunch defender and builder of the international rule of law’2 and ‘a champion of multilateralism’3 as part of its now constitutionally enshrined commitment to build a ‘community of shared future for mankind’ (CSFM). This is shorthand for a Chinese blueprint for a revamped twenty-first-century global governance system that includes among its overarching aims global peace, international common security, international inclusive development, international ecological civilization and inter-civilizational dialogue. Underlying the renewed proactive engagement of China with international law and international institutions are guidelines issued by the Chinese Communist Party (CCP) Central Committee in 2014 calling for China to ‘[s]trengthen foreign-related legal work’ and ‘vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, and use legal methods to safeguard our country’s sovereignty, security and development interests’.4 These guidelines deepened an established understanding among various international legal regimes that a precondition for ‘exercis[ing] greater influence on the norms of international society is yet further assimilation into them’ or, if 1 2

3

4

Tom Ginsburg, ‘Authoritarian International Law?’ (2020) 114 American Journal of International Law, 221, 225. Wang Yi, ‘China: A Staunch Defender and Builder of the International Rule of Law’ (2014) 13 Chinese Journal of International Law, 635, 635–8. X. Wu, ‘Chronology of Practice: Chinese Practice in Public International Law in 2017’ (2018) 17 Chinese Journal of International Law 1017, at 1036. CCP Central Committee, Decision on Major Issues Concerning Comprehensively Advancing Governance According to Law (23 October 2014), part VII.7, at news.xinhuanet.com/2014–10/28/c_1113015330.htm.

1 https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

2

Ignacio de la Rasilla and Congyan Cai

preferred, that ‘in order to become a respected norm-maker, China must first be seen to be fully integrated as an appropriate norm-taker’.5 However, the degree to which China assimilates into international law, and how it may intend to put its stamp on it, remains shrouded in uncertainty for many in the West and other regions. This handbook aims to provide much-needed clarity in this regard and to contribute to the burgeoning contemporary scholarship on China’s relationship with international law by offering an up-to-date and fairly comprehensive perspective on the multifaceted contemporary engagement of China with the international legal order. In order to do this, the book disaggregates China’s relationship with international law into eight topical areas, each of which is covered by one part of the handbook. These parts range from an analysis of China’s renewed engagement with international institutions and its recent twin major diplomatic initiatives, the Belt and Road Initiative (BRI) and the CSFM, to an exploration of the interfaces between Chinese domestic law and international law at the constitutional and domestic judicial levels with attention to the relationship between the rule of law at the domestic level and the international rule of law. Selected areas of Chinese state practice are illustrated by studies on China’s treaty practices, state immunity and the extraterritorial application of Chinese domestic laws. The handbook also encompasses the areas of international peace and security, including separate studies of Chinese perspectives on the use of force and cyberwarfare, transnational terrorism and international criminal law, together with human-centred international law that spans international human rights law, global health law and international humanitarian law. Moving forward, the next two parts of the handbook cover the international legal regulation of habitats and the global commons, notably international environmental law and climate change law, but also the law of the sea and outer-space law, and different sub-areas within the broader field of international economic law, ranging from international trade law through international investment law and international intellectual property law to international financial law. Last, but not least, the final part of the handbook is devoted to examining China’s engagement with international dispute settlement including territorial disputes through adjudicative and other means. The contributing authors have provided thoughtful and up-to-date analytical appraisals of China’s evolving engagement with, and contribution to, each of these areas and the contemporary international legal regimes covered by them. In doing so, they have contributed useful materials for those engaged in researching the emerging field of ‘comparative international law’ understood as that which examines ‘cross-national similarities and differences in the way that international law is understood, interpreted, applied, and approached by actors in and from different states’6 across different specialized international legal regimes. In particular, the authors have considered whether China’s relationship with each of these areas can be characterized as falling into one or several of the following categories: international norm-taking, international norm-upholding, international norm-selective adaptation, international norm-entrepreneurship, international norm-shaping, international norm-challenging and international norm-making. As editors, we consider that these framing categories may help the reader to gain a more dynamic perspective on the increasingly relevant international normative role of China and also to appraise whether the latter contributes to the fairer and more equitable international order that the Global South has long been calling for. Moreover, understanding China’s past, contemporary and prospective regime-specific patterns of compliance and engagement with different key specialized areas of the contemporary international legal order will enable the 5

6

Ian Clark, ‘International Society and China: The Power of Norms and the Norms of Power’ (2014) 7 Chinese Journal of International Politics, 3, 315. Anthea Roberts, Is International Law International? (Oxford: Oxford University Press, 2017), 2.

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

Introduction: China and International Law

3

reader to gain a more holistic and demystified perspective on China’s revamped approach ‘with Xi-era characteristics’ to the law that, as Mirabeau once foretold, ‘one day will rule the world’ and its accompanying regional and global institutional architecture. The emerging post-Westerncentric international order will be very much defined by the extent to which international law manages to fulfil its quintessential function as a bridge between different nations and peoples living in different places and under often starkly different material conditions. NAVIGATING THE CONTENTS OF THE HANDBOOK

Part I Taking Centre Stage in Global Governance and the International Legal Order The first part of the volume tackles China’s relationship with international institutions and its growing participation in the global governance system since the beginning of the ‘opening up and reform’ process. Chapter 1 by Yun Zhao focusses on the impact of China’s international norm-taking and norm-shaping role through its move into international institutions in the late 1970s up to the current transition period from a Western-led-and-dominated global governance system to a multipolar and more globally inclusive one. Zhao analyses the four main features that, in his view, characterize China’s engagement with international organizations. First, it is an economy-led approach comprising diverse forms of participation on the basis of sovereign equality and peaceful coexistence that is aimed at contributing to a more transparent international system to promote the interests of developing countries. Second, this overarching multilateral strategy has become translated into China’s latest efforts at international institutionbuilding. Third, these efforts have been characterized by a focus on regional integration through multilateral means, a continuation of China’s diplomatic policy of non-aligned partnership, respect for diversity and upholding openness within new institutional frameworks. Finally, China has international norm-shaping and norm-making roles via its participation in international organizations in the areas of peace and security, economic development, the environment and sustainable development. Zhao concludes his chapter with a reflection on how China’s roles as international norm-taker and international norm-maker are not mutually exclusive but instead mutually reinforcing. The next two chapters logically follow on from this background perspective. They do so by focussing on the ongoing and lasting impact on the international legal order of two pivotal and interconnected diplomatic initiatives with important implications for international law that have emerged during President Xi Jinping’s mandate. These are the BRI and the CSFM. Chapter 2 by Congyan Cai first provides an overview of the origins and main characteristics of the BRI, which has involved the signing of more than 200 BRI-related documents between China and around a 150 countries and 32 international organizations. After highlighting some of the criticisms addressed at the BRI and its relationship with the CSFM, the chapter examines the three main strategies with which Western powers have presented alternatives to the BRI in a context of increasing geo-economic and geopolitical competition. Cai then divides the BRI’s legal framework into four components: a BRI-specific international framework; a BRI-specific domestic framework; a BRI-related international framework; and a BRI-related domestic framework. He identifies its main characteristics, including its flexible soft-law-oriented approach. He subsequently examines how the BRI’s legal framework works in practice and analyses its implications for the international legal order and the Chinese legal system. The conclusion highlights the timely and well-targeted character of the BRI, which explains its appeal among

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

4

Ignacio de la Rasilla and Congyan Cai

developing countries. At the same time, he notes how competing Western alternative proposals are indirectly contributing to making it be implemented in a more accountable way. The first part is completed by Chapter 3, in which Ignacio de la Rasilla and Yayezi Hao discuss the CSFM. This is the latest conceptual expression of China’s time-honoured ‘grand strategy of peaceful rise/development’ and the soft-power cornerstone of a new phase of greater Chinese assertiveness in international relations known as ‘the strategy of striving for achievement’ (fenfayouwei, 奋发有为). The first section of the chapter retraces the origins and evolution of the CSFM up to its incorporation in the preamble to the Chinese Constitution in 2018. The chapter proceeds by examining the main tenets of the CSFM on the basis of XI Jinping’s writings with the visual aid of a ‘paifang’ (牌坊). In this representation of a Chinese architectural arch or gateway structure, the foundation of the CSFM is first assimilated to China’s acknowledgement of the centrality of interdependence in the international community. Second, the pillars of the CSFM are identified as the aims of global peace, international common security, inclusive international development and international ecological civilization. Third, the wooden beams that bind the CSFM together are assimilated in the principles of sovereign equality, intercivilizational dialogue and multilateralism, while the principle of win–win cooperation is represented as the CSFM’s frontispiece. The concluding section points to the benefits of China deepening its revamped legalist approach to international relations as the most fitting companion to its grand strategy of peaceful rise/development. Part II Interfaces between National and International Law The second part of the volume is devoted to key interfaces between the Chinese domestic legal system and international law, including the Chinese Constitution, different Western and Chinese conceptions of the rule of law and the place of international law in Chinese courts. Chapter 4 by Chao Wang and Xin Xiang examines how the Chinese Constitution characterizes China’s position in international relations and its evolving relationship with the international legal order. The first section provides a textual analysis of the position of international law in the Chinese Constitution in the light of the three types of article concerning treaties that are usually found in national constitutions: the so-called general policy article, the legal standing article and the contracting capacity article. The chapter continues by analysing the evolution of the Chinese Constitution from a revolutionary state constitution in the Mao era through the 1982 transitional state constitution in the post-Mao era to an emerging global power one, with a focus on the current 1982 constitution and the 2018 amendments of it in the Xi era in the light of the notion of selective adaptation. The authors conclude that the global power constitution, as featured in the latest 2018 amendment, suggests an effort on the part of the PRC to move beyond selective adaptation in order to pursue normative consensus with the international community. Chapter 5 by Karen Alter and Ji Li provides a thoughtful problematizing of China’s extrapolation of the rhetoric on the rule of law (ROL) to the international plane. The authors identify two variants that are at the heart of the disagreement. The first is a commercial and private ROL variant, which reduces the ROL to following through on contracts, paying compensation for breaches and providing dispute settlement for business actors. The second is a constitutional and institutional ROL variant that is concerned with whether the most powerful political actors and governing bodies are subordinate to the ROL as interpreted and upheld by independent adjudicators, and whether this ROL upholds the separation of powers and rights guaranteed in national constitutions. According to Alter and Li, while China’s idea of an international ROL is a hypothetical yet coherent and attractive possibility, Western scholars, including most legal

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

Introduction: China and International Law

5

scholars and political scientists, are significantly more sceptical for a variety of reasons. This does not mean that there is no role for international law, but it does mean that for many Western scholars and practitioners, domestic conversations about an ideal ROL do not travel up to the international level. Alter and Li conclude that the very different Western and Chinese understandings of the ROL ideal and its international implications may limit China’s efforts to build international support for the vision that China’s leaders are intentionally and assiduously creating. To conclude this part, Chapter 6 by Bjo¨rn Ahl tackles the implementation of international law in China by shedding new light on the judicial application and interpretation of international law by Chinese domestic courts. In addition to reviewing scholarly writings and analysing legislation, the chapter also makes use of new open-access court decision databases to analyse a number of treaties in various areas of international law in order to, inter alia, answer the following questions: What kind of international treaties are applied by the courts? Do judges give primacy to national law or to international law in cases of conflicting provisions? What standards of interpretation do judges apply when interpreting international treaties? The chapter further analyses court practice with regard to other sources of international law such as international customary law. Moreover, it addresses the questions of how Chinese courts follow global trends of applying international law in domestic courts and whether Chinese judges selectively adapt international norms or engage in international norm-making. Part III Selected Areas of Chinese State Practice The third part of the book focusses on Chinese state practice in three classical regimes of international law, namely treaty-making, state immunity and jurisdiction. This part is significant and timely because many traditional regimes have recently been witnessing remarkable transformations and international lawyers around the world are wondering how they will evolve.7 Moreover, as China becomes a world-leading power, it is in the process of recalibrating its traditionally conservative policy on these classical international legal regimes. In Chapter 7, Carrie Shu Shang and Wei Shen first review the main existing theories and find that they are insufficient to explain China’s treaty practice. Therefore, they propose their own analytical framework for the legalization of politics and the politicization of law. Using this analytical framework, they examine three categories of Chinese treaties, namely peace and security treaties, private international law treaties and investment treaties, and find that China legalizes domestic political and policy agendas by embracing more treaty obligations while it advances its transnational political agenda by gradually increasing its norm-entrepreneurship role through more active treaty practice. In Chapter 8, Timothy Webster engages with China’s approach to state immunity, a centuryold issue in international law rife with controversy and uncertainty. Webster first reviews the global situation of state immunity. He finds that, on the one hand, absolute immunity remains widespread in the developing world but, on the other hand, not all Western states have abjured the doctrine of absolute immunity, even though almost all of them had embraced this doctrine. This implies that the doctrine of relative immunity is not ‘absolute’. Against this global background, Webster examines China’s state immunity policies and practice in depth, 7

See, for example, Vassilis Pergantis, The Paradigm of State Consent in the Law of Treaties: Challenges and Perspectives (Cheltenham: Edward Elgar, 2017); Cedric Ryngaert, Jurisdiction in International Law, 2nd ed. (Oxford: Oxford University Press, 2015); Charlotte Beaucillon (ed.), Research Handbook on Unilateral and Extraterritorial Sanctions (Cheltenham: Edward Elgar, 2021).

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

6

Ignacio de la Rasilla and Congyan Cai

including how China has handled cases in which it has been involved. He is of the view that China is unlikely to renounce its traditional policy of absolute immunity. However, he suggests that a subtle change is possible owing to some new circumstances that China will face. In particular, Webster provides a short review of China’s (draft) Foreign State Immunity Law issued in late 2022. In Chapter 9, Yongping Xiao and Lei Zhu tackle the extraterritorial application of domestic law. Extraterritoriality often reminds Chinese people of Chinese history, in which powerful Western states trampled on Chinese sovereignty by applying their domestic laws in Chinese territory in the nineteenth and early twentieth centuries.8 Therefore, China has long been critical of the extraterritorial application of domestic law. However, this policy has begun to subtly change in the Xi era, during which China has adopted a number of laws authorizing the extraterritorial application of Chinese laws. These include the Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures (2021) and the Anti-Foreign Sanctions Law (2021).9 In fact, in 2019 President Xi required the building of a legal system of extraterritorial application of domestic laws to be speeded up.10 In their chapter, Xiao and Zhu focus on how China exercises extraterritorial jurisdiction based on the ‘effect doctrine’, which represents the most controversial legal basis for extraterritoriality. By surveying several cases involving offensive maps, marine environment protection and prohibition of monopolies, Xiao and Zhu evaluate the relevant legal provisions and how they are applied by Chinese executive authorities and the judiciary. Part IV International Peace and Security The next five parts of the book are dedicated to examining China’s engagement with the main contemporary international law regimes. The fourth part focusses on the maintenance of international peace and security. History shows that great powers are crucially involved in international peace and security. They are key guardians of international peace, but they may also be sources of major threats to international peace. International concern has emerged regarding the role played by China in the maintenance of international peace. China is a permanent member of the United Nations Security Council, which is entrusted with shouldering the primary responsibility for maintaining international peace, and it is also a (potential) party to disputes that may deteriorate into threats to international peace.11 In this context, Chapter 10 by Zhixiong Huang and Yaohui Ying looks into the Chinese approach to the legality of using force in international relations and its likely extension to the domain of cyberwarfare. By undertaking a thorough investigation of diplomatic statements and occasions of China using force up to the latest war in Ukraine, Huang and Ying observe that China maintains a formalist and ‘restrictivist’ approach to the legality of the use of force in international law. In particular, they examine China’s approach to the use of force in cyberspace, which is becoming a new

8

9

10

11

See, for example, Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire and China (Cambridge: Cambridge University Press, 2010), 149–90. Anti-Foreign Sanctions Law, 10 June 2021, www.npc.gov.cn/npc/c30834/202106/d4a714d5813c4ad2ac54a5f0f78a5270 .shtml. ‘Xi Jinping Presided Over the Second Meeting of the Central Committee for the Comprehensive Rule of Law and Delivered an Important Speech’, 25 February 2019, www.gov.cn/xinwen/2019–02/25/content_5368422.htm?cid=303. See, for example, Lisa MacLeod, ‘China’s Security Council Engagement: The Impact of Normative and Causal Beliefs’ (2017) 23 Global Governance, 383–401; Congyan Cai, ‘International Security: How Law and Politics Work’ (2021) 64 Germany Yearbook of International Law, 117–46.

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

Introduction: China and International Law

7

frontline in military conflicts.12 According to them, China is likely to maintain a ‘wait and see’ approach regarding jus ad bellum in cyberspace and to continue with its overall restrictive understanding of the rules on cyberspace. However, considering the anonymity of cyberspace and the increasing frequency of cyber-attacks, the possibility that China may adopt a more flexible understanding of some specific rules cannot be completely ruled out. The 9/11 terrorist attacks started a new chapter in the history of international terrorism law. However, this international legal regime is yet to be fully completed. States have much discretion to define what terrorism is and how to counter it. As a result, counterterrorism measures are quite likely to be misused or abused and so infringe human rights. As in many other countries, terrorism has posed a great threat in China and caused serious casualties. In the light of this, China has adopted or updated several counterterrorism laws and taken severe enforcement measures, some of which have been strongly criticized by certain Western states as breaching human rights. In Chapter 11, Congyan Cai and Yifei Wang review the evolution of China’s counterterrorism legal system before and after 9/11. Cai and Wang then tackle China’s engagement with and contribution to international anti-terrorism law in the Security Council and in particular its norm-entrepreneurship role in leading the anti-extremism convention within the framework of the Shanghai Cooperation Organisation (SCO) in 2017. They also attempt to recalibrate the relationship between counterterrorism and human rights protection, and provide an evaluation of the implications of the Chinese counterterrorism legal framework and related measures to protect human rights in China. Chapter 12 by Dan Zhu turns its attention to China’s participation in the field of international criminal law with the aim of understanding the evolving relationship China has entertained with it by examining substantive issues that have influenced the nature of this relationship to date and factors that are likely to influence China’s interactions with this body of law in the years to come. Zhu first traces the history of China’s engagement with international criminal law, and sketches out in broad terms China’s specific concerns regarding this body of law, including traditional ones. She discusses the extent to which these concerns are still as relevant in China’s future engagement with international criminal law as they were in the past. In Zhu’s view, China’s dual identity as both a developing country and a rising great power lead to different kinds of interests and preferences and give rise to competing concerns in its relationship with international criminal law. Part V Human-Centred International Law The next part is devoted to fundamental elements of what we may term the ‘human-centred dimension’ of international law and focusses on China’s relationship with international human rights law, global health law and international humanitarian law. First, Chapter 13 by Ruijun Dai examines China’s engagement with international human rights law and stresses that China has made substantive contributions to the creation of this specialized international legal regime and to promoting it as part of a global moral consensus on human rights. Dai argues that China’s proactive role in shaping international human rights law discourse does not challenge, or attempt to weaken, existing norms but instead aims to preserve the ‘original intention’ of international human rights law. This is reflected in China’s interaction with international human rights mechanisms, including the Universal Periodic Review, special procedures and 12

See generally Marco Roscini, Cyber Operations and the Use of Force in International Law (Oxford: Oxford University Press, 2014); Michael N. Schmitt (ed.), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd ed. (Cambridge: Cambridge University Press, 2017).

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

8

Ignacio de la Rasilla and Congyan Cai

treaty bodies, and in how it practises the principles of respect, dialogue and cooperation with other parties in this area rather than engaging in confrontation, while resisting politicization, selectivity and double standards. Moreover, for Dai the Chinese emphasis on economic, social and cultural rights should not be equated with China ignoring civil and political rights or selectively adapting to certain human rights standards but not to others. In fact, according to Dai, considering China’s positive commitment to civil and political rights during the third Universal Period Review and its most recent National Human Rights Action Plan (2021–5), one may indeed expect China to make substantive progress in the balanced protection of all human rights domestically while also positively influencing international developments. Chapter 14 by Qingjiang Kong and Shuai Guo provides an up-to-date analysis of China’s engagement with global health law in and beyond the shadow of the Covid-19 global pandemic. Kong and Guo tackle the ‘accountability question’ and conclude that China met its notification obligation under the World Health Organization (WHO) International Health Regulations 2005. However, they stress that current international health governance is facing great challenges. In particular, they argue that international cooperation should be a duty under global health law and that therefore more effective global health governance should be in place, and especially a binding mechanism to ensure a global response strategy in cases of international public health crisis. The analysis is complemented by the formulation of a ‘Chinese view’ to enhance cooperation on combating global health crises in the form of information-sharing, technology-sharing, support for developing countries and a global health monitoring and aid system. Part V concludes with Chapter 15 by Binxin Zhang, which examines China’s relationship with international humanitarian law (IHL) from both a historical and a contemporary perspective and its contemporary contributions to the field. These contemporary contributions are characterized by China’s need to adequately address the realities of modern warfare, which have led to a new era of rule-shaping and rule-making for China in the field of IHL. Against this background, the chapter first covers the period from the late Qing dynasty until the early decades of the People’s Republic of China. It then examines China’s contemporary IHL practices, including its ratification of and accession to IHL treaties, its domestic legislation, military traditions and strategies, and its participation in international rule-making. The chapter then focusses on how the development of new technologies has called into question the applicability, relevance and sufficiency of IHL. In this context, Zhang stresses that as IHL is in the process of being adapted, (re)interpreted and expanded, China is seeking to play an active role in these processes. The chapter concludes with a reflection on China’s changing role and the prospects for its future engagement with IHL. Part VI The Habitat and the Global Commons The sixth part of the volume is dedicated to examining China’s relationship with the habitat and global commons dimension of international law. With its ever-growing technological, economic and military power, China has acquired a greater ability to reach the sea, space and outer space, and Chinese public and private activities are having a sizeable impact on the planet. In this context, in Chapter 16, Nengye Liu first examines China’s legal efforts at conservation of biodiversity and then evaluates China’s participation in the two latest negotiations on global ocean governance – biodiversity in areas beyond national jurisdiction (BBNJ) and the Mining Code in the deep seabed. Liu reviews China’s position and its leadership in the BBNJ negotiations, which finally reached a breakthrough in March 2003 after five years of bargaining among

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

Introduction: China and International Law

9

states.13 He shows the ambiguous role of China in global environmental governance as a major emitter but also the main producer of renewable energy technology. It is a developing country claiming the historical responsibility of developed countries but also a powerful state commanding massive financial and technological resources, a great power with cautious regional and targeted ambitions, and both a norm-taker and a norm-shaper, depending on the particular normative environmental context. Chapter 17 by Tianbao Qin and Bingyu Liu focusses specifically on China’s engagement with international climate change law. Qin and Liu provide an analytical framework by identifying two approaches to climate change law: a top-down or state-centric governance approach; and a multi-stakeholder engagement approach. In line with this analytical framework, they examine China’s participation in global climate change governance and investigate the measures that China has taken in the fields of climate change lawmaking, green investment and foreign aid to tackle climate change. They also explore how China participates in climate change governance in the wake of the Paris Agreement on Climate Change and its aftermath. They show that China is shifting from being a norm-follower to being a positive participant and further normative contributor to global climate change governance, and that adopting a combination of the topdown and the multi-stakeholder engagement approaches can enhance the coordination of stakeholders at different levels of governance and across various sectors, and help to accelerate the reduction of carbon emissions globally. Disputes between China and several neighbouring states including Japan and the Philippines in the East Sea and the South China Sea (SCS) have attracted much international attention, which was aggravated when China rejected the award made by an international arbitral tribunal established in accordance with Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) in favour of the Philippines in 2016.14 Many states participated in the dispute over the SCS arbitration,15 and there have been numerous publications in this regard.16 However, the SCS arbitration is only a small part of China’s law of the sea practice. In Chapter 18, Haiwen Zhang provides a comprehensive picture of Chinese practice regarding the law of the sea. She undertakes a thorough investigation of Chinese involvement with the law of the sea since the nineteenth century, including China’s participation in the UNCLOS negotiations. She also reviews how China applies and enforces UNCLOS, including how it has developed its domestic legal system and its settlement of sea-related disputes. This part of the handbook concludes with Chapter 19, which provides an up-to-date analysis of the normative impact of China’s policies on the governance of outer space. Matthias Vanhullebusch examines China’s differential approach vis-a`-vis developing and developed countries in advancing its normative agenda on the non-weaponization of outer space at the Conference on Disarmament and the UN General Assembly. He observes that, following the 13

14 15

16

‘UN Delegates Reach Historic Agreement on Protecting Marine Biodiversity in International Waters’, UN News (5 March 2023), news.un.org/en/story/2023/03/1134157. Award, PCA Case No. 2013–19, 12 July 2016. See China Ministry of Foreign Affairs, Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014), www.fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/201412/t20141207_679387.html; and China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea (13 July 2016), www.fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/201607/ t20160713_679474.html; Antony J. Blinken, Fifth Anniversary of the Arbitral Tribunal Ruling on the South China Sea (11 July 2021), www.state.gov/fifth-anniversary-of-the-arbitral-tribunal-ruling-on-the-south-china-sea/. See, for example, Chinese Society of International Law, ‘The South China Sea Awards: A Critical Study’ (2018) 17 Chinese Journal of International Law, 207–748; Bernard H. Oxman, ‘The South China Sea Arbitration Award’ (2017) 24 University of Miami International & Comparative Law Review, 235–84.

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

10

Ignacio de la Rasilla and Congyan Cai

logic of democratization of international relations, China has gained the support of the majority of developing countries for its agenda on their commonly shared values of peace and development and other forms of functional cooperation in their outer space activities – increasing its international legitimacy in their eyes. He also finds, however, that China has yet to gain the trust of technologically advanced – developed – nations in order to give its future regulatory framework governing peaceful relationships in outer space a much-needed normativity. Vanhullebusch suggests that past efforts at disarmament in outer space during the Cold War can guide China’s norm-entrepreneurship, in which it must seek consensus among the main space powers, the United States in particular, on the basis of trust. However, without nurturing fertile soil in this area through negotiation and consensus-seeking, any rules on the prevention of an arms race in outer space are unlikely to take root. Part VII International Economic Law The seventh part of the handbook tackles China’s relationship with the central dimension of international economic law. As is well known, China’s ‘reform and opening-up policy’, which it embarked on in the late 1970s, centred on the economic field. That nowadays China is widely recognized as a leading power with a great capacity to reshape the traditionally Western-led international order is fundamentally a result of its amazing economic growth in the past four decades. China has largely embraced liberal international economic rules by negotiating and signing bilateral, regional and multilateral economic treaties and joining or rejoining relevant international economic organizations. Recently, China has been proactive in advocating its own economic agenda, one of the major purposes and consequences of which is an increasing international norm-shaping and norm-making role. In this context, in Chapter 20, Jiangyu Wang develops an analytical framework based on ‘compliance versus incorporation’ to understand how, as the second largest trading power in the world, China interacts with international trade law. Wang examines several periods from initially ‘leaning to one side’ – namely the side of the Soviet Union in the 1950s – to complete isolation after breaking away from the Soviet camp in the 1960s and 1970s, to opening up to the West in the late 1970s up to partially decoupling from the United States in the late 2010s. Wang argues that in its ‘reform and opening-up period’ (1978–present), as far as compliance with international trade law is concerned, China has been a rule-taker and a responsible – although possibly reluctant at times – status quo-oriented power in the United States-led, Western-dominated international economic system. In parallel, China has also taken an instrumentalist approach to international trade law with a foreign trade policy pragmatically oriented towards achieving a balance between trade liberalization and protectionism based on a calculated use of industrial policy tools and non-tariff barriers to support selected domestic industries. In recent decades, international investment law has been undergoing a profound transformation17 and this makes it particularly timely to examine how China, as both the second largest host-state and home-state of international investment and also the second largest signatory of investment treaties, engages with international investment law. In Chapter 21, Freya Baetens and Sheng Zhang do precisely this by first analysing the Chinese domestic international investment legal framework and the evolution of Chinese investment treaties. 17

See generally Christina Binder, Ursula Kriebaum, August Reinisch and Stephan Wittich (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: Oxford University Press, 2009); Steffen Hindelang and Markus Krajewski (eds.), Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified (Oxford: Oxford University Press, 2016).

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

Introduction: China and International Law

11

This analysis is followed by an investigation into how foreign investors use investment treaties to challenge the Chinese government and Chinese investors claim their rights under investment treaties from foreign governments. They then review China’s position on and proposals for reforming international investment law in terms of substantive rules and the investor–state dispute settlement mechanism. In addition, they evaluate China’s commitment and contribution to investment multilateralism by individually and collectively advocating for new initiatives like the establishment of the Asian Infrastructure Investment Bank (AIIB). In the view of the two authors, China has the potential to become an important rule-maker in international investment law. Chapter 22 turns to intellectual property (IP), which has long been a major source of economic disputes between China and developed countries – especially the United States. Jianqiang Nie explores Chinese legal practices related to IP protection, including China’s participation in international IP institutions, negotiation of international IP treaties and implementation of its international obligations. This chapter aims to establish whether China has become a respected agent of international IP law and a responsible stakeholder in the international IP system or, by contrast, a norm-challenger. It investigates the challenges that lie ahead with regard to its implementation of international legal obligations in this area. Nie reviews conceptual issues, namely the evolution of China’s conception of IP rights and their protection under international law. He then analyses China’s role in the negotiation of IP treaties, showing how China has changed its role from being a passive rule-taker to being an active negotiator and rule-shaper. Furthermore, he examines whether China has implemented its IP obligations in good faith. Finally, Nie concentrates on dispute resolution relating to international IP and expounds China’s attitude to international IP dispute settlement. Western states, and especially the United States, maintain decision-making supremacy in international financial institutions such as the International Monetary Fund (IMF) and the World Bank, and have largely failed to fully respond to the appeal from the Global South to reform international financial institutions.18 In Chapter 23, Bin Gu examines China’s efforts to reshape the current international financial order. Gu first defines ‘Chinese multilateralism’ as the analytical framework for his chapter, and in line with his conception of Chinese multilateralism reviews how China is working towards reform of the IMF and the World Bank. He also examines China-led initiatives such as the AIIB, the New Development Bank and the Multilateral Cooperation Centre for Development Finance. Furthermore, Gu addresses China’s teleological interpretative method in international financial institutional law in the context of the overarching framework of ‘Chinese multilateralism’ in this area. Part VIII International Dispute Settlement Finally, the last part of the handbook is devoted to the field of international dispute settlement. In this context, Chapter 24 by Ignacio de la Rasilla and Yayezi Hao examine China’s asymmetrical move to contemporary international courts and tribunals through a study of China’s regime-specific relationship with, or detachment from, each of the existing relevant adjudicative and semi-adjudicative mechanisms for international dispute resolution on the international plane. In particular, using a tripartite typology, the chapter examines China’s gradual shift from outright rejection of legal methods of international dispute settlement to 18

See, for example, BRIC – Brazil, Russia, India and China – Grouping II Summit of Heads of State/Government, Brasilia, 15 April 2010, Joint Statement, para. 11; 8th BRICS Summit–Goa Declaration, Goa, India, 16 October, 2016, para. 32.

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

12

Ignacio de la Rasilla and Congyan Cai

greater acceptance of it in certain contexts in recent years. The first type includes analysis of a minor softening of its traditional strategic detachment from international adjudicative systems in general public international law, international criminal law and international human rights law. The second focusses on China’s deepening engagement with adjudicative systems in the areas of international trade law and international commercial and investment law. The third category analyses China’s exploratory accommodation to adjudicative settlement mechanisms in the law of the sea and in newer areas. The chapter fleshes out this classification by examining the roots of both historical and contemporary attitudes underlying China’s asymmetrical and regime-specific approach to international adjudication with reference to major Chinese policy initiatives, including the BRI. Last but not least, Chapter 25 by Xinjun Zhang and Xidi Chen devotes specific attention to China’s recourse to non-adjudicative means of dispute prevention and settlement, namely negotiation, to tackle the special category of international territorial disputes with a detailed analysis of both successful and ongoing territorial and boundary dispute settlement processes between China and its neighbouring countries since 1949. It first examines the settlement of China’s land boundary disputes, identifying peak periods of successful practices and covering the influence of geopolitics on China’s border policy and the past and present of territorial disputes between China and India. The chapter then focusses on China’s island disputes in the SCS and the East China Sea, delving in particular into the substance of the dispute between China and Japan over the Diaoyu/Senkaku Islands. It continues by presenting a series of observations on China’s approach to the settlement of territorial issues from both procedural and substantive perspectives and summarizing its characteristics, namely China’s preference for bilateral negotiation and its emphasis on the significance of the ‘traditional line’ or ‘customary line’ [传统习惯]. The chapter concludes that while there are some common features in China’s approach to territorial disputes over time, China does not see territorial issues in purely historical or legal terms and a flexible approach remains paramount.

https://doi.org/10.1017/9781009041133.002 Published online by Cambridge University Press

part i

Taking Centre Stage in Global Governance and the International Legal Order

Published online by Cambridge University Press

Published online by Cambridge University Press

1 China’s Reform and Opening-Up and Its Move to International Institutions Yun Zhao

1.1 INTRODUCTION

The People’s Republic of China (hereafter, ‘China’) had few exchanges with international institutions in the twenty years following its establishment in 1949. However, the restoration of China’s United Nations (UN) membership in 1971 was a turning point.1 In a process accelerated by implementation of its reform and opening-up policy in the late 1970s, China has integrated into the international community, steadily expanding its relationships with international institutions and playing an ever more important role in shaping modern international law. As a major power and the largest developing country in the world, China increasingly has a say in international affairs. To an extent, its membership of and active participation in international institutions heightens the legitimacy of these institutions and consolidates their regional and global governance roles. For China and the relevant international institutions, this is a win–win situation. Their interactions not only are an important component of China’s foreign engagement but also serve as an indispensable channel through which the international community can get to know China. From its early days as an ‘apprentice’ learning how to comply with international law rules, China has reached a stage of active involvement in the formation of rules for the new international order. This chapter examines China’s role in shaping and developing international law as it moves to international institutions. These are to be understood in a broad sense, encompassing international organizations as well as China’s many initiatives, such as the Forum on China–Africa Cooperation (FOCAC), that characterize its engagement with international institutions. However, the discussion in this chapter focusses on both intergovernmental global and regional organizations as well as other international fora and networks to which China is a party, such as the Group of Twenty (G20) and the Group of Seventy-Seven (G77), given their relevance to international law shaping and making. Following this introduction, Section 1.2 offers an overview of China’s move to international institutions. Section 1.3 looks into distinctive features of China’s participation in international institutions in the last few decades. China’s establishment of new international institutions in shaping and making international law rules will be further examined in Section 1.4. Section 1.5 discusses China’s norm-making role in three major areas in recent years and its contribution to the development of international law. The chapter concludes, in Section 1.6, that China’s 1

UNGA Res 2758 (25 October 1971) UN Doc A/RES/2758(XXVI), www.law.ox.ac.uk/sites/files/oxlaw/oscola_2006_ci ting_international_law.pdf. For a specific treatment of the issue to commemorate the fiftieth anniversary of China’s return to the UN, see, for example, China UN Association, The Road Together – Commemorating the 50th Anniversary of the People’s Republic of China’s Resumption of Its Membership in the United Nations (World Knowledge Press, 2021) (in Chinese).

15 https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

16

Yun Zhao

norm-entrepreneurship role is conducive to development of international law and reform of the international order, allowing for wider participation from all members of the international community. 1.2 AN OVERVIEW OF CHINA’S MOVE TO INTERNATIONAL INSTITUTIONS

International institutions developed quickly after the end of World War II. The Union of International Associations maintains organization profiles of more than 73,000 active and inactive international institutions, including around 5,000 international intergovernmental organizations, with around 1,200 new organizations added each year.2 Almost all countries are members of international institutions, which originate mainly from multilateral, regional or bilateral cooperative arrangements. China is an active member of the United Nations and its specialized agencies, including but not limited to the Food and Agriculture Organization (FAO), the Conference on Trade and Development (UNCTAD), the Educational, Scientific and Cultural Organization (UNESCO), the Office of the High Commissioner for Refugees (UNCHR) and many others.3 In April 2021, China contributed almost USD 350 million to the UN for the year of 2021,4 making it the secondlargest contributor after the United States. The rise of China’s status is particularly evident in UN peacekeeping operations, with China ranking second among all providers of assessed contributions (15.21 per cent) for 1 July 2020–30 June 2021.5 China is currently a member of sixty international organizations, eleven of which are regional.6 For example, it joined the UN High-Level Political Forum on Sustainable Development in 2013, the Asian Infrastructure Investment Bank (AIIB) in 2016 and the Belt and Road Forum for International Cooperation (BRFIC) in 2017. China also helps fund regional organizations, for example in 2020 contributing USD 1.42 million to Asia-Pacific Economic Cooperation (APEC) forum trade advancement and investment initiatives.7 China’s institution-building role is a relatively recent development. It took the lead in creating the AIIB and the BRFIC as part of its Belt and Road Initiative (BRI) development strategy.8 Meanwhile, Chinese nationals increasingly hold senior positions in a range of UN agencies, including the FAO, the International Telecommunication Union and the International Civil Aviation Organization. Currently, thirty-five Chinese nationals serve as heads of key international organizations and in other top leadership positions in UN principal organs, funds and programmes, specialized agencies, other UN entities and bodies, and international trade and financial institutions.9 China’s representatives have so far led four of the fifteen UN

2 3

4

5 6

7

8 9

Union of International Associations, ‘The Yearbook of International Organizations’, https://uia.org/yearbook. Mark A. Baker, ‘China’s Membership in International Organizations’, Chinese Outpost (n.d.), www.chineseoutpost.com/chinapedia/government-and-politics/membership-in-international-organizations.asp. UNGA Committee on Contributions, ‘Contributions Received for 2021 for the United Nations Regular Budget’ (27 September 2021), www.un.org/en/ga/contributions/honourroll.shtml. United Nations Peacekeeping, ‘How We Are Funded’, https://peacekeeping.un.org/en/how-we-are-funded. Ministry of Foreign Affairs of the People’s Republic of China, ‘An Overview of International Organizations and Conferences’, www.fmprc.gov.cn/web/wjb_673085/zzjg_673183/gjjjs_674249/gjzzyhygk_674253/. APEC, ‘China Contributes to Initiatives Advancing Free Trade and Economic Growth’ (9 December 2020), www .apec.org/press/news-releases/2020/1209_MOU. On the BRI, see further, in this volume, Chapter 2. US–China Economic and Security Review Commission, ‘PRC Representation in International Organizations’ (May 2021), www.uscc.gov/sites/default/files/2021–05/PRC_Representation_in_International_Organizations_May2021 .pdf.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

1 China’s Reform and Opening-Up

17

specialized agencies,10 while four Chinese jurists have served and one is currently serving as a judge at the International Court of Justice11 and others on the benches of other international courts or tribunals. 1.3 DISTINCTIVE FEATURES OF CHINA’S MOVE TO INTERNATIONAL INSTITUTIONS

Since the adoption of the reform and opening-up policy, and particularly in the post–Cold War period, China has expanded its participation in international institutions, reaffirming its determination to integrate into the international community. Four distinctive features can be observed in the process of China’s move to international institutions: (1) an economic-led approach; (2) diverse forms of participation; (3) participation based on sovereign equality and peaceful coexistence; and (4) an effort to foster transparency in the international order with an emphasis on developing countries. 1.3.1 Economic-Led Move to International Institutions China’s participation in international institutions and global governance has been led mainly by economic considerations. Beyond these, it should be noted that peace and security have also played a role over time in China’s move to international institutions. The prime example is China’s move to the UN, which was mainly driven by peace and security considerations. China’s participation in international institutions was very limited from 1949 until the first few years after the restoration of its UN membership in 1971, when the reform and opening-up policy brought major changes to China’s strategy and direction in its participation in international institutions. The move has been a gradual process, initially serving China’s urgent need for economic reform while the country tried to familiarize itself with the international institutional system and game rules. At this stage, the direct reason for China’s move to international institutions was a need for foreign investment and capital. Deng Xiaoping, the architect of China’s reform and opening-up policy, pointed out that ‘China must first fulfil its economic modernization, which means that the Chinese economy must shift from the Stalinist model to an independent one relying more on export.’12 To achieve this, participation in major international economic institutions was vital. China began by liaising with major international institutions in the trade and economic field, including the UN Development Programme, the World Bank, the International Monetary Fund (IMF) and the General Agreement on Tariffs and Trade (GATT). However, China’s integration into the international trade and economic system took much longer than expected. For example, its admission to the World Trade Organization (WTO) in 2001 came only after fifteen years of negotiations. Once achieved, this membership signified a new stage of economic interactions between China and the outside world, leading to full integration into the international trade and economic system.

10

11

12

Paweł Paszak, ‘China’s Growing Influence in International Organizations’, Warsaw Institute (14 October 2020), https://warsawinstitute.org/chinas-growing-influence-international-organizations/. The five Chinese judges are Hsu Mo (term: 1946–56); Wellington Koo (1957–67); Zhengyu Ni (1985–94); Jiuyong Shi (1994–2006); and Hanqin Xue (2010–30). Zhuhai Xie, ‘The Rise of China and Its Growing Role in International Organizations’ (2011) 4(1) ICCS Journal of Modern Chinese Studies, 85–96, 87.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

18

Yun Zhao

The 2008 global financial crisis was another important triggering event for China’s participation in international institutions and global governance. Unlike major Western economies, China’s economy remained strong throughout the crisis, allowing it to overtake Japan as the second-largest economy in the world in 2010. Many countries relied on China’s strong economy in their recovery, sparking its determination to explore and improve global economic governance. With its rapid economic development over the past three decades since the 1990s, China is seen as having the ability to contribute to a greater extent to the shaping of global economic order in the new era,13 while the success of this development also speaks for itself in terms of the credibility of China’s economic model and policy in the eyes of many developing countries. In overtaking Japan to become the world’s largest foreign exchange reserve country in 2006, China became well placed to provide significant levels of development aid and assistance. Coupled with the sheer size of its internal market and rapidly growing middle class, China has become ‘increasingly important for the balance sheet of companies not just in Asia, but also elsewhere in the world’.14 Economic aid, a relatively less controversial area than politics or the military, is another factor to consider in China’s economic-led move to international institutions. While retaining its identity as a developing country, China voluntarily provides economic aid to other developing countries, which can in turn serve its national interests, including national image building.15 By developing this economic-led model of participation and international cooperation, China has found common ground with other countries, thereby establishing a positive and cooperative global image. In this globalized world, economic interdependence inevitably creates a spillover effect in other realms, including the political arena. For instance, it leads the international community to realize shared concerns beyond the economic, giving rise to potential ‘political consensusbuilding opportunities’.16 China’s economic-led participation in international institutions offers an excellent ground for its involvement in, and impact on, international decision-making processes in the political arena. 1.3.2 Diversified Forms of Participation in International Institutions China’s participation in international institutions is a concrete manifestation of its diplomatic ideology of multilateralism and constitutes an important part of its diplomatic transformation prompted by the reform and opening-up policy. International institutions were no more than platforms for power struggles between superpowers during the Cold War period; China has since deepened its understanding of the role of international institutions in facilitating and promoting its domestic economic reform. During the process of balancing power and interest among international institutions of a different nature, influence and scale, China has developed a flexible, diversified means of participation in international institutions. The UN, as the most representative and influential international intergovernmental organization, plays an indispensable governance role in the maintenance of world peace, the 13 14

15

16

Jinghan Zeng, ‘Chinese Views of Global Economic Governance’ (2019) 40(3) Third World Quarterly, 578–94, 579. Stephen Olson and Clyde Prestowitz, The Evolving Role of China in International Institutions, report prepared for the US–China Economic and Security Review Commission (Washington, DC: Economic Strategy Institute, January 2011), 5, www.uscc.gov/sites/default/files/Research/TheEvolvingRoleofChinainInternationalInstitutions.pdf. Denghua Zhang, A Cautious New Approach: China’s Growing Trilateral Aid Cooperation (Canberra, ACT: Australian National University Press, 2020), 62. Jaewoo Choo, ‘Ideas Matter: China’s Peaceful Rise’ (2009) 7(3–4) Asia Europe Journal, 389–404, 400.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

1 China’s Reform and Opening-Up

19

promotion of economic development and the protection of human rights. Many important international conflicts and responses to global crises are dealt with under the UN framework. It is thus natural that China’s participation in international institutions began with the UN. One of five permanent members of the UN Security Council since 1945, China has special status within the UN system. While this status has not changed since China resumed its UN membership, the country has greatly expanded its national power and influence over international affairs in the last two or three decades. It has made use of its unique position within the UN framework to defend national interests, shape its international image and develop its multilateral diplomacy. While some countries claim that China disrupts the decision-making of international institutions, especially that of the Security Council, China has repeatedly declared its firm support for multilateralism. Most recently, at the 74th Session of the United Nations General Assembly (UNGA) it stated that ‘China continues to uphold multilateralism and takes an active part in reforming and improving global governance’, and that it stands for ‘the international system built around the United Nations, the international order underpinned by international law, and the multilateral trading system centred around the World Trade Organization’.17 Increasingly, China has shown a tendency to participate in projects that do not impact it directly, becoming involved in a wide range of issues including managerial or organizational issues within institutions such as the Asian Development Bank (ADB).18 While membership is the major means by which China engages with international institutions, as a latecomer, it has also taken a flexible, pragmatic approach to this involvement, which takes two main forms. The first is observer status provided by international institutions for non-member states, other international governmental and non-governmental organizations, and even individuals. An observer state does not have the right to speak and vote in the meetings of international institutions, but such a status can provide excellent opportunities for the exchange of views on certain issues. For example, China was granted observer status in the South Asian Association for Regional Cooperation in 2006 and attended its summit in 2007. The grant of this status was considered a breakthrough for China’s multilateral diplomacy in the South Asian region and signified a new stage in China’s development of relationships with South Asian countries through the multilateral, institutional approach. Observer status can also be a prelude to membership of an international institution. Before China’s formal admission to the WTO, it applied for GATT observer status in 1982 and the same for the WTO in 1995. This status provided China with the opportunity to become familiar with WTO rules and operation and an informal channel for communication with WTO members, enabling consensus on issues of common interest. After six years of negotiations, China formally joined the WTO in 2001. The second form of China’s international involvement is through the launch, co-launch or joining of forums for dialogue and exchange on issues of common interest. Not all such forums belong to international institutions. For example, the first Ministerial Conference of FOCAC held in Beijing in October 2000 set up a collective dialogue mechanism for regular consultations between China and African countries.19 In 2004, China and the Arab League co-launched the China–Arab States Cooperation Forum (CASCF) to promote cooperation and advance peace 17

18 19

Ministry of Foreign Affairs of the People’s Republic of China, ‘China and the United Nations: Position Paper of the People’s Republic of China for the 74th Session of the United Nations General Assembly’ (18 September 2019), www .fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/t1698812.shtml. Olson and Prestowitz, supra note 14, at 9. Forum on China–Africa Cooperation (FOCAC), ‘FOCAC Mechanisms’, www.focac.org/eng/ltjj_3/ltjz/.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

20

Yun Zhao

and development.20 In the same year, the China–Caribbean Economic and Trade Cooperation Forum, proposed by China, was established.21 This was followed by the launch of the China– Pacific Island Countries Economic Development and Cooperation Forum in 2006, again upon the initiative of the Chinese government.22 These forums, while not officially international institutions, provide an excellent platform and a flexible channel through which China can exchange views, cooperate with other nations on a wide range of issues and achieve common development. Some have become institutionalized through regular meetings. This special type of international institution includes the Group of Eight Industrialized Nations (G8),23 the G20,24 the G7725 and APEC.26 1.3.3 Participation Based on Sovereign Equality and Peaceful Coexistence The fundamental principles of China’s foreign policy are succinctly expressed as ‘the Five Principles of Peaceful Coexistence: mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence’.27 The doctrine of peaceful coexistence has its origins in the former Soviet Union, which acknowledged ‘the existence of societies antagonistic to the Soviet regime without regarding the destruction of these societies as the immediate goal of the Soviet state’.28 The People’s Republic of China, after its establishment in 1949, developed the doctrine into its Five Principles of Peaceful Coexistence, which were formally inscribed in the Conference Declarations at the Bandung Conference of Asian and African Countries in April 1955 and have been reiterated on various occasions as the core of China’s foreign policy.29 China’s emphasis on peaceful coexistence and its peaceful rise also has historical and cultural roots that differ from British or American schools of thoughts on international society and governance. Specifically, the concepts of he (和) and shi (势) manifest in China’s approach to foreign relations. He means essential harmony or assumption of ‘no conflict’ between oppositions, as well as resolution of contradiction through complementary interaction. China’s diplomacy in the four decades since initiation of its reform and opening-up policy vividly exemplifies 20

21

22

23

24

25

26

27

28

29

China–Arab States Cooperation Forum (CASCF), ‘What Is the China–Arab States Cooperation Forum?’ (May 2016), www.bricspolicycenter.org/en/forum-de-cooperacao-china-paises-arabes/. Caribbean Council, ‘China and the Caribbean: Background Paper for the Advisory Committee of the Caribbean Council’ (12 November 2012), www.caribbean-council.org/wp-content/uploads/2014/02/China-and-the-CaribbeanAdvisory-Committee-Background-article.pdf. Xinhua, ‘China, Pacific Island Countries Hold 3rd Economic Development and Cooperation Forum’, Xinhuanet (21 October 2019), www.xinhuanet.com/english/2019–10/21/c_138490687.htm. The forum aims to foster consensus on global issues such as economic growth and crisis management, global security, energy and terrorism. For further information, see www.cfr.org/backgrounder/group-eight-g8-industrialized -nations. The G20 is a platform for international economic cooperation concerned with financial and socio-economic issues. For further information, see https://g20.org/en/about/Pages/whatis.aspx. The G77 is now the largest intergovernmental organization of developing countries in the United Nations. It promotes members’ collective interests in relation to major international economic issues and strengthens cooperation among developing countries. For further information, see www.g77.org/doc/. For further information on APEC, a forum concerned with trade and economic issues for twenty-one economies in the Asia-Pacific region, see www.apec.org/About-Us/About-APEC. Asia for Educators, Columbia University, ‘Principles of China’s Foreign Policy’, Asia for Educators (2021), http://afe .easia.columbia.edu/special/china_1950_forpol_principles.htm. Warren Lerner, ‘The Historical Origins of the Soviet Doctrine of Peaceful Coexistence’ (1964) 29 Law and Contemporary Problems, 865–70, 865. Ministry of Foreign Affairs of the People’s Republic of China, ‘China’s Initiation of the Five Principles of Peaceful Co-Existence’, https://bit.ly/44K6dVC.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

1 China’s Reform and Opening-Up

21

its adoption of the ‘no-enemy assumption’ and the ‘middle-course approach’.30 This is in line with the Confucian practice of harmony through model behaviour or exemplary action, which ‘forms a force field that commands authority’.31 Such moral authority or normative power radiates outwards, having an impact even on those beyond the range of its sanctioning authority.32 Shi refers to an overall situation or general tendency/direction. According to shi, the state should act and interact in a way that fully takes into account the trend or direction of change in the world. Such a process should be ‘contextually minded and process-oriented’.33 These cultural elements, combined with China’s history as a victim of colonization and imperialism, naturally lead to adoption of peaceful coexistence as the core theme for China’s foreign policy and strong orientation towards sovereign equality.34 China’s emphasis on peaceful development and a harmonious world order serves a strategic purpose. It creates a stable external environment that facilitates the resolution of internal socioeconomic problems. The two are interrelated; many foreign policies resonate with domestic policies. The process of China’s peaceful development, in particular its economic development, relies much on the combination of three internal and external elements: ‘unifying Chinese domestic development and opening to the outside world; relating China’s development to that of the world; and integrating Chinese people’s fundamental interests with the common concerns of the world’s people’.35 Thus, China’s foreign policies are highly sensitive to domestic pressures, principles and policies, which heavily influence its attitude towards international law.36 While continuing to tout the virtue of diversity in the international community, China emphasizes the importance of common development to reduce pressure on its compliance with international norms on the one hand, and on the other to reassure the international society of the benefits of its peaceful rise and development.37 It is thus argued that concepts such as ‘peaceful rise/development’, ‘harmonious world’ and ‘mutual benefit and common win’ advocated by the Chinese government reflect the need for better coordination or correlation between domestic and foreign policies38 to maintain a stable external environment conducive to China’s internal economic development and enhancement of its international status. Accordingly, China perceives an interrelation between ‘peace’ and ‘development’; the causal linkage between the two constitutes the core theme of China’s peaceful rise theory.39 Only with ‘peace’ could China rapidly develop its economy, so emphasizing the notion of peaceful coexistence has been necessary to facilitate economic growth. Further, emphasis on peaceful coexistence and 30

31

32 33 34

35 36

37

38

39

Yaqing Qin, ‘International Society as a Process: Institutions, Identities, and China’s Peaceful Rise’ (2010) 3(2) Chinese Journal of International Politics, 129–53, 147. Jeremy Paltiel, ‘Constructing Global Order with Chinese Characteristics’ (2011) 4(4) Chinese Journal of International Politics, 375–403, 394; Emilian Kavalski, ‘The Struggle for Recognition of Normative Powers: Normative Power Europe and Normative Power China in Context’ (2013) 48(2) Cooperation and Conflict, 247–67, 256. Paltiel, supra note 31, at 392. Qin, supra note 30, at 148. Ann Kent, ‘China’s Participation in International Organisations’ in Yongjian Zhang and Greg Austin (eds.), Power and Responsibility in Chinese Foreign Policy, 132–66 (Canberra, ACT: Australian National University Press, 2013), 139. Choo, supra note 16, at 397. Ann Kent, ‘China’s International Socialization: The Role of International Organizations’ (2002) 8(3) Global Governance, 343–64, 347. Feng Zhang, ‘Rethinking China’s Grand Strategy: Beijing’s Evolving National Interests and Strategic Ideas in the Reform Era’ (2012) 49(3) International Politics, 318–45, 333. Jisi Wang and Lu Sun, ‘From “War and Revolution” to “Peace and Development”: 60 Years of Chinese Diplomacy and International Study’ in Weimin Zhao and Junling Guo (eds.), Vision of Peking University: An Account of 60 Years of Academic Vicissitudes in the New China, 257–315 (Beijing: Peking University Press, 2010), 303, 333. Choo, supra note 16, at 395.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

22

Yun Zhao

dialogue, rather than domination, commands respect and enhances China’s position of leadership, increasing China’s norm-making powers within international institutions. By actively participating in international institutions, China can promote its policy of peaceful coexistence to the world and neutralize ‘China threat’ perceptions and theories. China announced its ‘building a harmonious world’ concept at the 60th Session of the UN in September 2005,40 and in 2010 the former Chinese minister of commerce highlighted that ‘providing foreign aid and honouring its global obligations is an important way for China to present its image as a responsible great power and make its contribution to building a harmonious world visible’.41 This has been further demonstrated through promotion of a ‘community of shared future of mankind’,42 emphasizing the importance of cooperation and coexistence. Through cooperation via the platforms provided by various international institutions, China can effectively demonstrate its commitment to peace and overcome the threat perception,43 as the international community is better able to perceive and predict China’s views regarding the exercise of power. This added transparency afforded by China’s increasing integration helps to dissipate ‘misperception or misunderstanding associated with negative aspects of China’s rise’.44 1.3.4 Transparent International Order with Emphasis on Developing Countries China’s move to international institutions aims for a fair and transparent international order with particular attention paid to the interests of developing countries, a focus reflecting China’s selfperception as a leader respecting all powers. From China’s perspective, ‘respect for others’, encouraging expectations of reciprocity, is the cardinal virtue of China’s normative power.45 This is exactly how multilateralism functions. While major international institutions were initiated and jointly established by developed countries, more and more developing countries have voluntarily joined these institutions with the aim of constraining the caprice of certain of their members and maintaining a relatively fair and transparent global order. China attaches great importance to equal participation in decision-making processes within international institutions, in particular for developing countries. Some scholars have proposed two criteria for determining the existence of a democratic mechanism. First is the paramount importance of ‘the presence of a consultative mechanism, formal or informal, between the big powers’, while the second concerns ‘whether the interests of developing countries at large are taken into consideration in the decision-making process’.46 Since developed countries are in a strong position within the current power structure of the major international institutions, there is a need to reform the current international order to take special account of the interests of developing countries and develop a fairer and more reasonable world economic and political framework. Since restoration of its UN membership, China has actively supported

40

41

42 43 44 45 46

Jintao Hu, ‘Promoting Common Development and Achieving Shared Prosperity’, People’s Daily (15 September 2005), 3. Deming Chen, ‘Working Hard to Promote Chinese Foreign Aid’ (2010) 19 Qiu Shi, 42–44, 42. See also Zhang, supra note 15, at 59. See further in this volume, Chapter 3. Xie, supra note 12, at 90. Choo, supra note 16, at 393. Kavalski, supra note 31, at 253. Qingjiang Kong, ‘China in the WTO and Beyond: China’s Approach to International Institutions’ (2014) 88 Tulane Law Review, 959–80, 968.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

1 China’s Reform and Opening-Up

23

this proposition. In a position paper on UN reforms, China pointed out that these should take into account: the national conditions and real needs of developing countries, and focus on poverty reduction, infrastructure development, food security, capacity building and other major concerns of developing countries and on building an open world economy. Developed countries should live up to their Official Development Assistance (ODA) commitments on time and in full to effectively support developing countries in realizing sustainable development.47

China focusses on the interests of developing countries since these may ultimately affect how other countries deal with issues related to China. Its efforts to promote a global governance regime benefiting developing countries are closely related to its own economic growth and concerns over sovereignty in view of its past history as a target of imperialism.48 As a developing country itself, China shares similar experiences in history and has common interests with other developing countries. For this reason, a cornerstone of China’s diplomacy is to consolidate and strengthen friendly cooperation with developing countries. In constructing its international institutional network, China has focussed particularly on cooperation with neighbouring countries. For example, China held a summit in November 2021 commemorating the thirtieth anniversary of the establishment of the China–ASEAN (Association of Southeast Asian Nations) dialogue relationship; in January 2022 China celebrated the thirtieth anniversary of the establishment of diplomatic relations with the five Central Asian countries (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan). Politically, these are China’s primary base for safeguarding its sovereign rights and interests and playing its international role. Economically, neighbouring countries are China’s important partners in opening up and developing economic cooperation. When it comes to national security, neighbouring areas are an ideal external safety buffer. In view of the diversity of cultures, ethnicities, religious beliefs, social systems and levels of development in the region, China needs to build a peaceful and friendly neighbouring environment from a strategic perspective. 1.4 CHINA’S MORE RECENT INITIATIVES IN THE ESTABLISHMENT OF NEW INTERNATIONAL INSTITUTIONS

On the one hand, China is participating in existing international institutions to marshal international support and show that it respects the existing international norms and order, which includes both acceptance of the norms in attitude and compliance with the norms in action.49 On the other hand, China is creating new institutions to deal with its frustrations with existing institutions and to further its own interests, as well as to respond to new issues and challenges arising in the new era. The two purposes go hand-in-hand and do not necessarily conflict with each other. While adapting to the current international legal order and promoting reforms within the current system, the role of China, as the second largest economy in the world, has shifted. No longer a passive follower of norms, it has become proactive in establishing a secondary-level rule 47 48

49

Ministry of Foreign Affairs, ‘China and the United Nations’, supra note 17. Jeffrey W. Legro, ‘What China Will Want: The Future Intentions of a Rising Power’ (2007) 5(3) Perspectives on Politics, 515–34, 517. See also Evan S. Medeiros and M. Taylor Fravel, ‘China’s New Diplomacy’ (2003) 82(6) Foreign Affairs, 22–35, 22; David Shambaugh, ‘China Engages Asia: Reshaping the Regional Order’ (2005) 29(3) International Security, 64–99, 64. Peter J. Katzenstein (ed.), The Culture of National Security: Norms and Identity in World Politics (New York: Columbia University Press, 1996), 5.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

24

Yun Zhao

system.50 The argument for this two-way strategy is ‘to get both hands ready’.51 This is best exemplified by establishment of the AIIB in 2015.52 While pushing for reforms within the IMF, China in the meantime established the AIIB as a regional-level institution meant to play a dominant role in shaping the regional financial order.53 China’s move to international institutions brings challenges to the traditional institutional financial frameworks in relation to three elements: the global system’s capacity to absorb the substantial increase in the supply of Chinese savings; the adequacy of the global financial safety net to incorporate China and the increase in financial integration and capital flows that have been associated with its rise; the framework for investment financing, with China creating institutions in response to the immense unmet demand for development finance.54

China has been increasingly supportive of the IMF and its various activities, sending a clear message to international society that China accepts existing norms. Participation in international institutions also provides China with excellent opportunities to gain practical knowledge and experience in international negotiations, conflict resolution and multilateral diplomacy, and ‘to adopt the norms, values, attitudes and behaviours accepted and practiced by the system’.55 This does not mean that China is fully satisfied with the existing international financial order, its overall governance structure or China’s role within it. China’s stance is not to overthrow this financial order but ‘to reform it responsibly from within’.56 China has put forward proposals on how to reform the current IMF governance structure and improve representation of developing countries within it. This is interpreted as a two-step process: China needs, first, to be perceived as a responsible international power and to gain the legitimacy needed for further action through accepting and upholding existing norms;57 then, upon obtaining sufficient legitimate normative power, China can set its preferred agenda and persuade other members to integrate the proposed norms and values.58 It has thus been argued that China’s constructive engagement in international institutions heightens China’s credibility and strengthens its influence and ability to achieve its objectives from a tactical point of view.59 As discussed earlier, while placing itself in a major position in the IMF and UN mechanisms, China has also explored alternative platforms for international cooperation. China’s establishment of the AIIB was mainly driven by its disappointment with the stalled reforms of the Bretton Woods institutions. While the AIIB could potentially serve as a competitor to the IMF and the 50 51

52

53 54

55

56

57

58

59

Jinghan Zeng, supra note 13, at 586. See further Zhongying Pang and Ruiping Wang, ‘Global Governance: China’s Strategy’ (2013) 4 China International Studies, 57–68, 58. The AIIB, headquartered in Beijing, is a multilateral development bank with 103 approved members worldwide. For further information, see www.aiib.org/en/about-aiib/index.html. Jinghan Zeng, supra note 13, at 586. On international financial law see further, in this volume, Chapter 23. Peter Drysdale, Adam Triggs and Jiao Wang, ‘China’s New Role in the International Financial Architecture’ (2017) 12 (2) Asian Economic Policy Review, 258–77, 260. Alastair Iain Johnston, ‘Treating International Institutions as Social Environments’ (2001) 45 International Studies Quarterly, 487–515, 495. Shaun Breslin, ‘China and the Global Order: Signaling Threat or Friendship’ (2013) 89 International Affairs, 615– 34, 617. Hedley Bull, The Anarchical Society: A Study of Order in World Politics, Fourth Edition (New York: Macmillan, 2012), 196. Lina Benabdallah, ‘Contesting the International Order by Integrating It: The Case of China’s Belt and Road Initiative’ (2019) 40(1) Third World Quarterly, 92–108, 93. Olson and Prestowitz, supra note 14, at 4.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

1 China’s Reform and Opening-Up

25

ADB, it could also prompt the IMF to speed up its reform process. This would be a clear example of China’s ‘voice and exit’ strategy.60 Consequently, China’s approach to its move to international institutions has been mixed. It has worked closely with established powers and other developing countries in reforming existing international institutions, and also created new institutions that are arguably in direct competition with existing institutions. This approach serves China’s goal of protecting its own national interests and those of developing countries in order to achieve a fairer and more reasonable international political and economic order. In 2001, China established the Shanghai Cooperation Organization (SCO),61 upgrading the previous Shanghai Five mechanism62 to strengthen regional cooperation, make more effective use of emerging possibilities and address new challenges and threats common to the member states.63 As the first intergovernmental organization named after a Chinese city, the SCO has symbolic significance in the process of China’s move to international institutions. The SCO functions as an effective platform for China to work with Russia and other Central Asian members in settling border disputes and collectively dealing with cross-border terrorism and other non-traditional security issues.64 When regional peace, stability and security are threatened, the member states immediately hold consultations and respond collectively to these emergencies.65 Under the framework of the SCO, China has established a close but nonaligned partnership with other member states, signifying the evolution of China’s diplomacy from a traditional bilateral model to a new multilateral model.66 To sum up, China’s trend of movement to international institutions presents the following distinctive features. First, China’s initiatives in the establishment of new international institutions focus on regional integration through multilateral means. Second, China has continued its long-time diplomatic policy of non-aligned partnership. Third, China respects diversity and upholds openness within this new institutional framework. 1.5 CHINA’S ROLE IN INTERNATIONAL NORM-SHAPING AND NORM-MAKING

Increasingly frequent interactions between China and international institutions have provided China with sufficient opportunities to grasp the game rules of international frameworks. This is a process of internalizing international law rules within China, and it leads to shared

60

61

62

63 64

65

66

Chien-Huei Wu, ‘Global Economic Governance in the Wake of the Asian Infrastructure Investment Bank: Is China Remaking Bretton Woods?’ (2018) 19(3) Journal of World Investment & Trade, 542–69, 568. The Shanghai Cooperation Organization, ‘About SCO’, http://eng.sectsco.org/about_sco/. The SCO has eight members: the Republic of India, the Republic of Kazakhstan, the People’s Republic of China, the Kyrgyz Republic, the Islamic Republic of Pakistan, the Russian Federation, the Republic of Tajikistan and the Republic of Uzbekistan. The mechanism consists of five states, namely China, Kazakhstan, Kyrgyzstan, Russia and Tajikistan. This platform was used for the resolution of border demarcation and demilitarization and possible economic cooperation. See Bates Gill, ‘Shanghai Five: An Attempt to Counter U.S. Influence in Asia?’, Brookings (4 May 2001), www .brookings.edu/opinions/shanghai-five-an-attempt-to-counter-u-s-influence-in-asia/. Declaration on the Establishment of the Shanghai Cooperation Organization, https://bit.ly/475fkCr. Non-traditional security issues include trade in illicit drugs, and environmental and water threats. See further Niklas Swanstrom, ‘Traditional and Non-traditional Security Threats in Central Asia: Connecting the New and the Old’ (2010) 8(2) China and Eurasia Forum Quarterly, 35–51, 35. Marcel de Haas, Russia’s Foreign Security Policy in the 21st Century: Putin, Medvedev and Beyond (London: Routledge, 2010), 44. For a more specific treatment of these issues, see in this volume Chapter 11.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

26

Yun Zhao

understandings among members in the international community.67 To a certain extent, in its early stages this internalization followed a pattern of mimicking, social influence and persuasion, or a mixture of all three.68 In recent years, as we have discussed, China has become a proactive norm-maker, proposing Chinese solutions and shaping new norms in line with the interests of China and other developing countries. The emergence, development, decline and possible replacement of relevant international norms is a natural process that involves various factors. Generally speaking, China has played an important role in international norm-making in three major areas, which will be discussed in the rest of this section. The norm-making process is a process of enhancement by a state of its soft power in the international arena. China’s move to international institutions has been successful across a wide range of areas in international security, politics, economy and environment, and China’s ideology, proposals and positions have increasingly attracted attention from all corners of the world. The norm-making process is also one of struggling with existing norms that are mostly generated by developed countries. 1.5.1 Sovereignty and Non-intervention China’s emphasis on sovereignty and non-intervention in the context of ‘internal peace and security’ serves a strategic purpose. China’s hope is to actively shape a norm of non-intervention within international institutions. This will ultimately benefit its own interests, through nonintervention on the issue of Taiwan69 and human rights issues,70 for instance.71 A typical example of non-intervention is China’s stance on Darfur. In response to civil war in this southern region of Sudan, China sought to promote a return to more traditional forms of peacekeeping, as opposed to emerging interpretations of the norm of intervention, by balancing the need to respect Sudan’s sovereignty and the requirement for Sudan to consent to an international intervention.72 China’s official stance, argued to reflect ‘a non-aligned perspective privileging state sovereignty’,73 is believed to be relevant to its pursuit of its own core security interest, in particular on the issue of Taiwan, by ‘“normatively” insulating itself from the eventuality of outside intervention in the future’.74 The issue of human rights is another key sovereignty arena. China, following the traditional concept of sovereignty,75 holds that human rights issues occurring within the confines of national borders should not be a matter for foreign interference.76 In other words, human rights are considered primarily a domestic affair.77 67

68

69 70 71 72

73

74 75 76 77

Jeffrey T. Checkel, ‘Norms, Institutions, and National Identity in Contemporary Europe’ (1999) 43(1) International Studies Quarterly, 83–114, 88. Alastair Iain Johnston, Social States: China in International Institutions, 1980–2000 (Princeton, NJ: Princeton University Press, 2008), 197, 198. As argued, China made an effort to mimic the languages, concepts and routines of the international arms control regime; in consideration of social influence and its international image, China accepted limits on its nuclear weapons programme; through participation in various forums and dialogues, China was persuaded to adopt cooperative security strategies. Kent, supra note 36, at 141. Katherine Morton, ‘China and the Future of International Norms’, ASPI Strategic Policy Forum (22 June 2011), 1. For a more specific treatment of these issues, see, in this volume, Chapter 10. Nicola P. Contessi, ‘Multilateralism, Intervention and Norm Contestation: China’s Stance on Darfur in the UN Security Council’ (2010) 41(3) Security Dialogue, 323–44, 323. Gerrit Kurtz and Philipp Rotmann, ‘The Evolution of Norms of Protection: Major Powers Debate the Responsibility to Protect’ (2016) 30(1) Global Security, 1–18, 10. Contessi, supra note 72, at 337. Stephen D. Krasner, ‘Compromising Westphalia’ (Winter, 1995–6) 20(3) International Security, 115–51, 122. Ayse Kaya, ‘The EU’s China Problem: A Battle Over Norms’ (2014) 51(2) International Politics, 214–33. For a more specific treatment of these issues, see Chapter 4 in this volume.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

1 China’s Reform and Opening-Up

27

There is a growing concern among some states, especially Western states, that China, as its state power rapidly grows, will take advantage of international institutions out of geopolitical consideration and thus jeopardize the value and function of international institutions. China’s increasingly active involvement with international peace and security issues is its attempt to mitigate the ‘China threat’ theory by demonstrating its willingness to adhere to principles of peaceful rise and coexistence. China has actively participated in UN peacekeeping operations and ranks number one in terms of contribution of peacekeeping personnel among the five permanent UN Security Council members.78 China’s participation is demonstrated ‘not only in its strong support for the UN peacekeeping operations and relevant affairs, but also in its evolving doctrine on UN peacekeeping’.79 It also presents to the outside world China’s commitment, as a responsible state, to being ‘cooperative and supportive of multilateral operations designed to improve security abroad’, which has no doubt contributed to the development of China’s soft power and mitigated the ‘China threat’.80 1.5.2 International Economic and Trade Development International economic institutions, represented by the World Bank, the IMF, the WTO and APEC, are major forums for engagement, with China’s vividly demonstrated by its increasingly active role within the WTO. Not only does China ‘passively’ make use of the WTO dispute settlement mechanism but it also actively brings cases and complaints against those who fail to honour WTO trade commitments. In the first few years of membership, China took a cautious attitude towards use of the WTO dispute settlement mechanism, gaining first-hand experience by joining as a third party in almost every dispute settlement panel established from 2003 to 2006 and then filing cases from September 2008. China brought at least four cases81 to the WTO mechanism during 2008–10 with the aim of changing or softening the potential negative impacts of existing trade rules through interpretation, especially the provisions in China’s Accession Protocol regarding its WTO commitments.82 The percentage of disputes with China as complainant has risen in the last few years as China is using the WTO dispute settlement mechanism to advance its legitimate interests.83 Apart from norm-making through the WTO dispute settlement mechanism,84 China has made effective use of the WTO as a negotiating forum for new norms that are favourable to 78

79

80

81

82

83 84

United Nations Peacekeeping, ‘Ranking of Military and Police Contributions to UN Operations’ (31 August 2017), www.un.org/en/peacekeeping/contributors/2017/aug17_2.pdf. Yin He, ‘China Rising and Its Changing Policy on UN Peacekeeping’ in Cedric de Coning and Mateja Peter (eds.), United Nations Peace Operations in a Changing Global Order, 253–76 (Cham: Palgrave Macmillan, 2019), 260. Marc Lanteigne, ‘Red and Blue: China’s Evolving United Nations Peacekeeping Policies and Soft Power Development’ in Chiyuki Aoi and Yee-Kuang Heng (eds.), Asia Pacific Nations in International Peace Support and Stability Operations, 113–40 (Cham: Palgrave Macmillan, 2014), 117, 118. The four cases are: (1) United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, DS379, Request for Consultations received 19 September 2008; (2) European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, DS397, Request for Consultations received 31 July 2009; (3) United States – Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China, DS399, Request for Consultations received 14 September 2009; (4) European Union – Anti-Dumping Measures on Certain Footwear from China, DS405, Request for Consultations received 4 February 2010. Henry Gao, ‘China in the WTO Dispute Settlement System: From Passive Rule-Taker to Active Rule-Maker’ in Ricardo Melendez-Ortiz, Christopher Bellmann and Shuaihua Cheng (eds.), A Decade in the WTO: Implications for China and Global Trade Governance, ICTSD Programme on Global Economic Policy and Institutions, 17–21 (Geneva: International Centre for Trade and Sustainable Development, 2011), 19. On international trade law, see further, in this volume, Chapter 20. On international dispute settlement, see further Chapter 24 in this volume.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

28

Yun Zhao

China and other developing countries.85 On the one hand, China’s spectacular economic development in the past four decades has better placed it to translate its strategic vision into practice and exert more impact on the international economic order. On the other hand, the international leadership vacuum and uncertainty created by the retreat of the United States from important international institutions have provided China with an excellent opportunity to fit into the role in defence of economic globalization. The promotion of norm-making and reform through various platforms, such as the World Economic Forum in Davos, Switzerland and the Boao Forum for Asia in Hainan, China, has proven an effective way of dealing with international economic governance and the vulnerabilities of the existing international economic regime.86 To sum up, China’s initial reluctance to make use of the WTO dispute settlement mechanism was owing to its lack of capacity and to normative concerns about reputational loss. Lack of legal, financial and human resources, and concerns over reputation cost were particularly acute at this stage.87 Over time, however, a learning and socialization process has led to an attitudinal shift in China’s normative orientation regarding the use of the WTO dispute settlement procedure. Since then, China has been one of the largest ‘customers’ of the Dispute Settlement Body (DSB), both as a complainant and as a defendant. The paralyzing of the WTO Appellate Body (AB) by the United States has significantly affected the effective operation of the WTO dispute settlement mechanism, which China believes to have adversely affected the interests of the WTO members. Apart from becoming part of the WTO multi-party interim appeal arrangement (MPIA), China has also called for WTO reforms in four areas: (1) resolving the crucial and urgent issues threatening the existence of the WTO; (2) increasing the WTO’s relevance in global economic governance; (3) improving the operational efficiency of the WTO; and (4) enhancing the inclusiveness of the multilateral trading system.88 The socialization process that prompted the evolution of China’s behaviour suggests that social and normative (dis)incentives may sometimes be more effective than material (dis)incentives in eliciting behavioural change in international institutions. 1.5.3 International Environmental and Sustainable Development China’s emphasis on developing nations is motivated not solely by national interest and economic growth but also by its moral views on the allocation of responsibilities between developing and developed nations, for example in the context of environmental protection and sustainable development.89 Efforts to reduce carbon emissions exemplify China’s dual roles as norm-taker and normmaker. China, as a firm supporter of emissions reduction and a ratifier of the Kyoto Protocol as early as 2002,90 has rejected US proposals for emerging economies’ mitigation responsibilities and staunchly advocated maintenance of the Kyoto Protocol’s operationalization of ‘common but differentiated responsibilities’ (CBDR), ‘with only developed countries taking on binding 85 86

87

88

89 90

Chien-Huei Wu, supra note 60, at 550. James F. Paradise, ‘China’s Quest for Global Economic Governance Reform’ (2019) 24(3) Journal of Chinese Political Science, 471–93, 471. Xiaojun Li, ‘Understanding China’s Behavioural Change in the WTO Dispute Settlement System: Power, Capacity, and Normative Constraints in Trade Adjudication’ (2012) 52(6) Asian Survey, 1111–37, 1125–6. WTO, ‘China’s Proposal on WTO Reform: Communication from China’, WT/GC/W/773, 13 May 2019, https://bit .ly/3PY8bgO. On international environmental law, see further Chapter 16 in this volume. Ann Kent, Beyond Compliance: China, International Organizations, and Global Security (Palo Alto, CA: Stanford University Press, 2007), 250.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

1 China’s Reform and Opening-Up

29

emission reduction commitments’.91 Developed countries’ acquiescence to China’s proposals serves as an important indicator of its normative influence.92 By insisting on CBDR inclusion in the final version of the Paris Agreement, as opposed to the US position, China has been considered ‘a norm entrepreneur’,93 advocating for adoption or institutionalization of CBDR as a norm.94 China’s participation in international environmental protection also serves its national interests, with five major benefits: ‘(1) attracting foreign economic assistance; (2) building institutional and human capacity; (3) insuring domestic political stability; (4) curbing unsustainable economic growth; and (5) enhancing China’s international reputation’.95 Ahead of the twenty-seventh session of the Conference of the Parties (COP) of the UN Framework Convention on Climate Change in Glasgow in late 2021, China submitted updated nationally determined contributions (NDCs) to fight climate change with its voluntary emission-cutting pledges, namely, aiming to see its carbon dioxide emissions peak by 2030 and become carbon neutral by 2060.96 1.6 CONCLUSION

China’s move to international institutions began with resumption of its UN membership in 1971. For a long time, China followed norms in order to present itself as a responsible state, showing a cautious attitude towards the application of international law rules and institutional platforms, largely owing to its lack of capacity and experience. After accumulating sufficient knowledge of and experience in international institutions, China has become more assertive in its application of international law rules. This role, which has involved not only complying with existing rules but also contesting and defending these rules against other members’ non-compliance, is well illustrated by China’s increasingly confident and skilful use of the WTO dispute settlement mechanism. More importantly, China has transitioned to being a proactive norm-maker and is starting to exert an important influence on the shaping of the international order. Upon mastering the game rules of international institutions, China has tried to advance Chinese solutions to international legal issues, to strengthen its agenda-setting ability in international institutions and to develop new norms in line with its interests as well as those of most developing countries. Nevertheless, in the process of international norm-making and norm-shaping, China needs to be open-minded, not constrained by the traditional mindset of absolute oppositions between developing and developed countries. It should seriously study the norms of developed countries and endorse, instead of blindly refuting, those that are in line with the medium- to long-term interests of major countries. In the new era where developing countries are increasingly divided 91

92

93 94

95

96

Makers Jinnah, ‘Takers, Shakers, Shapers: Emerging Economies and Normative Engagement in Climate Governance’ (2017) 23(2) Global Governance: A Review of Multilateralism and International Organizations, 285–306, at 293. See further Cinnamon P. Carlarne and J. D. Colavecchio, ‘Balancing Equity and Effectiveness: The Paris Agreement & The Future of International Climate Change Law’ (2019) 27 New York University Environmental Law Journal, 107–82, at 150–1. Jinnah, supra note 91, at 303. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52(4) International Organization, 887–917, at 893. Jerry McBeath and Bo Wang, ‘China’s Environmental Diplomacy’ (2008) 15(1) American Journal of Chinese Studies, 1–16, at 6. On climate change, see further Chapter 17 in this volume; ‘China Submits Updated Climate Pledges to UN Ahead of Glasgow Talks’, Reuters (29 October 2021), www.reuters.com/business/cop/china-submits-updated-climatepledges-united-nations-2021-10-28/.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

30

Yun Zhao

and diversified, it is not possible or feasible to propose new norms from the perspective of all developing countries in all situations. Hence, the international community should transcend the barriers of the traditional camps and political differences and shape new international norms and promote international governance based on policy-oriented common interests. In this regard, the AIIB is an excellent example in including both developed and developing economies, both Asian and European, as its founding members. In this globalized world, multilateral cooperation, instead of unilateral action, is the only viable way to realize the common goals of international society – peace and development, prosperity and inclusiveness. Accession to existing international institutions or establishment of new institutions does not change the essence of multilateralism. As the experience of China over the last fifty years illustrates, the roles of international norm-taker and international norm-maker are not mutually exclusive but instead are mutually self-reinforcing.

https://doi.org/10.1017/9781009041133.003 Published online by Cambridge University Press

2 The Belt and Road Initiative and the International Legal Order Why It Happened, What It Does and How, and What It Brings About Congyan Cai

2.1 INTRODUCTION

The ‘Belt and Road Initiative’ (BRI) comprises a ‘Silk Road Economic Belt’ (SREB) and a ‘Maritime Silk Road’ (MSR). In September 2013 in a speech at Nazarbayev University in Kazakhstan, China’s President, Xi Jinping, proposed building the SREB.1 A month later in a speech delivered at the Indonesian Parliament, President Xi called for the MSR to be built.2 The BRI concept was obviously inspired by the Silk Road, which from 130 BC to AD 1453 was a network of trade routes connecting China and the Far East with the Middle East and Europe.3 Initially, the BRI proposals did not attract much international attention. However, after the Chinese government in March 2015 published ‘Vision and Actions on Jointly Building a Silk Road Economic Belt and a 21st-Century Maritime Silk Road’ (‘Vision and Actions’ (2015)), which provided details of the BRI’s background, principles, framework and mechanisms, many observers began to consider the BRI seriously.4 In China’s view, the BRI is an important step towards building the ‘community of a shared future for mankind’ (CSFM), China’s new conception of a world order that President Xi officially introduced at the UN General Assembly (UNGA) in September 2015.5 Globally speaking, views on the BRI are divergent. Some are positive, some are critical and some take a wait-and-see approach.6 It is certain, however, that after a decade or so the BRI has indeed brought perceivable implications for the global order in terms of economics, politics and law. This is illustrated by the simple fact that it has stimulated several competing programmes by Western powers.7 Of course, given that the BRI is a decade-spanning large-scale project 1

2

3 4

5

6 7

Ministry of Foreign Affairs of China, ‘President Xi Jinping Delivers Important Speech and Proposes to Build a Silk Road Economic Belt with Central Asian Countries’ (9 September 2013), www.fmprc.gov.cn/mfa_eng/topics_665678/ xjpfwzysiesgjtfhshzzfh_665686/t1076334.shtml [习近平发表重要演讲, 提出共建“丝绸之路经济带”倡议, 2013年9 月9日]. Ministry of Foreign Affairs of China, ‘Speech by Chinese President Xi Jinping to Indonesian Parliament’ (2 October 2013), www.asean-china-center.org/english/2013–10/03/c133062675.htm [习近平在印度尼西亚国会发表 演讲, 2013年10月2日]. ‘Silk Road’, www.history.com/topics/ancient-middle-east/silk-road. National Development and Reform Commission (NDRC), Ministry of Foreign Affairs and Ministry of Commerce of the People’s Republic of China, ‘Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road’ (March 2015), www.mfa.gov.cn/ce/ceuk//eng/zywl/t1251719.htm [国家发展改革委外交部商务 部, 《推动共建丝绸之路经济带和21纪海上丝绸之路的愿景与行动》, 2015年3月]. Xi Jinping, ‘Working Together to Forge a New Partnership of Win–Win Cooperation and Create a Community of Shared Future for Mankind’ (New York, 28 September 2015), www.mfa.gov.cn/ce/cesg/eng/jrzg/t1305051.htm [习近 平,《携手构建合作共赢新伙伴 同心打造人类共同体》,2015年9月28日]. On the community of shared future for mankind, see further Chapter 3 in this volume. See in detail Sections 2.2, 2.3 and 2.4. See in detail Section 2.3.

31 https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

32

Congyan Cai

involving more than a hundred countries and is therefore still in a nascent stage, we need more time to properly evaluate its implications for the global order. Through the prism of the BRI, this chapter helps to illustrate how China, as it becomes a leading state, exerts influence on the international legal order, which is experiencing a tremendous transformation. The chapter first gives an overview of the BRI, including its background and content (Section 2.2). It then examines how major Western powers are responding to the BRI by proposing alternatives, thus illustrating its geopolitical and geoeconomic implications (Section 2.3). Section 2.4 deconstructs the legal framework of the BRI and explains the approach with which China is putting the BRI into practice. Finally, Section 2.5 explores what the BRI may bring about in both the international legal order and the Chinese legal system. Section 2.6 concludes. 2.2 AN OVERVIEW OF THE BRI

As is indicated in ‘Vision and Actions’ (2015), the BRI runs through the continents of Asia, Europe and Africa. It aims to enhance market integration and policy harmonization among BRI countries, promote investment and consumption, and create demand and jobs in the BRI countries.8 ‘Vision and Actions’ (2015) sets out the priority fields of cooperation among the BRI countries. These include policy coordination, connectivity of facilities, trade freedom, regulatory cooperation, investment facilitation, financial integration, cultural and social exchanges, capability building, scientific cooperation and public health cooperation.9 At the core are facilities for infrastructure connectivity. In ‘Vision and Actions’ (2015), the Chinese government blueprinted an infrastructure network connecting subregions in Asia, and Asia, Europe and Africa.10 The localities of six transnational economic corridors referred to in ‘Vision and Actions’ (2015)11 indicate that China geographically prioritized BRI partners in Asia and Europe. The BRI was proposed at a critical economic juncture in the early 2010s. The world economy had been heavily hit by the international financial crisis of 2008 and was not recovering well. Historically, a stagnant world economy has induced trade protectionism in many countries.12 Therefore, China had to find a new way to engage the world economy to sustain its economic growth because the Chinese economy is mainly driven by foreign trade. Furthermore, Chinese infrastructure-related companies had to explore international markets to address their excessive production capacities.13 Like many other countries, China adopted incentive measures to survive the world economic stagnation. A major one of these measures was a huge investment in infrastructure. Infrastructure investment sustained the Chinese economy but it also brought about excessive production capacity. It should be stressed that in this crucial moment China was astute enough to recognize that by initiating the BRI it would not only effectively address the excessive production capacity but also help overcome a major and long-standing difficulty that 8 9 10 11

12

13

NDRC et al., supra note 4, at part I. Ibid., at part IV. Ibid. The six economic corridors are (i) the New Eurasia Land Bridge Economic Corridor; (ii) the China–Mongolia– Russia Economic Corridor; (iii) the China–Central Asia–West Asia Economic Corridor; (iv) the Indochina Peninsula Economic Corridor; (v) the Bangladesh–China–India–Myanmar Economic Corridor; and (vi) the China–Pakistan Economic Corridor. National Development and Reform Commission et al., supra note 4, at part III. Office of the Leading Group for the Belt and Road Initiative, Building the Belt and Road: Concept, Practice and China’s Contribution (Beijing: Foreign Languages Press, 2017), part I, www.tralac.org/images/docs/11613/building-the -belt-and-road-concept-practice-and-chinas-contribution-may-2017.pdf. Ibid. See also Preamble of the Articles of Agreement of the Asian Infrastructure Investment Bank.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

33

many developing countries have long encountered in the process of developing their economies, that is, being plagued with poor infrastructure. Good infrastructure is essential for a good business environment. Therefore, they were hungry for inflows of foreign capital, which decreased with the world economic recession, to build or upgrade roads, railways, ports, electric plants and so on.14 In a word, China arguably made the right decision at the right time. The Chinese government stated that the BRI should comply with the purposes and principles enshrined in the Charter of the United Nations (UN) and the ‘Five Principles of Peaceful Coexistence’, which are the very foundation of Chinese diplomacy.15 Besides these general principles, ‘Vision and Actions’ (2015) further provides four specific principles. First, the BRI has more geographical coverage than the ancient Silk Road. It is open to all countries and international organizations. Nevertheless, as was noted already, the primary BRI partners initially included countries in Asia, Europe and Africa. Second, the BRI is conducted in a manner respecting the development patterns of the BRI partners and enhancing transcivilizational dialogue among them. Third, the BRI projects are market-based. While governments may provide various types of support, market entities are the key players undertaking BRI projects. In other words, the BRI by its nature is not a foreign aid programme. Fourth, the BRI partners should have a win–win approach. Relevant concerns of stakeholders in BRI projects should be given fair consideration.16 China later proposed three concise principles for the BRI: (1) extensive consultation, requiring equal participation and full consultation of BRI partners in implementing the BRI; (2) joint contribution, meaning that all BRI partners should contribute to BRI projects, sharing responsibilities and risks; and (3) shared benefits, meaning that the interests and concerns of all BRI countries and partners should be fairly considered.17 By 31 December 2022 China had signed more than 200 BRI-related documents with more than 150 countries and 32 international organizations. There are BRI countries beyond Asia, Africa and Europe, in Latin America. The number of BRI countries has doubled in the past ten years.18 In order to enhance the BRI, China and the other BRI countries have established many working mechanisms and they regularly hold meetings at various levels.19 Since no country can be forced to join the BRI, the dramatic expansion of the BRI indicates that the BRI has garnered much support in the international community. The BRI has also occasionally been mentioned in UN instruments, including in Security Council decisions.20 Certainly, economic cooperation, especially on infrastructure, is a key component of the BRI.21 However, as is indicated in ‘Vision and Actions’ (2015), the BRI also involves many noneconomic issues. Over time, China and the other BRI countries have expanded their cooperation in non-economic fields, including intellectual property protection, taxation and the rule of law.22 For instance, in June 2017 the Chinese government issued ‘The Vision for Maritime 14

15 16 17

18

19 20

21 22

Office of the Leading Group for the BRI, supra note 12, part I. See also Preamble of the Articles of Agreement of the Asian Infrastructure Investment Bank. NDRC et al., supra note 4, at part II. Ibid. Office of the Leading Group for Promoting the Belt and Road Initiative (BRI), The Belt and Road Initiative: Progress, Contributions and Prospects (April 2019), Preface and part II, www.yidaiyilu.gov.cn/wcm.files/upload/CMSydylgw/ 201904/201904220254037.pdf. List of Countries That Have Signed BRI Cooperation Instruments with China, 2023, www.yidaiyilu.gov.cn/xwzx/roll/ 77298.htm. Office of the Leading Group for Promoting the BRI, supra note 17, at part II. UN Security Council Resolution 2274, UN Doc. S/RES/2274 (2016), 15 March 2016; UN Security Council Resolution 2344, UN Doc. S/RES/2344 (2017), 17 March 2017. Office of the Leading Group for Promoting the BRI, supra note 17, at parts I.2–4, I.6. Ibid., at part I.1.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

34

Congyan Cai

Cooperation under the Belt and Road Initiative’ (‘2017 Vision’).23 The ‘2017 Vision’ focussed not on economic cooperation but instead on cooperation concerning marine environment protection, navigation safety, climate change, marine ecosystem health, biodiversity, law enforcement and so on.24 The Chinese government, together with Chinese financial institutions and investors, has provided tremendous financial support for the BRI. In November 2014, China contributed USD 40 billion to establish a Silk Road Fund. Three years later, China announced an additional contribution of RMB 100 billion to the Fund.25 It has been reported that by the end of 2018 the China Development Bank had financed about 600 BRI projects with USD 190 billion.26 Many of these projects have been completed and begun to operate.27 Cooperation between China and many BRI countries in trade, investment, finance, transport, industry, regulation and so on has flourished in the past decade.28 Both China and the other BRI countries benefit from this cooperation. On the one hand, the BRI provides a huge market for Chinese capital, goods and technologies. On the other hand, by joining the BRI, many BRI countries attract Chinese investment to build or upgrade infrastructure and further modernize their economies or, among other benefits, receive transit revenue. However, some doubts and criticisms have gradually emerged as the BRI moves on. They involve both legal issues (which will be addressed in Section 2.4) and non-legal issues. Among the latter, most attention has been attracted to the debt problem. Soon after the BRI was launched, some states and observers asserted that by leading the BRI, China caused a ‘debt trap’ or practised ‘debt diplomacy’. They claimed that many infrastructure projects financed by China were not financially sustainable for BRI countries. This in turn gave China the strength to exercise undue influence in, say, debt restructuring.29 A frequently mentioned case is that of the Hambantota port development project in Sri Lanka. In 2008 the Sri Lankan government began to develop Hambantota port with a budget of more than USD 1 billion, most of which was financed by China’s Export Import (EXIM) Bank. Several years later, however, the government found it difficult to pay back its growing foreign debt and so sought debt restructuring. As a result, the government signed a concession agreement with China Merchant Port Holdings (CMPort) in July 2017. According to the agreement, CMPort paid USD 1,120 million to the Sri Lankan government. In return, CMPort got 70 per cent shares in the two joint ventures previously established to operate the port and leased a total area of 15,000 acres of land to build an industrial park. The deal was opposed by some people in Sri Lanka, including Maithripala Sirisena, who later won the presidential election.30 It should be said, however, that accusations of ‘debt traps’ and ‘debt diplomacy’ are generally unfounded. On the one hand, there is no evidence indicating that most of the international debt 23

24 25 26

27 28 29

30

NDRC and the State Oceanic Administration (SOA), ‘The Vision for Maritime Cooperation under the Belt and Road Initiative’, www.yidaiyilu.gov.cn/wcm.files/upload/CMSydylgw/201706/201706200153032.pdf. Ibid., at part IV. Office of the Leading Group for Promoting the BRI, supra note 17, at part II. ‘China Development Bank Has Completed 260.7 Billion Yuan of Special Loans for the “Belt and Road”’, Xinhua News (24 April 2019), www.gov.cn/xinwen/2019-04/24/content_5385612.htm [国开行已完成2607亿元“一带一路”专 项贷款]. ‘Project Cases’, www.yidaiyilu.gov.cn/info/iList.jsp?cat_id=10045. Office of the Leading Group for Promoting the BRI, supra note 17, parts I and II. See, e.g., Dylan Gerstel, ‘It’s a (Debt) Trap! Managing China–IMF Cooperation Across the Belt and Road’ (2017) New Perspective Foreign Policy, at 12. Maria Adele Carrai, ‘China’s Malleable Sovereignty Along the Belt and Road Initiative: The Case of the 99-Year Chinese Lease of Hambantota Port’ (2019) 51 New York University Journal of International Law and Politics, 1071–174.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

35

of the BRI countries comes from China. On the other hand, it is normal for projects to encounter financial difficulties for various reasons. These are followed by project restructuring by stakeholders. As far as the Hambantota port project is concerned, according to the Sri Lankan Finance Ministry’s 2017 Annual Report, outstanding Chinese loans accounted for only 10.6 per cent of Sri Lanka’s total foreign debt.31 Moreover, Sri Lanka has not argued that deals with Chinese companies were unfair.32 In fact, Chinese investment has revitalized Hambantota port. As more and more vessels dock at the port, Hambantota generates increasing revenue and creates jobs for local people.33 In fact, it seems that most of the criticisms of the Hambantota port project come from India and the United States rather than Sri Lanka. This is understandable. Owing to the strategic importance of Sri Lanka, India and the United States are concerned that China will operate Hambantota port to exert its military influence in the Indian Ocean.34 A significant issue worth mentioning is the relationship between the BRI and the CSFM. As ‘Vision and Actions’ (2015) indicated, it seems that the Chinese government initially considered the BRI to be merely a new mechanism to enhance cooperation between China and the other BRI countries. However, it is clear since the proposal of the CSFM concept that the Chinese government has reframed the purposes and mandate of the BRI. In a speech delivered at the UN headquarters in Geneva in January 2017, President Xi Jinping for the first time associated the BRI with the CSFM, implying that the BRI was a step on the path towards the CSFM.35 In ‘Building the Belt and Road: Concept, Practice and China’s Contribution’ issued in May 2017, the Chinese government highlights the relevance of the BRI to building the CSFM.36 It stresses that the BRI is a proposal by China to enhance international peace, cooperation and mutual development.37 ‘Belt and Road Initiative Progress, Contributions and Prospects’ issued in April 2019 again emphasizes the significance of the BRI in the context of the CSFM.38 It states that the BRI ‘reflects the international community’s demand for a global governance system that is fair, equal, open and inclusive’.39 In particular, the BRI represents the Chinese approach to ‘reforming the current global governance system’ and therefore is an important ‘public good’ that China provides for the world.40 2.3 THE WESTERN PERSPECTIVE AND RESPONSE TO THE BRI

2.3.1 The Western Perspective on the BRI In the West, the BRI is generally portrayed as a grand geo-economic and geopolitical strategy by China, the state power of which has grown significantly. Many Western observers assume that, through the BRI, China will acquire and exert more and more influence in the BRI countries and that may further increase China’s leverage over major Western powers in many 31 32 33

34 35

36 37 38 39 40

Ibid., at 1072. Ibid., at 1084–6. ‘Sri Lanka’s Hamhantota Port: A Case of China’s “Debt-Trap Diplomacy?”’, Case ID: 2020026D, 6–7, ppol.ust.hk /public_uploads/2020026D_Sri_Lanka_s_Hambantot.pdf. Ibid., at 10–11. Xi Jinping, ‘Working Together to Forge a New Partnership of Win–Win Cooperation and Create a Community of Shared Future for Mankind’ (Geneva, 18 January 2017), www.mfa.gov.cn/ce/ceiq//eng/zygx/t1432869.htm [习近平, 《携手构建合作共赢新伙伴 同心打造人类共同体》,2017年1月18日]. Office of the Leading Group for Promoting the BRI, supra note 12, part V. Ibid., part I. Office of the Leading Group for Promoting the BRI, supra note 17, parts II and IV. Ibid. Ibid.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

36

Congyan Cai

international affairs. In other words, they are afraid that over time the BRI will enable China to challenge the Western hegemony in the international order. This perception tends to be negative as several Western powers, especially the United States, have explicitly identified China as a strategic competitor.41 For instance, John Bolton, the national security adviser in the Trump administration, argued that the BRI had the ultimate aim of advancing Chinese ‘global dominance’.42 Arguably, this negative perception of the BRI is poorly founded. Since its inception, the BRI has been open to all countries, including Western states. As a response to this perception, in ‘Belt and Road Initiative Progress, Contributions and Prospects’ (2019), the Chinese government explained the purpose and nature of the BRI at length. It stated: The Belt and Road Initiative originated in China, but it belongs to the world. . . . It focuses on Asia, Europe and Africa but is open to all partners. . . . It is an initiative for peaceful development and economic cooperation rather than a geopolitical or military alliance. It is a process of open inclusive common development, not an exclusionary bloc or a ‘China club.’ It neither differentiates between countries by ideology nor plays a zero-sum game. Countries are welcome to join the initiative if they so will.43

This noted, China may, in fact, acquire greater geopolitical and geo-economic influence through the BRI. The BRI is a sort of ‘hub-and-spoke network with China as the hub’.44 As was noted earlier, China and the other BRI countries do not confine themselves to economic cooperation but are gradually extending their cooperation to many non-economic fields. Therefore, it is expected that the BRI may amplify China’s influence in a greater range of international affairs. In particular, since China considers the BRI a way to reform the global governance system while building a CSFM, it is expected that China will be more willing to expound its policy concerning the international order through BRI mechanisms. This inevitably undermines Western leadership in the international order. 2.3.2 The Western Response to the BRI Western states have three strategies to respond to the BRI. The first strategy is to reject participation in the BRI. As noted in Section 2.3.1, China always states that the BRI is open to all countries and international institutions. However, nearly all the major Western powers have declined to join the BRI. Italy is an exception, however. On 23 March 2019, Italy, a member of 41

42

43 44

In 2017, the United States, for the first time, defined China as a ‘revisionist power’. The United States considers that China, by wielding its growing power, ‘challenge[s] American power, influence, and interests, attempting to erode American security and prosperity’, to ‘shape a world antithetical to U.S. values and interests’ and to ‘displace the United States in the Indo-Pacific region, . . ., and reorder the region in its favour’. See White House, National Security Report of the United States (December 2017), 25, 2. The US Secretary of State Blinken says that China is ‘the only country with the economic, diplomatic, military, and technological power to seriously challenge the stable and open international system – all the rules, values, and relationships that make the world work the way we want it to’. See Antony J. Blinken, ‘A Foreign Policy for the American People’ (3 March 2021), www.state.gov/a-foreign-policy-for -the-american-people/. In May 2020, the United States announced its strategic approach of engaging China. Thus, the United States has launched competition with China ‘through a whole-government approach and guided by a return to principled realism’. See US White House, ‘United States Strategic Approach to the People’s Republic of China’ (26 May 2020), 16. John R. Bolton, ‘Remarks by National Security Advisor Ambassador John R. Bolton on the Trump Administration’s New Africa Strategy’ (13 December 2018), https://bit.ly/45C9E0W. Office of the Leading Group for Promoting the BRI, supra note 17, Preamble. Heng Wang, ‘China’s Approach to the Belt and Road Initiative: Scope, Character and Sustainability’ (2019) 22 Journal of International Economic Law, 35.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

37

the G7, signed a BRI memorandum of understanding (MOU) with China.45 The two countries expressed their wishes to promote bilateral cooperation in six different areas: (1) policy dialogue; (2) transport, logistics and infrastructure; (3) unimpeded trade and investment; (4) financial cooperation; (5) people-to-people connectivity; and (6) green development. Italy’s embrace of the BRI caused unease within the European Union (EU). There emerged a concern that Chinese investment would have an adverse effect on the national security of EU members,46 even though several other EU members have also signed BRI MOUs with China and Chinese companies have invested in several major infrastructure projects.47 It is noticeable that as relations between China and the West have tended to worsen, the BRI countries in the West appear to have reduced their interest in the BRI. For instance, owing to deterioration in its relationship with China, in May 2021 Lithuania dropped out of the BRI MOU it had signed with China in 2017.48 The second Western strategy is to discredit the BRI. Some Western states and individuals doubt China’s real intention in initiating the BRI.49 As was noted in Section 2.2, they accuse China of practising ‘debt diplomacy’ through the BRI. Furthermore, they claim that many BRI projects do not respect human rights, the rule of law and good governance, and therefore they are harmful to both BRI countries and international society.50 In addition, they also warn that, although BRI countries may benefit from Chinese investment, they will be hurt by the BRI and undergo undue influence from China in the long run. In short, they claim that China is pursuing a new brand of ‘colonialism with Chinese characteristics’.51 Clearly, however, these doubts and criticisms appear to have had little effect in preventing many countries from embracing the BRI. As a result, the third strategy came into being. Western powers seem to have realized that in order to effectively engage with the BRI, a better strategy is to provide an alternative. Several proposals have been put forward. In 2018, the European Commission and the EU’s High Representative for Foreign Affairs and Security Policy co-issued a ‘Joint Communication on Improving Euro-Asian Connectivity’.52 Being aware of the significance of Asia in the global economy and the close economic relationship between the EU and Asia, the EU recognized that it should ensure ‘efficient and sustainable connectivity’ with Asia.53 ‘Connectivity’ as it was defined at the 13th Asia–Europe Meeting (ASEM) of Foreign Ministers, which more than fifty 45

46

47

48

49

50

51

52

53

Memorandum of Understanding Between the Government of the Italian Republic and the Government of the People’s Republic of China on Cooperation within the Framework of the Silk Road Economic Belt and the 21st Century Maritime Silk Road Initiative, 23 March 2019, www.governo.it/sites/governo.it/files/Memorandum_ItaliaCina_EN.pdf. Femke van der Eijk and Angela Pandita Gunavardana, ‘The Road That Divided the EU: Italy Joins China’s Belt and Road Initiative’, European Law Blog (25 June 2019), europeanlawblog.eu/2019/06/25/the-road-that-divided-the-euitaly-joins-chinas-belt-and-road-initiative/. European Union Chamber of Commerce in China, The Road Less Travelled: European Involvement in China’s Belt and Road Initiative (2021), 43–4. Stuart Lau, ‘Lithuania Pulls Out of China’s “17+1” Bloc in Eastern Europe’, Politico (21 May 2021), www.politico.eu /article/lithuania-pulls-out-china-17-1-bloc-eastern-central-europe-foreign-minister-gabrielius-landsbergis/. For instance, when China built a military support base in Djibouti, the United States expressed strong resentment, even though the United States itself previously built a military base there. See generally Diane A. Desierto, ‘The Complexities of Democracy, Development, and Human Rights in China’s Belt and Road Initiative’ (2020) 35 Connecticut Journal of International Law, 299. See, e.g., Anthony Kleven, ‘Belt and Road: Colonialism with Chinese Characteristics’, Interpreter (6 May 2019), www .lowyinstitute.org/the-interpreter/belt-road-colonialism-chinese-characteristic. European Commission and the High Representative of the EU for Foreign Affairs and Security Policy, Joint Communication on Improving Euro-Asian Connectivity, JOIN (2018) 31, 19 September 2018; Council of the European Union, Council Conclusion – A Globally Connected Europe, 10629/21, 12 July 2021. Ibid., at 1.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

38

Congyan Cai

Asian and European countries attended, mainly concerns transport.54 In addition to transport connectivity, the EU also seeks to enhance energy, digital and people-to-people networks with Asia.55 For this purpose, the EU plans to improve its partnership with Asia at the bilateral, regional and international levels.56 In particular, the EU encourages private investors and international financial institutions, including the European Development Bank (EDB), to finance infrastructure in Asia.57 According to the proposed EU–Asian Connectivity, the EU pursues ‘sustainable, comprehensive and rules-based connectivity’.58 However, while noting that the EU’s existing and future financial instruments could offer some prospects of supporting private investment in connectivity-related projects, the Joint Communication does not include a proposal to establish an investment plan.59 In fact, the Euro–Asian Connectivity initiative has not yet made meaningful progress. Three years later, therefore, the EU Council has urged the EU Commission and the High Representative to implement the connectivity project.60 A second alternative proposal was advocated by the United States, Japan and Australia. In 2019, the three countries announced the Blue Dot Network (BDN) infrastructure. The BDN is ‘a mechanism to certify infrastructure projects that meet robust international quality standards’.61 These standards include, among others, the promotion of ‘market-driven and private sector led investment, supported by judicious use of public funds’, ‘protection against corruption, while encouraging transparent procurement and consultation processes’ and compliance with ‘international best practices of environmental and social safeguards, including respect for labour and human rights’.62 However, these standards ‘include but are not limited to’ the G20 Principles for Quality Infrastructure Investment, the G7 Charlevoix Commitment on Innovative Financing for Development, the International Financial Company (IFC) Performance Standards and the Equator Principles.63 Three sponsoring states have stated that they will work with the Organisation for Economic Co-operation and Development (OECD) to develop a methodology and metrics for certification of infrastructure projects based on these principles.64 Infrastructure projects that satisfy the required standards will be issued BDN certification. According to the sponsoring countries, BDN certification will (1) enhance investor confidence in the quality of projects and so help attract more investment; (2) ensure transparency and openness and reduce financing risks; and (3) reassure local communities that infrastructure projects will not be conducted in a manner inconsistent with environmental and social safeguards and climate aims.65 In 2021, the Western powers proposed a more ambitious project. At a 2021 Summit, the G7 announced Build Back Better (B3W).66 The G7 countries stated that, owing to significant 54

55

56 57 58 59 60 61 62 63 64 65 66

Ibid., at 1, footnote 2; Strengthening Partnership for Peace and Sustainable Development (Chair’s Statement), 13th ASEM Foreign Ministers’ Meeting, 20–1 November 2017, Nay Pyi Taw, Myanmar, asean.org/wp-content/uploads/ 2017/11/13th-ASEM-FMM-Chairs-Statement.pdf. European Commission and the High Representative of the EU for Foreign Affairs and Security Policy, supra note 52, at 1–6. Ibid., at 7–9. Ibid., at 10–11. Ibid., at 2. Ibid., at 10. General Secretariat of the Council, supra note 52. BDN, www.state.gov/blue-dot-network/. See ‘Vision Statement’, www.state.gov/blue-dot-network-vision-statement/. Ibid., at footnote 1. BDN, supra note 61. Ibid. Carbis Bay G7 Summit Communique´: Our Shared Agenda for Global Action to Build Back Better, Cornwall, 11– 13 June 2021.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

39

infrastructure needs in low- and middle-income countries, they would strengthen their partnership to meet the infrastructure needs of developing states.67 Several principles were proposed to guide the financing of infrastructure. These include: (1) a values-driven vision, requiring infrastructure projects to be conducted in a transparent and financially, environmentally and socially sustainable manner; (2) intensive collaboration, requiring the G7 countries to collaborate together and with other relevant bodies to increase the scale and scope of the collective offer to partner developing countries; (3) market-led financing, through which the G7 will seek to stimulate market-based private capital and local capital; (4) strong standards, meaning that the G7 insists on high environmental, social, labour, governance and transparency standards as provided for in, for instance, the G20 Principles for Quality Infrastructure Investment; (5) enhanced multilateral financing, through which the G7 will enhance international development institutions to increase and mobilize financing of infrastructure projects in developing states; and (6) strategic partnership, through which the G7 will strengthen the strategic partnership among its members to implement B3W.68 According to the G7, it is expected that a total global amount of USD 100 billion will be collected to meet financial needs in Africa.69 It is clear that the above-mentioned initiatives were proposed to compete with the BRI. For instance, during the 2021 G7 Summit when B3W was announced, the G7 leaders discussed concrete actions to compete with China to meet the tremendous infrastructure need in developing countries.70 Many observers share a similar view. Kaush Arha, who once worked for BDN, observes that the United States and its allies had strong expectations of an alternative to BRI. He believes that the BDN will be ‘the secret’ to implement B3W. 71 Shankari Sundararaman, a professor from India, which declined to join the BRI, also contends that the BDN has the potential to become an alternative to the BRI.72 However, as the above-mentioned initiatives indicate, the Western powers purport to compete with China by relying on normative power instead of financial power. In other words, by setting various high standards for infrastructure investing and financing, they are seeking to convince developing states that the West is a better choice. However, whether these initiatives can compete with the BRI is doubtful. The main reason is that these initiatives are less likely to provide developing states with a tremendous amount of capital, the very thing that these countries need to build or upgrade their infrastructure. For the time being, Western countries are insisting on a so-called market-led approach to infrastructure financing. They merely support their own development institutions and international financial institutions, and mobilize the private sector to increase investment in or financing of infrastructure projects in developing states. This ‘market-led’ approach actually discourages Western companies, which are not inclined to base their investment decision-making on long-term considerations, from investing in infrastructure in developing states in which private investors are exposed to great economic, political and legal risks. Take Hambantota port as an example. Sri Lanka initially sought investment from Western companies, not Chinese companies. 67 68 69 70

71

72

Ibid., at 23. Ibid., at 23–4. Ibid., at 2. Fact Sheet: President Biden and G7 Leaders Launch Build Back Better World (B3W) Partnership, 12 June 2021, https://bit.ly/3ORKtAZ. Kaush Arha, ‘A Hidden Key to the G7’s Infrastructure Ambitions: Blue Dot Network’, Atlantic Council (12 June 2021), www.atlanticcouncil.org/blogs/new-atlanticist/a-hidden-key-to-the-g7s-infrastructure-ambitions-blue-dot-network/. Shankari Sundararaman, ‘Is Blue Dot Network an Alternative to China’s BRI?’, New Indian Express (17 June 2021), www.newindianexpress.com/opinions/columns/2021/jun/17/is-blue-dot-network-an-alternative-to-chinas-bri-2317283 .html.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

40

Congyan Cai

However, it failed since Western companies found the proposed project commercially unfeasible. In contrast, Chinese financial institutions and investors, especially state-owned ones, are more willing to view investments from a long-term perspective. This explains why China’s EXIM Bank financed the Hambantota port project and why CMPort decided to invest more than USD 1 billion, even though it would not get a return in the short term. Furthermore, based on decades of infrastructure construction experience, China has acquired advanced technologies and sophisticated expertise in infrastructure construction and operation, which many Western companies cannot compete with. While the Western initiatives are not expected to quickly bring a huge amount of capital to the infrastructure sectors in developing states, they are helpful. They may induce China to conduct BRI projects in a manner more respectful of the rule of law, good governance and international best practice. For instance, in April 2019, drawing on the relevant framework developed by the International Monetary Fund (IMF) and the World Bank, the Chinese government issued the ‘Debt Sustainability Framework for Participating Countries in the Belt and Road Initiative’.73 This helps to ensure sustainable BRI financing, while reducing financial risk for both BRI countries and Chinese investors. Again, in February 2022 the Chinese government issued a document outlining a ‘green’ BRI.74 It is also encouraging developing states to improve their regulatory framework and practices in relation to infrastructure. In fact, China never expresses any criticism of the Western rivals. It instead argues that the Western initiatives actually demonstrate the value and promising future of the BRI. It further encourages Western countries to build more infrastructure in developing states while urging them not to interfere in their internal affairs.75 Caroline Crystal has rightly pointed out that B3W cannot compete with the BRI, but that is not important because it is still very helpful in making infrastructure projects more financially sustainable, environmentally friendly and so on.76 2.4 THE BRI LEGAL FRAMEWORK

The BRI is characterized by a unique legal framework. For some observers, this unique framework gives it the strength of flexibility and inclusiveness, thereby attracting more BRI partners. For others, however, this unique framework allows a more powerful China to exert undue influence over many less powerful BRI countries, making BRI projects less transparent and less accountable. This section first introduces the BRI’s legal framework and identifies its main characteristics. Next, it investigates the dynamics underlying it. Then, it examines its merits and demerits. Finally, it predicts potential developments.

73

74

75

76

Ministry of Finance of China, Debt Sustainability Framework for Participating Countries of the Belt and Road Initiative (April 2019), www.mof.gov.cn/zhengwuxinxi/caizhengxinwen/201904/P020190425513990982189.pdf. NDRC, Ministry of Foreign Affairs, Ministry of Ecology and Environment, and Ministry of Commerce of the People’s Republic of China, ‘Opinion of Co-building the Green BRI’ (28 March 2022), www.ndrc.gov.cn/xwdt/tzgg/ 202203/t20220328_1320630_ext.htm [国家发展改革委外交部生态环境部商务部,《关于推进共建“一带一路”绿 色发展的意见》, 发改开放〔2022〕408号, 2022年3月28日]. Ministry of Foreign Affairs, ‘Vice Foreign Minister Le Yucheng: U.S. B3W Plan Further Proves Belt and Road Initiative Is Right and Promising’, www.fmprc.gov.cn/mfa_eng/wjbxw/202107/t20210711_9134534.html. Caroline Crystal, ‘The G7’s B3W Infrastructure Plan Can’t Compete with China. That’s Not the Point’, Council on Foreign Relations (10 August 2021), www.cfr.org/blog/g7s-b3w-infrastructure-plan-cant-compete-china-thats-notpoint.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

41

2.4.1 What the BRI Legal Framework Is To date there does not exist any overarching law governing the BRI at either the international or the domestic level. China has not signed BRI ‘treaties’ with other BRI countries. Nor has China or other BRI countries adopted BRI statutes on their own. Therefore, Wolff submits that there is no ‘BRI law’.77 However, this does not mean that there is no legal framework in place for the BRI. The BRI’s legal framework currently consists of two parts: ‘BRI-specific’ and ‘BRI-related’. Each of these further includes two sub-parts: at the international and the domestic levels. Thus, the BRI legal framework consists of: (i) a BRI-specific international framework; (ii) a BRI-specific domestic framework; (iii) a BRI-related international framework; and (iv) a BRI-related domestic framework. First, the BRI-specific international framework consists of Primary Agreements and Secondary Agreements.78 Primary Agreements are agreements signed between the Chinese government and other BRI countries and relevant international organizations. As was noted in Section 2.2, China has signed more than 200 agreements with about 150 countries and 30 international organizations. Most of these agreements are MOUs. Some of these MOUs address BRI in a general way, while others focus on specific issues.79 Significantly, while MOUs may belong to the category of ‘treaties’ as in the Vienna Convention on the Law of Treaties (VCLT),80 none create legal rights or obligations between BRI countries. In fact, many BRI MOUs explicitly state: ‘[This does] not constitute legally binding obligations for the two Participants. It is only an expression of their common will to jointly advance the Belt and Road Initiative.’81 Secondary Agreements, on the other hand, are ones implementing BRI projects. These agreements are often concluded between Chinese financial institutions or investors and the governments or business partners of other BRI countries. They address a range of issues such as financing, concessions, investments and so on. By their nature they are international contracts. In contrast with MOUs, which are ‘soft’, many Secondary Agreements are ‘hard’, prescribing legal rights and obligations between the parties.82 Second, the BRI-specific domestic framework consists of regimes and mechanisms aimed at enhancing the BRI. As was already noted, neither China nor the other BRI countries have enacted any statutory law concerning the BRI.83 However, the Chinese authorities, both central and local, have adopted a large number of BRI instruments. Nearly all of these instruments are ‘opinions’, ‘guidances’ or ‘notices’, which, given their content, are not ‘laws’ as prescribed in China’s Legislation Law.84 Nevertheless, some of these instruments may be ‘administrative normative instruments’, in accordance with which government bodies can take action unless they conflict with any ‘law’, as is provided for by the Legislation Law.85 Third, the BRI-related international framework first includes treaties that were already in place between China and other BRI countries, for instance bilateral investment treaties (BITs) 77

78

79 80 81 82 83 84 85

Lutz-Christian Wolff, ‘Legal Responses to China’s “Belt and Road” Initiative: Necessary, Possible or Pointless Exercise?’ (2020) 29 Transnational Law and Contemporary Problems, 265. Heng Wang, ‘The Belt and Road Initiative Agreements: Characteristics, Rationale, and Challenges’ (2021) 20 World Trade Review, 283–8. Ibid., at 284. Art. 1(1)(a) of VCLT. See, e.g., part V of the China–Latvia BRI MOU (2016). Heng Wang, ‘The Belt and Road Initiative Agreements’, supra note 78, 286–7. Wolff, ‘Legal Responses’, supra note 77, at 266. Chapters 2–4 of China’s Legislation Law (2015) [《中华人民共和国立法法 (2015年修正)》, 第二三四章]. State Council Office, Notice Concerning the Improvement of Making and Supervising of Administrative Normative Instruments, 16 May 2018, Guobangfa [2018] 37, www.gov.cn/zhengce/content/2018–05/31/content_5295071.htm [国务 院办公厅,《关于加强行政规范性文件制定和监督管理工作的通知》, 国办发〔2018〕37号, 2018年5月16日].

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

42

Congyan Cai

and World Trade Organization (WTO) agreements. Furthermore, some non-binding international instruments also apply in the BRI context, for instance the Guidelines for Infrastructure Development through Build-Operate-Transfer (BOT) Projects adopted by the UN Industrial Development Organization (UNIDO) in 1996. Fourth, the BRI-related domestic framework consists of arbitration law and arbitration institutions as well as mediation centres and so on in China and other BRI institutions.86 These regimes and institutions were of course not created with the purpose of implementing the BRI, but they can resolve many matters connected with it. Further, BRI countries may modernize or upgrade these regimes and institutions to enhance the BRI. Against this background, there are three features of the current BRI legal framework. First, it is characterized by great flexibility. Nearly all commentators agree that the BRI legal framework is conspicuously flexible and soft.87 This observation is sound. As was noted earlier, the BRI MOUs do not impose legal obligations on China and other BRI countries. And almost all Chinese BRI instruments are not ‘laws’ as provided for in China’s Legislation Law. However, many Secondary Agreements, for instance financing agreements, are international contracts with binding legal force on the parties. Second, the framework employs regimes and mechanisms already in existence rather than newly created ones.88 ‘Vision and Actions’ (2015) states that the BRI will ‘take full advantage of the existing bilateral and multilateral cooperation mechanisms’,89 including the Shanghai Cooperation Organisation (SCO), ASEAN Plus China (10+1) and the China– Arab States Cooperation Forum (CASCF). Many BRI MOUs include similar language. For example, the China–Latvia MOU includes a clause stating that ‘[t]he two Participants will make full use of existing bilateral treaties and intergovernmental mechanisms to jointly promote the Belt and Road Initiative, explore new opportunities for bilateral cooperation, and coordinate on major issues concerning bilateral cooperation’.90 Third, the framework is not static but dynamic. Over the past ten years, China and the other BRI countries have continued to make efforts to enhance the BRI in the light of changed circumstances. For instance, as mentioned, owing to emerging concerns about the debt sustainability of some BRI projects, in 2019 the Chinese government issued a ‘Debt Sustainability Framework for Participating Countries in the Belt and Road Initiative’. This new instrument helps reduce financial risks for both China and other BRI countries. Another example is efforts that the Supreme People’s Court (SPC) has made. In June 2015, shortly after ‘Vision and Actions’ (2015) was issued, the SPC adopted its ‘Opinions on the Provision of Judicial Service and Guarantees to the BRI’ (‘BRI Judicial Opinions’ (2015)), requiring the Chinese judiciary to enhance BRI implementation.91 Four years later, the SPC adopted another judicial instrument upgrading a range of supportive measures for the BRI (‘BRI Judicial Opinion’ (2019)).92

86 87 88 89 90 91

92

On international dispute settlement, see further Chapter 24 in this volume. See, e.g., Heng Wang, ‘China’s Approach to the Belt and Road Initiative’, supra note 44, at 43–6. Ibid., at 38. NDRC et al., ‘Vision and Actions’, supra note 4, at part V. Part IV of the China–Latvia BRI MOU (2016). China’s SPC, Opinions on the Provision of Judicial Service and Guarantees to ‘One Belt One Road’ Initiative (16 June 2015), www.court.gov.cn/fabu-xiangqing-14900.html [最高人民法院, 《关于人民法院为“一带一路”建设 提供司法服务和保障的若干意见》, 法发〔2015〕9号, 2015年6月16日]. China’s SPC, Opinions on the Further Provision of Judicial Service and Guarantees to ‘One Belt One Road’ Initiative (9 December 2019), gongbao.court.gov.cn/Details/e42b145854505083e6ba738fb78b71.html [最高人民法 院, 《关于人民法院进一步为“一带一路”建设提供司法服务和保障的意见》, 法发〔2019〕29号, 2019年12月 9日].

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

43

2.4.2 Why the BRI Legal Framework Takes a Flexible Soft-Law-Oriented Approach Wang examines the BRI MOUs and explains the rationale for the flexible soft-law-oriented BRI legal framework.93 First, since at any particular time China cannot fully predict what will be in its best interest in the course of its bilateral relations, a flexible approach gives China greater discretion to make and enforce commitments. Second, greater flexibility may secure more countries to participate in the BRI. Third, a flexible approach enables China to learn from practice and allows trial-and-error in the BRI. This explanation is sound. According to Snyder, the development of soft-law norms has advantages over hard-law norms such as, among others, reducing contracting costs and sovereignty costs, and better adapting to situations of uncertainty or ones demanding compromises.94 However, two other factors can be added to explain the current approach. First, signing nonlegally binding MOUs instead of treaties, which must be time-consuming for both China and other BRI countries, allows cooperation on specific BRI projects, including infrastructure projects, to proceed as soon as possible and to bring about a substantial early harvest. This explains how, by the end of 2018, only four years after ‘Vision and Actions’ (2015), the China Development Bank had already financed about 600 BRI projects with a total sum of USD 190 billion. Second, from the beginning the BRI was considered by some countries to be China’s ambitious geopolitical and geo-economic project. Therefore, China might find it more sensible to negotiate non-legally binding agreements with other BRI countries, which may reduce the anxieties of those states that consider China a strategic competitor. 2.4.3 How the BRI Legal Framework Works It seems that the current BRI legal framework works quite well. It is sufficient to examine how the BRI MOUs, the overarching BRI instruments, function. While these MOUs are not legally binding, they are often project-specific, specifying which major areas and projects are to be prioritized by BRI countries.95 On the basis of these MOUs, China and other BRI countries start to explore cooperation on specific projects. This further helps Chinese financial institutions and investors negotiate project financing and investment contracts with their partners in particular BRI countries. Furthermore, BRI countries that have already signed MOUs with China are often involved in the relevant projects through receiving Chinese loans, providing project guarantees or authorizing project concessions and so on. In other words, the Chinese government, through non-legally-binding MOUs, creates business opportunities for Chinese companies. Furthermore, during their operation, BRI projects can continue to benefit from BRI MOUs. This is because after China and other BRI countries have signed MOUs, they hold regular meetings to review how the consensus and plans provided in the MOUs are implemented. That said, several doubts have arisen about the current BRI legal framework. The first concerns consistency and coherence. Some suggest that China makes different commitments with different BRI countries in the BRI MOUs, making the BRI fragmentary.96 Therefore, a model BRI agreement is needed.97 At first sight this observation seems reasonable and the 93 94

95 96 97

Heng Wang, ‘The Belt and Road Initiative Agreements’, supra note 78, 297–8. Francis Snyder, ‘Economic Globalization and the Law in the Twenty-First Century’ in Austin Sarat (ed.), The Blackwell Companion to Law and Society, 624–40 (Oxford: Blackwell, 2004), 630. Heng Wang, ‘The Belt and Road Initiative Agreements’, supra note 78, at 292. Heng Wang, ‘China’s Approach to the Belt and Road Initiative’, supra note 44, at 52–3. Guiguo Wang, ‘Towards a Rule-Based Belt and Road Initiative – Necessity and Directions’ (2019) 6 Journal of International and Comparative Law, 40.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

44

Congyan Cai

suggestion is appealing, but actually it is unsound. Although the UN International Law Commission (ILC) warned of the risks of fragmentation of international law,98 it neither considered this issue in a totally negative way nor argued that a state making different commitments to different partners necessarily leads to fragmentation of international law. Furthermore, the BRI MOUs are merely framework agreements and are not legally binding. Therefore, whether China makes uniform commitments in them or not has little to do with fragmentation of international law. Second, non-legally-binding BRI MOUs cannot provide Chinese investors with effective legal protection. Many commentators have observed that Chinese financed BRI infrastructure projects have been cancelled or suspended owing to BRI host government policy changes. One commentator therefore suggests that the BRI is still not rule-based.99 It should be pointed out that BRI MOUs do not purport to provide Chinese companies with effective protection but to establish a framework between China and other BRI countries. However, there are other legal regimes and mechanisms that Chinese companies may rely on, for instance contracts between Chinese companies and particular BRI countries, and treaties between China and particular BRI countries. This was demonstrated by the cancellation and restoration of a USD 20 billion East Coast Rail Link (ECRL) project started in Malaysia. In 2018, the newly elected Malaysian government stated that owing to the excessive budget burden the ECRL project contracted with China Communications Construction Co. Ltd (CCCC) would be cancelled. However, the Malaysian government recognized that, according to the project contract, it would have to pay a cancellation fee of USD 5.3 billion.100 If the Malaysian government declined to pay the fee, the CCCC had the right to bring an international claim against Malaysia in accordance with the China–Malaysia BIT signed in 1988. Given the huge cancellation fee and the potential great benefit arising from the ECRL, the Malaysian government decided to restart the project a year later.101 Therefore, it is not sufficient to evaluate how the BRI’s legal framework functions by only reviewing any single BRI instrument. The BRI’s legal framework works as a whole. Different parts enable other parts. For instance, while BRI MOUs do not create legal rights and obligations, they facilitate negotiations on project investment agreements between Chinese companies and particular BRI countries, and these agreements are further protected by BITs between China and particular BRI countries that were already in existence. Third, non-legally-binding MOUs allow China to exert undue influence over less-powerful BRI countries.102 This concern arguably derives from a general observation of a major limitation of soft international law. When negotiating non-legally-binding instruments, less-powerful states cannot resist undue influence by powerful counterparts by relying on the VCLT and domestic law on treaties. However, this general observation may not necessarily apply to BRI MOUs. These MOUs do not create de facto obligations, including future negotiations on and signing of project financing or investment contracts; rather, they merely express some ‘common will’ between the parties. Therefore, Chris Devonshire-Ellis, who argues that the MOUs benefit 98

99 100

101

102

International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682, 13 April 2006. Guiguo Wang, ‘Towards a Rule-Based Belt and Road Initiative’, supra note 97, at 40. Emily Chow, ‘Malaysia to Cancel $20 Billion China-Backed Rail Project: Minister’, Reuters (26 January 2019), www .reuters.com/article/us-china-malaysia-idUSKCN1PK03P. ‘Malaysian State Okays Stalled $12Bn China-Backed Rail Project’, Radio Free Asia (2 December 2021), www.rfa.org /english/news/china/project-12022021161802.html. Heng Wang, ‘The Belt and Road Initiative Agreements’, supra note 78, at 302; Chris Devonshire-Ellis, ‘Vassal States? Understanding China’s Belt and Road MoU’, Silk Road Briefing (13 February 2018), www.silkroadbriefing.com /news/2018/02/08/vassal-states-understanding-chinas-belt-road-mou/.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

45

China more, admits that ‘[i]t remains unsure how these MOUs will be used in future to influence diplomatic talks’.103 There is no evidence that China has used a MOU to force any BRI country to negotiate any BRI project with China. 2.5 BRI LEGAL IMPLICATIONS

In addition to geopolitical and geo-economic implications, it is expected that the BRI will also bring about multiple legal implications over time. There have been many debates over the implications of the BRI in the international legal order. In contrast, its implications in the Chinese legal order have received little attention. 2.5.1 Implications for the International Legal Order The first legal implication of the BRI seems to be related to how the BRI influences international human rights.104 Some Western commentators suggest that the BRI stimulates more proactive Chinese activities in international human rights bodies, in particular the Human Rights Council (HRC).105 The fundamental background is that there are tensions between China and Western states over human rights. In the past decades, Western states have regularly accused China of gravely violating human rights in China and so have imposed various sanctions. More significantly, many Western countries have recently become more concerned that as China becomes a leading power it will advocate its own sovereignty-based human rights agenda and so pose a greater challenge to international human rights law, which was mainly designed by Western powers.106 For instance, Western powers assume that countries with poor human rights records may, at least economically, turn to China rather than Western powers, which often take advantage of their political and economic leverage to require them to improve their human rights records.107 Current debates centre on the right to development. The right to development, under the Declaration on the Right to Development adopted by the UNGA in 1986,108 is ‘an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development’.109 It should be noted that while the Declaration affirms that different dimensions of the right to development are inalienable, it does not define their relative importance. As a result, some may prefer individuals’ fundamental freedom, in particular political development. In contrast, others may prioritize national development. Therefore, they consider that governments should have 103 104 105

106

107

108

109

Chris Devonshire-Ellis, ibid. On human rights, see further Chapter 13 in this volume. Mikkaela Salamatin, ‘China’s Belt and Road Initiative Is Reshaping Human Rights Norms’ (2020) 53 Vanderbilt Journal of Transnational Law, 1450–2. Bjo¨rn Ahl, ‘The Rise of China and International Human Rights Law’ (2015) 37 Human Rights Quarterly, at 659–61; Katrin Kinzelbach, ‘Will China’s Rise Lead to a New Norm Order? An Analysis of China’s Statement on Human Rights at the United Nations (2000–2010)’ (2012) 30 Netherlands Quarterly of Human Rights, at 329–32; Ben Baxter, ‘The Rise of China and the Fall of Human Rights’, Perspectivist (2012). See Juan Vega, ‘China’s Economic and Political Clout Grows in Latin America at the Expense of U.S. Interests’ (2005) 14 Minnesota Journal of Global Trade, 393; David Kampf, ‘China’s Rise and the Implications for International Human Rights’ (2007) 1 China Rights Forum, 46; Joseph M. Isanga, ‘The United States, the European Union, and China: The Triadic Contest for Africa and Its Implications for International Human Rights and Democracy’ (2010) 3 Northwestern Interdisciplinary Law Review, 191–8. UNGA, Resolution 41/128, The Declaration on the Right to Development, UN Doc. A/RES/41/128, 4 December 1986. Ibid., Art. 1(1).

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

46

Congyan Cai

appropriate national development policies aimed at improving the well-being of the entire population,110 and should cooperate with each other to eliminate obstacles to development,111 while individuals have duties to the community to fulfil the right to development.112 Regarding the right to development, China always argues that poverty is the biggest obstacle to the promotion of human rights, that development is a means of eliminating poverty and that without addressing the poverty issue it is difficult or even impossible to realize any other human right. Furthermore, China emphasizes that governments should play a proactive role in achieving the right to development by formulating national development strategies, and that states have an obligation to cooperate with each other to fulfil the right to development.113 However, over time China has improved its understanding of the right to development. For instance, China incorporates sustainable development in the right to development.114 China always stresses that the BRI represents a major contribution to the achievement of the right to development.115 According to Salamatin, the BRI stimulates China’s attempt to sinicize the concept of the right to development and it has made some progress, which is illustrated by the HRC promoting mutually beneficial cooperation in the field of human rights,116 of which China is a major sponsor. In his view, the Declaration endorses BRI programmes by affirming the importance of mutually beneficial cooperation among all relevant stakeholders, especially in the fields of technical assistance and capability building, in promoting and protecting all human rights in an increasingly interrelated world.117 Salamatin further suggests that, owing to such affirmative language in the Declaration, China has enhanced the legitimacy and importance of the BRI.118 From the perspective of international human rights, the Declaration strengthens the connection between the right to development and human rights, and puts China in a position to require the inclusion of technical assistance in future human rights resolutions.119 The United States considered the Declaration imbalanced and cast an opposition vote, while a dozen Western countries abstained.120 In 2020, China sponsored another resolution promoting mutually beneficial cooperation in the field of human rights in the HRC. All the Western HRC members opposed it, but they did not prevent its adoption.121 The assumption that the impact of the BRI on human rights, especially the right to development, is negative is not, at least not totally, sound. Under the Declaration on the Right to Development, any country may formulate its national development strategy, including joining the BRI, for the purpose of fulfilling the right to development. More importantly, many developing states following the approach to the right to development that the West favours still struggle to lift their populations out of poverty. Therefore, it can be argued that the BRI provides an opportunity to rethink how to achieve the right to development. 110 111 112 113

114 115

116

117 118 119 120 121

Ibid., Art. 2(3). Ibid., Art. 3(3). See also ibid., Art. 4(1). Ibid., Art. 2(2). State Council Information Office of China, The Right to Development: China’s Philosophy, Practice and Contribution (December 2016), part I, www.scio.gov.cn/zfbps/ndhf/34120/Document/1534705/1534705.htm. Ibid. Ibid., part VII. See also Erping Li, ‘The Contribution of the Belt and Road Initiative to the World’s Right to Development’ (2016) 15 Journal of Human Rights, 454. UN Human Rights Council, Resolution 37/23, Promoting Mutually Beneficial Cooperation in the Field of Human Rights, UN Doc. A/HRC/37/23, 23 March 2018, www.right-docs.org/doc/a-hrc-res-37–23/. Salamatin, ‘China’s Belt and Road Initiative’, supra note 105, at 1452–3. Ibid., at 1454. Ibid., at 1453. UN Human Rights Council, Resolution 37/23, supra note 116. UN Human Rights Council, Resolution 43/21, UN Doc. A/HRC/RES/43/21, 2 July 2020.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

2 The Belt and Road Initiative

47

Besides international human rights law, the BRI can also have impacts on many other fields of international law. It is expected that the BRI will modernize, enlarge or vitalize existing international regimes or give rise to new international regimes. As was noted earlier, China stresses that the BRI takes full advantage of existing international regimes and mechanisms. In a document issued in 2015, China stated that in the long term it would pursue a free trade agreement network alongside the regions covered by the BRI.122 Moreover, China has sponsored the Asian Infrastructure Investment Bank (AIIB).123 The AIIB is complementary, if not an alternative, to current international development institutions124 and has the potential to reshape the international monetary system.125 In addition, China continues to expand its international cooperation with other BRI countries on dispute settlement.126 2.5.2 Implications for the Chinese Legal Order The BRI has been a major catalyst of many legal reforms in China in recent years. These reforms are not only significant in enhancing the BRI; equally importantly, they also represent China’s efforts to continually modernize its legal system. It suffices to mention China’s International Commercial Court (CICC) affiliated to the SPC. On 27 June 2018 the SPC decided to establish the CICC.127 According to the SPC, the CICC was not established to merely enhance the BRI; it has a greater mandate to enhance a stable, fair, transparent, efficient international business environment based on the rule of law in China.128 2.6 CONCLUSIONS

In the past decade, the international order has been undergoing a fundamental transformation. On the one hand, China is becoming a leading power with the potential to challenge the international leadership that Western powers have held for centuries. They have not tolerated any serious challenge to this leadership. On the other hand, liberalism-based globalization is encountering great difficulties as is demonstrated by the rise of protectionism. In this changed international landscape, China is making various efforts to maintain its national development while increasing its role in the international order. A major one of these efforts is the BRI. By implementing the BRI, China initially sought to expand its economic cooperation with 122

123

124

125

126

127

128

State Council of China, ‘Opinions on Speeding Up the Implementation of Free Trade Zones Strategy’ (2015), english.gov.cn/policies/latest_releases/2015/12/17/content_281475255618346.htm. See generally Daniel C. K. Chow, ‘Why China Established the Asia Infrastructure Investment Bank’ (2016) 49 Vanderbilt Journal of Transnational Law, 1255. See Xiaohui Wu, ‘Friendly Competition for Co-progressive Development: The Asian Infrastructure Investment Bank vs. the Bretton Woods Institutions’ (2017) 16 Chinese Journal of International Law, 41. See generally Li Tao and Jiang Zuoli, ‘Implication of the Asian Infrastructure Investment Bank for Global Financial Governance: Accommodation or Confrontation?’ (2016) 9 Tsinghua China Law Review, 139; David M. Ong, ‘The Asian Infrastructure Investment Bank: Bring “Asian Values” to Global Economic Governance’ (2017) 20 Journal of International Economic Law, 535. Zheng Sophia Tang, ‘The Belt and Road and Cross-Border Judicial Cooperation’ (2019) 49 Hong Kong Law Journal, 121. SPC, Provisions on Several Issues Regarding the Establishment of the International Commercial Court (25 June 2018), cicc.court.gov.cn/html/1/218/62/84/1572.html [最高人民法院, 《关于设立国际商事法庭若干问题 的规定》, 2018年6月25日]. See also Zhengxin Huo and Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’ (2019) 68 International and Comparative Law Quarterly, 903; Sheng Zhang, ‘China’s International Commercial Court: Background, Obstacles and the Road Ahead’ (2020) 11 Journal of International Dispute Settlement, 150. SPC, Provisions on Several Issues, supra note 127, Preamble.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

48

Congyan Cai

developing states, especially in infrastructure. Over time, however, more non-economic issues have been included in the framework of the BRI. The BRI has widely garnered international support, which is demonstrated by the simple fact that about 150 countries have embraced it. Therefore, the BRI is expected to have far-reaching geopolitical and geo-economic implications, and implications in the international legal order. Therefore, it has alarmed major Western powers. As responses, their first two strategies were to decline to join the BRI and to discredit the BRI. However, these strategies did not prevent China from expanding its BRI partnerships. More recently, major Western powers have adopted a third strategy of proposing alternatives, for instance B3W. While it is hard to say that this third strategy can effectively compete with the BRI, it has helped the BRI to be implemented in a more accountable way. The BRI is unique in its flexible approach. China has not yet developed any ‘hard law’ concerning the BRI. Instead, what China and other BRI countries have signed are non–legally binding MOUs serving as an overarching framework. Under the conventional thinking, these non–legally binding agreements seem rhetorical only, without really having any effect in practice. However, they appear to work well. Compared with ‘hard’ treaties that need timeconsuming negotiations and ratifications, MOUs are convenient for other states to accept, thereby dramatically expanding the BRI partnership. They have also induced the Chinese authorities to conceive of various policy instruments and Chinese companies to mobilize capital. It should be stressed, however, that the considerable progress that the BRI has achieved perhaps does not mainly lie in the flexible approach used. The more important reason perhaps is that China’s government has accurately paid heed to the exact needs of many BRI countries, on the one hand, and has a strong-enough will and capability to put the BRI policy into practice. Thus, while the Western initiatives are of help in encouraging the BRI to be undertaken in a more accountable way, it seems that they cannot compete with it in its appeal to developing countries.

https://doi.org/10.1017/9781009041133.004 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind and International Law Ignacio de la Rasilla and Yayezi Hao

3.1 INTRODUCTION

The ‘community of shared future for mankind’1 (CSFM) is the latest conceptual expression of China’s time-honoured ‘grand strategy of peaceful rise/development’ and the soft power cornerstone of a new phase of greater Chinese assertiveness in international relations known as ‘the strategy of fenfayouwei [striving for achievement]’ (奋发有为).2 As such it fulfils the functions of ‘project[ing] an image of the country to the rest of the world’ and ‘embed[ding] and legitimiz[ing] foreign and security policy politically by explaining it to the citizenry in broad terms’.3 Xi Jinping’s multiple speeches on, and references to, the CSFM,4 in particular in the context of the Belt and Road Initiative (BRI), which he has presented as his ‘hallmark of the vision of a community of common destiny’,5 have boosted its use in Chinese public diplomacy6 and its inclusion in several UN resolutions. The global projection of the CSFM found an unexpected breeding ground amid the unilateralist and protectionist Trump administration’s assault on international law and international organizations. This was done in pursuance of an idiosyncratic populist ‘new sovereigntist’7 stance on US foreign policy that was premised on the sloganized ‘America first’ doctrine and saw international treaties and international organizations as hindrances rather than enablers of the United States’ geopolitical standing on the world stage.8 In an almost complete 1

2

3

4

5

6

7

8

The expression ‘Renlei minyun gongtongti [人类命运共同体]’ has been interchangeably translated in English as ‘community of common destiny’ or ‘community of shared future for mankind’ in scholarly analysis and extensive media commentary. There are other, similar expressions translated into English to refer to it, such as ‘global community of shared future’ and ‘human community with a shared future’; see, e.g., Jinping Xi, On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019). See, early on, Xuetong Yan, ‘Keeping a Low Profile to Striving for Achievement’ (2014) 7 Chinese Journal of International Politics, 153. Barry Buzan, ‘The Logic and Contradictions of “Peaceful Rise/Development” as China’s Grand Strategy’ (2014) 7 Chinese Journal of International Politics, 381, 386. See also the five-episode documentary in English titled Common Destiny, by the China Global Television Network (www.cgtn.com). Jinping Xi, ‘Towards a Global Community of Shared Future’ in The Belt and Road Initiative (Beijing: Foreign Languages Press, 2019), 222; and Jinping Xi, supra note 1, at 544. Linggui Wang and Jiangli Zhao (eds.), China’s Belt and Road Initiative and Building the Community of Common Destiny (Singapore: World Scientific Publishing, 2019), 47. As President Xi started his third mandate as President of the PRC in March 2023, there is an evident continuity in the way the CSFM features in Chinese public diplomacy. This is apparent in the first press conference by the new Foreign Minister of China, Qin Gang, after his official appointment. ‘Foreign Minister Qin Gang Meets the Press, 3rd March 2023’, www.fmprc.gov.cn/mfa_eng/zxxx_662805/202303/t20230307_11037190.html. The term was originally coined by Peter J. Spiro, ‘The New Sovereigntists: American Exceptionalism and Its False Prophets’ (2000) 79 Foreign Affairs, 6, 9. During the Trump presidency, the United States withdrew from an unparalleled number of international treaties, international agreements and fora. For a detailed list, also including the UN Relief and Works Agency, see Oona

49 https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

50

Ignacio de la Rasilla and Yayezi Hao

reverse mirror image of the ‘Trumpian’ backlash against the post–Cold War international liberal order,9 China strengthened its participation in, and furthered its financial contributions to, the work of the UN and related international institutions. It also went on to actively enlarge its already extensive international treaty network, which already encompasses ‘hundreds of multilateral treaties and thousands of bilateral treaties’.10 The bulk of this development has gravitated around the BRI, in the context of which China has signed multiple ‘BRI primary agreements’,11 including prominently a network of memoranda of understanding (MOUs) with around 140 states and 30 international organizations. However, China’s treaty network has further extended, as we shall later see, to include new international treaty obligations in the fields of climate change, international trade, arms control and other areas. A token of the Chinese diplomatic investment in expanding its influence on international law since 2013 is that the country has become the most active global power in the UN General Assembly (UNGA),12 having sponsored 351 resolutions (many of which include CSFM and/or related Chinese ‘official’ diplomatic terminology) in the UNGA alone between 2013 and 2018.13 China has, furthermore, engaged in its own China-led international institution-building processes in the shadow of the BRI14 and has, overall, systematically implemented a plan to bolster its capabilities across all areas of international law. Underlying the Chinese renewed proactive engagement with international law are guidelines issued by the Chinese Communist Party (CCP) Central Committee in 2014 calling for China to ‘[s]trengthen foreign-related legal work’ and ‘vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, and use legal methods to safeguard our country’s sovereignty, security and development interests’.15 Set against this background, is the CSFM, as some of its critics (inspired by the so-called strategy of deception with which the Western mainstream ‘realist tradition in international relations (IR)’ generally interprets China’s rise to great power status in the shadow of the ‘China threat theory’)16 have claimed, just an overblown rhetorical slogan in China’s ‘calculative diplomacy’ oriented to provide ‘hegemonic camouflage’ for China’s rising influence on the world stage?17 Or should the CSFM be instead best interpreted as a well-meaning and strategically coherent Chinese global governance formula with the ‘ability to inspire, and the power to

9

10

11

12

13

14

15 16 17

Hathaway, ‘Reengaging on Treaties and Other International Agreements (I): Trump’s Rejection of International Law’, Just Security (2 October 2020), https://bit.ly/43THOvM. Martti Koskenniemi (ed.), International Law and the Far Right: Reflections on Law and Cynicism (The Hague: T. M. C. Asser Press, 2019). See Robert D. Williams, ‘International Law with Chinese Characteristics: Beijing and the “Rules-Based” Global Order’, Brookings (October 2020), www.brookings.edu/wp-content/uploads/2020/10/FP_20201012_ international_law_china_williams.pdf. Heng Wang, ‘The Belt and Road Initiative Agreements: Characteristics, Rationale and Challenges’ (2021) 20 World Trade Review, 3, 282. Mika-Matti Taskinen, ‘On Building a Community of Shared Future for the United Nations Analysis on China’s Performance in the United Nations General Assembly 2013–2018’, Master’s Thesis, Faculty of Arts, University of Helsinki (2020), https://bit.ly/43N8NZX. The number includes both the resolutions China as a state has sponsored (n=248) and the resolutions China sponsored in collaboration with Group 77 (n=103). Group 77, also known as ‘Group 77 and China’ (G77). Like the Asian Infrastructure Investment Bank (AIIB) since 2015, with 100 approved state members worldwide, www .aiib.org/en/index.html. Emphasis added by the author. Buzan, supra note 3, at 395. Liza Tobin, ‘Xi’s Vision for Transforming Global Governance: A Strategic Challenge for Washington and Its Allies’ (2018) 2 Texas National Security Review, 1, 154, https://bit.ly/477Dyf4.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

51

shape’18 the well-ordered development of IR in a politically divided world community, the economic and demographic gravity centre of which is inexorably pivoting towards Asia in the twenty-first century? To assess these questions and the influence of the CSFM in international law during the rise of China,19 Section 3.2 retraces the origins and evolution of the CSFM terminology up to its incorporation in the preamble to the Chinese Constitution, while highlighting its centrality in Xi Jinping’s ‘Thought on Socialism with Chinese Characteristics for a New Era’. Section 3.3 examines the main tenets of the CSFM, which is portrayed as a symbol of China’s commitment to fostering a ‘new development paradigm and pursuing mutual benefit and win-win cooperation’20 on a global scale, on the basis of Xi Jinping’s writings. In doing so, this section pays particular attention to how the CSFM builds on some of the fundamental principles of international law and how it is furthermore being fleshed out through various international legal initiatives. To better illustrate this analysis, the chapter conceptually analyses the nine core elements of the CSFM with the visual aid of the metaphoric architectural form of a ‘paifang’ (牌坊) (Figure 3.1). In this Chinese architectural arch or gateway structure, first, the foundation of the CSFM is assimilated to China’s acknowledgement of the centrality of ‘interdependence’ in the international community. Second, the pillars of the CSFM are identified with the goals of global peace, international common security, international inclusive

figure 3.1 The community of shared future for mankind 18

19

20

Jinping Xi, ‘Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era (delivered at the 19th National Congress of the Communist Party of China, 18 October 2017)’, China Daily (4 November 2017), https://bit.ly/3rSidq3. Jerome A. Cohen, ‘Law and Power in China’s International Relations’ (2019) 52 New York University Journal of International Law and Politics, 123. Jinping Xi, ‘Fostering a New Development Paradigm and Pursuing Mutual Benefit and Win-Win Cooperation’, Ministry of Foreign Affairs of the People’s Republic of China (19 November 2020), www.fmprc.gov.cn/mfa_eng/ wjdt_665385/zyjh_665391/202011/t20201119_678934.html.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

52

Ignacio de la Rasilla and Yayezi Hao

development and international ecological civilization. Third, the wooden beams that bind the CSFM together are equated to the principles of sovereign equality, inter-civilizational dialogue and multilateralism, while the principle of ‘win–win’ cooperation is considered to be the CSFM’s frontispiece. The concluding Section 3.4 points to some factors weighing in favour of China’s further deepening its legalist approach to IR as the most fitting companion to its grand strategy of ‘peaceful/development rise’. 3.2 THE RISE OF THE CSFM IN CHINA’S PUBLIC DIPLOMACY

The CSFM is the most globalist in orientation to date of the series of bywords that Chinese leaders have put forward over time to encapsulate China’s approach to IR and international law. Earlier landmarks in this evolution included the ‘Five Principles of Peaceful Coexistence’.21 Originating in the Chinese-Indian bilateral context in 1954, the ‘Five Principles’, which are also known as the ‘Panchsheel Agreement’ (or ‘Five Virtues’ in Sanskrit), have been included in the Preamble to China’s Constitution since 1954. A shortcut for a reasserted classical Westphalian model of interstate sovereign relations that, in view of its appeal among Asian states, has more recently even been termed ‘Eastphalia’,22 this reaffirmation of the principles of state sovereignty and territorial integrity, non-aggression, non-interference in internal affairs, equality, mutual benefit and peaceful coexistence is considered to have inspired the ‘Ten Principles of the Bandung Conference’23 (1955) and the United Nations (UN) Friendly Relations Declarations (1970).24 A second important milestone in this evolution since the early 1990s was Deng Xiaoping’s cautious doctrine of ‘biding time and building capabilities’ and the doctrine of ‘hiding brightness’ (tao guang yang hui [韬光养晦]), that is, keeping a low profile, while maintaining ‘a peaceful or “favourable” global and regional international environment within which to pursue . . . development’.25 The great influence of adhering to the tao guang yang hui principle in Chinese foreign policy strategy during the first decades of the ‘opening up and reform’ policy is apparent in how Jiang Zemin (1993–2003) also pointed to the convenience of sustaining a ‘period of strategic opportunities’ (zhanlue jiyuqi [战略机遇期]) in the first two to three decades of the twenty-first century in order to further develop.26 His successor, Hu Jintao (2003–13), followed in the steps of the doctrine by presenting China’s conception of the world order with the terminology ‘harmonious world’27 (hexie shijie [和谐世界]), stressing the goals of 21

22

23

24

25 26

27

Russell H. Fifield, ‘The Five Principles of Peaceful Co-existence’ (1958) 52(3) American Journal of International Law (AJIL), 504. Simon Chesterman, ‘Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’ (2016) 27(4) European Journal of International Law (EJIL), 945. Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.), Bandung, the Global History, and International Law: Critical Pasts and Pending Futures (Cambridge: Cambridge University Press, 2017). GA Res. 2625, The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (1970). For a proposal to replicate the GA Res. 2625 (1970) on the basis of the CSFM on the 75th anniversary of the UN, see Sienho Yee, ‘In Celebration of the 75th Anniversary of the United Nations: A Proposal for the Formulation and Adoption of a “Declaration on the Principles of International Law concerning the Community of Shared Future for Mankind”’ (2020) 19(3) Chinese Journal of International Law, 359. Buzan, supra note 3, at 391. Denghua Zhang, ‘The Concept of “Community of Common Destiny” in China’s Diplomacy: Meaning, Motives and Implications’ (2018) 5(2) Asia & the Pacific Policy Studies, 196. Jintao Hu, ‘Build Towards a Harmonious World of Lasting Peace and Common Prosperity (Speech Before the United Nations Summit)’, UN, 15 September 2005, www.un.org/webcast/summit2005/statements15/china050915eng .pdf; Sienho Yee, ‘Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States’ (2008) 7(1) Chinese Journal of International Law, 99.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

53

‘lasting peace and common prosperity’ and also repeatedly stressing the idea of ‘peaceful development’ (heping fazhan [和平发展]) as the cornerstone of China’s grand foreign policy strategy. The CSFM both integrates and, as we shall see, builds on this long-standing Chinese foreign policy tradition. The specific origins of the CSFM terminology have been retraced to Schicksalsgemeinschaft (community of fate) in the German language, which already appeared in the work of Max Weber (1864–1920).28 However, its terminological origins in Chinese foreign policy circles more specifically are retraced back to Hu Jintao, who first put it forward in 2007 in the shortened and different form of ‘community of common destiny’ to describe the special relationship between China and Taiwan.29 The expression reappeared again in 2011 for the first time in a global governance context, first in a white paper on ‘China’s peaceful development’.30 The use of the expression there was intended to convey the idea that the international community ‘should find new perspectives from the angle of the community of common destiny’. These perspectives included ‘sharing weal and woe and pursuing mutually beneficial cooperation, exploring new ways to enhance exchanges and mutual learning among different civilizations, identifying new dimensions in the common interests and values of mankind, and looking for new ways to handle multiple challenges through cooperation among countries and realize inclusive development’.31 The CSFM terminology soon reappeared in the Report to the CCP’s 18th national conference in 2012, where it was meant to signify that ‘a country should accommodate the concerns of others when pursuing its own interests and it should promote common development of all countries when advancing its own development’.32 Although the general ideational framework provided by the core notion of ‘China’s peaceful development’ is the cradle where the CSFM was born, it was after Xi Jinping took office as President of the People’s Republic of China (PRC) in 2013 that the CSFM became further fleshed out as a true byword in China’s public diplomacy. Indeed, with Xi’s multiple references to it in the course of his very intensive global diplomatic activities, the CSFM has become further aligned with China’s long-term strategy of sustaining its ‘peaceful rise/development’33 by making external conditions more favourable for the realization of the ‘Two Centenary Goals’34 and the ‘Chinese Dream of national rejuvenation’.35 Although anchored in earlier more selfdefensive and inward-looking conceptual embodiments of China’s enduring programme to ease the concerns of other countries, today the CSFM should, however, be examined in the context of China’s more assertive, proactive and outward-looking legalist approach to IR. 28

29 30

31 32

33 34

35

Peter Baehr, ‘Community of Fate’ in George Ritzer (ed.), The Wiley-Blackwell Encyclopedia of Sociology (2016), http://onlinelibrary.wiley.com/doi/10.1002/9781405165518.wbeos0728. Zhang, supra note 26, at 196. Information Office of the State Council of the People’s Republic of China, ‘China’s Peaceful Development’, September 2011, english.www.gov.cn/archive/white_paper/2014/09/09/content_281474986284646.htm. Ibid. Jintao Hu, ‘Report to the Eighteenth National Congress of the Communist Party of China: Firmly March on the Path of Socialism with Chinese Characteristics and Strive to Complete the Building of a Moderately Prosperous Society in All Respects’, china.org.cn (8 November 2012), www.china.org.cn/china/18th_cpc_congress/2012–11/16/ content_27137540.htm. Zhang, supra note 26, at 196. Amended Art. 32 incorporates the Party’s second centenary goal: to build China into a ‘strong modern socialist country that is prosperous, democratic, culturally advanced [or civil], harmonious, and beautiful’ by the time the PRC celebrates its centenary in 2049. This goal was first articulated in Xi’s report to the Party’s 19th Congress in 2017 (the first centenary goal is to ‘finish building a moderately prosperous society in all respects [全面建成小康社会]’ by the time the Party marks its centenary in 2021). Jinping Xi, ‘Improve Our Ability to Participate in Global Governance’ in The Belt and Road Initiative (Beijing: Foreign Languages Press, 2019), 188.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

54

Ignacio de la Rasilla and Yayezi Hao

The CSFM was included in the CCP’s Charter in November 2017 and soon afterwards, in March 2018, the preamble to the Chinese Constitution was amended to include adhering to ‘a mutually beneficial strategy of opening up in developing diplomatic relations and economic and cultural exchanges with other countries’ and commitments to follow a path of peaceful development and to work to build a ‘community of shared future for mankind’.36 Enacted in 1982, the PRC Constitution,37which is one of the longest in the world, stands out in comparative constitutional terms not only for being one of the most ideologically charged constitutions38 but also because it is customary for each leadership generation of the CCP to condense its main leadership ideas, policies and practices into it.39 As the most frequently revised constitution worldwide, its five reforms in 1988, 1993, 1999, 2004 and 2018 also made changes to its preamble. Although it is considered a ‘symbolic preamble’ in terms of its legal status,40 it fulfils the central political function of providing the substantive part of the so-called mother of all laws in China with a legitimizing ‘narrative of peoplehood’.41 For instance, among other changes the constitutional amendment of 1993 added a reference to ‘the theory of building socialism with Chinese characteristics’, while in 1999 references to ‘Deng Xiaoping Theory’ and the development of ‘a socialist market economy’ were added. Later in 2004 the preamble incorporated a reference to Jiang Zemin’s guiding sociopolitical theory,42 ‘the important thought of Three Represents’.43 The inclusion of the CSFM in the preamble to the PRC’s Constitution was described by Xu Hong, then Director General of the Department of Treaty and Law of China’s Ministry of Foreign Affairs, as a ‘solemn legal commitment to the world [which] has opened up a new realm for the development of international law, pointing out new directions and giving birth to new impetus’.44 This was also accompanied by a constitutional elevation of ‘Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era’, of which the CSFM is one of the fourteen points, to serve as ‘guidance’ to the PRC’s Constitution. This context further symbolizes the extent to which the CSFM has become an entrenched element and a lasting feature of Xi Jinping’s political legacy in the PRC’s foreign policy at a time when China’s global influence appears to be set on an ineluctable rising course. 3.3 THE ARCHITECTURE OF THE CSFM

In this section, the visual aid of the metaphorical architectural form of a ‘paifang’ (牌坊) is used to analytically introduce the nine core elements of the CSFM in the light of Xi Jinping’s own writings. In this representation, as shown in Figure 3.1, the ‘foundation’ of the CSFM is, first, assimilated to China’s acknowledgement of the centrality of ‘interdependence’ in the international community. Second, the ‘pillars’ of the CSFM are identified as the goals of global 36

37 38

39 40

41

42

43 44

Constitution of the People’s Republic of China as amended on 11 March 2018, npcobserver.files.wordpress.com/2018/ 12/PRC-Constitution-2018.pdf. On the Constitution of China, see Chapter 4 in this volume. Wim Voermans, Maarten Stremler and Paul Cliteur (eds.), Constitutional Preambles: A Comparative Analysis (Cheltenham: Edward Elgar, 2017), 56. Ibid., 102. Liav Orgad, ‘The Preamble in Constitutional Interpretation’ (2010) 8 International Journal of Constitutional Law, 714. Adeno Addis, ‘Constitutional Preambles as Narratives of Peoplehood’ (2018) 12 Vienna Journal of International Constitutional Law, 125. Zemin Jiang, ‘Three Represents’, China Daily (10 July 2007), www.chinadaily.com.cn/china/2007–07/10/con tent_6142053.htm. Voermans et al., supra note 38, at 102–3. Hong Xu, ‘Community of Human Destiny and International Law’ (2018) China’s International Law Frontier, 1.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

55

peace, international common security, inclusive international development and international ecological civilization. Third, the ‘wooden beams’ that bind the CSFM together are assimilated into the principles of sovereign equality, inter-civilizational dialogue and multilateralism, while the principle of ‘win–win’ cooperation is represented as the CSFM’s ‘frontispiece’. 3.3.1 Interdependence as the Foundation of the CSFM Xi has stated on multiple occasions in slightly different formulations the core idea that ‘mankind has become a community of common destiny, that one is inseparable from the other, and its interests are highly inter-mingled and interdependent’.45 Interdependence is also evoked in the preamble to the Constitution of the PRC where it is stated, first, that ‘China’s achievements in revolution, construction, and reform are inseparable from the support of the people of the world’ and, second, that ‘the future of China is closely linked to the future of the world’.46 The acknowledgement of ‘interdependence’, which, according to Daniel Deudney and G. John Ikenberry, is, ‘in thinking about world order, the variable that matters most for liberal thinkers’,47 as the foundation of the CSFM is closely associated with the notion of ‘international community’ to which Xi also often refers in connection with the CSFM. According to Martti Koskenniemi, the international community is a ‘present-day rhetorical equivalent’ of earlier idealist manifestations of the ‘expression of, or perhaps a metaphor for, the ideals of universalism, community, and solidarity beyond political divisions, the ideal of humanity united into one’.48 In Western international legal and political thought, different historical distillations of the concept in the history of ideas range from Dante’s reflections on ‘universal monarchy’ in his De Monarchia49 in 1313 to Francisco de Vitoria (1483–1546), the founder of the sixteenth-century Spanish neo-Thomist school of moral and legal theologians known as the School of Salamanca who seminally equated the ‘whole world’ with a ‘commonwealth’ with the ‘power to enact laws which are just and convenient to all men’50 in his De Potestate Civili (1528).51 Over time, the historical conceptual evolution of the idea of the international community led to its crystallization as an international legal concept underlying certain categories of international legal norms designed to protect ‘community interests’ such as ius cogens52 or obligations erga omnes.53 The international normative evolution of the 45

46 47 48

49

50

51 52

53

Jinping Xi, ‘Shouldering the Responsibility of Our Age and Promoting Global Growth Together (Keynote at the Opening Session of the World Economic Forum Annual Meeting 2017 in Davos, 17 January 2017)’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 414. Constitution of the PRC as amended on 11 March 2018, supra note 36. Daniel Deudney and G. John Ikenberry, ‘Liberal World: The Resilient Order’ (2019) 97 Foreign Affairs, 16. Martti Koskenniemi, ‘“International Community” from Dante to Vattel’ in Vincent Chetail and Peter Haggenmacher (eds.), Vattel’s International Law from a XXIst Century Perspective (Leiden: Martinus Nijhoff, 2011), 49, 50. Dante Alighieri, Monarchy (1313); Oliver Lepsius, ‘Hans Kelsen on Dante Alighieri’s Political Philosophy’ (2016) 27 EJIL, 1153. Francisco de Vitoria, ‘On Civil Power’ in Anthony Pagden and Jeremy Lawrance (eds.), Vitoria: Political Writings (Cambridge: Cambridge University Press, 1991), 1, 40. In Latin: ‘Habet enim totus orbis, qui aliquo modo est una respublica, potestate ferendi leges aequast et convenientes omnibus, quales sunt in iure gentium [The whole world, which in a certain manner is a republic, has the power to enact laws which are just and convenient to all, as those of the law of peoples].’ Francisco de Vitoria, De Potestate Civili (1528). Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155. Commonly cited examples of peremptory norms of international law include prohibition of aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, torture and the acquisition by a state of territory through war. Christian J. Tams, ‘The “International Community” as a Legal Concept’ in Jean d’Aspremont and Sahib Singh (eds.), Concepts for International Law – Contributions to Disciplinary Thought (Cheltenham: Edward Elgar, 2019), 505.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

56

Ignacio de la Rasilla and Yayezi Hao

notion of ‘international community’ towards supra-positive international norms is understood to mirror the aspiration of the international legal order to accompany the evolution of IR. This is often portrayed as an evolution, as Hedley Bull noted, from an early stage of a system of juxtaposed sovereign states competing in an anarchical society to that of an organized society of states in which states are increasingly interdependent and bound by a series of ‘common interests, rules, values and institutions’54 that are, moreover, partly managed by the establishment of international organizations. This conception of interdependence in an international community, furthermore, underlies contemporary concepts of global governance, understood as entailing ‘efforts to bring more orderly and reliable responses to social and political issues that go beyond the capacity of states to address individually’.55 The same core idea can be found often evoked in Xi’s statements in connection to the CSFM, such as that ‘no country can address alone the many challenges facing mankind; no country can afford to retreat into self-isolation’.56 The idea of interdependence as the foundation of the CSFM has also been retraced to the ancient notion of Tianxia (天下) or ‘All-Under-Heaven’, which, according to some, originated back in the early times of the Zhou dynasty (1046–771 BCE) in China. The contemporary development known in Tianxia theory (Tianxia lun [天下论]) or Tianxiaism (Tianxia zhuyi [天 下主义]) as a symbol of traditional Sino-centrist cosmology is an offspring of the official-led effort to rehabilitate Confucian culture and philosophy in China since the 1990s. Tianxia has been at the heart of multiple analyses and, while diversely interpreted, it has overall been employed to loosely project a Chinese worldview of the ‘international community’ as alternative to the structural pitfalls of a West-centric international order.57 Tianxia has been presented as an alternative to the axiologically and politically ever-expansive homogenizing ethos inspiring a Western liberal conception of world order. Instead, it has been interpreted in the light of the ancient Chinese notion of ‘harmony in diversity’58 not as a community e pluribus unum in which the ‘members are invited to transcend their individuality in the pursuit of an ideal of everlasting peace by coalescing around shared values, norms and principles’, but rather as a community to ‘live and let live’ side by side, with each accepting and not attempting to transform the others.59 It is in this sense that a modern conception of Tianxia may also be said to underlie the CSFM, understood as a set of broad organizing principles for the interrelational management of the evolving peaceful coexistence of an interdependent world community in all its cultural, axiological and political mutually enriching diversity. 3.3.2 World Peace as a Pillar of the CSFM The alignment of the CSFM with the overarching goal of world peace springs from China’s long-term commitment to the doctrine of ‘peaceful rise/development’, following, as earlier noted, a long-established line of thinking from Deng’s times to countervail the ‘China threat 54

55 56

57

58

59

Hedley Bull, The Anarchical Society: A Study of Order in World Politics (Cambridge: Cambridge University Press, 2002), 8–15. Jim Whitman, The Fundamentals of Global Governance (London: Palgrave Macmillan, 2009). Jinping Xi, ‘Follow a Path of Peaceful Development and Work to Build a Global Community of Shared future (part of the Report to the 19th CPC National Congress, 18 October 2017)’ in The Belt and Road Initiative (Beijing: Foreign Languages Press, 2019), 274, 275. See, e.g., Matti Puranen, ‘“All under Heaven as One Family”: Tianxiaist Ideology and the Emerging Chinese Great Power Identity’ (2019) 7 Journal of China and International Relations, 44. See Roger T. Ames, ‘Harmony in Diversity, Explained’, China Global Television Network (11 May 2019), news .cgtn.com/news/3d3d774d336b544e34457a6333566d54/index.html. Lihua Zhang, ‘China’s Traditional Cultural Values and National Identity’, Carnegie–Tsinghua Center for Global Policy (21 November 2013), https://bit.ly/43ToEq6.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

57

theory’. The pivotal centrality of the CSFM’s alignment with peace has been repeatedly stressed by Xi, according to whom ‘China has grown from a poor and weak country to the second largest economy not through military expansion or colonial plunder, but through the hard work of its people and their efforts to uphold peace. China will never waver in its pursuit of peaceful development.’60 China’s stress on the goal of ‘world peace’ is in accordance with the foundational spirit of the UN61 and also aligned with the UN Sustainable Development Goals (SDGs) (2030 Agenda), which make peace the precondition for the achievement of any other of the seventeen goals adopted by all the UN member states in 2015.62 The notion of the CSFM has been echoed in several UN resolutions related to peace and security,63 including UNGA Resolution 2344 regarding the ‘promotion of peace and stability in Afghanistan and the surrounding region’, UNGA Resolution 69/32 relating to there being ‘no first placement of weapons in outer space’ and UNGA Resolution 72/250, which puts forward ‘further practical measures for the prevention of an arms race in outer space’.64 China’s position on the maintenance of international peace and security has for a long time been translated into a staunch commitment by China to the principle of non-intervention,65 which is one of the ‘Five Principles of Peaceful Coexistence’. It also underlies China’s longstanding state practice of restrictively interpreting all the exceptions to the peremptory prohibition of the use of force in IR set out in Article 2(4) of the UN Charter. Whether it is under the system of collective security established under Chapter VII of the UN Charter mediating the authorization of the Security Council or the ‘inherent right to self-defence’ under Article 51 of the Charter, China’s leading international law scholars have echoed China’s unfaltering ‘restrictivist’ interpretative position on these provisions.66 Indeed, over time China has, for the most part, remained vigilant in its opposition to arguments used to try to justify an ‘extensivist’ interpretation of the terms of the UN Charter, whether to justify the pre-emptive use of force in self-defence, the use of force against non-state terrorist actors or in the name of the so-called doctrine of humanitarian intervention.67 A case in point of China’s watchful international legal positivist restrictive attitude, which also extends to the domain of cyberwarfare, has been its socalled norm-antipreneur attitude towards the doctrine of ‘Responsibility to Protect’ (R2P),68 where it favours a relatively strict traditional interpretation of sovereignty.69 60 61

62

63

64

65

66 67

68

69

Xi, ‘Towards a Global Community of Shared Future’, supra note 4, at 235. The UN was established ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’. Prologue to the UN Charter (1945). UN Department of Economic and Social Affairs, Transforming Our World: The 2030 Agenda for Sustainable Development, sdgs.un.org/goals. See Zhixiong Huang and the inclusion of the CSFM in these resolutions has been met with opposition from certain countries; for a response, see Ambassador Shuang Geng, ‘Anything Wrong with Mentioning the Concept of “A Community of Shared Future for Humankind” in the UN Resolution? (From Chinese Mission to the United Nations)’, Ministry of Foreign Affairs of the People’s Republic of China, 6 November 2020, https://bit.ly/3rTQcOO. On outer space, see Chapter 19 in this volume. Fengna Xu and Jinyuan Su, ‘Shaping “A Community of Shared Future for Mankind”: New Elements of General Assembly Resolution 72/250 on Further Practical Measures for the PAROS’ (2018) 44, 45 Space Policy, 57–62. See, e.g., by the former Chinese President of the ICJ, Jiuyong Shi, ‘Prohibition of Use of Force in International Law’ (2018) 17 Chinese Journal of International Law, 1. Ibid. Defending a different legal position, see former Legal Adviser of US Department of State, 2009–13, Harold Hongju Koh, ‘Humanitarian Intervention: Time for Better Law (Symposium on Unauthorized Military Interventions for the Public Good)’ (2017) 111 AJIL Unbound, 284. The term is applied to the actors who resist, as opposed to promote (norm entrepreneurs), normative change in world politics; see further Alan Bloomfield and Shirley V. Scott (eds.), Norm Antipreneurs and the Politics of Resistance to Global Normative Change (Abingdon: Routledge, 2017). On the use of force and cyberwarfare, see Chapter 10 in this volume.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

58

Ignacio de la Rasilla and Yayezi Hao

China’s long-standing formalist and ‘restrictivist’ approach in the area of the prohibition of the use of force in IR70 has been accompanied by its commitment to what UNGA Resolution 42/22 (1987) declared to be its ‘inseparable’71 corollary: the principle of peaceful settlement of international disputes contained in Article 2(6) of the UN Charter.72 It is true that the prevalent perception in international legal and policy circles is that China is averse to international adjudication, preferring instead to have recourse to diplomatic and other alternative dispute settlement methods.73 These range from diverse forms of negotiation and consultation to other alternative dispute resolution mechanisms such as mediation, inquiry and conciliation, which fall short of being ‘adjudicative’ means of dispute settlement understood as ones carried out by independent third-party arbitrators or judges on the basis of international law.74 However, on closer look, China’s approach to international adjudication has experienced, as H. Moynihan noted, ‘a general and gradual shift in recent years from outright rejection of legal methods of international dispute settlement towards greater acceptance of it in certain contexts’.75 This is apparent in China’s having become one of the most active players in the World Trade Organization (WTO) dispute settlement system in the twenty years since its accession. China’s integration in the investor–state arbitration system since it became a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID)76 is also underlain by a will to foster domestic development, reflecting both China’s aim to attract foreign investment and its increasing need to protect its outbound investments. Even when China has engaged in ‘pushback’ against international courts or tribunals, in which states challenge ‘the directions of their case law and jurisprudence’,77 as in the much-commented South China Sea Arbitration case, it has done so while defending tooth and nail its sovereigntist position in strictly international legalist terms.78 Moreover, in the wake of the BRI, China’s engagement with international dispute settlement79 has entered a new phase, which includes its design of a new innovative prevention and dispute settlement system for the BRI.80 This includes the ‘one-stop’ international commercial dispute resolution mechanism integrating mediation, arbitration and litigation provided by the China International Commercial Court81 since 2018 70

71

72

73

74 75

76

77

78

79

80

81

Julian Ku, ‘How China’s Views on the Law of Jus ad Bellum Will Shape Its Legal Approach to Cyberwarfare’, Aegis Series Paper No. 1707 (2017), www.hoover.org/sites/default/files/research/docs/ku_webreadypdf.pdf. Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat and Use of Force in International Relations, GA Res 42/22 (1987). Jinping Xi, ‘Championing the Five Principles of Peaceful Coexistence, Building a Better World through Win-Win Cooperation’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 134, 141. For an extensive analysis, see Ignacio de la Rasilla and Yayezi Hao, ‘China and International Adjudication – Picking Up Steam?’ (2021) 12 Journal of International Dispute Settlement, 4, 637. J. G. Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 2011). Harriet Moynihan, ‘Briefing: China’s Evolving Approach to International Dispute Settlement’, Chatham House (29 March 2017), 3, https://bit.ly/3pROoFj. See Julian Ku, ‘China and the Future of International Adjudication’ (2012) 27 Maryland Journal of International Law, 154. See, e.g., Mikael R. Madsen, Pola Cebulak and Micha Wiebusch, ‘Special Issue 2 – Resistance to International Courts: Introduction and Conclusion’ (2018) 14 International Journal of Law in Context, 193, 195. See Chinese Society of International Law, ‘The South Sea China Arbitration Awards: A Critical Study’ (2018) 17 Chinese Journal of International Law, 207. See, e.g., recently Wenhua Shan, Sheng Zhang and Jinyuan Su (eds.), ‘China and International Dispute Resolution in the Context of the “Belt and Road Initiative”’ (2022) 21(2) Chinese Journal of International Law 219–410, at407. Jiangyu Wang, ‘Dispute Settlement in the Belt and Road Initiative: Progress, Issues, and Future Research Agenda’ (2020) 8 Chinese Journal of Comparative Law, 1, 4. Sheng Zhang, ‘China’s International Commercial Court: Background, Obstacles and the Road Ahead’ (2020) 11 Journal of International Dispute Settlement, 150, 152.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

59

and also the setting up of the International Commercial Dispute Prevention and Settlement Organization (ICDPASO)82 in late 2020.83 Another area connected to the maintenance of peace and security that often features in Xi Jinping’s CSFM-related speeches is nuclear weapons, which Xi has described as ‘the sword of Damocles that hangs over humanity’ and considers should be ‘completely prohibited and thoroughly destroyed over time’.84 China, which is the only country that has issued an unconditional no first use of nuclear weapons pledge,85 has expressed its commitment to ‘strengthening its own nuclear security capabilities’, to ‘participating in building the international nuclear security system’ and to ‘supporting international cooperation on nuclear security’.86 The association between the threats posed by nuclear weapons and the CSFM has been stressed by Xi, for whom ‘it is only by fostering a peaceful and stable international environment, by developing harmonious and friendly relations between countries, and by engaging in amicable and openminded communication between different civilizations that we can tackle the causes of nuclear terrorism and nuclear proliferation, and realize nuclear power’s lasting security and development’.87 China’s recent efforts to show its commitment to the maintenance of international peace and security have also been translated into its commitment to international humanitarian law88 and its becoming the current second largest financial contributor to UN peacekeeping operations.89 Moreover, in terms of recent treaty ratifications, China became the 107th country to join the UN Arms Trade Treaty regulating the international trade in conventional arms – from small arms to battle tanks, combat aircraft and warships, in July 2020.90 However, China still has several treaties it may consider joining in this area, including the Anti-Personnel Mine Ban Convention, known as the Ottawa Treaty (1997), one of the most ratified international treaties with 164 state parties.91 Neither is China a party to the Treaty on Open Skies, in force since 200292 (and from which the United States officially withdrew on 22 November 2020),93 or to the most recent Treaty on the Prohibition of Nuclear Weapons of 2017, which entered into force in early 2021.94 82

83 84 85

86

87 88 89

90

91

92

93 94

Guiguo Wang and Rajesh Sharma, ‘The International Commercial Dispute Prevention and Settlement Organization: A Global Laboratory of Dispute Resolution with an Asian Flavor’ (2021) 115 AJIL Unbound, 22. On international dispute settlement, see Chapter 24 in this volume. Xi, ‘Towards a Global Community of Shared Future’, supra note 4, at 229. Zhenqiang Pan, ‘A Study of China’s No-First-Use Policy on Nuclear Weapons’ (2018) 1 Journal for Peace and Nuclear Disarmament, 115. Jinping Xi, ‘Committing to a Rational, Coordinated and Balanced Approach to Nuclear Security (Speech at the Nuclear Security Summit in The Hague, the Netherland, 24 March 2014)’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 76, 80. Ibid., 79. On international humanitarian law, see Chapter 15 in this volume. China is responsible for 15.21 per cent of contributions to UN Peacekeeping operations in 2020/1. See ‘How We Are Funded’, UN Peacekeeping, peacekeeping.un.org/en/how-we-are-funded. Arms Trade Treaty, New York, 2 April 2013, in force 24 December 2014, 3013 UNTS 52373, www.un.org/disarma ment/convarms/arms-trade-treaty-2. The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Ottawa, 18 September 1997, in force 1 March 1999, 2065 UNTS 35597, https://bit.ly/47r8Vl8. However, China pledged itself to a moratorium on their export, attended all the Mine Ban Treaty’s Review Conferences (held in 2004, 2009 and 2014) as well as most of the treaty’s Meetings of States Parties, and voted in favour of UNGA Res. 73/61 calling for the universalization and full implementation of the Mine Ban Treaty on 15 December 2018, www.the-monitor.org/en-gb/reports/2019/china/mine-ban-policy.aspx. Treaty on Open Skies, Helsinki, 24 March 1992, in force 1 January 2002, UKTS(2002) 26, disarmament.un.org /treaties/t/open_skies. See supra note 8. Treaty on the Prohibition of Nuclear Weapons, New York, 7 July 2017, in force 22 January 2021, UNTS 56487, disarmament.un.org/treaties/t/tpnw.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

60

Ignacio de la Rasilla and Yayezi Hao

3.3.3 Common Security as a Pillar of the CSFM The global security threats the international community currently faces are not limited to risks posed by war, military interventions, unresolved interstate disputes, the arms race and nuclear weapons. They also increasingly include so-called non-conventional security threats such as transnational terrorism, cyber-security, refugee crises, climate change and, as Covid-19 has dramatically proven, major pandemics of communicable diseases. This is why, alongside the ‘global peace’ pillar, the architecture of the CSFM also includes the ‘common security’ pillar. Underlying this concept, which is also termed ‘collaborative security’, lies ‘the recognition of common problems that require collective action because they generate shared fates’.95 This in turn amplifies the need for states, according to the tenets of the English School of IR, ‘to give priority to “raison de syste`me” over “raison d’e´tat”’.96 The same ‘idea that it pays to make the system work’97 has often been evoked by Xi Jinping, for whom ‘[w]e should champion the notion of common, comprehensive, cooperative and sustainable security and respect and ensure the security of every country’.98 China’s efforts to enhance common security under the umbrella of the CSFM extend across a broad range of sectors. These include the fight against transnational terrorism, in which China remains an active participant in the creation of new regimes and mechanisms of anti-terrorism policy and strategy, especially in the UN Security Council.99 Moreover, China is also becoming a norm-entrepreneur in this area, as is shown by its leading role in the anti-extremism convention concluded within the framework of the Shanghai Cooperation Organization (SCO) in 2017.100 The centrality of the CSFM in China’s efforts to foster common security has also been apparent in how ‘building a global community of health for all’101 has lain at the heart of China’s efforts to boost international cooperation during the ‘critical juncture’102 triggered by Covid-19. China’s Covid-19-related efforts, which led the US Council on Foreign Relations to acknowledge that, ‘in important respects, China is leading on global health governance at a critical time’,103 predates the global pandemic. In fact, China fostered a steep increase in health-related aid to developing countries to tackle, inter alia, malaria and Ebola in Africa well before Covid-19.104 It is also worth noting that since October 2015, as part of its plan for a ‘Belt and Road health cooperation’, which aims to further its influence in global health matters, China has ‘carried out a multipronged effort to draw foreign parties into cooperating more closely in areas as diverse as health security, medical research, and the promotion of traditional Chinese medicine’, in the process signing agreements with ‘the WHO, UNAIDS, the Global Fund, and the Global Alliance for Vaccines and Immunization’.105 Since the eruption of the global 95 96 97

98 99 100 101

102

103 104 105

Buzan, supra note 3, at 408. Ibid. Adam Watson, The Evolution of International Society: A Comparative Historical Analysis (Abingdon: Routledge, 1992), 12. Xi, supra note 72, at 139. On international terrorism, see Chapter 11 in this volume. Shanghai Cooperation Organization, eng.sectsco.org/documents/. Jinping Xi, ‘Fighting COVID-19 through Solidarity and Cooperation, Building a Global Community of Health for All’, Embassy of the People’s Republic of China in the Islamic Republic of Afghanistan, 18 May 2020, af.chinaembassy.org/eng/sgxw/t1781090.htm. Defined by historical institutionalism as ‘relatively short periods of time during which structural economic, political and cultural conditions are in flux so that the choices available to powerful actors expand’. See Giovanni Capoccia, ‘Critical Junctures’ in Orfeo Fioretos, Tulia G. Falleti and Adam Sheingate (eds.), The Oxford Handbook of Historical Institutionalism, 89–106 (Oxford: Oxford University Press, 2018), 89. Council of Foreign Relations, China’s Approach to Global Governance, www.cfr.org/china-global-governance/. Ibid. Ibid.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

61

pandemic, China has integrated its vision of enhanced cooperation in combating global health crises, including in the forms of information-sharing, technology-sharing, support for developing countries and a global health monitoring and aid system, as an integral part of the CSFM.106 3.3.4 Inclusive Global Development as a Pillar of the CSFM Promoting its own domestic development is the keystone on which China’s grand strategy of ‘peaceful rise/development’ is based. The centrality of fostering inclusive global development as part of the CSFM as a ‘new blueprint for global growth’107 has been translated into a number of UN resolutions, including the ‘Social Dimensions of the New Partnership for Africa’s Development’ resolution in the 55th session of the United Nations Commission for Social Development.108 Similarly, the UN Human Rights Council has adopted two resolutions on the ‘Question of the Realization in All Countries of Economic, Social and Cultural Rights’ and the ‘Right to Food’, calling for efforts ‘to build a community of shared future for human beings’ and marking the first time that the concept was recorded in UN Human Rights Council resolutions.109 Other UN resolutions include ‘Promoting Mutually Beneficial Cooperation in the Field of Human Rights’, which was adopted in 2018. Since the start of its ‘opening up and reform’ process, the Chinese economy has reportedly lifted 800 million people out of extreme poverty,110 contributing to 70 per cent of world poverty alleviation during this period, and it now ranks as the second-largest or, depending on the criteria used, the largest economy in the world. As a result of its development, China, which is estimated to have contributed more than 30 per cent of global growth each year since the outbreak of the financial crisis, has contributed to the attainment of the UN Millennium Development Goals. China also remains deeply committed to the 2030 Agenda for Sustainable Development and, as part of its helping other countries to reach this goal, it ‘set up the South–South Cooperation Fund, initially offering two billion dollars to support developing countries’ implementation of the 2030 agenda’.111 Indeed, although the CSFM encompasses all members of the international community, China has particularly addressed the CSFM to ‘developing countries’ in Africa, Asia and Latin America. This is consistent with its traditional siding with ‘developing countries as default political partners while fostering ties with developed countries as economic partners’,112 with whom its partnership is often described as a ‘community of common interests’ (liyi gongtongti [利益共同体]).113 The CSFM, understood as a blueprint with the ‘ability to inspire, and the power to shape’114 China’s leadership in global governance at the helm of the developing world with its vast 106 107

108

109

110

111

112 113 114

On global health law, see Chapter 14 in this volume. Jinping Xi, ‘A New Starting Point for China’s Development, a New Blueprint for Global Growth (Keynote Speech at the Opening Ceremony of the B20 Summit in Hangzhou, China, 3 September 2016)’ in The Belt and Road Initiative (Beijing: Foreign Languages Press, 2019), 159. UN Economic and Social Council, ‘Social Dimensions of the New Partnership for Africa’s Development’ (2019), digitallibrary.un.org/record/3811333?ln=en. Ryan Mitchell, ‘Was the UN Wrong to Back Up China’s Shared Future Resolution?’, EJIL Talk! (10 April 2018), www.ejiltalk.org/was-the-un-human-rights-council-wrong-to-back-chinas-shared-future-resolution/. World Bank, ‘The World Bank in China, Context’ (13 December 2019), www.worldbank.org/en/country/china/ overview. Hui Zhang, ‘Building a Community of Shared Future for Mankind: China’s View of International System in a New Era’ in Yongping Xiao and Jiehan Feng (eds.), Annual Report on China’s Practice in Promoting the International Rule of Law 2017 (New York: William S. Hein Co. & Wells Information Services, 2018), 117, 132. Denghua Zhang, supra note 26, at 199. Ibid. Xi, ‘Secure a Decisive Victory’, supra note 18.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

62

Ignacio de la Rasilla and Yayezi Hao

economic potential, has evolved closely connected to the BRI.115 Since its Action Plan116 was launched in March 2015, the BRI has become the ‘centrepiece of China’s foreign policy and international economic strategy’.117 The BRI is a mega-development programme focussed on the construction of and infrastructure for a Silk Road Economic Belt and a Maritime Silk Road. As of March 2021, China has already signed agreements or MOUs with around 140 states across Central Asia and Europe (34), Asia and the Pacific (31), Latin America (18) and Africa and the Middle East (17) (which together account for ‘40 percent of global GDP’ and ‘63% of the world’s population’)118 as well as more than 30 international organizations.119 The purposes of the BRI, which has been defined as ‘a new formula for global governance’,120 include international cooperation (thus principally involving global economic governance), economic integration (mainly trade and investment), connectivity (focussing on infrastructure, people-to-people exchange and institutional linkage) and sustainable development.121 Reaffirming the BRI’s inherently flexible and adaptable nature, which translates into an ‘absence of rigid institutions and a preference for soft law’,122 and its deep connection with the CSFM’s pillar of ‘global inclusive development’, Xi has stated that ‘moving closer towards a “community of shared future for mankind” is the ultimate goal of the Belt and Road Initiative’.123 3.3.5 An Ecological Approach That Puts Mother Nature and Green Development First as a Pillar of the CSFM Of all the global challenges that no state can manage alone, international environmental protection124 and climate change125 are the paramount examples. Accordingly, the CSFM ascribes central importance to the notion of ‘ecological civilization’. This is a long-term goal of China’s development plan126 which was added to the preamble and Article 89(6) of the Chinese Constitution in 2018. Regarded as the Chinese rough equivalent of the ‘sustainable 115

116

117

118

119

120 121

122 123

124 125 126

On the BRI, see Chapter 2 in this volume. See also, e.g., Jinping Xi, The Belt and Road Initiative (Beijing: Foreign Languages Press, 2019) and Heng Wang, ‘China’s Approach to the Belt and Road Initiative: Scope, Character and Sustainability’ (2018) 22 Journal of International Economic Law, 1. The State Council of the People’s Republic of China’s Action Plan on the Belt and Road Initiative outlines its principles, framework, cooperation priorities and cooperation mechanisms, english.www.gov.cn/archive/publica tions/2015/03/30/content_281475080249035.htm. Michael M. Du, ‘China’s “One Belt, One Road” Initiative: Context, Focus, Institutions, and Implications’ (2016) 2 Chinese Journal of Global Governance, 30, 30. David Sacks, ‘Countries in China’s Belt and Road Initiative: Who’s In and Who’s Out’, Council of Foreign Relations (March 2021), www.cfr.org/blog/countries-chinas-belt-and-road-initiative-whos-and-whos-out. Christoph Nedopil, ‘Countries of the Belt and Road Initiative’, Green Belt and Road Initiative Center (2021), greenbri.org/countries-of-the-belt-and-road-initiative-bri/. Heng Wang, supra note 115. Shu Zhang, ‘China’s Approach in Drafting the Investor–State Arbitration Clause: A Review from the “Belt and Road” Reg ions’ Perspective’ (2017) 5 Chinese Journal of Comparative Law, 79. Heng Wang, supra note 115, at 15. Jinping Xi, ‘Belt and Road Forum for International Cooperation in Beijing’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 443, 444. On international environmental law, see Chapter 16 in this volume. On climate change, see Chapter 17 in this volume. Listed as one of the five goals in China’s development plan during the 18th National Congress of the Chinese Communist Party in 2012, President Xi has noted that ‘building socialism with Chinese characteristics mainly entails fostering a socialist market economy, democratic political system, advanced culture, harmonious society, and ecological civilization’. Jinping Xi, ‘China Is a Responsible Major Country (Excerpt from a Speech at a Dinner Hosted by the Lord Major of the City of London Entitled “Work Together to Promote Openness, Inclusiveness, and Peaceful Development”, 21 October 2015)’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 282, 284.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

63

development’ terminology127 and, as such, consistent with the 2030 Agenda for Sustainable Development and the SDGs, the concept of ecological civilization has often been explicitly evoked by Xi in the context of the CSFM. For instance, when addressing the UNGA in 2015, Xi stressed that ‘building an ecological civilization is vital for the future of humanity, and all members of the international community should work together toward this goal. We must build awareness of the need to respect, protect and adapt to nature, and remain committed to the path of green, low-carbon, circular and sustainable development.’128 China played a leading role in the Paris Agreement within the United Nations Framework Convention on Climate Change (2016),129 encouraged by the worsening of air pollution in China, the country’s vulnerability to serious threats associated with global warming and the economic opportunities associated with ‘green technologies’, an area in which China is the ‘world’s largest financier’ and builder of renewable energy infrastructure.130 The good diplomatic image opportunity this offered China, enabling it to be seen as one of the leading countries in the fight against climate change, was further boosted by the Trump administration’s withdrawal from the Paris Agreement in 2017.131 In late 2020, Xi pledged new voluntary commitments by China that improved on those under the Paris Agreement. These include peaking ‘carbon dioxide emissions before 2030 and achieving carbon neutrality before 2060’, together with lowering China’s ‘carbon dioxide emissions per unit of GDP by over 65 percent from the 2005 level’. The new pledges also comprise increasing ‘the share of non-fossil fuels in primary energy consumption to around 25 percent’ and ‘the forest stock volume by 6 billion cubic metres from the 2005 level’ and bringing China’s ‘total installed capacity of wind and solar power to over 1.2 billion kilowatts’.132 China is also a supporter of the ‘global pact for the environment’, an initiative for an international treaty that seeks to recognize the environmental rights and duties of citizens, states and businesses133 and to strengthen the implementation of international environmental law and environment-related instruments. Originally proposed by a network of more than 100 environmental law experts from more than 40 countries in 2017, the UNGA paved the way for its negotiation with 142 states voting in favour, including China, by adopting the ‘Towards a Global Pact for the Environment’134 resolution, which formally launched international negotiations on 127

128

129

130

131

132

133

134

‘It goes beyond the idea of the physical sustainability of human development activities, requiring us to examine the ethical basis of the human relationship to nature and our use of Earth’s resources’, see Tianbao Qin, ‘China and International Rule of Law and Environmental Protection’ in Lingliang Zeng and Jiehan Feng (eds.), Annual Report on China’s Practice in Promoting the International Rule of Law (New York: William S. Hein Co. & Wells Information Services, 2015), 115, 124. Jinping Xi, ‘Working Together to Forge a New Partnership of Mutually Beneficial Cooperation and Create a Human Community with a Shared Future (Statement at the General Debate of the 70th Session of the UN General Assembly, 28 September 2015)’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 263. Anthony H. F. Li, ‘Hopes of Limiting Global Warming? China and the Paris Agreement on Climate Change’ (2016) 1 China Perspectives, 49. Jean Paul Marechal, ‘What Role for China in the International Climate Regime?’, Asia Focus #59 – Asia Program (January 2018), www.iris-france.org/wp-content/uploads/2018/01/Asia-focus-59.pdf. The Biden administration immediately rejoined it after taking office. See Antony J. Blinken, ‘Press Statement: The United States Officially Rejoins the Paris Agreement’, US Department of State (19 February 2021), www.state.gov /the-united-states-officially-rejoins-the-paris-agreement/) Jinping Xi, ‘Building on Past Achievements and Launching a New Journey for Global Climate Actions (Statement by H. E. Jinping Xi President of the People’s Republic of China at the Climate Ambition Summit, 12 December 2020)’, Ministry of Foreign Affairs of the PRC (12 December 2020), www.fmprc.gov.cn/mfa_eng/ wjdt_665385/zyjh_665391/t1839779.shtml. Yann Aguila and Jorge E. Vin˜uales (eds.), ‘A Global Pact for the Environment: Legal Foundations’ (2019), https://bit .ly/3OEYqTO. Resolution: Towards a Global Pact for the Environment, A/RES/72/277 (14 May 2018), digitallibrary.un.org/record/ 1617171?ln=fr.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

64

Ignacio de la Rasilla and Yayezi Hao

the adoption of such a pact in May 2018. Since then, China has supported the position agreed in the subsequent GA Resolution 73/333 (2019)135 as an active member of the ‘open-ended working group’, which forwarded its recommendations to the United Nations Environment Assembly for it to prepare a ‘high-level political declaration’ adopted on 8 March 2022, in commemoration of the 50th anniversary of the establishment of the UN Environment Programme and the 1972 Stockholm Declaration.136 3.3.6 Sovereign Equality as a Beam Binding Together the CSFM China ascribes paramount importance to the principle of state sovereignty and zealously guards its independence against any external attempts to interfere with its management of domestic affairs. The roots of China’s sovereigntist conception of international law lie deep in its history of subjugation to Western imperial policies as a ‘semi-colony’ tied to a large web of ‘unequal treaties’137 during the so-called century of humiliation.138 However, China’s attachment to the principle of sovereignty, which, according to the International Court of Justice, is ‘the fundamental principle . . . on which the whole of international law rests’,139 is not limited to China’s own sovereignty. Instead, the CSFM brings the principle of ‘sovereign equality’ a step forward by calling for the ‘democratization of international relations’ (a long-term goal of the Group of 77, which is now composed of 134 countries at the United Nations since its establishment in 1964),140 which Xi considers ‘has become an unstoppable trend of the times’.141 Indeed, according to Xi’s defence of a ‘global community of shared future’, the principle of sovereign equality, which ‘has been the most important norm governing state-to-state relations over the past centuries and . . . is the cardinal principle observed by the United Nations and its agencies and institutions’,142 translates into that ‘we should advance democracy in international relations and reject dominance by just one or a few countries’.143 This well-established Global South diplomatic rhetoric is connected with an effort to unpack ‘Western centrism’ in international law, by which one may understand the historically dominant trend towards the institutionalization of the prevailing Western powers’ legal traditions, normative concerns, understandings and interpretations in the main structures and narratives of international law.144 Accordingly, the claim that ‘all countries are entitled to shape the future of the world, making international rules, managing global affairs and sharing the fruits of development’,145 is accompanied by Xi’s assurance that ‘the vote of China in the United Nations will always belong to developing countries’.146 135 136 137

138

139 140 141

142 143 144

145 146

UNGA Res 73/333 (2019), https://bit.ly/3DL3Sy1. See further global pact for the environment at https://globalpactenvironment.org/en/documents-en/un-documents/. Anne Peters, ‘Treaties, Unequal’, Max Planck Encyclopedia of Public International Law (last updated 2018), opil .ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1495. Alison Adcock Kaufman, ‘The “Century of Humiliation”, Then and Now: Chinese Perceptions of the International Order’ (2010) 25 Pacific Focus, 1. Military and Paramilitary Activities (Nicaragua v. United States of America), Merits [1986] ICJ Rep 14, para. 263. The Group of 77 at the United Nations, About the Group of 77, www.g77.org/doc/. Jinping Xi, ‘Carrying Forward the Shanghai Spirit to Build a Community with a Shared Future (Speech at the 18th Meeting of the Council of Heads of Member States of the Shanghai Cooperation Organization in Qingdao Shandong Province, 10 June 2018)’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 543, 544. Xi, ‘Towards a Global Community of Shared Future’, supra note 4, at 225–6. Ibid., 227. Salvatore Caserta, ‘Western Centrism, Contemporary International Law, and International Courts’ (2021) 34 Leiden Journal of International Law, 321. Xi, ‘Towards a Global Community of Shared Future’, supra note 4, at 227. General Debate of the 70th Session of the UNGA in September 2015.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

65

Three obvious strategic advantages for China ensue from the centrality ascribed to, and the interpretation given to, some of the fundamental principles of international law, like sovereign equality, in a non-antagonistic projection of the CSFM that seeks to advance a narrative devised to nurture external perceptions of China as a positive force in the world. First is a reaffirmation of China’s absolute entitlement to ‘the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations’ by virtue of which ‘all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter’.147 Second is its appeal to other countries which may feel threatened by the characteristics of an over-reaching and over-sprawling liberal Western world order and which may, therefore, be inclined to align with a regime-neutral and ever increasingly influential China in the future. This influence may be particularly appealing at a time when a number of factors, including the rise of populism in established Western democracies, are contributing to easing the external pressure on the Chinese leadership to legitimatize its own model of ‘Socialism with Chinese Characteristics’ with reference to Western standards. In turn, this allows China to present its own economically successful and politically stable model as highly efficient in curbing crises such as that triggered by Covid-19. Third is the protection of China’s transitional status as an emerging world-leading rising power (with still limited interests and, therefore, a self-restrained and limited need to shoulder responsibilities for the maintenance of the current world order) all while keeping its overall structure in place. 3.3.7 Inter-civilizational Cultural Dialogue as a Beam Binding Together the CSFM Demographic data from UN sources indicate that of the current 7.7 billion estimated world population, ‘61% live in Asia (4.7 billion), 17% in Africa (1.3 billion), 10% in Europe (750 million), 8% in Latin America and the Caribbean (650 million) and the remaining 5% in Northern America (370 million) and Oceania (43 million)’.148 To this data, which situate at least 78 per cent of the world population currently living in the non-Western world, should be added that the world population is projected to ‘reach 8.5 billion in 2030, and to increase further to 9.7 billion in 2050’ with ‘more than half of [the] global population growth between now and 2050’149 expected to occur in Africa. These macro-demographic trends are a useful backdrop against which to fully grasp the centrality that inclusive inter-civilizational dialogue on a footing of equality and the preservation of cultural diversity have in the CSFM.150 In carrying out its inclusive inter-civilizational programme, China has promoted a series of initiatives, including the holding of the first ‘Conference on Dialogue of Asian Civilizations’151 in Beijing in 2019, in the context of which Xi stressed the ‘deepening exchanges and mutual learning 147

148 149 150

151

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXXV) of 24 October 1970, www.un.org/ga/search/view_doc.asp?symbol=A/RES/2625(XXV). United Union, ‘UN Global Issues: Population’, www.un.org/en/sections/issues-depth/population/. Ibid. This is expressed by Xi as ‘an attitude of equality and modesty is required if one wants to truly understand various civilizations’ and ‘exchanges and mutual learning make civilizations richer and more colourful’. Jinping Xi, ‘Exchanges and Mutual Learning Make Civilizations Richer and More Colourful (Part of the Speech at the UNESCO Headquarters, 27 March 2014)’ in The Belt and Road Initiative (Beijing: Foreign Languages Press, 2019), 19. See Conference on Dialogue of Asian Civilizations, ‘China Advocates Dialogue, Rebuts “Clash of Civilizations” as Conference Opens’, english.2019cdac.com, including the full text of the 2019 Beijing Consensus of the Conference on Dialogue of Asian Civilizations, english.2019cdac.com/2019-05/24/c_138086752.htm.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

66

Ignacio de la Rasilla and Yayezi Hao

among civilizations for an Asian community with a shared future’.152 China is also currently ‘the first contributor to the Regular Budget of UNESCO [United Nations Educational, Scientific and Cultural Organization]’,153 where, inter alia, it supports the ‘UNESCO Silk Road Programme’154 launched in line with the ‘International Decade for the Rapprochement of Cultures (2013– 2022)’.155 Furthermore, in consonance with the principled acknowledgement in Xi’s words that ‘if all civilizations are inclusive, the so-called “clash of civilizations” can be avoided and the harmony of civilizations will become reality’,156 China has also continued lending its support to other UN initiatives such as the United Nations Alliance of Civilizations (UNAOC) established on the initiative of Spain and Turkey in 2005,157 including through the signing of an MOU between UNAOC and the Chinese Ministry of Foreign Affairs on ‘strengthening cooperation and communication among civilizations under the Belt and Road initiative’158 in 2017. In the field of international law, the promotion of inter-civilizational cultural dialogue equates well with a trans-civilizational perspective on international law and the study of its historical development.159 Originally elaborated upon by the Japanese international law scholar Onuma Yasuaki, a trans-civilizational approach to international law and its historical development seeks to ‘displace the centrality of the West-centric perspective’. It does so by considering modern European international law as just one historical type of international law among others and by emphasizing the distinctiveness of other non-European views and civilizations against the predominantly Eurocentric narratives.160 Underlying these trans-civilizational historical enquiries is an attempt to put forward a trans-civilizational perspective, understood as an ‘alternative cognitive framework for understanding, interpreting and assessing international law in a way that gives recognition to the plurality of civilizations and cultures’161 in the emerging ‘multi-polar and multi-civilizational global society’162 of the twenty-first century. 3.3.8 Multilateralism as a Beam Binding Together the CSFM Multilateralism is a core component of China’s foreign policy and its strategy of ‘peaceful rise/ development’, and as such an integral part of the CSFM. China’s emphasis on presenting itself as a ‘champion of multilateralism’ has often been evoked by Xi, for whom China ‘should uphold multilateralism and refuse to engage in unilateralism’.163 This commitment to multilateralism 152

153

154 155

156 157

158

159 160

161 162 163

Jinping Xi, ‘Deepening Exchanges and Mutual Learning among Civilizations for an Asian Community with a Shared Future (Keynote Speech by H. E. Jinping Xi President of the People’s Republic of China at the Opening Ceremony of the Conference on Dialogue of Asian Civilizations in Beijing, 15 May 2019)’, Ministry of Foreign Affairs of the People’s Republic of China, www.fmprc.gov.cn/mfa_eng/wjdt_665385/zyjh_665391/t1663857 .shtml. Yuqiao Ji, ‘China’s Support and Contribution to UNESCO’, Global Times (24 September 2020), www .globaltimes.cn/content/1202025.shtml. UNESCO, The Silk Roads Programme, en.unesco.org/silkroad/. UNESCO, International Decade for the Rapprochement of Cultures (2013–2022), en.unesco.org /internationaldecaderapprochementofcultures. Xi, ‘Exchanges and Mutual Learning’, supra note 150, at 21. United Unions Office of the Secretary-General’s Envoy on Youth, UNAOC: Alliance of Civilizations, www.un.org /youthenvoy/2013/09/unaoc-alliance-of-civilizations/. United Unions General Assembly, 2017 Annual Report: United Nations Alliance of Civilizations (UNAOC), 14 September 2018, GA A/72/144, 3, undocs.org/pdf?symbol=en/A/72/144. Yasuaki Onuma, A Transcivilizational Perspective on International Law (Leiden, Brill, 2010). Yasuaki Onuma, ‘When Was the Law of International Society Born?’ (2000) 2 Journal of the History of International Law, 1. Yasuaki Onuma, supra note 159, at 81. Ibid., 11. Xi, ‘China Is a Responsible Major Country’, supra note 126, at 265.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

67

mediated by international law has been translated across the board in Chinese foreign policy. This is apparent in, first, China’s support for multilateral institutions; second, its new leading role in setting up new international institutions; and third, its signing of multiple multilateral treaties and agreements in recent years.164 First, China’s commitment to existing multilateral institutions can be seen in the steady growth in its financial contribution – currently, the second largest at 12 per cent – to the regular budget of the United Nations,165 where, moreover, four Chinese nationals currently head four of the UN’s fifteen specialized agencies. Second, the multilateralist drive is also apparent in China’s major policy initiatives such as the BRI and its international institution-making efforts, including the Asian Infrastructure Investment Bank (AIIB), which in the five years since its establishment in 2016 has grown from 57 founding members to 103 representing around 79 per cent of the global population and 65 per cent of global gross domestic product. Third, the stress on multilateralism is also apparent in China’s actively joining multiple international treaties in various specialized sectors ranging from climate change to arms control in recent years. Moreover, after the Trump administration’s ‘incapacitation of the World Trade Organization’s Appellate Body’166 (WTO AB) in late 2019, China joined the multi-party interim appeal arbitration arrangement (MPIA),167 which has provisionally patched up the vacuum that the demise of the WTO AB left in international trade dispute resolution. One of the most recent examples of China’s joining multilateral agreements has been its signing in November 2020 of the Regional Comprehensive Economic Partnership (RCEP) with the participation of fourteen other countries (ten members of the Association of Southeast Asian Nations [ASEAN] and four regional partners), making the largest free trade agreement in history.168 An even more recent illustration of China’s investment in multilateralism is the EU–China Comprehensive Agreement on Investment (EU–China CAI), which, when it enters into force, will replace the existing bilateral investment treaties between China and individual EU member states, among which there are several countries that had previously signed ‘BRI primary agreements’.169 Concluded in December 2020 after long-drawn-out negotiations spanning seven years, the EU– China CAI, which is the ‘most ambitious agreement that China has ever concluded with a third country’,170 includes wide-ranging market-access commitments for the EU in China and also, inter alia, new Chinese assurances regarding labour environment, climate and state-owned enterprises. 3.3.9 Win–Win Cooperation as the Frontispiece of the CSFM The architecture of the CSFM is completed by the overarching principle of the notion of win–win cooperation, which has also been echoed in several UN resolutions.171 This should be seen in the 164 165

166

167

168

169 170

171

On international organizations, see Chapter 1 in this volume. United Nations Secretariat, Assessment of Member States’ Contributions to the United Nations Regular Budget for the Year 2019, St/Adm/Ser. B/992, 24 December 2018, https://bit.ly/45cYsYm. AJIL Contemporary Practice of the United States, ‘US Refusal to Appoint Members Renders WTO Appellate Body Unable to Hear New Appeals’ (2020)114 AJIL, 518. Council of the European Union, Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU, 2 April 2020, www.consilium.europa.eu/media/43334/st07112-en20.pdf. Jingyuan Zhou, ‘An Important Step Forward and a Delicate Balance – Observations on the Regional Comprehensive Economic Partnership’ (2020) 24 AJIL Insights, https://bit.ly/3rSnbmH. Heng Wang, supra note 11, at 1. European Commission, Key Elements of the EU–China Comprehensive Agreement on Investment, 30 December 2020, ec.europa.eu/.commission/presscorner/detail/en/ip_20_2542. Albeit not without ‘some disagreement among Member States over the inclusion in the texts of language referring to “win-win cooperation”’, United Nations, ‘General Assembly Adopts Resolutions on Supporting New Partnership for Africa’s Development, Promoting Durable Peace on Continent’, 10 September 2019, GA/12173, www.un.org/press/ en/2019/ga12173.doc.htm.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

68

Ignacio de la Rasilla and Yayezi Hao

context of China having ‘become the largest trading partner of more than 120 countries and regions, and . . . the fastest-growing exporter in the world’.172 It means, in Xi Jinping’s words, that ‘we should embrace the notion that if one benefits we all benefit by promoting win–win globalization that is more open, more inclusive, and more balanced and creating enabling conditions for the common development of all humankind’.173 However, according to Xi, ‘seeking benefit for all’ also means ‘rejecting the outdated mind-set that one’s gains mean the other’s loss and winner-take-all mentality’.174 In this sense, the so-called win–win philosophy profoundly contrasts with the ‘America First’ doctrine.175 The latter concept is symptomatic of what Anthea Roberts et al. have described as the replacement of the international order of the post–Cold War era with an ‘emerging geo-economic world order’.176 This is characterized as resulting from ‘a shift in focus from absolute gains (based on the assumption of a positive-sum game) to relative gains (based on the concern that one party has gained disproportionately or that one party’s gain amounts to another party’s loss, a zero-sum game)’.177 According to these authors, this shift appears to result from both ‘increased inequality within states (leading to a populist backlash against globalization and free trade) and increased equality among states (leading to greater economic convergence, most notably between the United States and China)’.178 However, in contrast to this perception of the international system as a zero-sum game and the caveat that a rising power will inevitably challenge the entrenched hegemony, the CSFM intends to convey the message that nations and civilizations can coexist and achieve common prosperity. This will require, according to Xi, echoing core elements of the CSFM such as multilateralism, the democratization of IR, global cooperation and inter-civilizational dialogue, ‘the universal participation of the people of all countries. We should advance this great undertaking together by building consensus among people of different nations, different beliefs, different cultures and different regions. Realizing a great dream demands drawing on the vision and strength of all sides.’179 3.4 CONCLUSION

Taking the CSFM as the latest conceptual overarching embodiment of China’s peaceful rise/ development, this chapter has conceptually analysed the nine core elements of the CSFM with the visual aid of the metaphorical architectural form of a ‘paifang’ (牌坊), paying special attention to how the core elements of the CSFM have been carefully designed to be in alignment with the fundamental principles of international law. Special attention has been 172

173

174 175

176

177 178 179

Ministry of Foreign Affairs of the People’s Republic of China, ‘2018 nian 7 yue 16 ri waijiaobu fayanren Hua Chunying zhuchi lixing jizhehui [Foreign Ministry Spokesperson HUA Chunying’s Regular Press Conference on 16 July 2018]’, www.fmprc.gov.cn/web/wjdt_674879/fyrbt_674889/t1577518.shtml. Jinping Xi, ‘Working Together to Build a Better World (Keynote Speech at the CPC in Dialogue with World Political Parties High-Level Meeting in Beijing, 1 December 2017)’ in On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019), 519, 522. Xi, supra note 126, at 265. Zhipeng He and Qing Du, ‘From “Peaceful Coexistence to Win-Win Cooperation”: Cognitive Iteration for the Chinese Concept of the Rule of Law’ in Yongping Xiao and Jiehan Feng (eds.), Annual Report of China’s Practice in Promoting the International Rule of Law 2017 (New York: William S. Hein Co. & Wells Information Services, 2018), 138. Anthea Roberts, Henrique Choer Moraes and Victor Ferguson, ‘Toward a Geoeconomic World Order’ (2019) 22 Journal of International Economic Law, 655. Ibid. Ibid. Xi, ‘Working Together’, supra note 173, at 524.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

3 The Community of Shared Future for Mankind

69

paid to how the CSFM is being fleshed out through different international legal initiatives oriented to bridge the gap in the perception in the West of dissonance between rhetoric and practice in China’s foreign policy. The chapter has furthermore shown that the CSFM goes hand in glove with a revamped legalist approach by China towards IR. This approach represents a new, more assertive phase in China’s engagement with, and contribution to the making and shaping of, international law, including through its efforts to rhetorically Sinicize international legal concepts. As such, it confirms China’s assimilation of the lesson that a precondition for ‘exercis[ing] greater influence on the norms of international society is yet further assimilation into them’ or, if preferred, that ‘in order to become a respected norm-maker, China must first be seen to be fully integrated as an appropriate norm-taker’.180 To keep on making international law the language through which China conducts its IR, all while actively contributing to its codification and progressive development, remains the safest road for China to constructively accommodate China’s ‘peaceful rise/development’ in the deeply legalized and highly institutionalized world system of the twenty-first century.

180

Ian Clark, ‘International Society and China: The Power of Norms and the Norms of Power’ (Autumn 2014) 7(3) Chinese Journal of International Politics, 315–40, at 316.

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

https://doi.org/10.1017/9781009041133.005 Published online by Cambridge University Press

p a r t ii

Interfaces between National and International Law

Published online by Cambridge University Press

Published online by Cambridge University Press

4 The Constitution of China and International Law From Selective Adaptation to Normative Consensus Chao Wang and Xin Xiang

4.1 INTRODUCTION: NATIONAL CONSTITUTION AND THE SELECTIVE ADAPTATION OF INTERNATIONAL LAW IN THE CONTEXT OF GLOBALIZATION

The relationship between a national constitution and international law reflects a nation’s selfpositioning in the international legal regime and its reception of international law in the local context.1 Therefore, a comparative perspective of international law is useful to examine how international law is interpreted and applied by states through various approaches.2 According to Tom Ginsburg, Svitlana Chernykh and Zachary Elkins, ‘both domestic political forces and transnational diffusion explain the manner in which states deal with international law in their Constitution’.3 Comparing different countries’ performance in treaty compliance helps, as Pitman B. Potter notes, to identify how general norms of international law are successfully disseminated as well as the possible elements of selective adaptation of international norms locally in cases of non-compliance.4 Indeed, many states choose not to fully comply with international law when international treaty obligations conflict with local norms and domestic policy priorities, and they balance these obligations by selectively interpreting and applying the provisions of international treaties.5 However, as Pierre-Hugues Verdier and Mila Versteeg suggest that it is worthwhile noting: There are good reasons for considering constitutional provisions relating to international law. Constitutions are often meant to serve as credible commitment devices because they raise the cost of deviating from the constitution’s commitments ex post. Making the rules that govern a state’s relationship with international law constitutional in nature therefore makes it more likely that these rules will be followed in practice, which in turn sends a signal to potential treaty partners.6

1

2

3

4

5

6

S. Yee, ‘The International Law of Co-progressiveness: The Descriptive Observation, the Normative Position and Some Core Principles’ (2014) 13(3) Chinese Journal of International Law, 485–99, https://doi.org/10.1093/chinesejil/ jmu025. See also S. Yee, ‘Sovereign Equality of States and the Legitimacy of “Leader States”’ in R. Macdonald and D. Johnston (eds.), Towards World Constitutionalism (Leiden: Brill, 2005), 737. A. Roberts, P. Stephan, P.-H. Verdier and M. Versteeg, ‘Comparative International Law: Framing the Field’ (2015) 109 American Journal of International Law, 467, at 473. T. Ginsburg, S. Chernykh and Z. Elkins, ‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’ (2008) 1 University of Illinois Law Review, 201. P. B. Potter, ‘Legal Reform in China: Institutions, Culture, and Selective Adaptation’ (2004) 29(2) Law & Social Inquiry, 465, at 478. P.-H. Verdier and M. Versteeg, ‘Modes of Domestic Incorporation of International Law’ in W. Sandholtz and C. A. Whytock (eds.), Research Handbook on the Politics of International Law, 149–75 (Cheltenham: Edward Elgar, 2017), 164. Ibid., at 169–70.

73 https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

74

Chao Wang and Xin Xiang

In this regard, a comparative study of international law seeks to determine how international institutions may be formed and treaties may be drafted, as A. Roberts notes, in a way ‘more responsive to diversity within the international legal system’.7 Roberts also notes that ‘many of the concepts that international lawyers celebrate rest on universalist ideologies, such as human rights and the rule of law’, and this is explicitly and closely linked to national constitutions.8 This may involve an analysis of how international treaties should be applied and interpreted with a normative agenda to coordinate the tension between universalism and cultural relativism.9 From a broader perspective, the relationship between international law and national constitutional law may be examined and analysed through the lens of selective adaptation. With a focus on China’s ‘socialist rule of law’ and human rights, this chapter argues, first, that an analysis of China’s selective adaptation of international law helps us to understand the local interpretation and adaptation of international law through the lens of resonance between international law and the normative discourse in the Chinese Constitution. China’s treaty compliance with international law is a policy tool used to facilitate the country’s constitutionally proclaimed primary goals of economic development and political stability while maintaining the political structure of the party-state and its social control over the country. International considerations in the Chinese Constitution determine China’s engagement with the Western liberal norms of a free market and individual freedom in terms of economic globalization. China’s pragmatic approach to advocating for the country’s constitutionally proclaimed notion of the ‘Community of Shared Future for Mankind’ (CSFM)10 includes the possibility of pursuing a normative consensus with the West in terms of human security. The country seeks to identify common interests with the international community by tackling global problems. This chapter begins, in Section 4.2, with a textual analysis of the status of international law in the People’s Republic of China’s (PRC) Constitution. Section 4.3 provides an analytical overview of the international considerations contained in the Chinese Constitution. This is followed by an in-depth contextual analysis of the evolution of the Chinese Constitution in regard to international law, from a revolutionary state’s 1954 Constitution in the Mao era (Section 4.4) through a transitional state’s 1982 Constitution in the post-Mao era (Section 4.5) to the contemporary global power’s Constitution in Xi’s new era(Section 4.6). This new character is evinced by the most recent constitutional amendment of 2018, which suggests an effort on the part of the PRC’s party regime to pursue normative consensus with the international community. Section 4.7 concludes. 4.2 THE STANDING OF INTERNATIONAL LAW IN THE CHINESE CONSTITUTION: A TEXTUAL ANALYSIS

Under international law, normally it is up to the state to fulfil any international obligations that it undertakes in good faith through its domestic legal process.11 As long as the state delivers on its obligations, international law, unless otherwise provided, does not seem to require that they be

7 8 9

10 11

Roberts et al., ‘Comparative International Law’, supra note 2, at 473. A. Roberts, Is International Law International? (Oxford: Oxford University Press, 2017), 28. Ibid. See also B. Fassbender, ‘International Constitutional Law: Written or Unwritten?’ (2016) 15(3) Chinese Journal of International Law, 489. On the Community of Shared Future for Mankind, see Chapter 3 in this volume. Portions of this section are drawn from C. Wang and T. Shen, ‘Adaptation of International Law in the Chinese Constitution and Legal System: New Developments’ (2022) 21(2) Chinese Journal of International Law, 287–304.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

75

implemented in any particular way.12 That being said, however, owing to its important and unique position in a state’s legal system, a constitution is a fine instrument for defining the relationship between international law and national law. Many examples can be found in constitutions from around the world. As Triepel asserted in 1923, ‘international law is like a field marshal who can achieve his goals only if his generals issue orders to their subordinates’.13 In this metaphor, the ‘generals’ are states and the ‘orders’ are constitutions. The status of international law in the Chinese Constitution is an inherently complex matter in practice.14 In written constitutions, articles concerning treaties are usually found in three locations: the ‘general policy article’ in the preambular chapter, which usually clarifies the state’s fundamental foreign policy and sometimes goes further to touch upon its basic attitude to the treaty; the ‘legal standing article’ in the general principle chapter, which explains the status of international law in its legal system; and the ‘contracting capacity article’ in the specific chapter that delineates the capacity of relevant state organs to negotiate, conclude and ratify a treaty. Needless to say, not all of these articles can be found in a given state’s constitution. For the ‘general policy article’, the preamble of the Constitution provides that ‘China consistently carries out an independent foreign policy and adheres to the five principles of mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence in developing diplomatic relations and economic and cultural exchanges with other countries’. Although neither international law nor treaties are mentioned here, some scholars hold that this very part reflects China’s basic policy towards international law because the five principles of coexistence have already been accepted as general principles of international law.15 In the PRC’s current Constitution of 1982, three articles relate to treaties. The first is Article 67, which stipulates that ‘the Standing Committee of the National People’s Congress (NPC) exercises the following functions and powers: to decide on the ratification or abrogation of treaties and important agreements concluded with foreign states’.16 The second is Article 81, which states that ‘the President of the People’s Republic of China . . ., in pursuance of the decisions of the Standing Committee of the NPC, . . . ratifies or abrogates treaties and important agreements concluded with foreign states’.17 And the third is Article 89, which provides that ‘the State Council exercises the following functions and powers: . . . (9) to conduct foreign affairs and conclude treaties and agreements with foreign states’.18 12

13

14

15

16

17

18

H. Xue, Chinese Contemporary Perspectives on International Law: History, Culture and International Law (Leiden: Martinus Nijhoff, 2012), 122. H. Triepel, ‘Les rapports entre le droit interne et le droit international [The Relationship between Domestic Law and International Law]’ (1923) 1 Recueil des Cours de l’Acade´mie de Droit International [Collection of Courses of the Academy of International Law], 106. See also A. Cassese, ‘Modern Constitutions and International Law’ (1985) 3 Recueil des Cours de l’Acade´mie de Droit International, 342; G. Bartolini, ‘A Universal Approach to International Law in Contemporary Constitution: Does It Exist?’ (2014) 3(4) Cambridge Journal of International and Comparative Law, 1288. For existing literatures, see H. Xue and J. Qian, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8(2) Chinese Journal of International Law, 299–322. 程鹏 : “我国宪法中与国际法有关的主要问题”中外法学, 1987, 1 (1), 第46页 [P. Cheng, ‘The Main Issues on International Law in the Chinese Constitution’ (1987) 1 Guo Wai Fa Xue, 46]. PRC Constitution Art. 67(14). Art. 67(19) also provides that the Standing Committee of the NPC is ‘to decide, when the National People’s Congress is not in session, on the proclamation of a state of war in the event of an armed attack on the country or in fulfilment of international treaty obligations concerning common defence against aggression’. This sub-paragraph mentions ‘international treaty’ as well but has nothing to do with the capacity to conclude treaties. In both Arts. 67 and 81, ‘important agreements’ was added in the 1982 Constitution compared with the 1954, 1975 and 1978 constitutions. PRC Constitution Art. 89(9).

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

76

Chao Wang and Xin Xiang

The above clearly demonstrates that the 1982 Constitution has a contracting capacity article but lacks a legal standing article. A ‘contracting capacity article’ (缔约能力条款) refers to the authority with the capacity to contract, including the power to sign and ratify treaties; a ‘legal standing article’ defines the status of an international treaty in the domestic legal system, including whether it constitutes part of the legal system and its specific position in the legal system. A judge at the International Court of Justice since 29 June 2010 who has offered a number of insights into the Chinese Constitution’s lack of a legal standing article is H. Xue. In particular, she noted that ‘the current scope of treaties as prescribed under the Law on the Procedure of the Conclusion of Treaty is a bit too broad’ and, therefore, ‘if there should be a general clause on the treaty status in national laws, the scope of treaties has to be redefined in the first place’.19 As provided by the Law on the Procedure of the Conclusion of Treaty (LPCT), a treaty can be concluded at one of three levels, namely between states, between governments or between governmental departments. China has concluded more than 25,000 bilateral treaties,20 amassing possibly one of the largest treaty inventories in the world. Most of these bilateral treaties are between governmental departments focussing on technical or even trivial issues. Unsurprisingly, therefore, no general clause in the Chinese Constitution makes clear that all treaties, no matter in what name they are concluded, shall be incorporated into the Chinese legal system and even prevail over domestic laws. Although the 1982 Constitution lacks a legal standing article, some still argue that underlying elements on treaty status in the Chinese legal system can be perceived and captured within the texts of Articles 67, 81 and 89 of the Chinese Constitution. They argue that, in addition to treaty status, Articles 67 and 81 stipulate the functions and powers of the Standing Committee of the NPC on enacting laws, and Article 89 provides the functions and powers of the State Council on enacting regulations. Therefore, the treaty or agreement has equivalent status to a domestic law or regulation in the hierarchy of the Chinese legal system. Explicitly, a treaty or an important international agreement ratified by the Standing Committee of the NPC has equal status to law, and the treaty or agreement approved by the State Council has equal status to regulation. This proposition is often summarized as the ‘subject theory’.21 However, the so-called subject theory is only an academic inference based on reasoning and not in full conformity with practice; thus, it lacks persuasive eloquence. For example, the United Nations Convention on Contracts for the International Sale of Goods (CISG) was approved in 1986 by the State Council, instead of being ratified by the Standing Committee of the NPC. According to the subject theory, the CISG should be equal in status to regulations enacted by the State Council. However, in practice CISG prevails in case of any conflict with the Chinese Contract Law except for those provisions for which China has made reservations. Amongst the more than 500 treaties that China has joined,22 only some treaties23 were ratified by the Standing 19

20 21

22 23

H. Xue, Chinese Contemporary Perspectives on International Law Culture and International Law (The Hague: Hague Academy of International Law, 2012), 123. Department of Treaty and Law, Selected Compilation of Cases of International Law Practice of China (2018), p. 81. See H. Chen, W. Zhou and H. Jiang, ‘Relationship between International Law and Domestic Law and Practice of China’ (2000) 2 Tribune of Political Science and Law, 117. Department of Treaty and Law, supra note 20, p. 81. According to Art. 7 of the Law on the Procedure of Conclusion of Treaties, the Standing Committee of the NPC ratifies the following types of treaty: treaties of friendship and cooperation, treaties of peace and other treaties of a political nature; treaties and agreements concerning territory and delimitation of boundary lines; treaties and agreements relating to judicial assistance and extradition; treaties and agreements that contain stipulations inconsistent with the laws of the People’s Republic of China; treaties and agreements that are subject to ratification as agreed by the contracting parties; and other treaties and agreements subject to ratification.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

77

Committee of the NPC. Against this background, it would hardly be reasonable to conclude that only these kinds of treaties are treated as laws, whereas the remaining treaties are treated as regulations. From the general description offered above on how the PRC’s current Constitution engages with international law and deals with relevant issues on the ground, it may be gleaned that China’s practice is mixed and fragmented. First, as already mentioned, the 1982 Constitution made reference to treaties, albeit only by means of a ‘contracting capacity article’. To implement this article, the LPCT was formulated on 28 October 1990 by the Standing Committee of the NPC. The law is to apply to bilateral or multilateral treaties and agreements, and other instruments of the nature of a treaty or agreement concluded between China and foreign states. It includes comprehensive provisions on: contracting capacity, in whose name treaties are concluded, the procedure for negotiating and signing treaties, designation of delegates, ratification of treaties and important agreements, accession and acceptance of multilateral treaties, authentic texts, depositing and publication and registration of treaty texts. It is fair to say that China attaches importance to the procedure for concluding treaties. Nevertheless, that is not true of substantive matters regarding treaties,24 which are equally important, if not more. Because the 1982 Constitution lacks a legal standing article, the question arises as to how treaties can be adopted and implemented in a consistent and streamlined manner. That question remains to be solved. According to the PRC Constitution, the NPC Standing Committee is the permanent body of the NPC, which is the highest organ of state power.25 The State Council is the executive body of the highest organ of state power. It reports to the NPC or, when the NPC is not in session, to its Standing Committee.26 Further down, the State Council exercises unified leadership over the work of the ministries and commissions. Taking the above structure into account, one may ask whether treaties, especially bilateral ones, that are concluded under different names and subject to different procedures for entry into force are treated as being on the same footing, and how to deal with the possible discrepancies or conflicts between these treaties and the national laws of China. The Constitution is doubtless very well positioned to shed some light on this matter. The relationship between treaties and national law is a critical question that cannot be avoided in practice. For the time being, some laws, regulations or departmental rules of China do include provisions on solving the question. As seen earlier, these provisions have different degrees of formality, thus posing a challenge to the uniformity and the integrity of the legal system. The greater challenge is that most laws, regulations or departmental rules of China stay silent on the question, potentially leading to the circumvention of treaty obligations on the ground and eventually causing their selective adaption. It is not realistic or achievable from the legislative point of view to amend all of these laws, regulations or departmental rules and add articles to them one by one. Therefore, to have one general and principled article in the constitution is a relatively feasible and cost-effective way forward. Finally, as to customary international law, there is no provision in the 1982 Constitution that includes such terms as ‘customary international law’, ‘international customs’ (guo ji guan li), ‘general principle of international law’ or ‘generally accepted principle of international law’. 24

25 26

It was suggested that the Law on the Procedure of the Conclusion of Treaties should be amended to add provisions on substantive matters, including how to deal with the relationship between treaty and national laws. See G. Jiang, ‘I ss ues on the Stat us of T rea ty in Chi na’ s Legal Regi me’ , www .csil.cn/Artical/Detail.aspx? AId=11&CId=1&Type=artical. Art. 57 of the 1982 Constitution. Arts. 85 and 92 of the 1982 Constitution.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

78

Chao Wang and Xin Xiang

Given that customary international law is an important part of international law, it should be taken into consideration together with treaties when dealing with the relationship between international law and national law. As demonstrated and analysed already, even though Chinese laws, regulations and departmental rules do not use the phrase ‘customary international law’, preferring ‘international practice’ instead, customary international law is sometimes acknowledged as being part of the Chinese legal system and can be applied, for example, in terms of diplomatic protection, innocent passage of foreign civilian ships and so on. Therefore, there are solid grounds for considering that the Chinese Constitution gives a general indication in one direction or another on customary international law. As a matter of fact, most states with written constitutions have included one or more clauses in their constitutions regarding the legal standing of international law. China is the only one not to do so among the UN Security Council members with written constitutions. However, the 2018 amendment did not accommodate this suggestion and is silent on this issue. Rather, the 2018 amendment reveals transformations in China’s foreign policy and the country’s newest stance towards the international regime, which will be discussed later in this chapter. 4.3 AN OVERVIEW OF THE EVOLUTION OF INTERNATIONAL CONSIDERATIONS IN THE CHINESE CONSTITUTION

The Constitution of the PRC directly reflects the normative discourse and political ideology of the Chinese Communist Party (CCP).27 International considerations in the Chinese Constitution concern the content and the effect of international law as perceived by the partystate. In reference to the vast differences between international and Chinese national approaches to constitutional basics, it has been said that ‘it is questionable whether global constitutionalism would be able to accommodate the politics and forms of constitutional practice in China’.28 Whether international rules and norms conflict with the official normative discourse as set out in the Chinese Constitution determines how they are selectively adapted into the local context. China’s compliance with international law depends on the dynamics of selective adaptation in the context of local norms, including the party ideology and the normative discourse that underlie the Chinese Constitution.29 Selective adaptation provides a unique perspective on how the rules of international law are locally contextualized in China and how the normative discourse of the Chinese Constitution leads to different perceptions of the norms and values underpinning international law.30 The Chinese Constitutions during the Mao era were preoccupied with defining China’s stance on international politics and international relations in terms of national sovereignty and territorial integrity in the international community. The post–Mao era Constitution enshrines the primacy of economic development and political stability and thus marks a significant shift towards pragmatism. This move was greatly facilitated by the policy of ‘reform and opening up’ that began in late 1978 and progressed into the current Constitution of 1982. This policy has 27

28

29 30

See, for example, R. Peerenboom, China’s Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002). A. Peters, T. Suami, D. Vanoverbeke and M. Kumm, ‘Global Constitutionalism from European and East Asian Perspectives: An Introduction’ in T. Suami, A. Peters, D. Vanoverbeke and M. Kumm (eds.), Global Constitutionalism from European and East Asian Perspectives, 1–26 (Cambridge: Cambridge University Press, 2018), 16. See P. B. Potter, Assessing Treaty Performance in China: Trade and Human Rights (Vancouver: UBC Press, 2014). See P. B. Potter and L. Biukovic´ (eds.), Globalization and Local Adaptation in International Trade Law (Vancouver: UBC Press, 2011).

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

79

become the golden thread that runs through all five constitutional amendments to that Constitution.31 ‘Reform and opening up’ refers to changing the existing political and economic system by learning from the West and participating in the international system. It is prescribed in the Constitution as a fundamental principle of the country that serves the ultimate political agenda of maintaining the leadership of the Communist Party. Economic pragmatism, which is a key feature of the Chinese Constitution, is a major driving force in China’s participation in the international system; this is well illustrated by China’s accession to the World Trade Organization (WTO) and its integration into the international economic legal system.32 The WTO is commonly seen as built on the norms of liberalism, marked by Western liberal traditions and the principles of transparency, rule of law and non-discrimination.33 In fact, China’s WTO membership and treaty commitments have also facilitated its participation in the international human rights regime, as discussed in Section 4.5.1. The adaptation of international law in China can be described as following a pattern of selective adaptation where such adaptation serves as ‘a coping strategy to balance local needs against the requirement for compliance with external rules’.34 In terms of sharing rules of international practice with a country, what is more important is that the country endeavours to share in the ‘normative order underlying those rules’.35 China is not merely a passive recipient of legal norms and practices from outside its borders; it also endeavours to export Chinese values to the international community and thereby evolve the normative consensus between local and nonlocal norms in global governance and international relations. This effort is evident in the country’s most recent normative discourse relating to the CSFM, which was incorporated into the Constitution of the PRC in 2018 and advocated internationally.36 The concept of a community with a shared future is indicative of China’s pragmatic approach to convincing the international community of its focus on global issues and challenges that are of interest to the international community as a whole rather than debating political ideology and human rights issues. 4.4 A REVOLUTIONARY STATE’S CONSTITUTION AND INTERNATIONAL LAW: PEACEFUL COEXISTENCE AND NON-INTERFERENCE AS THE BASELINE

The constitutional tackling of international considerations in the PRC began with the Common Program of the Chinese People’s Political Consultative Conference, which served as the interim Constitution of the PRC from 1949 to 1954.37 The 1954 Constitution is a good 31

32

33 34 35

36

37

See E. F. Vogel, Deng Xiaoping and the Transformation of China (Cambridge, MA: Belknap Press, 2011), especially ch. 7, ‘Three Turning Points, 1978’, and ch. 16, ‘Accelerating Economic Growth and Opening, 1982–1989’. See also P. B. Potter, ‘China and the International Legal System: Challenges of Participation’ (2007) 191 China Quarterly, 699. L. Branstetter and N. R. Lardy, ‘China’s Embrace of Globalization’ in L. Brandt and T. Rawski (eds.), China’s Great Economic Transformation, 633–82 (Cambridge: Cambridge University Press, 2008). On international trade law, see Chapter 20 in this volume. Potter and Biukovic´, Globalization and Local Adaptation, supra note 30, at 285. L. Biukovic´, ‘Compliance with International Treaties: Selective Adaptation Analysis’ (2007) 44 Canadian Yearbook of International Law/Annuaire Canadien De Droit International, 451, at 453, https://doi.org/10.1017 /S0069005800009097. C. Cai, The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (New York: Oxford University Press, 2019), 93. The ‘Community of Shared Future for Mankind’ was also known as the ‘Community of Common Destiny’. See also J. Mardell, ‘The “Community of Common Destiny” in Xi Jinping’s New Era: Building a “Community of Common Destiny” Is the Motivating Force Behind China’s Future Foreign Policy’, Diplomat (25 October 2017), thediplomat.com/2017/10/the-community-of-common-destiny-in-xi-jinpings-new-era/. M. de Serpa Soares, ‘Keynote Speech at the International Colloquium on the Five Principles of Peaceful Co-existence and the Development of International Law’ (2014) 3 Chinese Journal of International Law, 481.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

80

Chao Wang and Xin Xiang

example of selective adaptation of the non-local Marxist Leninist ideology featured in the 1936 Stalin Constitution of the Union of Soviet Socialist Republics (USSR).38 Communist ideology was enshrined as the fundamental principle guiding China, drawing inspiration from the constitutions of the PRC’s friendly communist nations. However, the accommodation in the 1954 Constitution of the civil and private property rights enumerated in the Common Program of 1949 suggests a China-specific, gradual and moderate approach in Soviet-style reforms.39 Such an approach is also evident in the land reform initiative and promotion of cooperation between state and private capital.40 The principle of national sovereignty is a cornerstone of the 1954 Constitution, which was designed to ‘strive for the noble cause of world peace and the progress of humanity and to maintain relations with all countries based on the principle of equality, mutual benefit and mutual respect for each other’s sovereignty and territorial integrity’.41 This reflects China’s stance in the international arena and its attitude towards the international legal order. During the Mao era, China was preoccupied with formal concerns such as the legitimacy and legal status of the PRC in the international community, including UN membership and state succession issues. In this regard, China’s engagement with international law was highly critical and sceptical.42 Although the Chinese government attached particular importance to international recognition and UN membership and hoped to develop diplomatic and trade relations not only with friendly socialist nations and third world countries in Asia, Africa and Latin America but also with Western capitalist countries, the communist regime was opposed to the reception of the international legal order founded on capitalist and imperialist ideology.43 According to Marxist communist ideology, the world is divided into friendly socialist nations and Western enemies, and the latter have a persistent political agenda of subverting communist regimes such as China. The universally acclaimed principles of ‘equality, mutual benefit and mutual respect for each other’s sovereignty and territorial integrity’ thus formed the foundation of China’s approach to international relations, particularly those with its neighbouring countries. The territorial negotiations with Myanmar and India of the early 1950s were a starting point for the PRC’s participation in a wide range of trade and diplomatic treaty relations throughout that decade.44 The PRC’s international relationships rested on the Five Principles of Peaceful Coexistence: mutual respect for sovereignty and territorial integrity; non-aggression; non-interference in each other’s internal affairs; equality and 38

39

40

41

42 43 44

J. Mo, ‘The Constitutional Law of the People’s Republic of China and Its Development’ (2009) 23(1) Columbia Journal of Asian Law, 137–84, at 141, https://doi.org/10.7916/cjal.v23i1.3287. G. D. Tiffert, ‘Epistrophy: Chinese Constitutionalism and the 1950s’ in M. Dowdle and S. Balme (eds.), Building Constitutionalism in China, 59–76 (New York: Palgrave Macmillan, 2009), 65. In order to craft a comparatively progressive constitution, inspiration was drawn from a number of other constitutions including the 1918 Russian Soviet Federated Socialist Republic Constitution, the 1946 French Constitution and the constitutions of Romania, Poland, East Germany and Czechoslovakia. See Tiffert, ‘Epistrophy’, supra note 39, at 65. The Preface of the 1954 Constitution of the People’s Republic of China, para. 3. This is in accordance with similar features in the Common Program of 1949, which provided that the PRC would negotiate to establish diplomatic relations with foreign governments that adopt a friendly attitude towards the PRC, ‘on the basis of equality, mutual benefit and mutual respect for territory and sovereignty’. These features in the 1949 Common Program may be traced to a declaration made by Mao Zedong before the founding of the PRC that the Chinese government would establish diplomatic relations with other countries based on the principles of equality, mutual benefit, mutual respect for sovereignty, and territorial integrity. See Common Program Art. 56. P. B. Potter, China’s Legal System (London: Routledge, 2013), 169. Ibid. Agreement on Trade and Intercourse between Tibet Region of China and India, treaties.un.org/doc/publication/ unts/volume%20299/v299.pdf. See also Y. Liu, ‘The historical background for the initiation of five principles of peaceful co-existence’, www.mumbai.china-consulate.org/chn/zt/zlsjh/t1160776.htm.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

81

mutual benefit; and peaceful coexistence.45 These principles formed the foundation of China’s relations with India and Myanmar, which culminated in the signing of a series of bilateral agreements.46 Key features of the Five Principles, namely, ‘equality, mutual benefit and mutual respect for each other’s sovereignty and territorial integrity’, were included in the 1954 Constitution.47 The Five Principles were also formally incorporated into a multilateral legal document and were explained in detail and elaborated upon by Zhou Enlai at the 1955 Asian–African Conference of Bandung.48 They were consequently included in the Ten Principles of Bandung enunciated in the conference’s Final Communique´ and have since been incorporated into a number of important multilateral international legal instruments.49 From a historical perspective, the Five Principles played an important role in the post–World War II era50 and remain relevant, with implications for the ‘discussion on where we are currently and where we might be going in the future’.51 The political agenda behind China’s promotion of the Five Principles is twofold. First, it is a defensive approach to resisting foreign interference in China’s internal affairs. Second, it steers the country clear of complex issues in highly confrontational areas, such as the conflicts in the Middle East.52 In the ideologically oriented foreign policy of the Mao era, the Five Principles were recognized as an exceptional example of pragmatism, and they continue to guide China’s foreign policymaking.53 45

46

47

48

49

50 51 52

53

L. T. Lee, ‘Treaty Relations of the People’s Republic of China: A Study of Compliance’ (1967) 116 University of Pennsylvania Law Review, 244. See also J. A. Cohen and H. Chiu, People’s China and International Law (Vol. 2) (Princeton, NJ: Princeton University Press, 1974); de Serpa Soares, ‘Keynote Speech’, supra note 37, at 482; A. Kent, Beyond Compliance: China, International Organizations, and Global Security (Stanford, CA: Stanford University Press, 2007). The Five Principles were first presented by Premier Zhou Enlai in late 1953 during the course of China’s negotiations with India; this led to the signing of the Agreement on Trade and Intercourse between Tibet Region of China and India in 1954, which formally incorporated the Five Principles of Peaceful Coexistence. In 1954, the Five Principles also led to the conclusion of the Agreement on the Border and Issues between Myanmar and China, and the Treaty of Friendship and Mutual Non-Aggression between China and Myanmar in 1960. The signing of the Agreement on Trade and Intercourse between Tibet Region of China and India on 29 April 1954 in Beijing and the Joint Declaration between China and Myanmar on 29 June 1954 may be seen as the occasions on which the Five Principles of Peaceful Coexistence were first formally recognized. See also the UN Treaty Series, vol. 299 (1958), treaties.un.org/doc/publication/unts/volume%20299/v299.pdf. Although the exact wording of the Five Principles of Peaceful Coexistence was not used until the enactment of the 1982 Constitution of the PRC, the essential meaning of the Five Principles was articulated in the 1954 Constitution. See the Preface of the 1954 Constitution, para. 3. Z. Liu, ‘Following the Five Principles of Peaceful Coexistence and Jointly Building a Community of Common Destiny’ (2014) 13(3) Chinese Journal of International Law, 477, https://doi.org/10.1093/chinesejil/jmu023. See also Yee, ‘The International Law of Co-progressiveness’, supra note 1, at 486. See, for example, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations and the 1974 Charter of Economic Rights and Duties of States. Yee, ‘The International Law of Co-progressiveness’, supra note 1, at 486. De Serpa Soares, ‘Keynote Speech’, supra note 37, at 482. K. Brown, ‘Is China’s Non-interference Policy Sustainable?’, BBC News (17 September 2013), www.bbc.com/news/worldasia-china-24100629. The 1954 Constitution recognized right of asylum in the PRC of foreign nationals persecuted for ‘supporting a just cause [and] taking part in the movement for peace or engaging in scientific activity’, but it did not enshrine ‘proletariat internationalism’ as is seen in other communist constitutions, such as the Constitution of the Republic of Cuba, of which Article 12 states that ‘the Republic of Cuba adopts anti-imperialist and internationalist principles’. See S. A. Blue, ‘Cuban Medical Internationalism: Domestic and International Impacts’ (2020) 9(1) Journal of Latin American Geography, 31, www.jstor.org/stable/25765283. An example of Cuba’s ‘proletariat internationalism’ is the country’s renowned ‘medical internationalism’. See, for example, J. M. Kirk and H. M. Erisman, ‘Toward an Understanding of Cuban Medical Internationalism’ in Cuban Medical Internationalism: Studies of the Americas, 169–89 (New York: Palgrave Macmillan, 2009). Some Chinese scholars have debated whether China should still adhere to these principles, especially noninterference in the internal affairs of other countries. See, for example, C. Zheng, ‘China Debates the Non-interference Principle’ (2016) 9(3) Chinese Journal of International Politics, 349, https://doi.org/10.1093/cjip/ pow010.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

82

Chao Wang and Xin Xiang

The Five Principles emerged almost seven decades ago, just after the establishment of the PRC, and tie in to a long-standing debate on the very purpose and intrinsic value of international law, namely, whether international law should follow the tradition of the Treaty of Westphalia (1648) to be regime-neutral with an emphasis on state sovereignty and non-interference in internal affairs or take a more interventionist approach to pursue individual rights and human dignity. This debate is reflected in two competing concepts laid down in the UN Charter: protection of human rights (Art. 1.3) and state-centred principles of territorial integrity, sovereign equality and non-interference in internal affairs (Art. 2).54 Although a regime-neutral approach with an emphasis on state sovereignty and coexistence reflects the purpose of international law from its early stage, the principle of protection of human dignity as an intrinsic value of international law requires international cooperation based on a common understanding of the well-being of human beings, both individually and collectively. As regards China, it is useful to examine how international normative values are perceived and adapted locally in light of the communist regime’s political ideology as embedded in the Chinese Constitution. The two constitutions that followed the 1954 Constitution in 1975 and 1978 were deeply influenced by ‘the extreme leftist sentiments of the Cultural Revolution, which promoted a revolutionary ideology of proletarian dictatorship and are not even comparable to any basic principles of modern constitutionalism’.55 During the Cultural Revolution, the legal system was one of the major targets of deliberate attack by radicals. Legal institutions, including police and the courts, were attacked and dismantled, law schools were closed and legal professionals were persecuted, resulting in virtual destruction of the entire legal system. The two constitutions did not address international considerations in any meaningful or constructive way despite the PRC’s emerging international legal status during that period. Although the 1975 Constitution was a setback in China’s constitutional development, this development gained new momentum under Deng Xiaoping. 4.5 A TRANSITIONAL STATE’S CONSTITUTION OF 1982 AND INTERNATIONAL LAW: RULE OF LAW AND HUMAN RIGHTS AS A PARADIGM OF SELECTIVE ADAPTATION

Deng Xiaoping’s integrative reforms in China, known as ‘reform and openness’, began soon after the end of the Cultural Revolution in late 1978 and ushered in a new era of engagement with the international community. According to Deng, the dominance of the CCP rested wholly on its ability to sustain economic growth that would generate individual income and promote social welfare. Deng looked to the West in his quest to rebuild and modernize the country within ideological limits to secure the survival of the communist regime.56 Emphasizing that the major issue that China faced was not class struggle but economic growth, Deng shifted China’s policy focus to ‘socialist modernization’, a notion that found its way into the Preamble of the 1982 Constitution.57 In the preliminary period of reform and openness, modernization was linked mainly to economic development.58 Following the Third Plenary Session of the Eleventh Central Committee of the CPC in 1978, the Maoist orthodoxy was repudiated and economic development replaced class struggle as the main focus of the Communist Party. In this reform, the Constitution and the legal system were 54 55 56 57

58

G. Oberlietner, ‘Human Security: A Challenge to International Law’ (2005) 11 Global Governance, 185. Mo, ‘The Constitutional Law’, supra note 38, at 139. Peerenboom, China’s Long March, supra note 27, at 55. The Preamble of the 1982 Constitution of the People’s Republic of China, para. 7, states that ‘the basic task of the nation in the years to come is to concentrate its effort on socialist modernization’. Ibid.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

83

viewed as the engine needed to institutionalize policy and regulate the market economy, and both the 1982 Constitution and the post–Mao era legal system aimed to harmonize two fundamental goals: the party-state’s monopoly of power and economic development.59 Deng appreciated that economic development depended on attracting foreign investment, creating a free market economy and adopting other wealth-creating policy measures. To attract international investment and establish a market economy, the Constitution needed to protect the sanctity of contract and property rights.60 Compared to that of the Mao era, the attitude of China’s Constitution towards international law in Deng’s era of ‘reform and openness’ also significantly changed to sustain economic growth for the purpose of securing the survival of the communist regime. The 1982 Constitution and several new laws drew upon the Chinese and international experiences and also the constitutional practices of other countries, whether socialist or capitalist, European or Anglo-American.61 Although China was willing to look outside the socialist bloc for new ideas, it was willing to receive guidance from the wider spectrum of nations only to the extent that these new ideas tended to preserve ‘the essence of China’s traditions’.62 The 1982 Constitution and the subsequent amendments brought economic and social changes in terms of the market economy and the private business sectors (1988, 1993 and 1999 amendments), adopting socialist rule of law (1999 amendment) and incorporating terms of human rights protections (2004) while retaining the political legitimacy of socialism. The affirmation of Deng’s ‘socialism with Chinese characteristics’ in the constitutional amendment of 1999 enabled China to borrow Western liberal and capitalist means while remaining true to certain core principles of communist and socialist political ideologies.63 Doing so involved selective adaptation of the Western idea of constitutionalism, especially in terms of the ‘socialist rule of law’ and human rights. This selective adaptation may involve the reconstruction of some features and functions of international law in light of its interplay with national constitutions to complement and reinforce universalist and constitutionalist norms, ‘notably the rule of law, human rights and democracy in nations states’.64 Moreover, the idea of rule of law not only is a pillar of constitutionalism but also serves as a guarantee for the local implementation and enforcement of international treaties. 4.5.1 Importing Values and Selective Adaptation: ‘Socialist Constitutionalism’ and ‘Socialist Rule of Law’ in the Chinese Context In the historical context of China’s 1982 Constitution, particularly given the experiences of the Mao era and the Cultural Revolution, law and order were crucial for both political stability and economic development. Relying on law as a policy tool to facilitate economic 59 60

61

62 63

64

Ibid. For example, Art. 18 of the 1982 Constitution of the PRC permits foreign investments and encourages joint economic activities with Chinese economic entities, and it guarantees that their lawful rights and interests are protected by Chinese law. Art. 13 of the constitution was amended in 2004 to provide that ‘[c]itizens’ lawful private property is inviolable. The State, in accordance with law, protects the rights of citizens to private property and to its inheritance.’ J. Chen, ‘The Transformation of Chinese Law: From Formal to Substantial’ (2007) 37(2) Hong Kong Law Journal, 689, https://dx.doi.org/10.2139/ssrn.2752224. A systematic study of the constitutions of thirty-five countries was reportedly carried out. Potter, China’s Legal System, supra note 42, at 31. Deng was reported to have stated that ‘reforms and greater openness are China’s only way out’ and that ‘if capitalism has something good, then socialism should bring it over and use it’. Chen, ‘The Transformation of Chinese Law’, supra note 61. Peters et al., ‘Global Constitutionalism’, supra note 28, at 5–6.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

84

Chao Wang and Xin Xiang

development, China enacted a series of economic regulations during that time as well.65 The CCP’s perception of law as a policy instrument positions the term ‘socialist rule of law’ as a perfect example of selective adaptation. The socialist rule of law is enshrined in the Constitution through the 1999 Constitutional Amendment: ‘The People’s Republic of China governs the country according to law and makes it a socialist country under rule of law.’66 The socialist rule of law selectively adapts certain ideas underlying the Western concept of the rule of law and uses such legal terminology to articulate and enforce the orders of the party-state.67 It differs drastically from the Western idea of rule of law, which ‘emanates from philosophical ideals, fear of oppressive government, and the need to limit the exercise of popular democracy’.68 China has embraced Western ideologies, including the rule of law, to the extent that doing so facilitates the goal of economic development and the survival of the party-state regime. As Randall Peerenboom argues, ‘one of the main motivating forces behind China’s turn toward rule of law has been the belief that legal reforms are necessary for economic development’.69 The socialist rule of law in China is an example of how the Western liberal norms of the rule of law are locally adapted.70 Instead of the independent institution envisaged by the Western concept of the rule of law, the Chinese judiciary is a branch of the Communist Party that facilitates the daily operation of the country. In contrast to the Western liberal model, where protection of individual rights is the core value, in China the primary objective of the judiciary is to support the party regime in its quest for political stability and economic development, and the protection of rights through adjudication is only a secondary objective.71 4.5.2 Human Rights Protection in China: Issues and Context Some basic human rights protections were included in the 1982 Constitution as a result of the lessons learnt from the massive human rights violations of the Cultural Revolution.72 The Cultural Revolution, led by Mao Zedong, was the darkest period in the history of the PRC, marked by the purge of the so-called counter-revolutionaries, including ‘revisionists’ and ‘capitalist roaders in the party’. Many senior party leaders in the post–Mao era, victims of persecution during the Cultural Revolution, became powerful voices demanding that basic protections and respect for human dignity be incorporated into the Constitution as necessary for the restoration of political and social order. However, these provisions of the Chinese Constitution are very general and basic, and legislation and government action remain beyond the reach of judicial review.

65

66 67

68

69 70 71

72

This newly enacted legislation includes the 1982 Constitution of the PRC, joint venture law, criminal law, law on criminal procedure, laws on organization of local people’s congresses, people’s courts and public procuracies, economic contract law, trademark law, civil procedure law, laws on joint venture taxation, special economic zones, labour relations, and foreign exchange laws, among others. The 1999 amendment to the 1982 Constitution of the PRC, Art. 5. See, generally, P. B. Potter, Exporting Virtue? China’s International Human Rights Activism in the Age of Xi Jinping (Vancouver: UBC Press, 2020). M. U. Killion, ‘China’s Amended Constitution: Quest for Liberty and Independent Judicial Review’ (2005) 4 Washington University Global Studies Law Review, 60. Peerenboom, China’s Long March, supra note 27, at 450. On Chinese and Western perspectives on the rule of law, see Chapter 5 in this volume. The State Council Information Office of the PRC, ‘New progress in the judicial protection of human rights in China’, September 2016. The 1982 Constitution of the PRC, Ch. 2, Arts. 33–50.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

85

According to the United Nations’ Universal Declaration of Human Rights (UDHR), all human beings are entitled to fundamental rights and freedoms.73 These rights have been discussed extensively as pertain to China in light of international requirements, including freedom of expression (UDHR Art. 19; International Covenant on Civil and Political Rights (ICCPR) Art. 19), in particular suppression of freedom of communication and expression; property rights (UDHR Art. 17) as regards lawful violation of housing rights in land expropriation and rural and urban development; labour rights (UDHR Arts. 23–4; ICCPR Art. 8.3(a); International Covenant on Economic, Social and Cultural Rights (ICESCR) Arts. 6–8) in terms of working conditions and trade unions; the right to political participation (UDHR Arts. 20–1; ICCPR Arts. 21, 22 and 25) in terms of single-party rule and universal suffrage; criminal justice (UDHR Art. 11; ICCPR Arts. 7, 9, 10 and 14) such as criminal processes for political purposes and the torture and abuse of criminal suspects; freedom of religion; and minority rights (UDHR Art. 18; ICCPR Art. 18). The foregoing specific issues have been discussed intensively and extensively by scholars (such as those referred to in this chapter), international organizations and human rights non-governmental organizations, and it is not the purpose of this chapter to provide further details on them.74 Nevertheless, it may be useful to examine the political considerations behind the CCP’s strengthened political control and dominance in recent years under which human rights and the rule of law in China have, according to some of the referred commentators, suffered. China’s emphasis on the right to subsistence and development is a defining feature of the party regime’s selective adaptation of international human rights law. The CCP’s human rights discourse stresses that the right to development and the right to subsistence are fundamental to the realization of all other rights. This stance in its interpretation of international human rights standards dominated the resolutions of the Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights (Bangkok Declaration), which provides that ‘state governments should be free to give development goals priority over other human rights policies. The recognition and enforcement of human rights generally should be controlled by local governments free from outside scrutiny.’75 However, the Vienna Declaration and Programme of Action (Vienna Declaration) clearly provides that development as a collective interest may not be used to justify derogations of treaty commitment on individual rights.76 China’s treaty performance on human rights has centred on striking a balance between individual rights, and more collective interests such as public safety, social stability and political order.77 4.6 A GLOBAL POWER’S CONSTITUTION AND INTERNATIONAL LAW: PURSUING NORMATIVE CONSENSUS OR EXPORTING VIRTUE?

China’s most recent constitutional amendment of 2018 merits an in-depth examination and interpretation to understand the country’s newest stance in the domestic arena and towards the international legal order. 73 74 75

76

77

UDHR, 1948, Art. 1. On human rights, see Chapter 13 in this volume. General Assembly of the United Nations, ‘Final declaration of the regional meeting for Asia of the World Conference on Human Rights’ (Bangkok Declaration), 2 April 1993, daccess-ods.un.org/access.nsf/Get? OpenAgent&DS=A/CONF.157/ASRM/8&Lang=E. China’s stance on the priority of a ‘right to development’ and a ‘right to subsistence’ dominated the resolutions of the Bangkok Declaration, which can be contrasted with the content of the Vienna Declaration and Programme of Action, UN Doc. A/Conf/157/23 (12 July 1993), www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx. See, generally, Potter, ‘Legal Reform in China’, supra note 4, at 478. See also T. C. Chen and D. Chen (eds.), International Engagement in China’s Human Rights (London: Routledge, 2015).

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

86

Chao Wang and Xin Xiang

After the 2018 Constitutional Amendment, as set forth in paragraph 12 of the Preamble, the Constitution states its international considerations as follows: China’s achievements in revolution, construction, and reform are inseparable from the support of the people of the world. The future of China is closely linked to the future of the world. China adheres to an independent foreign policy, adheres to the five principles of mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence, adheres to a path of peaceful development, and adheres to a mutually beneficial strategy of opening up in developing diplomatic relations and economic and cultural exchanges with other countries and in working to build a community with a shared future for mankind; and consistently opposes imperialism, hegemonism, and colonialism, works to strengthen unity with the people of other countries, supports the oppressed nations and the developing countries in their just struggle to win and preserve national independence and develop their national economies, and strives to safeguard world peace and promote the cause of human progress.78

The 2018 revisions include two major changes to international policy from the 2004 version of the Constitution. First, the 2018 version adds two new foreign policy principles: adherence to ‘a path of peaceful development’ and adherence to ‘a mutually beneficial strategy of opening up’. Second and more notable is the inclusion of the new foreign policy goal of creating the CSFM. Whereas the mention of ‘peaceful development’ reveals China’s intention to address the outside world’s scepticism over China’s ambition of dominance in the world, the phrase ‘mutually beneficial strategy of opening up’ reflects pragmatism in economic and political dimensions. The terms ‘path of peaceful development’ and ‘mutually beneficial strategy of opening up’ constitute something more than propaganda: for China, they serve as major strategies towards the ultimate goal of building a community of a shared future for mankind, which was officially incorporated into the revised CCP Charter in 2017 and into the PRC Constitution in the 2018 amendment. The sentiment signals a milestone in the party-state’s political discourse on international participation and its worldview. Despite its silence on the position of international law in China’s domestic legal system, China’s constitutional amendment of 2018 nevertheless indicates China’s new political discourse on international participation and its worldview. On the other hand, a most recent notable development after the 2018 Constitutional amendment is the pronouncement of the concept of ‘foreign related rule of law’ that was first explained by Xi Jinping in terms of ‘taking a coordinated approach to promoting the rule of law at home and in matters involving foreign parties, demanding efforts to better safeguard national sovereignty, security and development interests’.79 However, the term ‘foreign related rule of law’ is more concerned with the adaptation and application of Chinese law in foreign jurisdictions than with the adaptation of international law in China’s domestic legal system. An exploration on the 2018 amendment may reveal transformations in China’s foreign policy and international law in terms of pragmatism and normative consensus in the contemporary world. Through an in-depth discussion of the amendment’s implications from different perspectives, this chapter argues that the dynamics of selective adaptation and exporting virtue are taking place concurrently in Xi’s new era.

78 79

Preamble of the PRC Constitution, para. 12. J. Xi, address at the central conference on work related to overall law-based governance, Beijing, 16 November 2020, http://english.www.gov.cn/news/topnews/202011/17/content_WS5fb3d2fdc6d0f725769400b3.html.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

87

4.6.1 A ‘Community of Shared Future for Mankind’ in the Chinese Constitution: A Textual and Contextual Analysis In the 2018 Constitutional amendment, the phrase ‘building a community of shared future for mankind’ was added to paragraph 7 of the Preamble to the Constitution.80 Although the concept of a ‘community of shared future’ can be argued from a critical perspective as being a banner term and empty propaganda,81 it has an important meaning and implications in a country that deeply believes in ideology that can be implemented. A ‘community of shared future’ is an embodiment of idealist rhetoric and a proclamation on the future of international relations and international law. From a realistic point of view, the sentiment may be better posed as an ideal rather than a solution to the real-world challenges caused by cultural conflicts and clashes of civilizations.82 From a realistic perspective, the concept of the CSFM has become ‘a catchall category for the country’s regional and broader global engagement’. It is suggestive of China’s desire to adapt its official normative discourse to the international community to seek a normative consensus in global governance. The realistic perspective on the foreign policy implications of China’s notion of the CSFM invites discussions in terms of self-interest and community interest. As a development of Deng’s strategy of economic primacy with its low-profile strategy in international relations during the past forty years, China’s foreign policy in the Xi era will further its expanded participation in international relations to project its political and economic power.83 Since Xi’s new era began in 2012, China’s assertive new foreign policy initiatives,84 such as the founding of the Asian Infrastructure Investment Bank and the Belt and Road Initiative, are more than moves towards the ultimate goal of a ‘community of shared future’; they suggest a strategy of buying power in pursuit of China’s economic and security interests.85 These initiatives demonstrate that the country is transforming from a passive recipient to a maker of international law. Both the ‘Beijing Consensus’ of a state-centred authoritarian development model86 and the term CSFM reveal China’s efforts at ‘increasing power to influence events and policies internationally’ from economic development to political relations.87 According to Potter, this can be described as ‘exporting virtues’ to defend its human rights performance.88 Aside from closer engagement with international trade and investment systems, China also pursued expanded human rights diplomacy, attempting to influence international substantive discourses on human rights and to deflect attention away from its own human rights abuses. China also expanded its international political and diplomatic activities, participating more fully in UN agencies on health, labour, and arms control and in crisis management in the Middle East and Central Europe.89 80 81

82

83 84

85 86

87 88 89

Preamble of the Constitution of the PRC, para. 7. J. Zeng, ‘Slogan of “Community of Shared Future for Mankind”’ in Slogan Politics: Critical Studies of the AsiaPacific, 111–30 (Singapore: Palgrave Macmillan, 2020). See, generally, S. P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon & Schuster, 2011). Potter, ‘Legal Reform in China’, supra note 4. X. Zhao, ‘In Pursuit of a Community of Shared Future: China’s Global Activism in Perspective’ (2018) 4(1) China Quarterly of International Strategic Studies, 23–37. On the BRI, see Chapter 2 in this volume. J. R. Cooper, The Beijing Consensus (London: Foreign Policy Centre, 2004). See also M. Elen, ‘Joshua Cooper Ramo on the Beijing Consensus in the Age of Networks’, Diplomat (10 August 2016), thediplomat.com/2016/08/ interview-joshua-cooper-ramo/. Potter, supra note 42, at 185–7. See, generally, Potter, Exporting Virtue?, supra note 67. Potter, China’s Legal System, supra note 42, at 185–7.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

88

Chao Wang and Xin Xiang

This coincides with Ginsburg’s argument regarding what this author terms ‘authoritarian international law’. According to this author’s view, authoritarian states are trying to export its authoritarian norms to the international arena to facilitate and justify their own internal repression. He contends that its purposes ‘are not inherently driven to extend autocratic form, but act defensively to resist democracy promotion and to shore up particular allies. But in an increasingly interdependent world, such defensive action requires more active cooperation, which law can facilitate’.90 Other examples of Chinese influence on international law include China’s stance in the International Court of Justice (ICJ) on the occasion of the advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. China’s position on this issue reveals its perception of how authoritative statements on international law, such as those contained in ICJ advisory opinions, may inform the handling of its territorial integrity issues, including in the case of Taiwan.91 4.6.2 Human Security as a Normative Consensus The concept of the CSFM as a foreign policy discourse that evolved from the Five Principles of Peaceful Coexistence in 1954 suggests China’s view of humanity’s interdependence and coexistence in today’s world. There is no doubt that the introduction of this concept may also serve the political agenda of circumventing its human rights obligations or distracting attention from its human rights treaty compliance by emphasizing the collective interests of humankind. This concept seems to search for common interest among the international community in tackling global problems. Parallels may be traced between the CSFM and late judge Antoˆnio Augusto Canc¸ado Trindade’s ‘Concept of Common Concern of Mankind’ as an approach to addressing the challenges facing humankind today.92 The discourse of CSFM may be examined by reference to the concept of human security and its relationship with human rights. The concept of ‘human security’ was first introduced in the 1990s by the United Nations Development Programme (UNDP) to address new threats and risks to human beings. It is defined as both ‘safety from such chronic threats as hunger, disease and repression’ and ‘protection from sudden and hurtful disruptions in the patterns of daily life’.93 A major controversy over the term ‘human security’ is that individual human rights may be infringed upon in the name of protecting the collective interest of human security. In other words, nation-states may circumvent their human rights treaty obligations in the guise of protecting human security.94 However, according to the 1994 UNDP Report, ‘one of the most important aspects of human security is that people should be able to live in a society that honours their basic human rights’.95 90 91

92

93

94 95

T. Ginsburg, ‘Authoritarian International Law?’ (2020) 114 American Journal of International Law, 221, at 232. On China and international dispute settlement, see Chapter 24 in this volume. See also S. Yee, ‘Notes on the International Court of Justice (Part 7) – The Upcoming Separation of the Chagos Archipelago Advisory Opinion: Between the Court’s Participation in the UN’s Work on Decolonization and the Consent Principle in International Dispute Settlement’ (2017) 16(4) Chinese Journal of International Law, 623, https://doi.org/10.1093/chinesejil/jmy002; Written Statement of the People’s Republic of China: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 1 March 2018, ICJ, www.icj-cij.org/files/case-related/169/169-20180301-WRI-03-00-EN.pdf. C. Trindade and A. Augusto, International Law for Humankind (Leiden: Brill, 2020), https://doi.org/10.1163 /9789004425217. UNDP, Human Development Report (1994), p. 23. See also R. E. Howard-Hassmann, ‘Human Security: Undermining Human Rights?’ (2012) 34 Human Rights Quarterly, 88. Oberlietner, ‘Human Security’, supra note 54. UNDP, Human Development Report (1994), p. 23.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

89

Under the discourse of human security, ‘human rights appear to be merely a subset of human security concerns’.96 Alternatively, it may be argued that human rights and human security are different aspects of human dignity and that they are not contradictory to each other but rather converge. A defining feature of human security is the centrality of people as opposed to states. ‘The principal goal of human security is to extend the concept of security beyond national security as one way to force states to pay more attention to the needs of their citizens.’97 In today’s changing world, especially in light of the global coronavirus pandemic, the notion of the CSFM is an example of the importance of human security. As James Tully states in Strange Multiplicity: Constitutionalism in an Age of Diversity, Canadian First Nation artist Bill Reid’s sculpture The Spirit of Haida Gwaii is considered to be a symbol of humanity’s interdependence and coexistence: The sculpture encompasses . . . not just one culture but the entire family of living beings. The canoe is filled to overflowing with creatures who bite and claw one another as they doggedly paddle along. The variety and interdependence of the canoe’s occupants represents the natural environment on which the ancient Haida relied for their very survival: the passengers are diverse, and not always in harmony, yet they must depend on one another to live . . . There is certainly no lack of activity in our little boat, but is there any purpose?98

This is a timely reminder of the centrality of human security as a normative consensus in the making of international law in light of coexistence and cooperation, which Wolfgang Friedman wrote about in 1964: ‘In international law it is today of both theoretical and practical importance to distinguish between the international law of “coexistence,” governing essentially diplomatic inter-state relations, and the international law of co-operation, expressed in the growing structure of international organization and the pursuit of common human interests’ (emphasis added).99 This emphasis on the distinction coincides with Sienho Yee’s view according to which, whereas international peace and harmony were the distinguishing features of coexistence, cooperation between states – a natural progression from coexistence – refers to a stage of development where states enter into agreements for their mutual benefit: ‘There is some acceleration in the strengthening of the idea of “community interest” and in the institutionalization or common enterprising in the management of world affairs or global governance, or more simply, in the enforcement of international law.’100 Because treaty compliance may be more effective ‘in the presence of a social system marked by shared norms and beliefs’,101 China’s compliance with international treaties depends on building normative consensus between non-local Western liberal standards and the local underlying norms. Thus, human security, as an essential component of a ‘community of shared future for mankind’, has the potential to serve as a normative consensus among the international community and become a key element linking its national constitution with international law. Therefore, instead of echoing China’s notion of ‘community of shared future for mankind’, it 96 97 98

99

100 101

Howard-Hassmann, ‘Human Security’, supra note 93, at 103. Ibid., at 90. B. Reid, ‘The Spirit of Haida Gwaii’, www.historymuseum.ca/cmc/exhibitions/aborig/grand/gh04eng.html. See also J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995), 23. W. Friedmann, The Changing Structure of International Law (California: California Law Review, 1964), ch. VI. See also J. Trachtman, The Future of International Law: Global Government (Cambridge: Cambridge University Press, 2013), 1. Yee, ‘The International Law of Co-progressiveness’, supra note 1, at 487. See H. Bull, The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press, 2002).

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

90

Chao Wang and Xin Xiang

may be desirable for the international community to encourage China to converge its normative discourse to the concept of human security and thereby form a normative consensus, along with the protection of individual human rights as its key feature. In the early years of the PRC, China felt that the international legal system was created ‘without China’s participation and expressed normative positions that conflicted with China’s historical conditions and interests’.102 According to the Chinese government, international law derives from Western liberal traditions that are bourgeois in nature. The Chinese government may find support for this Eurocentric view from, among many authors, Ian Brownlie, who noted that international law is ‘European in origin’ and ‘travelled with the colonizers to the Americas, to Asia, to Africa and eventually to Oceania’.103 Although the selective adaptation of international law in China suggests that the local way of thinking affects how international law is locally perceived, the drafting of the UDHR shows that international human rights standards are not alien to the traditional values and norms of Chinese culture. The UDHR is considered by the Chinese government to be a Western human rights document that reflects Western values, but the deep involvement in its drafting of Peng Chun Chang, a Chinese diplomat and philosopher, who served as the Vice Chairman of the UN Human Rights Commission, resulted in the text and principles of the UDHR being substantially influenced by Chinese Confucian ethics. As a result of extensive discussion in the UN on normative consensus on human nature, the UDHR is a truly universal human rights document.104 Therefore, legal pluralism and cultural relativism should not be exaggerated or exemplified in the context of international human rights. Even among cultures of conflicting values, a level of convergence may be attained over the course of historical evolution while maintaining a degree of diversity. David Mungello’s book Curious Land: Jesuit Accommodation and the Origins of Sinology reminds us of the ‘Jesuit attempt of accommodating Western learning to the Chinese cultural scene in order to achieve a sort of Confucian–Christian synthesis which they considered useful to the spread of Christianity in China’,105 and how French enlightenment thinkers, including Voltaire, were influenced by Jesuit writings on Chinese Confucianism.106 The ‘Jesuit Accommodation’ can also be understood as a form of selective adaptation to build normative consensus between Chinese and Western philosophies. In terms of the Confucianism and the Western idea of rule of law, similarly, it has been argued: While the Confucian sense of the individual differs from the Western libertarian concept of the individual, Confucianism is not incompatible with Western notions of human rights. Rather, it enhances human rights and, in this respect, Rousseau’s version of liberty presents a savior. . . . Assuming Confucianism can, or does, foster universal values and norms, the discovery of corresponding universal values resembling Western ethos may result in Confucianism’s rebirth.107

102 103 104

105

106

107

Ibid., at 169. J. Crawford, Brownlie’s Principles of Public International Law (New York: Oxford University Press, 2012), 4. See, generally, H. I. Roth, P. C. Chang and the Universal Declaration of Human Rights (Philadelphia: University of Pennsylvania Press, 2018). P. Corradini, ‘Curious Land: Jesuit Accommodation and the Origins of Sinology. By David E. Mungello. [Honolulu: University of Hawaii Press, 1989. 405 Pp.]’ (1990) 122 China Quarterly, 324. See also D. E. Mungello, Curious Land: Jesuit Accommodation and the Origins of Sinology (Honolulu: University of Hawaii Press, 1989). M.-J. Frainais-Maitre, ‘The Edifying and Curious Letters: Jesuit China and French Philosophy’ in Z. Yangwen (ed.), The Chinese Chameleon Revisited: From the Jesuits to Zhang Yimou, 34–60 (Cambridge: Cambridge Scholars, 2013), 34. Killion, ‘China’s Amended Constitution’, supra note 68, at 79.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

91

China has not been unreceptive to Western constitutional ideology. At the height of the bilateral relationship between China and the United States during the 1980s, when the 200th anniversary of the US Constitution was celebrated in 1987, this landmark did not go unnoticed in China. In fact, there was much academic interest in the US Constitution. Two nationwide conferences were organized by Fudan University of Shanghai and Beijing International Studies University.108 This exposure to US constitutional legal studies109 led to the translation of many leading works on the US Constitution.110 Research shows that the term ‘foreign constitutionalism’ was mentioned in China’s most influential official medium, The People’s Daily, twenty-five times during the period from 1949 to 1978, thirty-six times between 1979 and 1988, forty-four times between 1989 and 1999, and sixty-seven times during the period from 1999 to 2009.111 In 2013, an article published by the CCP party media argued that the key elements and ideas of constitutionalism belong exclusively to capitalism and have no place in the socialist people’s democratic system.112 Since then, no further discussion on constitutionalism has been allowed in China. This is at least partly because of the perception of the CCP leaders that Western ideas of constitutionalism and democracy were political propaganda of the West and particularly the United States aimed at inciting the overthrow of the Chinese government and subverting state power. From the perspective of the United States, China is the global political and economic power posing the greatest threat. Even before the Trump administration, initiatives of the US government in the Asia Pacific, such as the Trans-Pacific Partnership, were widely seen as part of the United States’ containment policy against China.113 As such, one could not expect China to promote the introduction of Western liberal normative discourses into China. However, as the period of cordial US–China relations in the 1980s reveals how international engagement may inform China’s reception of Western liberal norms, engaging with China may still be a useful approach to influencing China to adapt the general norms of international law and work more effectively towards a cosmopolitanism based on shared norms. Therefore, using the notion of human security as a component of China’s constitutionally proclaimed CSFM may present an opening to encourage human rights protections in China. China’s assertive stance in the international arena is defensive in nature, meant to protect national interest and the survival of the party-state. As long as this can be effective, China may be willing to pursue ‘a less definitive version that seeks to explore the changes in constitutionalism without anticipating a political transformation towards such a universalism’.114 108

109

110

111

112

113

114

胡晓进 : “1987年前后美国宪法在中国的翻译与传播”史学月刊, 2018年, 12期, 第89页 [X. Hu, ‘The US Constitution and Its Dissemination in China, circa 1987’ (2018) 12 Journal of Historical Science, 89]. H. Liu, ‘Regime-Centered and Court-Centered Understandings: The Reception of American Constitutional Law in Contemporary China’ (2020) 68(1) American Journal of Comparative Law, 95. These include L. Henkin, Constitutionalism, Democracy, and Foreign Affairs (New York: Columbia University Press, 1990); L. Henkin and A. J. Rosenthal (eds.), Constitutionalism and Rights: The Influence of the United States Constitution Abroad (New York: Columbia University Press, 1990); K. W. Thompson (ed.), The Political Theory of the Constitution, vol. 3 (1990); and A. Rosenbaum, Constitutionalism: The Philosophical Dimension (Cambridge: Cambridge University Press, 1988). 邓繁 : “《人民日报》(1949–2009年) (2011) 5中的宪政概念之类型研究” 宪政与行政法治评论, 第235页 [L. Deng, ‘Study on the Types of the Concepts of Constitutionalism on the “People’s Daily” from 1949 to 2009’ (2011) 5 Constitutionalism and Administrative Law Review, 235]. 杨晓青 : “宪政与人民民主制度之比较研究”人民日报网, 2013年5月22日 [X. Yang, ‘Constitutionalism and the People’s Democratic Systems’, People’s Daily (22 May 2013), theory.people.com.cn/n/2013/0522/c40531-21566974 .html]. D. Pilling, ‘It Won’t Be Easy to Build an “Anyone but China” Club’, Financial Times (23 May 2013), www.ft.com /content/08cf74f6-c216-11e2-8992-00144feab7de. H. Patapan, ‘Towards a Cosmopolitan Constitutionalism: On Universalism and Particularism in Chinese Constitutionalism’ (2015) 3(1) Chinese Journal of Comparative Law, 78, at 80.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

92

Chao Wang and Xin Xiang 4.7 CONCLUSION: BUILDING NORMATIVE CONSENSUS TOWARDS COSMOPOLITANISM

This chapter has examined the extent to which international law is adapted locally in the context of the Chinese Constitution. The local interpretation and adaptation of international law in China provides a unique perspective on how the rules of international law are contextualized locally and how the normative discourse underlying the Chinese Constitution leads to different perceptions of the norms and values underlying international law. The primacy of economic development and political stability in China’s governmental principles determines China’s contention of the priority of the rights to development and to subsistence as preconditions for the realization of other human rights. Although economic growth as a driving force in the local adaptation of international law remains unchanged, the evolution of the constitutional amendments following the 1982 Constitution reveals a shift in China’s focus from the local reception of international law to a more assertive approach of rule-making in the international legal regime. Applying a comparative international law approach with reference to the notion of global constitutionalism to understand the interplay between international law and a national constitutional system helps scholars and policymakers to pursue opportunities for cultural communication and reconciliation and to seek normative consensus in the formation of international law. As mentioned earlier, truly Western liberal norms of governance, as represented by strict adherence to the rule of law and human rights protections, may not find a place in China owing to the CCP’s reluctance to reform the country’s political and judicial system; the current party-state regime cannot be expected to change soon. However, from a technical perspective, it is still possible for international norms and rules of global governance to be applied to countries other than liberal democracies, particularly in the field of international economic relations and trade, and international economic law may, in turn, provide a strong political impetus to pursue values of good governance and transparency. As an illustration of this phenomenon, as Joshua I. Schwartz argues, in the field of public procurement under the WTO’s Agreement on Government Procurement (GPA), ‘procurement modernization and reform need not await a complete political and cultural transformation. Rather, the usually imperfect institutions that are the hallmark of a society in transition are often sufficiently effective to sustain the momentum of reform.’115 China is, currently, negotiating to gain access to the GPA; if China enters the GPA regime in the future, it will be interesting to see whether and how a set of procurement rules of transparency and the rule of law borrowed from the Western tradition can be adapted to and function in China’s state procurement system, thus promoting greater levels of good governance in the Chinese government while the CCP’s authoritarian political system and its dominance of China’s judicial system are preserved. According to Haig Patapan, as the case of China suggests, ‘[the influence of international constitutionalism] seems to be more far-reaching and significant in international laws and institutions related to economic and financial matters, rather than in human rights. Economic, financial, and commercial aspects of international law would therefore appear to be an especially powerful means for the introduction of cosmopolitan constitutionalism measures into a state.’116 From an operational perspective, it may be desirable for the international community to engage China and influence it to be more liberalized through its participation in an increasing number of international institutions and treaties. Although the international community remains cautious of China’s global influence through what Ginsburg terms authoritarian 115

116

J. I. Schwartz, ‘On Globalization and Government Procurement’ in S. Arrowsmith and M. Trybus (eds.), Public Procurement: The Continuing Revolution, 23–46 (The Hague: Kluwer Law International, 2003), 45. Patapan, ‘Towards a Cosmopolitan Constitutionalism’, supra note 114, at 95.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

4 The Constitution of China

93

international law, even an incremental and gradual change to its political and legal institutions as a result of its international participation will be valuable. In this sense, China’s constitutionally proclaimed notion of the CSFM demonstrates the country’s efforts to project its normative discourse in global governance onto the international community. From a realistic perspective, we might seek common interest among the international community as a whole in tackling global problems. To frame a normative discourse in terms of human security and sustainable global development may offer a possibility for China and the international community to converge on a consensus in the making of international law, which is built not only on interdependence but also on the commonality of humanity. It remains to be seen, although it might, indeed, be very useful to explore whether there is a pragmatic problemsolving approach in international law with a focus on identifying international and domestic issues in need of enhanced cooperative efforts and how this can be applied without advancing a particular political agenda based on broad presumptions of ideology. However, putting ‘humanity first’ and seeking a global normative consensus based on human security and sustainable development, as the Chinese constitution now does, can influence international changes for the benefit of humankind and that aspiration, regardless of whether the term used is CSFM or any other, signifies progress, however one defines it.

https://doi.org/10.1017/9781009041133.006 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law and Their International Implications Karen J. Alter and Ji Li

5.1 INTRODUCTION

The ‘rule of law’ (ROL) is invoked by multinational institutions, Western governments and in China as a political expectation of what legitimate governance looks like. Chinese leaders regularly make claims that are translated into commitments to uphold the ROL,1 and they generalize this rhetoric to the international level.2 The ROL concept is plastic, and there is no single definition of what the ROL entails.3 Also, the ROL is invoked as an ideal that most political systems strive for. Even where intentions are good, a combination of design flaws, mistakes and bad actors can lead any political system to struggle and repeatedly fall short of the ideal. Yet the ideal is important as it serves as a North Star that orients all involved towards the goal. Rather than evaluate the question of whether Chinese or Western commitments to the ROL domestically and/or internationally are sincere, this chapter compares different understandings of the ROL in the West and in China. The question we ask is whether Chinese and Western leaders, practitioners and scholars mean fundamentally different things when they speak of the ROL as an ideal to aspire to. There are important distinctions in how the concept and the term are applied in Western and Chinese contemporary discourses and these differences are important when we think about extending the ROL to the international sphere. We should state at the outset that we are bringing a political science perspective to this query. The constructivist school of international relations (IR) explores how concepts, ideas, meanings and shared understandings are inter-subjectively created.4 This chapter argues that within China there is top-down control of the discourse about what the ROL can and should mean, both domestically and internationally, though the control varies in scope, intensity and effectiveness over time. Constrained by top-down conceptions, an international ROL becomes a hypothetical yet coherent and attractive possibility. Western scholars, including most legal scholars and 1

2

3 4

乔中国, 张惠萍, and 刘元华. ‘全面建设小康社会的法治之维 – – 胡锦涛对邓小平, 江泽民法制思想的坚持与发 展’. 理论探索 5 (2005): 143–5 [Qiao Zhong Guo, Zhang Hui Ping and Liu Yuan Hua, ‘The Legal Dimension of Building a Moderately Prosperous Society – The Continuity and Development of the Rule of Law Thoughts of Deng Xiaoping and Jiang Zemin by Hu Jintao’ (2005) 5 Theoretical Inquiry, 143–5] : 习近平. ‘领导干部要做尊法学法守法 用法的模范带动全党全国共同全面推进依法治国’. 人民检察 4 (2015): 1–1 [Xi Jin Ping, ‘Leading Cadres Should Be Role Models of Respecting the Law, Studying the Law, Abiding by the Law, and Driving the Whole Party and the Whole Country to Comprehensively Promote the Rule of Law’ (2015) 4 People’s Procuratorate, 1]. Yi Wang, ‘China: A Staunch Defender and Builder of the International Rule of Law’ (2014) 13 Chinese Journal of International Law, 635, 636. John K. M. Ohnesorge, ‘The Rule of Law’ (2007) Annual Review of Law and Social Science, 99, 100. That something is intersubjective means that it cannot be created by top-down feat. Constructivists have demonstrated how ideas, identities and international structures are relational and social. As Alexander Wendt argued, many important aspects of IR are based in co-constituted meanings and understandings. Alexander Wendt, ‘Anarchy Is What States Make of It: The Social Construction of Power Politics’ (1992) 46 International Organization, 391, 396–9.

94 https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

95

political scientists, are significantly more diverse and sceptical. Notwithstanding the lively debates about global constitutionalism and global legal pluralism,5 most Western legal scholars and political scientists do not speak about an international ROL, for a variety of reasons. This does not mean that there is no role for international law, but it does mean that, for many Western scholars and practitioners, domestic conversations about an ROL ideal do not travel to the international level. Ideals can be useful even if they remain elusive. Yet the very different Western and Chinese understandings of the ROL ideal and its international implications may limit China’s efforts to build international support for the vision Chinese leaders are intentionally and assiduously creating. In this chapter, Section 5.2 offers a brief review of the debate about what the ROL is, identifying two variants that are at the heart of the disagreement. A commercial and private ROL variant reduces the ROL to following through on contracts, paying compensation for breach and providing dispute settlement for business actors. The constitutional and institutional ROL variant is about whether the most powerful political actors and governing bodies are subordinated to the ROL, interpreted and upheld by independent adjudicators, and whether this ROL upholds separation of powers and rights guaranteed in national constitutions. Most Western visions of legitimate governance include a meaningful constitutional and institutional ROL component. This means that reducing the ROL to its economic variant will for many be insufficient. Section 5.3 briefly summarizes Western scholarly debates about the ROL compared to ‘rule by law’, and then focusses in more depth on China’s varying commitment to both ROL variants across time. This discussion informs our subsequent analysis of China’s international ROL commitments. Section 5.4 considers whether and to what extent domestic ROL conversations extend to international law. Both Western and China’s governments profess commitments to international law. While it is easy to find examples of state behaviour that falls short of these professed commitments, especially the behaviour of powerful states such as the United States and China, our focus is instead on what leaders are understood to mean when they pledge to respect international law or an international ROL. 5.2 TWO DISTINCT PARTS OF ANY ROL: ECONOMIC AND POLITICAL

Part of the confusion regarding the question of what the ROL is pertains to the question of who is subordinate to the law. To many, the Western tradition suggests that everybody should be ruled by the same law so as to achieve the goal of a government of law, not men. Historically speaking, this has, of course, never been the objective or the practice.6 The Western ideal of the ROL is that all individuals and government bodies must respect the applicable law, and all can be subject to legal forms of accountability. This ideal is regularly practised, and it is what Western discussions of the ROL are about. Western discussions also expect that basic rights are guaranteed. Since most constitutions throughout the world include a range of rights promises, we might see this substantive element as an expectation that the constitution becomes a lived and practised document. What this ideal means in practice will vary. There are many different republican 5

6

Antje Wiener, Anthony F. Lang Jr, James Tully, Miguel Poiares Maduro and Mattias Kumm, ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’ (2012) 1 Global Constitutionalism, 1–15; Anthony F. Lang and Antje Wiener (eds.), Handbook on Global Constitutionalism (Cheltenham: Edward Elgar, 2017); Paul Schiff Berman, The Oxford Handbook of Global Legal Pluralism (Oxford: Oxford University Press, 2020). There have always been sovereign exemptions, usually characterized by partial immunity from prosecution, allowances of executive privilege and limitations on what can be subject to judicial review. There has always been a separation in thought and practice between international law and domestic law, and public law and private law. These categories and exceptions are seen as functionally and politically necessary for governance.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

96

Karen J. Alter and Ji Li

forms, constitutions, ways to organize a legal system, and substantive laws, so this widely shared ideal of individuals and governments being accountable to the law exists alongside an expectation of significant variation in the form and substance of the law across political systems. That said, given the similarity of the rights-based provisions of many constitutions around the world,7 most people do expect that clear texts will be given a straightforward interpretation. There are additional aspects to the ROL ideal, such as Lon Fuller’s specifications that laws must be general, promulgated, publicly accessible, prospective, clear, non-contradictory, constant and so on.8 Because these formalistic goals neither promise nor ensure political accountability, and because accountability is a necessary component of Western ROL ideals,9 our discussion will be different from what lawyers might emphasize. Breaking from traditional discussions of the ROL, and with the goal of comparing domestic and international ROL conceptions, this chapter divides the conversation into the rule of the economy and the rule of the polity.10 The less politically contested category is the commercial and private variant, which reduces the ROL to following through on contracts and paying compensation for contract breach. Everyone is supposed to fulfil the written law, and actors that do not follow legal rules are liable to the extent that their non-compliance causes measurable harm. The remedy for a harm is a cessation of the illegal action and/or compensation. Section 5.3 will explain that China’s fairly recent and heavy investment in the ROL domestically and internationally has focussed on this variant. To be sure, socialist economic law had a very different sense of property, contract and employment law, and even in the West there are meaningful variations in how Western countries protect property and deal with torts, and in the rights and limitations that are put on employers. These variations inform debates about varieties of capitalism. But the larger and more general point is that the West has exported, and China has largely adopted, a property-protecting market-supporting version of this economic ROL. The historic and more contested Western ROL debate is mostly centred on a constitutional and institutional ROL variant, which is concerned with whether and to what extent governments are subordinated to the ROL, interpreted and upheld by an independent judiciary, and to what extent constitutional promises are enforceable. The constitutional ROL variant is politically charged in that the goal is to check political and state institutions in their exercise of power. Governments should have a stake in being seen as trustworthy, in upholding good governance and in fighting corruption. But creating a truly independent judiciary involves the risk that the legal checks might be applied in ways that political powers dislike. Because Western democracies consider the rule of the polity to be a social contract, the people have substantive constitutionally guaranteed rights. The ROL exists only insofar as the government can be checked and held accountable to the constitution and its promised rights. Constitutional violations are considered to be intrinsically harmful to the people and the polity. So, while the legal system may order that illegal practices cease, and it may award compensation when violations occur, the

7

8 9

10

David S. Law and Mila Versteeg, ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99 California Law Review, 1163. Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1964). Colleen Murphy, drawing on Joseph Raz and numerous international examples, identifies how Fuller’s formal attributes for ROL morality are morally insufficient. Her arguments implicitly also explain why achieving Fuller’s formal legal criteria is politically insufficient. Colleen Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’ (2005) 24 Law and Philosophy, 239–62. Note that for simplicity’s sake we are leaving out other parts of the ROL that Tamanaha includes in his ROL definition, including criminal and family law.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

97

public expectation is that governments will act to fulfil the promises made in the national constitution and in substantive law, thereby upholding the ROL. This constitutional and institutional ROL variant has two central components. First, the administrative law part of this institutional variant focusses on governance that is faithful to the promise that written law will be applied equally, transparently and fairly vis-a`-vis all citizens and corporate persons. Administrative review is the judicial mechanism that upholds good governance, allowing citizens to raise legal complaints should civil servants make decisions that violate written law or that apply this law arbitrarily or capriciously.11 While still a work in progress, China has invested heavily in the administrative law part of the equation, expanding the bench of judges that hear citizen complaints, demanding that civil servants show up and participate in legal proceedings, and insisting that adjudication and justice be swiftly delivered. This section will explain how the constitutional and social contract variant of judicial review prevalent in Western democracies remains absent in China. The bifurcation between economic and political conceptions of the ROL will reappear in discussions about the international ROL. The economic contract conceptualization makes international law a bargain between states, where violations give rise to state liabilities, but by definition only states can be harmed and state liabilities arise only if a state can demonstrate actual and measurable harm. This definitional limitation creates little room for a robust human rights or humanitarian international law. The political international ROL variant, which has been an aspiration as much as a practice, does seek to subordinate state policy and IR to the institutional and constitutional variant of the ROL. 5.3 WESTERN AND CHINESE DISCOURSES ON THE ROL

This section gives an overview of ROL discourses in the West and China, revealing a contrast between a Western ROL and a Chinese rule by law. The rule-by-law category is less known in the West, as it tends to be an Asian-focussed conversation12 that sometimes extends to discussions of an authoritarian rule by law.13 The definition of a rule-by-law system can be tricky to pin down, but essentially it is defined in contradistinction to the core ROL notion that government officials, from low-level civil servants up to the president, are not above the law. In both ROL and rule-bylaw systems, law is a tool of social control. After all, to avoid a lawless society, one needs to subdue the economy and society to the ROL.14 What is different is that rule-by-law countries generally lack effective constitutional restraints over the government’s use of law as a tool of political control (e.g., to limit political opposition).15 Often the difference comes down to whether freedoms of speech, the press, belief and religion are tolerated and can be openly professed in society, and whether political opponents are pursued for specious or rather trivial violations of the law. Our discussion of Western discourses is extremely brief because others have provided synthetic distillations of hundreds of years of debate. We dedicate more space to Chinese discourses, which are more recent and less known. 11 12

13

14 15

Martin Shapiro, ‘The Giving Reasons Requirement’ (1992) 59 University of Chicago Legal Forum, 179. See, for example, Ruiping Ye, ‘Shifting Meanings of Fazhi and China’s Journey toward Socialist Rule of Law’ (2021) 19 International Journal of Constitutional Law, 1859–81. Tom Ginsburg and Tamir Moustafa, Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008). Martin Shapiro, Courts: A Comparative Political Analysis (Chicago, IL: University of Chicago Press. 1981), 22–8. Jothie Rajah, Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (New York: Cambridge University Press, 2012).

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

98

Karen J. Alter and Ji Li

5.3.1 Western ROL Discourses Are Shaped by the Idea of a Social Contract Between Individuals and the Government Western democratic discussions of the ROL are shaped by an understanding that individuals start with a set of pre-political rights. Individuals agree to limit their free exercise of these rights to obtain the political and security benefits that governments provide. There are many versions of how social contracting works, and the literature on Western conceptualizations of the ROL is rich, vast and comprehensively discussed by Brian Tamanaha and a recent handbook.16 Because our purpose is to compare Western and Chinese discourses, we simplify the Western ROL discussion by drawing on Tamanaha’s distillation of the concept.17 Legal debates have contrasted thin versions of the ROL, which tend to define the ROL in procedural and formalistic terms, and thicker versions that involve individual and civil and political protections that are considered essential for democratic governance.18 While Thomas Hobbes imagined that the people might trade quite a lot of personal freedom for a security guarantee, and thus give to the Leviathan a free hand to rule in the best interests of the people,19 this idea has never been dominant in Western ROL discourses. Instead, most Western theorists presume that some core of basic political and civil rights will be inherent to any social contract between the rulers and the people, which means that the only question concerns whether an ROL will be thick or very thick, and whether the emphasis will be on negative rights (an individual’s freedom from interference) or also include positive rights (providing an individual resources and personal capacity to exercise this freedom). Tamanaha’s functional ROL social contract presents a ‘legal backdrop that provides [the populace] with a sense of security in their persons and in their social, cultural, economic and political affairs’.20 This backdrop emerges from the explication and enforcement of extensive legal codes pertaining to criminal law, property law, contract law, tort law, family law, constitutional law, election laws, civil service laws, labour and employment protection, health, sanitation and fire safety laws and so on. While Tamanaha is not using our two categories – rule of the economy and rule of the polity – he does discuss how the ROL promotes economic development. Indeed, many of the codes that Tamanaha mentions constitute the economic ROL (e.g. labour, employment, health, sanitation, fire and safety, property law, contract law, tort law and some criminal law). Tamanaha also discusses the rule of the polity when he identifies constitutional, electoral and civil service laws as regulating how the government constrains itself, and when he explains that the ROL includes mechanisms that limit the power of officials and governments and that preserve individual liberties.21 The Western ROL variant always includes, at a minimum, economic and polity elements. The exported Washington Consensus may have been mostly about the economic elements of 16

17

18

19

20 21

Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004); Brian Z. Tamanaha, ‘Law and Society in Western Legal Theory’ in A General Jurisprudence of Law and Society, 11–50 (New York: Oxford University Press, 2001). See also Jens Meierhenrich and Martin Loughlin (eds.), Cambridge Companion to the Rule of Law (Cambridge: Cambridge University Press, 2021). Brian Z. Tamanaha, ‘Functions of the Rule of Law’ in Jens Meierhenrich and Martin Loughlin (eds.), Cambridge Companion to the Rule of Law, 221–36 (Cambridge: Cambridge University Press, 2021). Møller and Skaaning build on Tamanaha to create a system to categorize thin to thick to thicker ROL. See Jørgen Møller and Svend-Erik Skaaning, ‘Systematizing Thin and Thick Conceptions of the Rule of Law’ (2012) 33 Justice System Journal, 136. Thomas Hobbes, Leviathan: Or, The Matter, Forme and Power of a Commonwealth, Ecclesiasticall and Civil (New York: Collier Books, 1962). Tamanaha, ‘Functions of the Rule of Law’, supra note 17. The non-economic elements he also mentions (e.g., criminal law, family law) are about creating legal security. These also fall into the category of the government providing rules for the others, rather than rules for itself.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

99

the ROL,22 and a number of international ROL indicators seem to focus mostly on the economic elements,23 but what Westerners expect of the ROL definitely includes the political and rightsbased elements, at least insofar as one is discussing a domestic ROL. 5.3.2 Most ROL Discourses in China Are Oriented Around the Goal of Economic Development and Stability Most Chinese discussions of ROL discourses partition the relevant Chinese history into several distinct phases that often correspond to major party leadership changes.24 We briefly review this history because each period leaves very different and hard to expunge ideas about how the Chinese legal system should operate. No doubt, the Chinese Communist Party (CCP) has worked very hard to transform its post–World War II socialist and Stalinist legal system into a modern Western-inspired legal infrastructure. Our account of the Chinese perspectives incorporates the three aspects: political contestations within China’s ruling elite; academic debates about law and governance; and China’s interactions with the outside world. Soon after taking power in 1949, the CCP entered an alliance with the Soviet Union, which exported the model of its legal institutions and trained Chinese law teachers. While the alliance soon broke down,25 the Chinese legal institutions continued to operate pursuant to the Soviet design, and Soviet-trained teachers dominated Chinese law schools, indoctrinating students in the Marxist and Leninist conceptualization of courts as a tool for social ordering and class oppression.26 In the late 1960s, the onset of the Cultural Revolution paralyzed much of the state apparatus, and all Chinese law schools were subsequently shut down, ending any academic debate about law and governance. Mao’s death in 1976 paved the way for the ascendance of Deng Xiaoping and his allies, who terminated the ‘legal nihilism’ and ushered in an era of reform.27 Having personally suffered the chaotic and arbitrary rule of Mao’s dictatorship, the reformers deemed rule of man to be ‘very dangerous, not reliable’,28 and were determined to reestablish basic legal institutions. Against that backdrop, the concept of the ROL appeared in 22

23

24

25

26

27

28

Sarah Babb, ‘The Washington Consensus As Transnational Policy Paradigm: Its Origins, Trajectory and Likely Successor’ 20 (2013) Review of International Political Economy, 268. Mila Versteeg and Tom Ginsburg, ‘Measuring the Rule of Law: A Comparison of Indicators’ (2017) 42 Law & Social Inquiry, 100. See, e.g., Ye, supra note 12; 张文显, 法治与国家治理现代化, 4 中国法学 5 (2014) [Zhang Wen Xian, ‘Rule of Law and State Governance Modernization’ (2014) 4 China Legal Science, 5]; Benjamin L. Liebman, ‘Legal Reform: China’s Law-Stability Paradox’ (2014) 143 Daedalus, 96–109; Qianfan Zhang, ‘The Communist Party Leadership and Rule of Law: A Tale of Two Reforms’ (2021) 30 Journal of Contemporary China, 578–95; Albert H. Y. Chen, ‘China’s Long March Towards Rule of Law or China’s Turn Against Law?’ (2016) 4 Chinese Journal of Comparative Law, 1–35; Carl Minzner, ‘China’s Turn against Law’ (2011) 59 American Journal of Comparative Law, 935–84; Jianfu Chen, Chinese Law: Context and Transformation (Leiden: Martinus Nijhoff, 2008); Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford, CA: Stanford University Press, 1999); Randall Peerenboom, ‘The Battle over Legal Reforms in China: Has There Been a Turn Against Law?’ (2014) 2 Chinese Journal of Comparative Law, 188–212. 蔡定剑, 关于前苏法对中国法制建设的影响 – 建国以来法学界重大事件研究 22 法学 (1999) [Cai Ding Jian, ‘On the Influence of Former Soviet Union Law on China’s Legal Development – Research on Major Event in the Legal Academy since 1949’ (1999) 22 Law Science]; 孙光妍 & 于逸生, 苏法影响中国法制发展进程之回顾, 25 法学研究 139 (2003) [Sun Guang Yan and Yu Yi Sheng, ‘A Review of the Soviet Influence on the Development of the Legal System in China’ (2003) 25 Chinese Journal of Law, 139]. 顾培东, 当代中国法治话语体系的构建, 3 法学研究, 5 (2012) [Gu Pei Dong, ‘The Construction of the Discourse System of the Rule of Law in Contemporary China’ (2012) 3 Chinese Journal of Law, 5]. Carlos Wing-Hung Lo, ‘Socialist Legal Theory in Deng Xiaoping’s China’ (1997) 11 Columbia Journal of Asian Law, 469–86. Zhang Wen Xian, supra note 24, at 14.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

100

Karen J. Alter and Ji Li

a central government document in 1979. Nonetheless, in the decade after the Cultural Revolution it was the notion of ‘rule by law’ (FaZhi, governance with legal institutions) that dominated the official rhetoric.29 Deng’s era featured numerous pragmatic institutional experiments, uncertainties and intense political debates. A faction of the ruling elites advocated political reforms that would create a more liberal and democratic state,30 whereas the more conservative members strongly opposed the ‘corrosive influence of bourgeois ideas’.31 This same period witnessed the reopening of law schools and departments. As just noted, many of the new or reinstated law faculty had received direct or indirect Soviet legal training,32 but China’s ‘reform and opening-up’ policies allowed a younger generation of legal scholars to access Western political and legal theories, and some became highly receptive to the core tenets of liberalism.33 Deng’s Southern Tour in 1992 moved the factional balance in China’s elite politics decisively in favour of the reformers, who undertook a series of structural reforms.34 The majority of Chinese state-owned enterprises went private, and most of those remaining under government control adopted formal governance structures similar to Western firms.35 To expedite and consolidate the domestic reform, the pro-market faction negotiated China’s entry into the World Trade Organization (WTO). Subsequent integration into the international institutional environment further strengthened the reformers and facilitated the implementation of their policy agenda.36 Meanwhile, the official narrative on law shifted from enacting laws and building legal institutions to promoting the ROL,37 and serious efforts were made to professionalize the judiciary and elevate its status.38 The National People’s Congress even added ‘constructing a socialist rule-of-law state’ to the 1999 Amendment of the Constitution.39 During this time, debates in the legal academy largely continued the liberal trajectory,40 leading a prominent Chinese legal scholar to voice concern about his colleagues’ collective ‘cultural aphasia’.41 Feeling threatened, staunch conservatives among the ruling elite began to sound the alarm of massive transplantations of Western laws, institutions and ideas, and some pushed back 29

30 31 32

33

34

35

36

37

38 39

40

41

夏恿, 法治是什么 – 渊源, 规诫与价值, 中国社会科学 117, 143 (1999) [Xia Yong, ‘What Is Rule of Law? – Origin, Meaning and Value’ (1999) Social Sciences in China, 117, at 143]. Qianfan Zhang, supra note 24, at 582. Kalpana Misra, ‘Neo-left and Neo-right in Post-Tiananmen China’ (2003) 43 Asian Survey, 720. 顾培东, 法学研究, (2012) [Gu Pei Dong, ‘The Construction of the Discourse System of the Rule of Law in Contemporary China’ (2012) 3 Chinese Journal of Law, 5]; William Partlett and Eric C. Ip, ‘Is Socialist Law Really Dead?’ (2015) 48 New York University Journal of International Law and Politics, 465–6. Qianfan Zhang, supra note 24, at 581; Xie Libin and Haig Patapan, ‘Schmitt Fever: The Use and Abuse of Carl Schmitt in Contemporary China’ (2020) 18 International Journal of Constitutional Law, 141. Ji Li, ‘A Chinese Model for Tax Reforms in Developing Countries?’ in Weitseng Chen (ed.), The Beijing Consensus?: How China Has Changed Western Ideas of Law and Economic Development, 176–202 (Cambridge: Cambridge University Press, 2017); Misra, supra note 31. Sujian Guo, ‘The Ownership Reform in China: What Direction and How Far?’ (2003) 12 Journal of Contemporary China, 553–73. Julia Ya Qin, ‘The Impact of WTO Accession on China’s Legal System’ (Fall 2008) 2 Sungkyunkwan Journal of Science and Technology Law [symposium article], 253. Susan Trevaskes, ‘A Law Unto Itself: Chinese Communist Party Leadership and Yifa Zhiguo in the Xi Era’ (2018) 44 Modern China, 348. Qianfan Zhang, supra note 24, at 579. Albert H. Y. Chen, ‘Toward a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law’ (1999) 17 UCLA Pacific Basin Law Journal, 128. 杨建军, 中国法治发展: 一般性与特殊性之兼容, 比较法研究, 170 (2017) [Yang Jian Jun, ‘The Development of the Rule of Law in China: The Compatibility of Generality and Particularity’ (2017) Comparative Law Studies, 170]; Libin and Patapan, supra note 33, at 139. Xia Yong, supra note 29, at 142.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

101

by asserting the socialist nature of the Chinese political system as codified in the Constitution.42 Caught in the political cross-hairs, scholars engaged in more value-neutral comparisons of different legal systems and ideals,43 a trend that gained momentum after 2008. The 2008 global financial crisis and the social inequality allegedly created and entrenched by free market capitalism triggered a broad disenchantment with the West and a rediscovering of the values of China’s domestic institutions, including those for resolving conflicts and delivering substantive justice.44 Shifting power dynamics within the Chinese ruling elite gave additional impetus to the rethinking, and massive stimulus programmes enriched the state sector and strengthened the conservative faction. Within that global and domestic context, Chinese leadership began to emphasize the role of Chinese courts in constructing a ‘harmonious society’,45 and an official who lacked any formal legal training was appointed to lead the Supreme People’s Court. In the years following 2008, this new leader promoted a ‘Three Supremes’ doctrine: ‘in enforcing the law, judges should take into account first the supremacy of the Party’s undertaking, [second] the supremacy of the interests of the people, and [third] the supremacy of the Constitution and the law’.46 Notably, the supremacy of the Constitution and law comes third.47 The academic discourse on law and governance could not help but be impacted by these political machinations.48 While many ‘legally trained elites’ continue to favour ‘more expansive, liberal and state-constraining conceptions of law’,49 critiques of the liberal legal order have enjoyed a larger audience. After decades of searching for ideal institutional models elsewhere, first in the Soviet bloc, then in the Western world, a growing number of Chinese legal scholars began to look inward for theoretical inspirations.50 Xi Jinping’s assumption of top party leadership continued and accelerated these trends. Xi advocated for a comprehensive ROL (or, in Xi’s words, ‘containing power in the cage of institutions’51) and constitutionalism.52 More efforts were made to strengthen the judiciary, professionalize the judges, elevate the authority of law and streamline dispute resolution.53 Yet 42

43

44

45 46

47

48

49

50

51 52

53

Andreas Møller Mulvad, ‘China’s Ideological Spectrum: A Two-Dimensional Model of Elite Intellectuals’ Visions’ (2008) 47 Theory and Society, 635–61; Joseph Fewsmith, ‘China in 2007: The Politics of Leadership Transition’ (2008) 48 Asian Survey, 82–96. See, e.g., 郑成良 and 张英霞, 中美两国司法理念的比较, 50法制与社会发展 3 (2003) [Zheng Cheng Liang and Zhang Ying Xia, ‘Comparison of Judicial Concepts in China and the United States’ (2003) 50 Law and Social Development, 3]. 苏力, 变法, 法治建设及其本土资源, 中外法学 (1995) [Su Li, ‘Legal Reform, Rule of Law Development and National Resources’ (1995) Peking University Law Journal]; 苏立, 送法下乡 – 中国基层司法制度研究 (北京: 中国 政法大学出版社 2000) [Su Li, Sending Law to the Countryside – Study of Chinese Grassroots Judicial System (Beijing: Chinese University of Law and Political Science Press, 2000)]. Liebman, supra note 24. 何民捷, 社会主义法治强调党的事业至上, 人民日报 (12 November 2012) [He Min Jie, ‘The Socialist Rule of Law Emphasizes the Supremacy of the Party’s Cause’, People’s Daily (12 November 2012), http://news.jcrb.com/jxsw/ 201211/t20121112_983601.html]. Rogier Creemers, ‘Party Ideology and Chinese Law’ in Rogier Creemers and Susan Trevaskes (eds.), Law and the Party in China: Ideology and Organisation, 31–63 (Cambridge: Cambridge University Press, 2021). He Li, ‘Chinese Discourse on Constitutionalism and Its Impact on Reforms’ (2017) 22 Journal of Chinese Political Science, 413. Jacques deLisle ‘Law in the China Model 2.0: Legality, Developmentalism and Leninism under Xi Jinping’ (2017) 26 Journal of Contemporary China, 82. Li, supra note 48; Gu Pei Dong, supra note 32, at 5; Yang Jian Jun, supra note 40; John W. Head, ‘Feeling the Stones When Crossing the River: The Rule of Law in China’ (2009) 7 Santa Clara Journal of International Law, 69. DeLisle, supra note 49. Changchang Wu, ‘Debates on Constitutionalism and the Legacies of the Cultural Revolution’ (2016) 227 China Quarterly, 674–96. See, e.g., Taisu Zhang and Tom Ginsburg, ‘China’s Turn Toward Law’ (2019) 59 Virginia Journal of International Law, 307–89.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

102

Karen J. Alter and Ji Li

the moniker ‘with Chinese characteristics’ reflects the idea that local traditions and conditions should shape how the ROL manifests in China. And shape they did. For instance, to address the inherent tensions between the absolute authority of the CCP and the Western concept of the ROL, the CCP’s supremacy has been legally enshrined in the 2018 amendment of the Constitution,54 so the party will be able to exercise its leadership within the constitutional framework.55 Meanwhile, the ‘erroneous’ Western legal models were officially denounced,56 and the official narrative began to integrate the socialist ROL with ‘rule by moral virtue’.57 Some scholars view this moralistic turn in the official rhetoric as a revival of traditional Chinese governance philosophy that integrates governance via legal instruments and Confucian moral guidance and rites.58 While China does present a unique, fertile ground for theoretical innovation in law and social sciences, and more scholars have joined the search for novel governance theories, such attempts have been inhibited by the tightening control over opinions that are inconsistent with the government rhetoric and an escalating United States–China rivalry. Within that context, liberal voices in China, while still present in the legal academia, have been subdued. In summary, contradictions between liberal elements of China’s law and its Constitution, on the one hand, and the government’s authoritarian characteristics (also known as socialism with Chinese characteristics), on the other, have always been a feature of China’s judicial reform efforts. The current politics raise serious doubts that China’s version of the ROL does not resemble discourses in the West. One can still imagine the ideal of a commercial and private law so long as the operation of the legal system does not run afoul of CCP policies. Western understanding of a constitutional or institutional ROL, thick or thin, that is incompatible with the supremacy of the CCP or a political commitment to the ‘popular interest’ will miss that these two priorities supersede the independent operation of the ROL. 5.4 ENVISIONING AN INTERNATIONAL ROL

Up through the nineteenth century, international law was generally conceptualized as the law of nations, meaning a set of rules that states agreed to through formal treaties and statements, and as demonstrated by their declared intentions and practices in upholding this law among nations. The European version of this law of nations created a category of the ‘civilized’ world where international law applied and another of the ‘uncivilized world’ where this law did not apply. This distinction was used to circumscribe when, where and how international law was applied to IR. Multilateralism unseated this European conceptualization of international law in the early twentieth century.59 The United Nations (UN) then embodied this shift to formal sovereign equality for states while maintaining the colonial-era categories of international law as comprising treaties, customary international law and general principles of law, understood and informed 54

55 56 57 58 59

Ling Li and Wenzhang Zhou, ‘Governing the “Constitutional Vacuum” – Federalism, Rule of Law, and Politburo Politics in China’ (2019) 4 China Law and Society Review, 1–40; Li, supra note 48. See, e.g., Zhang and Ginsburg, supra note 53. Li, supra note 48, at 408. Trevaskes, supra note 37, at 367–58. Ye, supra note 12. The League of Nations was a first multilateral effort to subordinate IR to rules and principles, yet in many ways the League failed to surmount imperial conceptions of international law. See Susan Pedersen, The Guardians: The League of Nations and the Crisis of Empire (New York: Oxford University Press, 2015). The 1933 Montevideo Convention was a multilateral articulation of the idea of sovereign equality. Becker Lorca explains how the European approach to international law shifted into the notion of sovereign equality. See Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (Cambridge: Cambridge University Press, 2014).

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

103

by the practices of states, judges and scholarly opinions. Karen Alter argues that this understanding of the components of international law remained, inscribed in Article 38 of the International Court of Justice’s founding statute, as a legacy of colonial-era international law.60 The postcolonial international law scholar B. S. Chimni identifies customary international law as a repository of colonial ideas and prerogatives while Alter argues that the option to remain outside multilateral international law while enjoying bilateral, mini-lateral or customary understandings of international law is a colonial legacy.61 The substance of international law transformed significantly in the multilateral era. Where states could agree, customary international law was transformed into treaty law. Multilateral institutions, including international courts, proliferated and they became active participants in shaping understandings of international law.62 International law grew beyond the category of a law of nations into a discourse of international law.63 Participants in discourses about the content and expectations for international law include diplomats, political leaders, law professors, international judges, national judges called upon to apply international law, civil society groups and journalists who contest what international law requires.64 These contestations can stabilize into shared understandings that endure, yet the nature of law in the West is that understandings are transformed through contestation regarding how fundamentally ambiguous texts should be understood. Especially because there are many different venues in which international law is debated, Western scholars have considered the UN and its institutions to be important, but, depending on the area of international law in question, the UN is not necessarily the primary or supreme venue in which these discourses occur. Rather, multilateralism and discourses about the content and meaning of international law occur in many different institutional venues, a notion that is captured by the concept of international regime complexity and transnational legal orders.65 The different level of importance placed on the UN also reflects the view of Western lawyers of various stripes that law and legal interpretation should operate separately and independently of politics. To be sure, there is such a thing as legal politics, but legal politics are and should be quite different from ordinary politics and interstate bargaining. How international law is practised in IR is a different question. The international law project has always been an effort to subdue IR to international law and international legal practices, and thus to replace force and coercive threats as tools in IR by creating alternative means to further

60

61

62

63

64

65

This understanding of international law is articulated in Article 38 of the International Court of Justice’s Statute. Karen Alter describes this partial transformation from European to multilateral international law. See Karen J. Alter, ‘From Colonial to Multilateral International Law: A Global Capitalism and Law Investigation’ (2021) 19 International Journal of Constitutional Law, 798. B. S. Chimni, ‘Customary International Law: A Third World Perspective’ (2018) 112 American Journal of International Law, 1; Alter, supra note 60. Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton, NJ: Princeton University Press, 2014). Anne Orford, ‘A Global Rule of Law’ in Jens Meierhenrich and Martin Loughlin (eds.), Cambridge Companion to the Rule of Law, 538–66 (Cambridge: Cambridge University Press, 2021); Brian Z. Tamanaha, ‘What Is International Law?’ in A Realistic Theory of Law 151–93 (Cambridge: Cambridge University Press, 2017). This idea of international law and its authority being debated by and appealing to different audiences is articulated in a comparative analysis of the authority of international institutions, and in thinking about how international courts have altered the terrain of international law. The larger claim is that the authority of international law resides in diverse communities of international legal practice. See Alter, supra note 62; and Karen J. Alter, Laurence R. Helfer and Mikael R. Madsen (eds.), International Court Authority (New York: Oxford University Press, 2018). Karen J. Alter and Kal Raustiala, ‘The Rise of International Regime Complexity’ (2018) 14 Annual Review of Law and Social Science, 329; Terence C. Halliday and Gregory C. Shaffer, Transnational Legal Orders (New York : Cambridge University Press, 2015).

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

104

Karen J. Alter and Ji Li

international cooperation and promote the peaceful settlement of disputes.66 The next sections discuss debates about the ideal of an international ROL in the West and in China, again offering more of a political science/law and society than a legal perspective. The general argument is that in the West the domestic discourse is not regularly translated to the international realm, while China’s vision of an international ROL is an internationalization of its domestic discourse. 5.5 INTERNATIONAL ROL DISCOURSES IN THE WEST

Western support for an international ROL has long been more robust outside the United States. This difference in enthusiasm can be explained in part by what happened in Europe after World War II, where hundreds of years of interstate European war were replaced by a European Union built on a foundation of community law. The success of the European Union and the Council of Europe’s human rights system subdued the legalist ideal of IR to a ROL that was real and concretely imaginable. This enthusiasm became turbo-charged after the end of the Cold War, which in the United States became a period of neo-liberal enthusiasm and democracy promotion, and in other parts of the West also became a moment to imagine a transformation of international law that could perhaps address the long-standing democracy and legitimacy challenges arising from the state-based nature of multilateralism. Unlike domestic ROL conversations, Western conversations are seldom framed as a discourse about an international ROL. Rather, the most common debate is about how international law might become more influential, legitimate or effective. Greater effectiveness, rather than an ideal of an international ROL, is seen as a more realistic goal. Where ideals do exist, they are framed in terms of a global constitutional order along the lines of what one finds in national systems.67 Perhaps advocates focus on global constitutional or global administrative law68 because to advocate a UN international ROL would, in these advocates’ minds, be too minimalist. Or perhaps, after witnessing how the Cold War chilled progress in the UN, and maybe even wary about a North–South struggle that might end up counter to the interests of those in the North, advocates of IR under law have become pessimistic about the UN as a place to construct an international ROL. In any event, in light of many conversations about international law in Europe and the United States, a reasonable conclusion is that the ‘international ROL’ is seen as either too utopian or not visionary enough. Compared to their European counterparts, American legal scholars, diplomats and practitioners have always been significantly more wary about international law, and thus one does not find a robust debate about an international ROL in the United States. Hans Morgenthau, the godfather of classical IR realism, acknowledged that foreign policy that could be justified in moral or legal terms would be seen as more legitimate, and thus be more effective compared to illegitimate or naked power.69 Morgenthau and the IR realists that followed thought that national interest should be the primary factor guiding IR. American international law and IR debates have long been oriented around responding to this realist perspective. For example, countering IR realists, Louis Henkin argued that ‘almost all nations observe almost all principles 66

67 68

69

Oona Anne Hathaway and Scott Shapiro, The Internationalists and Their Plan to Outlaw War (New York: Simon & Schuster, 2017). Lang and Wiener, supra note 5. Benedict Kingsbury, Nico Krisch and Richard B. Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems, 15. Hans Morgenthau and Kenneth Thompson, Politics Among Nations: The Struggle for Power and Peace (New York: Random House, 1985), 34.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

105

of international law almost all of the time’.70 This statement is widely accepted, with the followup question being why do most nations choose to follow international law even though this law is often not legally binding and when in most cases it remains unenforceable? Liberal scholars provide a myriad ways to answer this question. The larger point, however, is that debates about compliance and effectiveness are far more common in the United States than conversations about an international ROL. Another point worth underscoring is that IR realists have absorbed historian E. H. Carr’s critique of the idea of a harmony of interests. Carr argued that there is no genuine international harmony of interests. The so-called harmony claim is a myth used by the powerful to sustain the status quo. Carr goes so far as to claim that the objective of peace is not even an absolutely shared goal because it is not in the interest of revisionist powers.71 While there is a lot to suggest that most people and international relations prefer peace,72 Carr’s perspective is incorporated into the realist understanding that a focus on absolute gains misrepresents the political reality. States can, do and must pay attention to the relative gains question of who is winning more.73 Critics of realism point out that cooperation is ubiquitous in IR, so clearly states are able to achieve collective gains through cooperation. But this claim does not translate into the Chinese idea that states can agree on a common future for mankind, the Tianxia all-under-heaven idea,74 that cooperation where each side wins some is necessarily an unqualified good thing, or that states can live in harmony under an international ROL. In any event, within international law discourses, the Western focus tends to be on how to make international law more effective. This conversation is then shaped by the economic and political variants of the ROL. Most Western legal scholars, and even some political scientists,75 will acknowledge that international law is minimally, if not substantially, effective in shaping state behaviour. More sceptical scholars adopt a realist and economic perspective wherein international law is seen as a contract among states. International agreements that reflect state interests are more likely be followed; the corollary to this presumption is that no form of internal or external legal pressutore will appreciably improve state respect for international law.76 This perspective justifies and creates a self-fulfilling prophesy wherein states are only expected to follow self-serving international laws. Some American scholars go so far as to argue that states should make a calculation that weighs the costs and benefits of compliance versus breach, sometimes choosing to ‘efficiently’ breach international law.77 This economic perspective is rejected by those who adopt the more constitutional and institutional view that states are expected to follow the ROL. 70 71

72

73

74 75

76

77

Louis Henkin, How Nations Behave (New York: Columbia University Press, 1979), 47. See Edward Hallett Carr, The Twenty Years’ Crisis (London: Macmillan & Company, 1951), especially chs. 4 and 5. The argument about peace appears on p. 53. Gary Goertz, Paul F. Diehl and Alexandru Balas, The Puzzle of Peace: The Evolution of Peace in The International System (New York: Oxford University Press, 2016). The relative gains arguments have reached the level of canon. The following article is a debate on how widely the relative gains problem applies. Joseph Grieco, Robert Powell and Duncan Snidal, ‘The Relative-Gains Problem for International Cooperation’ (1993) 87 American Political Science Review, 729. Shiping Tang, ‘China and the Future International Order(s)’ (2018) 32 Ethics & International Affairs, 31. Christian Reus-Smit and Duncan Snidal, ‘Between Utopia and Reality: The Practical Discourses of International Relations’ in Christian Reus-Smit and Duncan Snidal (eds.), The Oxford Handbook of International Relations, 3–38 (New York: Oxford University Press, 2008). Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (New York: Oxford University Press, 2005); Andrew T. Guzman, How International Law Works: A Rational Choice Theory (New York: Oxford University Press. 2008). Eric A. Posner and Alan O. Sykes, ‘Efficient Breach of International Law: Optimal Remedies, “Legalized Noncompliance,” and Related Issues’ (2011) 110 Michigan Law Review, 243–94.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

106

Karen J. Alter and Ji Li

Those who are more optimistic believe that normative pressure can and does influence international law compliance. Such scholars discuss how international law constructs intersubjective understandings that structure interstate relations. Advocates of this perspective often argue that what a nation conceives of as ‘in its interest’ is largely defined by international law, shaped by legal communities of practice that include diplomats, trans-governmental networks, scholars and practitioners convened under the auspices of the International Law Commission and the rulings of the UN and other international adjudicatory bodies. Non-governmental entities engage in these debates through governments, political debates and participation in international meetings.78 This larger legal and normative community addresses lacunae in international law, and it influences states, offering redefinitions of what international law is and what state law compliance requires and looks like.79 Others, including an author of this chapter, argue that international law becomes effective by mobilizing domestic and international compliance supporters who then pressure the government to respect international law.80 This political mobilization imposes legitimacy and material costs on behaviour that violates international law.81 The current international response to Russia’s actions in Ukraine is an illustration of this idea. To not discuss an international ROL might be construed as self-serving, since any conversation would have to recognize how often this international law ROL is violated. Yet, given the amount of legal and philosophical scholarship about global constitutionalism, about global administrative law and about how to improve the substance and effectiveness of international law, such a cynical view is not warranted. Instead, we are arguing that expectations for how international law shapes IR are sometimes seen in economic terms where international law is viewed as a breakable contract where the costs of non-compliance are affordable, and at other times in constitutional and institutional terms where the expectation is that legitimate governance should follow applicable international law. In both cases, however, the expectation is that social and political mobilization will shape how international law is understood, and whether governments pay a social, political or material cost for violating international law. As with the domestic ROL, few expect states to police themselves. As John Locke long ago argued, people are poor judges of themselves and their friends.82 Like the domestic realm, international law becomes legally and politically meaningful precisely because disinterested actors interpret the law, and the law is not subordinate to the will of the government. Like the domestic ROL, discursive contestation stabilizes and destabilizes understandings of extant international law, and contestation is a permanent feature of ROL conversations.

78

79

80

81

82

These are the actors discussed in the literature on IC authority, on transnational legal orders and in Brune´e and Toope’s vision of the international of international law and legality. See Alter et al., supra note 64; Halliday and Shaffer, supra note 65; Jutta Brunne´e and Stephen J. Toope, ‘Interactional Legal Theory, the International Rule of Law and Global Constitutionalism’ in Anthony F. Lang and Antje Wiener (eds.), Handbook on Global Constitutionalism, 170–82 (Cheltenham: Edward Elgar, 2017). Christian Reus-Smit, ‘The Constitutional Structure of International Society and the Nature of Fundamental Institutions’ (1997) 51 International Organization, 555; Jutta Brunne´e and Stephen J. Toope, ‘International Law and the Practice of Legality: Stability and Change’ (2018) 49 Victoria University of Wellington Law Review, 429. Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009); Alter, supra note 62. Oona Hathaway and Scott J. Shapiro, ‘Outcasting: Enforcement in Domestic and International Law’ (2011) 121 Yale Law Journal, 252. John Locke, The Second Treatise on Government (Indianapolis, IN: Bobbs-Merrill, 1957), ch. 13.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

107

5.6 CHINA AND THE INTERNATIONAL ROL

China’s rise poses two important questions concerning its interactions with international law and its impacts on the liberal international legal order, which have spawned two lines of arguments. One posits that a more powerful China will ‘promote a statist and more hierarchical brand of international governance that is inconsistent with the open, multilateral governance architecture that has emerged and developed since the end of World War II under American and European guidance’.83 The other downplays the impacts, pointing to the enormous stakes China has in preserving the status quo.84 We engage in this ongoing debate by discussing how the evolving and contested perspectives of ROL in China both shape and are shaped by its engagement with the liberal international legal order. But, first, a brief recount of the relevant history is in order. Prior to the end of the Cultural Revolution, the Chinese government remained highly sceptical and inimical towards both the United States-led Western international order and the Soviet-dominated rules governing relations between states within the Communist bloc.85 Diplomatically isolated, the government hardly saw any need for international rules to facilitate cross-border transactions. Also, steeped in orthodox Marxism, the CCP leadership regarded the existing international laws as nothing but hegemonic instruments. The post–Cultural Revolution reform reconnected China with the international community, and the encounters gave rise to demands for international agreements. Yet, as late as the 1980s, Deng remarked that the core values of liberalism were ‘designed only to safeguard the interests of the strong, rich countries, which take advantage of their strength to bully weak countries, and which pursue hegemony and practice power politics’.86 While anecdotal evidence indicates that many Chinese thought-leaders continue to view international institutions as favouring the United States and its allies,87 and reject the rules of the game as they were made when China was ‘absent from the world stage’,88 many others have long realized the benefits of accommodating the US hegemony and being part of the existing system. After Deng’s Southern Tour, China stepped up its efforts to integrate into the global economy, marked by the highly consequential WTO membership.89 As this handbook demonstrates, the Chinese government is a party to hundreds of multilateral treaties and thousands of bilateral treaties in a broad range of areas from arms control to trade and commerce.90 China has assumed a more prominent role in drafting and amending international agreements.91 In short, the way China engages international law has changed significantly. This change, however, contains historical legacies and mirrors domestic ROL debates. We begin our inquiry by identifying key common ground in the Chinese ROL debates, and we explore how they guide the Chinese government in its engagement with the liberal international legal order. The Chinese ruling elites have generally perceived law and legal institutions as a means to 83

84 85

86 87 88 89 90

91

Scott Kennedy and Shuaihua Cheng, From Rule Takers to Rule Makers: The Growing Role of Chinese in Global Governance (Bloomington, IN: Research Center for Chinese Politics and Business, Indiana University, 2012). See also Congyan Cai, The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (Oxford: Oxford University Press, 2019). Kennedy and Cheng, supra note 83. Youcheer Kim, ‘Is China Spoiling the Rules-Based Liberal International Order? Examining China’s Rising Institutional Power in a Multiplex World Through Competing Theories’ (2020) 56 Issues & Studies. Graham Allison, ‘China vs. America: Managing the Next Clash of Civilizations’ (2017) 96 Foreign Affairs, 85. Ibid. Ibid., at 86. On international trade law, see further Chapter 20 in this volume. Robert D. Williams, International Law with Chinese Characteristics: Beijing and the ‘Rules-Based’ Global Order (Washington, DC: Brookings Institution, 2020), 3. Ibid.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

108

Karen J. Alter and Ji Li

achieve some other objective,92 be it class oppression,93 reducing corruption,94 facilitating an efficient market economy,95 maintaining social order and stability,96 sustaining regime legitimacy,97 enhancing the government’s international reputation,98 enabling modernization,99 or symbolizing social and cultural progress.100 Teleologically and functionally conceptualized,101 the ROL has not yet acquired the same normative and cultural appeal in China as in the West.102 Put differently, in the West the ROL is constitutive of good and legitimate governance, whereas to many in China the ROL is merely a potential means to achieve the ultimate goal of good and legitimate governance and to promote development. Marxism, Leninism and Mao’s thoughts partially explain the instrumentalist take, as members of the Chinese ruling elites have at times had to demonstrate mastery of the state ideology in order to advance in the fiercely competitive political system.103 Many components of orthodox Marxism have lost practical relevance and been abandoned,104 hence the widely accepted claim that China has ‘entered a post-ideological age’.105 However, the historical materialist worldview persists. Under the influence, reformers and conservatives both embrace an economic perspective on the ROL where the characteristics of the economic relations in China necessitate a more professional and independent judiciary.106 More recent Chinese interactions with international law have also focussed on law’s instrumental value.107And government officials were urged to be ‘adept at using international law as a “weapon” to defend the interests of our state and maintain national pride’, and to ‘strengthen China’s “discourse power and influence” in international legal affairs’.108 The instrumentalist approach, for instance, explains the shift in position regarding investment treaties.109 When China was a net capital importer, its investment treaties with other countries curtailed foreign investors’ recourse.110 But when the country turned into a net capital exporter, the government negotiated broader investor protection in its bilateral investment treaties to safeguard the interests of Chinese outbound investors.111 Of course, instrumentalism need not be and is not narrowly material. Much of China’s engagement with law (e.g. human rights treaties112) is driven

92 93 94

95 96 97

98 99 100 101 102 103 104 105 106 107 108 109 110

111 112

deLisle, supra note 49, at 79; Head, supra note 50, at 34–5. Partlett and Ip, supra note 32, at 470–1. Jennifer R. Wilking and Gregory J. Love, ‘Why the Rule of Law? Experimental Evidence from China’ (2020) 41 Justice System Journal, 360–78. deLisle, supra note 49. Liebman, supra note 24. Susan H. Whiting, ‘Authoritarian “Rule of Law” and Regime Legitimacy’ (2017) 50 Comparative Political Studies, 1907–40. Qianfan Zhang, supra note 24, at 586. Qianfan Zhang, supra note 24; Trevaskes, supra note 37, at 353. Trevaskes, supra note 37, at 353. Ewan Smith, ‘The Rule of Law Doctrine of the Politburo’ (2018) 79 China Journal, 40–61. Chen, ‘China’s Long March’, supra note 24. David Shambaugh, ‘Training China’s Political Elite: The Party School System’ (2008) 196 China Quarterly, 827–44. For instance, the dictatorship of the proletariat has been dropped from the official rhetoric. Li, supra note 48, at 421. Creemers, supra note 47. Minzner, supra note 24. Creemers, supra note 47. See also Cai, supra note 83, at 183. Williams, supra note 90, at 3. On international investment law, see further Chapter 21 in this volume. Justin Carter, ‘The Protracted Bargain: Negotiating the Canada–China Foreign Investment Promotion and Protection Agreement’ (2010) 47 Canadian Yearbook of International Law/Annuaire canadien de droit international, 210–11. Ibid., 210–13. Pitman B. Potter, ‘China and the International Legal System: Challenges of Participation’ (2007) 191 China Quarterly, 708–9.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

109

by concerns about building the regime’s legitimacy113 or facilitating domestic reforms.114 Even the Chinese academic discourse on international law stresses the value of safeguarding the core interests of China,115 including, among others, ‘maintaining the fundamental institutions, sovereign and territorial integrity, and social and economic stability and development’,116 or more broadly facilitating China’s modernization, improving its international image or enhancing the welfare of the global community.117 As in the West, in China one finds many different opinions about specific treaties, and Chinese perspectives about the goal and substance of international law can vary depending on if the Ministry of Foreign Affairs or another state agency (e.g. Ministry of Commerce) is taking the lead in the engagement with an area of international law. Yet, because state ideology has enormous influence on the Chinese academic debates about international law,118 the official narrative tends to shape scholarly debates within China, and it is then amplified internationally by Chinese international lawyers working and living in China. Chinese leaders have made a number of prominent statements about China’s consistent respect for multilateralism and international law. In the West, scholars do not rely heavily on the statements of leaders. By contrast, a great portion of the Chinese scholarly publications on international law quote the speeches of Chinese leaders, and scholars orient their critical or positive perspectives towards policy questions that dovetail with the governmental agenda, such as law’s role in preserving the hegemonic world order and how changes can be made to improve the diplomatic environment for the Chinese state, and how to expand China’s discursive influence in the epistemic community of international law.119 Putting a positive spin on Chinese support for international law, today the official Chinese statements about international law reiterate but also revise famous speeches of the past that call for an equitable international law that promotes peace, respects state sovereignty and calls for the peaceful settlement of disputes.120 These statements are selective about which aspects of 113 114 115

116

117

118

119

120

Ibid., at 702; Williams, supra note 90, at 10. Qin, supra note 36. 李林, 新时代中国法治理论创新发展的六个向度, 41 法学研究 3 (2019) [Li Lin, ‘Six Dimensions of Innovation and Development of China’s Rule of Law Theory in the New Era’ (2019) 41 Chinese Journal of Law, 3]. 曾令良, 中国国际法学话语体系的当代构建, 中国社会科学, 40 (2011) [Zeng Ling Liang, ‘The Contemporary Construction of the Chinese Discourse System of International Law’ (2011) Social Sciences in China, at 40]; 赵骏, 全 球治理视野下的国际法治与国内法治, 中国社会科学 (2014) [ Zhao Jun, ‘International Rule of Law and Domestic Rule of Law from the Perspective of Global Governance’ (2014) Social Sciences in China]. 曾令良, 国际法治与中国法治建设, 中国社会科学, 138 (2015) [Zeng Ling Liang, ‘International Rule of Law and China’s Rule of Law Construction’ (2015) Social Sciences in China, 138]; 韩永红, 国际法何以得到遵守 – 国外研究 述评与中国视角反思, 36 环球法律评论, 183–84 (2014) [Han Yong Hong, ‘How International Law Is Observed – A Review of Foreign Studies and Reflections from a Chinese Perspective’ (2014) 36 Global Law Review, 183–4]; 何志 鹏, 国际法治的中国表达, 中国社会科学, 167 (2015) [He Zhi Peng, ‘The Chinese Expression of the International Rule of Law’ (2015) Social Sciences in China, 167]; 潘维, 法治与未来中国政体, 5 战略与管理, 36 (1999) [ Pan Wei, ‘The Rule of Law and the Future Chinese Political System’ (1999) 5 Strategy and Management, 36]; Zhang Wen Xian, supra note 24, at 10. Though Marx and Engels themselves said little about international law. Bill Bowring, ‘Marxist International Law Methodology?’ in Rossana Deplano and Nicholas Tsagourias (eds.), Research Methods in International Law, 162–80 (Cheltenham: Edward Elgar, 2021). Matthew S. Erie, ‘China and Comparative International Law: Between Social Science and Critique’ (2021) 22 Chicago Journal of International Law, 59; 杨泽伟, 改革开放 30 年来中国国际法学研究的回顾与前瞻, 外交评论: 外交学院学报 (2008) [Yang Ze Wei, ‘Review and Prospect of Chinese International Law Research in the Past 30 Years of Reform and Opening-Up’ (2008) Diplomatic Review: Journal of China Foreign Affairs University]; 何志鹏, 中国国际法学的双维主流化, 36 政法论坛 173(2018) [He Zhi Peng, ‘The Two-Dimensional Mainstreaming of Chinese International Jurisprudence’ (2018) 36 Politics and Law Forum, 173]; Zeng Ling Liang, supra note 116, at 39; Yang Jian Jun, supra note 40. See, e.g., Wang, supra note 2; Kenneth Anderson, ‘The Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law’, Lawfare (25 June 2016), www.lawfareblog.com/ text-russia-china-joint-declaration-promotion-and-principles-international-law.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

110

Karen J. Alter and Ji Li

international law are being embraced. A firm commitment to the UN is affirmed, alongside the ‘universally recognized norms’ of ‘respect for sovereignty and territorial integrity, peaceful settlement of international disputes and non-interference in the internal affairs of others’.121 Investigating decades of statements that reflect the practice of authoritarian leaders selectively embracing international law, Tom Ginsburg finds a consistent practice where authoritarian leaders embrace sovereignty, stability, collective rather than individual rights, ‘[l]egality, rule by law, obedience’ and ‘rule of international law’, with low delegation to international oversight and a preference both for case-by-case adjudication of disputes and for unanimous decision-rules that maximize state veto power.122 In our view, the Chinese vision of an international ROL, resonating with the domestic practice of a ‘socialist ROL’, is both instrumental and selective. While the vision may not differ from the US government’s approach to international law or that of the IR realists, it is distinct from the European ideal conceptualization of the political variant of international ROL, that is, interpretations of law by independent tribunals that bind powerful states on matters of the most importance to them. China’s diverging responses to WTO dispute resolution and the South China Sea arbitration brought by the Philippines serve as an illustrative example of its differential approaches to the economic versus the political variants of international ROL.123 5.7 CONCLUSION: BETWEEN POWER AND RHETORIC

As G. John Ikenberry explains it, the American embrace of multilateralism following World War II was a strategic restraint that was designed to reassure other countries that the United States would use its overwhelming military and economic power benignly.124 While China’s leaders suggest that China has always followed international law in its diplomacy, China’s recent enthusiasm for multilateralism seems designed to reassure others. As a bonus, China’s embrace of international law draws a poignant contrast with the American First agenda of unilateralism, and it is attractive internally. Chinese legal scholars and students seem to be genuinely enthusiastic about the idea that China will lead the world via respect for international law and multilateralism. This chapter has suggested that Western and Chinese leaders, scholars, practitioners and people have different understandings of what it means to promote the ROL. These different understandings serve to upgrade or downgrade the extent to which the ROL should, might or can constrain what governments and powerful actors do. The economic variant of the ROL, embraced both in the West and in China, makes following the law part of a strategic costcalculation of perform or pay logic, with violations creating tangible costs. This perspective creates the self-fulfilling prophesy that legal violations should not necessarily be seen or felt to be a scarlet letter stain on the legitimacy of the actor. The political constitutional and institutional variant of the ROL is different as it is predicated on a social contract between those who wield coercive power and those who are subject to this rule. The whole point of the political ROL variant is to constrain governments and other powerful actors. Given that there is no cost high enough to deter a powerful country or political leader from doing what it wants to do, and if the winners get to write the history of what has happened, then in the best of worlds the ROL 121 122 123 124

Wang, supra note 2, at 637. Tom Ginsburg, ‘Authoritarian International Law?’ (2020) 114 American Journal of International Law, 233, table 1. On international dispute settlement, see further Chapter 24 in this volume. G. John Ikenberry, After Victory Institutions, Strategic Restraint, and the Rebuilding of Order After Major Wars (Princeton, NJ: Princeton University Press, 2001).

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

5 Chinese and Western Perspectives on the Rule of Law

111

operates as both a social and a political check on what is considered legitimate behaviour. This check may exist only to the extent that interpretations of what is and is not lawful behaviour are independent, and thus not under the control of the powerful. Without a disinterested actor interpreting what law requires, then claims that a government respects the ROL will be seen as rhetoric, justification or ideology. This requirement for independent interpretation and application of the law is why authoritarian systems are often seen as rule by law rather than ROL systems. Uniting conversations about international law is a sense that state behaviour that respects international law is going to be viewed as more legitimate than behaviour that violates international law. In Morgenthau’s IR realist casting, this viewpoint does not translate into an argument that states should always follow international law. For Morgenthau, the national interest matters more. For liberals as well, the claim is not that states should always or only follow the strict legal letter of international law. Critics of international law sometimes point out that international law can be too hard to change, it can be outdated or it can even be immoral, so that sometimes the more just, more legitimate and better outcome will involve bending and even breaking the law. The legal process, which involves public debate and even adjudication of whether a behaviour is lawful, is not so rigid as to make law compliance a suicide pact or something that creates more harm than good. Advocates of international law have many reasons to believe that following collectively crafted international law is the better and more legitimate course of action. In any event, what international law requires has always been a contested conversation where contestation about the meaning of the law is used to adapt legal interpretation to fit what society – and not just governments – expects and wants. To debate what international law requires, or even the empirical questions of when, why and if international law will be effective or followed, is not in itself a conversation about whether the international ROL is the ideal that is aspired to. In the West, scholars and practitioners regularly question whether the domestic ROL analogy does, can or should guide debates about international law. They also question whether the UN system is a ROL system. This question arises because five countries are permanent members of the UN Security Council that has veto powers; the General Assembly and many other UN bodies can only issue non-binding decisions or recommendations, and the International Court of Justice can only rule on cases where states seek a binding ruling or a state or UN body seeks a non-binding advisory opinion. Thus, another reason why many in the West do not actively endorse an international ROL is because the UN system is not up to the task of actually delivering something that Western legal scholars would recognize as the ROL. Throughout time one can find references to the ideal of an international ROL.125 Many political practitioners view these statements as a fantasy project of legal idealists. Dominated by statism and realism, IR scholars often dismiss international law as either practicably irrelevant or merely a legitimating fig leaf. Yet even Hans Morgenthau understood the persuasive and legitimating power of international law. Chinese leaders seem to understand this reality as well, as China’s leaders expend considerable energy enouncing and reinforcing a narrative where China is a law-abiding participant and leader in a multilateral international system. Our own view is that legal communities of practice are important actors shaping law and legal understandings, and the attribute of legality – of an action being consonant with the law – provides meaningful and politically powerful sociological legitimacy. Yet we are not participants in a narrative that imagines that there actually is or will soon be an international ROL. This is not 125

Orford, supra note 63, at 541–2.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

112

Karen J. Alter and Ji Li

simply a realist viewpoint. Rather, if one values democracy and democratic choice, then people should be able to change their minds about past international legal commitments. The goal, then, is an international politics that is in most cases constrained by international law, and an international law that can subdue the worst practices of politics and economics. We anticipate that China’s top-down narrative about its own particularistic vision of an international ROL, voiced through various channels, will run up against a fundamentally different understanding of what the ROL entails. For foreign policy to be seen as internationally legitimate, as opposed to merely self-interested or even illegal, a state will need to be able to explain how its policy coheres with international law. But neither a government nor the UN Security Council will be able to declare for others what international law requires, or that a state’s behaviour is legal under international law. The politics of international law will inevitably be a contestation about what international law does and does not require. In other words, international law is a contested playing field of legal politics where no state monopolizes the narrative, let alone academic discourses.126 In the Chinese context, however, the state asserts considerable influence over scholarly debates concerning international ROL,127 undermining their independence, rigor and perceived legitimacy. One might see Western sceptics who question the objective of an international ROL as one way to make sense of the reality that international law is often not shaping international behaviour. Yet this does not mean that a solution is to have powerful governments determine what law means. Nor does it mean that, released from Western dominance, the UN will turn into a democratic forum for sovereign equals to make collective decisions about international law. This means that even if Chinese scholars genuinely believe that their country operates according to international law, and that it pursues win–win agreements that it then respects, this vision of China’s relation to international law and of what international law is all about must compete with alternative ideas. To be sure, the twenty-first-century wars and the persistent global inequality do not present a vision of a Western international ROL that has great appeal. Yet, for more than seventy years, countries have engaged in crafting legal agreements to promote shared objectives and ideals. Whether and how far state and non-state actors will be willing to greatly reduce the content of international law so as to facilitate greater law compliance, a perspective advanced by influential voices within the US international legal academia128 and consistent with China’s desire for a UN-centric international law, is yet to be seen.

126 127 128

Though structural bias may exist given the West’s dominance over major international media outlets. Erie, supra note 119. See, e.g., by a new editor of the American Journal of International Law, Ingrid Wuerth, ‘International Law in the Post-Human Rights Era’ (2017) 96 Texas Law Review, 279.

https://doi.org/10.1017/9781009041133.007 Published online by Cambridge University Press

6 International Law in Chinese Courts Bjo¨rn Ahl

6.1 INTRODUCTION

Whereas statutory provisions and government statements regarding the domestic implementation of international law often remain vague, court practice reveals the actual significance of international law within a domestic legal system. Previous research has demonstrated that courts in China in principle refrain from applying international treaties directly if there is no specific enabling legislation that commands courts to apply international norms. Apart from reviewing scholarly writings and analysing legislation, the chapter makes use of open access court decision databases in order to investigate the interpretation and application of international law by Chinese courts. The chapter analyses a number of treaties from various areas of international law in order to answer, inter alia, the following questions: What kind of international treaties are applied by courts? Do judges give primacy to national law or to international law in case of conflicting provisions? What standards of interpretation do judges apply when interpreting international treaties? The study further analyses court practice with regard to other sources of international law such as international customary law. Moreover, it addresses the questions of how Chinese courts fit into global trends of applying international law in domestic courts, whether Chinese judges selectively adapt international norms or engage in international normmaking. Scholarship has observed a rise in domestic courts’ engagement with international law and attributed this development to the increasing scope and the increasingly inward-oriented reach of international law.1 Another factor contributing to the increased application of international law by domestic courts is the expansion of the powers of courts in relation to the other branches of government, a phenomenon that is referred to as the judicialization of politics.2 As the People’s Republic of China (PRC) has joined many bilateral and multilateral treaties over the past decades, and has even become a state party to several international human rights conventions,3 the first factor equally applies to China. Although more recent court reforms have strengthened the autonomous decision-making of Chinese courts, the power structure of the Chinese party-state appears to leave less room for entrenched judicialization compared to liberal rule-of-law systems.4 Factors relating to the context and organization of courts 1

2

3 4

Antonios Tzanakopoulos and Christian Tams, ‘Introduction: Domestic Courts as Agents of Development of International Law’ (2013) 26 Leiden Journal of International Law, 531–40, 534. Ran Hirschl, ‘The Judicialization of Politics’ in Keith Whittington, Daniel Kelemen and Gregory Caldeira (eds.), The Oxford Handbook of Law and Politics, 119–41 (Oxford: Oxford University Press, 2008). On international human rights law, see further Chapter 13 in this volume. Bjo¨rn Ahl, ‘Judicialization in Authoritarian Regimes: The Expansion of Powers of the Chinese Supreme People’s Court’ (2019) 17 International Journal of Constitutional Law, 252–77.

113 https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

114

Bjo¨rn Ahl

predetermine to a certain extent if and how judges apply international law. Chinese courts are embedded institutions whose autonomy to adjudicate is constrained by administrative, political, social and economic factors.5 Consequently, judicial policies that shield the party-state’s pursuit of economic growth and regime maintenance against international legal constraints may prohibit a more internationalist attitude of Chinese courts.6 Further, the constitutional status of the judiciary, in particular the relation between the courts and the legislature, constitutes limits of judges’ engagement with international law. How courts deal with norm conflicts in domestic law also predetermines how they decide norm conflicts between obligations under international law and domestic law. Chinese law does not equip courts with the power to determine norm conflicts, with the consequence that lower-ranking legislation, which deviates from higher-ranking law, becomes void. However, in practice, courts resolve norm conflicts on the application level as they set aside lower-ranking local regulations that are inconsistent with higher-ranking legislation and apply the higher-ranking national law.7 This practice relating to norm conflicts in domestic law implies that courts likewise will seek a non-confrontational solution when deciding cases that require them to resolve conflicts between domestic law and international law. 6.2 CHINESE LAW AND LEGAL SCHOLARSHIP ON THE DOMESTIC EFFECTS OF INTERNATIONAL LAW

The Chinese Constitution does not stipulate the effects of international law within the domestic legal system. It provides only for the power of the State Council to conclude treaties, the competence of the state president to ratify treaties and the power of the National People’s Congress Standing Committee (NPCSC) to approve treaties.8 In 2014 the NPCSC discussed whether to include provisions on the application of international treaties in the amendment of the Legislation Law.9 This proposal was rejected owing to concerns that the direct application of international treaties by courts would threaten the unity of the Chinese legal system. It was argued that giving priority to the application of executive agreements concluded by a department of the State Council in case of conflict with a legal provision adopted by the National People’s Congress (NPC) would contradict the established hierarchy of norms.10 So far, no specific steps have been taken to introduce a general rule on the domestic effects of international law, be it via a constitutional amendment or the introduction of ordinary legislation.

5

6

7

8 9

10

Kwai Hang Ng and Xin He, Embedded Courts: Judicial Decision-Making in China (Cambridge: Cambridge University Press, 2017). Congyan Cai, ‘International Law in Chinese Courts During the Rise of China’ (2016) 110 American Journal of International Law, 269–88. Ma Dehua [马得华], ‘On “Refusal to Apply”: A Passive Judicial Review – Analysis Centred on Article 63 and 64 of the Administrative Litigation Law [论“不予适用”: 一种消极的司法审查 – 以《行政诉讼法》第63条和64条为中心 的考察]’ (2016) 4 Global Law Review [环球法律评论], 57–74. Art. 89(9), 81, 67(15) PRC Constitution [中华人民共和国宪法] of 4 December 1982 (as amended on 11 March 2018). PRC Legislation Law [中华人民共和国立法法] of 15 March 2000 amended on 15 March 2015. For a scholarly proposal, see Bjo¨rn Ahl, ‘The Relation Between International Law and German Law: Suggestions for the Amendment of the Chinese Legislation Law [国际法与德国法的关系以及对立法法修改的建议]’ in Libin Xie [谢立斌] (ed.), Chinese–German Comparative Study on Legislation [中德立法比较研究], 62–72 (Beijing: CUPL Press, 2017). ‘Standing Committee Members and Attendees Suggested Clarifying the Application of International Treaties in Our Country [一些常委委员和列席人员建议明确国际条约在我国的适用]’, Legal Daily [法制日报] (24 November 2014).

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

115

6.2.1 Laws, Supreme People’s Court Judicial Interpretations, Other Judicial Documents, Guiding Cases and Typical Cases Whereas the Chinese Constitution is silent on the effects of international law in the domestic legal system, ordinary legislation and judicial interpretations of the Supreme People’s Court (SPC) include enabling clauses that mandate the direct application of international law under certain conditions such as a conflict between a treaty obligation and a domestic legal rule. The Civil Procedure Law of 1982 stipulated that courts should apply international treaties if such treaties include provisions that deviate from the Civil Procedure Law.11 A similar provision, though with a broader scope of application, was included in the 1986 General Principles of Civil Law, which required the prior application of international treaties if their provisions differed from provisions in the civil laws of the PRC.12 For certain foreign patent applications, the Patent Law refers to international treaties for handling such applications.13 Currently, there are more than seventy similar references to international law in Chinese domestic laws and regulations that command under certain conditions the application of norms of international law within a particular area of municipal law.14 However, in recent years, provisions that refer to international law were removed from legislation. For example, during the amendment of the Administrative Procedure Law in 2014, Article 72 was dropped although the scholarly draft suggested to keep the provision on the primary application of international treaties.15 With the coming into effect of the new Civil Code in January 2021, the broad reference to treaty law in the 1986 General Principles of Civil Law ceased to be effective.16 During the drafting of the Law on the Application of Law in Foreign-Related Civil Relations, a rule on the application of international treaties was considered but was dropped owing to the ‘complexity of the application of international treaties’.17 Scholars have criticized the recent tendency to remove the references to international law from ordinary legislation as a regression and suggested that this legislative loophole be properly and timely addressed.18 Moreover, legal scholars have warned that judges may understand this development as the legislature’s general disapproval of the direct application of international law by courts.19 Others regard the removal of references to international law more positively as a demonstration of China’s new confidence in its domestic law, which has caused the state to attach less importance to international law.20 11

12 13 14

15

16 17

18

19

20

Art. 189 PRC Civil Procedure Law [中华人民共和国民事诉讼法] of 8 March 1982. The law contains a similar provision in Art. 260 of the current version (revised in 2017). Art. 142(2) PRC General Principles of Civil Law [中华人民共和国民法通则] of 12 April 1986. Art. 18 PRC Patent Law [中华人民共和国专利法] of 12 March 1984. Xue Hanqin and Jin Qian, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8 Chinese Journal of International Law, 299–322, 303. He Haibo et al. [何海波等], ‘Ideal Administrative Litigation Law – Scholarly Proposal of the Administrative Litigation Law of PRC [理想的《行政诉讼法》 – 《中华人民共和国行政诉讼法》学者建议稿]’ (2014) 2 Administrative Law Review [行政法学研究], 9–39, 16, 36. The Civil Code of PRC [中华人民共和国民法典] of 28 May 2020, entered into effect on 1 January 2021. Press Conference on the First Interpretation of Several Questions Concerning the Law on Choice of Law for Foreign-Related Civil Relationships of People’s Republic of China by Director of the Fourth Civil Division of the SPC [最高人民法院民四庭负责人就《关于适用若干问题的解 释 (一) 》答记者问] of 23 April 2013, www.court.gov.cn/shenpan-xiangqing-5275.html. Ding Wei [丁伟], ‘The Optimisation of China’s Private International Law in the Post-Civil Code Era [后《民法 典》时代中国国际私法的优化]’ (2020) 5 Tribune of Political Science and Law [政法论坛], 33–45, 40. Congyan Cai [蔡从燕], ‘China’s Rising, Foreign Relations Law and Redesign of the Functions of Courts [中国崛起 对外关系法与法院的功能再造]’ (2018) 5 Wuhan University Journal (Philosophy and Social Science) [武汉大学学 报哲学社会科学版], 130–43, 140. He Zhipeng [何志鹏], ‘Inquiry of the Importance of International Law in China [国际法在新时代中国的重要性探 究]’ (2018) 1 Tsinghua Law Review [清华法学], 6–30, 9.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

116

Bjo¨rn Ahl

The gradual removal of ordinary legislation that refers to international treaties without providing for a general rule of domestic treaty application indeed signals that international treaties have become less relevant for domestic courts. This development is in line with official rhetoric of the post-2013 period that emphasizes China’s status as a great power. However, it is difficult to measure the impact of this new legislative tendency on court practice as the reference provisions were quite ambiguous in the first place. References to international treaties that ought to be applied by courts in cases when domestic legislation deviates from international law carry an internationalist message. However, such enabling legislation provides for considerable flexibility on both the international and the domestic level. On the international level, such legislation can be referred to as a proof of treaty implementation, whereas on the national level it grants judges a margin of discretion that allows them to deny the direct application of treaties owing to an alleged lack of a conflict between domestic and international law. The SPC has adopted a number of judicial interpretations and other judicial documents that guide the direct application of international treaties by courts.21 Judicial interpretations do not relate to specific cases but include general and abstract stipulations that are legally binding.22 They are very important in practice as they provide more detailed provisions than statutes and include specific guidance for courts. Starting from the late 1980s, the SPC developed the practice to issue instructions to lower courts when an international treaty entered into force for China. For example, in 1988 the SPC issued a notice on international judicial assistance, to which it attached the Chinese Polish Agreement on Judicial Assistance in Civil and Criminal Matters and gave courts specific instructions how to implement such agreements.23 In a 1992 notice regarding the implementation of the Hague Service Convention, the SPC required lower courts to reject foreign judicial assistance requests if they did not comply with the requirements of the Convention.24 The SPC implicitly denied the direct applicability of the World Trade Organization (WTO) agreements in a 2002 judicial interpretation that required courts to apply the principle of consistent interpretation of domestic law in WTO-related cases.25 Judicial interpretations or other judicial documents supplement statutory references to international law. Further, they may mandate (or exclude, as in the case of WTO law) the direct applicability of treaties without specific statutory references to international law. In recent years, the SPC has neither extended the scope of treaties that are directly applicable nor given more specific instructions to courts on how to apply certain treaties. Instead, judicial documents have emphasized the principles underlying treaty application in a more abstract manner. For example, the 2015 SPC Opinion on Comprehensively Advancing Foreign-Related Commercial and Maritime Trials required courts to scrupulously abide by treaty obligations, correctly understand and accurately apply international treaties, actively 21

22

23

24

25

Zhao Jun and Zhang Dandan [赵骏、张丹丹], ‘The SPC and the Perfection of the Judicial Application of Treaties [最高人民法院与条约司法适用机制的完善]’ (2017) 2 Journal of Zhejiang University [浙江大学学报人文社会科 学版], 93–106. Art. 5, Provisions of the Supreme People’s Court on the Judicial Interpretation Work [最高人民法院关于司法解释 工作的规定] of 9 March 2007. Notice of the SPC on the Implementation of China-Foreign Agreements on Judicial Assistance [最高人民法院关于 执行中外司法协助协定的通知] of 1 February 1988. Notice of the Ministry of Justice, the SPC and the Ministry of Foreign Affairs on Issuing the Measures of Implementation of the Hague Service Convention [司法部, 最高人民法院, 外交部关于印发关于执行海牙送达 公约的实施办法的通知] of 19 September 1992. Art. 9, Provisions of the SPC on Several Issues Concerning the Hearing of International Trade Administrative Cases [最高人民法院关于审理国际贸易行政案件若干问题的规定] of 27 August 2002; Zuo Haicong [左海聪], ‘Study on the Direct Application of Treaties [直接适用条约问题研究]’ (2008) 3 Chinese Journal of Law [法学研究], 88–97, 93.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

117

participate in international norm-making, provide assistance to departments engaged in treaty negotiations and make the voice of the Chinese judiciary heard in shaping international rules on investment, trade and shipping.26 In the same year the SPC adopted an Opinion on Providing Judicial Services to the Belt and Road Initiative (BRI).27 The Opinion required courts to apply international treaties accurately on the basis of domestic law in order to strengthen the international credibility of adjudication. It obliged courts to increase the judicial capability of applying international treaties and demanded judges to study international treaties in the areas of trade, investment, finances, maritime transportation and so on. With regard to treaty interpretation, the Opinion required judges to interpret international treaties in good faith and strictly according to the Vienna Convention on the Law of Treaties (1969) (VCLT), that is, according to the usual meaning of the wording, the context and with reference to its aims and objectives.28 Commentators have criticized such judicial documents as lacking sufficient guidance for lower courts as they do not determine the specific international treaties to be directly applied.29 However, the judicial documents are clear in that they imply that courts can apply international law only where domestic law allows for direct application, are limited to treaties relating to the economic realm, require international interpretation standards to be observed and call upon courts to become more active in international norm-making.30 Apart from judicial interpretations and other judicial documents, the SPC adopts guiding cases that relate to the application of treaties. The SPC selects and substantially edits decisions from any court in China, publishes them and vests them with factual binding authority. Courts have to take guiding cases into account if they decide similar cases.31 The SPC adopted a number of guiding cases that relate to the direct application of treaties. For example, Guiding Case No. 31 addresses in the main points of adjudication the applicability of the 1972 International Regulations for Preventing Collisions at Sea, where the relevant vessels agreed on a crossing not in accordance with the Regulations.32 However, given their relatively low number and the narrow scope of application of most guiding cases, they have not yet gained a relevance in practice that is comparable to that of judicial interpretations. Hence, their role in guiding the application of international treaties in courts remains limited for the time being.33 Apart from guiding cases, the SPC publishes so-called typical cases in its official gazette. The SPC adopted two batches, at a total of eighteen typical cases, in 2015 and 2017 that the court 26

27

28 29

30 31

32

33

Opinions of the SPC on Comprehensively Promoting the Strategy of High-Quality Adjudication in Foreign-Related Commercial and Maritime Matters and Providing Effective Judicial Safeguards for Establishing an Open Economic System and a Great Maritime Power [最高人民法院关于全面推进涉外商事海事审判精品战略为构建开放型经 济体制和建设海洋强国提供有力司法保障的意见] of 14 July 2015. Several Opinions of the SPC on People’s Courts Providing Judicial Services and Safeguards for Establishing ‘One Belt, One Road’ [最高人民法院关于人民法院为 “一带一路” 建设提供司法服务和保障的若干意见] of 16 June 2015. Ibid. See also Arts. 31–3 VCLT (1969). Yu Zijin and Li Jian [虞子瑾李健], ‘On Challenges and Opportunities of the Chinese System of Judicial Treaty Application [论我国条约司法适用制度的困境与出路]’ (2016) 8 Political Science and Law [政治与法律], 138– 47, 139. For a discussion of Chinese courts as international norm-makers, see Section 6.5 of this chapter. Art. 7, Regulations of the SPC on the Work with Guiding Cases [最高人民法院关于案例指导工作的规定] of 15 November 2010. Bjo¨rn Ahl, ‘Retaining Judicial Professionalism’ (2014) 217 China Quarterly, 121–39. Jiangsu Weilun Shipping Co., Ltd. v. Miranda Rose Limited, ship collision damages dispute, trial at first instance by Shanghai Maritime Court [江苏炜伦航运份有限公司诉米拉达玫瑰公司船舶碰撞损害赔偿纠纷案] of 20 October 2014. Further, guiding cases no. 37, 51, 107, 109 and 110 relate to international treaties. Zhao Jun and Zhang Dandan, supra note 21, at 100.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

118

Bjo¨rn Ahl

described as being related to the BRI.34 Yet the typical cases – though all concerning a foreign element – did not necessarily involve BRI members and none of them concerned BRI projects. There is a lower threshold for the issuing of typical cases that also contain summaries of court decisions from any level of courts in China, as they lack the de facto binding authority and do not require approval by the SPC Adjudication Committee. Hence, typical cases that relate to the application of international law could be adopted in greater number at a higher frequency and facilitate the application of international law in Chinese courts in the future.35 6.2.2 Legal Scholarship on the Application of International Law in Domestic Courts In general, Chinese scholarship rejects both the monistic and the dualistic positions that are used to describe the relationship between international law and domestic legal systems. The monist theory with the primacy of international law is seen as too far-reaching a restriction of state sovereignty.36 Although the dualist theory recognizes state sovereignty, scholarship criticizes the approach as overemphasizing the formal antagonistic aspects of both spheres of law and disregarding their connections.37 Instead, scholars emphasize the dialectical relationship between international and municipal law by arguing that they are separate legal systems that infiltrate and supplement each other rather than conflict with each other.38 According to Zhou Gengsheng’s theory of ‘automatic coordination’, normative conflicts between domestic and international law are avoided as long as states take into account their international obligations when adopting domestic law and consider the requirements of their own domestic system when participating in international norm-making.39 The dialectical model is based on the assumption of separate legal systems in the sense of an ‘attenuated dualism’. As it leaves the normative question open of how normative conflicts between domestic and international law should be resolved, it provides certain flexibility for the judicial practice of treaty implementation.40 Before China’s preparation of the WTO accession during the second half the 1990s, scholarship mainly interpreted the Chinese practice of treaty implementation in terms of the adoption mechanism. Pursuant to the ‘adoption mechanism’, a general rule of domestic law provides for the automatic incorporation of international law into the national legal system. Yet this approach was developed when treaty obligations were mainly directed at states as such and the possibility of private entities invoking treaty provisions before Chinese courts was merely theoretical. Based on the legislation that provided for the primary application of treaties in domestic law, scholars argued that treaties become part of domestic law and are directly applicable once they bind the PRC under international law.41 This monist approach was abandoned before China’s accession to the WTO when scholars reached the conclusion that the WTO Agreement and its Annexes should not be directly applicable in Chinese law.42 Gradually, the internationalist approach was replaced by more realistic positions that limited 34

35 36 37 38 39 40 41 42

Typical Cases on How the People’s Courts Provide Judicial Services and Protection for the Establishment of the BRI [人民法院为“一带一路”建设提供司法服务和保障的典型案例] of 7 July 2015; The Second Batch of Typical Cases Relating to the Establishment of the BRI [第二批涉“一带一路”建设典型案例] of 15 May 2017. Qiao Liu, ‘The Use of Case Law in China’s Belt and Road Initiative’ (2021) 29 Asia Pacific Law Review, 129–48, 146. Wang Tieya [王铁崖], International Law [国际法] (Beijing: Law Press, 1995), 29. Cao Jianming [曹建明], Public International Law [国际公法] (Beijing: Law Press, 1998), 22. Wang Tieya, Introduction to international Law [国际法引论] (Beijing: Beijing University Press, 1998), 191. Zhou Gengsheng [周鯁生], International Law [国际法] (Beijing: Commercial Press, 1983), 16. Bjo¨rn Ahl, ‘Chinese Law and International Treaties’ (2009) 39 Hong Kong Law Journal, 737–52, 740. Rao Geping [饶戈平], International Law [国际法] (Beijing: Beijing University Press, 1999), 29. Yu An [于安], ‘The Problem of the Domestic Implementation of the WTO Agreement [WTO协定的国内实施问 题]’ (2000) 3 Chinese Legal Studies [中国法学], 3–12, 4.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

119

the domestic effects of treaties either by arguing that making treaties part of domestic law does not imply their direct applicability or by selectively adopting only those treaty provisions that were directly referred to by enabling legislation.43 One group of scholars interpreted the implementation practice in terms of the ‘transformation mechanism’. The implementation mode of transformation builds on the idea of dualism and denotes a legislative ad hoc incorporation of international law. Such scholarship rejected the argument that the scattered statutory provisions referring to international treaties embody a general rule of automatic treaty incorporation.44 In contrast to adoption, the act of transformation is understood to be conducted selectively with regard to individual treaty provisions that are transformed into domestic law through legislative acts, whereas other parts of international treaties are omitted from transformation.45 Another group of scholars understood the practice of treaty implementation as a ‘hybrid mechanism’ in the sense of a synthesis of adoption and transformation.46 The underlying assumption is that directly applicable treaty provisions become part of domestic law whereas provisions that are not directly applicable require transformation. The hybrid mechanism can be understood as a process that adopts the international treaty as a whole into the national legal system. However, in order to make the entire content of the international treaty directly applicable within domestic law, this view requires in a second step that the legislature adopts implementing legislation for non-directly applicable treaty provisions.47 Today, some commentators criticize the ad hoc approach to treaty implementation and the lack of a general rule on the domestic effects of international law. According to this view, legal predictability and the orderly implementation of international obligations require that courts are provided with a clear statutory rule of treaty application.48 However, other scholars have argued that the lack of a general rule implies flexibility, which is beneficial for a rising China that prioritizes the pursuit of domestic policies.49 Another view asserts that courts can, nonetheless, directly apply treaties on civil and commercial matters, even if there is no ordinary legislation or judicial interpretation that allows for their direct application.50 There are different perspectives on the question of a general rule on the domestic effects of international treaties. For example, some scholars suggest the adoption of a constitutional provision that determines that treaties are part of Chinese domestic law, their status within the hierarchy of norms and their direct applicability.51 With regard to the status of treaties in the domestic legal system, scholars hold that, while the current legislative practice implies a general principle of the primacy of international treaties, the Constitution should confer upon international treaties and generally recognized norms of international law a status that is 43

44 45

46

47 48 49 50

51

Che Pizhao [车丕照], ‘On the Application of Treaties in China [论条约在我国的适用]’ (2005) 3 Legal Studies Journal [法学杂志], 96–9, 97. Wang Xianshu [王献枢], International Law [国际法] (Wuhan: Wuhan University Press, 2000), 43. Liu Nanlai [刘楠来], ‘The Domestic Application of Treaties and the Establishment of a Legal System in China [条 约在国内的适用与我国的法制建设]’ in Zhu Xiaoqing and Huang Lie [朱晓青, 黄列] (eds.), The Relationship Between International Treaties and Municipal Law [国际法与国内法的关系] (Beijing: World Knowledge Press 2000), 135–42, at 139. Dong Guolu [董国路], ‘The Application of International Law in China [国际法在中国的适用]’ (2002) 3 Wuhan University Journal [武汉大学学报], 349–53, 350. Bjo¨rn Ahl, ‘Chinese Law and International Treaties’, supra note 40, at 745. Zhao Jun and Zhang Dandan, supra note 21, at 98–9. Congyan Cai, ‘International Law in Chinese Courts’, supra note 6, at 273. Xiao Yongping [肖永平], ‘The New Stage of Advancing Rule of Law Comprehensively: Promoting Coordination of Rule of Law at National and International Levels [全面依法治国的新阶段: 统筹推进国内法治与国际法治建设]’ (2018) 1, Wuhan University International Law Review [武大国际法评论], 1–19, 16. Zuo Haicong, ‘Study on the Direct Application of Treaties’, supra note 25, at 96.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

120

Bjo¨rn Ahl

below the Constitution and above the laws adopted by the NPC and the NPCSC.52 Other scholars hold the opinion that a constitutional provision should be limited to defining the rank of international treaties; it should leave the question of the direct applicability of treaties to ordinary legislation and SPC judicial interpretations.53 If ordinary legislation stipulates the rank of the treaty in domestic law, courts shall determine the primary applicability of the relevant treaty provisions pursuant to that ordinary legislation.54 When legislation is silent on the direct applicability of treaty law, courts are free to apply treaty law on a case-by-case basis.55 Finally, another group of scholars argues that the Constitution is sufficiently clear on the domestic effects of international law as the current provisions on the conclusion, approval and ratification of treaties form a unity with law making procedures and competences, which implies that international treaties concluded by China are part of domestic law and have the same rank as domestic statutes.56 Many Chinese scholars hold the view that international treaties are applicable only to legal relations that contain a foreign element,57 whereas others maintain that, in practice, courts apply international law also to domestic cases.58 However, there is also an argument that the courts’ application of treaties is sensitive to the nature of the legal relationship that the treaty provisions regulate. Chinese courts normally do not support claims based on treaty law in cases where the relationship between private entities and foreign states is governed by the international rules on immunity or where the relationship between private entities and the Chinese state is governed by international human rights law. Where treaties extend the jurisdiction of domestic courts into new areas, Chinese courts do from time to time apply such treaties. Only treaties that govern the relationship between private entities, such as the UN Convention on Contracts for the International Sale of Goods or the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, are regularly applied by domestic courts.59 Pursuant to more general observations of Chinese scholarship, domestic courts display a conservative attitude towards international law and often hesitate to apply treaty provisions.60 This attitude that gives priority to domestic law and largely ignores international obligations is related to the argument that in cases where the Chinese government did not initiate a certain international treaty, giving legal domestic effects to international treaties is generally detrimental 52

53

54

55

56

57

58

59 60

Wang Dezhi [王德志], ‘On the Interactions between the Constitution and International Law [论宪法与国际法的互 动]’ (2019) 1, China Legal Science [中国法学], 122–39, 139. Chen Weidong [陈卫东], ‘Studying the Essential Issues of Regulating Treaties in the Constitution [条约入宪基本 问题研究]’ (2012) 3, Journal of Beijing Institute of Technology (Social Science Edition) [北京理工大学学报社会科 学版], 123–31, 125. Peng Yue [彭岳], ‘The Problem of Systemic Ossification in the Domestic Application of International Treaties and Its Resolution [国际条约在国内适用中的制度僵化及其解决]’ (2014) 4 Chinese Legal Science [中国法学], 286–302, 300–1. Zhao Jianwen [赵建文], ‘The Position of Treaties in China’s Domestic Legal System [国际条约在中国法律体系中 的地位]’ (2010) 6 Chinese Journal of Law [法学研究], 190–206, 192, 199. Gu Zuxue [古祖雪], ‘International Law as Part of the Law to Govern the State: China’s Positions and Institutional Practices [治国之法中的国际法: 中国的主张和制度的实践]’ (2015) 10 China Social Science [中国社会科学], 147– 58, 151–2. Song Jianli [宋建立], ‘Several Issues of the Domestic Application of International Treaties [国际条约国内适用的若 干问题]’ (2015) 5, People’s Judicature (Application) [人民司法应用], 51–5, 53. Wan E’xiang and Yu Xiaohan [万鄂湘余晓汉], ‘On the Application of International Treaties in Domestic Civil Relations Without Foreign-Related Elements [国际条约适用于国内无涉外因素的民事关系探析]’ (2018) 5 Chinese Legal Science [中国法学], 5–20, 17; Convention on the International Regulations for Preventing Collisions at Sea of 20 October 1972. Congyan Cai, ‘International Law in Chinese Courts’, supra note 6, at 277–87. Yu Zijin and Li Jian, ‘On Challenges and Opportunities’, supra note 29, at 139.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

121

to Chinese national interests. According to this argument, denying the domestic application of an international treaty maintains independent decision-making in internal affairs.61 6.3 APPLICATION OF INTERNATIONAL LAW BY CHINESE COURTS

6.3.1 Treaty Law Existing studies have demonstrated that Chinese courts have developed a consistent practice of directly applying more than thirty international treaties to disputes about intellectual property, international trade in goods, maritime commerce and international air and rail transport, as well as judicial assistance in civil and criminal matters; overall, most cases relate to international civil and commercial matters.62 The following analysis of treaties regulating specific subject matters begins with those treaties that protect intellectual property rights. The subsequent two treaty categories do not fall into the group of treaties that regulate the legal relationships between private entities but concern, at least in part, the relationship between individuals and the Chinese state. These are human rights treaties and double taxation avoidance treaties. Further, this section analyses court practice with regard to a fourth category of international treaties, namely, diplomatic and consular treaties that primarily deal with the relations among states but in certain aspects function to protect nationals of the sending state. 6.3.1.1 Intellectual Property Treaties Starting from the 1990s, domestic courts have directly applied the 1992 China–US Memorandum of Understanding on the Protection of Intellectual Property as well as the Berne Convention in copyright infringement cases.63 As domestic law on the protection of intellectual property has significantly improved since then, courts nowadays normally apply only domestic legislation. Yet they may refer to intellectual property treaties when interpreting domestic legislation.64 If courts refer to international intellectual property treaties, they often cite both domestic legislation and international law on the protection of intellectual property as a legal basis without clarifying their relationship.65 6.3.1.2 Human Rights Treaties Although China has ratified many human rights treaties,66 there is no express domestic enabling legislation that mandates courts to directly apply them and, consequently, courts only very rarely 61 62 63

64

65 66

He Zhipeng, ‘Inquiry of the Importance’, supra note 20, at 9. Yu Zijin and Li Jian, ‘On Challenges and Opportunities’, supra note 29, at 138–9. On international intellectual property law, see Chapter 22 in this volume. See also Twentieth Century Fox Film Corporation v. Beijing Superstore for Cultural and Arts Publications and AV Products Inc., dispute over copyright Infringement, trial at first instance by Beijing First Intermediate People’s Court [北京市第一中级人民法院二十纪福 克斯电影公司诉北京市文化艺术出版社音像大界侵犯著作权纠纷案] of 26 November 1996; Walt Disney Company v. Beijing Publishing House Group, dispute over copyright infringement, trial at second instance by High People’s Court of Beijing [美国沃尔特·迪斯尼公司诉北京出版社等侵犯著作权纠纷案] of 19 December 1995. Yang Peiru [杨珮茹], ‘Application of International Intellectual Property Treaties in Chinese Courts [知识产权国际 条约在我国法院的适用]’ (2020) 9 Intellectual Property [知识产权], 72–83, 77–8. Ibid., at 80. For an overview, see the UN Treaty Body Database, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/ Treaty.aspx?CountryID=36&Lang=EN.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

122

Bjo¨rn Ahl

refer to human rights treaties in practice.67 A recent study found that courts cited human rights treaties in fifty-seven decisions between 2021 and 2018. Often, courts cite international treaties in response to litigants’ arguments that are based on international treaties. The Convention on the Rights of the Child (CRC) has been cited most often, followed by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights, although it has not been ratified by the PRC. Courts cited human rights treaties in order to fill gaps in domestic legislation; they cited similar provisions in human rights treaties and in domestic law at the same time or interpreted domestic law in line with human rights treaties.68 In a 2021 case on the custody of a child that was born to a surrogate mother, the court referred to Article 3(1) of the CRC and based the custody decision on the principle of the best interest of the child.69 In a number of recent cases, courts referred to the definition of a child in Article 1 of the Convention in order to interpret national legislation in line with international law.70 Further, in 2019 a court cited the UDHR in order to supplement the provision on the protection of human rights in Article 33 of the Chinese Constitution.71 In the 1990s, the Chinese government made a number of affirmative statements about the direct applicability of international human rights law in the Chinese domestic legal system before human rights treaty bodies.72 For example, when the PRC government explained and defended its human rights policy during the review of its periodic report by the Committee Against Torture in 1990, it stated: Offences under the Convention were also regarded as offences under Chinese domestic law. When China acceded to any convention, it became binding as soon as it entered into force. China then fulfilled all its obligations, and it was not necessary to draft special laws to ensure conformity. If an international instrument was inconsistent with domestic law, the latter was brought into line with the former. Where subtle differences remained, international instruments took precedence over domestic law.73

Yet these statements were later replaced by pronouncements that pointed to the requirement of legislative transformation of international human rights obligations. For example, when the PRC government was asked by the Committee on the Rights of the Child in 1996 to provide information on the implementation of the Convention in court, it stated: The main contents as well as the basic principles of the Convention are in conformity with relevant Chinese laws and policies, and this is particularly true with provisions 67

68

69

70

71

72

73

Song Jianing and Zhang Rong [宋佳宁, 张容], ‘New Path of Domestic Judicial Application of International Human Rights Conventions: From the Perspective of the Theory of Interpretative Application [国际人权公约国内司法适 用的新路径 – 以解释性适用理论为视角]’ (2019) 4 Journal of Soochow University Law Edition [苏州大学学报法学 版], 117–28, 124. Dai Ruijun [戴瑞君], ‘Study of the Application of International Human Rights Treaties by Chinese Courts [我国对 国际人权条约的司法适用研究]’ (2020) 1 Human Rights [人权], 135–54. Chen Ying v. Luo Ronggeng, dispute over succession, trial at second instance by the First Intermediate People’s Court of Shanghai Municipality [陈莺诉罗荣监护权纠纷一案二审民事判决书] of 26 January 2021. He Jing v. Guangdong Yifang Medicine Co. Ltd. and Jiangxi Sancheng Co. Ltd., product liability dispute, trial at first instance by the Primary People’s Court of Yongning County [贺某与广东逸方药业有限公司江西三诚实业有限 公司产品责任纠纷] of 19 June 2019; Zhang Xuelian [张雪莲], ‘Application by Interpretation: New Trend of the Domestic Application of International Human Rights Law in China [解释性适用: 国际人权法要国内法院适用的 新趋势]’ (2016) 5 Oriental Law [东方法学], 73–80, 80. Qi Jianzhong, Mao Yongzhi et al. v. Government of Jing’an District of Shanghai City, administrative compensation for house acquisition dispute, retrial by the Supreme People’s Court [戚建中毛咏之等诉上海市静安区人民政府 行政房屋征收赔偿再审行政裁定书] of 30 August 2019. Bjo¨rn Ahl, ‘Statements of the Chinese Government Before Human Rights Treaty Bodies: Doctrine and Practice of Treaty Implementation’ (2010) 12 Australian Journal of Asian Law, 82–105. Committee against Torture, Fourth Session, Summary Record of the 51st Meeting, 27 April 1990, UN doc CAT/C/SR.51.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

123

relating to the trial procedures involving minors. According to the Chinese laws, when China’s domestic laws are in conformity with international conventions which are ratified by China or of which China is a State party, the domestic laws will be applied and the relevant stipulations of the international conventions are implemented through application of the domestic laws. Only in cases which are not covered by the domestic laws, stipulations of the international conventions will be cited in the court decisions. Since the stipulations of the Convention concerning the trial procedures of minors are in conformity with relevant Chinese laws, the Chinese courts always directly apply the Chinese laws in hearing cases involving minors and there is no need to invoke specific stipulations of the Convention.74

All in all, we can observe that courts in general avoid applying human rights treaties in cases where individuals assert claims against the state but make use of them – although very rarely – in disputes between private entities.75 6.3.1.3 Double Taxation Avoidance Treaties The PRC has entered into more than 100 bilateral treaties that deal with the avoidance of double taxation. Yet domestic courts do not often apply such treaties. Scholars argue that the content of double taxation avoidance treaties is not suitable for direct application by courts.76 However, in a decision of 2001 in the case of PanAmSat International System Inc. v. Beijing State Tax Bureau, the court applied Article 11 of the 1984 Chinese–US Double Taxation Agreement directly. The court qualified the income at issue as a royalty under the treaty and consequently imposed a tax burden on the US company based on the treaty, though domestic tax law did not recognize the income as royalties.77 Although Article 28 of the Income Tax Law for Enterprises with Foreign Investment and Foreign Enterprises provided for prior application of international treaties if the domestic legislation deviated from international obligations,78 the application of the treaty in order to impose a tax liability that was not provided for in domestic law did not conform with the purpose of double taxation treaties that aim at limiting tax claims that are already established under domestic law.79 In another case of 2016 the court applied the Chinese–Italian Double Taxation Agreement directly and denied a violation of the national treatment principle.80

74

75 76

77

78

79

80

Committee on the Rights of the Child, Written Replies by the Government of China Concerning the List of Issues, 17 May 1996, UN doc CRC/C.12/WP.5. On international human rights law, see Chapter 13 in this volume. Liu Yongwei [刘永伟], ‘Tax Sovereignty and the Basis for the Interpretation of Special Tax Agreements [税收主权与 税收专约的解释依据]’ (2013) 6 China Social Science [中国社会科学], 129–45, 144–5. Agreement between the PRC Government and the US Government for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income of 30 April 1984; unpublished case, cited by Long Yingfeng [龙英锋], ‘Revisiting the Taxation Case of ABC Satellite Corporation [再论ABC卫星公司税收 案]’ (2015) 1 International Taxation in China [涉外税务], 76–8, 78. PRC Income Tax Law for Foreign-Invested Enterprises and Foreign Enterprises [中华人民共和国外商投资企业和 外国企业所得税法] of 1 July 1991, no longer effective. Ge Tan, ‘Tax Treaties’ Interpretation and Application under the Challenges of the Digital Economy – Issues Raised by PANAMSAT v Beijing State Tax Bureau’ (2006) 16 Revenue Law Journal, 99–108, 101. Illva Saronno Holding SPA v. State Tax Bureau of Zhifu District of Yantai City, Shandong Province, administrative dispute over tax administration, trial of second instance by the High People’s Court of Shandong Province [意大利意迩瓦萨隆 诺控份公司与山东省烟台市芝罘国家税务局行政征收二审行政判决书] of 15 August 2016; Agreement between the PRC Government and the Government of the Republic of Italy for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income of 14 November 1989.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

124

Bjo¨rn Ahl

6.3.1.4 Diplomatic and Consular Treaties As far as diplomatic and consular treaties are concerned, the Beijing Intermediate Court applied the Vienna Convention on Diplomatic Relations in decisions in 2016 and 2018 in order to establish whether representatives of a certain state had diplomatic immunity.81 However, in a similar case that was decided in 2017, the court referred to Articles 14 and 15 of the PRC Regulations on Diplomatic Privileges and Immunities and did not refer to the treaty.82 With regard to the right of consular attendance that is prescribed in a number of bilateral consular agreements, Article 6(1) of the Instruction on the Handling of Certain Problems in ForeignRelated Cases prescribes consular attendance even at non-public trials if consular agreements provide for a right to consular attendance.83 However, in the Stern Hu case of 2010, the government justified the exclusion of Australian consular officials from attending the criminal trial with reference to state sovereignty and judicial sovereignty.84 6.3.2 Other Sources of International Law As customary international law gradually evolves over time, most legal systems give domestic effect to international custom by adoption, that is, by a general rule of domestic law that provides for the automatic incorporation of international custom into municipal law. The adoption mechanism empowers domestic courts to determine the content of customary international law.85 Neither the Chinese Constitution nor ordinary legislation expressly provides for the application of customary international law. Yet domestic legislation includes references to ‘international practice’.86 For example, Article 142(3) General Principles of Civil Law provided that international practice may be applied to matters for which law and international treaties do not contain provisions.87 Other laws such as the Civil Aviation Law, the Maritime Law and the Negotiable Instruments Law contain similar provisions.88 Scholars argue that the term ‘international practice’ in its broad sense includes customary international law.89 A narrower 81

82

83

84

85

86 87 88

89

Bai Songyue et al. v. Sun Changbao, dispute over shareholder’s damage to creditors’ rights, retrial by the Third Intermediate People’s Court of Beijing Municipality [白松悦等与孙长宝东损害公司债权人利益责任纠纷二审 民事判决书] of 18 December 2018; Mohamud Ramadan, smuggling of ordinary commodities, criminal trial at first instance by the Third Intermediate People’s Court of Beijing Municipality [穆罕默德拉马丹走私普通货物物品罪 一审刑事判决书] of 15 January 2016. Dong Qing v. Ioannis Plexousakis, rulings on the recognition of foreign arbitration decisions, trial by the Third Intermediate People’s Court of Beijing [董青与雅尼斯布莱克苏萨其斯国内涉外仲裁裁决普通执行执行类裁定 书] of 27 June 2017; Regulations on Diplomatic Privileges and Immunities [外交特权与豁免条例] of 5 September 1986. Ministry of Foreign Affairs, SPC, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security and Ministry of Justice Regulations on the Handling of Several Problems in Foreign-Related Cases [外交部、最高人民 法院、最高人民检察院、公安部、国家安全部、司法部关于处理涉外案件若干问题的规定] of 20 June 1995. Statement by MOFA spokesperson Qin Gang: ‘British China-Related Human Rights Report Is Political Show’ [外交 部称英国人权报告涉华部分系政治秀] of 12 March 2010, http://news.163.com/10/0318/18/6232TET1000146BC .html; Ann Kent, ‘The Case of Stern Hu: Perspectives on China’s “Rule of Law”’ (2009) 4 Alternative Law Journal, 275–7. Paola Gaeta, Jorge Vinuales and Salvatore Zappala, Cassese’s International Law, 3rd ed. (Oxford: Oxford University Press, 2020), 220. 国际惯例. PRC General Principles of Civil Law [中华人民共和国民法通则], 12 April 1986, no longer effective. Art. 184, PRC Aviation Law [中华人民共和国民用航空法] of 30 October 1995, amended on 29 December 2018; Art. 268, PRC Maritime Law [中华人民共和国海商法] of 7 November 1992; Art. 95, PRC Negotiable Instruments Law [中华人民共和国票据法] of 10 May 1994, amended 28 August 2004. Wan E’xiang [万鄂湘], Study on the Relation Between International Law and Domestic Law – From the Perspective of Domestic Application of International Law [国际法与国内法关系研究 – 以国际法在国内的适用为视角] (Beijing: Peking University Press, 2011), 343.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

125

understanding suggests that, given the term’s legal context, it refers only to international commercial practice, that is, to the recognized usual practice of commercial entities that they comply with in their business transactions.90 Court practice appears to follow the narrow interpretation of the term. For example, the SPC confirmed that the Code of Safe Practice for Solid Bulk Cargoes adopted by the UN International Maritime Organization qualifies as ‘international practice’ in the sense of Article 268(2) Maritime Law.91 The narrow interpretation is reinforced by the fact that the new Civil Code that has replaced the General Principles of Civil Law refers only to ‘custom’ that may be applied if the law does not contain applicable provisions.92 The Civil Code gives courts even less leeway to interpret ‘custom’ in the sense of international customary law. Given the lack of references to international custom in the Constitution and in ordinary legislation, Chinese courts have been reluctant to apply international customary law.93 The decisions of international organizations affect the application of domestic law, as do the decisions of international courts and tribunals. In general, non-military sanctions adopted by the United Nations Security Council (UNSC) under Chapter VII of the UN Charter require incorporation into domestic law in order to become effective. It is common practice that domestic courts do not implement UNSC sanctions lacking appropriate domestic legislation.94 In China, UNSC sanctions are normally implemented by administrative organs, and courts may review the acts that implement UNSC sanctions in administrative litigation.95 On the other hand, the domestic effects of the decisions of international courts and tribunals depend on both the type of decision and the context in which the decision is invoked before domestic courts.96 With the exception of the WTO dispute settlement mechanism and the International Centre for Settlement of Investment Disputes (ICSID), China is very reluctant to submit to international adjudication.97 Hence, the issue of the implementation of international court decisions by Chinese courts has not appeared in practice. However, international court decisions that do not relate to China as a party to the dispute may be given indirect effect in domestic courts when they refer to the interpretation of treaty law as given by international courts. Yet Chinese courts appear hesitant to refer to the decisions of international courts and tribunals or to the decisions of domestic courts of foreign jurisdictions in general.

90

91

92 93

94

95

96 97

Che Pizhao [车照], ‘The Application of International Treaties and Customs After Coming into Effect of the Civil Code [民法典颁行后国际条约与惯例在我国的适用]’ (2020) 6 China Review of Administration of Justice [中国应 用法学], 1–15, 7. SPC’s Reply to the Request for Instructions on the Case of Danzhou Yonghang Stainless Steel Co. Ltd. v. Dalian Taijia Shipping Ltd. over Contract Dispute [最高人民法院关于儋州永航不锈钢有限公司与大连泰嘉船务有限 公司航次租船合同纠纷一案的请示报告的复函] of 24 March 2010. 习惯; Art. 10 PRC Civil Code [中华人民共和国民法典] of 28 May 2020. Gong Renren [龚刃韧], ‘Non-derogable Rights and Rules of Customary Law [不可克减的权利与习惯法规则]’ (2010) 1 Global Law Review [环球法律评论], 5–13, at 13. Jo¨rg Polakiewicz, ‘International Law and Domestic (Municipal) Law, Law and Decisions of International Organisations and Courts’ in Anne Peters (ed.), Max Planck Encyclopedia of Public International Law, online ed. (March 2011), para. 18. Deng Ning [邓宁], ‘An International Law Analysis of Judicial Review of UN Security Council’s Sanctions by Chinese Courts [我国法院司法审查安理会制裁性决议的国际法分析]’ 2020 (2) Journal of Guangxi Administrative Cadre Institute of Politics and Law [广西政法管理干部学院学报] 37–41, 39. Jo¨rg Polakiewicz, ‘International Law and Domestic (Municipal) Law’, supra note 94, at para. 23. On international dispute settlement, see further Chapter 24 in this volume. See also Thomas Eder, China and International Adjudication (Nomos: Baden-Baden, 2021).

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

126

Bjo¨rn Ahl 6.4 CHINESE COURTS’ INTERPRETATION OF INTERNATIONAL LAW AND DOMESTIC LAW

Domestic courts with an internationalist outlook make use of international interpretation principles when they apply international treaties. However, they may also ignore such principles and apply the interpretation principles of their domestic legal system. Courts may also use international law as a guidance to interpret domestic legislation. 6.4.1 Interpretation of International Treaties by Chinese Courts In its 2015 Opinions on Providing Judicial Services to the Belt and Road Initiative, the SPC emphasized that courts interpret international treaties in good faith and strictly according to the VCLT, that is, according to the usual meaning of the wording, the context and with reference to its aims and objectives.98 As the reasoning parts of Chinese court decisions are relatively brief and often avoid detailed legal arguments, it is in many cases difficult to establish whether the court followed international or domestic interpretation principles. In the already mentioned PanAmSat International System Inc. v. Beijing State Tax Bureau, the court did not take into account the purpose of the double taxation avoidance treaty.99 Chinese scholarship sees teleological interpretation that gives effect to the object and purpose of an international treaty as an international interpretation principle that is not applied by Chinese judges in domestic cases because teleological interpretation transgresses the boundary from interpretation to lawmaking.100 Hence, this case can be regarded as an example where the court ignored an international interpretation principle. In contrast, a Shanghai court concluded in 2006 that the Warsaw Convention covers compensation for immaterial damage on the basis of a teleological interpretation of the treaty.101 Most Chinese legal scholars support the application of international interpretation rules according to the VCLT.102 Yet there are also scholars who argue that courts may choose between international and domestic interpretation rules according to what interpretation method is more beneficial to China’s national interests.103 6.4.2 Interpreting Domestic Law in Conformity with International Obligations Following the WTO accession, the SPC issued the 2002 Regulations on Some Questions of the Trial of Administrative Cases Relating to International Trade, which required courts to interpret domestic law in line with WTO law if domestic law applicable to an international trade 98

99 100

101

102

103

Some Opinions of the SPC on People’s Courts Providing Judicial Services and Safeguards for Establishing ‘One Belt, One Road’. See supra note 78. Yang Zewei [杨泽伟 ], ‘Comparative Study of the Interpretation of Domestic Law and International Law [国内法与 国际法解释之比较研究]’ (1996) 5(74) Science of Law [法律科学], 27–33, 30. Shanghai City Jing’an District People’s Court, Yang Ping v. U.S. Northwest Airlines, compensation for bodily harm dispute [上海市静安区人民法院杨萍v美国西北航空公司人身损害赔偿纠纷案] of 21 September 2006, unpublished decision, cited in Li Hongguang [李鸿光], ‘Chinese Citizen Sues the Northwest Airlines – The Chinese Court’s Breakthrough in the Application of International Convention [中国公民状告美国西北航空公司中国法院 首次突破对国际公约的适用]’ (2006) 11 China Trial [中国审判], 20–3. Zhang Naigen [张乃根], ‘Inquiry into Several Issues of Treaty Interpretation: From the Perspectives of Domestic Law and International Law [探析条约解释的若干问题: 国际法与国内法的视角]’ (2016) 5 Chinese Review of International Law [国际法研究], 47–64, 64. Liu Yongwei, ‘Tax Sovereignty’, supra note 76, at 144.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

127

administrative case allowed for two or more reasonable interpretations.104 The SPC cited the Regulations in a case in 2007 where it interpreted the term of ‘agent’ in Article 15 of the PRC Trademark Law in line with the meaning of that term in Article 6(7) of the Paris Convention on the Protection of Industrial Property.105 In 2019 the SPC adopted a number of guiding cases that were promoted as facilitating the BRI.106 Guiding Case No. 114 dealt with a trademark registration under the Madrid Agreement Concerning the International Registration of Marks. The guiding case stated that the Trademark Office should offer the applicant an opportunity to submit missing documentation of the trademark registration ‘in fulfilling the spirit of the international treaty obligation’, although such an opportunity is not provided for under domestic law.107 In this case the court conducted a consistent interpretation of the Implementing Regulations of the PRC Trademark Law.108 In another case of 2020, the court argued that as China is a state party to the Berne Convention, it has to give the Copyright Law a meaning that conforms with the provisions of the international treaty.109 In 2016 the SPC had to decide whether an environmental foundation fulfilled the requirements of Article 58 of the Environmental Protection Law in conducting specific environmental protection public interest activities. The Court cited the Convention on Biological Diversity, argued that the protection of biodiversity is part of environmental protection and concluded that the activities of the foundation fell within the ambit of Article 58 of the Environmental Protection Law.110 Further, in 2019 a court referred to the definition of a child in Article 1 of the CRC in order to interpret national legislation in line with international law.111 Although it may be premature to state that a principle of consistent interpretation is entrenched in Chinese judicial practice, there do exist cases where courts have taken into account international treaties when interpreting domestic legislation in the areas of intellectual property, environmental protection and human rights. 6.5 CHINESE COURTS’ PARTICIPATION IN INTERNATIONAL NORM-MAKING

There is a growing body of international relations literature that discusses China’s role as an international norm-maker. Scholars have noted the complexity of the interactions between emerging powers such as China and international norms. For example, some argue that 104

105

106 107

108 109

110

111

On international trade law, see further Chapter 20 in this volume. Art. 9, SPC Regulations on Some Questions of the Trial of Administrative Cases Relating to International Trade [最高人民法院关于审理国际贸易行政案件若干问 题的规定] of 27 August 2002. Chongqing Zhengtong Pharmaceutical Co., Ltd. and the Trademark Review and Adjudication Board of the State Administration for Industry and Commerce v. Sichuan Huashu Veterinary Pharmaceutical Co., Ltd., administrative disputes over trademark, retrial by the Supreme People’s Court [重庆正通药业有限公司国家工商行政管理总局 商标评审委员会与四川华蜀动物药业有限公司商标行政纠纷案] of 31 August 2007. On the BRI, see further Chapter 2 in this volume. Parfums Christian Dior S.A. v. The Trademark Review and Adjudication Board of the State Administration for Industry and Commerce, an administrative case concerning a re-examination to reject a trademark application [克里斯蒂昂迪奥尔香 料公司诉国家工商行政管理总局商标评审委员会商标申请驳回复审行政纠纷案] of 24 December 2019. Implementing Regulations of the PRC Trademark Law [中华人民共和国商标法实施条例] of 3 August 2002. Guangzhou Wangyi Computer System Ltd. v. Guangzhou Duohua Internet Technology Ltd., civil dispute over copyright and unfair competition, trial at second instance by the High People’s Court of Guangdong Province [广州网易计算机 系统有限公司与上诉人广州华多网络科技有限公司侵害著作权及不正当竞争纠纷案] of 28 May 2020. China Biological Diversity Protection and Green Development Foundation Objection to High People’s Court of Ningxia Province’s Decision of Rejection to Try, retrial by the Supreme People’s Court [中国生物多样性保护与绿 色发展基金会不服宁夏回族自治区高级人民法院不予受理裁定案] of 28 January 2016. He Jing v. Guangdong Yifang Medicine Co. Ltd. and Jiangxi Sancheng Co. Ltd., dispute over product liability, trial at first instance by the Primary People’s Court of Yongning County, Ningxia Province [贺某与广东逸方药业有限公 司江西三诚实业有限公司产品责任纠纷一审民事判决书] of 19 June 2019.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

128

Bjo¨rn Ahl

China’s engagement with the international legal order has taken a dialectical approach as it both defends the existing order to gain a reputation as a responsible great power and seeks to change those parts of the international order that do not align with its interests.112 Many scholars approach the question of China’s key motivations, positions and initiatives relating to norm entrepreneurship by analysing its behaviour in international organizations such as the UN.113 What those writings have in common is that they focus on pronouncements and behaviours of executive organs of the Chinese state that engage in foreign relations activities. So far, Chinese domestic courts have not been the focus of such studies. How will the domestic courts contribute to China’s role as an emerging power that challenges existing and produces new norms of international law? Overall party-state policy encourages Chinese state organs to ‘participate actively in the formulation of international norms’ and to ‘strengthen discourse power and influence in international legal affairs’.114 In 2015 the SPC reiterated this ambition, requiring courts to actively participate in international norm-making, in particular in formulating rules of international investment and trade law.115 Yet the 2015 SPC Opinion leaves it open how courts shall participate in international norm-making; it specifies only the role of courts in assisting government bodies in treaty negotiations.116 What are the prospects of Chinese courts becoming active participants in the future development of international law? With the increasing relevance of international law before courts, the trend of courts’ engagement in the development of international law has drawn scholarly attention.117 However, as the decisions of domestic courts are not sources of international law, the formal role of domestic courts in the development of international law is rather limited. Domestic court decisions can become relevant under international law as elements of state practice, which in turn is a factor in the determination of international customary law or in constituting subsequent practice that may affect the interpretation of treaty law. Further, court decisions may play a role in the determination of general principles of law. However, as domestic court decisions reflect the practice of only one state, they are in themselves insufficient to create international custom, shape treaty interpretation through subsequent practice or constitute a general principle of law.118 Of greater relevance is domestic courts’ informal influence on the development of international law. Such influence depends on whether domestic court decisions are persuasive and noticed beyond the relevant jurisdiction and whether other actors take them up and validate or endorse them. Domestic court decisions may have the effect of confirming rules of international law or give them a novel interpretation that may trigger protest or acquiescence by other states. Only if domestic court decisions are noticed, sufficiently persuasive and endorsed by other states, 112

113

114

115

116 117

118

Lina Benabdallah, ‘Contesting the International Order by Integrating It: The Case of China’s Belt and Road Initiative’ (2019) 40 Third World Quarterly, 92–108. Courtney Fung, ‘Rhetorical Adaptation, Normative Resistance and International Order-Making: China’s Advancement of the Responsibility to Protect’ (2020) 55 Cooperation and Conflict, 193–215. CPC Central Committee Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law [中共中央关于全面提进依法治国若干重大问题的决定] of 23 October 2014. SPC Opinion on Comprehensively Promoting the Strategy of Quality Adjudication in Foreign-Related Commercial and Maritime Matters in Order to Provide Effective Judicial Safeguards for Establishing an Open Economic System and a Great Maritime Power. Ibid. Anthea Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 International and Comparative Law Quarterly, 57–92; He Rong [贺荣], ‘On the Participation of the Chinese Judiciary in Making International Economic Rules [论中国司法参与国际经济规则 的制定]’ (2016) International Law Studies [国际法研究], 3–15. Antonios Tzanakopoulos and Christian Tams, ‘Introduction: Domestic Courts as Agents of Development of International Law’ (2013) 26 Leiden Journal of International Law, 531–40, 537–8.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

6 International Law in Chinese Courts

129

courts, international organizations and codifying bodies can they exercise certain influence on the complex processes of the development of international law.119 Given those requirements for courts to become informal international norm-makers, Chinese judges will need to develop a comprehensive knowledge of international law, detailed and convincing legal reasoning, and find ways to make their decisions noticed by other courts and other actors involved in international norm-making. This also entails recognition of the arguments of Chinese courts in the international academic legal community. Post-2013 judicial reforms have transformed the courts into more professional, transparent and autonomous bodies. The SPC has adopted a wide range of measures that aim at improving the international visibility and quality of Chinese court decisions. For example, the SPC issued a notice to lower courts on the transparency of civil and commercial cases as well as a notice that instructed lower courts on improving legal reasoning.120 Further, the SPC established the Chinese International Commercial Court as an internal specialized tribunal for international commercial disputes.121 Though Chinese domestic courts now quite often apply international treaties such as the Convention on the Sale of Goods, it appears that the SPC’s tools for promoting certain court decisions domestically, such as through case summaries in the form of guiding cases or typical cases, are not a proper form with which to promote court decisions internationally. This is because those cases may leave out important facts or legal reasoning.122 Their authority derives from the status of the SPC within the political-legal system rather than from convincing elaborated legal reasoning. Pursuant to the structure of the party-state, courts remain under political guidance, which may make it difficult for Chinese courts to gain international recognition and develop legal arguments that are noticed by and can convince an audience beyond the domestic context. An informal channel for the creation of international norms is transnational judicial dialogue such as between the European Court of Human Rights and various constitutional courts of the member states of the European Human Rights Convention.123 Literature on the emergence of domestic courts as transnational actors argues that judges participate in a global legal discourse, use a shared legal language, are committed to similar liberal values and build a transnational community of courts.124 Given the preconditions of transnational judicial dialogue as it developed in Europe, such as independent courts that share similar constitutional systems, it is questionable whether Chinese courts can emerge as transnational actors anytime soon and make use of this informal channel for international norm-making. However, this does not mean that there is no dialogue between Chinese judges and the judges of other jurisdictions. The 2015 SPC Opinion on Providing Judicial Services to the Belt and Road Initiative requires Chinese courts to enhance international judicial exchange and communication and to adopt measures that increase knowledge about the Chinese judiciary in other countries.125 In the following years, the SPC adopted 119 120

121

122 123

124

125

Ibid., 538–9. SPC Notice on Disclosing Relevant Information on Civil and Commercial Cases [最高人民法院关于公开民商事 案件相关信息的通知] of 3 February 2019; SPC Notice on Issuing the Guiding Opinion on Strengthening and Standardizing the Analysis and Reasoning in Adjudicative Instruments [最高人民法院印发《关于加强和规范裁 判文书释法说理的指导意见》的通知] of 13 June 2018. SPC Regulations on Several Issues Concerning the Establishment of International Commercial Courts [最高人民 法院关于设立国际商事法庭若干问题的规定] of 25 June 2018. Qiao Liu, ‘The Use of Case Law in China’s Belt and Road Initiative’, supra note 35, at 147. Melissa Waters, ‘The Future of Transnational Judicial Dialogue’ (2010) 104 Proceedings of the Annual Meeting (American Society of International Law), 465–8. Knut Trainsbach, ‘A Transnational Judicial Public Sphere as an Idea and Ideology: Critical Reflections on Judicial Dialogue and Its Legitimizing Potential’ (2021) 10 Global Constitutionalism, 186–207, 191. Several Opinions of the SPC on People’s Courts Providing Judicial Services and Safeguards for Establishing ‘One Belt, One Road’.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

130

Bjo¨rn Ahl

Memorandums of Understanding on Judicial Cooperation with BRI countries and conducted judicial training programmes and joint seminars and conferences of Chinese and foreign judges.126 Though these efforts of the SPC bear the potential for cross-fertilization and comparative reasoning, it appears that the measures within the BRI framework aim at unilateral dissemination of general knowledge on Chinese law and the Chinese judiciary rather than at facilitating dialogue among equal legal professionals about the interpretation and further development of international law. 6.6 CONCLUSION

We can observe seemingly contradictory dynamics in the domestic application of international law in China. There is no sign that the Chinese government will follow the calls of legal scholars to introduce a general rule on how international law is implemented within the domestic legal system. On the contrary, the legislator has started to remove domestic enabling legislation that mandates direct application of international treaties under certain conditions. However, the effects of this tendency on actual court practice are far from clear as the statutory reference provisions served the aim of flexibility in domestic treaty implementation and have not provided legal predictability in the past. While recently amended national statutes indicate less international openness, SPC judicial interpretations continue to require courts to apply international treaties and stress the application of international interpretation rules. Other available instruments for the guidance of lower courts in the application of international treaties, such as guiding cases or typical cases of the SPC, require further development in order to achieve an effective guiding function. Courts frequently apply such international treaties as regulate relationships between private entities. Domestic courts have developed a consistent practice of directly applying more than thirty international treaties to disputes about intellectual property, international trade in goods, maritime commerce and international air and rail transport as well as judicial assistance in civil and criminal matters. Chinese courts increasingly rely on the principle of consistent interpretation. However, courts in general do not apply international treaties that constrain executive organs of the state. The SPC has adopted many measures that aim at increasing the quality and visibility of Chinese court decisions relating to legal disputes that contain foreign elements. Such measures explicitly serve the BRI and disseminate knowledge on the Chinese legal and judicial systems in BRI countries. Whether such forms of transnational judicial dialogue can effectively enhance the informal influence of Chinese courts beyond domestic borders and translate into the Chinese judiciary’s participation in international norm-making remains an open question.

126

Congyan Cai and Yifei Wang, ‘Transnational Judicial Dialogue in the Rise of China: How the Chinese Judiciary Enhances the Belt and Road Initiative’ (2021) 29 Asia Pacific Law Review, 149–66.

https://doi.org/10.1017/9781009041133.008 Published online by Cambridge University Press

p a r t ii i

Selected Areas of Chinese State Practice

Published online by Cambridge University Press

Published online by Cambridge University Press

7 China’s Treaty Practices Politicization of Law or Legalization of Politics? Carrie Shu Shang and Wei Shen

7.1 INTRODUCTION: THE ROLE OF INTERNATIONAL LAW IN DOMESTIC GOVERNANCE

The interaction between international law and domestic law is often complex and confusing. Unfortunately, China’s attitude and approach in dealing with international law sometimes give rise to conflicts in interpretations. Other times, China remains ambiguous with the law governing its relationship with other countries and the world. The term lawfare refers to the use of law as a weapon of conflict.1 A quick learner of being engaged with the world order in the past four decades, China keeps its own political system at a distance from the capitalist law and Western law-based international law, reinforcing an emerging lawfare. Overall, commentators often think that China’s way of tackling international law is both tactical and pragmatic.2 It has been tactical as China has its own discourse and stance on various international law issues. It is pragmatic largely because of China’s dual-track strategy to international law. That is, while China is serious about complying with international law (i.e., international treaties) and the underlying international obligations, it is not necessarily agreeable to international law and sometimes, owing to its socialist political system, even criticizes West-centred international law. This dual-track approach seems to fit in with the postmodern trend of dealing with the interaction between international and domestic laws that diverts international law from its role of being a legal toolbox for non-armed relations between different people and legal traditions.3 Many international law scholars and practitioners believe that international law matters in the sense that it affects the behaviour of states. This belief is consistent with empirical evidence indicating that sovereign states are bound by international law. Nevertheless, the absence of a coherent theory of what role international law plays in domestic governance may explain why most conventional international law scholarship does not ask why and when states change their domestic legal order by engaging in international treaty practices. China sees the United Statesled international legal order as hegemonic, and believes that the liberal hegemony overreaches its power to interfere with other sovereigns’ domestic affairs. In general, China’s approach to international law is more pragmatic and less interfering; China stands firm in believing that international legal order should serve to promote sovereign stability and self-determination. 1 2

3

Benjamin Wittes, ‘Welcome to Lawfare’, Lawfare Blog (1 September 2010), www.lawfareblog.com/welcome-lawfare. Bret White, ‘Reordering the Law for a China World Order: China’s Legal Warfare Strategy in Outer Space and Cyberspace’ (2021) 11(2) Journal of National Security Law and Policy, 435–87. Arthur Roberto Capella Giannattasio, ‘The Interaction between International and Domestic Legal Orders: Framing the Debate According to the Post-Modern Condition of International Law’ (2018) 19(1) German Law Journal, 1, 2.

133 https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

134

Carrie Shu Shang and Wei Shen

Key theories explain how a state’s domestic law can change as a result of its international legal practices; these theories include consent theory, legitimacy theory and transnational legal ordering (TLO). As will be seen, these are helpful to explain Chinese treaty practice, but they do not have full explanatory power given the varying circumstantial settings. (1) Consent theory. The most commonly held rationale for the relevance of international law, and especially treaties, to national conduct is based on the notion of consent. The consent-based argument begins with the claim that sovereign states are not subject to any obligation unless they have consented to it. For example, Louis Henkin stated that ‘a state is not subject to any external authority unless it has voluntarily consented to such authority’.4 This claim is easily reconciled with the law of treaties, which includes detailed rules concerning the question of consent and whether it has been given. The second, and more problematic, step in consent-based theory invokes the oftrepeated statement that treaties are to be obeyed. Proponents of a consent-based view argue that consent to be bound generates a legal obligation and causes states to comply with those obligations. However, critics of consent-based theory argue that it cannot explain why international law is binding because it fails to explain why it prevents nations from simply withdrawing their consent.5 Consent theory is an appropriate paradigm for explaining China’s changing attitudes towards substantive and procedural terms in its sizable bilateral investment treaties (BITs). As discussed in Section 7.5, China’s stance in signing BITs has been shifting from a conservative position to a more liberal approach owing to its changing role in global foreign direct investment (FDI) activities. When it was a capital-importing state, the objective of BITs was to attract FDI from other countries. In its early days of reforming and opening up, China did not make serious commitments towards liberal substantive and procedural terms in BITs. Signing BITs was a signal sent by the Chinese government to the international investment community that it was serious about the right protection though its domestic legal infrastructure was not ideal. Now that China has become more aggressive towards investing overseas, and become a capital-exporting state, it is more willing to give consent to those liberal and pro-investor terms in the BITs. Consent, in both a general and a specific sense, indicates China’s changing role and attitudes in this field of international investment. (2) Legitimacy theory. Thomas Franck advanced a general theory of international law that has come to be known as legitimacy theory. It attempts to explain why nations feel compelled to honour their promises. Unlike consent theory, legitimacy theory attempts to go beyond the statement that treaties are to be obeyed and to explain why nations might obey them. In the end, however, this explanation takes the inquiry no further than does consent theory. The fundamental premise underlying legitimacy theory is that states obey rules that they perceive to have ‘come into being in accordance with the right process’. According to Franck, four factors determine whether a state complies with international obligations: determinacy, symbolic validation, coherence and adherence.6 4

5

6

Louis Henkin, ‘International Law: Politics, Values and Functions’ (1989) 216 Recueil Des Cours D’Academie De Droit International, 27. Andrew Guzman, ‘A Compliance-Based Theory of International Law’ (2002) 90 California Law Review, 6 citing James L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6th ed. edited by H. Walcock (Oxford: Clarendon Press, 1963), 51–4. Thomas Frank, ‘Legitimacy in the International System’ (1988) 82(4) American Journal of International Law, 705, 711–12.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

135

Legitimacy is certainly a major concern of the Chinese government when it comes to negotiating and signing treaties. In the Hong Kong context, Deng Xiaoping once said to his British counterpart that any government that does not take back Hong Kong would be overthrown.7 This statement is a strong indication that a joint declaration between China and the UK contains a legitimacy concern that is highly relevant to the Chinese Community Party (CCP) for its ruling party status in China. In terms of economic treaties, China’s objective is also clear. Promoting China’s economic growth and lifting the poverty would help enhance the government’s legitimacy for ruling. The CCP often claims that it is the Chinese people and history that elect the CCP to be the ruling party. Economic growth and society development are the key proxies for demonstrating the CCP’s governance success and achievement. In this sense, any (non-)compliance with international law or acceptance (or rejection) of international treaties reflects the ruling party’s legitimacy concern. 3. TLO. Professor Harold Koh advanced another theory of international law, TLO, which focusses on how public and private actors interact in various fora at both the domestic and the international level to make, interpret, enforce and internalize rules of transnational law. Transnational law, as others claim, helps reorganize, re-link and re-explore the basic questions about the nature of law and society, the relationships between the public and the private, and the ideas between law and state.8 Philip Jessup broadened transnational law to include ‘all law which regulates actions or events that transcend national frontiers’.9 Others stress the importance of private players and actions involved in transnational relations.10 Rather than treating states as unitary actors, the theory of TLO looks to a wider set of decision-makers to explain conduct, including multinational corporations, non-governmental organizations, international organizations, private individuals and others. Professor Koh argued that as transnational actors – including both state and nonstate actors – interact, patterns of behaviour and norms emerge that are internalized by those actors.11 The internalization of these norms leads to their incorporation within the domestic legal institutions of states, which, in turn, leads to states’ behavioural changes. By discussing China’s forty-year practice of engagement with public international and private international treaties, this chapter attempts to discuss if either existing theories or a combination of these explains China’s politicization of law and/or legalization of politics domestically, or if a new paradigm is needed to better reflect China’s practices and reality. These theories, to a certain extent, explain China’s complex and multiple tactics in interacting with international law. Apparently, China’s engagement with the world and its compliance with international law conform to the signal theory: they deliver a signal to the world that China is a responsible state giving consent to be bound by international law. By doing so, it obtains legitimacy for its domestic and international behaviours in a transnational system so that it can lawfully and legitimately take actions in its best interest, domestically and globally. However, these theories may not be adequate to rationalize and explain China’s lawfare with the world. This is especially 7

8 9

10

11

See Charles Johnson, ‘The Mousetrapping of Hong Kong: A Game in Which Nobody Wins’ (1984) 24(9) Asia Survey, 87. Roger Cotterrell, ‘What Is Transnational Law?’ (2012) 37(2) Law & Social Inquiry, 500–24. Christian Tietje, Alan Brouder and Karsten Nowrot, Philip C Jessup’s Transnational Law Revisited – On the Occasion of the 50th Anniversary of Its Publication (Halle-Wittenberg: Martin Luther University, 2006), 45. Peer Zumbansen, ‘Piercing the Legal Veil: Commercial Arbitration and Transnational Law’ (2002) 8 European Law Journal, 400; Gralf-Peter Clliess, ‘The Making of Transnational Contract Law’ (2007) 14 Indiana Journal of Global Legal Studies, 469, 476. Harold Hongju Koh, ‘Why Do Nations Obey International Law?’ (1997) 106(8) Yale Law Journal, 2599.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

136

Carrie Shu Shang and Wei Shen

the case when international law may not favour China, in which case China may politicalize its policy grounds or considerations by trying to rely on a historical or culture discourse to justify its policy moves or state behaviours. In most cases, lawfare or legalization of domestic interests is the usual route to pursue its interests on the global stage. This two-pronged approach, or the lawfare versus realism approach, is deployed by China for most of the time. Nevertheless, politicization of international law is likely to trigger a hue and cry from other states. Therefore, legalization of political claim should be a major tool China can rely on when it deals with other states’ claims. China’s policies concerning choices among different types of status for international treaties are very important, domestically and globally. In a much more populist and confrontational world, China should rely more on the lawfare approach, which can increase the level of predictability to others and reduce transaction costs to itself and others. The rest of this chapter proceeds as follows. Section 7.2 outlines an introduction to China’s treaty ratification process as a background, then Section 7.3 explores China’s peace and security treaties. Section 7.4 focusses on private international law and its influence and impact on China’s domestic law. The subject of Section 7.5 is health and environment in international investment agreements (IIAs). The conclusion is set in Section 7.6. The main purpose of this chapter is twofold: first, we will try to explore how acceptance of international legal responsibilities legalizes China’s domestic political and policy agendas (the legalization of politics); second, we will try to analyse how, by gradually taking on more international legal duties, China is transforming itself into an international norm-shaper while advancing its transnational political agenda (the politicization of law). 7.2 AN OVERVIEW OF CHINA’S TREATY RATIFICATION PROCESS

Ever since the founding of the People’s Republic of China (PRC) in 1949, implementation of its international obligations in good faith has been one of China’s basic policies of foreign affairs.12 According to the laws of China, international treaties shall be concluded in accordance with the provisions of the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties (Treaty Procedure Law) promulgated in 1990 and fulfil necessary domestic legal procedures. Therefore, subject to the nature of the relevant treaty and the mandate of the contracting governmental department, international treaties to which China is a party in principle have binding force in domestic law, except for those provisions to which China has made reservations. According to the provisions of the Chinese Constitution and the Treaty Procedure Law, the Standing Committee of the National People’s Congress (NPC) shall decide on the ratification and denunciation of treaties and important agreements concluded with foreign states. In China, the State Council has the power to conclude treaties and agreements with foreign states. Procedurally, negotiation and conclusion of international treaties with foreign states should be approved by the State Council, or submitted to it for the record. In any case where amendment or revision to domestic laws is required for a treaty purpose, the domestic legal process for ratifying or approving the treaty should be the same as the legal procedure for the relevant domestic legislation. Although on the international plane the state assumes international responsibility for meeting its treaty obligations, at the domestic level, how to implement such obligations and realize the 12

Hanqin Xue and Qian Jin, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8 Chinese Journal of International Law, 299–322.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

137

rights and obligations of individuals and legal persons depends on how Chinese laws handle the relations between international law and domestic law. At present, the PRC Constitution and basic laws do not contain any provision on the legal status of international treaties and their hierarchy in the domestic legal system. Strictly speaking, international treaties, even after ratification, accession or approval, do not automatically become part of the laws of China and consequently do not automatically have domestic legal effect. In addition, it has been suggested that even though the power of the NPC Standing Committee to participate in the treaty-making process has been gradually expanded, the circumstances of the accession of China to many international treaties reveal the relatively weak position of the NPC Standing Committee in relation to the executive. When the NPC Standing Committee approves a treaty, the internal decision-making includes not only the delegates of the Standing Committee but also other relevant actors of the Party-state, in a less formal and behind-the-curtain process, giving the latter some rather broad discretion during the treaty implementation stages. 7.3 PEACE AND SECURITY TREATIES

In the four decades since Deng Xiaoping’s ‘reform and opening-up policy’, China has gone from largely eschewing international organizations to becoming a key player of multilateral international governance. One salient characteristic of post–Cold War international relations is the upsurge of multilateral diplomacy at the global, cross-regional, regional and subregional levels. Multilateral diplomacy is defined here as interactions among nation-states in permanent and ad hoc global and regional international organizations, conferences and talks in which more than two actors are involved simultaneously. The seed of multilateral diplomacy was sown when the United Nations (UN) was established in 1945. However, the globalization of the Cold War soon turned the UN into a battleground for East–West confrontation. Consequently, the function of multilateral diplomacy was severely constrained by a rigid bipolar framework.13 For a long time, the PRC was largely excluded from global and regional multilateral diplomacy. It was not until the PRC began to represent China in the UN that the PRC started to take an ever-strengthening stance in international governance. During most of the 1960s, China endured a partially self-imposed diplomatic isolation. Even its bilateral diplomacy was limited. The only experience of multilateral diplomacy China had was during the 1950s, in its interaction with the Soviet bloc and, to a much lesser extent, with some Eastern and Southeastern Asian countries. On 18–24 April 1955, delegates from twenty-nine states attended the Asian-African Conference in Bandung, Indonesia. The Bandung Conference laid the political, economic, cultural and legal foundation for the so-called Spirit of Bandung and what then became a Third World project embraced by China. During this stage, most of China’s multilateral diplomatic efforts were outside the United States-led Bretton Woods order. Leading to the Cold War era, China’s security defence mission still revolved around that of the Soviet bloc countries. With the North Atlantic Treaty Organization established in 1949, China seems to have become closer with Warsaw Pact countries and even considered some forms of reactive mutual defence strategy with some of them.14 These experiences did not always leave a sweet taste in the mouth for the Chinese. China itself had a series of border conflicts with the Union of Soviet Socialist Republics (USSR) in the late 1960s. For China, the suddenly escalated China–Soviet border conflict deterred future Soviet provocations. China was also 13 14

Jianwei Wang, ‘Chinese Perspectives on Multilateral Security Cooperation’ (1998) 22 Asian Perspectives, 103–32. See Junfei Wu, ‘Will SCO Become Another Warsaw Pact?’ (2005) 40 Economic and Political Weekly, 4207.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

138

Carrie Shu Shang and Wei Shen

employing different strategies to deter what it believed to be imminent Soviet nuclear strikes.15 China did advocate the formation of a united front against Soviet expansion and nuclear threat in the 1970s. But, in practice, this diplomatic strategy was seldom carried out in a multilateral fashion. For China for a long period in the history, therefore, multilateral diplomacy was almost uncharted territory.16 China’s perceptual change towards regional security multilateralism can be further observed in its diplomacy on the Korean peninsula. For a long time, China insisted that the Korean conflict had to be settled between North Korea and South Korea as well as between North Korea (the Democratic People’s Republic of Korea [DPRK]) and the United States. In 1961, Kim Ilsung, founder of North Korea, and Zhou Enlai, the PRC’s first prime minister, concluded a bilateral mutual defence treaty that remains in force to this day.17 Article 2 of that treaty included a mutual defence provision; China would help North Korea should it face attack and North Korea would do the same for China. The article reads: The Contracting Parties undertake jointly to adopt all measures to prevent aggression against either of the Contracting Parties by any state. In the event of one of the Contracting Parties being subjected to the armed attack by any state or several states jointly and thus being involved in a state of war, the other Contracting Party shall immediately render military and other assistance by all means at its disposal.18

China supported the DPRK’s demand to have direct dialogue with the United States, but Beijing declined to be directly involved in negotiations to establish a peace mechanism on the peninsula. The 1961 treaty between the DPRK and China, while it officially celebrated its sixtieth anniversary in June 2021, has seen an important reinterpretation on the Chinese side that is seldom discussed. Similarly, by allowing South Korea, Japan and the United States the assurance that China would still intervene should North Korea face external aggression in a first strike, Beijing could presumably help deter a strike by the allies against North Korea. In effect, this Chinese policy was thought to reduce the possibility of either side starting a disastrous war on the Korean peninsula.19 In the post–Cold War period, China’s cautiousness about security multilateralism is especially related to its basic assessment of the security situation in the Asia-Pacific region. According to Beijing’s analysis, while Europe and other parts of the world have been plunged into protracted turbulence, the Asia-Pacific region has remained relatively peaceful and stable. Since the 1990s, no new interstate military conflict has broken out in the region, while tense issues of the past such as Cambodia and North Korea’s nuclear capability have eased considerably. The possibility of a major new conflict is low. China’s conception and practice of regional multilateral security in recent years have gradually evolved into so-called new thinking or a ‘new model’ of security cooperation. In April 1996 China signed an agreement with Russia and three Central Asian republics (Tajikistan, Kazakhstan and Kyrgyzstan) on military confidence-building along the

15

16 17

18

19

Michael S. Gerson, ‘The Sino-Soviet Border Conflict: Deterrence, Escalation, and the Threat of Nuclear War in 1969’, Center for Navel Analyses (November 2020), www.cna.org/reports/2010/sino-soviet-border-conflict. Ibid. Ankit Panda, ‘China and North Korea Have a Mutual Defense Treaty, But When Would It Apply?’, The Diplomat (August 2017), thediplomat.com/2017/08/china-and-north-korea-have-a-mutual-defense-treaty-but-when-would-itapply/. Article 2, Treaty of Friendship, Co-operation and Mutual Assistance Between the People’s Republic of China and the Democratic People’s Republic of Korea. See also Panda, supra note 17.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

139

7,000 kilometre–long border.20 This is an interesting experiment at combining bilateral and multilateral diplomacy. China’s official newspaper praised the agreement as the first of its kind in the Asia-Pacific region in terms of multilateral peace and security, citing it as an example of the new model of security cooperation.21 The Shanghai Cooperation Organization (SCO), formally established in 2001, serves a new ground for China–Russia collaboration on the use and support of international law. By enhancing domestic and cross-border security cooperation, the SCO allows its member states to reduce the possibility of regime friction and to bolster regime stability principles through multilateral cooperation. By issuing a China–Russia Joint Declaration on the Promotion of International Law,22 the two countries affirmed traditional cornerstones of absolute sovereignty and non-intervention. China’s new model of security cooperation has several dimensions. First, the model features equal participation and negotiated consensus. As in its approach to economic multilateralism such as in the Asia-Pacific Economic Cooperation, China prefers that security multilateralism have a low degree of institutionalization and evolve informally rather than through negotiations – as the result of collective guidance and the voluntary action of individual members, as PRC sources put it. In fact, China is interested only in security consultations and dialogues, whether in bilateral, subregional or regional mechanisms. While the institutional structure of the SCO is quite weak, it leaves much room for the individual interests of its member states to take precedence. It has played a role in the normative development of authoritarian international law in its active identification of targets of terrorism, separatism and extremism for cross-border cooperative repression.23 Second, China believes that new mechanism of security cooperation in the Asia-Pacific region should not be based on any bilateral or multilateral military alliance. Beijing argues that military alliances or blocs are residuals of the Cold War; they should be abandoned in the post–Cold War circumstances, since countries in the region no longer face a common threat or enemy. Military alliances resulting from the Cold War confrontation, moreover, cannot work. Security systems based on military alliances and arms competition have been unable to ensure peace. Expanding military blocs and enhancing military alliances under new circumstances can do little to bring about greater security. In the Asia-Pacific region, China considers multilateral diplomacy, exemplified in its cooperation with the Association of Southeast Asian Nations, to be a lever with which to offset the influence of the bilateral security alliance between the United States and Japan. Third, economic security should be the priority of regional security cooperation, since economic growth and common prosperity are the material basis for regional and global security. Multilateral security regimes therefore should take measures to safeguard economic security, for instance by strengthening supervision over and taking strict precautions against excessive financial speculation.24

20

21 22

23 24

See generally Jyotsna Bakshi, ‘Shanghai Co-operation Organisation (SCO) Before and After September 11’ (2002) 26 (2) Strategic Analysis, 265–75. David Shambaugh, ‘China Engages Asia: Reshaping the Regional Order’ (2005) 29(3) International Security, 70. Joint Statement of the Russian Federation and the People’s Republic of China on the International Relations Entering a New Era and the Global Sustainable Development (4 February 2022), www.fmprc.gov.cn/eng/ wjdt_665385/2649_665393/201608/t20160801_679466.html. Tom Ginsburg, ‘Authoritarian International Law’ (2020) 114 American Journal of International Law, 248. See generally ‘Acting on the Global Security Initiative to Safeguard World Peace and Tranquility’, Embassy of the People’s Republic of China in the United States of America (24 April 2022), us.china-embassy.gov.cn/eng/zgyw/ 202205/t20220505_10681820.htm.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

140

Carrie Shu Shang and Wei Shen

Against such a backdrop, one wonders, in light of the intensified US–China competition and the shifting US–Russia relationship, what choices China should make in security and mutual defence areas. This issue has become more pressing recently owing to the Trump administration’s suspension of its obligations under the Intermediate-Range Nuclear Forces (INF) Treaty.25 The INF Treaty, which the United States and the USSR entered into in 1987 and which applies to Russia since the USSR disappeared,26 prohibited the United States from deploying ground-based intermediate-range missiles in Asia. China is not a party to the INF Treaty. In contrast to the restrictions the agreement imposes on the United States and Russia, therefore, China could rapidly expand its missile arsenal as part of a military strategy designed to counter US and allied military power in Asia. One of the main rationales for the United States withdrawing from the INF Treaty is likely to offset the advantages China derives from its large missile arsenal. Some experts also believe that ending INF Treaty restrictions may prompt Russia to deploy medium- and intermediate-range missiles to counter China’s rapidly growing missile capabilities. It is also possible that China will increase its nuclear arsenal. The issue of the probable deployment of US missiles in Asia and China’s reaction to this will develop gradually. Overall, China can view its chances in a potential intermediate-range missile race in Asia fairly confidently, while avoiding entering into an arms control treaty with any regional allies. Eventually, despite China’s constant endorsement of multilateralism in the region, US–China bilateral collaboration could be a more effective way of achieving the goals of both nations.27 Along with the passage of the PRC Law on Safeguarding National Security of Hong Kong Special Administrative Region (HKSAR) (Hong Kong National Security Law), the validity and effectiveness of the Sino–UK Joint Declaration have been heavily debated between China and the UK. The Hong Kong National Security Law has received wide criticism overseas for reasons including that it violates international law and undermines human rights and freedom in Hong Kong.28 In particular, the British government, even before the law was passed and the details were known to the outside world, kept issuing official documents criticizing that the law would violate the legally binding Sino–UK Joint Declaration and therefore China’s obligations under international law.29 After the passage and entry into force of the Hong Kong National Security Law, the UK Foreign Office stated that it constitutes a clear and serious violation of the Sino–UK Joint Declaration.30 The UK’s latest Semi-Annual Reports on Hong Kong officially declared that ‘China ha[d] entered a state of continuous non-compliance with the Joint Declaration’.31 Several leaders of the International Bar Association and its subordinated Human Rights Institute jointly issued an open letter,32 claiming that the Hong Kong National Security Law contradicts norms of international law – the rule of law and basic human rights as well as the Basic Law of Hong Kong – thus violating China’s obligations under international

25 26 27

28

29

30 31

32

David Sangder, ‘U.S. Suspends Nuclear Arms Control Treaty with Russia’, New York Times (1 February 2019). Ibid. Jacob Stokes et al., ‘China’s Missile Program and U.S. Withdrawal from the Intermediate-Range Nuclear Forces (INF) Treaty’, US–China Economic and Security Review Commission (4 February 2019). ‘China Must Reconsider HK Security Law, 27 Countries Tell UN’, Macau Business (1 July 2020), www .macaubusiness.com/china-must-reconsider-hk-security-law-27-countries-tell-un/. UK Foreign Ministry, ‘The Six-Monthly Report on Hong Kong – 1 January to 30 June 2020’ (23 November 2020), at 10, www.gov.uk/government/publications/six-monthly-report-on-hong-kong-january-to-june-2020. Ibid., at 13. UK Foreign Ministry, ‘The Sixth-Monthly Report on Hong Kong – 1 July to 31 December 2020’ (10 June 2021), at 4, https://bit.ly/3XKNpDe. ‘China’s National Security Law for Hong Kong Contrary to Rule of Law’, www.ibanet.org/article/C4379ED1-73B94394-8A59-F21878676598.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

141

law.33 Some chairpersons and reporters of working groups affiliated to human rights in the UN also issued joint declarations condemning the Hong Kong National Security Law’s noncompliance with the International Covenant on Civil and Political Rights as well as the UN Universal Declaration on Human Rights.34 International law usually does not constrain sovereign states’ domestic laws, which is the basic principle in the contemporary international community (the so-called Westphalia era). The basic characteristics of national sovereignty include the equality of sovereign states and noninterference in each other’s internal affairs. Sovereignty, however, is not absolute; it is limited by a state’s obligations under international law, either voluntarily assumed by the state through treaties or accepted under customary international law.35 In other words, if a particular piece of domestic legislation relates to a state’s international obligations, then there is relevance in international law. To examine the interconnection between international law and the Hong Kong National Security Law, three questions are involved. First, does the law violate China’s treaty obligations under the Sino–British Joint Declaration? Second, do the provisions of the Hong Kong National Security Law violate China’s international obligations under international human rights law? Third, do some extraterritorial provisions of the Hong Kong National Security Law violate customary international law? The Sino–British Joint Declaration was formally signed by the then Chinese premier Zhao Ziyang and British prime minister Margaret Thatcher in Beijing on 9 December 1984. The Declaration includes eight provisions in the main text, three annexes and several memoranda of understanding exchanged between the two parties. The Joint Declaration entered into force on 27 May 1985 and was registered by the Chinese and British governments at the UN on 12 June 1985.36 There was no consensus at the outset as to whether the Joint Declaration was a binding international treaty, even though the view that it constituted a treaty was a mainstream one.37 There is no over-exaggeration of the importance of the Joint Declaration given its effect in resolving their territory dispute in a peaceful manner and, as a consequence, facilitating the maintaining of two political regimes in one country. Therefore, it touches upon both peace and security between two sovereignties and determines China’s path of peaceful rise and development. The starting point for a sceptical view is that if it is a treaty as a source of international law, why is it simply called a declaration rather than a treaty or agreement. The Vienna Convention on the Law of Treaties defines a treaty as ‘an international written agreement concluded between States subject to international law, whether contained in a separate instrument or two or more interrelated instruments, and regardless of their specific names’. In other words, the validity of an international legal instrument cannot be accepted or denied because of the name of an 33 34

35

36 37

Ibid. ‘Mandates of the Special organization on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Working Group on Arbitrary Detention; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of human rights defenders; The Special person would need further clarification on minority issues’, OL CHN 17/2020, 1 September 2020. Judge Huber in the Island of Palmas said that ‘sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.’ Island of Palmas Case (1928) 2 RIAA 829, 838, cited by Malcolm N. Shaw, ‘Territorial Administration by Non-territorial Sovereigns’ in Tomer Broude and Yuval Shany (eds.), The Shifting Allocation of Authority in International Law: Considering Sovereignty, Supremacy and Subsidiarity (Oxford: Hart, 2008), 369. United Nations Treaty Series, Volume 1399 (1985), treaties.un.org/doc/publication/unts/volume%201399/v1399/pdf. Roda Mushkat, ‘The Transition from British to Chinese Rule in Hong Kong: A Discussion of Salient International Legal Issues’ (1986) 14(2) Denver Journal of International Law & Policy, 191–2.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

142

Carrie Shu Shang and Wei Shen

agreement. In fact, various names have been used for international treaty documents such as charter, covenant, statute, convention, agreement, protocol, master document, declaration, exchange of texts, interim agreement, memorandum of understanding. The International Court of Justice (ICJ) in its Judgment in South-West Africa Case (Preliminary Dissent) (1962) observed that terminology is not a decisive factor in determining the nature of an international agreement or commitment. In the practice of states and international organizations, as well as in international law and judicial practice, the use of treaty name varied. There are many different kinds of documents [internationally], but they all take on the nature of treaties. From the outset, the British government stressed the international nature of the Joint Declaration. However, it did not specifically explain why it chose to use the term declaration instead of treaty or agreement. The review paper of the Joint Declaration submitted by the British foreign secretary to parliament underlines the international legal nature of the Declaration as follows: ‘Each part of [the main document of the Joint Declaration and the three annexes] has equal status, while the whole forms a formal International Agreement, all parts of which are legally binding. This international agreement is the highest form of commitment between two sovereign States.’38 On the side of the PRC, State Councillor and Foreign Minister Wu Xueqian, in his report to the NPC Standing Committee for deliberation of the Sino–British Agreement on the Hong Kong question in 1984, also made no secret of the international law nature of the Joint Declaration:39 Generally speaking, the international settlement of territory and sovereignty is mostly in the form of treaties. However, considering that the basic policies of the Chinese government on Hong Kong belong to China’s internal affairs, we should make a statement. At the same time, the expression of sovereignty and governance is also more appropriately adopted in the form of the joint statement. Relevant details are provided in the form of an annex. In a broad sense, the joint declaration is also a type of international treaty equally valid and legally binding under international law.

It is clear that the Joint Declaration is an international treaty in terms of its substance and formality. However, it may not be a comprehensive one owing to the lack of an enforcement mechanism, which was also the partial reason for the later dispute between China and the UK over it. In other words, the Joint Declaration does not impose mandatory legal obligations on both parties except Article 7, which reads: ‘The Government of the People’s Republic of China and the Government of the United Kingdom agree that the above-mentioned declarations and the annexes to this Joint Declaration shall be implemented.’ However, Article 7 fails to specify the remedies available to the other party if one party fails to fulfil its obligations. For instance, the Joint Declaration does not provide whether, in the event of a violation, a party may seek to resolve the dispute before the ICJ or other international forum for the settlement of disputes. Without explicit consent from China,40 the ICJ does not have automatic or compulsory jurisdiction over any dispute arising out of the Joint Declaration.41 38

39 40 41

‘A Draft Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China’, presented to parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty, September 1984, Miscellaneous No. 20 (1984), reprinted in [1985] Australian International Law News, 148, at 154. State Council Gazette of the People’s Republic of China, No. 28, 1984 (No. 449), 6 November 1984, p. 954. Statute of the International Court of Justice, Article 36(1) and (2). The UK formally endorsed the compulsory jurisdiction of the ICJ in writing on 22 February 2017, making it the only permanent member of the UN Security Council to accept such jurisdiction thus far. ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory [by] United Kingdom of Great Britain and North Ireland’, 22 February 2017, at www.icj-cij.org/en/declarations/gb. However, when the Joint Declaration was signed and issued, neither the United Kingdom nor China accepted the ICJ’s compulsory jurisdiction.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

143

Article 7 basically suggests that neither of the two parties can bring the counterparty to the ICJ or other international forum for dispute settlement. The lack of a dispute resolution clause or an enforcement mechanism in the Joint Declaration suggests that the UK and China took a less legalistic approach when they negotiated it. Looking back, this may have been a planned approach agreed by both sides from the beginning. The purpose of this Joint Declaration was to resolve the territorial dispute in a peaceful manner. Likely both sides may have held the view that the handing over of Hong Kong was itself a fulfilment of legal obligations under the Joint Declaration and reliance on either the ICJ or any other international fora would be against this purpose. On 30 June 2017, China’s Ministry of Foreign Affairs (MFA) spokesman Lu Kang said:42 Hong Kong is a special administrative region of China, and its affairs fall within China’s internal affairs. The 1984 Sino–British Joint Declaration clearly delineated China’s resumption of sovereignty over Hong Kong and arrangements for the transitional period. It has been 20 years since Hong Kong’s return to the motherland. As a historical document, the Sino–British Joint Declaration has no practical significance and has no binding force on the Chinese central government’s management of the Hong Kong Special Administrative Region. The British side had no sovereignty, governance or supervision over Hong Kong after its return.

This statement indicates China’s intention not to let the UK rely on the Joint Declaration to assert its influence on China’s exertion of sovereignty over Hong Kong. Meanwhile, this statement immediately triggered a variety of reactions, including an immediate response from the British Foreign Office confirming the legal validity of the Joint Declaration.43 However, since then it has been understood that China is questioning the legal validity of the Joint Declaration and does not recognize its international treaty nature, thereby evading its obligations under the Joint Declaration. If this is the case, then ‘one country, two systems’ has lost its function as a promise or guarantee under international law. It would also have a major negative impact on China’s international reputation, leading to the perception that China has broken its promises. In order to avoid such adverse consequences, the Chinese Foreign Affairs Ministry made further supplements and amendments to the Chinese understanding of the Joint Declaration in several subsequent responses, basically forming a rhetorical set of ‘historical document theory’.44 On 8 July 2017, Xu Hong, director-general of the Department of Treaty and Law of the MFA, said that Lu’s remarks on the Joint Declaration should be interpreted and understood in the context of his remarks.45 The phrase ‘no practical significance’ means that relevant countries should not use the Declaration to make irresponsible remarks on and to interfere with Hong Kong affairs. Xu stressed that, in this context, Lu ‘did not mention whether the Joint Declaration is still valid [or not]’. Xu reiterated that China has never denied that the Joint Declaration is an international treaty. Xu’s supplement to Lu’s statement reflects China’s efforts to legalize its stance on the legality or validity of the Sino–UK Joint Declaration. Putting 42

43

44

45

Foreign Affairs Ministry Spokesman Lu Kang’s Press Conference on 30 June 2017, www.fmprc.govn.cn/web/ fyrbt_673021/t1474476.shtml. David Newman, The Road to China: Hong Kong’s Transition to Chinese Sovereignty, Centre for Public Policy Studies Working Paper Series, No. 19 (4/95) CPPS (Hong Kong: Faculty of Social Sciences, Lingnan College, 1995), 9–10. ‘Sino-British Joint Declaration on HK [Hong Kong] “No Longer Has Realistic Significance”: Chinese FM’, CGTN (30 June 2017), news.cgtn.com/news/356b7a4d31517a6333566d54/index.html; Kay Li, ‘China, UK, and Their Sino-British Joint Declaration’ (2019) 41 Michigan Journal of International Law, www.mjilonline.org/china-uk-andtheir-sino-british-joint-declaration/. Xu Hong, ‘UK Has No Right to Blame China After Hong Kong Was Turned Over’, Wen Wei Po (8 July 2017), news .wenweipo.com/2017/07/08/IN1707080042.htm.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

144

Carrie Shu Shang and Wei Shen

both Lu’s and Xu’s remarks in a coherent framework, China applies a dual-dimensional approach to the effect of an international legal instrument by differentiating historical and practical effect. Saying that the Joint Declaration is a historical document suggests that China’s obligations have been performed and no more obligations can be asserted by the counterparty. The practical effect basically reinforces the historical effect of the Joint Declaration as it is no longer practical for the counterparty to claim rights over China. This dichotomic approach is a legalistic move on the Chinese side to rely on lawfare to safeguard its autonomy over Hong Kong. The positive way of viewing this is that China is willing to use international law to package its political agenda. The Chinese Foreign Affairs Ministry’s new account of the contemporary validity of the Joint Declaration is a novel counterargument to the UK’s claim that it has the right to continue to monitor China’s compliance with its obligations under the Joint Declaration according to international law. The core issue here is whether Article 3 and Annex I of the Joint Declaration, which state China’s basic policy towards Hong Kong (namely, one country, two systems), constitute China’s obligations under international law. First, does Article 3 constitute an obligation to the UK? Does China’s undertaking to implement the specific provisions under the Joint Declaration constitute its treaty obligations towards the UK, or is that simply a unilateral commitment to an internal matter? If China’s unilateral declaration in the Joint Declaration does not create obligations to the other side under international law, then what was the UK’s undertaking to hand over Hong Kong to China on 1 July 1997? Was that only a unilateral declaration made by the British side? Although Hong Kong has been effectively returned, will the UK legally assert that the return itself was unlawful and is thus invalid? Most importantly, Article 7 of the Joint Declaration, under which the Chinese and British governments agree that all articles of the Declaration, including Article 3 and all annexes, shall be put into effect, is likely to be interpreted as an obligation under the treaty rather than merely a unilateral commitment. Even if the unilateral declaration or commitment theory stands, Article 3 and Annex 1 may also constitute an expression to bear international obligation under international law. It is clear that the Joint Declaration should be viewed as an international treaty. Therefore, the historical document theory does not justify China’s argument that it should not be further bound by it. According to treaty law, a treaty may be effective or ineffective. A treaty is ineffective owing to invalidity, withdrawal, termination or suspension. Invalidity of a treaty refers to a treaty being invalid from the beginning owing to defects in the signing of it, such as the misperception of one party, a representative’s lack of authority, the corruption of a state representative, error, fraud, bribery or coercion of one party’s state representative, or threat of force or conflict with a peremptory norm of general international law.46 Termination of a treaty includes termination by agreement, material breach, expiration of the treaty, withdrawal of one party, failure of subsequent performance, fundamental change of circumstances, supervening impossibility of performance or new peremptory norm.47 Suspension refers to the temporary suspension of the implementation of treaty obligations by the parties concerned, based on their agreement or other acceptable reasons, until conditions are ripe for further implementation. The Joint Declaration is the result of long-time consultation and negotiation between China and the UK on an equal footing. It was not invalid from the beginning, nor is it a treaty that has 46 47

Ian Brownlie, Principles of Public International Law, 5th ed. (Oxford: Oxford University Press, 1998), 617–20. Ibid., at 620–6.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

145

been suspended for the time being. In order to negate the actual effect of the Declaration, a legal basis must be found. Termination or withdrawal may take place by consent of the parties.48 However, there is no expiry date in the Joint Declaration. There is no provision in the Joint Declaration concerning the termination of or withdrawal from the Joint Declaration by a party, or any failure of subsequent performance or other circumstances relating to the termination of the treaty. If China wants to rescind the Joint Declaration, it will have to fulfil certain procedural obligations such as a reasonable period of notice, whether on the basis of unilateral withdrawal, material breach of the other party or material change of circumstances. It may have to notify the UK and resolve the dispute through international judicial body or arbitration institution in the event of opposition. Where a treaty contains no provisions regarding its termination, the existence of a right of denunciation depends on the intention of the parties, which can be inferred from the terms of the treaty and its subject matter.49 Some treaties, namely, treaties of peace, are presumably not open to unilateral denunciation.50 Arguably, the Joint Declaration, dealing with the territory and peace between two states, is not presumably to be unilaterally denunciated. Therefore, a more reasonable legal basis for China to rescind the Joint Declaration could be that the duties under the Joint Declaration have been implemented. Oppenheimer contends that a treaty whose obligations have already been fulfilled is still valid but has only historical significance.51 Once treaty obligations are fulfilled, the treaty ceases to exist as a legal act, although it continues to exist as a historical fact.52 Brownlie gives an example that an ancient treaty may become meaningless and incapable of practical application.53 In any case, a treaty whose obligations have been fulfilled, whether valid or not, is merely of historical significance, which to some extent forms the theoretical basis of China’s historical document argument. After the signing of the Joint Declaration, the NPC enacted the Basic Law of Hong Kong, which implemented the commitments China made in the Joint Declaration and its Annex I. There was no provision on universal suffrage in the Joint Declaration. Article 45 of the Basic Law stipulates that the method for selecting the Chief Executive shall be based on the actual conditions of the HKSAR and the principle of gradual and orderly progress, culminating in the election of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures. According to the spokesperson of the MFA and other competent officials, with the exception of Article 3 and Annex I of the Joint Declaration (which themselves are only unilateral policy declarations on the Chinese side), all other provisions of the Joint Declaration have been fulfilled with the return of Hong Kong and the completion of various follow-up works. In some sense, the Joint Declaration became incapable of practical application. In asserting the legal force of Article 3 and Annex I, the UK might argue that the compliance is a continuing obligation that, under Article 3(12), lasts for at least fifty years, before which there is no question of completion. Does the Hong Kong National Security Law violate the substantive provisions of the Joint Declaration? Article 3 of the Joint Declaration affirms China’s basic policies towards Hong Kong 48 49 50 51

52

53

Vienna Convention, Article 54. Ibid. Ian Brownlie, supra note 46, at 621. L. Oppenheim, International Law, Vol. I, Peace, 4th ed. edited by Arnold D. McNair (New York: Longmans, Green and Company, 1928), 744. ‘Article 33: Termination of Treaties’ (1935) 29 American Journal of International Law, Supplement: Research in International Law, 1162; see Max H. Hulme, ‘Preambles in Treaty Interpretation’ (2016) 164 University of Pennsylvania Law Review, 1281–331. Ian Brownlie, supra note 46, at 622.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

146

Carrie Shu Shang and Wei Shen

after its handover, to maintain Hong Kong’s own political structure, political system and human rights protection. The main concern here is whether the Hong Kong National Security Law interferes with Hong Kong’s high degree of autonomy, especially its executive, legislative, judicial and especially final adjudicative powers.54 The Hong Kong National Security Law is a law enacted by the central government and applied in Hong Kong through its inclusion in Annex III to the Basic Law. This raises the question of whether Hong Kong’s own legislative power has been compromised if the national legislature passed the Hong Kong National Security Law on Hong Kong’s behalf. This issue is essentially a constitutional one, involving Hong Kong’s legislative power under the Basic Law and the division of legislative power between the central and Hong Kong legislatures. Modern political theory seems to surely support the national (central/federal) legislature’s absolute power to deal with anything in relation to national security. The legal issue here is whether the legislative power of national security law has been granted exclusively to Hong Kong. Judging from the text of the Joint Declaration as a whole, China and the UK had no intention of stipulating this in the Joint Declaration because Article 1 and Annex 1 do not involve the legislative power in matters of national security; they mention only that the public order in Hong Kong is the responsibility of the HKSAR government. Article 23 of the Basic Law states that the HKSAR shall be banned from any treason, secession, sedition, subversion of the central people’s government and the behaviour of stealing state secrets, prohibiting foreign political organizations and groups in the HKSAR from carrying out political activities; political organizations and bodies of the HKSAR are likewise prohibited from establishing contact with foreign political organizations or bodies. But in the past two decades since the handover, every attempt to enact the national security ordinance under Article 23 has caused a hue and cry involving the general public and local politicians claiming that it cannot be done locally. In terms of legislation, it cannot be concluded that the enactment of the Hong Kong National Security Law infringes on Hong Kong’s legislative power as stipulated in the Joint Declaration. The question of judicial and executive power is more complex. The provisions on independent judicial power and final adjudicative power in the Joint Declaration are straightforward and clear, and there is no room for ambiguity or ‘exploiting loopholes’. The relevant provisions in the Basic Law have the same effects. However, several organic law provisions of the Hong Kong National Security Law may be controversial in this regard, particularly those relating to the Office for Safeguarding National Security. According to the National Security Law, through which the HKSAR has set up a Safeguarding National Security Committee (with a delegate from the Chinese central government to ‘advise’ it) to assume primary responsibility for safeguarding national security.55 In addition, there is a National Security Division of the Hong Kong Police Force, headed by the Police Force and by the Chief Executive.56 Both of these are internal organs operating under the HKSAR government’s own rules.57 However, the operation and the authority of the Office for Safeguarding National Security are worth discussing.58 According to the Hong Kong National Security Law, for example, the staff of the Office for Safeguarding National Security are required to properly comply only with the laws of 54 55 56 57 58

Joint Declaration, Article 3(3). Hong Kong National Security Law, Art. 12. Ibid., Art. 16. Ibid., Art. 50. Ibid., Art. 60.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

147

the HKSAR. Their conduct in the performance of official duties under the Hong Kong National Security Law shall not be subject to the jurisdiction of the HKSAR and shall not be subject to inspection, search or seizure by Hong Kong law enforcement officers. How these provisions coordinate with the administrative power with a high degree of autonomy enjoyed by the HKSAR deserves further elaboration. More notable is Article 55 of the Hong Kong National Security Law, which provides for the Office for Safeguarding National Security to exercise jurisdiction over national security crimes under the following three circumstances: (1) where the case has complex circumstances involving foreign or external forces and the HKSAR has difficulty in administering it; (2) where there are serious circumstances in which the HKSAR government is unable to effectively implement the Hong Kong National Security Law; (3) where there is a major realistic threat to national security. In such cases, the Supreme People’s Procuratorate in Beijing is entitled to appoint relevant procuratorial organs to exercise procuratorial power, while the Supreme People’s Court appoints relevant lower courts to exercise judicial power. In other words, the HKSAR has no say in the investigation, prosecution or trial of such cases. To what extent this affects the HKSAR government’s administrative power, independent judicial power and final adjudicative power needs to be seriously evaluated in the years to come. One possible justification for Article 55 of the Hong Kong National Security Law is that the situations listed in the article are exceptional states of emergency. In accordance with the general principles of national constitutions concerning states of emergency, the central government could have taken extraordinary measures under these circumstances. As a matter of fact, Article 18(3) of the Basic Law states that the NPC Standing Committee possesses the authority to declare a state of war or a state of emergency when the HKSAR government cannot control any turmoil endangering national unity or national security; in this case, the central people’s government may issue orders to implement relevant national laws in the HKSAR to this end. According to the Joint Declaration, Hong Kong residents shall enjoy rights to life, speech, the press, opportunities, association, organization, communication, travel, migration, join union strikes and demonstrations, choose a career, do academic research, freedom of worship, property free from expropriation, freedom of marriage, legal representation and freedom of religious practice. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights applied to Hong Kong prior to the handover remain in force since the handover.59 The Hong Kong National Security Law does not directly violate these rights, nor does it contravene the two human rights conventions. Article 4 of the Hong Kong National Security Law emphasizes that safeguarding national security shall respect and protect human rights, and abide by the relevant provisions of human rights conventions. Article 5 stipulates that the prevention, suppression and punishment of crimes endangering national security should adhere to the principle of the rule of law, specifically, the principle of ‘no crime unless expressly stipulated by law’ and the principle of ‘presumption of innocence’. These provisions establish a principle of human rights protection that is consistent with international standards. More importantly, the crimes and punishments stipulated in the Hong Kong National Security Law are distinguished according to whether they involve action or speech (words). The Hong Kong National Security Law lists four categories of criminal offences: secession of Hong Kong, subversion against the Chinese government, terrorism, and colluding with foreign governments or foreign forces to endanger national security.60 The crimes of secession 59 60

Joint Declaration, Annex 1, Article 13. Hong Kong National Security Law, Arts. 20–35.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

148

Carrie Shu Shang and Wei Shen

and subversion of state power are established on the condition that the suspect has ‘organized, planned, carried out or participated in the secession of Hong Kong or the subversion of any part of China’.61 ‘Incitement (of secession)’62 seems to fall into the category of speech, but ‘incitement’ is a common crime in the criminal law of various countries and has fallen into the category of ‘action’ in international criminal law. The crime of terrorism includes ‘advocating terrorism’,63 which seems to belong to the scope of speech but has been similarly defined as a terrorist action in both the criminal law of various countries and the international criminal law in the past decades, with the aim of broadening the scope of terrorism. The crime of colluding with a foreign country or a foreign force against national security is all about action.64 In summary, the Hong Kong National Security Law, on its face, does not violate any provision of the Joint Declaration (or the Basic Law or the international human rights conventions applicable to Hong Kong) on the protection of the residents’ rights. This conclusion, however, is valid only on the basis of the literal review of the Hong Kong National Security Law. As to the actual operation of the law, how the Hong Kong police and the Office for Safeguarding National Security investigate crimes under the Hong Kong National Security Law, how the Hong Kong Department of Justice conducts prosecutions and how the Hong Kong courts (and, in particular, the Office for Safeguarding National Security) interpret and apply the Hong Kong National Security Law are beyond the limited scope of this chapter and raise practical questions that may need to be probed separately. 7.4 PRIVATE INTERNATIONAL LAW TREATIES AND CONVERGENCE WITH INTERNATIONAL PRACTICES

With the development of China’s external economic cooperation and trade, increasing numbers of disputes involving foreign factors arise and hence are brought to People’s Courts. Private international law was introduced in China in the early 1980s to assist in the resolution of these disputes. This aspect of the Chinese legal system has then developed rapidly.65 As China has started to emerge as one transnational dispute resolution centre in recent years, it has also started to be a more active participant of private international lawmaking. On the one side, under the auspices of the Hague Conference on Private International Law, China’s practices of acceding to some of the most recent Hague Conventions, including the 2019 Hauge Judgment Convention and the 2017 Hague Convention on Choice of Court Agreements (Hague Choice of Court Convention), strongly reflected China’s modernized values of promoting access to justice and multilateral trade facilitation. By taking a look at the private international law treaties China has chosen to engage in, we attempt in this section to find possibilities for future cooperation in the contractual choice of forums, enforcement of mediated settlement agreements, arbitral awards and judgments, and the application of domestic law in light of increasingly sophisticated geopolitics.

61 62 63 64 65

Ibid., Arts. 21 and 23. Ibid., Art. 21. Ibid., Art. 27. Ibid., Arts. 29 and 30. See generally Qingjiang Kong and Minfei Hu, ‘The Chinese Practice of Private International Law’ (2022) Melbourne Journal of International Law, 414.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

149

7.4.1 Jurisdiction In China, the general rule of jurisdiction is territorial. A civil or commercial action shall be brought in the People’s Court of the place in which the defendant is domiciled. Rooted in Roman law, ‘domicile of the defendant’ is also the primary criterion that the People’s Courts of China take into account in determining whether the courts have jurisdiction over disputes submitted to them. On the other hand, in an increasing number of contractual disputes, the principle of party autonomy gives parties the right to choose which court to have exercise jurisdiction over disputes between them. China signed the 2017 Hague Choice of Court Convention, which strongly reflects China’s modernized judicial values of promoting party autonomy and ‘forum-shopping’ in transnational dispute resolution proceedings. The Hague Choice of Court Convention has not entered into force in China. However, the Shanghai High Court has already relied on the Hague Choice of Court Convention to make decisions. Even though there is no hard bar preventing China from rectifying the Hague Choice of Court Convention, academics and commentators have pointed to two important differences in the approaches of the Chinese courts and the Hague Choice of Court Convention when handling choice of court issues. First, Chinese courts apply Chinese law (i.e. lex fori) to determine the validity of the jurisdiction; if they were working according to the Convention, they would be bound to apply the law of the court chosen to review the jurisdiction. Second, Chinese courts usually deem the choice of court agreement to be non-exclusive, unless expressly provided otherwise by the parties; however, in accordance with Article 3(a) of the Convention, a choice of court agreement that designates the courts of one Contracting State or one or more specific courts of one Contracting State shall be deemed to be exclusive unless the parties have expressly provided otherwise. Therefore, it has been suggested that China may have some specific concerns (e.g. national security) in its recognition and enforcement of choice of foreign forums and that it adopts a pragmatic approach to minimize the number and extent of its reservations to the Convention.66 Regardless of what reservations China decides to adopt finally, joining the Hague Choice of Court Convention further promotes the predictability and stability of the validity of the treatment of forum selection clause, which will help to increase the connectivity of Chinese courts. 7.4.2 Alternative Dispute Resolution China has also been promoting its alternative dispute resolution by being a dedicated New York Convention enforcer and one of the first signatory nations of the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention or Singapore Mediation Convention). On the other hand, by acceding to Conventions allowing collaboration on recognition and enforcement of awards rendered under multiple dispute resolution channels, such as the Singapore Convention and the decades-old 1958 New York Convention, China displays its ambition as an important global player claiming more presence on the transnational dispute resolution market. In 1986 China acceded to the Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which bound China from 1987. Most states are party to 66

See Wei Cai and Jonathan Kolieb, ‘Between National Interests and Global Business: China’s Possible Reservations to the Hague Convention on Choice of Court Agreements’ (2020) 11(2) Journal of International Dispute Settlement, 295–318.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

150

Carrie Shu Shang and Wei Shen

the New York Convention, and therefore the recognition and enforcement of these states’ arbitral awards in China is governed by its provisions. The case of Guangdong Shipping Co v. Marships Connecticut Ltd in July 1990 was the first case concerning request for recognition and enforcement of foreign arbitral awards in China under the New York Convention. In that case, an ad hoc arbitral tribunal in London rendered an arbitral award in accordance with a provision in the parties’ charter contract. The tribunal found against Marships Connecticut Ltd, but the award was only partially performed. The applicant applied to Guangzhou Maritime Court for enforcement. The Maritime Court examined the arbitral award in accordance with Article 5 of the New York Convention and ruled that the award met the requirements for enforcement. It therefore issued a writ of enforcement. Norbok Cargo Transport Services Co Ltd v. China Navigation Technology Consultation & Services Company and S & H Foodstuff Trading GmbH v. Xiamen Lianfa Import & Export Corporation are two further cases concerning the request for enforcement of an arbitral award. After examining the awards in accordance with the relevant provisions of the New York Convention, the People’s Courts concerned recognized and enforced the awards. These cases are viewed as early examples of China honouring its obligations under international treaties. After its accession to the New York Convention, China has successfully recognized and enforced many foreign arbitral awards.67 In 2019, the Singapore Convention was open for signature. To date, the Singapore Convention has been signed by more than fifty signatory members,68 while the number of countries adopting it is still expected to grow. By providing a clear and uniform framework for the recognition and enforcement of agreements resulting from mediated settlement agreements of international disputes, the Singapore Convention is said to increase the predictability of settlement agreements, which in turn will combat the perception that mediation is less preferable to arbitration in international dispute resolution owing to enforcement obstacles. On 29 August 2019, China was among the first group of forty-six countries to sign up to the framework of the Singapore Convention. The signing of the Singapore Convention is also extremely timely for China. A number of reforms leading to a more modernized mediation scheme have already been pushed by the Chinese government in recent years. At the same time, compared to thirty years ago when China entered the New York Convention framework, the country’s legal system has kept modernizing to provide a stronger legitimacy foundation for the country’s gradual transformation to a more rule-based governance system. In recent years, China has even adapted strategies to further position itself as one of Asia’s dispute resolution hubs. Therefore, the impact of the Singapore Convention on China’s domestic legal regimes might be more trivial and less direct, although it could still be more long-lasting. Signing the Convention will continue to elevate the status of mediation in China to resolve domestic and international disputes, while transforming and modernizing the way mediation is conducted in China and by Chinese parties. At the same time, the recognition of a stronger mediation institutionalization also fosters a quicker convergence of domestic and international mediation standards in China. On the other side, in responding to the Singapore Convention, promoting the use of mediation and institutionalizing mediators have become state policy objectives of China, which might further associate mediation with formal institutions and rule-based legal schemes such as courts and international 67 68

See Kong and Hu, supra note 65, at 414. Louise Woods et al., ‘The UK to Sign the Singapore Convention – The New “New York Convention” for Mediation?’, Vinson & Elkins International Dispute Resolution Update (7 March 2023), www.velaw.com/insights/ the-uk-to-sign-the-singapore-convention-the-new-new-york-convention-for-mediation/.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

151

treaties. This might deprive mediation of its traditional advantages, for example its flexibility, cost-effectiveness, informality and confidentiality. 7.4.3 Recognition of Foreign Judgments China is not currently signed up to the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (Hague Judgment Convention); in fact, there are certain voices that are against China joining the Hague Judgment Convention. Enforcing foreign money judgment has not been easy in China except in limited circumstances where comity/reciprocity was allowed. However, some strong justifications in favour of China joining the Hague Judgment Convention include reduction of (Belt and Road Initiative (BRI)) transaction costs and opening up of China’s judicial forums. The domestic legislation applicable to recognition of foreign money judgments is mainly found in the Civil Procedure Law (CPL). The limited provisions applying to recognition of foreign judgments were enacted in 1991 as part of the overarching CPL and have not changed since. The CPL and related laws provide only a general public policy defence and a reciprocity requirement. According to Article 267 of the CPL, if a foreign judgment requires recognition and enforcement in China, the parties concerned may apply directly to the competent Intermediate People’s Court for recognition and enforcement. The foreign court that pronounces judgment may also, in accordance with the provisions of the international treaty concluded or acceded to by that foreign country and China, or according to the principle of reciprocity, request recognition and enforcement. Upon receiving requests for recognition and enforcement of a foreign judgment, the People’s Court concerned, before reviewing the judgment on its merits, needs to examine whether there is a judicial assistance agreement or reciprocity between China and the forum country.69 In the case of Wuweihuangci v. Dalian Fari Seafood Ltd, where a Japanese national requested enforcement of a Japanese judgment on a liability transfer, the Intermediate People’s Court of Dalian City ruled against recognition and enforcement of the Japanese judgment since there existed no judicial assistance agreement between China and Japan, and because the Japanese court added an individual as a third party to the proceedings without notifying him, and delivered judgment in his absence. This led China straight into a reciprocity trap – a stalemate in which recognition of foreign judgments was almost non-existent. In practice, this left recognition by reciprocal treaty as the only functional ‘channel’ by which to obtain recognition and enforcement of judgments in China. China has reciprocal judgment enforcement treaties with thirty-three countries. These countries represent almost 15 per cent of China’s total trading volume, according to a 2017 study.70 On 30 June 2017, a Chinese court recognized a US commercial money judgment.71 These are signs that China is slowly moving towards affording more reciprocity to trading partners. With this level of enthusiasm, China could possibly move into closer proximity with Hague Judgment Convention enforcement treaties or towards opening up more channels for mutual recognition and enforcement of judgments. 69

70

71

See generally Aaron D. Simowitz, ‘Convergence and the Circulation of Money Judgments’ (2019) 92 Southern California Law Review, 101, 1031–54. King Fung Tsang, ‘Chinese Bilateral Judgment Enforcement Treaties’ (2017) 40 Loyola of Los Angeles International and Comparative Law Review, 1, 6–7. Ronald A. Brand, ‘Recognition of Foreign Judgments in China: The Liu Case and the Belt and Road Initiative’ (2019) 37(1) Journal of Law and Commerce, 29–56, at 29 citing ‘Liu Li v. Tao Li & Tong Wu’ (刘莉诉桃李和吴彤), Intermediate People’s Court of Wuhan, Hubei Province, China (Wuhan Intermediate People’s Court, 30 June 2017).

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

152

Carrie Shu Shang and Wei Shen

7.5 HEALTH, SAFETY AND ENVIRONMENT AND IMPROVEMENT OF CIVIL GOVERNANCE IN CHINESE IIAS

As a last point, we would also like to examine a new front of China’s treaty practices by exploring health, safety and environmental protection obligations in China’s new generation of IIAs. Sixteen years ago, China succeeded in its campaign to join the World Trade Organization (WTO) following a series of dramatic reforms to its domestic economic system and its assertion that global trade and international competition should benefit all states, regardless of their level of development. The very next day, China signed a new BIT. Since its entry into the WTO, China has displayed a renewed focus towards the IIA regime, entering into 140 BITs and negotiating nearly two dozen free trade agreements (FTAs) to promote an integrated and stable standard for foreign investment treatment. However, this ‘race to the bottom’ practice does little to promote long-term economic development while frequently compromising the host state’s regulatory sovereignty and endangering its health, safety and local environment, all in pursuit of greater and more secure home state investment returns. For China, the wind has also been shifting; a progressively greater portion of China’s recent IIAs now include provisions that begin to address the effects of international investment protections on China and specifically seek long-term sustainability in the areas of health, safety and the environment. While China remains a net FDI-importing state, it has blossomed into the largest exporter and the second largest importer of goods in the world, having experienced a massive annual real GDP growth rate of 6 per cent to 8 per cent since joining the WTO. Given its rapid growth and increasing role as an FDI exporter, it is natural to ask how China’s IIA practices have evolved in the years following its ambitious vision to harmonize the disparate forces of investment protection and host state sovereignty. In this section, we further ask this question: have China’s IIA practices demonstrated a respect for key domestic policy objectives, such as regulating in the interests of sustainability in the areas of health, safety and the environment, or have they instead demonstrated a pursuit of greater returns and heightened protections of foreign investments at the expense of these domestic goals? China’s participation in the construction of the international investment legal system has two important dimensions, namely, the construction of the domestic legal system and the construction of BITs.72 China’s political, economic, legal and bureaucratic dynamics have pushed its evolutionary engagement with the investor–state dispute settlement (ISDS) system and, more importantly, its possible role in pushing for a restructuring of international investment law in the years to come.73 China’s focus on FDI is the clearest and most dramatic manifestation of its ‘open-door’ and economic reform policy; FDI has also exposed China to the outside world.74 China’s success in attracting FDI has made it a great example to other developing states.75 China’s national investment policymaking offers some learning experiences to others that are about to boost their economy through attracting FDI. There is also a confirmed impact of Chinese BITs on China’s inbound FDI.76 72

73

74 75

76

See Richard C. Chen, ‘Bilateral Investment Treaties and Domestic Institutional Reform’ (2017) 55 Columbia Journal of Transnational Law, 554. Huiping Chen, ‘China’s Innovative ISDS Mechanisms and Their Implications’ (2018) 112 American Journal of International Law, 211. Y. Y. Kueh, ‘Foreign Investment and Economic Change in China’ (1992) 131 China Quarterly, 637–90. Shirley Ayangbah and Liu Sun, ‘Comparative Study of Foreign Investment Law: The Case of China and Ghana’ (2017) 3 Cogent Social Sciences, 1–22. Kate Hadley, ‘Do China’s BITs Matter? Assessing the Effect of China’s Investment Agreements on Foreign Direct Investment Flows, Investors’ Rights and the Rule of Law’ (2013) 45 Georgetown Journal of International Law, 255.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

153

The history of foreign investment in China is brief indeed. The first three decades after China’s founding witnessed the implementation of a self-reliance policy, the failure of which, however, triggered the dramatic and logical change to the open-door and economic reform policy in 1978.77 The open-door policy together with the economic reform signalled China’s determination to utilize market mechanisms and foreign resources to accelerate economic growth and modernization. The uneasy process of implementing the open-door and economic reform policy went hand in hand with the tension between encouraging foreign investment to achieve favourable economic outcomes and maintaining state control over foreign business activities to mitigate potential risks,78 which in turn influenced the foreign investment law and economic structure as a whole.79 It is not surprising to see that the first piece of legislation enacted right after the adoption of the open-door policy was the Equity Joint Venture Law in 1979. The urgency of attracting foreign investment and satisfying foreign investors’ needs to have their investments well protected entailed tremendous efforts to create a foreign investment law regime from scratch. A unique Chinese characteristic or regulatory feature of the foreign investment law regime in China is the centrality of the state as the primary agent for economic and social development. The regulators are everywhere from the collection of taxes, exchange controls, customs regulation, intellectual property, protection from seizure of land, allocation of natural resources and dispatch of employees. In the 1990s, as China’s market economy reform continued to deepen, China gradually moved towards a transition to a market economy system.80 The entire 1990s witnessed differential liberalization dominance as well as a departure from the conventional state planning system of the old days to a more market-oriented macro economic regulation and control.81 China’s accession to the WTO in 2002 marked a new chapter of foreign investment. The significance of this event was to outline a roadmap for China to further liberalize and modernize the economy and the foreign investment regime per se. China’s entry into the WTO opened up a large-scale revision of legislation on various aspects including investment. The principle of national treatment was more expansively implemented, and regulation and supervision of foreign investment activities became more subject to legal rather than administrative means. Other significant changes to foreign investment policies included repealing the requirements for nationalization of foreign investment and establishing a legal framework that was more compatible with the requirements and principles of the WTO. The state-centric model of economic growth and development explains the key features of the foreign investment law regime in China, which pursues policies of import substitution, export-led growth, and development strategies through specially designed state-driven industrial policies and grand plans.82 These institutional arrangements have ensured the success of the labour-intensive and export-oriented industries in the past four decades. Heavy reliance upon foreign capital in 77

78

79 80

81

82

See Deng Xiaoping, ‘Emancipating the Mind, Seeking Truth from Facts, Looking Forward Together’ in Selected Works of Deng Xiaoping (Vol. 2) (Beijing: Foreign Language Press, 1994), 146–7. Michael J. Enright, ‘China’s Inward Investment: Approach and Impact’ in Julien Chaisse (ed.), China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy (Oxford: Oxford University Press, 2019), 28. Sherif H. Seid, Global Regulation of Foreign Direct Investment (London: Routledge Taylor & Francis, 2017), 30. In 1993, China further revised the 1982 Constitution, clarifying that China will implement a socialist market economic system. PRC Constitution, Article 15. Final Version of the 14th Communist Party of China National Congress Report, FBIS Daily Report – China, 21 October 1992. See Xinli Zheng, China’s 40 Years of Economic Reform and Development: How the Miracle Was Created (Singapore: Commercial Press and Springer Nature Singapore, 2018), 151.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

154

Carrie Shu Shang and Wei Shen

Chinese foreign investment policy also justifies the Chinese government’s willingness to offer policy, economic, tax and legal incentives to foreign investors while foreign investors offer capital, managerial skills and technologies to China, shaping a unique bonding relationship between the two. This may explain the Chinese government’s efforts to formalize, upgrade and modernize its law, legal infrastructure and legal system, though they are authoritarian in nature. The foreign investment law, together with other laws and norms, has not undermined the state’s regulation of foreign investment but has recognized the transnational character of cross-border foreign investment. China’s economic success consistently reminds us of the difficulty and complexity in understanding, justifying and theorizing China’s development model. The foreign investment regime in China demonstrates both prospects and dilemmas, which are complexly and paradoxically related to the state or the sovereignty. It appears that there is a retrenchment in China placing a greater emphasis on industrial policy and regulatory regime to review the impact of foreign investment projects on national economic and security interests, which coincided with a notable trend towards rising nationalism, seeking to push back globalization, as well as a switch from fast economic growth to a new harmonious society policy (or sustainable development). The debate in China, that is, economic nationalism versus liberal treatment towards foreign investment, has been ongoing for decades, underpinning the wavering policy change.83 As shown in Figure 7.1, China’s inbound FDI since the turn of the millennium has continued to expand. In particular, the outbreak of the Asian financial crisis in 1997 highlighted a potential risk of excessive dependence on foreign investment. Besides, orderly capital outflow is conducive not only to domestic economic development but also to reduction of financial risks and economic stability. Therefore, in light of China’s rising strength in investment and other fields, at the National Foreign Investment Conference held in December 1997, the then president Jiang Zemin proposed a new strategy of reform and opening up that combines ‘attracting foreign investment’ and ‘going out’, emphasizing the need to encourage Chinese enterprises, especially state-owned enterprises (SOEs), to invest in Africa and other overseas markets while promoting the rational use of foreign capital. Investment in other countries and regions, making full use of the market and resources of the relevant countries to promote joint ventures and cooperation projects,84 can give play to China’s comparative advantages and better utilize both domestic and

FIE Laws

FIL

Free Trade Zone

Restrictive BITs

Liberal BITs

figure 7.1 China’s outbound FDI along the BRI countries (USD million) 83

84

See Zhang Jianhong and He Xinming, ‘Economic Nationalism and Foreign Acquisition Completion: The Case of China’ (2014) 23 International Business Review, 224–5. See Jiang Zemin, ‘Open Strategy for the Implementation of “Introduction” and “Going Global”’ in Selected Works of Jiang Zemin (Vol. 2) (Beijing: Foreign Language Press, 2006), 91–4.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

155

overseas markets and resources in both local and foreign markets.85 The ‘go global’ strategy drove China to attach greater importance to outbound investment by unswervingly promoting outbound investment of Chinese enterprises. With the clear push of government policies,86 the amount of Chinese outbound investment has gradually increased. Until 2014, China’s FDI output exceeded input for the first time, marking China’s transition from a traditional capitalimporting country to a hybrid country with equal capital outflow and inflow. At the same time, China started new domestic reforms aimed at enhancing its economic reform and open-door policy. As early as 2013, President Xi Jinping proposed the BRI for the first time during an overseas visit. After that, the Chinese government further promulgated relevant documents and clarified the development direction of the BRI. As far as investment is concerned, first, China targets to eliminate barriers in investment and trade by promoting measures of investment facilitation and free trade. Second, China plans to expand the scope of foreign investment and the breadth and depth of cooperation in the field of investment along the Belt and Road. Third, China has initiated establishment of the Asian Infrastructure Investment Bank (AIIB)87 to focus on investment cooperation in various areas such as infrastructure and construction projects along the Belt and Road.88 China’s investment in countries along the Belt and Road has been on the rise since 2013, especially during the period from 2013 to 2015. Although the investment in 2016–17 declined, it rebounded again in 2018 and has basically recovered to the level of 2016. In 2017, China’s outbound investment projects in Belt and Road countries accounted for 12.7 per cent of China’s total outbound investment.89 From the characteristics of investment activities under the BRI over the past five years, unlike the traditional rule-oriented investment framework based on IIAs, the cross-border investment activities under the BRI are mainly project-based. Chinese companies are the key business elites in China’s transnational networks, not only presenting China’s global posture but also channelling the Chinese government’s outbound investment policies to the globalized market. Chinese companies play multiple roles such as enhancing the bonding between China and the Western capitalism, piggybacking offshore jurisdictions to experiment with transnational rules, adapting to the liberal modes of networking, and integrating Chinese supply and technology chains with those of the rest of the world. 85

86

87

88

89

Jiang Zemin, ‘Highly Holding the Great Banner of Deng Xiaoping Theory and Pushing the Construction of Socialism with Chinese Characteristics into the 21st Century’ in Selected Works of Jiang Zemin (Vol. 2) (Beijing: Foreign Language Press, 2006), 27. Since the 15th National Congress of the Communist Party of China in 1997, ‘going out’ has always been the basic line that the Chinese party and government have adhered to in the field of opening up to the outside world. Until the party’s 19th National Congress in 2017, General Secretary Xi Jinping still emphasized the need for ‘One Belt and One Road’. ‘Building as the focus, adhere to the introduction and go out and pay equal attention, follow the principle of joint construction and sharing, strengthen the openness and cooperation of innovation capabilities, and form an open pattern of linkage between the land and the sea, and between the east and the west.’ See Xi Jinping, ‘Decisive Victory to Build a Well-Off Society in an All-Round Way to Win a Great Victory in Socialism with Chinese Characteristics in the New Era – Report at the 19th National Congress of the Communist Party of China’, People’s Daily (28 October 2017), 1st ed. On 24 October 2014, the finance ministers and authorized representatives of the first batch of twenty-one intentinitiating member countries, including China, India and Singapore, signed a contract in Beijing to jointly decide to establish an investment bank. On 25 December 2015, the AIIB was formally established. From 16 to 18 January 2016, the opening ceremony of the AIIB and the inaugural meeting of the Board of Directors were held in Beijing. See National Development and Reform Commission, Ministry of Foreign Affairs, Ministry of Commerce, ‘Vision and Action to Promote the Construction of the Silk Road Economic Belt and the 21st Century Maritime Silk Road’, People’s Daily (29 March 2015), 4th ed. Hui Yao Wang and Lu Miao, ‘China’s Outbound Investment: Trends and Challenges in the Globalization of Chinese Enterprises’ in Julien Chaisse (ed.), China’s International Investment Strategy: Bilateral, Regional, and Global Law and Policy (Oxford: Oxford University Press, 2019), 47.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

156

Carrie Shu Shang and Wei Shen

Chinese SOEs occupy a dominant position in China’s outbound investment projects, and the investment areas are mainly concentrated in high-speed rail, energy, water conservancy and other industries.90 Apart from their business functions, SOEs also show their distinctive linkage with the Party-state and state-directed capitalism.91 Although it is not possible to simplify or synergize the BRI completely, it can be seen that China’s foreign investment in large-scale infrastructure projects has absorbed China’s surplus production capacity to a certain extent, which is conducive to the development of its own economy.92 At the same time, it has also driven the rapid development of infrastructure and construction projects along the Belt and Road. Apparently, the BRI presents great opportunities to enhance a win–win investment cooperation between China and its counterparties.93 Therefore, foreign investment under the BRI is basically driven by the Chinese government and those countries along the Belt and Road, with heavy reliance on the economic activities and participation of Chinese SOEs. This type of cross-border investment cooperation, although not inseparable from legal texts such as BITs, is more based on economic complementarity and political mutual trust. China now has larger outbound FDI than inbound FDI, thanks to China’s regulatory framework for outbound FDI, notably government policies, laws and regulations as well as incentive schemes. Consequently, China’s outbound investment even surpassed that of several major developed economies in the past decade.94 A holistic review of this outbound FDIfriendly framework unveils its two interconnected objectives: to help Chinese firms, in particular SOEs, to be more competitive in the global market and to implement China’s development strategy through some consorted regulatory and policy efforts. However, China’s legal framework is not flawless. While it benefits SOEs the most, it also creates a discriminatory environment and damages other market players.95 In recent years, China has begun to actively explore ways of reforming its economic governance regime, in particular through the free trade zones (FTZs). This is a typical experimentalist approach towards reform and governance. Before conducting profound reforms of the trade and investment legal framework, China started with reforms on a small scale, in specified geographic zones as testing grounds. The FTZs were used as pilot projects to achieve multiple objectives including testing how to upgrade China’s trade and investment laws, boosting China’s economy in the new normal, and preparing China for international lawmaking and high-standard BIT/ FTA negotiations.96 In this sense, the experimental experiences accumulated in the FTZs provide a better approach or even solution to the challenges faced by China in transforming and upgrading its economic governance model. This domestic–international law interaction or reconciliation is a unique perspective on the transnational law process in China’s context. 90

91

92

93 94 95

96

According to relevant officials of the Chinese government, as of the first half of 2018, more than 80 SOEs in China have undertaken 3,116 investment projects and projects in the countries along the ‘Belt and Road’, involving highspeed rail, water conservancy and energy, which have effectively promoted the local economic growth. See Wang Wei, ‘In the Second Half of the Year, SOEs “Anti-risk” Five-Way Progress’, Economic Information Daily (19 July 2018), 4th ed. Nana de Graaff, ‘China Inc. Goes Global: Transnational and National Networks of China’s Globalizing Business Elite’ (2020) 27(2) Review of International Political Economy, 208–33. Tristan Kohl, ‘The Belt and Road Initiative’s Effect on Supply-Chain Trade: Evidence from Structural Gravity Equations’ (2019) 12 Cambridge Journal of Regions, Economy and Society, 77, 90. Dragana Mitrovic, ‘The Belt and Road: China’s Ambitious Initiative’ (2016) 59 China International Studies, 76, 81–2. Hui Yao Wang and Lu Miao, supra note 89, at 43. Karl P. Sauvant and Victor Zitian Chen, ‘China’s Regulatory Framework for Outbound Foreign Direct Investment’ (2014) 7(1) China Economic Journal, 141–63. Jie Huang, ‘Challenges and Solutions for the China–US BIT Negotiations: Insights from the Recent Development of FTZs in China’ (2015) 18 Journal of International Economic Law, 307–39.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

157

The major achievement of the experimental FTZs is the adoption of the negative list, which indeed has effectively promoted the liberalization of China’s regulatory model for foreign investment. The negative list system is ‘more demanding in terms of resources’ and requires ‘a sophisticated domestic regulatory regime and sufficient institutional capacity for properly designing and negotiating the scheduling of liberalization commitments’.97 The number of special management items in the FTZ negative list, from 2013 to 2020, reduced from 190 to 30.98 The sharp shrinking of the negative list shows the Chinese government’s attempt to open wider to foreign investors and promote investment liberalization. This demonstrates a clear trend of China’s ‘leaving’ its sovereignty and police power. The key reason for China vigorously promoting the reform of its foreign investment regulatory supervision system with the negative list as the core lies in the pressure exerted by developed countries such as the United States and the European Union (EU) in relevant BITs negotiations. The Chinese authorities have published a keenly awaited negative list of sectors, similar in concept to the United States’ mooted Trans-Pacific Partnership Agreement, establishing which business lines will be closed to foreign companies in the zone, while all others will be open.99 The move is expected to give foreign investors much more freedom. A short list merely banning a small number of sectors, including guns, drugs and pornography, to foreign investors is theoretically investor-friendly. On the other hand, while the Shanghai FTZ legislation incited China’s foreign investment legislation, it also had a huge impact on China’s negotiation and signing of investment treaties. On the issue of market access, for a long time under the investment approval mode led by administrative examination and approval authorities, Chinese BITs provided only for postestablishment treatment. With this differentiated treatment of domestic and foreign investment, China never ‘left’ its sovereignty behind. However, as the investment liberalization promoted by developed countries has become the mainstream norm in international investment law, the gap between China and developed economies in investment policies has become quite prominent. Especially on the issue of market access, owing to the Chinese domestic laws, it has also become a major issue in the negotiation of BITs between China and the United States100 and the EU.101 With the establishment of the Shanghai FTZ, the NPC authorized the suspension of foreigninvested enterprise laws and gradually promoted the pre-entry national treatment plus negative list model, which is a new development in Chinese law, thereby impacting China’s BIT regime as well. Since 2013, China has changed its consistent attitudes towards foreign investment in its BITs negotiations with the United States and the EU, and has clearly expressed its willingness to engage in substantive negotiations with the United States on the basis of pre-entry national treatment and the negative list.102 97

98

99

100

101

102

United Nations Conference on Trade and Development (UNCTAD), Investment Policy Framework for Sustainable Development 2012, 61; UNCTAD, Investment Policy Framework for Sustainable Development 2015, 113. See National Development and Reform Commission & Ministry of Commerce, Special Administrative Measures (Negative List) for the Access of Foreign Investment in Pilot Free Trade Zones (2021), www.tjftz.gov.cn/tisip/upload/ files/2022/4/20152548566.pdf. Heng Wang, ‘The Differences Between China’s Recent FTA and the TPP: A Case Study of the China–Korea FTA’ in Julien Chaisse, Henry Gao and Chang-fa Lo (eds.), Paradigm Shift in International Economic Law Rule-Making (Singapore: Springer, 2017), 299. Karl P. Sauvant and Huiping Chen, ‘A China–US Bilateral Investment Treaty: A Template for a Multilateral Framework for Investment?’ (2013) 5(1) Transnational Corporations Review, 1, 2. See Wei Yin, ‘Challenges, Issues in China–EU Investment Agreement and the Implication on China’s Domestic Reform’ (2018) 26 Asia Pacific Law Review, 176–9. See Jie Huang, supra note 96, at 316.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

158

Carrie Shu Shang and Wei Shen

In the negotiations of the China–Europe BIT, the EU further requires the state party not to impose restrictions on technology transfer, investment ratio and investment volume on the basis of pre-entry national treatment, in an effort to promote China’s lifting of its foreign investment protection standards.103 Following the development of FTZs in recent years and the passing of the new foreign investment law, to be discussed in the next subsection, China is indeed showing a more open treaty negotiation posture, a shift towards promoting investment liberalization. It appears that the reform carried out in the FTZs in China has been a stepping stone for China’s further opening up to foreign investment as its commitment to bear a higher level of obligations towards foreign investors.104 Likely, these reformist measures taken in China’s FTZs can be the connecting points between China’s domestic law and its BIT regime. Just as China further transforms its investment legislation and policies, the developed economies represented by the United States are questioning China’s current trade, investment and economic policy. In the 301 Report published by the Office of the US Trade Representative in 2018, there are many criticisms of China’s investment policies. The main problems are the following. First, in view of foreign investment access, the United States believes that China has long imposed legislation and administrative means to require technology transfer by foreign investors in areas such as automobile manufacturing and aviation manufacturing, which has seriously damaged US investors and their rights. This reflects China’s problems in the protection of intellectual property rights, national treatment and most favoured nation (MFN) status.105 Second, in response to China’s foreign investment, the United States believes that the Chinese government has highly controlled the foreign investment activities of Chinese enterprises through foreign investment approval and foreign exchange control measures, and does not meet the requirements of the market economy in terms of policies. At the same time, most of China’s foreign investment enterprises are SOEs, and the areas they invest in involve military industry, equipment manufacturing and high-tech industries. Therefore, in the eyes of the United States, China’s current foreign investment is an unfair economic act against the key US interests supported by the government, threatening the national security and industrial competitiveness of the United States.106 Judging from the statistics of relevant international organizations, there is also a big gap between China and the United States in the field of foreign investment supervision. According to the Foreign Investment Restriction Index released by the Organisation for Economic Cooperation and Development (OECD), among the sixty-eight countries in which it counts, the 2017 China Foreign Investment Restriction Index reached 0.316, ranking fourth, behind only the Philippines, Saudi Arabia and Indonesia. The US index is 0.089, which is at the midstream level.107 From the perspective of specific industries, China currently has clear restrictions on the proportion of foreign equity in automobile manufacturing, telecommunications services, medical care, education and finance, and the restrictions include prohibiting foreign investment in Internet culture businesses and news information services, news broadcasting and other 103

104

105

106 107

Jun Xiao, ‘How Can a Prospective China–EU BIT Contribute to Sustainable Investment: In Light of the UNCTAD Investment Policy Framework for Sustainable Development’ (2015) 8 Journal of World Energy Law and Business, 525–8. See Lin Xiao, National Test: System Design of China (Shanghai) Pilot Free Trade Zone (Singapore: Springer, 2016), 421–2. See Office of the United States Trade Representative Executive Office of the President, Findings of the Investigation into China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation under Section 301 of the Trade Act of 1974 (22 March 2018), at 29–35, ustr.gov/sites/default/files/Section%20301%20FINAL .PDF. Ibid. See OECD, ‘OECD FDI Regulatory Restrictiveness Index’, OECD.Stat (n.d.), https://bit.ly/44nQRGG.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

7 China’s Treaty Practices

159

industries, and securities companies. The ratio of foreign shares of securities investment fund management companies shall not exceed 51 per cent. In addition, China currently has many hidden barriers to market access, including industry regulation and business licences in areas such as banking insurance services, securities fund business, telecommunications network– related services and express delivery services. In contrast, the current US foreign investment regulation does not have special restrictions on these industries. The US restrictions are imposed on the case-based review of related transactions based on national security exceptions under the Committee on Foreign Investment in the United States (CFIUS) regime. From the perspective of China’s foreign investment legislation for the forty years since the reform and opening up, it has experienced a system build-up from scratch, highlighting the basic position of constantly restricting the government’s regulatory power and safeguarding the interests of foreign investors,108 and showing the country’s ‘leaving’ gesture. However, this ‘leaving’ is not sufficient in terms of speed, scope and strength, especially in terms of national treatment, MFN status and intellectual property protection,109 and the standards expected by developed economies such as the United States and the EU. From the policy direction of 2018, China has begun to pay attention to reforms in the above-mentioned areas, and it continues to highlight the trend of continuously pushing the country’s ‘leaving’ (the sovereignty) posture at both legislative and administrative levels. 7.6 CONCLUSION

In a counter-hegemonic manner, China’s engagement with international treaty-making could reinforce China’s foreign-related rule of law (or foreign relations law in the US terminology) by strengthening economic interdependence with its allies, escalating China’s role in global health and environmental governance, and promoting China as a transnational legal hub. As John Jackson rightly observed, in a much more interdependent world economy, the nations are more likely to contend international norms through involving difficult compromises and trade-offs between the desire for greater economic efficiency and legitimate social goals.110 In the past four decades, China has been in a process of engaging with the rest of the world and making more compromises to other trading partners in exchange for business opportunities, investment, capital and technology. In these areas, the line between international law and domestic law has been blurred in unprecedented manners thanks to globalization. Accordingly, China has to show its willingness to make compromises for trade-offs; that is, legalizing its politics by way of transitioning itself to a market economy, which is a natural strategy being taken by the Chinese government. Nevertheless, in other areas, in particular those highly political areas involving border disputes and sovereignty, an opposite approach to politicizing its self-claimed rights may make more sense. In these areas, China is more like a newcomer on the learning curve towards adapting itself to international law and global governance. A reasonable expectation is that China would take a much more adaptive approach even in these fields while the sphere of application of the international legal order is reaching ever deeper into the domestic legal order. Up to the point when domestic ramifications (i.e., the way the state treats its own citizens and 108

109

110

Chunlai Chen, ‘The Liberalisation of FDI Policies and the Impacts of FDI on China’s Economic Development’ in Ross Garnaut, Ligang Song and Cai Fang (eds.), China’s 40 Years of Reform and Development (Canberra, ACT: Australian National University Press, 2018), 612. See Guiguo Wang, ‘China’s Practice in International Investment Law: From Participation to Leadership in the World Economy’ (2009) 34 Yale Journal of International Law, 575, 577. John Jackson, ‘Status of Treaties in Domestic Legal Systems: A Policy Analysis’ (1992) 86 American Journal of International Law, 338.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

160

Carrie Shu Shang and Wei Shen

implicates human rights commitments) have been significantly changed,111 a new paradigm for interaction between international law and China’s domestic law may emerge. A deconstructive postmodern international law view justifies a politics-centred frame through which to contextualize the interaction of different legal orders, domestic and international,112 and China’s political/legal approach is a realistic dynamic taking into account China’s own political structure and legal philosophy. Owing to the progress of globalization, more issues that were thought to belong to the domestic legal order are now becoming the focus for international regulation or global governance.113 Investment promotion and environment protection are no longer exclusive to the domestic law domain but have international implications. To China, its deeper engagement with the world just started four decades ago. Its political and legal discourse was quite different from that of international law. Its approach to the politicization of certain international law issues, which may be originally characterized as (largely) being concerned with domestic law issues, is a natural extension of its local politics. The clash between China’s lawfare approach and the politicization project is not a dispute awaiting international regulatory harmonization or comparison of cultural differences. Rather, it is an interface mechanism through which China’s legal culture is related to the world system.114 The concern is the limitation of this politicization project’s commitment to the international rule of law. A state must find a way to coexist with international law, and determine how to distribute resources for rule-making, rule-following, rule-bending or even rule-violating. In the age of the emergence of a global community as a matter of socio-economic reality, global public order has emerged to be the central theme of the globalized community and due respect to international law is deemed to be a nation’s common public policy.115 Relying on a lawfare approach, China can demonstrate its commitment at home to the principles, values and societal needs it has to conform to abroad, thereby increasing its welfare-enhancing role. Therefore, China can be part of the government network for global governance,116 which matches China’s claim to be the responsible state for globalization and global development and peace. Apart from the public goods they may offer to the world, international law commitments also lift the level of sophistication of China’s domestic legal system. Regulatory coordination and international legislation are two effective options for achieving uniformity and China can play a larger role in this process, which will be beneficial to itself and the world.

111

112 113

114

115 116

Adam I. Muchmore, ‘International Activity and Domestic Law’ (2012) 1(2) Penn State Journal of Law and International Affairs, 362, 364. Capella Giannattasio, supra note 3, at 19. Hisashi Owada, ‘Problems of Interaction between the International and Domestic Legal Orders’ (2015) 5 Asian Journal of International Law, 247. David Kennedy, ‘The International Style in Postwar Law and Policy: John Jackson and the Field of International Economic Law’ (1995) 10 American University of International Relations, 675. Hisashi Owada, supra note 113, at 246–7. Anne-Marie Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004), 261.

https://doi.org/10.1017/9781009041133.009 Published online by Cambridge University Press

8 The Solid State of State Immunity in the People’s Republic of China Timothy Webster

8.1 INTRODUCTION

The doctrine of state immunity occupies a contentious space in China’s contemporary approach to international law. The People’s Republic of China (PRC) insists on the doctrine of absolute immunity: Chinese courts cannot exercise jurisdiction over a foreign state without its permission, nor can foreign courts exercise jurisdiction over the PRC without its consent. This position contrasts with the doctrine of restrictive immunity, which holds that domestic courts may hear a limited number of cases against foreign governments that engage in commercial activity or seize foreign-owned property.1 In maintaining the absolute position, China clings to the traditional view. However, recent overtures suggest that China may begin a shift, made by many other countries, towards the restrictive theory.2 Ultimately, this chapter is agnostic as to whether China should adopt the restrictive theory. Instead, it describes China’s experience with immunity theories, situates the PRC’s position in historical and transnational contexts, and runs several scenarios of where and how China might relax its posture on state immunity. It does not, however, predict whether China will relax its view on state immunity in the near future. China’s adherence to the absolute theory strikes many Western observers as outmoded or obsolete. But many developing countries, post-communist states and authoritarian regimes practise absolute immunity.3 Eminent Western authorities routinely opine that ‘almost all states’ or the ‘majority of states’ subscribe to the restrictive theory.4 A comprehensive survey of global immunity practice exceeds the scope of this chapter. Yet it is important to note that many states – including many similar to China in terms of economic development, political ideology and geography – maintain the absolute theory, or have only recently adopted the restrictive approach. 1

2 3

4

This, of course, recalls the classic distinction between acts jure imperii (acts of public authority) and acts jure gestionis (acts of a commercial nature). For more on this distinction, see Sections 8.1.2 and 8.1.3. See Section 8.2.3. 楊松 [Yang Song], 從仰融案看跨國訴訟中的國家豁免問題 [The State Immunity Issue in Transnational Litigation as Seen from the Yang Rong Case], 政治與法律 [Politics & Law], Jan. 2007, 45, 47 (noting that socialist states and a few developing countries espouse the absolute theory, while Western developed states espouse the restrictive theory). A. Cassese, International Law, 2nd ed. (Oxford: Oxford University Press, 2005), 100; H. Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 British Yearbook of International Law, 220, 226. Despite these rather grandiose claims, both Cassese and Lauterpacht cite practice from a small handful of countries that subscribe to the restrictive theory. Lauterpacht surveyed state practice, yet his selection focussed overwhelmingly on Europe, with one North American state (America), two ‘Latin-American countries’ (Argentina and Brazil), one African state (Egypt) and no Asian states. Ibid. at 250–72. One suspects that subsequent scholarship often repeated his claim, without independent verification of its accuracy.

161 https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

162

Timothy Webster

China is, of course, a dynamic country, with recent initiatives interpreted by some observers as signs that China will revise its stance. In 2005, China signed the UN Convention on Jurisdictional Immunities, which provides for the restrictive approach in limited instances.5 While China has yet to ratify the treaty – which has still not entered into force at the time of this writing (2023) – its signature indicates interest in, though not necessarily acceptance of, the restrictive principle. Also in 2005, China enacted its first law on state immunity,6 dealing with assets owned by central foreign banks in Chinese territory.7 The law does not necessarily spell the end of absolute immunity, but, by carving out two exceptions,8 the statute relaxes China’s commitment to the absolute doctrine.9 More recently, in response to lawsuits filed in the United States against China regarding the Covid-19 pandemic, members of the National People’s Congress (NPC) of China proposed a motion to enact a ‘Foreign Sovereign Immunity Law’.10 In December 2022, a formal draft of the law was circulated and public commentary sought by the NPC.11 The draft law would jettison the absolute immunity principle and instead enshrine the restrictive principle into Chinese statutory law, allowing Chinese courts to preside over a limited number of disputes against foreign sovereigns. These developments likely signal China’s desire to move towards the restrictive position at some indeterminate point in the future. If adopted, this law would mark a major shift in China’s immunity stance as manifest in official statements, current practice and scholarly analyses over the past several degrees. The degree to which this law actually changes practice, of course, remains an open question. China has consistently objected when foreign courts implead the PRC as a civil defendant. And Chinese courts have yet to preside over civil litigation against foreign states. Nevertheless, one can surmise that, in the long run, China may be inching towards accepting the restrictive immunity principle. This chapter proceeds in three parts. The rest of Section 8.1 reviews the development of state immunity from historical and global perspectives. Importantly, it reviews the history in the West, where the restrictive theory of state immunity has gained ascendancy, and in the developing world, where the absolute theory still retains substantial currency. This helps situate China’s approach, discussed in Section 8.2. This section examines China’s approach to state immunity, including both historical and contemporary perspectives, as well as those of Hong Kong and Taiwan. It discusses recent overtures that some scholars view as reflective of the restrictive theory, 5

6

7

8

9

10

11

UN Convention, The convention enshrines state immunity, but also envisages many exceptions, such as when a state engages in a ‘commercial transaction’ (Art. 10), concludes a ‘contract of employment’ with a foreigner (Art. 11) or is involved in a proceeding for ‘death or injury’ of a person (Art. 12). See Lijiang Zhu, ‘State Immunity from Measures of Constraints for the Property of Foreign Central Banks: The Chinese Perspective’ (2007) 6 Chinese Journal of International Law, 67, 81. I prefer to translate ‘qiangzhi cuoshi’ as ‘compulsory measures’ instead of ‘measures of constraint’. 中华人民共和国外国中央银行财产司法强制措施豁免法 2005 [Law on the Judicial Immunity from Compulsory Measures Regarding Property of Foreign Central Banks]. Judicial Immunity Law, Art. 1 (providing for the waiver of immunity when the foreign state gives up ‘immunity in writing’ or when the ‘property is designated to be used for property preservation and execution’). See W. Shan and P. Wang, ‘Divergent Views on State Immunity in the International Community’ in T. Ruys, N. Angelet and L. Ferro (eds.), Cambridge Handbook of Immunities and International Law (New York: Cambridge University Press, 2019), 65. 胡璐, 邰思聪, ‘马一德代表 : 尽快制定符合我国国情的外国国家豁免法’ [Hu Lu and Tai Sicong, ‘Representative Ma Yide: Quickly Enact a Foreign Sovereign Immunity Law Suited to China’s National Conditions’, Xinhua News (26 May 2020)]. See 中华人民共和国外国国家豁免法 (草案) [Foreign Sovereign Immunity Law of the People’s Republic of China (Draft)]. An unofficial translation of the law is available at www.chinalawtranslate.com/en/PRC-Foreign-StateImmunity-Law-(Draft)/. The draft law envisions various exceptions to the rule of foreign sovereign immunity, such as when the foreign state engages in commercial activity, injures or kills a person on PRC territory, or infringes intellectual property rights protected by Chinese law.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

163

but ultimately suggests that China will continue to abide by the traditional principle of absolute immunity. Section 8.3 imagines the future, offering two scenarios where China may waver on its attachment to the absolute principle. Section 8.4 concludes. 8.1.1 Historical Perspectives State immunity traces back to early modern Europe. Initially, the immunity attached to the sovereign (prince, king) as the embodiment of the state, as well as his representatives (ambassadors) and certain properties (warships).12 As expressed in the Latin phrase par in parem non habet imperium (equals do not have authority over one another), sovereign nations enjoy equality in the field of international relations. In theory, State A could not subordinate State B by subjecting State B’s sovereign to the jurisdiction of State A’s courts. Over time, that immunity would expand, first to protect foreign diplomats from criminal proceedings in the host state.13 Later, the immunity extended to the civil sphere, manifest in England’s Diplomatic Privileges Act of 1708, which not only nullified civil suits against ambassadors and their servants but also made the institution of such actions a crime.14 8.1.2 Developments in the West While legislatures episodically formalized immunity law in statutory form, especially in the late twentieth century, courts drove doctrinal developments in the nineteenth and twentieth centuries.15 The US Supreme Court decision of Schooner Exchange v. McFadden deserves special attention as it is often regarded as the first judicial elaboration of the absolute theory.16 Chief Justice John Marshall recited the ‘perfect equality and independence of sovereigns’ as grounds to dismiss a case where American authorities seized a French warship moored in American waters.17 The result was to immunize France from civil litigation in the United States. But the opinion adopts a more nuanced position than some commentators acknowledge. Justice Marshall did not envision blanket immunity for all foreign sovereigns. Instead, he posited a number of conditions that may, upon fulfilment, lead a country to grant immunity to a foreign sovereign. First, Marshall narrowly construed the geographical limits of immunity: personal property of one sovereign must enter the ‘full and absolute territorial jurisdiction’ of another.18 He was referencing not abstract principles but rather an instance of a French warship entering US waters. Second, immunity was not premised on customary international law but required the explicit consent of the nation itself.19 Marshall specifically disclaimed the situation where the state had not granted consent as beyond ‘the cause under consideration’.20 Third, he observed a ‘manifest distinction between the private property of . . . a prince, and that military force which supports the sovereign power and maintains the dignity and the independence of 12 13 14 15

16

17 18 19 20

H. Fox and P. Webb, The Law of State Immunity, 3rd ed. (Oxford: Oxford University Press, 2013), 131. Ibid., at 132. Ibid. Y. Iwasawa, ‘Japan’s Interactions with International Law: The Case of State Immunity’ in N. Ando (ed.), Japan and International Law: Past, Present and Future (The Hague: Kluwer Law International, 2005), 123, 124. The Schooner Exchange v. McFadden (1812) 11 U.S. 116. English courts cited the decision with favour in Parlement Belge. See Gamal Moursi Badr, State Immunity: An Analytical and Prognostic View (Leiden: Marinus Nijhoff, 1984), 10. Ibid. 11 U.S. at 137. Ibid., at 136. Ibid., at 138.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

164

Timothy Webster

a nation’.21 It is not merely the incident of foreign ownership that immunizes. It is rather the service that warships provide to the sovereign: the ability to wage war and to maintain independence from foreign powers. The Schooner Exchange did not contemplate sweeping immunity for foreign sovereigns but a narrow exemption from civil litigation when a foreign warship entered US territorial waters. Schooner may be better understood as ‘the harbinger of the restrictive theory of immunity rather than, as commonly maintained, the starting point of the absolute theory’.22 Nevertheless, the case came to signify absolute immunity, and ruled America’s jurisdictional seas for the next century. The influence of Schooner Exchange extended beyond American shores.23 English courts presided over several state immunity cases in the nineteenth century.24 In 1880, the Parlement Belge decision laid down the law of absolute immunity in England.25 In that case, the King of Belgium owned a packet boat, tasked with delivering mail between England and Belgium, that collided with a tug boat moored in Dover. The admiralty court denied the ship’s immunity. But, on appeal, the English court liberally referenced the Schooner Exchange, making the somewhat extraordinary claim that the ‘whole civilized world’ agreed with Justice Marshall that a ‘foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation’.26 The English appellate court extended the immunity once accorded to warships to all public property owned by the state.27 Parlement Belge influenced English jurisprudence and that of other commonwealth jurisdictions for the next century. As common law jurisdictions articulated the rule of absolute immunity, civil law jurisdictions were already planting the seeds of the restrictive theory. In 1840, the Belgian Attorney General (procureur ge´ne´ral) argued that a state’s commercial acts (jure gestionis) should not be immunized, only its public acts (jure imperii).28 In other words, it is not simply the nature of the actor (state or private) that matters; it is also the underlying activity: entering into contracts, buying or selling property, shipping, waging war, maintaining law and order and so on.29 This distinction is critical to the subsequent development of restrictive theories of immunity. In 1903, Belgium’s Supreme Court (Cour de Cassation) became the first high court to accept restrictive immunity. The Belgian justices determined that the Dutch state entered into a contract with a private Belgian company to enlarge a train station in Eindhoven. In conducting commercial activity, the Dutch government ‘was not exercising public power, but was doing what any individual could do. It thus acted in a civil or private capacity.’30 Building train stations is a quintessentially public activity, particularly in countries with strong public transport systems. Yet the Court focussed on the fact that the Dutch state behaved as a ‘merchant’ (un commerc¸ant) when contracting for services from a Belgian company. The Dutch government could not avoid contractual obligations by asserting its sovereign status. 21 22 23

24 25 26 27 28

29

30

Ibid., at 145 (emphasis added). Badr, supra note 16, at 13. Fox and Webb, supra note 12, at 134 (noting that other common law jurisdictions, including England, adopted the reasoning of the Schooner Exchange to create a rule of immunity). Badr, 14–16 (analysing several English decisions from the nineteenth century). 5 P.D. 197 (1880). 5 P.D. 206 (quoting Justice Marshall). Fox and Web, supra note 12, at 136. Socie´te´ Ge´ne´rale pour Favoriser l’Industrie Nationale v. Syndicat d’Amortissement, le Gouvernement des Pays-Bas, et le Gouvernement Belge, Cour D’Appel, 30 December 1840. Paul Rietjens, ‘Les de´fis de l’immunite´ des Etats devant les tribunaux belges’ (2017) State Immunity under International Law and Current Challenges, Council of Europe, 35, 36. Socie´te´ Anonyme des Chemins de Fer Lie´geois-Luxembourgeois v. l’E´tat Ne´erlandais, Cour de Cassation, 11 June 1903 (cited in Rietjens, translated by author).

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

165

In addition to Belgium, Italy was the other early convert to the restrictive theory. In 1882, the Torino Court of Cassation reasoned that since a state must provide for ‘the material interests of the individual citizens, it must acquire and own property, it must contract, it must sue and be sued, and, in a word, it must exercise civil rights in like manner as any other juristic person, or private individual’.31 It is the state’s dualism – as both a sovereign conducting public acts and a juristic person entering contracts and possessing property – that grounded the restrictive theory in Italy. In 1921, the Italian High Court rejected a defence from the Emperor of Austria on the grounds that the ‘present proceedings do not relate to acts done by the Emperor of Austria as head of his own State. The engagements in question have their origin in contracts and acts of a private nature which arose in Italy.’32 The Court also noted that since the Italian state itself ‘is subject to ordinary obligations for its obligations of a proprietary nature’, a foreign sovereign could not invoke the prerogative of state immunity.33 Already we can detect three elements of a state’s shift from absolute to restrictive immunity. First, courts are key. That will not surprise common lawyers, where judges enjoy broad lawmaking powers. Yet civil law judges, who purportedly operate ‘a machine designed and built by legislators’,34 rarely opine on jurisdictional matters. In response to concrete disputes between private actors and foreign sovereigns, judges in Belgium and Italy sought to strike a balance: is it fair, in this particular case, to relieve the foreign sovereign of its duties? Such cases invariably involve fine distinctions about international affairs, commercial diplomacy, judicial power and comity. Yet courts repeatedly waded into the debate, frequently finding in favour of their compatriots, at the risk of displeasing a foreign sovereign. This expanded the powers of courts in two ways. Internationally, courts engaged in foreign affairs where the political branches are said to reign supreme. Domestically, courts also ‘made’ law, deciding cases in the absence of clear legislation or direction from the legislature. Strong judiciaries helped usher in the restrictive principle as it expands their powers to oversee affairs and check the other branches of government. In a political system that tightly constrains court activity, such as the contemporary PRC, this would probably amount to judicial overreach. Second, as the Italian example shows, the relaxation of the absolute theory correlated with the ability of citizens to sue their own governments. If a sovereign permits its own citizenry to file lawsuits against itself, why treat a foreign sovereign any differently? In the early twentieth century, states opened their courtrooms to cases against themselves, and also foreign state actors. At the time, most states abided by the general rule of absolute. Over the course of the twentieth century, many Western courts recognized exceptions to this rule.35 Third, as international trade expanded in the late nineteenth and early twentieth centuries, states increasingly engaged in commercial activity.36 And, like other merchants, governments 31 32

33 34

35

36

Xiaodong Yang, State Immunity in International Law (Cambridge: Cambridge University Press, 2016), 60. Annual Digest of Public International Law Cases (1919–22), Nobili v. Emperor Charles I of Austria, Italian Court of Cassation, 11 March 1921, p. 136. Ibid. John Merryman argues, perhaps with some oversimplification, that the ‘judicial function is a mechanical one’ in civil law jurisdictions. Unlike the common law judge, who may achieve the status of cultural hero or parent figure, the civil law judge is, at base, ‘a civil servant who performs important but essentially uncreative functions’. John Merryman and Rogelio Pe´rez-Perdomo, The Civil Law Tradition: An Introduction the Legal Systems of Europe and Latin America (Stanford, CA: Stanford University Press, 2007), 33–4. See, e.g., Ex Parte Young, 209 U.S. 123 (1908) (allowing for lawsuits in US federal courts against state officials when they contravene federal statutes or the US Constitution); Ville de Bruges v. Socie´te´ La Flandria, Pasicrisie 1921, I, 14; cited in Howard H. Bachrach, ‘Sovereign Immunity in Belgium’ (1976) 10 International Lawyer, 459. Antoni Estevadeordal, Brian Frantz and Alan M. Taylor, ‘The Rise and Fall of World Trade, 1870–1939’ (2003) 118 Quarterly Journal of Economics, 359 (describing the period from 1870 to 1913 as the ‘first era of trade globalization’ and the period 1914 to 1939 as ‘its death’).

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

166

Timothy Webster

breached contracts, defaulted on bonds, missed payments and committed torts. If the foundations of sovereign immunity buckled – that is, a citizen could sue their own government – why couldn’t a citizen sue another state? Immunity might invite the foreign sovereign to abuse its position, for if it could void contracts or default on debts without consequence, why would it ever fulfil such obligations? In the end, the differentiation of commercial acts from public acts provided the theoretical basis for restricting the application of immunity. These developments heralded a shift from the absolute to the restrictive doctrine. It was not a clean break; the process was incremental, fragmentary and non-linear. Lauterpacht’s 1951 survey of twenty, primarily Western, jurisdictions lists just three as fully committed to the restrictive theory: Belgium, Italy and the mixed courts of Egypt (which were folded into Egypt’s national court system in 1949).37 Beyond these three, Lauterpacht characterized evidence of restrictive practice as scant in the cases of Russia and ‘Latin American countries’; limited in historical scope for ‘Holland’ and Germany; or speculative, owing to a lack of relevant case law (‘Scandinavian countries’).38 Even the United States, among the more active proponents of the restrictive theory, was split by an executive branch that ‘abandoned’ absolute immunity, and a judiciary that ‘continued to apply it’.39 Many Western states swung towards restrictive immunity in the latter half of the twentieth century.40 In the 1960s, high courts in Austria, France and Germany adopted the restrictive position.41 The Council of Europe promulgated the 1972 European Convention on State Immunity, which aimed to standardize judicial practice on the continent for state immunity.42 Yet only nine, of forty-seven, council members ratified the Convention, with momentum dissipating by the 1980s. In the major common law jurisdictions, states such as the United States (1976), the United Kingdom (1978), Canada (1982) and Australia (1985), enshrined the restrictive theory into statutory law. The 2004 UN Convention on Jurisdictional Immunities is the most recent international initiative to enshrine restrictive immunity. It codified a number of instances where states do not enjoy immunity: commercial transactions, employment contracts, personal injuries, property ownership, intellectual property and industrial property disputes, and so on.43 But, like its European predecessor, the UN Convention has attracted few ratifications. Nearly two decades after opening for signature, the Convention has attracted only twenty-two of the thirty ratifications needed to enter into force.44 More than half of the ratifying states are European, reinforcing 37

38 39 40

41

42 43

44

Belgium and Italy. The other major exponent of restrictive theory, according to Lauterpacht, was Egypt. But the mixed court system of Egypt ended in 1949. Lauterpacht, supra note 4, at 267. Ibid., 268. In 1952, the State Department issued the Tate Letter, named after acting legal adviser Jack Tate, which purported to abandon absolute immunity in favour of the restrictive principle. Henceforth, the State Department would advise US courts to immunize foreign states that acted in a purely governmental function (jure imperii), but not to immunize states that acted in a commercial or proprietary nature (jure gestionis). In 1976, the US Congress codified the restrictive immunity that states had followed in the Foreign Sovereign Immunities Act. Examples would include Austria (1961), Germany (1963) and France (1969). See P. Abel, ‘State Immunity (Based on a Decision of the Austrian Supreme Court of February 10, 1961, 2 Ob 243/60)’ (1962) 11 International and Comparative Law Quarterly, 840. European Convention on State Immunity, ETS No. 074 (1972). David P. Stewart, ‘Current Developments: The UN Convention on Jurisdictional Immunities of States and Their Property’ (2005) 99 American Journal of International Law, 194, 195. See United Nations Convention on Jurisdictional Immunities of States and Their Property, New York, 2 December 2004, not yet in force as of 2023 Art. 31(1).

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

167

the link between restrictive theory and Western liberalism.45 Yet even courts in jurisdictions that have adopted the restrictive theory still presume immunity for a foreign state. As the US Supreme Court wrote, ‘unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state’.46 It is clear that most Western states – whether by court decision, national legislation or accession to international treaty – have adopted the restrictive theory. But that does not mean that all states have abjured the absolute doctrine. First, the conversion from absolute immunity to restrictive immunity should be considered an incremental process that unfolds over many decades, not a sudden break. Nor can we presume that states will abandon the absolute position without compelling reasons to do so. Western states accepted the restrictive theory over a long period of time, essentially through the accumulation of judicially created exceptions. A domestic court might have first permitted a case against a foreign state engaged in commercial activity; later, it might accept a lawsuit against a different state that unlawfully seized property held by a domestic party; finally, it might preside over a case where a foreign state committed grave human rights abuses.47 Second, Western liberalism presumes a strict division between the state and economic activity. To be sure, the line between the public sector and the private sector zigs and zags in many states. Even in the West, significant differences separate French dirigisme, where the state directs economic activity; German ordoliberalism, where the state ensures necessary conditions for market capitalism; and American laissez-faire capitalism, where the state plays a comparatively small role in economic ordering. When this line disappears, as one might expect in communist states, the rationale for restrictive theory likewise buckles. Under pure communism, the state owns the means of production, in theory obviating the private sector. A strict division between ‘commercial’ and ‘governmental’ acts breaks down when the government is the sole commercial actor. In the Soviet Union, for instance, the state controlled all economic activity through centralized planning, permitted registered agents to conduct trade, and eliminated the free market.48 Without a division between state and trader, the ‘commercial activity’ exception loses its theoretical basis. 8.1.3 Beyond the West: Post-Communist States, Post-Colonial States and Asia Many communist states, or formerly communist states, adhere to the absolute theory, a way to avoid capitalist legal entanglements in distant places. Countries such as Bulgaria, the Czech Republic, Poland, Romania and Ukraine abide by the absolute doctrine.49 It is certainly possible that Eastern Europe will shift to the restrictive position in the future, as they incline towards Brussels, Luxembourg and Strasbourg. Left to their own devices, however, one imagines these states would retain the absolutist stance. 45

46 47

48

49

Non-European ratifying states include Equatorial Guinea, Iran, Iraq, Japan, Kazakhstan, Lebanon, Mexico and Saudi Arabia. Signatories include China, India, Madagascar, Morocco, Paraguay, Russia, Senegal, Sierra Leone and Timor-Leste. For a list of states that have ratified or signed the Convention, see generally UN Treaty Collection, treaties.un.org/pages/ViewDetails.aspx?srsc=TREATY&mtdsg_no=III-13&chapter=3&clang=_en. Saudi Arabia v. Nelson, 507 U.S. 349 (1993). In the Jurisdictional Immunities case, the ICJ dismissed Italy’s contention that Germany’s jus cogens violations against Italian civilians during World War II waived Germany’s immunity to suit in Italian courts. Kazimierz Grzybowski, ‘United States–Soviet Trade Agreement of 1972’ (1972) 37 Law and Contemporary Problems, 395, 396. David Gaukrodger, ‘Foreign State Immunity and Foreign Government Controlled Investors’, OECD Working Papers on International Investment 2010/02 (2010), 11; Fox and Webb, supra note 12, at 160.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

168

Timothy Webster

Russia’s recent experience is instructive in this regard. As the successor state to the Soviet Union, Russia has largely retained the absolute position. In 2015, following decisions from the European Court of Human Rights and the Permanent Court of Arbitration, Russia passed its own immunity law.50 The law included a reciprocity requirement, meaning that Russia would immunize a foreign state only if that state would immunize, or has immunized, Russia – widely considered a defensive response to foreign courts impleading the Russian government without its consent.51 Despite its claim to follow Western laws and precedents, the law did not appreciably liberalize Russia’s immunity practice. Instead, it specifically disclaims state immunity for cases involving commercial activity, civil law transactions, labour disputes, real estate located on Russian soil, tort, intellectual property and commercial vessels.52 Russia preserved the core of absolute immunity, but clarified the application of jurisdictional immunity by foreign states over property owned within the Russian Federation. It is not, however, only communist and ex-communist states that subscribe to the absolute theory; many developing states still adhere to the absolute theory. With a handful of exceptions, African states ‘have remained steadfast in support of the classical notion of [absolute] immunity because of the fact that restrictive immunity adversely militates against them’.53 Most Latin American countries also abide by the ‘classical’ position; they have expressed opposition to the restrictive position on several occasions.54 Why do developing states maintain the theory of absolute immunity? Part of the reason lies in the comparative economic strengths of the state and the private sectors. One of the primary economic justifications for restrictive theory – to subordinate the state when it engages in commercial activity – holds little appeal if the state makes most major economic decisions. As shown already, the clear division between private acts and public acts propelled the restrictive theory to take root in many capitalist states. With the state playing an increasingly important role in the current Chinese economy, especially since the global financial crisis of 2008, a wholesale renunciation of the absolute theory seems unlikely.55 Another reason lies in the judiciary. Given the important role that courts have played in developing the restrictive theory, a state without a tradition of independent and professional judges is unlikely to move away from the absolute position. If no one is going to sue the United States, the United Kingdom or France in a developing country, the appeal of the restrictive theory dims considerably.56 Certainly, the developing country does not seek to be sued in a Western jurisdiction. In China, the lack of an independent judiciary limits the prospects for the introduction of the restrictive theory. 50

51 52

53

54

55 56

See generally Peter Roudik, ‘Laws Lifting Sovereign Immunity: Russia’, US Library of Congress Law (2016), loc.gov/ law/help/sovereign-immunity/russia.php#Major. Ibid. See generally Oleynivok v. Russia, ECHR. See also David S. Caudill, ‘Breaking Out of the Capitalist Paradigm: The Significance of Ideology in Determining the Sovereign Immunity of Soviet and Easter-Bloc Commercial Entities’ (1980) 2 Houston Journal of International Law, 425, 456 (noting socialist states’ traditional preference for absolute immunity). Ernest K. Bankas, The State Immunity Controversy Against Sovereign States in Domestic Courts (New York: Springer, 2005), 168. The author notes that five African states – Egypt, Lesotho, Madagascar, South Africa, Togo – have publicly embraced the restrictive theory. The African preference for the traditional theory hinges on some combination of insisting on self-determination after decades of colonial rule, ideological influence from socialist and communist states, and the active role many African states play in their own economic development. Ibid., 169. Ibid., at 335 (listing twelve of eighteen Latin American countries that subscribe to the classical position, four that abide by restrictive immunity and two whose position is ‘obscure’). See generally Margaret M. Pearson, Meg Rithmire and Kellee Tsai, ‘The New China Shock’, Foreign Affairs (2022). Ibid. (citing the lack of cases brought against Western states in African courts).

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

169

Finally, the spectre of colonialism, where a more powerful state preys on the weakness or disarray of another, haunts these discussions. Even when the former colonial power adopts the restrictive theory – as France, Germany, Italy, Portugal, Spain and the United Kingdom all have – the postcolonial state may still apply the absolute doctrine. China, of course, was not colonized per se. But it identifies as a ‘semi-colonial’ country in the Preamble of its Constitution, and often places itself at the vanguard of the developing world more generally. A geographical component is also visible, given the origins of the restrictive theory in the developed West. Many of China’s neighbours subscribe to the absolute theory. Insofar as distinct practice is observable, Afghanistan, Bangladesh, North Korea and Vietnam still adhere to the absolute doctrine.57 Viewed in this light, China may be a holdover, but it is hardly an outlier. Even liberal democracies in Asia adhere to the absolute theory. Japanese courts by and large still follow the absolute theory, as they have since 1928.58 In 2002, the Supreme Court of Japan recognized the restrictive theory as an option, acknowledging the difference between acts jure gestionis and jure imperii, but nevertheless immunized the United States.59 Japanese lower courts have also entertained the restrictive theory, but cases where judges implead foreign sovereigns remain fleetingly rare. South Korea, another liberal democracy and close neighbour to China, has accepted the restrictive theory, at least as a matter of law. In a 1998 case involving the employment of a Korean citizen at a US military base, the Supreme Court of South Korea recognized the restrictive position for the first time: ‘According to customary international law, a state’s sovereign acts are, in principle, immunized from the jurisdiction of other states. But it is not the case, in today’s international law or international practice, that a state’s private acts are immunized from the jurisdiction of other states.’60 Consequently, numerous South Korean citizens have challenged their dismissals by entities (stores, banks, restaurants) located within US military bases.61 However, it is not clear that the switch to the restrictive theory has had implications outside of personnel on US military bases. India, likewise, has moved towards the restrictive theory. The Indian Code of Civil Procedure provides that ‘[n]o foreign state may be sued in any court otherwise competent to try the suit’ unless the central government consents, in writing, to the suit.62 For decades, Indian courts ‘accorded immunity to foreign state corporations and other legal entities’, even when they engaged in commercial acts.63 But a 2011 decision by the Supreme Court suggests that India is rethinking the commercial transaction exception. As the Court explained, the fact that 57 58 59

60 61

62 63

Bankas, supra note 53, at 338. See Matsuyama v. Republic of China, 7 Taihan Minshu 1128 (Great Ct. Judicature, 18 December 1928). See Yamaguchi v. United States, 56 Minshu 729 (Sup. Ct. Japan, 12 April 2002); Mizushima Tomonori, ‘International Decisions: Yamaguchi v. United States’ (2002) 97 American Journal of International Law, 406. See also Iwasawa, ‘Japan’s Interactions with International Law’, supra note 15, at 123, 131 (‘one may say that Japanese courts still adhere to the theory of absolute immunity’). As the Supreme Court of Japan wrote, ‘[though] the so-called absolute theory was a traditional rule of customary international law, the view has gained ground, with the expansion of the scope of state activities and so on, that it is not appropriate to grant immunity from civil suit for acts jure gestionis, and the practice of foreign states to restrict the scope of immunity has accumulated’. Mizushima, 407. The court immunized the United States, holding that launching and landing US military aircraft at night is a ‘public activity par excellence of the US armed forced stationed in Japan’ and thus ‘clearly an act jure imperii’. 407. 97 Da 39216 (Sup. Ct. S. Korea, 17 December 1998). Kim Do-hyoung, ‘Practices on State Immunity at Korean Courts’ (2015) 22 Seoul International Law Studies, 115, 130–6 (listing cases) (in Korean). Indian Civil Procedure Code of 1908, Art. 86(1). V. Madhusoodhanan, ‘Law of Foreign State Immunity: Changing Patterns of International Law and Indian State Practice’ (1993) 35 Journal of the Indian Law Institute, 95, 105. The author notes that the Indian government has been ‘very reluctant to grant consent to sue a foreign state’. Ibid., at 106.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

170

Timothy Webster

‘Ethiopian Airlines was not entitled to sovereign immunity with respect to a commercial transaction is also consonant with the holdings of other countries’ courts and with the growing international law principles of restrictive immunity.’64 While some Asian states – primarily liberal democracies – have inched towards restrictive immunity, many states retain the absolute position. Finally, it is important to note that state immunity is still the basic default rule. In 2012, the International Court of Justice (ICJ) presided over the Jurisdictional Immunities case. The World Court noted that the ‘Parties are thus in broad agreement regarding the validity and importance of state immunity as a part of customary international law.’65 By immunizing Germany from civil judgments rendered by the Italian and Greek Supreme Courts, the ICJ reaffirmed the longstanding principle that a state may not be sued without its consent, even if it accepts the general distinction between ‘acta jure gestionis . . . and acta jure imperii’.66 Over the past two centuries, the theory of absolute immunity spread across the globe and then withered in many jurisdictions. Most Western states, and a handful of non-Western ones, now accept the idea that they are subject to jurisdiction in the courts of other states. Yet many states still abide by the absolute theory, while others have only recently – and, in some instances, reluctantly – accepted the restrictive position. We now turn to the practice, pronouncements and points of view articulated by China. 8.2 CHINA’S APPROACH

In the following discussion, China refers not only to the PRC but also to the Hong Kong Special Administrative Region (SAR), the Macau SAR and the Republic of China (ROC). As this section makes clear, these alternative ‘Chinas’ matter for several reasons. First, the PRC did not grow out of a vacuum; it was, and in certain regards still is, the successor state to the ROC. While the PRC introduced a set of governance institutions quite distinct from those of the ROC, the PRC nonetheless retained many legal principles of the ROC, including a preference for absolute immunity. Second, and more recently, the PRC has attempted to convert Hong Kong from a jurisdiction that adhered to the restrictive principle to one that appears to support the absolute principle, in what may be the PRC’s clearest recent signal of absolutism. Before tracing this history, however, one must acknowledge China’s experience with nineteenth-century international law. In modern Chinese intellectual history, the century of humiliation (1842–1942) begins with the Treaty of Nanjing, the first of many ‘unequal treaties’ that China signed with Western imperial powers and, later, Japan. A common element across the treaties was the exorbitant, and non-reciprocal, privilege of extraterritoriality; Western citizens would roam China subject not to Qing dynastic law but to the law of their home jurisdiction.67 Of course, Chinese subjects enjoyed no such privilege when they inhabited Western states. In fact, many Chinese were treated as second-class citizens when they emigrated to Western

64 65

66 67

Ethiopian Airlines v. Ganesh Narain Saboo, 8 SCC 539 (2011). ICJ, Jurisdictional Immunities (Germany v. Italy, Greece Intervening) (2012) para. 58. The major difference between Germany and Italy was whether courts should immunize a state that has committed violations of jus cogens norms. The Court decided that jus cogens violations do not deprive a state of its immunity. Ibid., para. 91. Ibid., para. 59. Sompong Sucharitkul, ‘Jurisdictional Immunities in Contemporary International Law from Asian Perspectives’ (2005) 4 Chinese Journal of International Law, 1. The author notes that ‘China has suffered more than any other of its Asian neighbors: first at the hands of “Western expansionists” no less than from “Marxist-Leninist” theorists’. Ibid., at 25.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

171

countries, including the United States.68 This unequal treatment partially explains the PRC’s ‘maximal’ approach to sovereignty in contemporary international practice.69 It is also important to note the rarity of official pronouncements on the subject of state immunity. China clarified its position in the early 1980s, under pressure from a default judgment issued by a federal court in the United States. The lack of clarity forces us to look at treaties, court cases and other indirect indicia of China’s approach. 8.2.1 Early Republic (1911–1949) The decades following the Qing Dynasty mark some of the most chaotic in China’s modern history. Various warlords ruled over vast swathes of Chinese territory from 1926 to 1928. Japan invaded Manchuria in 1931 and intensified its war efforts in 1937 with a full-scale attack on China. After Japan’s defeat in 1945, a civil war sundered the country for the next four years. This is not to say that legal issues surrounding state immunity never arose. But the absence of an unambiguous articulation of immunity may be justified in part by somewhat more pressing circumstances, such as national survival. Case law provides a rare glimpse into China’s stance on state immunity. In 1927, the Shanghai Provisional Court presided over a case where Persian merchants seized a vessel owned by the Soviet Union. The court directly addressed the immunity question. But, like Justice Marshall in Schooner Exchange, the Chinese judges did not limn the contours of the doctrine: According to the prevailing customs of international law, merchant vessels belonging to a foreign State are exempt from local jurisdiction. As the defendant fleet has been proved to be owned and controlled by a State in friendly relations with our country, it is clear that this Court does not have jurisdiction over this case. Therefore . . . the petition should be dismissed with costs.70

Scholars and courts alike construe this case as endorsing the absolute theory.71 But the opinion still raises basic questions about the scope of the doctrine. Does the rule apply only to ‘merchant vessels’ owned by foreign states? If so, that interpretation sounds like the commercial activity exception characteristic of the restrictive approach. What if the foreign state does not enjoy ‘friendly relations’ with China? The lack of Chinese case law urges caution in drawing conclusions about this period of Chinese legal history. On the other hand, some clues can be gleaned from the Republic of China’s conduct when sued in courts of foreign sovereigns. In these judgments, the ROC asserted state immunity. In the United States, a federal appellate court accepted China’s defence of state immunity.72 Nodding to the Schooner Exchange, the court accepted the Republic’s defence that ‘a national vessel of 68

69

70

71

72

Most infamously, the United States passed the Chinese Exclusion Act in 1882. At around the same time, California, Washington and Oregon enacted laws that facially discriminated against persons of Chinese descent. See M. Taylor Fravel, ‘China’s Sovereignty Obsession’, Foreign Affairs (26 June 2020). Professor Fravel describes China’s renewed emphasis on sovereignty under the leadership of Xi Jinping. Rizaeff Fre`res v. The Soviet Mercantile Fleet, Provisional Court of Shanghai (Civil Division), 30 September 1927, 40 International Law Reports 84–5. Accord Dahai Qi, ‘State Immunity, China and Its Shifting Position’ (2008) 7 Chinese Journal of International Law, 307. National City Bank of New York v. Republic of China, 348 U.S. 356, 363 (1955) (describing Rizaeff Fre`res as a Chinese judicial decision granting absolute immunity from civil suits to foreign sovereigns). Yokohama Specie Bank, Ltd. v. Chengting Wang, 113 F.2d 329 (9th Cir. 1940). The Republic of China requisitioned a steamship from a company incorporated in the Republic of China. Before the requisition, a Japanese company had arranged the shipment of melting scrap from San Francisco, where the ship was moored, to Japan. After the requisition, the Japanese company sought to seize the scrap, but was prevented from doing so by the Republic of China.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

172

Timothy Webster

a sovereign state is not subject to the jurisdiction of the courts of the United States, and under proper circumstances is entitled to claim immunity’.73 Likewise, the highest court in Japan dismissed a case against the Republic of China for failing to pay promissory notes issued by the Chinese charge´ d’affaires in Tokyo.74 It is not clear how China formulated its immunity defence. But the Japanese court did note that China ‘did not submit to our jurisdiction’.75 The ROC continued to insist upon state immunity when it appeared in lawsuits in other countries. In 1950, for instance, the United States sought to enforce a mortgage allegedly issued by the Republic of China on a ship moored in Brisbane, Australia.76 The ROC moved to dismiss the case on grounds of state immunity: Australian courts could not exercise jurisdiction over property belonging to the ROC without its consent. The Australian court first had to determine whether it could exercise jurisdiction over a foreign sovereign without its consent. Finding that ‘the Republic [of China] does not consent to submit to the jurisdiction of this court’, the Supreme Court of Queensland dismissed the case, effectively accepting the ROC’s defence.77 A stickier situation unfolded in Singapore, then a British colony. A ship owned by the ROC embarked for Japan, from Spain, in late 1949.78 When the ship docked in Singapore, the United States, acting on behalf of the ROC, filed a lawsuit to seize the ship.79 However, the PRC government – which the UK recognized as the legitimate government of China – also pressed a claim for the vessel. The PRC argued that ‘all the ships which are now in foreign ports, which originally belonged to the bogus Kuomintang Government or [were] owned by the Chinese bureaucratic capitalists, should become the property of the [PRC] and be under the direct control of the . . . Central People’s Government’.80 The PRC further argued that the ship belonged to the PRC as the legal successor of the ROC, then recognized by the UK. The ship thus enjoyed immunity from legal proceedings in Singapore.81 In the end, the Singapore High Court accepted the PRC’s state immunity argument and permitted the ship, then flying the PRC flag, to sail to China.82 8.2.2 PRC (1949–1978) While the establishment of the PRC certainly ushered in a new type of governance on the mainland, the new state’s position on state immunity did not change. In the early years of the PRC, courts rarely adjudicated civil cases of an international nature, and reportedly no cases involving state immunity.83 Pronouncements by top leaders, such as Mao Zedong and Zhou Enlai, strongly underscored state sovereignty, which PRC scholars link to the absolute immunity 73 74 75 76

77 78

79 80 81 82 83

Ibid., at 330. Matsuyama & Sano v. Republic of China, 7 Taihan Minshu 1128 (Sup. Ct. Judicature, 28 December 1928). Iwasawa, ‘Japan’s Interactions with International Law’, supra note 15, at 126. United States of America v. Republic of China, Sup. Ct. Queensland, 10 February 1950. The case is summarized at 17 International Law Reports 168, Case 43 (1950). See also P. Sutherland, ‘Recent Statutory Developments in the Law of Foreign Sovereign Immunity’ (1982) 27 Australian Yearbook of International Law, 27, 67. U.S. v. ROC. For the factual background on this case, see Republic of China v. National Union Fire Insurance Company, 151 F. Supp. 211, 222–4 (D. Md. 1957) (describing the background of the case); ‘“No! We’re Not Celebrating” Says the Hai Hsuan Skipper’, Malaya Tribune (29 March 1950), 1 (describing the Singapore High Court’s decision). United States of America v. Yong Soon Ee, Singapore High Court, 28 March 1950, 17 ILR 170, Case No. 44. National Union Fire, 151 F. Supp. at 223 (quoting a People’s Daily article from March 1950). U.S. v. Yong Soon Ee, 17 ILR 171. Malaya Tribune, supra note 78. Huang Jin and Ma Jinsheng, ‘Immunities of State and Their Property: The Practice of the People’s Republic of China’ (1987) 1 Hague Yearbook of International Law, 163, 167.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

173

theory.84 For the early PRC leadership, sovereignty was a bargain: other states could not interfere in China’s domestic affairs, and China would desist from interfering in theirs. These pronouncements bespeak a position of ‘maximal sovereignty’, a reluctance to concede power to outsiders, whether an international organization, a regional entity, a foreign state or otherwise. Most PRC scholars trace the theory of absolute immunity to many sources, not least of which is the UN Charter.85 Article 2 of the Charter lists several background principles, including the ‘sovereign equality of all its Members’, as well as a broader mandate that prevents the UN from ‘interven[ing] in matters which are essentially within the domestic jurisdiction of any state’.86 A related set of principles coalesced in the ‘Five Principles of Peaceful Coexistence’, a crucial document guiding the foreign policy of the early PRC. Principles one (mutual respect for each other’s sovereignty) and three (mutual non-interference in each other’s internal affairs) provided support for the idea that one sovereign’s courts could not sit in judgment of another sovereign. At around the same time that the PRC adopted and articulated these principles, the government expropriated vast amounts of foreign-owned property – actions that would almost certainly invite civil litigation or international arbitration in the present.87 Yet the absence of dispute settlement venues meant that these claims went unheard. Decades later, assets held by American interests were returned, in part, through a bilateral claims settlement.88 To understand the early PRC’s practice of state immunity, one must scour court decisions, treaty practice and contract clauses. Perhaps the only instance where the PRC explicitly opened itself to adjudication in a foreign nation appeared in a treaty with the Soviet Union.89 A narrowly tailored provision allowed courts in the other country, on a reciprocal basis, to adjudicate disputes regarding commercial contracts signed by state-sponsored trade delegations in the host state.90 It is unknown whether either state ever filed a suit in the other, pursuant to this treaty. But the provision’s restrictiveness suggests that such cases were rare or non-existent. Other treaties did not subject China to the domestic courts of other states.91 A final source for the practice on state immunity is the standard-form contract used by the PRC. A clause from the China National Machinery Import Corporation provides that disputes shall be resolved through negotiations and, failing that, submitted to arbitration in 84

85 86 87

88 89

90 91

Yang Hsin and Ch’en Chien, ‘Expose and Criticize the Imperialists’ Fallacy Concerning the Question of State Sovereignty’ in J. Cohen and H. Chiu (eds.), People’s China and International Law, Vol. 1: A Documentary Study (Princeton, NJ: Princeton University Press, 1971), 110, 111. For instance, Mao claimed that the PRC would enter into diplomatic relations with any government willing to observe ‘mutual respect for territorial integrity and sovereignty’. Zhou Enlai stated that the PRC will ‘under no circumstances tolerate any infringement upon her own sovereignty by other nations’. Wang Houli, ‘Sovereign Immunity: Chinese Views and Practices’ (1987) 1 Journal of Chinese Law, 23, 29. UN Charter, Arts. 2(1), 2(7). L. Lin and J. R. Allison, ‘An Analysis of Expropriation and Nationalization Risk in China’ (1994) 19 Yale Journal of International Law, 135, 159–60. Ibid., at 160. See Treaty of Trade and Navigation between the Union of Soviet Socialist Republics and the People’s Republic of China, 313 UNTS 135 (23 April 1958). See ibid., Annex, Art. 4(a). See Xu Guojian, ‘International Civil Procedure Law in the People’s Republic of China: Principles and New Developments’ (1991) 4 Review of Socialist Law, 319, 347–8. The author lists several treaties that the PRC ratified, but none of them exposed the country to the domestic courts of a foreign state. The Convention on International Civil Aviation provides that a dispute between two states shall be settled by negotiation, the council overseeing the organization or, as a last resort, arbitration. But the Convention says nothing about domestic courts. The Vienna Convention on Diplomatic Relations addresses the specific issue of diplomatic immunity, not state immunity as discussed herein.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

174

Timothy Webster

China.92 It further specifies that ‘neither party shall seek recourse to a law court or other authorities’.93 The PRC would not expose itself to the jurisdiction of foreign courts. During the relatively closed early period of its history, the PRC did not make many pronouncements about the issue of state immunity. However, once China decided to open up to the outside world and reform its occasionally turbulent systems of governance, the need to clarify its position on immunity became all the more acute. 8.2.3 Reform Period (1978–Present) The reform period has witnessed, among other things, the first distillation of the PRC’s official position on absolute immunity. Up until this period, China had not clearly articulated its stance on state immunity. A federal lawsuit in the United States prodded China to clarify its views. A trial court in Alabama entered a default judgment against the PRC, after its government failed to appear in a case about the redemption of railway bonds issued by the Qing Dynasty. In Jackson v. China, the PRC formally declared, for the first time, its adherence to the absolute immunity principle.94 After the ruling, the PRC left no ambiguity about its position: As a sovereign state, China incontestably enjoys judicial immunity. It is in utter violation of the principle of international law of sovereign equality of all states and the U.N. Charter that a district court of the United States should exercise jurisdiction over a suit against a sovereign state as a defendant, make a judgment by default, and even threaten to execute the judgment. The Chinese Government firmly rejects this practice of imposing U.S. domestic law on China to the detriment of China’s sovereignty and national dignity.95

The PRC’s first official pronouncement on state immunity left no room for debate: China enjoyed full ‘judicial immunity’ from US courts. It did not matter whether the case involved state-owned property, merchant vessels or financial assets, China would not submit to the jurisdiction of any foreign court. Jackson spurred many PRC scholars to research the issue of state immunity; most of those scholars have promoted the theory of absolute immunity. In the words of one scholar, ‘courts at various levels in China do not hear cases against foreign states or governments. Likewise, we oppose assumption of jurisdiction by foreign courts in any case in which the Chinese government is named a defendant.’96 China’s position has softened somewhat since the 1970s. Several developments augur a potential shift from the absolute to the restrictive position.97 First, in 2005, China signed the 2004 UN Convention on Jurisdictional Immunities,98 an instrument widely considered to advance the restrictive theory of immunity.99 Some scholars view the signature as a distant harbinger of China’s acceptance of the restrictive theory.100 Sompong Sucharitkul, a Thai 92

93 94 95

96 97

98

99 100

US Congress Joint Economic Committee, China: A Reassessment of the Economy, A Compendium of Papers, 10 July 1975, p. 570. Ibid. Huang and Ma, supra note 83, at 178. People’s Republic of China: Aide memoire of the Ministry of Foreign Affairs, reproduced from US Foreign Broadcast Information Service, China Daily Report, vol. 1, no. 28 (9 February 1983). Wang Houli, supra note 85, at 29. Dahai Qi, supra note 71 (viewing China’s signature of the Immunities Convention as ‘a probable shift of China’s position . . . from the absolute doctrine to the relative doctrine’); Lijiang Zhu, supra note 6. See UN Treaty Collection, Status of Treaties: UN Convention on Jurisdictional Immunities of States and Their Properties, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-13&chapter=3&clang=_en. See Stewart, supra note 43. Dahai Qi, supra note 71.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

175

diplomat turned international law professor, went so far as to predict that ‘China would very likely follow the overwhelming majority of enlightened developing countries that have learned to accept a more restrictive doctrine of State immunity.’101 However, some members of China’s own Ministry of Foreign Affairs cut against this prediction. Take the following statement, issued shortly after China signed the Immunities Convention: China signed the Convention . . . to express China’s support of the . . . coordination efforts made by the international community. However, until now China has not yet ratified the Convention . . .. Therefore, the Convention has no binding force on China, and moreover it cannot be the basis of assessing China’s principled position on relevant issues. After signature of the Convention, the position of China in maintaining absolute immunity has not been changed, and [China] has never applied or recognized the so-called principle or theory of ‘restrictive immunity.’102

More than fifteen years since it signed the treaty, China has still not taken additional steps towards ratification. This does not rule out the possibility of ratification, but it does intimate that it is not imminent. Second, in 2005, China enacted domestic legislation to immunize foreign central banks’ assets from Chinese judicial measures. 103 According to PRC officials, this law plugged a legislative gap as to whether China would seize assets held in Hong Kong by foreign central banks (e.g., Bank of Japan, Deutsche Bundesbank). When Hong Kong returned to Chinese sovereignty in 1997, the territory was no longer subject to the UK’s 1978 State Immunity Act, which immunized properties held by central banks. The PRC sought to allay concerns of foreign banks by passing a law that clearly immunized their assets from compulsory judicial measures. While the Chinese legislation provides for limits on the exercise of state immunity, scholars still interpret that law as embodying the absolute, not the restrictive, position.104 Third, and perhaps most significant, the NPC has introduced a draft Foreign Sovereign Immunity Law that would introduce several exceptions to the position of absolute immunity. Whether and when the NPC will enact such a law remain open questions at the time of this writing (September 2023). As currently conceived, the draft law would retain China’s basic stance on immunizing foreign sovereigns,105 subject to a number of commonly accepted exceptions.106 For example, China would waive immunity when a foreign sovereign consents to jurisdiction in Chinese courts, engages in commercial activity or injures or kills a person in the PRC.107 As for why the NPC is pushing China to move towards the restrictive theory, the People’s Daily suggests a combination of factors: trends in other developed states, promotion 101

102 103

104 105 106

107

Sompong Sucharitkul, ‘Jurisdictional Immunities in Contemporary International Law from Asian Perspective’ (2005) 5 Chinese Journal of International Law, 1, 27. DRC v. FG Hemisphere LLC (2011) Hong Kong Court of Final Appeal 43. Law of the People’s Republic of China on Immunity for the Property of Foreign Central Banks from Compulsory Judicial Measures, 2005. Lijiang Zhu, supra note 6, at 79. Foreign Sovereign Immunity Law (Draft), supra note 11, Art. 3. Foreign Sovereign Immunity Law (Draft), supra note 11. Exceptions include when a foreign sovereign expressly consents to the jurisdiction of Chinese courts (Art. 4), impliedly consents by suing in Chinese courts (Art. 5), engages in commercial activity that affects the PRC (Art. 7), commits a tort that injures or kills a person or damages property (Art. 8), involves itself in a dispute over immovable property located in China (Art. 10) or infringes intellectual property rights protected by Chinese law (Art. 11). See note 106. These mirror exceptions found in other states’ laws, such as the United States’ Foreign Sovereign Immunities Act.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

176

Timothy Webster

of the rule of law on domestic and foreign planes, and modernization of governance capacities.108 However, other developments suggest that China may continue to adhere to the absolute position. In 2007, the Supreme People’s Court (SPC) issued a notice whereby Chinese courts must seek approval from a higher-level court before deciding to accept a civil lawsuit against any one of eleven categories of legal or natural person, including foreign states, staff members of foreign embassies in China and foreign officials passing through China.109 It is not clear whether and how Chinese courts have implemented this system. But it does not appear that Chinese courts have accepted lawsuits against any of the eleven categories of entity since the issuance of the notice. China also seems to have ‘converted’ Hong Kong to the absolute theory. When an American investment firm sought enforcement of an arbitral award against the Democratic Republic of Congo in Hong Kong, the Hong Kong courts had to decide whether to apply the restrictive immunity principle, characteristic of the UK courts, or instead adopt the absolute immunity principle practised in the PRC.110 In the first two instances, the Hong Kong courts decided that restrictive immunity survived the handover from Britain to China, but Hong Kong’s Court of Final Appeal (CFA) determined that Hong Kong must follow the PRC and adopt the principle of absolute immunity. The CFA referred the case to the NPC Standing Committee, the first time the CFA had sought advice from this body. The Standing Committee viewed the issue as one pertaining to foreign affairs, and thus under the PRC’s purview and not Hong Kong’s.111 Unsurprisingly, the Standing Committee determined that Hong Kong must conform its immunity practice ‘so as to be consistent with the rules and policies on State immunity that the Central People’s Government has determined’.112 In other words, the PRC forced Hong Kong to accept the position of absolute immunity, a move that some scholars characterized as encroaching on Hong Kong’s limited sovereignty.113 A final recent development on state immunity in China pertains to the international response to the Covid-19 pandemic. A precipitous decline in Sino–American relations during the Trump administration (2017–21) raised bilateral tensions on numerous fronts, including the possibility of assigning legal liability for Covid-19. For instance, US citizens have filed at least a dozen lawsuits against the PRC, including two by attorneys-general of the states of Mississippi and Missouri.114 Moreover, many US senators have proposed amending the US Foreign Sovereign Immunities 108

109

110

111

112

113

114

加强涉外领域立法的重要成果 – 【外国国家豁免法】 草案述评 [‘Important Achievements in Strengthening Legislation in Foreign-Related Fields – Comments on the Draft Foreign Sovereign Immunity Law’], Renmin Ribao [People’s Daily] (9 January 2023), www.xhby.net/tuijian/202301/t20230109_7798343.shtml. 最高人民法院关于人民法院受理涉及特权与豁免的民事案件有关问题的通知 [Notice of the Supreme People’s Court on Relevant Issues Concerning People’s Courts’ Accepting Civil Cases of Privileges and Immunities], Doc. 69 of 2007. FG Hemisphere Associates LLC v. Democratic Republic of Congo [2009] 1 Hong Kong Law Reports & Digest 410 (Court of First Instance); FG Hemisphere Associates LLC v. Democratic Republic of Congo [2010] 2 Hong Kong Law Reports & Digest 66 (Court of Appeal); Democratic Republic of Congo v. FG Hemisphere Associates LLC [2011] 5 Final Appeal Civil 7 (Court of Final Appeal). Pursuant to Hong Kong’s Basic Law, courts must seek guidance on certain issues – including national defence and foreign affairs – from the NPC Standing Committee in Beijing. See Hong Kong Basic Law, Art. 158(3). See Interpretation of the Standing Committee of the National People’s Congress Regarding the First Paragraph of Article 13 and Article 19 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted at the 22nd Meeting of the Standing Committee of the Eleventh National People’s Congress on 26 August 2011, English interpretation at www.elegislation.gov.hk/hk/A114!en.assist.pdf. See, e.g., C.-H. Wu, ‘One Country, Two State Immunity Doctrines: A Pluralistic Depiction of the Congo Case’ (2014) 9 National Taiwan University Law Review, 197, 228 (noting that the Standing Committee’s decision further restricts the limited space in which Hong Kong is competent to act in international affairs). See S. Mirski and S. Anderson, ‘What’s in the Many Coronavirus-Related Lawsuits Against China’, Lawfare Blog (24 June 2020), www.lawfareblog.com/whats-many-coronavirus-related-lawsuits-against-china.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

177

Act to allow civil litigation against China for damage caused by the virus.115 While legal experts expect little from this rash of litigation,116 the lawsuits have attracted the attention of many Chinese, including NPC representative Ma Yide. Nearly three dozen NPC representatives submitted a bill that would clarify China’s position on state immunity and permit countersuits against the United States. Some Chinese scholars further suggest that China should use the principle of reciprocity in determining state immunity.117 That is, if a foreign state limits or denies immunity to China, then China should likewise limit or deny the immunity provided to that sovereign. China’s draft sovereign immunity law may have arisen as a response to this challenge from the United States. 8.3 FUTURE CHALLENGES

As China possibly transitions from the absolute to the restrictive theory, one can legitimately ask which states are likely to be impleaded, and for what causes of action. Based on regional and global developments, one can imagine two scenarios where China might rethink its stance: (1) World War II reparations and (2) liability for a pandemic. 8.3.1 World War II Reparations War reparations litigation presents a potential scenario where Chinese courts would waive Japan’s state immunity. For the past four decades, Chinese, Hong Kong, Korean and Taiwanese plaintiffs have sued the Japanese government and Japanese corporations, in Japanese courts, for violating their human rights during World War II. Japanese courts, in the main, have dismissed cases against the Japanese government owing to sovereign immunity, timeliness issues or the treaty between Japan and China. Chinese courts could, in theory, exercise jurisdiction over Japan in war reparations cases. Chinese plaintiffs did file lawsuits against Japanese corporations in China, but only one court accepted a case. That acceptance ultimately led to a multi-million-dollar settlement between Chinese forced labourers and Mitsubishi Materials Company, one of Japan’s biggest users of wartime forced labour. Were Chinese plaintiffs to sue the Japanese government in China, Chinese courts would hesitate to accept the case. However, recent developments in South Korea suggest that a more assertive path is possible. When Korean victims – like Chinese plaintiffs – found no satisfaction in Japanese courts, they refiled their cases in Korean domestic courts: Seoul, Busan, Daegu and Gwangju. On the whole, the Korean judiciary has been far more receptive to war reparations claims than Japanese courts. In 2012, the South Korean Supreme Court found that two Japanese multinationals committed ‘torts against humanity’ vis-a`-vis Korean forced labourers during World War II.118 In 2018, the South Korean Supreme Court ordered the same two multinationals to pay reparations to Korean forced labourers, arguably the first civil judgment anywhere in the 115

116

117

118

See Meagan Flynn, ‘Missouri Is Suing China Over the Coronavirus Pandemic. It’s the Latest Conservative Gambit’, Washington Post (22 April 2020) (describing two proposed bills, one that would allow lawsuits against any foreign state that discharges a biological weapon, and one that permits lawsuits against foreign entities for failures or deceit during public health emergencies). See, e.g., Chime`ne I. Keitner, ‘To Litigate a Pandemic: Cases in the United States Against China and the Chinese Communist Party and Foreign Sovereign Immunities’ (2020) 19 Chinese Journal of International Law, 229, 232–3. See, e.g., 徐樹 [Xu Shu], 中國國家豁免立法中的對等原則 : 概念內涵, 法理依據及制度設計 [‘The Principle of Reciprocity in China’s State Immunity Legislation: Conceptual Meaning, Legal Basis and Institutional Design’] (2022) 2 國際法研究 International Legal Studies, 21. See Pak Chang-hwan v. Mitsubishi Heavy Industry, 2009 Da 22549 (Sup. Ct. S. Kor., 24 May 2012); Shin Cheon-su v. Nippon Steel-Sumitomo Metal Corp., 2009 Da 68620 (Sup. Ct. S. Kor., 24 May 2012).

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

178

Timothy Webster

world to order private reparations for World War II. In January 2021, the Seoul Central District Court ordered the Japanese government to pay damages to twelve former Korean comfort women. The trial court dispensed with Japan’s state immunity defence in the following terms: The theory of state immunity means respecting the sovereign state and avoiding the reckless submission to another state’s jurisdiction. But if a country inflicts great damage upon individuals in another state through the violation of jus cogens norms, that country cannot then hide behind state immunity to avoid compensation or reparation. In such cases, it is appropriate to allow exceptions to the interpretation of customary international law on state immunity.119

To be sure, China is not South Korea. South Korea has embarked on a decades-long revision of Japanese colonialism and the wartime experience period in particular.120 Korea has also taken steps to embrace the restrictive theory.121 China, too, has used World War II in a geopolitically expedient manner, reclaiming its status as one of the ‘Big Four’ victors of World War II and a staunch enemy of fascist totalitarianism.122 And Chinese officials have lent rhetorical support to the war reparations movement, albeit episodically.123 But China has not permitted its courts to play a role in allocating legal liability for the war, as Greek and Italian courts did in the 1990s and 2000s, and as Korea is doing at the moment. Nevertheless, Chinese scholars have suggested that war reparations lawsuits might be potential areas where China might soften its absolutist stance.124 While they have not openly called for Chinese courts to hear such cases – possibly indicating their political sensitivity – scholars have rejected Japanese case law that immunizes the Japanese government.125 8.3.2 Pandemic Liability The second scenario envisages the reverse: a foreign court presides over a case against the Chinese government, which in turn spurs a Chinese actor to sue the foreign government. The possibility is hardly remote. At the time of this writing, American plaintiffs – including the attorneys-general of the states of Missouri and Mississippi – have filed numerous lawsuits against Chinese state actors. To be sure, most observers question the viability of these cases.126 119 120

121 122

123

124

125

126

Lee v. Japan, 2016 Gahap 505092, Seoul Central District Court, 1 January 2021. Timothy Webster, ‘South Korea Shatters the Paradigm: Corporate Liability, Historical Accountability, and the Second World War’ (2022) 26 UCLA Journal of International Law and Foreign Affairs, 13. See Kim Do-hyoung, ‘Practices on State Immunity at Korean Courts’, supra note 61. Rana Mitter, China’s Good War: How World War II Is Shaping a New Nationalism (Cambridge, MA: Belknap Press, 2020), 10. Foreign Minister Qian Qichen noted that the Joint Communique´ extinguished compensation claims belonging to the PRC, but not to Chinese citizens. Japan Economic Newswire, ‘Beijing Says Japan Has to Partly Pay War Compensation (4 May 1995). Likewise, after the Supreme Court of Japan dismissed cases brought by Chinese forced labourers, Foreign Ministry spokesperson Liu Jianchao called the ruling “illegal and invalid” and demanded that ‘the Japanese government . . . seriously deal with China’s concerns and properly handle this issue’. However, it is doubtful that the PRC government has expended much political capital on the issue of war reparations. See ‘China blasts Japan court’s rejection of WW2 suits’, Xinhua (28 April 2007). See Congyan Cai, ‘International Law in Chinese Courts During the Rise of China’ (2016) 110 American Journal of International Law, 269, 279. 肖明清 [Xiao Mingqing], 国家豁免权在细菌战诉讼案中是否适用 [‘Is State Immunity Applicable in Germ Warfare Lawsuits?’] (2005) 4 Hunan University Arts and Sciences Journal: Social Science Edition, 23, 25. Professor Keitner, for instance, writes that none of the cases would fall within the exceptions provided by the Foreign Sovereign Immunities Act. See Keitner, ‘To Litigate a Pandemic’, supra note 116, at 232–3. Like most US commentators, Professor Keitner is pessimistic about prospects for these suits on the merits. See also Keith Johnson, ‘Missouri Opens Up a New Front Against China in Coronavirus Blaming Game’, Foreign Policy (24 April 2020) (noting that the lawsuits ‘aim less at securing victory in court . . . than at prodding Congress to pass legislation, as it did in 2016 with respect to Saudi Arabia’).

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

8 The Solid State of State Immunity in the PRC

179

Yet they raise two distinct possibilities: litigation in the United States and retaliatory legislation in China. Even before the pandemic, China had been sued many times in the United States. As noted in Section 8.2.3, a 1982 judgment from a federal court in Alabama prompted China to clarify its position on state immunity in the first place. Federal courts tend to dismiss cases against China on state immunity grounds. But not all do. Default judgments, as in Jackson, have haunted the PRC for decades before they are vacated. Take the Walters case, where a federal court in Missouri entered a ten-million-dollar default judgment against China in 1996, even though China asserted sovereign immunity and entered no appearance in the action.127 Fifteen years later, a federal appellate court, in a different US jurisdiction, dismissed the enforcement action.128 Yet the saga continued when plaintiffs sought to identify assets held by China in a third US jurisdiction, leading a third trial court to hold China in civil contempt for failing to comply with its orders.129 With China’s commercial activity now spanning the globe, the PRC is likely to encounter additional litigation, in more jurisdictions, in the future. The Covid-19 pandemic has sharply increased international tensions between China and many liberal democracies, including the United States.130 As noted earlier, private citizens and public officials in the United States responded to the pandemic with that most American method of airing public grievances: civil litigation. At the time of this writing, US courts have uniformly dismissed these lawsuits, though many still pend on appeal.131 But that does not mean that a case could not do lasting damage to the US–China relationship. The US litigation in turn inspired a Chinese attorney to file a countersuit against American government actors in Wuhan Intermediate Court.132 Attorney Liang Xuguang alleged that the US military brought the virus to Wuhan, echoing a suggestion from Foreign Ministry spokesperson Zhao Lijian.133 While the Wuhan court is unlikely to accept the case, particularly in light of the abovementioned SPC notice, the complaint itself suggests that such a lawsuit is possible, if not probable, particularly in light of the legislation proposed by NPC representative Ma Yide. 8.4 CONCLUSION

China’s economic, political and legal developments over the past forty years have been enormous. The institution of a stable legal system after decades of social upheaval, the passage of hundreds of laws and the unprecedented economic success China has enjoyed globally all reveal a dynamism rarely evinced in human history. At the same time, China has very much charted its own path. As Western states globalized in the late nineteenth and twentieth centuries, many 127 128 129

130 131

132

133

See Walters v. Industrial and Commercial Bank of China, 651 F.3d 280, 283 (2d Cir. 2011). Ibid., at 299 (dismissing the case against China and prohibiting plaintiffs from collecting assets held by China). See Walters v. People’s Republic of China, 72 F. Supp. 3d 8, 13 (D.D.C. 2014) (ordering China to pay $246,500 for each day it did not respond to the court’s orders). Other states that have seen a rise in geopolitical tensions with China include Australia, South Korea and Japan. See John Bellinger, Sean Mirski and Catherine McCarthy, ‘Missouri Decision Foreshadows Outcomes of Remaining Coronavirus-Related Suits Against China’, Lawfare (14 September 2022), www.lawfareblog.com/mis souri-decision-foreshadows-outcomes-remaining-coronavirus-related-suits-against-china (discussing, inter alia, the Missouri federal trial court’s decision to dismiss the case on state immunity grounds, and the rejection of other suits in the United States). See Liang Xuguang v. U.S. Federal Government, Centers for Disease Control and Prevention, Department of Defense and U.S. Armed Forces Sports, Wuhan Intermediate Court, 20 March 2020, complaint available at http://covid19lawcenter.com/NewsDetail.aspx?ID=256. Ben Westcott and Steven Jiang, ‘Chinese Diplomat Promotes Conspiracy Theory That US Military Brought Coronavirus to Wuhan’, CNN (13 March 2020).

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

180

Timothy Webster

shed a strict understanding of state immunity, permitting an ever-increasing number of exceptions to the once sacrosanct concept of absolute immunity. China continues to abide by absolute immunity. However, the recent passage of domestic laws, including one specifically on foreign sovereign immunity, coupled with the signing of the UN Convention on Jurisdictional Immunities, suggests that China may move towards the restrictive theory. Should China make such a change, it would represent another step towards integration with the economically liberal blueprint of advanced capitalist states. Such a move may be somewhat surprising in the relatively constrained political environment of the 2020s, but it is congruent with larger trends that China has joined over the past several decades.

https://doi.org/10.1017/9781009041133.010 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and the Extraterritorial Application of Chinese National Laws It’s Easier Said Than Done Yongping Xiao and Lei Zhu 9.1 INTRODUCTION

China had an uneasy relationship with extraterritorial jurisdiction of national laws, that is, a state exercising its power beyond its territorial boundaries. For about a hundred years, between 1842 and 1943,1 Western powers exercised consular jurisdiction in Chinese territory under unequal treaties, violating Chinese national sovereignty and independence.2 This humiliating history has led to China’s hostility towards extraterritoriality.3 After the founding of the People’s Republic in 1949, China adopted the Five Principles of Peaceful Coexistence as the guidelines for its foreign relations; these include non-interference in each other’s internal affairs.4 A concern is raised as to whether China’s gradual turn to extraterritoriality contravenes with the Five Principles that it has long embraced. Over decades, extraterritorial jurisdiction did not receive much attention in the Chinese legal system. Only four statutes contain express extraterritorial clauses: the Criminal Code 1979,5 the Marine Environment Protection Act 1982 (MEPA), the Foreign Trade Law 1994 and the AntiMonopoly Law 2008 (AML). In the second decade of the twenty-first century, however, extraterritoriality has come to the forefront of political and legal debates in China. Extraterritoriality has begun to be adopted as a strategy to counter the extraterritorial application of American law against Chinese individuals and companies, which intensified after Donald Trump took his presidency in 2016.6 A White Paper on China–US trade friction, which China’s State Council released in September 2018, contains a separate section on American extraterritoriality, labelling it ‘long arm jurisdiction’.7 This is the first time that the term extraterritoriality was mentioned in official documents of the Chinese government. 1

2

3

4

5

6

7

Turan Kayaog˘lu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China, reprint ed. (Cambridge: Cambridge University Press, 2014), 149. See, for example, Andrew Cobbing, ‘A Victorian Embarrassment: Consular Jurisdiction and the Evils of Extraterritoriality’ (2018) 40 International History Review, 273–91. Richard S. Horowitz, ‘Prote´ge´ Problems: Qing Officials, Extraterritoriality, and Global Integration in Nineteenth¨ zsu, Maı̈ a Pal and Ntina Tzouvala (eds.), The Extraterritoriality of Law: Century’ in Daniel S. Margolies, Umut O History, Theory, Politics, 104–18 (Abingdon: Routledge, 2019). Constitution of the People’s Republic of China, Recital 12. English translation at www.npc.gov.cn/englishnpc/ constitution2019/201911/1f65146fb6104dd3a2793875d19b5b29.shtml. Criminal Law of the People’s Republic of China [中华人民共和国刑法], adopted at the Second Session of the Fifth National People’s Congress on 1 July 1979. Art. 6(3). Joel Slawotsky, ‘U.S. Extraterritorial Jurisdiction in an Age of International Economic Strategic Competition’ (2021) 52 Georgetown Journal of International Law, 427–68. Information Office of the State Council, ‘The Facts and China’s Position on China–US Trade Friction’ (September 2018), www.scio.gov.cn/zfbps/32832/Document/1638289/1638289.htm, s. IV(3).

181 https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

182

Yongping Xiao and Lei Zhu

On 25 February 2019, President Xi Jinping called for the building of the legal system for extraterritorial application of Chinese law to be speeded up.8 That was the first time such a proactive project was announced by the state leadership. The Standing Committee of the National People’s Congress (NPC) soon identified this as one of the priorities on its legislative agenda.9 The years 2020–1 witnessed a significant increase of statues in this regard, with the adoption of six statutes and regulations dealing with extraterritoriality.10 More are expected to follow in the coming years. This chapter does not cover all issues pertaining to extraterritorial application of Chinese law but instead focusses on the issue of the ‘effect doctrine’ because this doctrine has long been full of controversies in international law. The ‘effect doctrine’ derives from the objective territoriality principle. However, it substitutes the more traditional jurisdictional link, which refers to the actual conduct itself, with the consequence of the conduct, thus enabling the state to claim extraterritorial jurisdiction over conducts outside its territory. However, the very notion of effect itself is elusive and open to interpretation. Meanwhile, contemporary international law has failed to provide workable rules and guidelines as to where the boundary lies, leaving states with much discretion to define, interpret and apply the ‘effect doctrine’. This, in turn, leads to potential abuse and overreach of domestic jurisdiction, creating conflicts with the territorial jurisdiction of the state where the actual conduct occurs. Although its compatibility with international law remains unsettled, effect-based extraterritorial jurisdiction is not without justification.11 With the development of globalization, there has been a significant increase in cross-border legal issues.12 While a strict territorial jurisdiction proves to be inadequate and insufficient to tackle these issues, international rule-making, either bilateral or multilateral, is time-consuming and difficult, and sometimes even impossible. States have relied more on the effect-based approach to apply their domestic laws.13 Actually, effect-based extraterritorial jurisdiction is considered an important instrument for global governance.14 Indeed, it is acknowledged that exercising effect-based jurisdiction broadly will lead to anarchy and the law of the jungle in the international community.15 Such jurisdiction must be exercised under certain conditions and within certain limits in terms of either the 8

9

10

11

12

13

14

15

People’s Daily Online, CPC Central Commission for Overall Law-Based Governance Holds Its First Meeting This Year [中央全面依法治国委员会新年首会,干货全在这里], 26 February 2019, at http://politics.people.com.cn/n1/ 2019/0226/c1001-30903794.html (in Chinese). Legislative Work Plan of the Standing Committee of the National People’s Congress for 2021 [全国人大常委会2020 年度立法工作计划], 20 June 2020, at www.npc.gov.cn/npc/c30834/202006/b46fd4cbdbbb4b8faa9487da9e76e5f6 .shtml (in Chinese). The legislation fall into two categories. The first consists of legislation that asserts extraterritorial jurisdiction of Chinese law, which includes the 2019 amendment to the Securities Act 1998, the Export Control Act 2020 and the Personal Data Protection Act 2021. The second comprises legislation that mandates countermeasures in response to foreign extraterritorial jurisdiction, which include the Anti-foreign Sanctions Act 2021, the Regulation on Unreliable Entity List 2020 and the Regulation on Counteracting the Unjustified Extraterritorial Application of Foreign Laws and Measures 2021. Maher M. Dabbah, International and Comparative Competition Law (Cambridge: Cambridge University Press, 2010), 423. David H. Small, ‘Managing Extraterritorial Jurisdictional Problems: The United States Government Approach’ (1987) 50 Law and Contemporary Problems, 283–302. Najeeb Samie, ‘The Doctrine of “Effects” and the Extraterritorial Application of Antitrust Laws’ (1982) 14 University of Miami Inter-American Law Review, 23–59, 39. Lucio Lanucara, ‘The Globalization of Antitrust Enforcement: Governance Issues and Legal Responses’ (2002) 9 Indiana Journal of Global Legal Studies, 433–59. ‘Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction’ (1985) 98(6) Harvard Law Review, 1310–30.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

183

magnitude of effect or the reasonableness of such jurisdiction.16 However, a thorny issue is how to reasonably identify ‘conditions’ and ‘limits’. Different approaches and solutions have been suggested, but none of them seems to be fully satisfactory.17 Hence, the quest for a working framework for effect-based extraterritorial jurisdiction is still ongoing, and it seems as though the debate and the controversy over this issue will not subside in the near future.18 Despite the problems inherent in the ‘effect doctrine’ and conflicts arising from effect-based extraterritorial jurisdiction,19 there is no reduction in the use of effect-based extraterritorial jurisdiction.20 On the contrary, it is on the rise in terms of the number of countries and the areas of law adopting the ‘effect doctrine’.21 This is clearly illustrated in the area of competition law, in which effect-based extraterritorial jurisdiction has received widespread acceptance in domestic legislation, including China’s AML 2008. It should be noted, however, that China has long embraced the ‘effect doctrine’, at least in part. Some of the early Chinese laws incorporated this doctrine. For instance, under the Criminal Code 1979,22 China has jurisdiction over foreign offences if the consequences occur within Chinese borders. Also, this doctrine was found in MEPA 1982 and the AML 2008. As the legal policy of more extraterritorial jurisdiction was adopted in 2019, more statutes – including amended statutes – incorporating the ‘effect doctrine’ have been enacted, for instance the amended Securities Act 2019,23 the Personal Information Protection Act 2021,24 the National Security Act 2015,25 the Cyber Security Act 2017,26 the 16

17

18

19

20 21

22

23

24

25

26

Roger P. Alford, ‘The Extraterritorial Application of Antitrust Laws: The United States and European Community Approaches’ (1992) 33 Virginia Journal of International Law, 1–50. A. V. Lowe, ‘The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution’ (1985) 34 International & Comparative Law Quarterly, 724–46; Deepa Rishikesh, ‘Extraterritoriality versus Sovereignty in International Antitrust Jurisdiction’ (1991) 33 World Competition, 33–66; James S. McNeill, ‘Extraterritorial Antitrust Jurisdiction: Continuing the Confusion in Policy, Law, and Jurisdiction’ (1998) 28 California Western International Law Journal, 425–58; Edward A. Rosic Jr., ‘The Use of Interest Analysis in the Extraterritorial Application of United States Antitrust Law’ (1983) 16 Cornell International Law Journal, 147–92. William Sugden, ‘Global Antitrust and the Evolution of an International Standard’ (2002) 35 Vanderbilt Journal of Transnational Law, 989–1020; Samuel F. Kava, ‘The Extraterritorial Application of the Sherman Anti-trust Act in the Age of Globalization: The Need to Amend the Foreign Trade Antitrust Improvements Act (FTAIA) & Vigorously Apply International Comity’ (2019) 15 Journal of Business & Technology Law, 135–63; Bernadette Zelger, ‘EU Competition Law and Extraterritorial Jurisdiction – A Critical Analysis of the ECJ’s Judgement in Intel’ (2020) 6 European Competition Journal, 613–27. Alford, ‘The Extraterritorial Application’, supra note 16; Austen L. Parrish, ‘The Effects Test: Extraterritoriality’s Fifth Business’ (2008) 61 Vanderbilt Law Review, 1455–1505; Small, ‘Managing Extraterritorial Jurisdictional Problems’, supra note 12; J. M. Grippando, ‘Declining to Exercise Extraterritorial Jurisdiction on Grounds of International Comity: An Illegitimate Extension of the Judicial Abstention Doctrine’ (1983) 23 Virginia Journal of International Law, 395. Dabbah, International and Comparative Competition Law, supra note 11, at 478. Mark R. Joelson, An International Antitrust Primer: A Guide to the Operation of the United States, European Union, and Other Key Competition Laws in the Global Economy, 4th ed. (Alphen aan den Rijn: Kluwer Law International, 2001). Criminal Law of the People’s Republic of China [中华人民共和国刑法], adopted at the Second Session of the Fifth National People’s Congress on 1 July 1979, Art. 6(3). Securities Law of the People’s Republic of China [中华人民共和国证券法], adopted at the Sixth Session of the Standing Committee of the Ninth National People’s Congress on 29 December 1998, revised for the second time at the 15th Session of the Standing Committee of the 13th National People’s Congress on 28 December 2019. Personal Data Information Law of the People’s Republic of China [中华人民共和国个人信息保护法], adopted at the 30th Session of the Standing Committee of the 13th National People’s Congress on 20 August 2021, Art. 3. National Security Law of the People’s Republic of China [中华人民共和国国家安全法], adopted at the 15th Session of the Standing Committee of the 12th National People’s Congress on 1 July 2015, Art. 15. Cybersecurity Law of the People’s Republic of China [中华人民共和国网络安全法], adopted at the 24th Session of the Standing Committee of the 12th National People’s Congress on 7 November 2016, Art. 15.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

184

Yongping Xiao and Lei Zhu

National Intelligence Act 201727 and the Regulation on Protecting the Security of Critical Information Infrastructure 2021.28 This chapter offers a critical examination of how effect-based extraterritorial jurisdiction is dealt with in China. It does not cover the criminal law area, in which extraterritorial jurisdiction is well established and the Chinese approach has been thoroughly discussed elsewhere.29 Also omitted from its scope are newly adopted laws after 2019 whose application remains to be seen, even though they have attracted much discussion.30 It instead focusses on three fields of law dealing with offensive maps, marine environment protection and anticompetition behaviour. These laws have been in force for a long period and Chinese executive authorities and courts have handled many cases in this regard. Therefore, they inform us of how Chinese executive authorities and courts exercise such effect-based extraterritorial jurisdiction in practice. This study attempts to evaluate the effectiveness of China’s approach to the effect-based extraterritorial jurisdiction doctrine and offer some insights into the future development of this significant area of Chinese law in relation to the international legal order. 9.2 REGULATION ON ‘OFFENSIVE’ MAPS

Mapping activities are subject to strict regulation in China. The Regulation on the Administration of Maps 201531 has a comprehensive and all-inclusive scope of coverage. All maprelated activities are under close scrutiny. The Regulation applies not only to the drawing and making of maps but also to other aspects of map activities, including publishing, display, publicizing, sale, import, export, carrying, posting and internet map services. Public maps must comply strictly with detailed and technical rules and standards.32 The Regulation is enforced through a prior ex ante authorization regime33 and ex post enforcement mechanisms, including penalties such as administrative warning, confiscation, fines, revocation of licence and even criminal liabilities.34 One particular category of unlawful mapping activities concerns public maps that do not indicate Chinese territory and borders accurately, particularly in respect of some disputed 27

28

29

30

31

32

33

34

National Intelligence Law of the People’s Republic of China [中华人民共和国国家情报法], adopted at the 28th Session of the Standing Committee of the 12th National People’s Congress on 27 June 2017, Art. 11. Regulations Protecting the Security of Critical Information Infrastructures [关键信息基础设施安全保护条例], adopted at the 133rd Executive Meeting of the State Council on 27 April 2021, Art. 5. See, for example, Sanzhuan Guo and Danielle Ireland-Piper, ‘China and Extraterritorial Criminal Jurisdiction’ in Danielle Ireland-Piper (ed.), Extraterritoriality in East Asia: Extraterritorial Criminal Jurisdiction in China, Japan, and South Korea, 48–77 (Cheltenham: Edward Elgar, 2021); Zhu Lijiang, ‘The Chinese Universal Jurisdiction Clause: How Far Can It Go?’ (2005) 52 Netherlands International Law Review, 85–107. See, for example, Robin Hui Huang, Charles Chao Wang, Yuqi Zhou and Sunny Xiyuan Li, ‘Extraterritorial Jurisdiction of China’s New Securities Law: Policies, Problems and Proposals’ (2022) 22(2) Journal of Corporate Law Studies, https://doi.org/10.1080/14735970.2022.2107147; Julia Zhu, ‘The Personal Information Protection Law: China’s Version of the GDPR?’, Bulletin of Columbia Journal of Transnational Law (14 February 2022), www .jtl.columbia.edu/bulletin-blog/the-personal-information-protection-law-chinas-version-of-the-gdpr. Regulation on the Administration of Maps [地图管理条例], State Council No. 66, issued on 11 November 2015, replaces Regulation on the Administration of Survey and Publishing of Maps [中华人民共和国地图编制出版管理 条例], State Council No. 180, 10 July 1995. Rules on the Representation of Public Maps [公开地图内容表示若干规定], issued by the State Bureau of Surveying and Mapping on 9 May 2003; Requirement for Representation of Public Maps [公开地图内容表示要求], National Standards of China GB/T 35764–2017, issued on 29 December 2017. Administrative Regulations on the Scrutiny of Maps [地图审核管理规定], Ministry of Land and Resources Order No. 34, issued on 23 June 2006, amended on 28 November 2017 and 16 July 2019. Ch. 7, Regulation on the Administration of Maps 2015.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

185

territorial areas.35 These maps include those that mark China’s Taiwan province as a state, omit certain territorial areas or misdraw Chinese borders. Misrepresentation itself is defined as illegitimate in breach of the law per se. The damaging effect of such conduct is presumed and is not deemed a constituent factor of the breach.36 They are defined as ‘damaging national unity, sovereignty and territorial integrity’ under the law. It must be pointed out that such misrepresentation of Chinese maps does not lead to physical loss of Chinese territory itself. What is at stake is the subjective conception of Chinese territory. Public maps are an object of high symbolic value as they are a representation of Chinese territory and borders, which lie at the very heart of national unity and sovereignty.37 Therefore, it is deemed ‘a matter of political nature’, and thus misrepresentation is ‘politically incorrect’, constituting an act offensive to ‘national dignity’. Such maps could be described as ‘offensive maps’.38 A literal reading of the Regulation suggests that as a general principle it mandates only territorial jurisdiction. Article 2 of the Regulation provides that it applies to mapping activities within China. This territorial approach is well-illustrated by the online map activities. The Regulation applies only to Chinese-based companies offering internet map services to the public, requiring that a licence be obtained and that the server be located within China.39 On the other hand, with regard to the display of Chinese maps online, enforcement measures are taken only when the internet content provider (ICP) is located in China.40 A recent administrative decision against a leading marking consulting company, Hua & Hua, provides a good example. In this case, the Bureau of Market Regulatory Administration in Shanghai imposed a fine of as much as RMB 1 million on Hua & Hua because the company used offensive maps in promotional materials in which Chinese borders were indicated inaccurately and certain territorial areas were missing.41 The local authority held that such activity constituted an act ‘damaging national dignity and interest’ under Article 9(4) of the Advertising Act 1994.42 However, it did not take any enforcement measures against the original source of the map, the shutterstock.com website, a leading provider of stock pictures based in the United States, where the ‘offensive’ map was downloaded. Numerous ‘offensive’ Chinese maps still exist on the website.43 35

36

37

38

39 40

41

42

43

The other two types of unlawful map include maps leaking confidential geo-information and maps without prior approval. Department of Natural Resources of Guizhou Province, Common Types of Unlawful Maps [“问题地图” 有哪些常见问题?]. https://zrzy.guizhou.gov.cn/wzgb/gzcy/cjwtzsk/202206/t20220602_74594407.html. Center for Technical Scrutiny of Public Maps is the body entrusted with the task of ex ante monitoring to ensure compliance. It published thirty-one selected cases for the period between 2007 and 2017 on its official website, and none of them discussed the issue of the effect of unlawful maps, www.zrzyst.cn/dtwfal/index.jhtml. Advice on Promoting Public Education on Conception of National Territory and Borders and Strengthening Enforcement on Map Markets [关于加强国家版图意识宣传教育和地图市场监管的意见], Guo Ban Fa [2005] No. 5, 22 January 2005. They are often labelled by public authorities as ‘unduly indicated maps’ (literally reading ‘problematic maps’). But in official documents the term ‘problematic maps’ is also used more loosely in reference to all types of unlawful mapping activities. Work Programme for a Full Scale Public Campaign against ‘Problematic Maps’ [全覆盖排查整 治“问题地图”专项行动工作方案], Issued by Ministry of Land and Resources and State Bureau of Surveying and Mapping, 21 August 2017, Guotu Zi Fa [2017] No. 99. Regulation on the Administration of Maps [地图管理条例], Art. 34. Center for Technical Scrutiny of Public Maps, Introduction to Scrutiny of Internet Map Services [互网地图监督工 作介绍], www.zrzyst.cn/hlwdtjd/448.jhtml. Decision of the Bureau for Administration for Market Regulation in the Jing’an District of Shanghai Municipality [上海市静安区市场监督管理局行政处罚决定书], Jing Shi Jian An Chu Zi [2017] No. 060201711018, 10 November 2017 (in Chinese). Another legal ground for enforcement is found in Art. 8(3) of the Regulation on the Administration of Maps 2015, which prohibits maps that damage national unity, sovereignty and territorial integrity. However, the maximum fine prescribed by the Regulation for such breach is RMB 100,000, accounting for only 10 per cent of that in the Advertising Act 1994. The website is blocked in China.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

186

Yongping Xiao and Lei Zhu

However, on closer examination, the Regulation indicates some kind of extraterritorial effect. China has consistently insisted on a ‘one China’ policy. If a foreign government or international organization were to treat China’s Taiwan province as a de facto nation in any form, it would receive protest from China.44 The Chinese government would take political and diplomatic measures to ensure that the Taiwan province is not treated as a sovereign state on the international stage.45 This may well be regarded as an example of extraterritorial application of Chinese law and policy in practice. Actually, there are several provisions in the Regulation that facilitate the exercise of extraterritorial jurisdiction. First, it directly prohibits the import and export of ‘offensive maps’.46 Such jurisdiction is territorial in nature because it regulates activities within China. However, the impact passes onto foreign territory via the global supply chain, though indirectly. Chinese importers and exporters have to make sure that their map products are in full compliance with Chinese law in their business with their foreign counterpart; otherwise, they will face penalties.47 Second, the Regulation has been applied to multinational companies, even though the conduct of using offensive Chinese maps took place outside Chinese territory. In recent years, a host of international corporations were caught using ‘offensive maps’ during, for example, displaying and selling T-shirts designed by the American clothing brand Gap in foreign markets.48 Regulating such activity could be regarded as extraterritorial because the conduct took place outside Chinese borders. In most cases, the uses of ‘offensive maps’ were redressed under public pressure, but without the enforcement measures.49 That is, these offensive activities often triggered widespread public outrage and condemnation in China after being exposed through social media platforms, and Chinese consumers and business partners initiated a ‘private’ boycott against the involved foreign companies. As a result, the foreign companies often ceased to use the ‘offensive maps’ since they found they could not afford the potential huge loss of market share. A recent noticeable development concerns foreign airline companies listing Taiwan, Hong Kong and Macau alongside other countries on their official websites, which may be seen as implicit treatment of these Chinese territories as sovereign states. The offensive content was found on the official websites of forty-four foreign airline operators, including some wellknown global names such as American Airlines, Delta, Cathy Pacific, British Airways and Lufthansa. The Civil Aviation Administration of China (CAAC) determined that this activity 44

45

46 47

48

49

The One-China Principle and the Taiwan Issue, released by the Taiwan Affairs Office and the Information Office of the State Council, 21 February 2002. English version available at www.china.org.cn/english/taiwan/7956.htm. The recent exclusion of Chinese Taiwan from the World Health Assembly (the decision-making body of the World Health Organization) offers a good illustration. See Statement by H. E. Ambassador CHEN Xu at the Plenary of the 74th World Health Assembly, 24 May 2021, www.mfa.gov.cn/ce/cegv/eng/tpxw/t1878211.htm. Regulation on the Administration of Maps [地图管理条例], Art. 24. On the official website of the Center for Technical Scrutiny of Public Maps, thirty-one cases were published where unlawful mapping activities were sanctioned by public authorities between 2007 and 2017. Among them, five cases involved China-based companies exporting or importing offensive maps. www.zrzyst.cn/dtwfal/index.jhtml. Such activity is punishable as a criminal offence. In 2018, an individual was sentenced to 10 months in prison for exporting 19,084 copies of offensive maps to Germany by the Intermediate People’s Court in Zhengzhou in central China after these maps were seized by the customs. Chen Jun and Lu Zhen, ‘Twenty Thousand Offensive Maps Trying to Sneak Out of China, Are Confiscated and Destroyed by Customs in Zhenzhou and Owners Are Sentenced to Prison [2万张“问题地图”想要偷偷溜出国被郑州海关查获后销毁,涉事货主被判刑]’, Dahe Newspaper [大河报] (17 January 2019), AI (15). ‘Accused of Cutting Down on Chinese Mapping, GAP Apologizes and Withdraws All the T-Shirts [被网友举报T恤 “删减”中国地图 GAP道歉: 从中国市场撤回并销毁]’ (15 May 2018), www.guancha.cn/politics/2018_05_15_456863 .shtml. Linda Radzik, ‘Boycotts and the Social Enforcement of Justice’ (2017) 34 Social Philosophy and Policy, 102–22, 102.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

187

was in breach of Chinese law and in violation of the ‘one China’ policy, and thus issued a notice requiring immediate corrective measures to be taken.50 Accordingly, the relevant airline operators modified their official websites. It is an instance of extraterritorial jurisdiction in two respects. The websites were designed and maintained by the headquarters of these companies abroad,51 a foreign legal entity, rather than their Chinese representative offices, which had no control over the offensive conduct. The offensive content was stored in servers located outside China. It is not surprising that the CAAC decision came under heavy criticism from the US government, which raised strong concerns because the measure was applicable to American airlines.52 However, in this case it is extremely difficult to draw the line of demarcation between territoriality and extraterritoriality. China did have some territorial connections with the case. These foreign airlines have representative offices located in China and operate international flights to and from Chinese airports. Thus, it may be rightly categorized as territorial extension of Chinese jurisdiction, a term coined by Professor Joanne Scott.53 Meanwhile, the case has a global dimension. Multinational corporations operate on a global basis under the same brand name through internal coordination, control and management, even though it may consist of separate and independent legal personalities from different jurisdictions.54 Also, the offensive content is displayed on the Internet and could be accessed and viewed by visitors all over the world. Unfortunately, the CAAC decision is extremely brief, providing no legal reasoning. It remains to be seen whether this is a stand-alone decision or whether more will follow a similar approach in the future. 9.3 THE EFFECT DOCTRINE IN MEPA

Many environmental problems, such as air, water and marine pollution and climate change, have a truly transboundary nature, where events occurring in one state may cause damage in other jurisdictions. However, in environmental law, the general approach is to address global environmental issues through bilateral and multilateral cooperation.55 Unilateral assertion of extraterritorial jurisdiction over foreign conduct is not the norm but the exception, and it is often contested by other states. Chinese environmental law is no different. Chinese laws, as a rule, embrace the principle of territorial jurisdiction instead of extraterritorial jurisdiction.56 Perhaps the sole exception is found in MEPA 1982, which incorporates the ‘effect doctrine’. Article 2(3) of MEPA provides 50

51

52

53

54

55

56

Notice Requesting Foreign Airliners to Carry Out an Immediate Self-Check of Websites and Other Marketing Channels [关于要求外航立即开展网站等宣传途径自查的通知], issued by the CAAC, 13 January 2018, www .caac.gov.cn/XXGK/XXGK/TZTG/201801/t20180113_48647.html#. Although the decision was addressed to the representative office of foreign airliners, it is doubtful that they played any role in the practice. Daniel Shane, ‘White House Calls China’s Warning to Airlines “Orwellian Nonsense”’, CNN News (6 May 2018), https://money.cnn.com/2018/05/05/news/companies/white-house-response-china-warning-taiwan/index.html. Joanne Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 American Journal of Comparative Law, 87–126. John Armour, Henry Hansmann, Reinier Kraakman and Mariana Pargendler, ‘What Is Corporate Law?’ in Reinier Kraakman et al. (eds.), The Anatomy of Corporate Law: A Comparative and Functional Approach, 3rd ed., 1–28 (Oxford: Oxford University Press, 2017), at 1–19. Eckhard Rehbinder, ‘Extra-Territoriality of Pollution Control Laws from a European Perspective, Beyond Territoriality’ in Gunther Handl, Joachim Zekoll and Peer Zumbansen (eds.), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization, 125–62 (Martinus Nijhoff, 2012). Environment Protection Act [中华人民共和国环境保护法], Art. 3; Water Pollution Prevention and Control Act [中 华人民共和国水污染防治法], Art. 2.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

188

Yongping Xiao and Lei Zhu

that it applies to activities that occur in marine areas beyond Chinese jurisdiction but cause pollution within it. It has been widely regarded as an example of extraterritorial jurisdiction by Chinese scholars.57 China is not alone in this respect; Iceland,58 the United States59 and the European Union (EU)60 have similar legislation in place claiming extraterritorial jurisdiction in the area of marine environment protection. This extraterritorial clause was first introduced into the law in 1982 and has remained unchanged in the following three amendments. It has been forty years since its adoption, and it would be a meaningful exercise to examine how it was applied and enforced in practice. From a literal reading of the text, it brings under Chinese jurisdiction foreign marine polluting activities wherever they occur.61 Assertion of such extraterritorial jurisdiction may have far-reaching implications. The reason is that, as the basic and fundamental law for marine environment protection, MEPA establishes a comprehensive regime, covering all types of marine pollution originating from different sources and also marine ecology protection, and mandates ex ante preventive measures and ex post mitigation and enforcement mechanisms. However, Article 2(3) cannot be read in isolation but must be interpreted and applied in conjunction with the United Nations Convention on the Law of the Sea (UNCLOS), to which China has been a contracting state since 1996. As the most fundamental international instrument on the law of the sea, UNCLOS has important jurisdictional allocation functions.62 China must act within the limits and constraints set out by the UNCLOS regime. One of the most important contributions of UNCLOS is to divide the oceans into different categories of areas, including internal waters, the territorial sea, the contiguous zone, exclusive economic zones and the high seas. As a general principle, UNCLOS provides that pollution activities within these areas are subject to the territorial jurisdiction of the respective source states rather than to the extraterritorial jurisdiction of the victim states. Pollution from land-based sources, from seabed activities, by dumping and pollution from or through the atmosphere are subject to the territorial jurisdiction of the source state.63 China’s exercise of extraterritorial jurisdiction over polluting activities originating from ocean areas under the jurisdiction of other states would be incompatible with UNCLOS and therefore in breach of its international contracted obligations. This explains why, despite rules governing the aforementioned polluting activities covered by Chapters 4 to 7 of MEPA, these have not been applied extraterritorially in the forty-year span since the law came into force. Indeed, there is no publicly available data reporting that extraterritorial enforcement activities against such pollution have ever been undertaken. Japan’s high-profile action to discharge nuclear-contaminated water into the Pacific Ocean offers a good example.64 It poses a significant risk to the global marine environment and human 57

58 59 60

61

62

63 64

See, for example, Chen Quansheng and Zhu Chongshi (eds.), Environmental Law [环境法] (Fujian: Xiamen University Press, 2013), 202; Li Kerong and Xie Jun’an (eds.), Environmental Law [环境法学] (Wuhan: Hebei People’s Press, 2007), 193; Ma Yingjie (ed.), Introduction to Marine Environmental Protection Law [海洋环境保护法 概论] (Beijing: China Ocean Press, 2012), 26. Act No. 33/2004 On Marine and Coastal Antipollution Measures. The Act to Prevent Pollution from Ships (APPS). Parliament and Council (EU) Reg. 2015/757 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC [2015] OJ L 123/55. Zhang Haoruo and Bian Yaowu, Commentary on the Marine Environmental Protection Act [中华人民共和国海洋环 境保护法释义] (Beijing: Law Press, 2000). The text of the book is available at www.npc.gov.cn/npc/c2174/200108/ e3f6761ef09c41ed94207a50c879b553.shtml. Daniel Bodansky, ‘Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond’ (1991) 18 Ecology Law Quarterly, 719–77. The Treaty lays down the jurisdiction rules with respect to each source of marine pollution in Arts. 207–12. Robin Harding, ‘Japan Plans to Release Fukushima Water into Pacific Ocean’, Financial Times (16 October 2020), www.ft.com/content/f6e454ef-1b3c-4dda-8c3b-c4cc2e9669a9.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

189

health and has sparked strong controversy and debate. Although it received support from the US government and the International Atomic Energy Agency (IAEA),65 it was heavily criticized by various stakeholders at both domestic and international levels, particularly its neighbouring countries China and South Korea.66 Several scholars have suggested that the release of radioactive water may well be incompatible with international law.67 Moreover, it may also fall within the scope of Article 2 of MEPA as such conduct is very likely to cause damage to oceans under Chinese jurisdiction in consideration of its potential release into the ocean area adjacent to the East China Sea. However, no Chinese scholar or public authority has argued that China should exercise extraterritorial jurisdiction over such conduct.68 In terms of vessel-source pollution, the flag states have primary jurisdiction under the UNCLOS regime. Extraterritorial jurisdiction over vessel-source pollution, under UNCLOS, is allowed to be exercised in limited circumstances.69 Under Article 218 of UNCLOS, China, as a port state, may exercise jurisdiction against vessels in respect of discharge outside national maritime zones. There are several constraints on such jurisdiction. First, it is limited to enforcement jurisdiction and does not include legislative jurisdiction, which is held exclusively by the flag state of the vessel.70 Thus, it would be incompatible with UNCLOS for China to set up pollution preventive zones on the high seas and to prescribe ex ante preventive rules and standards. China has not made any such move yet.71 Second, the exercise of such jurisdiction is conditional on the voluntary appearance of the vessel within its port before the port state may investigate whether or not the vessel has discharged pollutants on the high seas. However, no case has been reported in which China has actually exercised such types of jurisdictional prerogative so far.72

65

66

67

68

69 70

71

72

Ibid. International Atomic Energy Agency, ‘IAEA Ready to Support Japan on Fukushima Water Disposal, Director General Grossi Says’ (13 April 2021), https://bit.ly/44hcpUr. See, for example, Zhong Sheng, ‘Japan Severely Breaches Obligations under International Law by Persisting in Discharge of Nuclear-Contaminated Water into Ocean’, People’s Daily Online (15 April 2022), http://en.people.cn /n3/2022/0415/c90000-10084515.html; Cristina Tuser, ‘South Korea Brings Fukushima Wastewater Issue to London Convention Meeting’, Water and Wastes Digest (11 October 2019), https://bit.ly/45eCtRb. Ruoying Li and Shuang Lyu, ‘Applying the Precautionary Principle to Fukushima Nuclear Wastewater Disposal at Sea’ (2022) 31 Review of European, Comparative & International Environmental Law, 1–13; Youngmin SEO, ‘The Marine Environmental Turn in the Law of the Sea and Fukushima Wastewater’ (2021) 45 Fordham International Law Journal, 51–104, 51. Zhao Manfeng, ‘Japan Harms Global Community by Dumping Nuclear Waste into Sea’, China Daily (13 April 2021), https://global.chinadaily.com.cn/a/202104/13/WS607537eca31024ad0bab5332.html. Bodansky, ‘Protecting the Marine Environment’, supra note 62. Three different types of jurisdiction can be distinguished: (a) the jurisdiction to prescribe, that is, the authority of a state to make law applicable to persons, property or conduct; (b) the jurisdiction to adjudicate, that is, the authority of a state to apply law to persons or things, in particular through the processes of its courts or administrative tribunals; and (c) the jurisdiction to enforce, that is, the authority of a state to exercise its power to compel compliance with law. Restatement (Fourth) of Foreign Relations Law, s. 401 (2018). In the recent M/V ‘Norstar’ case, the International Tribunal of the Sea held, in 2019, that the exclusive jurisdiction of the flag state extends to legislative jurisdiction as well as enforcement jurisdiction. Such an approach would be inconsistent with the precedent set by the Lotus case and also overly expansive. M/V ‘Norstar’ Case (Pan. v It.), ITLOS Case No. 25, Preliminary Objections Judgment of 4 November 2016; Cameron Miles, ‘The MV “Norstar” Case (Panama v Italy)’ (2020) 114 American Journal of International Law, 116–23. This is very different from the approach adopted by Canada in 1970. D. M. McRae, ‘Arctic Waters and Canadian Sovereignty’ (1983) 38 International Journal, 476–92. This is different from the US practice, where this jurisdiction has been actively exercised. See Emily C. Hall and Bryan J. O’Neill, ‘Pollution on the High Seas: From Jurisdiction to Enforcement and All of the Moving Parts in Between’ (2016) 15 Loyola Maritime Law Journal, 375–424.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

190

Yongping Xiao and Lei Zhu

Another potential ground for extraterritorial jurisdiction is found in Article 221 of UNCLOS dealing with oil spills resulting from maritime casualties73 occurring on the high seas, which has two aspects. The first is concerned with public enforcement, which allows public authorities to take and enforce necessary and proportionate measures to mitigate pollution following such casualties. This is implemented through Article 71 of MEPA, which closely mirrors the language of Article 221 of UNCLOS. The second is concerned with civil compensation resulting from such casualties. An international regime has developed, consisting of a series of international conventions dealing with liability and compensation under the auspices of the International Maritime Organization, which are adopted by leading maritime nations. On the other hand, the United States has opted out in favour of a unilateral approach by enacting and enforcing its national law to impose higher standards of compensation for victims.74 This may open a back door for domestic legislation to apply extraterritorially. China has not done so yet, and the prospect of doing so in the near future is slim. Instead, it has adopted a multilateral approach by joining the two major conventions addressing liability and compensation, the International Convention on Civil Liability for Oil Pollution Damage and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. In the forty years that have elapsed since MEPA came into force, occasions when extraterritorial jurisdiction was exercised under Article 2(3) have been few and far between. Two maritime casualties occurred on the high seas and caused damage to coastal waters in 1976 and 1984, respectively, in response to which clean-up measures were imposed by public authorities, and damages were awarded by courts in China against the ship owners.75 Both these accidents occurred before UNCLOS came into force. Then UNCLOS significantly expanded the sea areas under national jurisdictions to include not only internal waters and the territorial sea but also the contiguous zone and the exclusive economic zone. China adopted legislation in 1996 asserting jurisdiction over the exclusive economic zone and the continental shelf.76 As a consequence, the likelihood of such casualties occurring outside Chinese jurisdiction has been considerably reduced, along with the need to resort to extraterritorial jurisdiction. This would be the very case for the aforementioned two maritime casualties. Another practical factor that has to be taken into account is that the area adjacent to marine areas under Chinese jurisdiction is not high seas but mostly exclusive economic zones of other states.77 These areas provide a buffer zone for maritime pollution. Moreover, they create further practical hurdles for exercising enforcement jurisdiction because prior consent must be obtained from these states before China can undertake enforcement measures.

73

74

75

76

77

Art. 221(2) UNCLOS defines maritime casualty as ‘a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo’. This is the approach adopted by the United States. Inho Kim, ‘A Comparison Between the International and US Regimes Regulating Oil Pollution Liability and Compensation’ (2003) 27 Marine Policy, 265–79. Zhou Jun, ‘On the Jurisdiction of Marine Environment Protection Act [我国海洋环保法的管辖权]’ (1987) 5 Jurist [法学家], 61–2; Chen Zhenguo, ‘Jurisdiction over Marine Pollution Beyond Chinese Territorial Sea – Case Comment on the Sea Carrier Case [从“海利“号案看我国对领海外的海域污染损害的管辖权]’ (1988) 31(3) Journal of Ocean and Costal Development [海洋开发与管理], 29–33, 31. The Exclusive Economic Zone and the Continental Shelf Act [中华人民共和国专属经济区和大陆架法], promulgated by the NPC on 26 June 1998. The only exception is found in the case of the Taiwan province of China.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

191

9.4 THE EFFECT DOCTRINE UNDER THE AML

The AML 2007 is the first statute concerning economic regulation that allows extraterritorial jurisdiction. Article 2 of AML incorporates the effect doctrine, providing that ‘this law applies to monopoly behaviours that take place outside China but have anti-competitive effect on Chinese market’. It has been thirteen years since it came into force in 2008. This sufficiently long period has given China the opportunity to put the law into practice by enforcing extraterritorial jurisdiction in three areas of AML: including anti-competition agreement, abuse of dominant position and merger control. There have been some high-profile and even controversial cases. This area offers a rare example of a case study for evaluating Chinese practice and a window providing a view of what may lie ahead. 9.4.1 Public Enforcement Against Anti-competitive Conduct There have been only five cases involving public enforcement against international anticompetitive behaviour in China, three of which were against international cartels and two of which dealt with abuse of dominant position. Given the continued widespread existence of cartels in the global markets78 into which China is increasingly integrated, this seems to be the tip of the iceberg in relation to the impact of international cartels on the Chinese market. The reason for this may lie in the lack of experience and enforcement capacity of Chinese authorities in this relatively new area of law.79 In these five cases, the anti-competitive effect of anti-competitive conduct has been taken into account by the Chinese authorities. However, jurisdiction is not based on the ‘effect doctrine’ but rather on other arguably more traditional territorial nexus. First, the doctrine of the single economic entity80 was adopted in the Tetra Pak case.81 Tetra Pak is a multinational company that is a leading provider of food processing and packaging technology and products. It was fined by the State Administration for Industry and Commerce (SAIC) in 2016 for abuse of dominant position through tie-in and royalty rebate involving six corporations of the group that are incorporated and registered in three jurisdictions, namely, Switzerland, the Hong Kong Special Autonomous Region and mainland China. Although they all have separate legal personalities, they do not act independently but rather jointly through internal control and coordination within the group.82 As pointed out by the SAIC, the corporate headquarters in Switzerland adopted the anti-competitive commercial policy, which was then carried out by its 78 79

80

81 82

See, for example, the OECD International Cartels Database, qdd.oecd.org/subject.aspx?Subject=OECD_HIC. Qi Yudong, ‘Issues in the Enforcement of Chinese Anti-Monopoly Law [中国反垄断执法中的问题与政策建议]’ (2013) 11 Chinese Journal of Price [中国物价], 26–8. The ‘single economic entity’ test was first developed by the Court of Justice of the EU in the Dyestuffs case in 1972, which held that if the subsidiaries did ‘not enjoy real autonomy in determining their course of action in the market’, their conduct and actions were attributed to the parent company with which they formed an economic unit. Case 48/ 69 Imperial Chemical Industries Ltd v. Commission [1972] ECR 619. Decision of the State Administration for Industry and Commerce, Gong Shang Jing Zheng An Zi [2016] No. 1. This case is in stark contrast to the decision against Eastman for exclusive dealing. In the Eastman case, the transaction was conducted by the Chinese subsidiary company in the name of the headquarter corporation domiciled in Texas. However, apart from some formalities check over the sales policy adopted by the Chinese subsidiary, the headquarter corporation did not involve itself directly in sales in the Chinese market. The anticompetition conduct was attributed to the Chinese company alone. Therefore, the decisive factor is the internal structure of control and management within the group. It is the nature of joint action that brings independent legal persons under the same roof as one single entity under the notion of single economic entity. Decision of the Bureau for Administration for Market Regulation in Shanghai Municipality, Hu Shi Jian An Chu Zi [2019] No. 000201710047.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

192

Yongping Xiao and Lei Zhu

Chinese subsidiary corporations.83 In the decision, they were treated as one single entity without distinction by the SAIC in respect of the roles played by each individual company and the fines imposed. While jurisdiction is exercised over legal persons domiciled within China, making it territorial in nature, it does have exterritorial reach as it extends over entities domiciled outside China. Another major tool is the so-called implementation doctrine.84 It first found its way into the LCD panel cartel case in 2013.85 The pricing-fixing conspiracy had global dimensions and was fined across several jurisdictions, including the United States, the EU, Japan and South Korea. China’s jurisdiction over the cartel is strongly justified under the ‘effect doctrine’. Although it was agreed outside China between six foreign manufacturers, it had major repercussions on the Chinese market: more than 5 million panels were sold on the Chinese market at an inflated price, generating cartel revenue of more than CNY 200 million. The cartel operated in 2001–6 before the AML came into effect, in 2008, rendering it inapplicable. Instead, it was covered by Article 14(1) of the Price Act 1997, which contains a similar rule on price fixing and manipulation. However, in contrast to the AML, the Price Act 1997 does not adopt the effect doctrine but instead contains a territorial jurisdiction clause; Article 2 of the Act provides that it regulates only price behaviour that occurs within China. To resolve this difficulty, the implementation doctrine was adopted by the National Development and Reform Commission, which pointed out that the products were sold in mainland China at a fixed and coordinated price in the following statement: ‘When selling the LCD panels in mainland China, the undertakings involved manipulated market price based on the price fixed at the crystal meetings and other information exchange thereon, causing harm to the rights and interest of other undertakings and consumers.’86 The key issue is how price behaviour is interpreted. It essentially expanded the concept of price behaviour to include not only the act of determining the price but also the execution of the price through transactions. Both are constituent elements of price behaviour. It is the latter component that has become the decisive factor in establishing jurisdiction. In the LCD panel cartel case, the conduct of implementation of the price conspiracy occurred in the Chinese market, providing the ground for territorial jurisdiction as prescribed in Article 2 of the Price Act. The implementation doctrine was also adopted in the context of the AML. This is evident in the Maritime car carrier services (roll-on and roll-off shipping service) cartel case in 2015.87 The price-fixing conspiracy lasted for nine years, from 2008 to 2012, among six Japanese and two Chilean operators. The scheme had global dimensions, and the cartelists were fined by competition authorities in many jurisdictions, including the United States, the EU, Australia, Japan, South Korea, South Africa and Mexico. The Chinese decision focussed only on the part of the 83

84

85

86 87

Decision of the State Administration for Industry and Commerce, Gong Shang Jing Zheng An Zi [2016] No. 1. pp. 2–3. The implementation doctrine was first developed by the Court of Justice of the EU in the Wood Pulp case in 1988, which held that for jurisdiction to be established the decisive factor is the place where the restrictive conduct is implemented. Case 89/85 Ahlstro¨m Osakeyhtio¨ and Others v. Commission [1994] ECR I I-1307. The full text of the decision was not published. A short press release and answers to journalists’ questions were published in its official journal. Price Supervision Bureau of the National Development and Reform Commission, ‘Six Foreign Enterprises Fined for Price Fixing [六家境外企业实施液晶面板价格垄断被依法查处]’ (2013) (1) China Price Supervision and Check [中国价格监督检查], 23; Price Supervision Bureau of the National Development and Reform Commission, ‘Staff in Charge from the National Development and Reform Commission Replies to Journalist’s Questions [国家发展改革委有关负责人就液晶面板价格垄断案答记者问]’ (2013) (1) China Price Supervision and Check [中国价格监督检查], 23–4. Price Supervision Bureau, ‘Six Foreign Enterprises’, supra note 85. Decisions of the National Development and Reform Commission [2015] Nos. 2–8.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

193

cartel involving the Chinese market, that is, the international shipping routes between China and Europe and North America and some domestic coastal routes within China. This segment of the cartel must have been implemented in China regardless of where it originated, thus justifying the exercise of territorial jurisdiction.88 This approach is also reflected in the decision against Qualcomm made in 2015 for abuse of its dominant position through tying and bundling when licensing its standard essential patents (SEPs) in the electronic communications sector. The Chinese authority’s investigation focussed on the licensing practice for wireless devices manufactured and sold in China.89 A substantial part of such licensing practice occurred in China. The patents in question have been registered in China and protected under Chinese law. Licensing agreements were executed in China, under which Chinese manufacturers obtained the technological know-how and used it in their products while Qualcomm collected royalties. In summary, China has based its jurisdiction on the implementation doctrine and the doctrine of single economic entity, which may be deemed equivalent to the effect doctrine. They provide the legal tool enabling the exercise of extraterritorial jurisdiction. Jurisdiction is based on conduct or legal entity located within China, which serves as a connecting factor. Therefore, this is in nature territorial jurisdiction. However, the practical effect of such jurisdiction goes beyond Chinese borders. These connecting factors act as an anchor through which the net of Chinese law reaches beyond Chinese borders to ‘catch’ conducts and entities in other countries. 9.4.2 The Effect Doctrine and Merger Control Another area of public enforcement is merger control, in which the effect doctrine and extraterritoriality manifest themselves differently from those in the case of anti-competitive behaviour. In merger control, market competition has not actually been damaged, hence the notion of potential anti-competitive effect under Article 3 of the AML.90 The concern is that certain forms of market concentration may alter the structure of market competition, which should be prevented in the first place. It is ex ante regulation in nature and undertakings are required to file notifications before executing the merger deal. Concentration with potential anti-competition effect will be prohibited or approved, with conditions to mitigate such an effect. Through the mandatory prior notification mechanism, the Chinese authorities can review a host of merger transactions and, by doing so, acquire much-needed experience and expertise. Among these investigated transactions, seventy-two were international mergers, sixty-nine were approved with conditions and three were prohibited.91 This is one of the few areas where the Chinese authorities have frequently exercised the jurisdiction. The merger review procedure will be triggered when the market turnover value reaches the prescribed threshold of RMB 400 million on the Chinese market.92 The sheer volume of such scale indicates that the undertakings involved in the merger have a strong commercial presence 88

89 90 91

92

This case is very similar with three judgments decided by US courts involving the maritime sector: United States v. Hamburg-Amerikanische Packet-Fahrt-Actien-Gesellschaft, 200 F. 806 (C.C.S.D.N.Y. 1911); United States v. Pacific & Arctic Ry & Nav. Co., 228 U.S. 87 (1913), 228 U.S. 87; Thomsen v. Cayser, 243 U.S. 66 (1917). Decisions of the National Development and Reform Commission, Fa Gai Ban Jia Jian Chufa [2015] No. 1. Arts. 3 and 28, AML. These decisions are published on the official website of the Anti-Monopoly Bureau of State Administration for Market Regulation and its predecessor, the Anti-Monopoly Bureau of Ministry of Commerce; www.samr.gov.cn/fldj/ tzgg/ftjpz/; http://fldj.mofcom.gov.cn/article/ztxx/. Regulation on the Threshold Criteria for Notification of Concentration of Undertakings [国务院关于经营者集中 申报标准的规定], State Council Order No. 529, issued on 3 August 2008, Art. 2.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

194

Yongping Xiao and Lei Zhu

and constitute a significant part of the Chinese market. Meanwhile, the geographical scope of the ‘Chinese market’ is so defined as to require that the buyer of the goods or services be located in China. By referring to the location of the buyer rather than that of the seller, this ensures that the products and services are traded on the Chinese market. The combination of these two factors signifies that the potential impact on competition in the Chinese market is significant and substantial. The jurisdictional implication of such a regime is that it does not distinguish between domestic and foreign mergers, which are both treated alike and subject to the same standard of review. In fact, territorial jurisdictional nexus, such as the place of the merger transaction, the place of incorporation, the place of principal business operation and the place of business establishment (including subsidiaries), are not taken into account. Under the traditional criterion for determining territoriality, that is, the place where the merger transaction takes places, two different types of jurisdiction can be distinguished.93 Pure domestic merger falls within the ambit of territorial jurisdiction, which may be stretched further to cover transnational merger in which one firm involved has its seat in China and part of the transaction took place within China. On the other hand, jurisdiction over foreign mergers wherein all the companies involved have their seats in foreign states must be characterized as extraterritorial in nature, based solely on the effect of the merger transaction on the Chinese domestic market. In merger control, asserting jurisdiction on the ground of turnover value of the transaction has gained widespread acceptance, having been adopted by major competition legal regimes around the world, such as those of the United States, the EU, Canada and Australia. This may lead to the overlap of jurisdictions and even conflicting results. In practice, the same transnational merger is often subject to scrutiny from several jurisdictions, resulting in an increase in transactional costs and burdens to the parties and also conflicting decisions.94 The recent P3 Network shipping alliance case is illuminating. The proposed transaction would have created a long-term vesselsharing agreement in the form of limited liability partnership registered in England, among Denmark’s AP Møller-Maersk A/S (Maersk Line), Switzerland’s Mediterranean Shipping Company (MSC) and France’s CMA CGM. Although the transactions received approval from the United States and the EU,95 it was blocked by China’s Ministry of Commerce (MOFCOM).96 A recent notable development aimed at mitigating such conflict is the signing of a Practical Guidance for Cooperation on Reviewing Merger Cases between EU and China in 2015, which establishes communication and coordination mechanisms between the two jurisdictions.97 The document is brief, containing only ten articles in general and abstract terms, and there is no publicly available information regarding how it has been applied in practice. Nevertheless, it is a development in the right direction. In practice, it has become increasingly difficult to draw the line of demarcation between territorial and exterritorial jurisdiction given the high degree of integration reached by the global economy. For example, in the recent proposed merger between Huya and Douyu, both entities were incorporated in the Cayman Islands (as offshore shell companies) with stocks traded on the New York Stock Exchange and the NASDAQ (National Association of Securities Dealers 93

94

95 96 97

Katri Paas-Mohando, ‘Extraterritorial Merger Control Enforcement in Small Economies – Challenges and Possibilities’ (2014) 21 Juridica International, 137–46. Duy D. Pham, ‘Resolving Conflicts in International Merger Reviews through Merger Remedies’ (2016) 39 World Competition, 267–89. BBC News, ‘China Rejects Shipping Alliance’ (18 June 2014), www.bbc.com/news/business-27898675. Maersk/MSC/CMA CGM. Notice of MOFCOM [2014] No. 46, 16 June 2014. English version available at ec.europa.eu/competition/international/bilateral/practical_guidance_mofcom_en.pdf.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

195

Automated Quotations Stock Market, also based in New York).98 However, they are owned and controlled by Chinese companies and individuals and operate mainly in the Chinese market. Their main business, online video live streaming service, is carried out in the Chinese language and their users are located mainly in China. This makes it very difficult, or even impossible, to identify precisely where the merger transaction took place. This may well suggest that the distinction between territorial and extraterritorial jurisdictions may be superfluous as it glosses over the true realities of a globally integrated commercial world. 9.4.3 Extraterritoriality and Transnational Competition Litigation Article 50 of the AML sets up a private enforcement mechanism that provides that undertakings engaging in anti-competitive conduct and causing harm to others shall assume civil liability. This provides the basis for private parties to file civil litigation before the court to seek redress from anti-competitive conduct, including such activities as took place abroad. In transnational competition litigation, the Chinese AML applies as mandatory rules directly circumventing the usual choice of law process under private international law.99 It is in this framework that the issue of extraterritorial jurisdiction is addressed in transnational civil litigation in China. This issue largely remains unaddressed because transnational competition cases are still few, and currently most of them have been disposed of at the jurisdictional stage or are still pending. There has been only one case in which the court rendered a final judgment, the Huawei v. Inter Digital judgment, in 2013.100 The Guangdong High People’s Court (HPC) found that Inter Digital, a Delaware-based multinational telecommunication operator, breached the fair, reasonable and non-discriminatory (FRAND) principle in its patent licensing practice through overcharging of SEPs, and awarded Huawei RMB 20 million as compensation. This case represents the first time that a Chinese court has relied on the effect doctrine to assert extraterritorial jurisdiction of Chinese law. It also received the SPC’s endorsement by being selected as one of the ten cases that best showcase Chinese judicial practice based on the AML in its first ten years (2008–18).101 In applying Article 2 of the AML, the Guangdong HPC follows a two-step process. First, it must ascertain the location of the alleged anti-competitive conduct. If it took place within Chinese territory, then territorial jurisdiction applies. Second, if the conduct took place outside China, it must investigate whether it produces an anti-competition effect on the Chinese market, that is, the location of the effect. This seems easy and straightforward. But, as this case demonstrates, it involves painstaking and complicated fact gathering and legal construction. The judgment of the court shows a lack of intellectual vigour and appreciation of the issues involved. Although patent is an invisible intellectual property right created by the law, the court was able to localize it through the principle of territoriality of patent right, which played a key role in its judgment. The court pointed out that the very existence and territorial scope of patent is determined by the law that creates such a right. Although the content of technological know-how 98

99

100

101

For the full text of the decision, see State Administration for Market Regulation, www.samr.gov.cn/jzxts/tzgg/ftjpz/ 202107/t20210708_332421.html. Act on Choice of Law for Foreign-Related Civil Relationships [中华人民共和国涉外民事关系法律适用法], adopted at the 17th Session of the 11th National People’s Congress on 28 October 2010, Art. 4. Huawei Technologies Co. Ltd v. Inter Digital Technology Corporation, Guangdong High People’s Court (2013), Yue Gao Fa Min San Zhong No. 306. ‘Selected Top 10 Anti-Monopoly Civil Litigation 2008–2018 [2008–2018年中国法院反垄断民事诉讼10大案件案情 简介]’, issued by the Intellectual Property Division of the SPC on 16 November 2018, www.chinacourt.org/article/ detail/2018/11/id/3577648.shtml.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

196

Yongping Xiao and Lei Zhu

is largely the same across jurisdictions, patent rights are independent and distinct from each other. They are not competitive or substitutes for each other. In other words, patent rights are strictly territorial, the boundaries of which are neatly in line with the territorial border of each state granting such right. Consequently, the court defined China and the United States as two independent and separate geographical markets for patent licensing. This has become the decisive factor in the determination of territorial/extraterritorial jurisdiction of the AML. Its reasoning reads as follows: Inter Digital owes SEPs in 3G mobile communication technology in China and the US respectively. With regards to its licensing practice of Chinese patent, the exercise of such right and abusive conducts all took place within Chinese borders, thus fall within the regulatory scope of AML. Its licensing product of its US patent may directly cause significant, substantial and reasonably foreseeable anti-competition effect upon Huawei and other domestic undertakings in terms of their production activities in China, export opportunities, and export trade.102

In essence, the Guangdong HPC was of the opinion that the territoriality of the abusive conduct corresponded neatly to that of the patent right. This delimitation is arbitrary and ignores the commercial reality of global patent licensing practice. Both parties are multinational companies operating on a global basis. Patents were licensed on a global basis as a package consisting of patents valid for all jurisdictions. The alleged overcharging practice took place during the negotiations, bargaining and communications between the parties, which was a continuing process consisting of a series of events across borders. It is impossible to define precisely where exactly territorial jurisdiction ends and extraterritorial jurisdiction begins. In addition, this case also raises the question of whether the abusive conduct produces an anticompetitive effect on the Chinese market, that is, the location of the effect. The preliminary question is how the effect itself is defined in the first place. In the ruling, the effect was defined by the court as harm to competitors. The Guangdong HPC found that Inter Digital was not only overcharging Huawei for its patent but also being discriminatory in that it was charging much more than it charged its competitors such as Apple and Samsung. It held that this would lead to an increase in the cost of production and a decrease in profits, eroding the competitiveness of Huawei and perhaps even driving it out of the market. This type of harm occurs where Huawei is headquartered, which is in China. This will enable China to assert extraterritorial jurisdiction over Inter Digital’s global patent licensing practices because they all cause harm to Huawei’s competitiveness. However, if we look at the issue through the lens of consumer welfare, it is different.103 The patent licensing fee will be passed on to consumers buying the final telecommunication products, making them the ultimate victim of the abusive patent practice. The country where consumer welfare is impacted will correspond to the territoriality of the patent. With regard to US patents, they are protected only in the United States and not in China; only if the products are exported to the United States would they require licensing from the US patent owner. Although products that incorporated the US patent are manufactured in China, they will be transported to the United States and then distributed and sold on the US market. Therefore, the alleged abusive licensing practice of US patent affects only US consumers, not consumers on the Chinese market, rendering the AML inapplicable.104 In conclusion, under the consumer 102 103 104

Huawei v. Inter Digital, supra note 100. Eleanor M. Fox, ‘We Protect Competition, You Protect Competitors’ (2003) 26 World Competition, 149–65. This is also the approach adopted by the National Development and Reform Commission in the decision against Qualcomm, in which it explicitly excludes Qualcomm’s SEP licensing practice outside Chinese territory from the scrutiny of AML because it does not have an anti-competitive effect on the Chinese market. Decisions of the National Development and Reform Commission, Fa Gai Ban Jia Jian Chufa [2015] No. 1.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

197

welfare standard, the exterritorial reach of the AML is confined to Inter Digital’s abusive practice with regard to its Chinese patent. This is much narrower than defining effect as harm to competitor would allow, that is, its global patent licensing practice. Another related issue that also has significant implications for the extraterritorial application of the AML is whether the Chinese courts have adjudicative jurisdiction over the case. If the case was dismissed for lack of jurisdiction, it would not proceed to the substantive stage, and there would be no chance for the AML to apply. Chinese civil procedure rules on judicial jurisdiction are broad enough to allow the court to adjudicate transnational litigation arising from foreign anti-competitive conduct. So far, all the lawsuits had been brought by Chinese-based companies seeking damages for violations of the AML under tort law. Chinese courts would have jurisdiction if the tortious act or resulting damage took place in China. The latter has been interpreted as economic loss suffered by the plaintiff that had been localized at the plaintiff’s place of domicile, that is, in China.105 This essentially means that Chinese courts would always have adjudicative jurisdiction over tort cases arising from transnational competition disputes if the plaintiff is located in China. However, in the lawsuits against the Internet Corporation for Assigned Names and Numbers (ICANN), some Chinese courts misinterpreted the relevant law and incorrectly held that they lacked judicial jurisdiction.106 The defendant, ICANN, is a non-profit international organization established in 1998 in California, with the function to regulate and coordinate domain names on the Internet. The claimants were Chinese domain name registrars that provide a domain name registration service for retail clients. They alleged that ICANN abused its dominant position by reserving single-character domain names, which have significantly high market values. Such conduct may potentially fall within the regulatory reach of the AML. In eleven court judgments, seven of which were made by intermediate court in the appeal procedure, the courts all ruled that they lacked judicial jurisdiction.107 Consequently, the cases were dismissed without the court ever ruling on the merits of the case, depriving the AML of any chance to apply to the conduct in question. Therefore, it is suggested that Chinese courts are far from sophisticated in handling such cases. Chinese judges seem to have acquired little conception of the issues involved in extraterritoriality. This may be because international competition litigation cases are few and far between in China and that Chinese courts lack sufficient experience in handling them. Moreover, Chinese legislation has failed to provide sufficient guidance on how these cases should be decided; nor do Chinese courts have a tradition of creating rules through precedent.108 105

106

107

108

See VISCAS Corporation v. State Grid Shanghai Municipal Electric Power Company, Supreme People’s Court (2019), Zui Gao Fa Zhi Min Xia Zhong No. 356. (1) Xiangshan Jieda Internet Technology Ltd. v. ICANN, Beijing High People’s Court (2018) Jing Min Zhong No. 224; (2) Zheng Minjie v. ICANN, Zhejiang High People’s Court (2011), Zhe Zhi Zhong No. 140; (3) Zheng Minjie v. CSC & ICANN, Beijing Intellectual Property Court (2015), Jing Min Chu No. 653. They attempted to file lawsuits in various courts against ICANN alone or together with anchor defendants in China. These judgments misinterpreted the Civil Procedural Law in various ways: (1) mischaracterizing the case as contractual and finding that judicial jurisdiction is lacking as the contract was not signed or performed in China; (2) ruling that the alleged conduct took place in the United States, not in China; (3) ICANN has no representative office or property for attachment. (1) Xiangshan Jieda Internet Technology Ltd. v. ICANN, Beijing High People’s Court (2018), Jing Min Zhong No. 224; (2) Zheng Minjie v. ICANN, Zhejiang High People’s Court (2011), Zhe Zhi Zhong No. 140; (3) Mo Huifei v. Beijing Xinnet Digital Information Technology Ltd (2015), Gao Min (Zhi) Zhong No. 4001; (4) Zheng Minjie v. CSC, Beijing High People’s Court (2018), Jing Min Zhong No. 46; (5) Zheng Minjie v. CSC & ICANN, Beijing Intellectual Property Court (2015), Jing Min Chu No. 653. The AML contains a very brief provision that prescribes that monopolists shall assume civil liability. The corresponding judicial interpretation issued by the SPC has only 16 articles – about 2,000 words – and does not offer much-needed guidance, either.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

198

Yongping Xiao and Lei Zhu

Besides, Chinese scholars, discussing the issue from within the US antitrust context, often treat extraterritoriality as a matter of adjudicative jurisdiction of the court.109 However, this latter approach does not provide sufficient clarity in this area either. 9.5 CONCLUSIONS

Based on the examination undertaken in this chapter, it is found that China is still at an early stage of developing an effective framework for effect-based extraterritorial jurisdiction. Although MEPA contains a clause that is clearly based on ‘effect doctrine’, it remains dormant. As far as offensive maps are concerned, a literal reading of the Regulation (2015) suggests that it fundamentally adopts a territorial approach, even though extraterritorial jurisdiction, to some extent, can be claimed. However, the recent decision made by the CAAC against foreign airline operators represents a significant breakthrough because it asserts extraterritorial jurisdiction over global conduct. Nevertheless, it remains to be seen how this approach will play out in the future. In competition law, extraterritorial jurisdiction based on the ‘effect doctrine’ has gained worldwide acceptance. It is also the only area in which China has accumulated relatively rich practical experience. It seems, however, that the Chinese authorities so far have failed to meet expectations. The number of enforcement decisions taken against cases of international anticompetitive conduct is still relatively insignificant. And Chinese courts are far less experienced in adjudicating such cases, indicating that they might have not yet had a clear understanding of the complicated legal issues involved. A recurring issue common to these areas is how to identify the location of the conduct and its effect. In other words, does the conduct take place within or outside Chinese territories? Does it produce a certain harmful effect within China? These are the fundamental questions that extraterritorial jurisdiction entails. Chinese practice demonstrates that the line delineating territorial and extraterritorial jurisdiction is not clear-cut but blurred in our increasingly integrated world. This is most evident when the offence takes place in cyberspace or on an increasingly globalized market, particularly with regard to the conduct of multinational companies. This may suggest that the binary approach towards territorial and exterritorial jurisdiction may be an illusion, as pointed out by some scholars.110 A more sensible approach is to refocus our attention on whether the regulating state has genuine connection or sufficient regulatory interest to exercise jurisdiction over the conduct in question. Unfortunately, this very important issue does not receive careful consideration and thorough discussion from Chinese administrative authorities and courts in their practice. This lack of legal reasoning is frustrating and unhelpful. It is one of the reasons why Chinese practice is often criticized for insufficiency of justification under international law and the lack of transparency in decision-making. More importantly, it misses the opportunity to elaborate the Chinese approach towards international law on jurisdictions, which constitutes an important source of state practice for international customary law.

109

110

Provisions on Several Issues Concerning the Application of Law in Civil Litigation Arising from Monopolist Conduct [最高人民法院关于审理因垄断行为引发的民事纠纷案件应用法律若干问题的规定], issued by the SPC on 30 January 2012, Fa Shi [2015] No. 5. Li Qingming, ‘The Extraterritorial Jurisdiction of the United States: Concepts, Practice and China’s Response [论 美国域外管辖 : 概念实践及中国因应]’ (2019) (3) Chinese Review of International Law [国际法研究], 3–23, at 5. Pe´ter D. Szigeti, ‘The Illusion of Territorial Jurisdiction’ (2016) 52 Texas International Law Journal, 369–99.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

9 The ‘Effect Doctrine’ and Extraterritorial Application

199

The Chinese experience demonstrates that exercising effect-based extraterritorial jurisdiction is a complex and challenging endeavour. It requires, first and foremost, serious and careful consideration of the necessity and feasibility of such a regime. Passing legislation containing the effect doctrine may be only the starting point. Enforcement of that law demands making serious efforts towards both institution and capacity building, which China is still lacking. It may be years before a successful effect-based extraterritorial jurisdiction regime is developed as China needs to put in place the proper legal mechanisms, the necessary resources and competent manpower with adequate knowledge and expertise.

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

https://doi.org/10.1017/9781009041133.011 Published online by Cambridge University Press

par t i v

International Peace and Security

Published online by Cambridge University Press

Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum in International Law and Cyberwarfare Zhixiong Huang and Yaohui Ying

10.1 INTRODUCTION

The international jus ad bellum is a notoriously contentious body of law.1 The prohibition of the use of force and its exceptions, which is stipulated in the Charter of the United Nations (UN), constitutes the starting point for any discussion of international law on the jus ad bellum.2 By most accounts, the UN Charter prohibits states from using cross-border force3 except (1) pursuant to the authorization of the UN Security Council (UNSC)4 or (2) in individual or collective self-defence.5 States and commentators generally agree that the prohibition on the use of force, often seen as ‘a cornerstone of the UN Charter’,6 is not only a treaty obligation but also a customary rule binding upon all states in the world community,7 or even a norm of jus cogens.8 China is one of the five permanent members of the UNSC that shoulder the primary responsibility for ensuring international peace and security.9 China has hewed consistently to a ‘restrictivist’ interpretation of the UN Charter that limits self-defence to a narrow set of circumstances and recognizes few, if any, exceptions to the general prohibition on the use of force by states.10 This restrictivist approach, in China’s view, reduces the likelihood of unduly interpreting the UN Charter provision of self-defence and thus abusing the use of force. As cyberspace becomes more and more strategically important to nation-states, the international rules concerning cyberwarfare, especially jus ad bellum, continue to generate great debates. How China, a major state actor as well as a stakeholder in the cyber domain, conceives of the jus ad bellum in cyberspace is understandably a great concern for other states. The rigid approach to 1

2

3 4 5 6

7

8

9 10

Monica Hakimi, ‘The Jus Ad Bellum’s Regulatory Form’ (2018) 112 American Journal of International Law, 151–90, at 151. Christine Gray, ‘The Use of Force and the International Legal Order’ in Malcolm D. Evans (ed.), International Law, 4th ed., 618–48 (New York: Oxford University Press, 2014), 619. Art. 2(4) of the UN Charter. Art. 39 of the UN Charter. Art. 51 of the UN Charter. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, 2005, para. 148. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Merits), ICJ Reports (1986) 14, para. 190; Malcolm N. Shaw, International Law, 9th ed. (Cambridge: Cambridge University Press, 2021), 986; Christine Gray, International Law and the Use of Force, 4th ed. (New York: Oxford University Press, 2018), 32. See Gordon Christenson, ‘The World Court and Jus Cogens’ (1987) 81 American Journal of International Law, 93; Andre de Hoogh, ‘Jus Cogens and the Use of Armed Force’ in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law, 1161–86 (New York: Oxford University Press, 2015), 1173. Art. 24 of the UN Charter. For instance, Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford: Hart, 2010), 15–16.

203 https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

204

Zhixiong Huang and Yaohui Ying

the use of force that China has always upheld, generally speaking, applies to cyberspace. However, such a stance seems a bit resilient. This chapter analyses the traditional Chinese restrictive approach to the prohibition of use of force and its legal exceptions in the physical world, as well as the extent to which China’s attitude towards jus ad bellum may shape its position in the digital domain. The chapter is divided into four parts. After briefly revisiting the status quo on the law of the use of force in the first part, the history of China’s normative position on jus ad bellum is reviewed from three separated but interlinked dimensions, that is, China’s use of force, the Chinese government’s voting records and argumentation in the UNSC and its official statements on other relevant occasions. The third part focusses on the Chinese approach to jus ad bellum in cyberspace by summarizing China’s standpoint on this issue so far and analysing the reasons behind it, and subsequently predicting how and to what extent China’s attitude towards the use of force and its exceptions in the traditional sphere might influence its position towards the same subject in cyberspace. The conclusion recaps the main findings of the chapter. 10.2 THE CHINESE APPROACH TO JUS AD BELLUM IN INTERNATIONAL LAW

China’s position on international law on the use of force (including jus ad bellum and jus in bello) is closely related to its philosophy of war. In fact, China almost possesses a purely defensive strategic culture.11 A typical example of this is China’s strategic posture regarding nuclear weapons. In 1964, after its first nuclear test, the Chinese government made the declaration that its nuclear development was solely for self-defence. China unconditionally committed itself to the non-use or threat of use of nuclear weapons against non-nuclear weapon states and to the non-first use of nuclear weapons at any time and under any circumstances.12 Since its first National Defense White Paper released in 1998, China has always adhered to the ‘principles of defense, self-defense and post-strike response’.13 Although as of late there has been a change of terminology towards ‘active defense’, it keeps to the stance that ‘we will not attack unless we are attacked, but we will surely counterattack if attacked’.14 This post-strike military position and its related philosophy of war have largely influenced China’s approach to the use of force under international law. The Chinese approach to jus ad bellum in international law will be discussed based on: (a) China’s voting behaviours and argumentation in the UNSC; (b) China’s statements or position papers on other forums, especially the Position Paper of the People’s Republic of China on the United Nations Reforms released in 200515 (‘2005 Position Paper’), which marks China’s most detailed and systematic official statement on the issue so far; and (c) China’s four occasions of using force since 1949. This section reviews China’s normative position on the general prohibition of use of force and its exceptions, including the more 11

12 13

14 15

Andrew Scobell, China’s Use of Military Force: Beyond the Great Wall and the Long March (New York: Cambridge University Press, 2003), 31. Ibid. State Council Information Office, ‘China’s National Defense’, Government White Papers, 1998, www.china.org.cn/ e-white/5/index.htm; State Council Information Office, ‘China’s Military Strategy’, Government White Papers, 2015, www.china.org.cn/china/2015-05/26/content_35661433.htm; State Council Information Office, ‘China’s National Defense in the New Era’, Government White Papers, 2019, at www.xinhuanet.com/english/2019-07/24/ c_138253389.htm. The 2019 National Defense White Paper mentions ‘adopts active defense’, which is not present in previous versions. Ibid. See China’s Ministry of Foreign Affairs, Position Paper of the People’s Republic of China on the UN Reforms, 2005, at http://lk.china-embassy.org/eng/xwdt/t211181.htm.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum

205

or less controversial ideas of humanitarian intervention and responsibility to protect (R2P). In doing this, the authors unearth the Chinese approach to jus ad bellum in international law. 10.2.1 Use of Force in Terms of Article 2(4) of the UN Charter There are two points to note about China’s interpretation of the UN Charter provisions in connection with the use of force. First, Article 2(4) of the UN Charter mainly prohibits the use of force among sovereign states and also applies to military conflicts between states and nations seeking self-determination; it does not affect the right of states to use force to maintain national security and order within their domestic jurisdiction.16 Thus, as China sees Taiwan as part of ‘One China’ represented by the government of the People’s Republic of China (PRC), a position supported by numerous UN General Assembly (UNGA) resolutions, especially Resolution 2758 ‘recognizing that the representatives of the Government of the People’s Republic of China are the only lawful representatives of China to the UN’, the Chinese government does not consider the handling of the Taiwan question to be within the scope of the use of force under international law. Indeed, China has repeatedly declared that it ‘will do its best to achieve peaceful reunification, but will not commit itself to ruling out the use of force’.17 Second, the Chinese government confines ‘force’ referred to in Article 2(4) of the UN Charter to military force and thus economic or political coercion is excluded. To be sure, China consistently supports the UNGA resolutions identifying unilateral economic coercion as impermissible intervention in the domestic affairs of another state.18 This view accords better with the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, which specifically condemned such economic actions as interventionist instead of use of force.19 10.2.2 Right of Self-Defence China emphasizes that the exclusive power of the UNSC to authorize the use of force with the only exception of self-defence should be maintained or even reinforced.20 Like its formalist approach to Article 2(4) of the UN Charter, the Chinese government’s approach to Article 51 falls squarely on the restrictivist side.21 16

17 18

19

20

21

Xinmin Ma, ‘The Law of Use of Force: Development and Challenges’ in 2013 Chinese Yearbook of International Law, at 102 [马新民, 《使用武力法 : 发展与挑战》, 《中国国际法年刊 (2013) 》, 第102页]. White Paper, ‘The One-China Principle and the Taiwan Issue’, 2000, http://taiwandocuments.org/white.htm. UNGA Resolution 44/215, UN Doc. A/RES/44/215 (22 December 1989); UNGA Resolution 56/179, UN Doc. A/RES/ 56/179 (21 December 2001); UNGA Resolution 58/198, UN Doc. A/RES/58/198 (23 December 2003). UNGA, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Resolution 2625, 24 October 1970. The Declaration states: ‘No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from its advantages of any kind.’ Position Paper of the People’s Republic of China on the 75th Anniversary of the United Nations, p. 5, http:// download.china.cn/en/pdf/FulltextofChina’spositionpaperonUN’s75thanniversary.pdf. Julian Ku, ‘How China’s Views on the Law of Jus ad Bellum Will Shape Its Legal Approach to Cyberwarfare, Hoover Working Group on National Security, Technology, and Law’, Aegis Series Paper No. 1707 (17 August 2017), https:// lawfareblog.com/how-chinas-views-law-jus-ad-bellum-will-shape-its-legal-approach-cyber-warfare.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

206

Zhixiong Huang and Yaohui Ying

10.2.2.1 China’s Use of Force Although broadly speaking China has been at peace for a long time, it has been involved in several situations involving the use of force since 1949, most, albeit not all, of which took place before 1980. It suffices to list the four most serious ones, namely, the intervention in the Korean War [抗美援朝战争] in the 1950s; the border dispute and conflict between China and India in 1962 [中印边界自卫反击战]; the Sino–Soviet Union Zhenbao (Damanskii) Island Incident [中 苏边界自卫反击战] in 1969; and the Sino–Vietnamese War [对越自卫反击战] in 1979. With the exception of the Korean War, China has justified the other three situations involving use of force by clearly invoking the right of self-defence. The government of the PRC, founded in October 1949, chose to stand on the side of the Soviet Union and the socialist camp.22 As part of the confrontations between the capitalist camp and the socialist one, the Korean War23 brought to China its first involvement in international warfare, albeit in the most reluctant circumstances. Some Chinese scholars render that China’s intervention in the Korean War could be characterized as the exercise of the right of self-defence,24 but there was no explicit invocation of the right of self-defence by the Chinese government, although it repeatedly stressed that its involvement in the Korean War was a just war.25 Based on the historical background, China’s involvement in the Korean War can be analysed in light of the following considerations. First, China did not recognize the legality of relevant UN resolutions.26 On 6 July 1950, Premier Zhou Enlai issued a statement to the UN that stipulated: [T]he resolution on 27 June … is clearly illegal because it was adopted without the participation of the two permanent members, the PRC and the Soviet Union … [It thus] violates an important principle of the Charter of the United Nations, which is the non-intervention in matters that are essentially within the domestic jurisdiction of one State. Therefore, the Security Council resolution on Korea is not only of no legal force, but also greatly undermines the Charter of the United Nations.27

Second, China’s intervention in the Korean War was based on the consideration of defending the country.28 China closely links US President Truman’s Statement on Formosa29 with the US military intervention in North Korea, which it sees as a combination of threats to China’s territorial integrity.30 22

23

24

25

26

27

28

29 30

Wang Shengzu (ed.), History of International Relations, vol. 8 (Beijing: World Knowledge Press, 1995), 5 [王绳祖主 编:《国际关系史》第8卷, 世界知识出版社1995年版, 第5页]. See Nigel D. White, ‘The Korean War – 1950–53’ in Tom Ruys, Olivier Corten and Alexandra Hofer (eds.), The Use of Force in International Law: A Case-Based Approach, 17–35 (New York: Oxford University Press, 2018). See, e.g., Zhao Jianwen, ‘The CPC and International Law: Inheritance, Criticism and Development’ (2021) 61 Jilin University Journal Social Sciences Edition, at 38 [赵建文:《中国共产党与国际法 : 继承、批判与发展》,《吉林大 学社会科学学报》2021年第1期, 第38页]. Xi Jinping, ‘Speech at the General Assembly Commemorating the 70th Anniversary of the Chinese People’s Volunteers Going Abroad to Fight [the] U.S. [and] Aid Korea’ People’s Publishing House (2020), 4 [习近平,《在 纪念中国人民志愿军抗美援朝出国作战70周年大会上的讲话》, 人民出版社2020年版, 第4页]. See, e.g., ‘Intervention of the Central People’s Government of the People’s Republic of China in Korea’, UN Doc. A/ RES/498(V), 1 February 1951. ‘Statement to the United Nations’ in Literature Research Office of the CPC Central Committee and the Central Archives (eds.), Manuscripts of Zhou Enlai Since the Founding of the People’s Republic of China, Vol. 3 (Beijing: Central Party Literature Press, 2008), 10 [《致联合国的声明》, 载中共中央文献研究室、中央档案馆编:《建 国以来周恩来文稿》(第三册), 中央文献出版社2008年版, 第10]. Report on the Work of the Chinese People’s Volunteer Army to Fight Against the United States and Aid Korea – Report of Commander Peng Dehuai of the Chinese People’s Volunteer Army at the 24th Meeting of the Central People’s Government Committee, September 1953, p. 4 [《关于中国人民志愿军抗美援朝工作的报告 – – 中国人 民志愿军彭德怀司令员在中央人民政府委员会第二十四次会议上的报告》, 1953年9月, 第4页]. Harry S. Truman, ‘Statement on Formosa’, 1950. Hao Yufan and Zhai Zhihai, ‘China’s Decision to Enter the Korean War: History Revisited’ (1990) 121 China Quarterly, at 94–115.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum

207

Moreover, China rendered that the United States would continue to attack China after conquering Korea: ‘following the history since the Sino–Japanese War of 1894–1895, it [the United States] took the old road [of Japanese militarism] that invading China must first occupy northeast China, and occupying northeast China must first occupy Korea’.31 Third, the Chinese government chose to aid the Democratic People’s Republic of Korea (DPRK) in the name of the ‘People’s Volunteers Army’32 instead of the ‘People’s Liberation Army’. The PRC delegate’s ‘complaint of aggression upon the Republic of Korea’ stated: ‘the Chinese People’s Government sees no reason whatever to prevent voluntary departure for Korea to participate, under the command of the Government of the DPRK’.33 Last but probably most legally relevant, China’s intervention came at the request and express consent of the government of the DPRK. As Xi Jinping said in the speech of the ceremony marking the 70th anniversary of the Chinese People’s Volunteers going abroad to resist the United States and aid Korea, ‘at the request of the party and government of the DPRK, the Communist Party and government of China made the historic decision to resist the United States, aid the DPRK and defend the country’.34 With the exception of the Korean War, China’s subsequent border conflicts with India, the Soviet Union and Vietnam were clearly defined by China as ‘self-defense counter-attacks’,35 otherwise as exercises of the right to self-defence. For instance, at the beginning of the Letter to the United Nations Addressed to the President of the Security Council, Chen Chu, the permanent representative of China in the UN during the Sino–Vietnamese War in 1979, stated that the letter was sent to comply with Article 51 of the UN Charter and reported the reason for China’s exercise of the right of self-defence against Vietnam, that is, ‘ignoring China’s repeated warnings, the Vietnamese authorities have of late continually sent armed forces to encroach on Chinese territory and attack Chinese frontier guards and inhabitants, causing a rapid deterioration of the situation and seriously threatening the peace and security of China’s frontiers. Driven beyond forbearance, Chinese frontier troops have been forced to rise in counterattack.’36 On the other hand, the border disputes with India and the Soviet Union were not reported to the UNSC, which was understandable as the PRC was restored as the legitimate representative of China in the UN only in 1971.37 With regard to the border dispute and conflict between China and India in 1962, the Statement of the Government of the PRC (24 October 1962) mentioned: After rejecting China’s peace overtures, the Indian government on October 12 ordered Indian troops to ‘clear out’ all the Chinese troops on the Chinese border. Then, on October 20, the Indian army launched a massive full-scale offensive along the eastern and western sections of the 31

32

33 34 35

36

37

Ministry of Foreign Affairs of the PRC, Literature Research Office of the CPC Central Committee (eds.), Selected Diplomatic Works of Zhou Enlai (Beijing: Central Party Literature Press, 1990), 31 [中华人民共和国外交部、中共 中央文献研究室编:《周恩来外交文选》, 中央文献出版社1990年版, 第31页]. Chairman of the Military Commission Mao Zedong’s Order on the Formation of the Chinese People’s Volunteer Army, in CCCPC Party Literature Research Office (ed.), Selection of Important Works Since the Founding of the People’s Republic of China, vol. 1 (Beijing: Central Party Literature Press, 1992), 418 [《军委主席毛泽东关于组成中 国人民志愿军的命令》, 载中共中央文献研究室编 : 《建国以来重要文献选编》 (第一册), 中央文献出版 社1992年版, 第418页]. In addition, columns in the People’s Daily demonstrated in detail why it is legal under international law for volunteers to participate in the military activities of a belligerent party. See Zhaluoluorineiyi, ‘The Chinese People’s Volunteer Army Is Not Defamable’, People’s Daily (15 January 1951), 4 [扎朵罗日内依, 《中 国人民志愿军是不容诽谤的》, 《人民日报》1951年1月15日第4版]. Security Council official records, 5th year: 527th meeting, 28 November 1950, New York, p. 22, UN Doc. S/PV. S27. Xi Jinping, ‘Speech at the General Assembly, supra note 25. ‘Self-defence counterattack’ is not strictly a term of international law but the translation of the Chinese word ‘ (ziwei fanji)’. See also Scobell, China’s Use of Military Force, supra note 11, at 32, 801. Letter Dated 79/02/17 from the Permanent Representative of China to the United Nations Addressed to the President of the Security Council, UN Doc. S/13094, 19 February 1979 (PRC). See UN Doc. A/RES/2758(XXVI), 25 October 1971.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

208

Zhixiong Huang and Yaohui Ying

China–India border. Under such serious circumstances, the Chinese border troops had no choice but to respond in self-defense.38

Similarly, the Sino–Soviet Union Zhenbao (Damanskii) Island Incident in 196939 was also characterized as an exercise of the right of self-defence. 10.2.2.2 China’s Narrow Reading on the Preconditions for the Exercise of Self-Defence China takes a rather narrow reading on the preconditions for the exercise of the right of selfdefence. Ambassador Geng Shuang’s statement at the Open Arria Formula Meeting in February 2021 is the most recent elaboration on this issue: The right of self-defense must be exercised in strict accordance with international law. Selfdefense is an exception to the principle of non-use of force. The provisions on the right of selfdefence in Article 51 of the UN Charter should be interpreted faithfully and in good faith, and should not be abused. The exercise of the right of self-defense shall be in strict compliance with the provisions of the UN Charter and relevant rules of customary international law. The use of force against non-state actors in the territory of another state, which is for the purpose of selfdefence, shall be subject to the consent of the state concerned. No state should interfere in other’s internal affairs under the cloak of ‘counter-terrorism’ or use force arbitrarily in the name of ‘preventive self-defence’.40

Ambassador Geng Shuang’s remarks shed light on the controversies related to the right of selfdefence, which can be summarized in two aspects: when the right of self-defence can be exercised (the time requirement) and against whom to exercise the right of self-defence (the target requirement). The time requirement concerns the aforementioned idea of ‘pre-emptive self-defence’ or ‘preventive self-defence’, recently also known as the ‘Bush Doctrine’41 propounded by the Bush administration after the 9/11 attacks. Whether Article 51 of the UN Charter allows anticipatory self-defence before an armed attack occurs has long been a major point of contention. The United States, the UK, Israel and some other states have construed Article 51 in a permissible 38

39

40

41

‘Statement of the Government of the People’s Republic of China (24 October 1962)’ in On the Sino–Indian Boundary Question (Beijing: People’s Publishing House, 1962), 26 [《中华人民共和国政府声明 (1962年10月24日) 》, 载 《关于中印边界问题》, 人民出版社1962年版, 第26页]. For documents characterizing the Sino–Indian border dispute as self-defence counter-attack, see, e.g., CCCPC Party Literature Research Office and PLA Academic of Military Science (eds.), Selected Military Works of Deng Xiaoping, vol. 3 (Beijing: Military Science Publishing House/Central Party Literature Press, 2004), 37 [中共中央文献研究室、中国人民解放军军事科学院编 : 《邓小 平军事文集》 (第三卷), 军事科学出版社/中央文献出版社2004年版, 第37页); People’s Daily, December 9, 1962, p. 4 (《人民日报》1962年12月9日第4版]; Zhou Gengsheng, ‘International Law Does Not Support India’s Position on the Sino–Indian Boundary Issue’, People’s Daily (26 July 1962), 5 [周鲠生: 《国际法并不支持印度对 中印边界问题的立场》, 载《人民日报》1962年7月26日第5版]. See Statement of the People’s Republic of China on the Sino–Soviet Boundary Question (Beijing: People’s Publishing House, 1969), 1–20 [《中华人民共和国政府关于中苏边界问题的声明》, 人民出版社1969年版, 第1-20页]; CCCPC Party Literature Research Office and PLA Academic of Military Science, supra note 38; People’s Daily (3 March 1969), 1 [《人民日报》1969年3月3日第一版); People’s Daily, March 16, 1969, p. 1(《人民日报》1969年3月 16日第一版]. Statement by Ambassador GENG Shuang at the Open Arria Formula Meeting, ‘Upholding the Collective Security System of the UN Charter: The Use of Force in International Law, Non-state Actors and Legitimate Self-Defense’, 2021/02/24, http://chnun.chinamission.org.cn/eng/hyyfy/t1856424.htm. The Bush Doctrine can be summarized as ‘the use of armed coercion by a State to prevent another State (or non-State actor) from pursuing a particular course of action which is not yet directly threatening, but which, if permitted to continue, could result at some future point in an act of armed coercion against the first State’. See Sean D. Murphy, ‘The Doctrine of Preemptive Self-Defense’ (2005) 50 Villanova Law Review, 699, 703–4.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum

209

manner by referring to the Caroline doctrine under customary international law, which dates back to the formulation by then US secretary of state Daniel Webster after the Caroline incident in 1837 involving anticipatory action undertaken by the UK against certain US nationals, according to which the UK is required to prove that its use of force was in response to a threat that was ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’.42 This could be interpreted as recognizing the right of anticipatory self-defence under customary international law. Yet a crucial question is whether the Caroline test has survived the advent of the UN Charter, as Article 51 of the Charter recognizes the right to self-defence in response to an actual armed attack. China is firmly against the alleged right to pre-emptive self-defence,43 for which there is indeed very little international support. This attitude can be inferred from the 2005 Position Paper, which mentioned that ‘use of force shall not be resorted to without the authorization of the Security Council with the exception of self-defense under armed attack’.44 The phrase ‘under armed attack’ seems to lead to the conclusion that the Chinese government adopted a narrow understanding, which is in line with the plain meaning and the negotiating history of Article 51, especially with the provision ‘if an armed attack occurs’.45 It also argued that ‘[a]ny “imminent threat” should be carefully judged and handled by the Security Council’.46 In addition to the time requirement, the object of the exercise of the right of self-defence, that is, the target requirement, is also a controversial issue. Article 51 of the UN Charter does not specifically stipulate that the self-defence undertaken by the victim state must be only against another state. However, in the traditional view, non-state actors are not seen as the subjects of international law. In that vein, therefore, self-defence cannot be exercised against non-state actors unless the ‘armed attack conducted’ by the non-state actors is attributable to another sovereign state under the law of state responsibility. 47 The International Court of Justice (ICJ) in the Wall Advisory Opinion held that Article 51 of the UN Charter ‘recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State’.48 China appears to be a little ambivalent on this point as it voted in favour of the UNSC resolutions on the use of force against al-Qaeda after 9/11.49 Yet it still deeply worries about the abuse of the right to self-defence as an exception to the prohibition of the use of force, and it emphasizes that ‘no state should interfere in other’s internal affairs under the cloak of “counterterrorism”’.50 Another controversy regarding the scope of self-defence concerns the right of states to use force to protect their nationals abroad. This right has been asserted by some states such as the United States, the UK and Israel under Article 51 of the UN Charter, yet most developing states are 42

43 44 45 46

47

48 49

50

Letter from Daniel Webster to Lord Ashburton dated 6 August 1842, reprinted in 2 International Law Digest, 412 (ed. John Bassett Moore, 1906); K. E. Shewmaker (ed.), The Papers of Daniel Webster: Diplomatic Papers, Vol. 1: 1841– 1843 (Armidale, NSW: University of New England Press, 1983), 62. Statement by Ambassador GENG Shuang, supra note 40. China’s Ministry of Foreign Affairs, supra note 15. Art. 51 of the UN Charter. Statement by Ambassador Zhang Yishan on Cluster II (Freedom from Fear) of the Secretary-General Report ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ at informal thematic consultations of GA 59th Session (22 April 2005); Statement of China on the Report of the High-Level Panel, 27 January 2005. International Law Commission’s Draft Articles on Responsibility of States for International Wrongful Acts, UNGA Resolution 56/83, 2001, Art. 2. Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, ICJ Rep. 2004, p. 136. See UNSC Resolution 1368, S/RES/1368 (2001), http://unscr.com/en/resolutions/1368; UNSC Resolution 1373, S/ RES/1373 (2001), at http://unscr.com/en/resolutions/1373. Statement by Ambassador GENG Shuang, supra note 40.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

210

Zhixiong Huang and Yaohui Ying

rather doubtful about the existence of this right.51 China’s position on this issue can be roughly inferred from its response to several typical incidents. At the time of the ‘Entebbe incident’ in Uganda (1976),52 China did not participate in the vote of the UNSC;53 however, in the previous discussion, China had expressed its condemnation54 of Israel’s actions and suggested that it was ‘a premeditated and naked act of aggression committed against a sovereign State by Israeli Zionism’.55 Similarly, China condemned the United States’ intervention in the Cambodian territory action along with Algeria and Thailand in the ‘Mayaguez incident’ (1975).56 With regard to the United States’ attempt to rescue its diplomatic and consular staff held hostage in Iran (1980), China also condemned the US military action,57 declaring that ‘the use or threat of force in exercising such a right [to diplomatic protection] should be prohibited’.58 In conclusion, China seems to hold that there is no such right, given the importance it attaches to the principle of sovereignty and state consent. All too often the protection of nationals is mere pretext to mask the real intent of overthrowing the government,59 such as in the case of the United States’ use of force in Grenada (1983). 10.2.3 Humanitarian Intervention and Responsibility to Protect Since the end of the Cold War, there have been numerous arguments about whether the use of force for humanitarian reasons can be justified, especially represented by the theory of humanitarian intervention and later the responsibility to protect (R2P). In general, China is more comfortable with the concept of R2P than with humanitarian intervention. As for the humanitarian intervention, it can be said that China, together with many developing states, opposes this idea.60 It is true that China’s approach to humanitarian intervention, and to the use of force in the broader sense, is profoundly influenced by its position on the principle of sovereignty under the UN Charter.61 A case in point is China’s response to the North Atlantic Treaty Organization’s (NATO) military intervention in Kosovo in 1999, during which it repeatedly stressed in the UN discussions that ‘Kosovo is an inherent part of the territory of the former Yugoslavia’,62 and thus external intervention, particularly through the use of force, would amount to the ‘internationalization of a domestic issue’.63 From China’s perspective, Serbia was defending its sovereignty against internal challenges, a position that China almost certainly viewed with sympathy given its own internal challenges to sovereignty, including in Tibet, Xinjiang and Taiwan.64 51 52 53 54 55 56 57 58 59 60 61

62 63

64

Gray, ‘The Use of Force and the International Legal Order’, supra note 2, at 629. Natalino Ronzitti, ‘Rescuing Nationals Abroad Revisited’ (2019) 24 Journal of Conflict and Security Law, at 437. UNSC S/PV.1943, 14 July 1976, para. 162. UNSC S/PV.1939, 9 July 1976, para. 226. Ibid., para. 224. Ronzitti, ‘Rescuing Nationals Abroad Revisited’, supra note 53, at 437. Ibid., at 438. UN Doc. A/C.6/55/SR.19, 9 March 2001, para. 30. Gray, ‘The Use of Force and the International Legal Order’, supra note 2, at 630. See UNGA, 63rd session, 98th plenary meeting, Official Records, A/63/PV.98, at 23. See Manjiao Chi, ‘China’s Approach to the Use of Force: A Skeletal Review of China’s Changing Attitudes Towards Humanitarian Intervention’ in Lothar Brock and Hendrik Simon (eds.), The Justification of War and International Order: From Past to Present, 417–32 (New York: Oxford University Press, 2021), 423. See UNGA OR, 53rd Session, 85th Plenary Meeting at 22, UN Doc. A/53/PV.85 (9 December 1998). UNSC OR, 53rd Session, 3868th Meeting at 11, UN Doc. S/PV.3868 (31 March 1998); UNSC OR, 53rd Session, 3930th Meeting at 3, UN Doc. S/PV.3930 (23 September 1998). Jonathan E. Davis, ‘From Ideology to Pragmatism: China’s Position in Humanitarian Intervention in the Post-Cold War Era’ (2011) 44 Vanderbilt Journal of Transnational Law, at 247.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum

211

Even so, the Chinese government does not take a negative view of all UNSC resolutions on humanitarian grounds. China has also acquiesced in or actively supported a number of more limited humanitarian interventions, including in Haiti,65 Somalia,66 Bosnia,67 East Timor68 and so on. From these resolutions on humanitarian grounds for which China provided limited support, the Chinese government’s essential requirements for humanitarian intervention have become increasingly clear, namely, authorization of the UNSC and the consent of the host state.69 Meanwhile, China has demonstrated a significant shift in its position on sovereignty by accepting the basic tenets of the R2P.70 For example, the 2005 Position Paper includes the concept of responsibility to protect.71 Yet it appears that China soon realized that the 2005 Position Paper went too far.72 Therefore, China changed its tune during the debates on the first UNGA resolution on R2P in 2009, contending that the R2P remained ‘a concept’ and did not constitute ‘a norm of international law’.73 Furthermore, China warned that the implementation of R2P ‘should not contravene the principle of state sovereignty and the principle of non-interference in the internal affairs of States’ and that the R2P should be prevented from ‘becoming a kind of humanitarian intervention’.74 Unlike some Western states that focus on the third pillar of R2P, Responsibility to React, China attaches special weight to the other two pillars, namely, Responsibility to Prevent and Responsibility to Rebuild,75 which are the main reasons why R2P could be quickly accepted by those traditionally opposing humanitarian interventions at the 2005 World Summit.76 China’s position on R2P can be roughly analysed by its shift of attitude from Libya to Syria in the voting and argumentation of UNSC resolutions. China abstained from the voting on Resolution 1973 (2011),77 but notably did not block the passing of this resolution, although ‘China [had] serious difficulty with parts of the resolution’.78 Three crucial aspects of this highly unusual, perhaps exceptional, confluence of factors are considered.79 The first key factor that influenced international action in Libya was ‘the clarity and immediacy of the threat to the civilian population’.80 The second and most crucial factor that provided the impetus for military action in Libya was the presence of regional consensus on the need for external intervention.81 65 66 67 68 69 70 71 72

73 74 75

76

77

78 79

80

81

UNSC OR, 48th Session, 3238th Meeting at 20, UN Doc. S/PV.3238 (16 June 1993). UNSC OR, 47th Session, 3145th Meeting at 17–18, UN Doc. S/PV.3145 (3 December 1992). UNSC OR, 49th Session, 3461st Meeting at 7, UN Doc. S/PV.3461 (19 November 1994). UNSC Resolution 1264, 3, UN Doc. S/RES/1264 (15 September 1999). Davis, ‘From Ideology to Pragmatism’, supra note 65, at 253. UNGA, 63rd Session, 98th Plenary Meeting, 24 July 2009, New York, Official Records, UN Doc. A/63/PV.98, at 24. See China’s Ministry of Foreign Affairs, supra note 15. Congyan Cai, The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (New York: Oxford University Press, 2019), 117. See UNGA, 63rd Session, supra note 71, at 23–4. Ibid., at 23. ICISS, Responsibility to Protect (December 2001), https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/ 18432/IDL-18432.pdf?sequence=6&isAllowed=y, at XI; UN Secretary-General, ‘Implementing the Responsibility to Protect’, A/63/677, 12 January 2009; See Courtney J. Fung, ‘China and the Responsibility to Protect: From Opposition to Advocacy’, US Institute of Peace (2016), www.jstor.org/stable/resrep20183. Congyan Cai, ‘New Great Powers and International Law in the 21st Century’ (2013) 24 European Journal of International Law, at 790. Resolution 1973 (2011) was adopted by a vote of ten in favour to none against, with five abstentions (Brazil, China, Germany, India, Russian Federation). See UN Doc. S/PV.6498, 18 March 2011. UN Doc. S/PV.6498, 18 March 2011. Andrew Garwood-Gowers, ‘China and the “Responsibility to Protect”: The Implications of the Libyan Intervention’ (2012) 2 Asian Journal of International Law, at 375, 383–6. Alex J. Bellamy and Paul D. Williams, ‘The New Politics of Protection? Cote d’Ivoire, Libya and the Responsibility to Protect’ (2011) 87 International Affairs, at 838–9. Andrew Garwood-Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm’ (2013) 36 University of New South Wales Law Journal, at 608.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

212

Zhixiong Huang and Yaohui Ying

The third important trigger was ‘the defection of members of the Gaddafi government’.82 However, China was concerned with the actual implementation of Resolution 1973 by NATO in its military operations in Libya.83 For instance, it stated that ‘we are not in favor of any arbitrary interpretation of the Council’s resolutions or of any actions going beyond those mandated’.84 China believed that its lenient approach to Libya worsened the situation in Libya and did not want a repeat in Syria.85 Thus, three separate Western-supported draft resolutions proposing nonforcible measures against the Assad regime had been vetoed by Russia and China in the UNSC.86 To sum up, China’s attitude towards concepts such as humanitarian intervention and the responsibility to protect, which revise the traditional principles of sovereignty, is no longer as rigid as it used to be but is gradually becoming flexible and inclusive. China’s approach to the issue is case-by-case, shifting from an initially ideological focus to a more pragmatic approach. In a word, China’s views and practice on the law of jus ad bellum can be safely characterized as falling on the positivist and restrictivist side of approaches to this area of law. The Chinese approach is in fact not unique and is actually the one followed by the majority of states in the world. Recently, China has put forward the notion of a ‘community of shared future for mankind’.87 Though this notion is largely undefined, it shows a clear orientation towards people, international community and governance. In a sense, this notion may seem to signal a slight conceptual deviation from China’s traditional state-centric perspective of the global normative order.88 The following sections will discuss China’s stance on the law of jus ad bellum in cyberspace and the extent to which China’s relevant understanding affects its position on cyberwarfare. 10.3 THE CHINESE APPROACH TO JUS AD BELLUM IN CYBERSPACE

The international rule of law in cyberspace seems to have entered a state of fragmentation and multi-track parallelism. The process of international rule of law in cyberspace within the framework of the UN is progressing step by step, although the road is rather bumpy. The UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (GGE) is one of the most widely representative intergovernmental processes involving the clarification of international law in cyberspace89 and has produced three consensus reports. In the 2013 Report of the UN GGE, 82 83

84 85

86

87

88 89

Ibid. Xue Hanqin, Chinese Contemporary Perspectives on International Law History, Culture and International Law (Leiden: Martinus Nijhoff, 2012), 104. UNSC OR, 66th Session, 6528th Meeting, UN Doc. S/PV.6528 (4 May 2011), 10. Andrew Garwood-Gowers, ‘China’s “Responsible Protection” Concept: Reinterpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes’ (2016) 6 Asian Journal of International Law, at 90. For the three draft resolutions, see Draft Resolution – France, Germany, Portugal and United Kingdom of Great Britain and Northern Ireland, 66th Session, UN Doc. S/2011/612 (4 October 2011) (‘Draft Resolution October 2011’); Draft Resolution – Bahrain, Colombia, Egypt, France, Germany, Jordan, Kuwait, Libya, Morocco, Oman, Portugal, Qatar, Saudi Arabia, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland and United States of America, 67th Session, UN Doc. S/2012/77 (4 February 2012) (‘Draft Resolution February 2012’); Draft Resolution – France, Germany, Portugal, United Kingdom of Great Britain and Northern Ireland and United States of America, 67th Session, UN Doc. S/2012/538 (19 July 2012) (‘Draft Resolution July 2012’). See Xi Jinping, On Promoting the Building of a Community with a Shared Future for Mankind (Beijing: China Academic Press, 2018) [参见习近平: 《论坚持推动构建人类命运共同体》 , 中央文献出版社2018年版]. For more analysis of the ‘community of shared future for mankind’, see Chapter 3 of this volume. Manjiao Chi, ‘China’s Approach to the Use of Force’, supra note 62, at 432. It must be clarified that the GGE is established by the UNGA and thus it is not a legal body but a political one, except that its discussions do cover international law in cyberspace.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum

213

there is no specific mention of use of force or self-defence in cyberspace, despite the controversial affirmation of the applicability of international law and the UN Charter.90 Subsequently, although the 2015 UN GGE Report mentions the prohibition on the threat or use of force against any state’s territorial integrity or political independence,91 it does not refer to the right to self-defence against cyber-attacks amounting to use of force as an exception to such general prohibition. However, the 2015 ‘Group noted the inherent right of States to take measures consistent with international law and as recognized in the Charter’.92 This can only be a reference to the right of self-defence, for the term ‘inherent right’ is drawn directly from Article 51 of that instrument and appears nowhere else in the Charter. In 2017, the twenty-five member states of the UN GGE, which included all five permanent members of the UNSC, could not reach agreement on including references to such basic international law rules as the right to ‘self-defence’ and ‘use of force’ in the consensus report that was supposed to have been issued by the group. This led to the miscarriage of the 2017 UN GGE report.93 It is worth mentioning that although China holds a similar cautious position on the jus ad bellum in cyberspace with Russia and Cuba, it has not issued a unilateral declaration to explain its own position, unlike the other two. Fortunately, despite the difficulties, the 2021 UN GGE report was successfully adopted; the 2021 report singled out the prohibition on the use of force for individual treatment,94 but the term self-defence remains absent. In the past two decades, discussion of ‘cyberwarfare’ and jus ad bellum as the applicable international law has generated great interest, especially in the Western world.95 With the development of the international rule of law in cyberspace, in recent years, various countries have expressed their views on how international law applies to cyberspace, including the United States, the UK, Germany, Finland, Australia, the Netherlands, Iran, Estonia and so on. Moreover, these statements without exception refer to the government’s understanding of jus ad bellum in cyberspace. Up to now, China has not yet issued such a unilateral statement, but it has always been a firm supporter and active participant in the process of international rule of law in cyberspace. The following section will try to sort out the general position of the Chinese government on jus ad bellum in cyberspace by combining its official statements on different international occasions and its traditional narrow understanding of issues related to the use of force, and analyse the reasons behind these positions. 10.3.1 China’s Current Position on Jus ad Bellum in Cyberwarfare In general, China’s attitude towards jus ad bellum in cyberspace adheres to the principle of nonuse of force, but as far as possible does not mention or little mentions any exception, especially exercise of the right of self-defence in cyberspace. So far, China has not fully and systematically 90 91 92 93

94

95

Report of the GGE, UN Doc. A/68/98, 24 June 2013, paras. 19, 23. Report of the GGE, UN Doc. A/70/174, 22 July 2015, para. 26. Ibid., para. 28(3). See Michael Schmitt, ‘Norm-Skepticism in Cyberspace? Counter-Factual and Counterproductive’, Just Security (28 February 2020,), www.justsecurity.org/68892/norm-skepticism-in-cyberspace-counter-factual-and-counterproduct ive/; Michael Schmitt and Liis Vihul, ‘International Cyber Law Politicized: The UN GGE’s Failure to Advance Cyber Norms’, Just Security (30 June 2017,), www.justsecurity.org/42768/international-cyber-law-politicized-ggesfailure-advance-cyber-norms/. Report of the GGE on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, UN Doc. A/76/135, 14 July 2021, para. 71(d). For example, the Tallinn Manual on International Law Applicable to Cyber Warfare prepared by a group of experts from Western countries focussed almost exclusively on the application of jus ad bellum and law of armed conflict (LOAC) in cyberspace; Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge: Cambridge University Press, 2013).

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

214

Zhixiong Huang and Yaohui Ying

spelt out its views on the right to use force in cyberspace, and it opposes too much discussion of these issues. Domestically, China has issued numerous laws, regulations and declarations about cyberspace, but none of them specifically addresses jus ad bellum issues. In theory, there is no problem with the application of the jus ad bellum provisions of the UN Charter in cyberspace, including the right to self-defence. The articles of the UN Charter have been written in a way that allows sufficient flexibility to adapt and apply to new developments in international security, such as evolution in the field of cyber operations. China certainly supports this view. For instance, at the 7th US–China Internet Industry Forum in 2015, Ma Xinmin, then deputy director-general of the Department of Treaty and Law Ministry of Foreign Affairs (MFA), acknowledged that, in principle, existing international law, including ‘the purposes and principles of the UN Charter, such as [the] jus ad bellum rule of non-use of force except in self-defense or under UN Security Council’s authorization … shall be directly applicable to cyberspace’.96 However, he emphasized that applying the existing rules of jus ad bellum in general to cyberwarfare should be conducted ‘with great caution’ because of the lack of state practice on cyberwarfare and the peculiarities of cyberspace, including many legal and technical issues, such as identification, tracing and establishment of state responsibility.97 Since 2011, China has stressed on many occasions that all countries should adhere to the principle of prohibition of the use of force enshrined in the UN Charter in the cyber context. For instance, the joint Sino–Russian proposal for an International Code of Conduct for Information Security stipulated the need ‘to settle any dispute resulting from the application of the code through peaceful means and to refrain from the threat or use of force’. On the other hand, the Chinese government is sceptical of the heated discussion of exceptions to justify the use of force in cyberwarfare, believing that Western countries are cherry-picking on this issue. The more detailed the discussion of exceptions to the use of force, the more dangerous it is. For instance, at the 2013 Seoul Conference on Cyberspace, Dr Huang Huikang, a legal adviser of the MFA, underlined the emphasis on ‘making exceptions for cyber warfare or self-defense, while the non-use of force principle has been marginalized’ and ‘the risk of sliding towards the militarization of cyberspace’.98 The principled position on the prohibition of the use of force in cyberspace and the prudent handling of issues related to jus ad bellum were repeatedly mentioned. For example, the 2017 International Strategy of Cooperation on Cyberspace99 clearly stipulated that ‘China is dedicated to promoting each party in effectively complying with the basic international relationship rules such as … refraining from use or threat of force … so that the cyberspace will not become a new battlefield.’ Furthermore, in its submission to the UN Open-Ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security (OEWG), China emphasizes that ‘the willful use of force, punitive and confrontative countermeasures should be prevented … The applicability of the law of armed conflicts and jus ad bellum needs to be handled with prudence.’100 96

97 98

99

100

Ma Xinmin, ‘Letter to the Editors: What Kind of Internet Order Do We Need?’ (2015) 14 Chinese Journal of International Law, at 401. Ibid., at 403. ‘Working Together to Build a Harmonious and Progressive International Cyberspace Order’, Remarks by Dr Huang Huikang, Legal Adviser of the Ministry of Foreign Affairs of the People’s Republic of China, at the Seoul Conference on Cyberspace, Seoul, 17 October 2013. Ministry of Foreign Affairs and Cyber Administration of China, ‘International Strategy of Cooperation on Cyberspace’ (1 March 2017), www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/jks_665232/kjlc_665236/ qtwt_665250/201703/t20170301_599869.html. China’s Submissions to the Open-Ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security (12 September 2020), 6, www.un.org/disarmament/ wp-content/uploads/2019/09/china-submissions-oewg-en.pdf.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum

215

China appears to be very cautious about this issue. During the 2019 annual meeting of the Asian–African Legal Consultative Organization, China’s representative explained: [F]irstly, no cyber wars shall be permitted; and secondly, cyber war will be a totally new form of high-tech war. Given the ‘digital gap’ between developing and the developed countries, [and that] developing countries in general will be in a disadvantaged position in the discussion and development of such rules, it will be difficult to ensure the rules are fair and equitable.101

Apart from the aforementioned reasons, there are several factors explaining China’s prudence on the application of jus ad bellum in cyberspace. First, China attaches great importance to the peaceful use of cyberspace, and renders that too much discussion of the right to resort to force (especially in the name of self-defence) would have a potentially negative impact on international peace and security, aggravating an arms race and militarizing cyberspace.102 It should be admitted that most states now recognize, albeit to different degrees, that it is unhelpful to rely on the military paradigm as the first port of call when analysing interstate malicious cyber operations.103 Yet the complexity of the disagreement on the application of jus ad bellum lies in the fact that the debate has been very much politicized. From a purely legal point of view, one may well argue that there is no real legal obstacle to their application. Second, given the obvious power disparity in terms of internet technology and cyber infrastructure between China and the major Western powers, and the already decreased strategic trust, China is reasonable to worry that it could well be the potential target and victim of use of force in cyberspace. Thus, it repeatedly made the call that ‘the lawfulness of cyber war should not be recognized under any circumstance. States should not turn cyberspace into a new battlefield.’104 In addition, as an emerging power that is seeking to play a larger role in the formulation of international law in cyberspace, China’s generalized and vague official rhetoric concerning the issue of the applicability of the jus ad bellum in cyberspace may not only be an expression of its long-standing adherence to the non-use of force principle but also serve as a bargaining lever in the formulation of treaties regulating the use of cyber force or involving cyber disarmament. The exact term ‘self-defence’ in cyberspace does not appear in any of the Chinese government’s submissions to OEWG or the GGE so far, but that does not mean there is no discussion in China about the right to self-defence in cyberspace. Since the 2019 Wuzhen Internet Conference, several Chinese think tanks have jointly released documents that elaborate on the concept and practices of sovereignty in cyberspace every year; up to now there are three editions. The document titled Sovereignty in Cyberspace: Theory and Practice defines the concept and fundamental principles of sovereignty in cyberspace and elaborates on related practices of different countries, especially China, in recent years. In defining the concept of cyber sovereignty, version 1.0 of Sovereignty in Cyberspace: Theory and Practice mentions that sovereignty includes the right to self-defence and further indicates that ‘a sovereign state has the right to take legal and proper measures under the framework of the UN Charter to protect its legitimate rights and interests in cyberspace from external infringement’.105 In the version 2.0 of this document, a rights–duty dichotomy is used to elaborate on the concept of cyber sovereignty, 101

102 103

104 105

Verbatim Record of the Fifty-Eighth Annual Session: Dar es Salaam, 2019, AALCO/58/DAR ES SALAAM/2019/ VR, 176. Verbatim Record of the Fifty-Fourth Annual Session: Beijing, 13–17 April 2015, AALCO/54/ BEIJING/2015/VR, 177. Zhixiong Huang and Kubo Macˇa´k, ‘Towards the International Rule of Law in Cyberspace: Contrasting Chinese and Western Approaches’ (2017) 16 Chinese Journal of International Law, para. 85 (p. 40). China’s Submissions to the Open-Ended Working Group, supra note 101, at 6. Sovereignty in Cyberspace: Theory and Practice, https://2019.wicwuzhen.cn/web19/release/201910/ t20191021_11229796.shtml.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

216

Zhixiong Huang and Yaohui Ying

one notable change being that the term ‘self-defence’ from version 1.0 is revised to ‘cyberdefence’ in the last two versions. In the elaboration, in addition to affirming ‘the right to adopt lawful and reasonable measures under the framework of the UN’ mentioned in version 1.0, the latest two versions also add new content, namely, ‘the right to conduct capacity building on cyber security’.106 It is a pity that these three documents affirm only the right of self-defence in cyberspace without mentioning substantive content, such as the threshold of the use of force in cyberspace, the preconditions of exercising the right of cyber self-defence or the application of the humanitarian intervention and responsibility to protect in cyberspace. In the latest Position Paper on Cyber Sovereignty submitted by China to the UN OEWG, the term ‘defence’ is mentioned in the discussion of the connotation of sovereignty in cyberspace,107 but unfortunately the relevant reference is very brief. Although the term ‘self-defence’ is still not mentioned directly, the use of the term ‘defence’ may be more out of political caution since it can only be interpreted as a right of self-defence; otherwise, it is difficult to meet the ‘lawful and reasonable measures under the framework of the UN Charter’108 explained in the reference. It is also worth noting that Chinese scholars have been paying attention to this issue for several years.109 10.3.2 Potential Development of the Chinese Approach to Jus ad Bellum in Cyberspace Owing to the interconnectedness and anonymity of cyberspace, attribution is a big problem in applying the law of the jus ad bellum. Because of this tendency, some Western scholars have made expanded explanations, such as putting forward due diligence as a new attribution standard,110 or directly allowing the exercise of the right of self-defence against non-state actors.111 Some states have articulated progressive positions in their own unilateral statements on jus ad bellum in cyberspace, such as the cumulative self-defence proposed by France,112 the anticipatory self-defence pioneered by Australia113 and self-defence against non-state actors endorsed by countries such as Israel.114 These claims have clearly gone beyond the scope of lex lata. Even as radical views emerge, China’s relative rhetoric remains conservative. At present, these 1 06

107 108 109

110

111

112 113

114

Sovereignty in Cyberspace: Theory and Practice (Version 2.0), www.wuzhenwic.org/download/ SovereigntyinCyberspaceTheoryandPractice(Version2.0).pdf; Sovereignty in Cyberspace: Theory and Practice (Version 3.0), www.wicwuzhen.cn/web21/information/Release/202109/t20210928_23157328.shtml. China’s Views on the Application of the Principle of Sovereignty in Cyberspace, https://bit.ly/3OPRnGS. Ibid. See, e.g., Hua Zhang, The Legal Approach of Applying the Prohibition of the Use of Force Doctrine in Cyberspace’ (2022) 226(2) China Legal Science, 283–304 [张华 : 《网络空间适用禁止使用武力原则的法律路径》, 《中国 法学》2022年第2期]; Zhixiong Huang, ‘International Legal Issue Concerning Cyber Warfare and Strategy for China: Focusing on the Field of Jus ad Bellum’ (2015) 37(5) Modern Law Science, 145–58 [黄志雄 : 《国际法视角 下的“网络战”及中国的对策 – 以诉诸武力权为中心》, 《现代法学》2015年第5期]; Hua Zhang, ‘Legal Uncertainties Concerning the Application of Self-Defence Right in Cyberspace and China’s Position Expression: Reflections on Most Recent Papers on Positions of the Relevant States’ (2021) 244(6) Social Science in Yunnan, 81–92 [张华 : 《网络空间适用自卫权的法律不确定性 – 基于新近各国立场文件的思考》, 《云南社会科学》2021 年第6期]. Luke Chircop, ‘A Due Diligence Standard of Attribution in Cyberspace’ (2018) 67 International and Comparative Law Quarterly, at 643–68. Nicholas Tsagourias, ‘Cyber Attacks, Self-Defence and the Problem of Attribution’ (2012) 17 Journal of Conflict and Security Law, at 229. See International Law Applied to Operations in Cyberspace, 9 September 2019, para. 1.2.2, https://bit.ly/45qlqMn. See Australia’s Submission on International Law to be Annexed to the Report of the 2021 GGE on Cyber, p. 3, https:// bit.ly/3QVWt78. Roy Scho¨ndorf, ‘Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations’ (2021) 97 International Law Studies, at 395.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

10 The Chinese Approach to Jus ad Bellum

217

statements of the Chinese government are very general, without any substantive clarification on the operational level; they are more to declare a firm attitude towards the peaceful use of cyberspace. Despite the obstacles posed by the unique nature of cyberspace to the application of existing jus ad bellum, we can reasonably assume that the Chinese approach on jus ad bellum in cyberspace will largely adhere to its general interpretation. Most of the restrictive interpretations of traditional international law’s rules on the use of force would also extend to cyberspace. For example, it is unlikely that China will accept any rule that aims to lower the threshold for the use of force and armed attack. The Chinese government almost certainly would still hold against the concept of pre-emptive self-defence and humanitarian intervention. As a typical proponent of multilateralism, China would certainly continue to firmly uphold the integrity and the authority of the UNSC, which functions as the core of the international collective security mechanism. This largely inherited position does not mean that China will by no means recalibrate its stance. As China’s cyber power grows globally, so does its overseas interests to protect, which may lead China to adopt a more open stance on the jus ad bellum. At present, some states115 share the view expressed in the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations:116 the threshold of use of force in cyber operations is defined, in analogy to the ICJ’s Nicaragua judgment, by the scale and effects117 of such a cyber operation. Further, whether a cyber operation with no physical consequences constitutes a use of force is likely to be more controversial. China has yet to comment on the issue, but it will need to do so sooner or later. It remains to be seen whether China will adapt to the application of specific rules in cyberspace, such as by easing up on the right of anticipatory self-defence or recognizing self-defence against non-state actors in certain circumstances. Although there are few specific treaties that are applicable to cyberspace, states have recognized the application of the UN Charter in cyberspace and stressed their adherence to the principle of non-use of force. Many countries have published their position papers on the application of international law in cyberspace, most of which involve their understanding of jus ad bellum in cyberspace.118 In the future, China may perhaps issue its own unilateral declaration of ‘China’s position on the application of international law in cyberspace’ based on certain actual conditions. If there is to be a governmental statement about how China interprets international law in cyberspace, the use of force and the right to self-defence will very likely be covered. So far, no state that has issued such a statement skipped this issue. Even if China makes the unilateral statement about the applicability of international law in cyberspace, it is unlikely to comment much more than in relation to adherence to the prohibition of use of force. But more pragmatically, China’s attitude to the use of force in cyberspace is likely to be reflected in its response to individual cyber incidents or cyber operations, or in discussions under the UN framework. Just as is mentioned in the 2005 Position Paper, given the varying causes and natures of crises, it is hugely controversial and thus unrealistic to formulate a ‘one-fits-all’ rule or

115

116

117

118

For instance, Germany, Position Paper on the Application of International Law in Cyberspace, March 2021, https:// bit.ly/3PcIWGU; Netherlands, International law in Cyberspace, September 2019, https://bit.ly/3YO7f19; Finland, National Positions on International Law and Cyberspace, https://bit.ly/3KW4Pry. Michael N. Schmitt (ed.), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd ed. (Cambridge: Cambridge University Press, 2017), Rule 69–71. ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 195. For the list of publicly available national positions on the application of international law to cyber operations, see https://cyberlaw.ccdcoe.org/wiki/Category:National_position.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

218

Zhixiong Huang and Yaohui Ying

criterion on the use of force. And whether to use force or not should be decided by the UNSC in light of the reality of cyber incidents on a case-by-case basis.119 10.4 CONCLUSION

By surveying China’s general approach to the law of jus ad bellum, this chapter has attempted to glean insights into its application to cyberwarfare. China’s approach to the jus ad bellum has been consistent and largely coherent for much of its recent history. For the Chinese government, the UN Charter’s prohibition on the use of force should be interpreted using standard positivist tools of text, drafting history and judicial interpretation. These positivist tools have led China to consistently endorse a ‘restrictivist’ understanding of the UN Charter that prohibits any use of military force by one state against another absent authorization from the UNSC or a situation involving self-defence. Although China’s government has expressed strong support for the ‘inherent’ right of self-defence contained in Article 51 and has typically tried to frame its own military actions in this rubric, China has long been concerned that states might abuse this right. This concern will likely animate Chinese critiques of emerging US positions on the application of this right in the context of cyberwarfare. In this sense, China would likely maintain its ‘wait and see’ approach regarding the jus ad bellum in cyberspace and continue its overall restrictive understanding of the relevant rules in cyberspace. However, as China faces the anonymity of cyberspace and the increasing frequency of cyber-attacks, the possibility that it will adopt a more flexible understanding of some specific rules cannot be completely ruled out.

119

Chinese Ministry of Foreign Affairs, supra note 15.

https://doi.org/10.1017/9781009041133.012 Published online by Cambridge University Press

11 China and International Terrorism Law Congyan Cai and Yifei Wang

11.1 INTRODUCTION

In the 1970s, terrorism was a serious public security threat in some countries. This led to the drafting of several international conventions1 and many national counterterrorism laws.2 However, terrorism was not a serious threat to public security in China and the country consequently did not pass any specific law to address terrorist activities. As the terrorist threat grew in China in the 1990s, China included the crime of terrorism in an amendment to its 1979 Criminal Law in 1997. In addition, China increased its engagement with international terrorism law. For instance, in 2001 it amended its Criminal Law to implement United Nations Security Council (UNSC) Resolution 1373, which had been adopted in the same year and which required among other things that all United Nations (UN) members should criminalize the financing of terrorism. It was not until the 2010s that China’s counterterrorism policy began to attract international concern.3 As terrorism became an international priority, China upgraded its counterterrorism legal practice. In 2015, it adopted the Counter-Terrorism Law (CTL) as a basic law to address terrorism. This new law aroused great controversy because it gave the executive branch great discretion to initiate a wide range of counterterrorism measures. In addition, the government’s counterterrorism operations in the Xinjiang Uyghur Autonomous Region (XUAR) involved various repressive measures that are potentially open to abuse.4 It has also been alleged that China’s government violates human rights in the XUAR under the pretext of fighting terrorism. As a result, the United States and some other Western states have adopted laws that impose severe sanctions, including on personal travel and particular imports.5 China’s government has firmly rejected these accusations and has claimed that its counterterrorism actions were and remain consistent with both Chinese and international law as well as all relevant UN counterterrorism resolutions. It also claimed that its systematic measures had 1 2

3

4

5

Omer Y. Elagab, International Documents Relating to Terrorism, 2nd ed. (London: Cavendish, 1997). United Nations, National Laws and Regulations on the Prevention and Suppression of International Terrorism: Part I (New York: United Nations, 2002). See, e.g., Michael Clarke (ed.), Terrorism and Counter-Terrorism in China: Domestic and Foreign Policy Dimensions (New York: Oxford University Press, 2018); Murray Scot Tanner, China’s Response to Terrorism (Washington, DC: CAN, 2016). See, e.g., Mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Counter-Terrorism Law of the People’s Republic of China and Its Regional Implementing Measures et al., the 2016 Xinjiang Uyghur Autonomous Region Implementing Measures, OL CHN 18/ 2019, 1 November 2019, https://bit.ly/3DBHpDP. See, e.g., Uyghur Human Rights Policy Act, Pub. L. 116-145 (2020); Uyghur Forced Labor Prevention Act, Pub. L. 117-78 (2021).

219 https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

220

Congyan Cai and Yifei Wang

effectively tackled terrorist activities and threats in Xinjiang, protected (not violated) human rights and contributed to international counterterrorism.6 These claims were both accepted and rejected by other countries.7 China rejected criticisms of its counterterrorism actions as products of geopolitical calculations and ideological bias and, in the case of the United States, of a continuing application of double standards in counterterrorism policy.8 In addition to this introductory section, this chapter consists of five sections. Section 11.2 first demonstrates the significance of counterterrorism for China and international society and then reviews different narratives on China’s counterterrorism. Section 11.3 investigates China’s counterterrorism lawmaking at both the domestic and the international level. After the late 1990s and especially after the September 11 terrorist attacks in 2001 (9/11), the UNSC emerged at the forefront of international counterterrorism and adopted many resolutions that imposed demanding obligations on UN members. Section 11.4 therefore examines how these UN counterterrorism resolutions are enforced in China. While many countries’ counterterrorism activities have been strongly criticized, China has encountered particularly strong criticism, and especially for its operations in Xinjiang. Section 11.5 first attempts to recalibrate the relationship between counterterrorism and human rights protection, and then tries to evaluate the implications of counterterrorism measures for human rights in China. Section 11.6 concludes. 11.2 THE SIGNIFICANCE AND NARRATIVES OF CHINA’S COUNTERTERRORISM POLICY

11.2.1 The Significance of China’s Counterterrorism Policy The 1972 Munich Olympic Games terrorist attack, which resulted in the deaths of seventeen Israeli athletes, was a turning-point in international perceptions of terrorism. In the aftermath of the attack, many countries enacted or strengthened counterterrorism laws.9 They also sought to enhance international cooperation on counterterrorism, especially by negotiating conventions against terrorism.10 In the following two decades, however, counterterrorism did not concern China’s government and the term rarely, if ever, appeared in policy debates. However, the country actually faced an internal threat at the time in the form of violent activities in Xinjiang that continued from the early twentieth century to the 1980s. At the time, they were called ‘separatist’ or ‘counter-revolutionary’ acts but they would today be described as ‘terrorism’. For instance, organizers of riots in Xinjiang in the early 1950s called on Uyghurs to ‘unite under the moon-and-star banner to create an Islamic republic’.11 As international terrorist networks spread worldwide and connections between China and the outside world became closer, China was exposed to graver terrorist threats in the 1990s and especially in the 2000s. Terrorist activities in China occurred more frequently in Xinjiang, and also in other regions beyond it, causing more casualties and greater damage.12 For instance, on 6

7

8 9 10 11 12

See, e. g., the State Council Information Office of China, The Fight Against Terrorism and Extremism and Human Rights Protection in Xinjiang (March 2019), parts IV–VII, www.scio.gov/zfbps/ndhf/39911/Document/1649933/ 1649933.htm. Chinese Ministry of Foreign Affairs, ‘50 Countries Co-signed Letter to President of UN Human Rights Council and UN High Commissioner for Human Rights in Support of China’s Position on Xinjiang-related Issues’ (26 July 2019), www.mfa.gov.cn/eng/dbtzyhd/t1683829.htm. See, e.g., The Fight Against Terrorism, supra note 6, at part VII. United Nations, National Law and Regulations, supra note 2. See Section 11.2. The Fight Against Terrorism, supra note 6, at part II. Tanner, supra note 3, at 19–35.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

221

4 August 2008, terrorists attacked a local police office in Kashgar killing sixteen persons and injuring the same number. And on 22 May 2014 five terrorists bombed a morning fair market in ¨ ru¨mqi (the capital of Xinjiang) killing thirty-nine persons and wounding ninety-four.13 The U ¨ ru¨mqi in July 2009 were especially dramatic. It was damage and casualties caused by riots in U reported by foreign media that 197 people died, most of whom were not Muslim minorities; more than 1,700 were injured and many public facilities and private properties were destroyed.14 Despite this, some Western observers claim that China’s government exaggerates the terrorist threats it faces with the intention of justifying sweeping and repressive measures in Xinjiang.15 Given the breadth of China’s definition of terrorism and its preventive approach to it,16 such concerns are clearly not ungrounded. However, the government quite clearly has grounds for failing to fully disclose the casualties and damage caused by terrorism. This is so because complete disclosure could create greater panic among the public, which could, in turn, translate into an internal exodus of the Han population to other parts of China, and damage the legitimacy of China’s government and the Chinese Communist Party (CCP), the sole ruling party in China. For instance, it was only 10 years after the aforementioned terrorist attacks in ¨ ru¨mqi that the government admitted that 197 persons had actually been killed and more than U 1,700 wounded. Again, after a separate terrorist attack on 18 September 2015, a foreign media report claimed that the number killed (fifty) was more than three times the government’s reported figure (sixteen).17 The international counterterrorism narrative that emerged after the 9/11 attacks on the New York World Trade Center in 2001 obviously inspired China. It therefore began to take advantage of the terrorist narrative to identify ‘terrorists’ (who would previously have been called ‘separatists’ or ‘counter-revolutionaries’ and would have been considered ‘political offenders’ and therefore eligible for some form of protection under international law (e.g. under the principle of non-extradition of political offenders)). China also drew on the ‘terrorism’ narrative to develop a counterterrorism policy and legal system.18 On 25 September 2001, two weeks after the 9/11 attacks, China issued a position paper on counterterrorism, declaring a ‘no-compromise’ stance on terrorism and outlining its counterterrorism policy.19 On 11 October 2001, the spokesperson for China’s Ministry of Foreign Affairs (MFA) spoke at length about the actions of ‘East Turkistan terrorists’ in Xinjiang, which was the first time the government used this phrase in connection with the violence in Xinjiang. More noticeable was the fact that the spokesperson urged the international community to help China to fight terrorism.20 This arguably showed China’s willingness to use the ‘terrorism narrative’ to justify relevant actions and respond to international reactions. Consequently, China has domestically identified terrorism as a serious 13

14 15

16 17

18 19

20

The Fight Against Terrorism, supra note 6, at part III, www.scio.gov/zfbps/ndhf/39911/Document/1649933/1649933 .htm. ¨ ru¨mqi riots’, https://en.wikipedia.org/wiki/July_2009_U ¨ ru¨mqi_riots. ‘The July 2009 U Sean Roberts, ‘The Narrative of Uyghur Terrorism and the Self-Fulfilling Prophecy of Uyghur Militancy’ in Michael Clarke (ed.), Terrorism and Counter-Terrorism in China: Domestic and Foreign Policy Dimensions (New York: Oxford University Press, 2018), 99–127. See Sections 11.3.1 and 11.5. Compare The Fight Against Terrorism, supra note 6, part III, and Shohet Hoshur, ‘Death Toll in Xinjiang Coal Mine Attack Climbs to 50’, Radio Free Asia (30 September 2015), www.rfa.org/english/news/uyghur/attack09302015174319.html. See Section 11.3.1. Ministry of Foreign Affairs of China, China’s Position Paper against International Terrorism (25 September 2001), www.mfprc.gov.cn/ce/ceun/eng/zghlgh/hphaq/fk/t26910.htm. China’s Foreign Ministry Spokesman, ‘International Community Should Help China Combat Separatists in Xinjiang’, AFP (11 October 2001), cited in Tanner, supra note 3, at 24–5.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

222

Congyan Cai and Yifei Wang

threat to national security, social stability and human rights.21 In multilateral and regional forums it has repeatedly explained and defended its counterterrorism policy and practice, and called for more international cooperation on counterterrorism.22 Xinjiang is clearly at the forefront of China’s counterterrorism campaign, and it has therefore become a diplomatic flashpoint between China and some other countries in recent years.23 As China emerges as a leading power with global interests, counterterrorism has become more significant. Terrorism threatens China’s ambitious international economic strategy, including the Belt and Road Initiative (BRI).24 Many of the BRI participating countries are gravely plagued by terrorism, which destabilizes these countries’ security and business environments. In some BRI countries, it has been reported that Chinese investment projects have been disrupted and Chinese employees have been kidnapped, injured or killed by terrorists.25 A more powerful China is expected to play a prominent role in combating international terrorism, and in particular that sourced in its neighbouring Central Asia region. Since the 1990s, this region has been a major source of international terrorism. Osama bin Laden coordinated the 9/11 attacks in 2001 from Afghanistan. Shortly after the 9/11 attacks the United States launched its ‘war on terror’ and remained in Afghanistan with other members of the North Atlantic Treaty Organization (NATO). However, in August 2021 the United States and NATO withdrew from Afghanistan and this enabled the Taliban to immediately take over the whole of the country. China’s Afghanistan-friendly policy, in particular with its economic assistance, is expected to help Afghanistan restore its economy.26 Together with other members of the Shanghai Cooperation Organisation (SCO), China is expected to put pressure on the Taliban to renounce terrorism. For instance, on 17 September 2021, China’s President Xi Jinping urged ‘relevant parties in Afghanistan to resolutely crack down on and eradicate terrorist organisations in the Afghan territory and prevent terrorist forces in Afghanistan from wreaking havoc’.27 It was reported that the Taliban responded positively to China’s appeal.28 China also linked counterterrorism to its recognition of the Taliban interim government. On 31 March 2022 in the third foreign ministers’ meeting on the Afghan issue among countries that neighbour Afghanistan (and the first meeting that included Afghanistan), Chinese Foreign Minister Wang Yi, the

21

22

23

24 25

26

27

28

Art. 1 of China’s Counter-Terrorism Act (2015, as amended in 2018) [《中华人民共和国反恐怖主义法 (2018年修 正)》, 第1条]. See Vikash Chandra, ‘Rising Powers and International Organizations: The Case of China’s Counter-Terrorism Strategy at the United Nations’ (2019) 55 China Report, 125–44, at 127–39; Wang Jin and Kong Dehang, ‘CounterTerrorism Cooperation between China and Central Asian States in the Shanghai Cooperation Organization’ (2019) 5 China Quarterly of International Strategic Studies, at 65. Almost all white papers in relation to counterterrorism issued by the State Council Information Office of China relate to counterterrorism efforts in Xinjiang. They, in particular, include The Fight Against Terrorism, supra note 6; Vocational Education and Training in Xinjiang, issued in August 2019, www.scio.gov/zfbps/ndhf/39911/Document/ 1662043/1662043.htm; and Freedom of Religious Belief in Xinjiang, issued in June 2016, www.scio.gov/zfbps/ndhf/ 34120/Document/1479256/1479256.htm. As to the BRI, see Chapter 2 in this volume. Christina Lin, ‘The ISIS Challenges to China’s Silk Road and Prospect for Counter-Terrorism Cooperation’ (2016) 11 Liberty University Law Review, at 487. ‘Taliban Rolls Out Red Carpet to China’s Belt and Road Initiative’, https://bit.ly/3qkUuhx. It was reported that a ‘Pine Nuts Air Corridor’ was opened to facilitate the importation of pine nuts, a major exporting good of Afghanistan, to China. ‘Air Corridor of Pine Nuts: A Bridge of Friendship between China and Afghanistan’ (11 January 2022), af.china-embassy.org/eng/sgxw/202201/t20220111_10480912.html. ‘Xi Jinping Attends the Meeting in Afghanistan of the Heads of State of the SCO and the Collective Security Treaty Organization’ (17 September 2021), https://bit.ly/44UF9DF. ‘Taliban “Removing” Uyghur Militants from Afghanistan’s Border with China’, www.rferl.org/a/afghanistan-talibanuyghurs-china/31494226.html.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

223

Chinese host, said that efforts by the interim government to combat terrorism would help it achieve diplomatic recognition.29 Generally speaking, the counterterrorism policy outlined in the aforementioned 2001 position paper on counterterrorism remains unchanged. There, China listed several core elements in its counterterrorism policy: (a) all forms of terrorism should be opposed; (b) states should take the necessary measures to prevent and punish terrorist activities and especially prevent their territories being used to initiate terrorist activities against other countries; (c) states should combat terrorism in accordance with the UN Charter and international law; (d) states should strengthen international cooperation to combat terrorism; (e) the UN should take the lead in counterterrorism by establishing and improving counterterrorism mechanisms.30 Recently, China has responded to mounting criticism from some Western countries of its repressive counterterrorism measures in Xinjiang by outlining a commitment to not uphold ‘double standards’ on counterterrorism.31 The fight against terrorism and extremism is a global challenge. Over the years, various countries and regions have adopted separate measures to prevent and combat terrorism and extremism that are based on their historical and cultural traditions, level of social and economic development and citizens’ level of education and employability.32 11.2.2 China’s Counterterrorism Narratives There are two counterterrorism narratives in China. China claims that it conducts counterterrorism activities to ‘safeguard national security, public security and the security of people’s lives and property’.33 These activities are also an indispensable part of international counterterrorism. China conducts counterterrorism in accordance with counterterrorism resolutions adopted by the UNSC and the UN General Assembly (UNGA), along with UN Charter-based international law.34 Moreover, China has made a methodological contribution to international counterterrorism by exploring efforts to address the ‘root cause’ of terrorism in its own context.35 Finally, according to some official voices within China, some Western countries (especially the United States) are not concerned with terrorism in Xinjiang but instead are using Xinjiang to contain China’s rise. For instance, a Chinese MFA spokesperson referred to a remark made by Lawrence Wilkerson, former chief of staff, to former US secretary of state Colin Powell and a retired US Army colonel, during a speech at the Ron Paul Institute in August 2018. He claimed that ‘[the Central Intelligence Agency (CIA)] would want to destabilize China and that would be the best way to do it to foment unrest and to join with those Uyghurs in pushing the Han Chinese in Beijing from internal places rather than external’ and he added that one of the major reasons for the US Army staying so long in Afghanistan was that ‘there are 20 million Uyghurs [in Xinjiang]’.36 On this basis, the spokesperson concluded that the ‘true [US] intention is to undermine China’s security and stability and stop China from growing stronger’.37 29

30 31 32 33 34 35 36 37

‘Wang Yi Talks about Diplomatic Recognition of the Afghan Interim Government’ (1 April 2022), www.fmprc.gov.cn/eng/ zxxx_662805/202204/t20220401_10662740.html. China’s Position Paper against International Terrorism, supra note 19. See, e.g., The Fight Against Terrorism, supra note 6, at part VII. Ibid., part I. Art. 1 of China’s Counter-Terrorism Act, supra note 21. The Fight Against Terrorism, supra note 6, foreword and part VII. Ibid., part VI. Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on 26 March 2021, https://bit.ly/3KqU3tc. Ibid.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

224

Congyan Cai and Yifei Wang

However, there is a competing narrative on China’s counterterrorism that is prominent in some Western countries. This holds that China uses the universal counterterrorism narrative to justify its authoritarian rule and to delegitimize any competing ideology. This supports the narrative that China’s counterterrorism measures violate human rights and also perpetuates the view that China’s government exaggerates the terrorist threat to expand restrictions on other offences.38 This is also linked to the view that counterterrorism is a CCP rather than a government agenda issue.39 Both narratives have ‘blind spots’. In the first instance, China can justifiably claim that it is imperative to combat terrorism and that counterterrorism actually protects the human rights of the Chinese people. However, it seems that the government downplays the risk of human rights violations occurring during sweeping, preventive and repressive counterterrorism measures. This is indeed a common ‘counterterrorism’ challenge in almost all countries. Indeed, the government rarely addresses the question of whether counterterrorism measures are excessive and violate civilians’ human rights. However, the competing narrative actually indicates a grave risk in China and other countries, namely that counterterrorism measures are likely to be misused or abused in a way that infringes human rights. However, this narrative reduces the credibility of the underlying ideological bias or geopolitical calculation. Its proponents show no concern for serious terrorist threats and China’s great counterterrorism achievements. Sean Roberts, for example, claims that China’s counterterrorism in Xinjiang is merely a ‘self-fulfilling prophecy’.40 11.3 CHINA AND THE CULTIVATION OF COUNTERTERRORISM LAW

11.3.1 China’s Domestic Counterterrorism Laws While China lagged behind many other countries in terms of counterterrorism legislation, its Criminal Law (1979) did address this challenge.41 Chapters One (Crimes of Counterrevolution)42 and Two (Crimes Endangering Public Security) included criminal offences that should arguably be identified as terrorist activities.43 In response to the growth in terrorist activities after the 1990s, 38

39

40 41

42

43

See, e.g., Elisa Bertiolini, ‘Internet Governance and Terrorism in the Context of the Chinese Compression of Fundamental Rights and Freedoms’ (2018) 18 Global Jurist, at 1; Roberts, ‘The Narrative of Uyghur Terrorism’, supra note 15, at 99–128. See, e.g., Julia Famularo, ‘“Fighting the Enemy with Fists and Daggers”: The Chinese Communist Party’s CounterTerrorism Policy in the Xinjiang’ in Michael Clarke (ed.), Terrorism and Counter-Terrorism in China: Domestic and Foreign Policy Dimensions, 39–74 (New York: Oxford University Press, 2018); Sheena Chestnut Greitens, Myunghee Lee and Emir Yazici, ‘Counterterrorism and Preventive Repression: China’s Changing Strategy in Xinjiang’ (2022) 44 International Security, at 9. Roberts, ‘The Narrative of Uyghur Terrorism’, supra note 15, at 103. Adopted at the Second Session of the Fifth National People’s Congress on 1 July 1979, promulgated by Order No. 5 of the Chairman of the Standing Committee of the National People’s Congress on 6 July 1979 and effective as of 1 January 1980. For instance, Art. 106 provides that ‘whoever sets fires, breaches dikes, causes explosions, spreads poisons or uses other dangerous techniques resulting in serious human injury or death or great loss of public or private property shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or death’. For instance, Art. 102 stipulates that whoever, for the purpose of counterrevolution, commits any of the following acts shall be sentenced to fixedterm imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights, and ringleaders or others whose crimes are very serious shall be sentenced to fixed-term imprisonment of not less than five years: (1) inciting the masses to resist or sabotage the implementation of the state’s laws or decrees; or (2) propagandizing for and inciting the overthrow of the political power of the

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

225

and especially the bombings on public buses, which caused massive casualties and damage in Xinjiang in February 1997,44 China’s National People’s Congress (NPC) amended the Criminal Law (1979) in 1997 by adding Article 120 (the Crime of Forming, Leading and Participating in a Terrorist Organisation). This established that ‘whoever forms, leads or actively participates in a terrorist organisation shall be sentenced to imprisonment of not less than three years but not more than 10 years; other participants shall be sentenced to imprisonment of not more than three years, criminal detention or public surveillance’. Chapter One on Crimes of Counterrevolution in the Criminal Law (1979) was restructured and a new title, ‘Crimes of Endangering National Security’, was added to it. The 1997 Criminal Law had several drawbacks, however. In particular, it did not establish who is empowered to identify ‘terrorist organisations’ and how they would do it. Indeed, Article 120 remained dormant for a long period of time45 and those who were held to have committed terrorist crimes were handled using other provisions. This reduced the criminal law’s effectiveness in combating terrorism, and especially in preventing terrorism.46 On 28 September 2001, the UNSC adopted Resolution 1373, which obliged UN member states to criminalize terrorist activities, including the financing of terrorism.47 With the aim of meeting this obligation, on 29 December 2001 the NPC again amended the Criminal Law (1979).48 The main revisions were more severe penalties49 and new terrorist crimes, including the crime of financing terrorist organizations and activities.50 From this point on, the NPC updated the criminal law several times,51 and China’s judiciary and executive authorities also adopted several instruments to ensure that these laws were duly enforced.52 A comprehensive counterterrorism criminal legal framework was duly established in China.53 Chinese criminal law experts agree that a more repressive criminal law is required to fight terrorism and bring counterterrorism back into a rule-of-law framework. However, they also refer to the practice of counterterrorism criminal law in many other countries to claim that there is a threat that Chinese counterterrorism laws will be misused or abused in a way that violates

44 45

46

47 48

49

50 51

52

53

dictatorship of the proletariat and the socialist system, through counterrevolutionary slogans, leaflets or by other means. The Fight Against Terrorism, supra note 6, at part III. Wang Lin, ‘Twenty Years’ Rule of Law for Chinese Anti-terrorism: Review and Prospect’ (2021) 43 Journal of Railway Police College, at 47 n. 1 [王林 : 《我国反恐法治建设二十年 : 回顾与展望》, 《铁道警察学院学报》2021 年第1 期, 第47页脚注1]. Liu Renwen, ‘A Description and Analysis of Chinese Anti-Terrorism Criminal Legislation’ (2015) 3 Renmin Chinese Law Review, 120–41, at 122. UN Security Council, Resolution 1373, UN Doc. S/RES/1373(2001), 28 September 2001. Amendment (III) of the Criminal Law of the People’s Republic of China, adopted at the 25th Meeting of the Standing Committee of the Ninth National People’s Congress on 29 December 2001. Art. 120 of the Criminal Law of the People’s Republic of China (2001) [《中华人民共和国刑法(2001年修正)》, 第 120条]. Art. 120.1, ibid. See, e.g., Amendment (VIII) to the Criminal Law of the People’s Republic of China, adopted at the 19th Meeting of the Standing Committee of the Eleventh National People’s Congress of the People’s Republic of China, 25 February 2011; Decision on Issues concerning Strengthening Counter-Terrorism Work, adopted at the 23rd Meeting of the Standing Committee of the 11th National People’s Congress on 29 October 2011; Amendment (Ⅸ) to the Criminal Law of the People’s Republic of China, adopted at the 16th Meeting of the Standing Committee of the Eleventh National People’s Congress of the People’s Republic of China, 29 August 2015. See, e.g., the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Violent Terrorism and Religious Extremism, 9 September 2014 (as amended on 16 March 2018). See, e. g., Liu Renwen, supra note 46, at 121–8.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

226

Congyan Cai and Yifei Wang

human rights.54 Notwithstanding, it seems that Chinese counterterrorism criminal laws are not more repressive in nature than other countries’ laws. While Western observers do frequently criticize them,55 the fact remains that a greater stress is often put on China’s legal framework and related counterterrorism practice. Over time, China recognized that its criminal law was insufficient to effectively combat terrorism and that a holistic legal framework including more executive measures would be required. As the 2008 Beijing Olympic Games approached, China recognized that a separate counterterrorism law needed to be adopted alongside the criminal law.56 In November 2014, the NPC published a draft CTL with the aim of soliciting public comments and advice.57 The draft was extensively discussed in the West, and it mostly attracted negative comments. Critics focussed on the potential detrimental impacts on human rights and claimed that the draft was not consistent with international law, and particularly international human rights law.58 China faced these criticisms and adopted the CTL in 2015,59 before revising it three years later in 2018.60 According to the CTL (2018), ‘terrorism’ refers to any ‘proposition’ or ‘activity’ that, ‘by means of violence, sabotage or threat, generates social panic, undermines public security, infringes personal and property rights or menaces state authorities and international organisations for political, ideological and other purposes’. And ‘terrorist activities’ refers to the following activities of a terrorist nature: (1) organizing, planning, preparing for or carrying out activities which cause or attempt to cause casualties, grave property loss, damage to public facilities, disruption of social order and other serious social harm. (2) advocating terrorism, instigating terrorist activities or illegally holding articles advocating terrorism, or forcing other persons to wear costumes or symbols advocating terrorism in public places. (3) organizing, leading or participating in terrorist organizations. (4) providing information, funds, materials, labour, technology, places and other support, assistance and convenience to terrorist organizations, terrorists, the implementation of terrorist activities or training for terrorist activities. (5) other terrorist activities.61 The CTL also establishes that the state combats all forms of ‘extremism’, which it considers to be the ‘ideological basis of terrorism’.62 However, it does not define ‘extremism’ and only exemplifies it by referring to ‘incitement to hatred and discrimination and agitation for violence by 54

55

56 57

58

59 60 61 62

See, e.g., Liu Yanhong, ‘An Assessment and Reflection of Values of Criminal Legislation on Terrorist Crimes in the Past Twenty Years’ (2018) 30 Peking University Law Journal, 37–58, at 47 [刘艳红 : 《二十年来恐怖犯罪刑事立法 价值之评价与反思》, 《中外法学》2018年第1期, 第47页]. See, e.g., Simon Chesterman, ‘Terrorism, Surveillance and Privacy’ in Ben Saul (ed.), Research Handbook on International Law and Terrorism, 411–23 (Cheltenham: Edward Elgar, 2020); Maria Tzanou, The Fundamental Right to Data Protection: Normative Value in the Context of Counter-Terrorism Surveillance (London: Hart, 2017); Jordan J. Paust, Beyond the Law: The Bush Administration’s Unlawful Responses in the ‘War’ on Terror (Cambridge: Cambridge University Press, 2007). See, e.g., Liu Renwen, supra note 46, at 133–4. Full Text of the Counter-Terrorism Law (draft), www.npc.gov.cn/npc/c1481/201411/1634ef9ed5fc4204a2d5ca6 b8eb8581d.shtml. See, e.g., ‘China: Draft Counterterrorism Law: A Recipe for Abuses’, 20 January 2015, www.hrw.org/news/2015/01/20/ china-draft-counterterrorism-law-recipe-abuses. Adopted at the 18th Session of the Standing Committee of the 12th National People’s Congress on 27 December 2015. Adopted at the 2nd Session of the Standing Committee of the 13th National People’s Congress on 27 April 2018. Art. 3 of the CTL (2018). Art. 4 of the CTL (2015, 2018) [《中华人民共和国反恐怖主义法 (2018年修正)》, 第4条].

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

227

distorting religious teachings’.63 It states that China employs a holistic and preventive approach to counterterrorism.64 It provides a legal basis for sweeping, preventive and repressive measures, and administrative ones in particular. Article 4 of the CTL (2018) establishes that counterterrorism measures range from ‘political, economic, legal, cultural, education, diplomatic, military’ ones to ‘other means’ that the authorities deem necessary. It should be noted that many of these are also present in other countries’ counterterrorism laws, including blocking the bank accounts of suspected terrorists.65 Other provisions in this legislation have caused controversy both abroad and in China and most of these controversial measures need to be authorized by the executive branch. For instance, Article 30 establishes that after a terrorist convict has finished his/her imprisonment but he/she is viewed as still presenting a ‘threat to public security’, the penitentiary centre should submit a recommendation of ‘settlement and education in designated places’ (an zhi jiao yu [安置教育]) to a local court for a decision. If the court makes an affirmative decision, which can be appealed in a higher court, such a ‘settlement and education’ institution would be responsible for enforcing its decision. If this institution finds that the person is no longer a danger to social security, it should submit a recommendation to terminate the ‘settlement and education’ to a court for a decision. This hybrid executive-judicial measure is open to debate because the terminology ‘settlement and education’ is not described in detail in the CTL (2018) and neither is it prescribed in other Chinese laws.66 In short, the CTL (2015) and the CTL (2018) grant the executive branch great discretion in this determination beyond the sentence’s term. Being at the forefront of China’s counterterrorism policy, the XUAR has adopted two regionwide laws: the XUAR Implementing Measures for the Counter-Terrorism Law (2016, amended in 2018)67 and the XUAR Regulation on De-Radicalisation (2017, amended in 2018).68 These two regional laws clarify some ambiguities in the CTL provisions. For instance, the Implementing Measures (2018) clarify the ‘settlement and education’ procedure in several respects. They stipulate that a local court shall within one month (exceptionally two months) decide on recommending ‘settlement and education’ after receipt of a recommendation.69 In further reference to the ‘settlement and education’ procedure outlined in the CTL,70 the Implementing Measures (2018) include a provision that explicitly authorizes the establishment of ‘vocational education and training centres’.71 The Regulation on De-Radicalisation (2018) provides a definition of the ‘extremism’ that the CTL refers to. It defines ‘extremism’ as ‘propositions’ and ‘activities’ that, ‘by distorting religious teaching or with other means, incite hatred and discrimination, or advocate violence, etc.’.72

63 64 65 66

67

68 69

70 71 72

Ibid. The Fight Against Terrorism, supra note 6, parts Ⅳ–Ⅵ; CTL (2018), Art. 5. Art. 24(2) of the CTL (2018) [《中华人民共和国反恐怖主义法 (2018年修正)》, 第24条]. Zhang Xiaotao, ‘Analysis on the Categorization of Power List in the Counter-Terrorism Law of the People’s Republic of China’ (2021) 30 Journal of Henan Policy College, 12–19, at 14 [张小涛 : 《我国权力清单内容类 型化分析》, 《河南警察学院学报》2021年第3期, 第14页]. ‘Newly Revised “Measures for the Implementation of the Anti-Terrorism Law of the People’s Republic of China” in the Xinjiang Uygur Autonomous Region’, sohu.com (11 October 2018), www.sohu.com/a/258870847_389790. At www.xjskw.org.cn/2018/10/26/skyw/8610.html. Art. 42 of Xinjiang Uyghur Autonomous Region Implementing Measures for the Counter-Terrorism Law (2018) [《新疆维吾尔自治区实施办法》, 第42条]. Art. 30(3) of the CTL (2018) [《中华人民共和国反恐怖主义法 (2018年修正)》, 第30条]. Art. 44 of Xinjiang Uyghur Autonomous Region Implementing Measures for the CTL, supra note 69. Art. 3 of Xinjiang Uyghur Autonomous Region Regulation on De-Radicalization (2018) [《新疆维吾尔自治区去极 端化条例》, 第3条].

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

228

Congyan Cai and Yifei Wang

The CTL and the XUAR’s two regional laws have triggered grave concerns and criticisms in some countries and international organizations. It is instructive to refer to comments by several UN human rights officials. In a twenty-page communication to China’s government on 1 November 2019, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms acknowledged the challenges that China faces, but suggested that many of its measures are ‘neither necessary nor proportionate’.73 In the Special Rapporteur’s view, for instance, the ‘broad and lengthy’ definition of terrorism in the CTL (2015) would allow for a ‘conflation of domestic protest, dissent, peaceful human rights activism or religious activity with international terrorism’.74 Furthermore, the definition of ‘extremism’ makes it possible to penalize the manifestation of religious identity and criticism of ethnic or religious policies, which is contrary to several provisions in the Universal Declaration of Human Rights (UDHR).75 In its reply, the government expressed its disapproval of the comments. It observed there are substantive and procedural rules in the CTL that limit the counterterrorism measures that will be taken. In particular, it observed that the definitions of ‘terrorism’ and ‘extremism’ are consistent with relevant UN instruments, including, for instance, the UN Declaration on Measures to Eliminate International Terrorism, and also, on a separate note, the Convention of the Shanghai Cooperation Organisation against Terrorism (the SCO Terrorism Convention).76 The counterterrorism legislation of almost all countries, including Western ones,77 can be criticized. The reason is simple: almost all countries have, to varying degrees, made prevention part of their counterterrorism policies. As a result, counterterrorism measures are inevitably intrusive and likely to infringe human rights. Furthermore, although some terrorist activities have been identified in counterterrorism treaties (for instance in Article 2 of the International Convention for the Suppression of Terrorist Bombing), a general definition of terrorism remains elusive, which is owing to the fact that states have not yet succeeded in negotiating a comprehensive convention on counterterrorism.78 This means that states are free to define terrorism in accordance with their own preferences. In the case of China, it was entirely to be expected that the CTL would be controversial. In this regard, extremism is the first and foremost consideration. The draft CTL not only included a definition of extremism79 but also provided a long list of extremist activities80 and associated punishments.81 However, the referred definition was eventually absent from the adopted CTL and the list of extremist activities was substantially reduced. This suggests that China was aware that it was not appropriate to address extremism on the terms set out in the draft CTL. Despite this, the CTL still incorporates an ‘extremism’ provision that lacks a definition. This raised concern about whether ‘extremism’ would still be addressed in terms that resembled those set out in the draft CTL. Furthermore, Article 15 of the CTL (2015, 2018) establishes that the National Anti-Terrorism Leading Group is responsible for determining the existence of a terrorist organization or 73 74 75 76 77

78

79 80 81

Mandates of the Special Rapporteur, OL CHN 18/2019, supra note 4, at 18. Ibid., at 4. Ibid., at 5. ‘Government’s reply: 30 October 2020’, 1, 2, spcommreports.ohchr.org/TMResultBase/DownLoadFile?gld=35050. See, e.g., ‘France: UN Expert Says New Terrorism Laws May Undermine Fundamental Rights and Freedoms’, https://bit.ly/44Rl00Z. Amrith Rohan Perera, ‘The Draft United Nations Comprehensive Convention on International Terrorism’ in Ben Saul (ed.), Research Handbook on International Law and Terrorism, 2nd ed., 120–9 (Northampton, MA: Edward Elgar, 2020). Art. 104 of the CTL (draft) [《中华人民共和国反恐怖主义法 (草案)》, 第104条]. Art. 24 of the CTL (draft) [《中华人民共和国反恐怖主义法 (草案)》, 第24条]. Arts. 26 and 96 of the CTL (draft) [《中华人民共和国反恐怖主义法 (草案)》, 第26、96条].

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

229

individual, and the Ministry of Public Security is responsible for any ensuing announcements. However, Article 15 does not establish how such determinations can be made in a manner that protects the legal rights of the suspected entity or individual. Furthermore, while the relevant organization or individual may apply for a review before a Working Agency under the Leading Group, the decision on the application is final and is not subject to judicial review. Qi argues that the non-justiciability of executive determination of counterterrorism is open to debate.82 He suggests that, by virtue of its considerable impact on private rights, the determination of counterterrorism should be one of the ‘executive actions’ set out in Article 2 of China’s Administration Litigation Law,83 and should therefore be subject to review by courts. Article 15 differs from legal practice in countries like the United States and the UK, where different aspects of any executive branch determination on terrorism can be subject to judicial review.84 11.3.2 China and International Counterterrorism Lawmaking In response to the 1972 Munich terrorist atrocity and other large-scale terrorist attacks in the same year, UN Secretary-General Kurt Waldheim proposed that the UNGA should adopt a resolution on ‘measures to prevent terrorism and other forms of violence which endanger or take innocent human lives or jeopardize fundamental freedoms’.85 In addition to outlining preventive measures, Waldheim suggested that it was necessary to study the underlying causes of terrorism.86 Many Western countries, and the United States in particular, proposed negotiating a broad convention on terrorism, and the United States actually prepared a draft convention. However, this proposal was opposed by China and many developing countries (especially Middle Eastern ones). One of the main objections was that a convention of this kind would jeopardize national liberalization and decolonization in line with the well-known saying ‘One man’s terrorist is another man’s freedom fighter’.87 In the absence of a comprehensive international treaty, states committed to adopting a sectoral approach to counterterrorism. Conventions were therefore adopted sequentially with the aim of combating particular types of terrorist activity. After the 1970s, many bilateral and regional conventions against terrorism were supplemented with about twenty multilateral conventions, including the International Convention for the Suppression of Terrorist Bombing (1997), the International Convention for the Suppression of the Financing of Terrorism (1999) and the International Convention for the Suppression of Acts of Nuclear Terrorism (2005). China has signed almost all of the major multilateral conventions against terrorism.88 With the possible exception of the International Convention for the Suppression of Terrorist Bombing 82

83

84 85

86

87

88

Qi Jiangang, ‘A Critique of the Non-justiciability of Executive Determination in Connection with Counter-Terrorism’ (2018) 30 Peking University Law Journal, 976–91, at 977 [戚建刚 : 《反恐行政认定行为的不 可诉性商榷》, 《中外法学》2018年第4期, 第977页]. Art. 2 provides that ‘a citizen, a legal person, or any other organization which deems that an administrative action taken by an administrative agency or any employee thereof infringes upon the lawful rights and interests of the citizen, legal person, or other organization shall have the right to file a complaint with a people’s court in accordance with this Law’. Qi Jiangang, ‘A Critique’, supra note 82, at 977. UN Secretary-General, Request for the Inclusion of an Additional Item in the Agenda of the Twenty-Seventh Session, UN Doc. A/8791, 8 September 1972. UN Secretary-General, Statement at the 199th Meeting of the General Comments, UN Doc. A/8791/ADD.1, 20 September 1972. Carlos Fernando Dı´az-Paniagua, ‘Negotiating Terrorism: The Negotiations Dynamics of Four UN CounterTerrorism Treaties, 1997–2005’, City University of New York Dissertation (2008), at 150. The Fight Against Terrorism, supra note 6, at part VII.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

230

Congyan Cai and Yifei Wang

(1997), it does not appear to have been prominent in most of the preceding negotiations. It did, however, clearly express its opinions during the negotiations.89 On many occasions it aligned with other states, including Western and non-Western ones, and did not insist that its views should prevail with majority support. The definition of ‘armed forces’, which proved to be a divisive topic, was an exception in this regard. China insisted that a provision defining ‘armed forces’ be included and that the role of domestic law in defining ‘armed forces’ be recognized. After it insisted that it could not accept the text prepared by the Sixth Committee of the UNGA, its position was finally accepted.90 In contrast to the 1970s, China supported the negotiation of a comprehensive convention on international terrorism, which the UNGA initiated in September 2000.91 Aligning with the position of other countries, China suggested that the new convention should focus on filling gaps in existing counterterrorism treaties.92 The UNSC came to the forefront of counterterrorism efforts in the period from the late 1990s onwards. The Council adopted several very innovative resolutions on terrorism, which, in the terms of the UN Charter, can be described, in particular after 9/11, as ‘legislative activities’ rather than ‘enforcement measures’.93 Of these, the most important one was Resolution 1373, which obliged UN members to undertake a wide range of actions in order to prevent and suppress terrorism. China supported all of these legislative resolutions. For instance, it voted for Resolution 1373 despite the fact that its sweeping obligations should arguably not be imposed by the UNSC but instead be consented to by all UN members through negotiation of multilateral conventions against terrorism.94 Compared to the UN global setting, the SCO, which is regional in orientation, is arguably a more meaningful international counterterrorism lawmaking forum for China. Its establishment was largely inspired by a common need of the SCO members to combat terrorism.95 On the same day that the establishment of the SCO was declared, Kazakhstan, China, Kyrgyzstan, Russia and Uzbekistan, as members of the proposed SCO, signed the Convention on Combating Terrorism, Separatism and Extremism (SCO Three Forces Convention). The SCO members have since signed two other major conventions against terrorism, namely the SCO Terrorism Convention, which was signed on 16 June 2009, and the Convention on Combating Extremism (SCO Extremism Convention), which was signed on 9 June 2017. In addition, the SCO members have also signed several other instruments related to counterterrorism.96 89 90 91

92 93

94

95

96

Dı´az-Paniagua, ‘Negotiating Terrorism’, supra note 87, at 230–330. Ibid., at 229–31. UNGA, Sixth Committee, Working Group on Measures to Eliminate International Terrorism, UN Doc.A/C.6/55/ L.2, 19 October 2000. Dı´az-Paniagua, ‘Negotiating Terrorism’, supra note 87, at 557. Paul C. Szasz, ‘The Security Council Starts Legislating’ (2002) 96 American Journal of International Law, at 901; Stefan Talmon, ‘The Security Council as World Legislature’ (2005) 99 American Journal of International Law, at 175; Georges Abi-Saab, ‘The Security Council as Legislator and as Executive in Its Fight Against Terrorism and Against Proliferation of Weapons of Mass Destruction: The Question of Legitimacy’ in Rudiger Wolfrum and Volker Roben (eds.), Legitimacy in International Law, 109–30 (Berlin: Springer, 2008), 120. Tom de Boer, ‘United Nations Security Council Anti-Terrorism Resolutions: Ramifications for the Rule of Law’ (2011) 11 University College Dublin Law Review, at 35; Luis Miguel Hinojosa Martinez, ‘The Legislative Role of the Security Council in Its Fight against Terrorism: Legal, Political and Practical Limits’ (2008) 57 International and Comparative Law Quarterly, at 333; Eric Rosand, ‘Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight against Terrorism’ (2003) 97 American Journal of International Law, at 333. Declaration on the Establishment of the Shanghai Cooperation Organization, 15 June 2001, para. 8; Arts. 1, 3 and 4 of the Charter of the Shanghai Cooperation Organization. For instance, Agreement on Cooperation in Combating Crime between the Governments of the Member States of the Shanghai Cooperation Organization, 11 June 2010.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

231

The SCO Three Forces Convention incorporates the specific terrorist activities outlined in multilateral counterterrorism conventions.97 However, it goes further in defining terrorism. According to the Convention, terrorism is any . . . act intended to cause death or serious injury to a civilian or any other person not taking an active part in the hostilities in a situation of armed conflict, or to cause major damage to any material facility, as well as to organize, plan, aid and abet such act, when the purpose of such act, by its nature or context, is to intimidate population, violate public security or compel public authorities or international organizations to do or to abstain from doing any act, and prosecuted in accordance with the national laws of the Parties.98

The SCO Three Forces Convention also addressed ‘extremism’, which the UN would refer to (five years later) in its Global Counter-Terrorism Strategy.99 In its account, ‘extremism’ is ‘an act aimed at violent seizing or keeping power, and violently changing the constitutional system of a State, as well as a violent encroachment upon public security, including organisation, for the above purposes, of illegal armed formations and participation in them, criminally prosecuted in conformity with the national laws of the Parties’.100 Indeed, the SCO Three Forces Convention is the only multilateral and regional convention on terrorism that establishes extremism as a separate agenda and seeks to define it. Both the SCO Terrorism Convention and the SCO Extremism Convention define extremism and terrorism more broadly. These definitions do not just refer to the relevant ‘act’ but the relevant ‘proposition’ or ‘ideology’.101 In particular, the SCO terrorism conventions permit SCO members to interpret both terms more broadly102 and introduce more rigorous countermeasures103 that reflect their own circumstances. The absence of a comprehensive multilateral convention against terrorism means that the SCO terrorism conventions are more significant for China and the other SCO members. The SCO terrorism conventions help to justify China’s counterterrorism legislation and law enforcement. However, allowing SCO members to define terrorism and extremism more broadly and enforce counterterrorism measures more rigorously implies that the SCO terrorism conventions will not have a meaningful role to play in ensuring that the counterterrorism measures are duly enforced. Instead, they appear to shield the potential misuse or abuse of counterterrorism measures. This explains why, in refuting criticisms by other countries and international institutions, China contends that its counterterrorism measures are consistent with the SCO terrorism conventions.104 Western critics like Tom Ginsburg have claimed that the SCO conventions against terrorism and extremism embody the efforts of China and like-minded states to develop what he terms ‘authoritarian international law’.105

97 98 99 100 101 102

103 104 105

Art. 1.1 of the SCO Three Forces Convention. Art. 1.1(1) of the SCO Three Forces Convention. UNGA, UN Doc. A/RES/60/288, 20 September 2006, at 4. Art. 1.1(3) of the SCO Three Forces Convention. Art. 2.1(2) of the SCO Terrorism Convention; Art. 2.1(2) of the SCO Extremism Convention. Art. 1.2 of the SCO Three Forces Convention; Art. 2.2 of the SCO Terrorism Convention; Art. 2.2 of the SCO Extremism Convention. For instance, SCO Terrorism Convention, Art. 1.2 provides that ‘this Article shall not prejudice any international treaty or any national law of the Parties, which contain or may contain a broader application of the terms and definitions used in this Article’. Art. 7(2) and (3) of the SCO Extremism Convention. The Fight Against Terrorism, supra note 6, at part VII. Tom Ginsburg, Democracies and International Law (Cambridge: Cambridge University Press, 2021), 224.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

232

Congyan Cai and Yifei Wang 11.4 CHINA AND THE ENFORCEMENT OF UNSC COUNTERTERRORISM SANCTION RESOLUTIONS

11.4.1 The Status of UNSC Resolutions in the Chinese Legal System China’s Constitution does not prescribe the status of international law, including UNSC resolutions, in the Chinese legal system. In fact, China has not enacted any law that governs the status of such resolutions and their enforcement in China. The status and the enforcement of the UNSC’s counterterrorism resolutions are therefore, theoretically speaking, uncertain in the country. This does not, however, mean that these UN instruments cannot be enforced in China. In practice, China enforces them with a pragmatic case-by-case approach. For instance, on 30 September 2001, one day after the UNSC adopted Resolution 1373, the Chinese MFA issued a notice to ministry-level departments and province-level governments about the implementation of Resolution 1373. The notice stated that the resolution was ‘a coercive action adopted by the UNSC in accordance with Chapter VII of the UN Charter and it has legal binding force on countries’106 and therefore requested that ‘in order to strictly implement the international obligations which China bears, the relevant departments implement the relevant rules in accordance with the Resolution’.107 It is significant that the MFA did not simply transfer the resolutions while explaining China’s obligation but instead summarized the content of the relevant resolutions. The UNSC resolution did not therefore have a direct effect on China and was instead enforced by transforming it into domestic law. The fact that there is no law that governs enforcement of the UNSC resolution creates a clear legal problem. In China, a ministry-level department has no power to ‘require’ another government body at the same level to do something unless it is authorized to do so. The MFA did not use the term ‘require’ in the notice; rather, it used ‘urge’. This means that peer departments have no obligation to enforce notices issued by the MFA. Fortunately, it seems that the inter-agency coordination mechanism works quite well. On receiving notices from the MFA, the peer departments accordingly adopt them to enforce the UNSC’s counterterrorism resolutions. For instance, on 11 June 2010, the People’s Bank of China, which is the country’s central bank, issued a notice on the implementation of MFA notices related to the implementation of UNSC resolutions.108 11.4.2 Who Enforces UNSC Counterterrorism Resolutions in China? The MFA currently serves as a coordinating agency that oversees the enforcement of UNSC counterterrorism resolutions. Many other government bodies (and their branches) are involved in this process, including the Ministry of National Defence, the Ministry of Public Security, the Ministry of State Security, the Ministry of Finance, the People’s Bank of China and the General Administration of Customs.109 The various government bodies cooperate with each other. For 106

107 108

109

Ministry of Foreign Affairs, Notice Concerning the Implementation of the US Security Council Resolution 1373, Waifa [2001] No. 18, 30 September 2001, www.gov.cn/gongbao/content/2001/content_61169.htm [外交部, 《关于执 行合国安理会第1373号决议的通知》, 外发〔2001〕18号, 2001年9月30日]. Ibid. People’s Bank of China, Notice Concerning the Implementation of Notices by MFA Concerning the Implementation of the Relevant Security Council Resolutions, Yinfa [2010] No. 165, 11 June 2010 [中国人民银行, 《中国人民银行执行外交部关于执行安理会有关决议通知的通知》, 银发〔2010〕165号, 2010年6月11日]. UNSC, Letter dated 31 July 2002 from the Chairman of the Security Council Committee established pursuant to Resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council, UN Doc. S/ 2002/884, 6 August 2002, at 15.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

233

instance, in the period August 2004 to December 2006, the People’s Bank of China transferred about 1,500 suspected money laundering cases to the public security authorities for further investigation.110 In addition to government bodies, private actors and especially commercial banks play an important role in the enforcement of UNSC counterterrorism resolutions. For instance, in August 2004 and December 2005 commercial banks reported totals of, respectively, 283 and 400 suspicious transactions to China’s financial intelligence units.111 Furthermore, the government informed private actors about business risks arising from the UNSC’s counterterrorism resolutions. For instance, on 24 August 2007, the Ministry of Commerce (including its local branches) and major trading companies issued a notice connected to UNSC Resolutions 1737 and 1747, which require international actors to take note of potential risks when trading with Iran.112 11.4.3 How China Enforces UNSC Counterterrorism Resolutions Until the early 2000s, China did not develop a robust counterterrorism legal system. Enhancement of counterterrorism legislation therefore had a major contribution to make to the enforcement of UNSC counterterrorism resolutions in China. For instance, shortly after the UNSC adopted Resolution 1373, which required the criminalization of financing terrorism, the Chinese legislature began to amend the country’s Criminal Law. On 29 December 2001, three months after Resolution 1373 was adopted, China approved an amendment to the Criminal Law which, in addition to other measures, made it a crime to finance terrorism.113 11.5 COUNTERTERRORISM AND PROTECTION OF HUMAN RIGHTS

Owing to the many casualties and massive damage caused by terrorist activities, nobody can deny that effective counterterrorism measures are absolutely necessary to protect human rights. In almost all states, however, human rights are arguably likely to be violated by counterterrorism measures that have become sweeping, preventive and repressive. This is because states have agreed that it is not just terrorist activities that have already happened that should be suppressed; actions should also be undertaken to prevent terrorist activities before they occur. This reflects a consensus among states that conditions conducive to terrorism should be addressed. This consensus was, for example, alluded to in the Global Counter-Terrorism Strategy that the UNGA adopted in 2006,114 and also in the Plan of Action to Prevent Violent Extremism that 110

111 112

113

114

UNSC, Letter dated 30 June 2006 from the Chairman of the Security Council Committee established pursuant to Resolution 1373 (2001) concerning counterterrorism addressed to the President of the Security Council, UN Doc. S/ 2006/470, 30 June 2006, at 8. Ibid. Ministry of Commerce, Notices Concerning Taking Note of the Content of the Relevant Security Council Resolutions, Shangchanhan [2009] No. 49, 24 August 2007, www.mofcom.gov.cn/article/zcfb/zcdwmy/200709/20070905100419.shtml [商务部, 《关于提醒对外贸易经营者了解合国安理会决议内容的通知》, 商产函〔2007〕49号, 2007年8月24日]. Letter dated 27 December 2001 from the Chairman of the Security Council Committee established pursuant to Resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council, UN Doc. S/ 2001/1270, 27 December 2001, 3; Letter dated 4 January 2002 from the Chairman of the Security Council Committee established pursuant to Resolution 1373 (2001) concerning counterterrorism addressed to the President of the Security Council, UN Doc. S/2001/1270, 10 January 2002, at 3–4. UNGA, UN Global Counter-Terrorism Strategy, Resolution 60/288, UN Doc. A/RES/60/288, 20 September 2006, at 2.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

234

Congyan Cai and Yifei Wang

the UN Secretary-General submitted in 2015.115 It should be noted that the UNSC’s proposed measures have also been criticized for jeopardizing the human rights of targeted entities and individuals.116 The willingness of states to introduce sweeping, preventive and repressive counterterrorism measures further increased after the 9/11 terrorist attacks in 2001. These measures are susceptible to being misused or intentionally abused for purposes that extend beyond countermeasures and this is why the balancing of counterterrorism and human rights protection emerged as a major international concern. In 2005, the UNGA adopted a resolution that reaffirmed that states must ensure that counterterrorism measures comply with obligations established by international law, and especially international human rights law, international refugee protection and international humanitarian law.117 In the same year, the Commission on Human Rights adopted Resolution 2005/80, which gave the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms a clear anti-terrorism mandate (he/she was required to gather ‘alleged violations of human rights and fundamental freedoms while countering terrorism’ and he/she was also required to regularly submit reports to the Human Rights Council and the UNGA)118 and also established that counterterrorism would be a responsibility of the Human Rights Council framework.119 The Global Counter-Terrorism Strategy that was adopted in 2006 by the UNGA also officially established respect for human rights as one of the four pillars of the international counterterrorism strategy.120 It states that ‘effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing’,121 and urges states to ensure that their counterterrorism measures comply with their obligations under international law and human rights law.122 In particular, the UN’s appeal for respect for human rights and the scrutiny of UN human rights bodies prompt countries to incorporate human rights protection in their counterterrorism campaigns. The CTL (2018), for example, established that counterterrorism work would be conducted in accordance with the law, would respect and protect human rights (especially religious freedom and ethnic customs) and would not discriminate against any region, ethnic group or religion.123 However, the derogation of human rights in the counterterrorism context has also received attention. International human rights law, which mainly comprises the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), took shape between the 1940s and the 1960s, when terrorism had not yet emerged as a major threat to international society.124 Although there are provisions in human rights conventions exceptionally allowing some derogations of human rights125 when state emergencies have occurred or are ongoing (e.g. the 9/11 terrorist attacks), it is highly questionable whether they can be applied to prevent and suppress 115

116

117 118 119 120 121 122 123 124

125

See also Report of the Secretary-General, Plan of Action to Prevent Violent Extremism, UN Doc. A/70/674, 24 December 2015, at 7–9. See, generally, Andrew Hudson, ‘Not a Great Asset: The UN Security Council’s Counter-Terrorism Regime: Violating Human Rights’ (2007) 25 Berkeley Journal of International Law, at 203. UNGA, Resolution 60/158, UN Doc. A/RES/60/158, 28 February 2006, para. 1. Ibid. UN Human Rights Council, Resolution 15/15, UN Doc. A/HRC/RES/15/15, 7 October 2010. UNGA, Resolution 60/288, UN Doc. A/RES/60/288, 20 September 2006. Ibid., at 9. Ibid. Art. 6 of the CTL (2018) [《中华人民共和国反恐怖主义法 (2018年修正)》, 第6条]. Jacob Katz Cogan, ‘The Regulatory Turn in International Law’ (2011) 52 Harvard International Law Journal, at 333–4. See, e.g., Art. 4 of ICCPR.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

235

terrorism. The UN Global Counter-Terrorism Strategy (2006) and other UN instruments addressing the conditions conducive to terrorism underline the ongoing need to protect international human rights. However, this is complicated by the fact that it is not easy to address the tension between effective counterterrorism and human rights protection. It should be remembered that if international human rights law does not address its institutional preference or bias, it will impose excessive constraints on counterterrorism efforts. For instance, after acknowledging that ‘we are aware of the many security challenges that China faces and of the duty of the State to ensure the safety and security of its people, including through preventive approaches’,126 the UN Special Rapporteur devoted the remainder of his report to demonstrating that the CTL measures were ‘neither necessary nor proportionate’.127 There are two main reasons why China’s counterterrorism activities are likely to violate human rights. First, China obviously takes a more preventive approach than many countries, and this is underlined by its determination to address conditions conducive to terrorism.128 It should be noted that this emphasis is consistent with the UN’s Global Counter-Terrorism Strategy (2006), which observes that the conditions conducive to terrorism ‘include but are not limited to’ socio-economic marginalization.129 In Resolution 2178 (2014), the UNSC explicitly linked violent extremism and terrorism, and reiterated the need for measures to address the ‘violent extremism’ that can be ‘conducive to terrorism’.130 The Plan of Action to Prevent Violent Extremism (2015) also examined the conditions conducive to violent extremism, including a lack of socio-economic opportunities, marginalization and discrimination, radicalization in prison, individual backgrounds and motivations, distortion and misuse of beliefs, political ideologies and ethnic and cultural differences.131 In engaging with prevention, China has therefore aligned itself with the UN’s Global Counter-Terrorism Strategy. In return, the UN Global Counter-Terrorism Strategy has also bestowed international legitimacy on China’s efforts to address the conditions that can help terrorism to thrive and develop. In order to effectively address the conditions conducive to terrorism, comprehensive measures (in the cultural, economic, ideological, political and social spheres) are required. While coercion quite clearly must also be part of this response, it creates tension between China’s counterterrorism measures and international human rights law, which retains an institutional preference or bias. China’s counterterrorism measures are therefore inevitably likely to violate human rights, whether intentionally or unintentionally. Second, the rule of law in the country remains relatively underdeveloped, as is shown by the fact that some who misuse and abuse public authority are not held to account immediately. Further evidence is provided by the fact that China has still not ratified the ICCPR, more than twenty years after it signed it in 1998. The Vocational Education and Training (VET) programme that China implements in Xinjiang (under the CTL) and the XUAR Implementing Measures for the CounterTerrorism Law (2016) have caused particular consternation among Western observers, who have also alleged that the VET centres are actually detention centres in which the human rights of Uyghurs are systematically violated.132 Various UN human rights bodies 126 127 128 129 130 131 132

Mandates of the Special Rapporteur, OL CHN 18/2019, supra note 4, at 18. Ibid. Art. 4 of the CTL (2018) [《中华人民共和国反恐怖主义法 (2018年修正)》, 第4条]. UNGA, Resolution 60/288, UN Doc. A/RES/60/288, 20 September 2006, at 4. UNSC, Resolution, UN Doc. S/RES/2178 (2014), 24 September 2014, at 4. Report of the Secretary-General, supra note 115, at 7–9. See Joel Slawotsky, ‘Is China Guilty of Committing Genocide in Xinjiang?’ (2021) Chinese Journal of International Law, 625–36.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

236

Congyan Cai and Yifei Wang

have also expressed criticisms. For instance, the Special Rapporteur on Freedom of Religion and Belief and the Working Group on Arbitrary Detention suggest that the VET centres are actually detention centres.133 Citing various unverified sources, Western governments allege that between 1 million and 1.5 million Uyghurs and other minorities in Xinjiang have been arbitrarily forced into these facilities. Allegations of deaths in custody, physical and psychological abuse and torture, along with a lack of access to medical care, have also been voiced.134 China firmly denies all these accusations. In August 2019, it issued a White Paper on Vocational Education and Training in Xinjiang135 which explained the VET programme at length. It claimed that it was eradicating conditions conducive to terrorism and therefore acting in accordance with the UN Global Counter-Terrorism Strategy.136 In Xinjiang, religious extremism has been widespread since the 1990s. Many people have little knowledge of the outside world, limited employment opportunities and limited knowledge of modern science.137 The government maintains that intervention is required to ‘turn’ minds that have been bewitched by religious extremism. In its words, the VET programme is necessary to ‘curb frequent terrorist incidents, eradicate the breeding ground for religious extremism, help trainees acquire a better education and vocational skills, find employment and increase their incomes, and most of all safeguard social stability and longterm peace in Xinjiang’.138 A government White Paper provides further insight by showing the education and training on offer in VET centres,139 which, among other benefits, are consistent with international human rights commitments. For example, ‘trainees’ are permitted to go back home on a regular basis and to ask for leave to attend to personal affairs.140 The White Paper also notes that these activities are based on programmes in other countries141 and that some countries have voiced their support for China’s VET programme.142 China’s own assessment is that the VET programme functions quite well by helping ‘trainees’ improve their working skills and recognize the harm of terrorism and religious extremism. In 2019, when the White Paper was issued, most ‘trainees’ reached the required standards and left the VET centres.143 However, some of the criticisms of Xinjiang’s VET programme are well-grounded. The sheer number of ‘trainees’ in the VET programme is a cause for concern, and neither the XUAR Implementing Measures for the Counter-Terrorism Law nor the XUAR Regulation on DeRadicalisation sufficiently protects the human rights of ‘trainees’ during their stay in the VET centres.

133

134

135 136 137 138 139 140 141 142 143

Special Rapporteur on freedom of religion or belief, Comments on the revision of the Xinjiang Uyghur Autonomous Region Regulation on De-extremification, OL CHN 21/2018, 12 November 2018, https://bit.ly/3qhjM0a. Committee on the Elimination of Racial Discrimination, Concluding observations on the combined fourteenth to seventeenth periodic reports of China (including Hong Kong, China and Macao, China), CERD/C/CHN/CO/1417, 19 September 2018, paras. 38, 40; Committee Against Torture, Concluding observations on the fifth periodic report of China, CAT/C/CHN/CO/5, 3 February 2016, paras. 40, 42. Vocational Education and Training, supra note 23. Ibid., part II. Ibid., part I. Ibid. Ibid., parts II and III. Ibid., part IV. Ibid., part VI. Ibid. Ibid., part V.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

11 China and International Terrorism Law

237

11.6 CONCLUSION

Since the 1970s, states have increasingly realized that terrorism is a major threat that international society should address. To date, about twenty multilateral conventions against terrorism have been successfully concluded. After the 9/11 terrorist attacks, the UNSC came to the forefront in international counterterrorism. It identified terrorism as a threat to international peace and security (under Chapter VII of the UN Charter) and then adopted a number of innovative resolutions on counterterrorism that were binding on UN members. Over time, it reframed its counterterrorism policy and produced the UN Global Counter-Terrorism Strategy (adopted by the UNGA in 2006) and the Plan of Action to Prevent Violent Extremism (submitted by the UN Secretary-General in 2015). The new UN Global Counter-Terrorism Strategy put more emphasis on human rights protection and addressing conditions conducive to terrorism. However, this ultimately served to highlight an underlying tension between human rights protection and counterterrorism. This was clear in countries where the introduction of sweeping, preventive and repressive counterterrorism measures increased the risk of human rights violations. However, there are obvious tensions between international human rights law, which, although it was originally conceived and formulated several decades ago, has continued growing and evolving in its adaptation to all types of global transformation, and the threats posed by terrorism both domestically and internationally. Moreover, while almost all states recognize terrorism as a common threat, there are still substantial disagreements among them. As a result, states have not yet successfully negotiated a comprehensive convention against terrorism despite the fact that the process began in the early 2000s. This lack of consensus also reflects the desire of states to retain discretion in their approach to counterterrorism. In 1997, China’s Criminal Law included terrorism for the first time. Before this, violent offences that occurred in China, and especially in Xinjiang, were instead categorized as ‘counter-revolutionary’ or endangering public security or state security. After the UNSC emerged at the forefront of international counterterrorism after the 9/11 terrorist attacks in 2001, China integrated a number of its counterterrorism resolutions in its domestic counterterrorism activities. It then began to embrace the terrorism narrative and strengthened its counterterrorism strategy and legal framework. In drawing on the UN Global CounterTerrorism Strategy and participating in the negotiation of conventions against terrorism and extremism, it sought an international legal basis and legitimacy for its counterterrorism measures. Like many other countries, China takes a preventive approach to counterterrorism. However, some of the measures it has introduced are obviously sweeping, preventive and repressive. This is partly so because China focuses on addressing conditions conducive to terrorism, which is consistent with the UN Global Counter-Terrorism Strategy. However, this also reflects the fact that the government and the CCP want to maintain strong social control over, in particular, certain segments of the Chinese population who are at risk of radicalization. This, in turn, means that China’s counterterrorism measures are at a greater risk of endangering the protection of human rights. Having said this, it is also worth-stressing that certain criticisms of China’s counterterrorism activity originate in, and are coloured by, ideological bias or geopolitical calculations. Therefore, distinguishing between legitimate and illegitimate concerns in this area is a precondition to drawing an accurate balance between commitment to human rights protection and counterterrorism policies in China.

https://doi.org/10.1017/9781009041133.013 Published online by Cambridge University Press

12 China and International Criminal Law A Dual-Identity Dilemma Dan Zhu

12.1 INTRODUCTION

China’s engagement with international criminal law almost dates back to the effective modern creation of this body of law1 around the time when the Tokyo tribunal was first established, and it has followed closely the continuous evolution of international criminal law in various contemporary institutional contexts, including the United Nations International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), and, to some extent, the International Criminal Court (ICC).2 As China has taken an active part in the making and development of international criminal law, it does not view it as subject to the same flaws as other aspects of international law dating back to the nineteenth century that were created and dominated by the West. However, China’s traditional sovereignty-bound thinking as shaped by its miserable modern history still overshadows its interactions with international criminal law. There are also certain specific concerns articulated by the Chinese authorities during the lawmaking process of international criminal law.3 Therefore, while China has a keen interest in international criminal law, it is not willing to take a step beyond its current stance of positive engagement and committing itself fully to its binding force. On the other hand, there appears to be an irreversible international momentum towards the establishment and ongoing refinement of a system of international criminal justice that is designed to bring to account those responsible for international crimes. As China is an increasingly important player on the international scene, its attitude towards international criminal law is fairly relevant to the continued development of this body of law and the future of the international legal order. China’s relationship with international criminal law is also part of its broader interaction with international legal rules and regimes. China once kept its distance from international law and global institutions. From the late 1940s to the late 1970s, China stayed outside many major international institutions, which were dominated by Western powers and were in turn viewed as illegitimate by the Chinese.4 However, since the 1980s, China has gradually demonstrated more confidence in its abilities not only to participate in existing post–World War II institutions but

1

2

3

4

For its previous intellectual history and some attempts at practical implementation, see, e.g., Frederic Me´gret and Immi Tallgren (eds.), The Dawn of a Discipline: International Criminal Justice and Its Early Exponents (Cambridge: Cambridge University Press, 2020). Dan Zhu, ‘From Tokyo to Rome: A Chinese Perspective’ in Daqun Liu and Bingxin Zhang, Historical War Crimes Trials in Asia (Brussels: Torkel Opsahl Academic Epublisher, 2016), 31–57. For Chinese concerns regarding the Rome Statute, see Statement by Mr Guangya Wang (China) on the Statute of the International Criminal Court [王光亚谈《国际刑事法院规约》], Legal Daily [法制日报] (29 July 1998). Hongying Wang and James N. Rosenau, ‘China and Global Governance’ (2009) 33(3) Asian Perspective, 9.

238 https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

239

also to seek to shape international rules and norms that reflect its own interests and values.5 Specifically, China has exhibited greater confidence and openness in participating in international economic institutions and regimes, for instance, the World Trade Organization, the International Monetary Fund and the World Bank, in which it had not yet played a significant role.6 In contrast, however, China was more conservative in engaging in human rights–related international institutions and regimes. The important questions here are why this discrepancy has persisted as China rises as a global power, and, more importantly, when and under what circumstances China will change its moderate attitude and further seek a greater say in the development of international criminal law. Therefore, a close study of China’s relationship with international criminal law is helpful to illustrate how China has taken up an international legal policy of ‘selective adaptation’,7 which is a typical paradigm that can also be used to explain many other countries’ approaches in implementing international legal standards.8 While China is used to portraying itself as a ‘developing country’ and always pledges to stand with developing countries, it has become a ‘great power’ owing to its sharply expanded state power. Given that developing countries and great powers often hold divergent approaches to international institutions and regimes, China sometimes faces a dual-identity dilemma.9 As international crimes are consistently and almost exclusively committed in circumstances that directly or indirectly trigger the central mandate of the United Nations Security Council (UNSC) under the Charter of the United Nations (UN), China’s engagement with international criminal law is most likely to demonstrate the duality of the roles it performs in the international legal order: first, as a leading developing country trying to prevent unjustified encroachments into its domestic affairs; second, as a global power guarding against the weakening of the authority of the UN Security Council, to which it is a permanent member that shoulders special responsibilities for the maintenance of world peace and security. Consequently, a close examination of the Chinese perspective will feed into broader debates on the trends of state engagement and disengagement with international criminal law among different world blocs. Against this background, this chapter aims to examine the evolving relationship of China with international criminal law, ranging from the substantive issues that have largely influenced that relationship to date to the factors related to China’s interaction with it in the years to come.10 In Section 12.2, it first traces the history of China’s engagement with international criminal law and sketches out in broad terms the Chinese specific concerns towards this body of law. Next, in Section 12.3, it examines China’s concerns regarding international criminal law in the light of certain broader themes of traditional Chinese concerns about international law. It then 5

6 7

8

9

10

Gerald Chan, Pak K. Lee and Lai-Ha Chan, China Engages Global Governance: A New World Order in the Making? (Abingdon: Routledge, 2012), 37. See further Chapters 20 and 23 in this volume. See Bjo¨rn Ahl, ‘China’s Perspective on Public International Law: Selective Adaptation of International Treaties and the Community of Common Destiny Concept’ (2021) 64(1) German Yearbook of International Law, 97–116; see also Pitman Potter, ‘Selective Adaptation and Institutional Capacity: Perspectives on Human Rights in China’ (2006) 61 (2) International Journal, 389–407. Ljiljana Biukovic, ‘International Law Interrupted: A Case of Selective Adaptation’ (2010) 60 University of New Brunswick Law Journal, 161–76. For a comprehensive discussion on the evolution of China’s state identity, see Congyan Cai, The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (Oxford: Oxford University Press, 2019), 41–100. Though the distinction between international criminal law and transnational criminal law is often based on their institutionalized functions, international criminal law has often been seen as targeting crimes typically perpetrated by the state or state entities whereas transnational criminal law is perceived to deal with crimes most frequently perpetrated by private individuals or entities. As such, states’ engagements with these two subject areas may follow very different paths, and this chapter seeks to concentrate its discussions on China’s relationship with international criminal law.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

240

Dan Zhu

discusses, in Section 12.4, the extent to which these Chinese concerns are still as relevant to China’s future engagement with international criminal law as they were in the past. Section 12.5 concludes. 12.2 THE EVOLUTION OF CHINA’S ENGAGEMENT WITH INTERNATIONAL CRIMINAL LAW

Being a key member of the global anti-fascist alliance during World War II and, specifically, the biggest victim state of the aggression that Japan waged against the Chinese when many atrocities were committed by Japanese military forces, China had a considerable stake in how to hold Japanese war criminals accountable,11 which was China’s very first experience of direct engagement with international criminal law. During the period of the Republic of China (ROC), China was an active participant in the work of the UN War Crimes Commission and its regional sub-commission,12 which were created to support localized prosecutions of international crimes committed during World War II.13 China also played a constructive role in both the establishment and the operation of the International Military Tribunal for the Far East (IMTFE).14 Prosecutor Zhejun Xiang15 and Judge Ru-ao Mei,16 who were appointed by the ROC at the Tokyo Trials, contributed significantly to the creation and application of certain international criminal law norms. For instance, since the IMTFE did not specifically stipulate its temporal jurisdiction, there were various contrasting views among the prosecutors in the International Prosecution Section of the Tribunal on the period covered by its indictment of major Japanese war criminals.17 In the end, the date insisted on by Prosecutor Xiang was adopted by the International Prosecution Section as the starting point of its prosecution;18 it was several years earlier than the dates proposed by prosecutors from other states.19 Judge Mei also convinced the IMTFE to apply death penalties to the accused, which was an issue initially opposed by some judges from the common law system.20 Unfortunately, the Tokyo Trial left many of the Japanese atrocities committed in China untouched, including, among others, the accountability of Emperor Hirohito, the biological weapons experiments conducted by Unit 731, the so-called comfort women issue, and the use of atomic weapons and poisonous gas.21 The failure to establish accountability on these issues somehow planted seeds of distrust in China’s first impress of the international criminal justice system. Contemporaneous with the Tokyo Trials, a series of 11

12

13

14 15

16 17 18 19

20 21

Bingbing Jia, ‘The Legacy of the Tokyo Trial in China’ in Yuki Tanaka, Tim McCormack and Gerry Simpson (eds.), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited, 207–27 (Leiden: Martinus Nijhoff, 2011). Wen-wei Lai, ‘China, the Chinese Representative, and the Use of International Law to Counter Japanese Acts of Aggression: China’s Standpoint on UNWCC Jurisdiction’ (2014) 25 Criminal Law Forum, 111–32. Dan Plesch and Shanti Sattler, ‘A New Paradigm of Customary International Criminal Law: The UN War Crimes Commission of 1943–1948 and Its Associated Courts and Tribunals’ (2014) 25 Criminal Law Forum, 25. Zhu, supra note 2, at 33–4. Longwan Xiang, Tokyo Trial – The Chinese Prosecutor Zhejun Xiang [东京审判–中国检察官向哲浚], Preface III (Shanghai: Shanghai Jiaotong University Press, 2010), 9. Ru-ao Mei, International Military Tribunal for the Far East [远东国际军事法庭] (Beijing: Law Press, 2005), 7–8. Longwan Xiang, supra note 15, at 9. Ibid. Ibid. The starting date Prosecutor Xiang insisted on was 1 January 1928, when the Japanese assassinated Chinese warlord Zuolin Zhang, which arguably revealed the Japanese ambition to invade China and started the de facto status of war between Japan and China. This was three years earlier than the Mukden or 918 Incident in 1931, nine years earlier than the Marco Polo Bridge Incident in 1937 and thirteen years earlier than the bombing of Pearl Harbor in 1941 – each of which was proposed by prosecutors from other states as dates for the start of Japanese aggression. Ru-ao Mei, supra note 16, at 7–8. Zhu, supra note 2, at 31.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

241

national military tribunals, which tried lesser Japanese war criminals, were established by the Nationalist government in ten different Chinese cities.22 In 1956, two parallel military tribunals, one in Shenyang and the other in Taiyuan, were also set up by the People’s Republic of China (PRC) to conduct additional trials of Japanese war crime suspects, albeit under a policy of leniency.23 Being China’s initial pursuit of international criminal justice through national prosecutions, these domestic trials would conceivably impact on the future Chinese approach to tackling international crimes, especially when dealing with the contentious relationship between domestic and international criminal jurisdictions. It was not until the 1990s, with the establishment of the ad hoc tribunals for the former Yugoslavia and for Rwanda, that China’s engagement with international criminal law reemerged and further evolved. Although China may sometimes find itself in a dual-identity dilemma when its engagement with international crimes–related issues as a permanent member of the UNSC sits in tension with its sovereignty concerns shared with some other developing states, it has never taken any hostile posture towards international criminal law but remained benignly engaged. This is evident from its favourable vote for the establishment of the ICTY.24 While China firmly opposed designating the Kosovo situation as a threat to international peace and security,25 and routinely referenced the sovereignty and territorial integrity of the Federal Republic of Yugoslavia in arguing against external interference,26 especially the North Atlantic Treaty Organization’s military intervention in Kosovo,27 it cast an affirmative vote on the UNSC resolution establishing the ICTY, which, in the view of China, was adopted owing to ‘the particular circumstance in the former Yugoslavia and the urgency of restoring and maintaining world peace’.28 The Chinese government, however, cautioned the danger of ‘setting any precedent for abusing Chapter VII of the Charter’,29 and disputed the approach of establishing a tribunal by way of a UNSC resolution as well as the tribunal’s primacy jurisdiction over domestic ones.30 Bearing these concerns in mind, and considering Rwanda’s own initiative in conducting domestic trials, a parallel tribunal in Rwanda as a repetition of the UNSC resolution–based approach was obviously not agreeable to China, who then abstained in the UNSC resolution establishing the ICTR.31 Despite being seized in this dual-identity dilemma, China did not seek to block the adoption of the UNSC resolutions that authorized judicial

22

23

24

25

26 27

28 29 30 31

The ten Chinese cities are Beijing, Shenyang, Nanjing, Guangzhou, Jinan, Hankou, Taiyuan, Shanghai, Xuzhou and Taipei. See Hongjiang Lu, ‘Selected Reports of Related Institutions of Nanjing National Government Handling the Japanese War Criminals after the Anti-Japanese War’ [国民政府战后处理日本战犯各机构工作报告选编] (2020) 4 Republican Archives [民国档案], 25. Justin Jacobs, ‘Preparing the People for Mass Clemency: The 1956 Japanese War Crimes Trials in Shenyang and Taiyuan’ (2011) 205 China Quarterly, 152–72. Statement by Mr Jian Chen (China), Provisional Verbatim Record of the 3175th Meeting, UN Doc. S/PV.3175, 22 February 1993, p. 7, para. 5; UNSC, Statement by Mr Zhaoxing Li (China), Provisional Verbatim Record of the 3217th Meeting, UN Doc. S/PV.3217, 25 May 1993, p. 33, para. 1. Statement by Mr Huasun Qin (China), Provisional Verbatim Record of the 3930th Meeting, UN Doc. S/PV.3930, 23 September 1998, p. 3. Ibid. Statement by Mr Huasun Qin (China), Provisional Verbatim Record of the 3989th Meeting, UN Doc. S/PV.3989, 26 March 1999, p. 9. Statement by Mr Zhaoxing Li, supra note 24, p. 33, para. 1. Ibid., p. 33, para. 2. Ibid., p. 33, para. 1; p. 11, para. 4. Statement by Mr Zhaoxing Li (China), Provisional Verbatim Record of the 3453rd Meeting, UN Doc. S/PV.3453, 8 November 1994, p. 11, para. 7.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

242

Dan Zhu

interventions in both sovereignty states,32 but it followed the work of the tribunals closely and contributed several Chinese judges to their benches.33 The fundamental tension between the sovereignty of states and the authority of the UNSC actually became more pronounced in the ad hoc tribunals’ practice, and one case in point was Prosecutor v. Blaskic´,34 in which states’ cooperative obligations with the UNSC-created tribunal were challenged35 and amicus curiae briefs were submitted by governments including China.36 This was in fact the first time since its foundation in 1949 that the PRC took a direct role in an international judicial proceeding. While reasserting the authority of the UNSC, China emphasized that the tribunal’s mandate was limited and not expressly empowered to issue binding orders to states for cooperative matters.37 It seems that China sought to strike a tactical balance between state sovereignty and the UNSC’s power in addressing its dual-identity dilemma. Also in the 1990s, China exhibited great interest in the establishment of a permanent international criminal court, and actively involved itself in the creation and development of international criminal law by continuing to engage with the work of the UN General Assembly (UNGA) International Law Committee, the Ad Hoc Committee, the Preparatory Committee and the Rome Diplomatic Conference in drafting and negotiating the statute for the ICC.38 At the Rome Diplomatic Conference, one of China’s representatives served as vice-president of the conference and the other representatives as members of the Drafting Committee and the Credentials Committee,39 and the Chinese delegation took these opportunities to further voice its views on certain aspects of international criminal law.40 In the course of the negotiations, the Chinese delegation identified and raised a range of specific concerns.41 They can be categorized into two kinds: one was centred on how to define the core crimes, and the other was about the jurisdictional issues of the ICC. Apart from genocide, China has reservations over the definitions of all the other core crimes, namely, crimes against humanity, war crimes and the crime of aggression. Throughout the negotiation process, one of the major guiding principles in defining the crimes under consideration was that those definitions should be reflective of

32

33

34

35

36

37 38

39

40

41

China abstained in the Security Council vote referring the situation in Darfur to the ICC, see SC Res. 1593 (2005). China voted in favour of the Security Council Resolution referring the situation of Libya to the ICC, see SC Res. 1970 (2011). Haopei Li (1993–7), Tieya Wang (1997–2000) and Daqun Liu (2000–) were nominated and elected as judges to the Appeals Chamber of the ICTY. As the two ad hoc tribunals share the very same Appeals Chamber, these judges also engaged directly or indirectly with the ICTR. It should, however, be noted that China has never nominated any judge to the ICTR. ICTY, Prosecutor v. Blaskic´, Ex Parte Request by the Prosecutor for the Issuance of a Subpoena Deces Tecum, Case No. IT-95–14-T, 10 January 1997. ICTY, Prosecutor v. Blaskic´, Brief of the Republic of Croatia on Subpoenae Duces Tecum, Case No. IT-95–14-T, 1 April 1997. ICTY, Prosecutor v. Blaskic´, Brief Amicus Curiae of the Government of the People’s Republic of China in Response to the Invitation of the Appeals Chamber Dated 29 July 1997, Case No. IT-95–14- AR108bis, 15 September 1997. Ibid. Bingbing Jia, ‘China and the International Criminal Court: Current Situation’ (2006) 10 Singapore Yearbook of International Law, 88. Officers of the Conference and Its Committees, in Official Records, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, Vol. II, UN Doc. A/CONF.183, p. 45. M. Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’ (1999) 32(3) Cornell Journal of International Law, 457. Statement by Ms Yanduan Li (China), Rome Diplomatic Conference Official Records, UN Doc. A/CONF.183/C.1/ SR.8, 19 June 1998, paras. 37–8; see also Statement by Mr Wensheng Qu (China), UN Doc. A/C.6/53/SR.9, 4 November 1998, paras. 30–43.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

243

customary international law.42 China did not favour including crimes against humanity committed during peacetime. In China’s view, customary international law requires a nexus to armed conflict; without such a nexus, the major attributes of the crimes would be changed.43 China also raised its objection towards war crimes committed in the context of non-international armed conflicts.44 Moreover, China resisted the definition of the crime of aggression owing to the lack of a precise definition of the act of aggression,45 which is the state act element of the crime of aggression.46 The other main area of Chinese concerns regarding international criminal law relates to the automatic jurisdiction of the ICC and its complementarity regime under the Rome Statute.47 In 1998, at the conclusion of the Rome Diplomatic Conference, while 120 countries voted in favour of the adoption of the ICC Statute, China was among the 7 states that voted against it.48 Despite its opposition to the Rome Statute, China has consistently maintained engagement with the ICC and involved itself in the process leading to the continuous evolution of international criminal law.49 It followed closely the subsequent negotiations on the crime of aggression by participating in the meetings of the ICC Assembly of State Parties and the Special Working Group on the Crime of Aggression.50 Though a non-state party ineligible to vote in Review Conference decisions, China sent a delegation to observe the conference and voiced its opinions.51 As a permanent member of the UNSC, China also played a constructive role in passing the resolutions of the Council regarding the effective functioning of international criminal law.52 In addition, China backed up the establishment of the International Residual Mechanism for Criminal Tribunals,53 and voted in favour of the relevant UNGA and UNSC resolutions on establishing the ‘hybrid tribunals’, including the Special Court for Sierra Leone,54 the Extraordinary Chamber in the Courts of Cambodia55 and the Special Tribunal for Lebanon.56 Although not endorsing any additional UNSC referrals to the ICC, China supported the establishment of an alternative mechanism by the UNGA to investigate alleged

42

43 44 45 46

47

48

49

50

51

52

53 54 55 56

D. Robinson and H. von Hebel, ‘War Crimes in Internal Conflicts: Article 8 of the ICC Statute’ (1999) 2 Yearbook of International Humanitarian Law, 194, 208. Statement by Mr Wensheng Qu, supra note 41, para. 37. Ibid., para. 36. Statement by Ms. Yanduan Li, supra note 41, para. 9. This is because it is only when an individual commits an act in the context of state aggression that a criminal responsibility follows. Defining the crime of aggression involves two elements: the state act of aggression and the crime the individual commits. See Stefan Barriga and Leena Grover, ‘A Historic Breakthrough on the Crime of Aggression’ (2011) 105 American Journal of International Law, 521. Statement by Mr Shiqiu Chen (China), Sixth Comm., 25th Meeting, GAOR, 50th Session, UN Doc. A/C.6/50/ SR.25, 30 October 1995, para. 70. UN Press Release, UN Diplomatic Conference Concludes in Rome with Decision to Establish Permanent International Criminal Court, L/ROM/22, 17 July 1998. Statement by Mr Feng Gao (China), Sixth Comm., 25th Meeting, UN GAOR, 54th Session, UN Doc. A/C.6/54/ SR.13, 8 November 1999, para. 7. Statement by Ms Xiaomei Gao (China), 41st Plenary Meeting, GAOR, 65th Session, UN Doc. A/65/PV.41, 29 October 2010, p. 18. ICC, Delegations to the Review Conference of the Rome Statute of the International Criminal Court, RC/ INF.1 (29 August 2010), p. 43, asp.icc-cpi.int/sites/asp/files/asp_docs/RC2010/RC-INF.1-reissued-ENG-FRA-SPA.pdf. China did not use its veto powers to block the Security Council referrals of situations in Darfur or Libya to the ICC, see SC Res. 1593 (2005) and SC Res. 1970 (2011). SC Res. 1966 (2010). GA Res.57/228A (2000). SC Res. 1315 (2000). SC Res. 1664 (2006).

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

244

Dan Zhu

international crimes committed in Syria.57 All these different forms of engagement indicate that China has a consistent and continuous interest in the body of law, but it is not willing to engage more directly with international criminal law owing to certain concerns illustrated in Section 12.3. Although these specific Chinese concerns are raised in the context of international criminal law, they also have a degree of contextual resonance with China’s traditional concerns towards general international law. 12.3 MAJOR CONCERNS NEGATIVELY INFLUENCING CHINA’S ENGAGEMENT WITH INTERNATIONAL CRIMINAL LAW

While certain major concerns regarding international criminal law were raised by the Chinese authorities in various contexts of the Rome Statute, they may very well reflect the superstructure of Chinese policy preferences and traditional concerns in relation to international legal regimes, which are consistently being raised in the legal terms of sovereignty, normativity and legitimacy. 12.3.1 Sovereignty Concern China’s traditional approaches towards international law still include an emphasis on the strict concept of sovereignty, as expressed in the Five Principles of Peaceful Coexistence, which is enshrined in the 1982 Chinese Constitution Law and which Beijing continues to promote officially.58 As such, any international norms that challenge the Chinese notion of state sovereignty, which is deeply rooted in China’s ‘century of humiliation’ at the hands of Western powers and troubled nation-building process in the twentieth century,59 might be difficult for China to embrace. Being one key element of the Chinese thinking on sovereignty, non-interference is also a long-observed feature of China’s foreign policy, which similarly reflects its lingering victim mentality and a desire to prevent political interference in its own internal affairs.60 Beijing is particularly wary that certain international norms may open the door to foreign interference in China’s domestic affairs and undermine its political stability. In the view of China, ‘human rights are essentially matters within the domestic jurisdiction of a country. Respect for each country’s sovereignty and non-interference in internal affairs are universally recognized principles of international law, which . . . of course are applicable to the field of human rights as well.’61 As such, the Chinese position on human rights has been deeply influenced by its understanding that human rights enforcement can be administrated only by sovereignty states and not through an international mechanism.62 According to the Chinese government, the 57

58

59

60

61

62

On 21 December 2016, China voted in favour of the General Assembly Resolution 71/248, which ‘decides to establish the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic’, GA Res. 71/248 (2016). Speeches by Mr Jinping Xi, President of the People’s Republic of China, ‘Carry Forward the Five Principles of Peaceful Coexistence to Build a Better World Through Win–Win Cooperation’, 28 June 2014, en.people.cn/n/2014/ 0710/c90883-8753393.html. Samuel Kim, ‘Sovereignty in the Chinese Image of World Order’ in Ronald Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrecht: Martinus Nijhoff, 2004), 428–9. Zhaojie Li, ‘Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order’ (2001) 5 Singapore Journal of International & Comparative Law, 316–17. Information Office of the State Council, The People’s Republic of China, ‘Chapter V: Active Participation in International Human Rights Activities’, 1991, china.org.cn/e-white/7/7-L.htm, para. 10. Ibid., para. 9, ‘China is opposed to interfering in other countries’ internal affairs on the pretext of human rights . . . and so hurting sovereignty’.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

245

protection of human rights needs to be balanced with the principles of territorial integrity and non-interference, as well as with specific cultural, social, economic and political circumstances.63 While China has ratified most of the international human rights treaties, including major international conventions,64 it has consistently refused to recognize any mechanisms that, in accordance with the relevant human rights treaties, can receive and consider possible individual complaints of human rights violations.65 Notwithstanding this position, China does leave some room for international intervention in respect of gross human rights violations. It stated that ‘China has always held that to effect international protection of human rights, the international community should interfere with and stop acts that endanger world peace and security, such as gross human rights violations caused by colonialism, racism, foreign aggression and occupation, as well as apartheid, racial discrimination, genocide, slave trade and serious violation of human rights by international terrorist organizations.’66 For gross human rights violations that constitute international crimes, China seems to have signalled a shift from a rigid insistence on sovereignty and non-intervention towards a more pragmatic approach to humanitarian crises. In the Position Paper on the United Nations Reform released in 2005, the Chinese government explicitly acknowledged that ‘when a massive humanitarian crisis occurs, it is the legitimate concern of the international community to ease and defuse the crisis’.67 Although China continues to champion a strong concept of state sovereignty and non-interference in domestic affairs, its actions since the end of the Cold War evidence a willingness to acquiesce in, and even actively support, multilateral interventions for humanitarian purpose that obtain both UNSC authorization and host state consent.68 This is shown by the Responsibility to Protect (R2P) doctrine, which was unanimously affirmed by the UN members at the 2005 World Summit,69 with several important modifications to the original Western conception.70 China initially endorsed the R2P,71 although in recent years the Chinese position has gradually become more cautious.72 In addition, China played a significant role in the establishment of the UN ad hoc tribunals, the ‘hybrid’ tribunals and the ICC, which 63

64

65

66 67

68

69 70

71

72

Information Office of the State Council, The People’s Republic of China, ‘Progress in Human Rights over the 40 Years of Reform and Opening Up in China’, December 2018. Hanqin Xue, Chinese Contemporary Perspective on International Law: History, Culture and International Law (Leiden: Martinus Nijhoff, 2012), 147. Dan Zhu, ‘China, the International Criminal Court, and International Adjudication’ (2014) 61 Netherlands International Law Review, 51. Information Office of the State Council, supra note 61, para. 11. China’s Position Paper on United Nations Reform (2005), Section III, Responsibility to Protect, un.chinamission.gov.cn/eng/chinaandun/zzhgg/200506/t20050607_8412070.htm. See Jonathan E. Davis, ‘From Ideology to Pragmatism: China’s Position on Humanitarian Intervention in the PostCold War Era’ (2010) 44 Vanderbilt Journal of Transnational Law, 220. World Summit Outcome, UN Doc. A/RES/60/1 (2005), paras. 138–9. See International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2011). For the modifications of the World Summit Outcome document to the ICISS conception of R2P, see Andrew Garwood-Gowers, ‘China’s “Responsible Protection” Concept: Reinterpreting the Responsibility to Protect (R2P) and Military Intervention for Humanitarian Purposes’ (2016) 6 Asian Journal of International Law, 94. For example, in 2006 China voted in favour of the Security Council Resolution 1674, which reaffirmed the World Summit’s commitment on R2P, see SC Res. 1674 (2006), para. 4, which ‘reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. See Chinese Permanent Mission to the UN, 2009, ‘Statement by Ambassador Liu Zhenmin at the Plenary Session of the General Assembly on the Question of Responsibility to Protect’, https://bit.ly/43Vo4rE. For China’s evolving relationship with R2P, see Mauro Barelli, ‘Preventing and Responding to Atrocity Crimes: China, Sovereignty and the Responsibility to Protect’ (2018) 23(2) Journal of Conflict & Security Law, 173–201; Zheng Chen, ‘China and Responsibility to Protect’ (2016) 25 Journal of Contemporary China, 686–700.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

246

Dan Zhu

represents ceding certain national sovereignty to an international mechanism to end impunity for mass human rights atrocities. Moreover, being a non-party state to the Rome Statute, China did not seek to use its veto power to block the UNSC referrals of situations of mass atrocities in either Darfur or Libya to the ICC.73 It seems that ordinary human rights violations and gross human rights violations can be viewed as two ends of the spectrum of Chinese human rights policy in terms of international interventions either militarily or judicially. Despite the fact that the Chinese government has not made any explicit statement regarding this dichotomy, such a suggested dichotomy is a salient feature of the Chinese position on human rights issues, as already discussed. Although the boundary between these two kinds of human rights violations is somehow fuzzy, ‘gross’ human rights violations and similar expressions such as ‘gross and systematic’, ‘grave’ and ‘serious’ have been used interchangeably and sometimes cumulatively by the UNSC in the same context of bringing perpetrators of violations to criminal justice.74 At first glance, international criminal law, which was created to punish international crimes of exceptional gravity, fits well within the category of gross human rights violations in the light of the dichotomous classification of Chinese policies on human rights, and therefore, in principle, should not trigger China’s traditional concerns about state sovereignty and external scrutiny of its domestic human rights affairs. It appears, however, that the scope of gross human rights violations in the view of China is much narrower than the listed actions underpinning the core crimes under certain international criminal law norms. For example, regarding the Rome Statute, the Chinese representative stated that ‘many actions listed under that heading of the crimes against humanity belong to the area of human rights rather than international criminal law’.75 He further pointed out that what the international community needed at the current stage was not a human rights court but a criminal court that punished international crimes of exceptional gravity. The injection of human rights elements would lead to a proliferation of human rights cases, weaken the mandate of the Court to punish the most serious crimes and thus defeat the purpose of establishing such a court.76

The conceptual gap between China and the Rome Statute lies around those breaches of human rights which the Chinese authorities consider ‘ordinary’ ones and therefore not open to external examinations. Although China has endeavoured to narrow the gap by connecting crimes against humanity with armed conflict during the negotiations of the Rome Statute,77 the final definition of this international crime did not meet the more restrictive requirements that China held.78 Arguably, China encounters several thorny domestic challenges that are likely to fall within international criminal law. For example, in recent years, as part of its overall efforts to eliminate 73

74

75 76 77 78

Although, in contrast, the Chinese authorities have repeatedly exercised their veto against UN resolutions on referral of the Syria situation to the Court, Beijing has rarely sought to justify its decision on the basis of state sovereignty and non-intervention. Rather, the Chinese government constantly maintained that peace should take priority over the pursuit of justice. See Statement by Mrs Jieyi Liu (China), UNSC, 7060th Meeting, 15 November 2013, UN Doc. S/ PV.7060, at 12. This is evident from Security Council Resolution 1971 (2011), in which the Council deplores ‘the gross and systematic violations of human rights’ and ‘decides to refer the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court’. Also in Security Council Resolution 2062 (2012), the Council ‘urges the Ivorian Government to ensure . . . all those responsible for serious abuses of human rights . . . are brought to justice’ and ‘further encourages the Ivorian Government to continue its cooperation with the International Criminal Court’. Statement by Mr Guangya Wang, supra note 3. Statement by Mr Wensheng Qu, supra note 41, para. 37. Ibid. Rome Statute, Art. 7.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

247

‘religious extremism’ and terrorist-associated violence in Xinjiang, the Chinese government has established multiple ‘vocational training centres’ that, it claims, offer free training in law, language and workplace skills for Uighurs and other Muslim minorities in the region as part of a broader programme of ‘poverty alleviation’.79 However, these training centres, which some Western states and scholars have labelled ‘internment camps’, have somehow raised international concerns over the risks of potential human rights abuses and atrocity crimes in Xinjiang.80 According to Western critics, many of China’s anti-extremism measures have resulted in severe restrictions on religious belief and large-scale arbitrary detention of members of the Muslim population in Xinjiang, which could possibly trigger the ICC’s jurisdiction over crimes against humanity.81 In response, China has contended that the preventive measures it has implemented in Xinjiang are part of its internal affairs and matters of Chinese domestic law.82 Despite the wide discrepancies between Western and Chinese views on the issue of Xinjiang, what is really at stake here is how to categorize the alleged human rights violations towards Uighurs in the light of the Chinese dichotomous human rights policy, and how such policy should be evaluated in the context of China’s relationship with international criminal law. In appearance, both the right to religious freedom and the freedom from arbitrary detention, which China has allegedly violated – an accusation made by some Western states but firmly denied by the Chinese government – in implementing its counterterrorism measures in Xinjiang,83 are most of the time considered ordinary human rights protected under traditional human rights conventions. Owing to its staunch defiance of external scrutiny and intervention in its domestic affairs, China has never subscribed to any of the protocols granting its citizens access to the quasi-adjudicatory mechanisms of human rights treaty bodies.84 This, legally speaking, means that the Chinese preventive counterterrorism measures in Xinjiang, regardless of their compliance with international human rights norms, will not be subject to quasi-judicial scrutiny by the UN human rights treaty bodies. Unlike the right to religious freedom, violations of which do not fall under the purview of international criminal law, massive detentions or imprisonments, when they are being conducted arbitrarily, are likely to lead to gross human rights violations or even crimes against humanity under the Rome Statute.85 Even if domestic law could arguably be relied on to legitimate detention,86 the determination of arbitrariness also involves an examination of the compliance of national legislation with international human rights standards.87 It appears that the arbitrariness in the context of detention which China has 79

80

81

82

83 84

85 86

87

Xinhua News, ‘Full Transcript: Interview with Xinjiang Government Chief on Counterterrorism, Vocational Education and Training in Xinjiang’ (16 October 2018), chinadaily.com.cn/a/201810/17/WS5bc68c76a310eff303282c6f .html. Human Rights Watch, ‘Eradicating Ideological Viruses: China’s Campaign of Repression Against Xinjiang’s Muslims’ (9 September 2018), hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaignrepression-against-xinjiangs. Global Centre for the Responsibility to Protect, ‘The Persecution of the Uighurs and Potential Crimes Against Humanity in China’ (April 2019), globalr2p.org/media/files/2019-april-uighurs-brief.pdf. Information Office of the State Council, The People’s Republic of China, ‘The Fight Against Terrorism and Extremism and Human Rights Protection in Xinjiang’, March 2019. For more detailed discussions, see Chapter 11 of this volume. Yayezi Hao and Ignacio de la Rasilla, ‘China and International Adjudication – Picking up Steam?’ (2021) 12 Journal of International Dispute Settlement, 647. Rome Statute, Art. 7. In fact, the Chinese government has claimed that the preventive measures adopted are in accordance with its updated national legislations, namely, its National Security Law of 2015, its Counter-Terrorism Law of 2016, its Cybersecurity Law of 2017 and its Revised Regulations on Religious Affairs of 2018, see Information Office of the State Council, supra note 82. Christopher K. Hall and Carsten Stahn, ‘Article 7 Crimes Against Humanity’ in Otto Triffterer and Kai Ambos (eds.), The Rome Statute of the International Criminal Court: A Commentary, (Munich: C. H. Beck, 2016), 199.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

248

Dan Zhu

endeavoured to exclude from external examination by international human rights treaty bodies is likely to fall within the purview of the ICC. Although response under the international criminal law to gross human rights violations requires a higher threshold, and the alleged Chinese misconducts in Xinjiang are unlikely to be considered to involve the level of widespread or systematic attack against a civilian population required to trigger the ICC’s jurisdiction over crimes against humanity, the Court may find ways to examine Chinese domestic law’s compliance with international human rights standards in determining the arbitrariness of widespread detention practices. As such, China is seemingly being exposed to greater international scrutiny for its domestic human rights situations and state practice, albeit, indirectly, in the form of individual criminal responsibility. Perhaps a close analogy can be made with the ICC’s evaluation of a state’s compliance with international human rights standards on fair trial rights during its determination of admissibility as part of the Court’s complementarity regime.88 Although the main purpose of international criminal law is to prevent impunity and not to move domestic proceedings towards international standards of fairness, the practice of the ICC so far has suggested otherwise.89 While China is willing to embrace international criminal law, which brings to account those responsible for international crimes, it would not go as far in its support as to risk exposing itself to unreasonable or unwelcome levels of scrutiny. In addition, China is concerned that international criminal law is susceptible to being used by some states or non-state actors to interfere in its internal affairs. Actually, there have been several arguments and efforts, private or official, that seek to bring China’s government or its leaders to account in accordance with international criminal law. For instance, the Uyghur Tribunal, a private initiative situated in the United Kingdom, ‘hears’ and has made ‘rulings’ on alleged international crimes committed by China against the Uyghurs.90 This so-called Uyghur Tribunal, which was criticized as legally flawed and meaningless by the Chinese government,91 will inevitably become part of the negative reference for China’s future assessment of its relationship with international criminal law. 12.3.2 Normative Concern Historically, China’s perspective on international law has been profoundly shaped by its past experience of unequal treaties and Western-imposed substantive rules of international law dating back to the nineteenth century.92 In fact, some international norms were constructed during a period when the Chinese government was excluded from the UN and had no access to international mechanisms.93 As such, China is less confident on those international rules that were in nature imposed by the West. Unlike the normative corpus of international law dating from the nineteenth century, in relation to which China was almost completely excluded from the international lawmaking process, international criminal law to some extent does not suffer 88

89

90

91

92 93

Kevin Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’ (2006) 17 Criminal Law Forum, 257–9. Dan Zhu, ‘The Complementarity Regime of the International Criminal Court: Concerns of China’ (2019) 41(1) University of Pennsylvania Journal of International Law, 20–5. BBC News, ‘China Committed Genocide against Uyghurs, Independent Tribunal Rules’ (9 December 2021), bbc .com/news/world-asia-china-59595952. Ministry of Foreign Affairs of the People’s Republic of China, ‘Foreign Ministry Spokesperson’s Statement on the “Final Ruling” of the So-Called “Uyghur Tribunals”’, 9 December 2021, fmprc.gov.cn/mfa_eng/xwfw_665399/ s2510_665401/2535_665405/202112/t20211209_10465079.html. Gerrit Gong, The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press, 1984), 143–6. Phil C. W. Chan, ‘China’s Approaches to International Law Since the Opium War’ (2014) 27(4) Leiden Journal of International Law, 882.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

249

from the same criticisms. However, there is at least a lack of motivation for China to fully embrace those norms of international criminal law that do not reflect its normative preferences and values, albeit these policy concerns are currently being raised mostly in strict legal terms. For example, the Chinese government contended that the definitions of crimes against humanity and war crimes under the Rome Statute had exceeded commonly understood and accepted customary law.94 China argued that, ‘in accordance with customary international law, they [crimes against humanity] were crimes committed during wartime or during an extraordinary period related to wartime . . . The Statute, however, failed to link those crimes to armed conflict and thereby changed the major attributes of the crimes.’95 In addition to this legal barrier, a lingering policy concern may exist for China that crimes against humanity without linkage to war could be used by the West as an instrument to contain China through the forum of the ICC. Similarly, it was feared by Beijing that the broadly defined war crimes in non-international armed conflict could be utilized by Western powers as a pretext to restrict China’s ability to resort to military force to achieve reunification with Taiwan, which is both historically complex and politically sensitive. Admittedly, the customary law statuses of crimes against humanity during peacetime and war crimes committed in non-international armed conflict were not without controversy during the period when the Chinese propositions were first formulated. It is equally undeniable, however, that these issues have been undergoing rapid development in customary international law over the past two decades.96 In particular, the customary international law relating to individual criminal responsibility in internal conflicts has not evolved in a manner that could effectively meet China’s normative preferences in this area. This is partly because the international criminal courts and tribunals have been seeking to rapidly develop the applicable law through interpretive techniques that some have termed ‘modern positivism’.97 For example, in its 1995 decision on the issue of jurisdiction in the Tadic´ case, the ICTY Appeals Chamber eroded the distinction between international and internal conflict by enunciating a customary law of war crimes in internal conflicts, although it was unclear whether the necessary practice could be established.98 Some scholars were critical about this approach to the development of international criminal law on the basis that it undermines both the settled law and the principles of participation in the formulation of the law.99 In fact, owing to the nature of that process and the power conferred on the ad hoc tribunals to develop individual criminal responsibility, China did not have an opportunity to influence the outcomes within that institutional context.100 The subsequent negotiations to establish the ICC preponderantly took the jurisprudence of the ad hoc tribunals as being reflective of customary international law. Nevertheless, to the extent that uncertainty may have existed as to whether a nexus to armed conflict was required under current 94 95 96

97

98

99

100

Statement by Mr Wensheng Qu, supra note 41, paras. 30–43. Ibid., para. 37. For crimes against humanity, see Yoram Dinstein, ‘Crimes against Humanity After Tadic’ (2000) 13 Leiden Journal of International Law, 384; for war crimes, see Eve La Haye, War Crimes in Internal Armed Conflicts (Cambridge: Cambridge University Press, 2008), 167. Bruno Simma and Andreas L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (1999) 93 American Journal of International Law, 313. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic´ (IT-94-1-AR72), 2 October 1995, Appeals Chamber, para. 141: ‘it is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict’. Anthony Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2 Chinese Journal of International Law, 93. See Dan Zhu, ‘China, Crimes against Humanity and the International Criminal Court’ (2018) 16(5) Journal of International Criminal Justice, 1021–41, at 1039–40.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

250

Dan Zhu

customary international law before 1998, the adoption of the ICC Statute as a statement of the collectively agreed view of numerous states is, indeed, likely to serve as evidence that such a nexus is not required.101 The overwhelming evidence now points in the opposite direction to the Chinese view on these issues, and the customary law statuses of both crimes as reflected in the Rome Statute are now firmly entrenched, and they by no means reflect China’s normative preference either in legal or in policy terms. Unlike other core crimes, the crime of aggression, which is by its very nature related closely to international law on the use of force, is surrounded by a grey area of legal controversies.102 In particular, the state act underlying the crime of aggression implies the unlawful use of force; once defined, it might alter the manner in which states could comfortably employ its military power. Owing to the competing territorial and jurisdictional claims between China and several of its neighbours, all claimants are expanding their military and law enforcement capabilities; thus, the risk of armed conflict in the South and East China Sea is not insignificant. In addition, given China’s experience during its ‘century of humiliation’ when it was subjected to repeated interventions by Western powers,103 its own current internal challenges to sovereignty and the subsequent risk of being a target of ‘humanitarian intervention’, defining the act of aggression underlying the crime is in the vital interest of China. In fact, the Kampala definition on the crime of aggression relies heavily on the ‘Definition of Aggression’ annexed to General Assembly Resolution 3314 (XXIX).104 That definition, which was adopted by consensus in 1974 and intended to serve as guidance for the UNSC in determining the existence of an act of aggression by a state, was the product of seven years’ work by the Special Committee on the Question of Defining Aggression established by the UNGA in 1967. As such, much of the committee’s work was already in progress when the PRC government began to sit in the UN in 1972. Therefore, the definition as adopted had no Chinese input.105 China expressed its objection and raised several concerns in relation to the definition at that time. The Chinese government pointed out that ‘the meaning of certain provisions was too vague, and there were many loop-holes in interpretation, both with regard to the criteria for determining acts of aggression and with regard to the enumeration of instances of aggression’.106 In particular, China singled out Article 3(d) of the Annex to Resolution 3314(XXIX), according to which ‘an attack by the armed forces of a state on the land, sea or air force, or marine and air fleets of another state’ will qualify as an act of aggression.107 The Chinese government argued that ‘[A]rticle 3(d) was too loosely worded in so far as an attack on marine fleets was concerned’, and ‘in its present ambiguous form, it might be used by the super-Powers to slander a coastal State acting in defence of its sovereignty by labelling its action an act of aggression’.108 China further insisted that ‘the Coastal State had the right to take action against fleets illegally entering 101

102 103

104

105

106

107 108

Darryl Robinson, ‘Crimes against Humanity: Reflections on State Sovereignty, Legal Precision and the Dictates of the Public Conscience’ in Flavia Lattanzi and William A. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court, 139–70 (Ripa di Fagnano Alto: il Sirente, 1999), 149. Malcolm Shaw, International Law, 6th ed. (Cambridge: Cambridge University Press, 2008), 1123–4. Jerome A. Cohen, ‘China and Intervention: Theory and Practice’ (1973) 121 University of Pennsylvania Law Review, 476. General Assembly Official Record, Definition of Aggression, GA Res. 3314, UN GAOR, 1974, UN Doc No. A/RES/ 3314(XXIX), p. 143. Samuel S. Kim, ‘The People’s Republic of China and the Charter-Based International Legal Order’ (1978) 72 American Journal of International Law, 342. Statement by Chih-Yuan An (China), 6th Comm., 1475th Meeting, UN GAOR, 29th Session, UN Doc. A/C.6/1475, 14 October 1974, para. 15. Definition of Aggression, GA Res. 3314, UN GAOR, 1974, UN Doc No. A/RES/3314(XXIX), annex, Art. 3(d). Statement by Chih-Yuan An, supra note 106, para. 15.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

251

their national waters in order to protect their national economic rights and interests and their marine resources’109 and that ‘the draft definition must in no way prejudice the exercise of such rights by the coastal States’.110 In fact, military activities in another state’s exclusive economic zone were a point of contention during the negotiations at the Third UN Conference of the Law of the Sea111 and continue to be a major source of potential military confrontation in the South and East China Seas. As such, China has been keen on developing a clear and precise definition on the state element of the crime of aggression that reflects its normative preference in relation to the use of force under international law. In fact, the line between aggression and self-defence against aggression is a sensitive issue that has confronted China many times in history and is still relevant today. The ongoing military operation of Russia in Ukraine (the so-called Ukraine War), which commenced on 24 February 2022, represents the latest challenge to international law on the use of force. While Russia’s attack on Ukraine has been widely condemned by the international community as a violation of the prohibition of the use of force and an act of aggression,112 Russia has sought to justify its actions by reference to the doctrine of self-defence.113 Given the legal complexity and the political sensitivity relating to the Ukraine War, China did not endorse any relevant UNSC draft resolutions114 or the UNGA resolutions115 that endeavoured to identify Russia’s military operations as aggression. The Chinese government even voted against the UNGA resolution concerning the issue of remedy and reparation for alleged aggression against Ukraine.116 Although the ‘Uniting for Peace’ resolution envisages that the UNGA can effectively step in where the UNSC is deadlocked, concerns were raised by China about the assumption of functions of a judicial nature beyond the purview of the UNGA.117 In fact, back in 1951, China was somehow found by a UNGA resolution to have engaged in aggression in Korea,118 109 110 111

112 113

114

115

116

117

118

Ibid. Ibid. Official Records of the Third UN Conference on the Law of the Sea, Vol. 17, Plenary Meeting, UN Doc. A/ CONF.62/WS/37 and Add. 1 and 2, p. 243. While maritime powers maintained that the EEZ should have the traditional freedom of the high seas, coastal states argued for more rights and control over the zone. China failed to achieve its objective to broaden coastal state rights and include security interests as a costal state competency in the EEZ. See UNGA Res ES-11/1, 2 March 2022; UNGA Res ES-11/5, 14 November 2022. Letter dated 24 February from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary General, UN Doc. S/2022/154, 24 February 2022. For example, on 25 February 2022, China abstained in UNSC Draft Resolution S/2022/155, the operative part of which deplored the Russian’s aggression against Ukraine and decided that Russia shall immediately cease its use of force against Ukraine; on 30 September 2022, China abstained in UNSC Draft Resolution S/2022/720, which condemned Russia’s attempted annexation of four eastern Ukraine regions. For example, on 2 March 2022, China abstained in UNGA Resolution ES-11/1, which demanded that Russia immediately end its military operations in Ukraine; on 12 October 2022, China abstained in UNGA Resolution ES-11/4, which vigorously censured the Russian military operation as an aggression then called upon states not to recognize as legal the consequences thereof; on 14 November 2022, China voted against UNGA Resolution ES-11/5, which called for Russia to be held accountable for alleged invasion of Ukraine and suggested that Russia pay war reparations for the loss during the military conflict. In remarkably strong language, the Resolution stated that ‘the Russian Federation must be held to account for any violations of international law in or against Ukraine, including its aggression in violation of the Charter of the United Nations and that it must bear the legal consequences of all its internationally wrongful acts, including making reparation for the injury, including any damage, caused by such acts’. UNGA Res ES-11/5, operative para. 2. UN Press Release, ‘General Assembly Adopts Text Recommending Creation of Register to Document Damages Caused by Russian Federation Aggression against Ukraine, Resuming Emergency Special Session’, GA/12470, 14 November 2022. Intervention of the Central People’s Government of the People’s Republic of China in Korea, GA Res. 498, UN GAOR, 1951, UN Doc. A/RES/5/498(V). The General Assembly found that ‘China, by giving direct aid and assistance to those who were already committing aggression in Korea, has itself engaged in aggression in Korea’.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

252

Dan Zhu

which it considered to be justified self-defence.119 As such, Beijing has been especially cautious in defining the crime of aggression, which involves the increased scrutiny of, and legal challenges to, possible military actions of China. Compared to definitions of crimes against humanity and war crimes, which could not be reopened and redrafted by having other states return to the negotiating table after the Rome Conference, the crime of aggression remained the element over which China could assert its normative preference until the Kampala Review Conference.120 It is worth noting that China actively participated in every stage of the followup negotiations on the crime of aggression, and voiced its opinions on the definition of the crime during meetings of the Assembly of States Parties, the Special working Group on the Crime of Aggression and the Kampala Review Conference.121 Although in Kampala China sought to challenge, if not overthrow, the traditional definition of aggression, which was created and dominated by Western powers in history, the final definition was not formulated along the lines of Chinese thinking owing to China’s limited capacity and influence as an observer state to the Review Conference.122 Above all, as an emerging great power, China has been trying to project its own norms and values in making international criminal law norms, and it no longer agrees to accept those norms handed over by others or imposed by the West. However, the substantive international rules defining the core crimes under the Rome Statute were by no means reflections of China’s normative preferences and values. 12.3.3 Legitimacy Concern Owing to its past unhappy experience with international judicial bodies that were dominated by the West and overwhelmed by Western judges who might give judgments based on biased discretions,123 China may choose to eschew participation in some international legal regimes out of concern for a given institution’s lack of independence or proper safeguards to prevent misuse for political reasons. This kind of concern in the area of international criminal law can be traced back to China’s engagement with the IMTFE. As the United States dominated the functioning of the Tokyo Trial,124 certain alleged crimes were intentionally exempted from the trial’s prosecution. As a result, the Tokyo Trial failed to fully deliver justice to the most victimized state, namely, China. The Tokyo Trial, which dispensed justice to the extent that it conformed to political expediency for the United States, nonetheless planted seeds of distrust in China’s impression of international prosecutions.125 The Tokyo Trial’s prosecutorial problem was that the tribunal lacked sufficiently clear standards to justify its decision to prosecute and immunize, 119

120

121 122

123

124

125

Statement by Hsiu-Chuan Wu (China), UN SCOR, 527th Meeting, UN Doc. S/PV.527 (1950), 28 November 1950, at 2122: ‘Under such circumstances the United States armed aggression against Korea cannot be regarded as a matter which concerns the Korean people alone . . . The United States aggression against Korea gravely endangers the security of the People’s Republic of China.’ Although crime of aggression was included in the text of the Rome Statute in 1998, owing to certain definitional and jurisdictional controversies, the ICC could not exercise its jurisdiction over the crime until the Statute was completed in accordance with the procedures contemplated by Articles 121 and 123. Statement by Ms Xiaomei Gao, supra note 50. Dan Zhu, ‘China, the Crime of Aggression, and the International Criminal Court’ (2015) 5(1) Asian Journal of International Law, 94–122. Zhaojie Li, ‘Teaching, Research, and the Dissemination of International Law in China: The Contribution of Wang Tieya’ (1993) 31 Canadian Yearbook of International Law, 197. Antonio Cassese and Bernard Ro¨ling, The Tokyo Trial and Beyond: Reflections of a Peacemonger (Cambridge: Polity Press, 1994), 31. Zhu, supra note 2, at 35–7.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

253

and there were no additional check mechanisms on the prosecutorial power.126 When establishing the ICC, China emphasized on numerous occasions that it would support the establishment of an international criminal court that is independent, impartial, effective and universal, and thus capable of punishing the gravest international crimes.127 As such, in view of the dubious use of broad prosecutorial powers by the chief prosecutor at Tokyo, China has been very cautious in granting the ICC prosecutor the power to initiate his/her own investigations. According to the Chinese delegation, ‘the proprio motu power of the Prosecutor under Article 15 of the Rome Statute may make it difficult for the ICC to concentrate on dealing with the most serious crimes, and may make the Court open to undue political influence so that it cannot act in a manner that is independent and fair’.128 At the Rome Diplomatic Conference, unlike the majority of states, China did not consider the authorization by the pre-trial chamber to constitute a sufficient system of checks and balances to protect states from frivolous and politically motivated prosecutions.129 In particular, China has expressed its concern that ‘the Prosecutor might come from the same region or share the same legal, political or cultural background’, which ‘would neutralize the Pre-Trial Chamber’s check and balance role’.130 Admittedly, the ICC prosecutor does enjoy a significant degree of autonomy to select where, and against whom, the Court directs its efforts. This risk of selective prosecution poses a serious challenge to the legitimacy of international criminal law. There have been criticisms that the ICC has unfairly targeted Africans.131 The impression that appears to many is that the Court tends strongly to conform to major power interests.132 However, to some extent, the problem of selectivity is also derived from the ICC’s external relationship with the UNSC. In its past practice, the UNSC has referred some cases – Libya and the Sudanese region of Darfur – but not others, such as Israel and Syria. The UNSC’s decision with regard to whether or not a situation deserves the attention of the ICC is essentially a political one, in which its permanent members, including China, enjoy a privileged position. In fact, the conflict between the independence of the ICC and the prerogatives in the UNSC enjoyed by the five permanent members is most significant in the context of the crime of aggression. While the ICC is already looking at allegations of war crimes and crimes against humanity in relation to the Ukraine situation,133 the Court can exercise its jurisdiction over the crime of aggression only where both the victim and the perpetrator state have ratified the 2010 Kampala aggression amendment.134 The exception is where a situation is referred to the Court by the UNSC under Chapter VII of 126 127 128 129

130

131

132

133

134

Ibid. Statement by Ms Yanduan Li, supra note 41, para. 37. Statement by Mr Guangya Wang, supra note 3. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Statement by Mr Daqun Liu (China), 9th Plenary Meeting, 17 July 1998, UN doc. A/CONF.183/SR.9, para. 39. Statement by Mr Wensheng Qu, supra note 41, para. 41; Statement by Jian Guan (China), 6th Comm., 15th Meeting, GAOR, 57th Session, 28 November 2003, UN Doc. A/C.6/57/SR.25, para. 48. Margaret M. deGuzman, ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’ (2012) 33(2) Michigan Journal of International Law, 265. Although the United States has allegedly engaged in aggressive war in Iraq and Afghanistan, the UK has engaged in activities that may qualify as war crimes in Iraq, and Israel may have engaged in war crimes in Gaza, these situations have not yet got past preliminary examination with the exception of Afghanistan. For criticisms, see Alana Tiemessen, ‘The International Criminal Court and the Politics of Prosecutions’ (2014) 18(4) International Journal of Human Rights, 444–61. Neither Ukraine nor Russia is a state party to the Rome Statute, but Ukraine has accepted the ad hoc jurisdiction of the Court by lodging two Article 12(3) declarations. See ICC OTP, Statement of ICC Prosecutor, Karim A. A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation, 2 March 2022, at icc-cpi.int/Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine. Rome Statute, Art. 15bis(4) and (5).

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

254

Dan Zhu

the UN Charter. Owing to the unavoidable Russian veto, a UNSC referral to the ICC is inconceivable in the context of the Ukraine War, as would be the case in any current or future situation involving aggression by one of the five permanent members of the Council and perhaps even their close allies. As the crime of aggression is intrinsically linked to the commission of aggression by a state, the ICC’s power to exercise jurisdiction over the crime inevitably sits in tension with the role of the UNSC in finding whether an act of aggression has been committed.135 During the negotiations on the crime of aggression, China and other permanent members of the Security Council took the view that the institution of proceedings for the crime of aggression before the ICC should be conditional on a prior exclusive determination by the UNSC of the existence of an act of aggression.136 This proposition would actually add a political dimension to any determination of the crime of aggression, as the power politics in the UNSC will always play a part in the ICC’s jurisdiction. While China’s concern about international criminal law to some extent depends on whether the application of the body of law is subject to political interference, as discussed earlier, China has been unwilling to preserve the ICC’s independence by subordinating the Court’s authority to an inherently political organization – the UNSC. This seemingly paradoxical Chinese position can be partly explained by its earlier statement during the negotiations of the Rome Statute, when the Chinese delegates indicated its support for ‘any proposal that would ensure the independence of the court and at the same time reasonably reflect the special role of the Security Council in the maintenance of international peace and justice’.137 The amendment on the crime of aggression adopted in Kampala nevertheless did not grant a dominating role to the UNSC in filtering the ICC’s jurisdiction over the crime of aggression.138 In fact, the move to criminalize aggression and put the determination of this issue into judicial hands rather than political ones inevitably hives off parts of the UNSC’s authority and the privileges of its permanent members including China. Arguably, the current situation in Ukraine serves to confirm the impossibility of any meaningful reaction by the UNSC when the alleged aggressor state is one of its permanent members, and the necessity of having alternative mechanisms for coping with the issue of aggression.139 The question, however, remains as to whether the mechanisms implementing international criminal law, including the ICC, can operate in a manner that is independent of the political interests of internal and external actors, which is a crucial factor in determining whether the relevant international criminal courts and tribunals will be perceived by China as legitimate actors in their own right or as just more political tools in the hands of the West.

135

136

137

138 139

Giorgio Gaja, ‘The Respective Roles of the ICC and the Security Council in Determining the Existence of an Aggression’ in Mauro Politi and Guiseppe Nesi (eds.), The International Criminal Court and the Crime of Aggression, 121–4 (Aldershot: Ashgate, 2004), 121. Herman von Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results, 79 (The Hague: Kluwer Law International, 1999), 84. Statement by Mr Jielong Duan (China), 6th Comm., 11th Meeting, GAOR, 52th Session, UN Doc. A/C.6/52/SR.11, 4 November 1997, para. 97. Rome Statute, Art. 15bis and 15ter. Given the absence of jurisdiction for the ICC over the crime of aggression, a proposal has been made by a number of eminent scholars and practitioners for the creation of a Special Tribunal to prosecute the crime of aggression in Ukraine. See Statement, ‘Calling for the Creation of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine’, https://gordonandsarahbrown.com/wp-content/uploads/2022/03/Combined-Statement -and-Declaration.pdf.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

255

12.4 CHINA’S DUAL IDENTITIES AND INTERNATIONAL CRIMINAL LAW

The overall Chinese policy with respect to international criminal law might be exceptional, but, owing to China’s dual identities as a developing state and a great power, some aspects of China’s concerns reflect the approaches of developing countries whereas others echo the preferences of the dominant powers. Indeed, a look beyond China to developing states in Asia more generally indicates that the lack of enthusiasm towards international criminal law is not unique to China. The Chinese primacy of state sovereignty and culture-specific understanding of human rights seems to have resonated well with ‘Asian values’, which emphasize the importance of unique Asian historical, cultural and religious factors in determining human rights standards.140 The Western penetration and domination of Asia since the nineteenth century have profoundly influenced Asian countries’ feelings about Western values, norms and standards.141 Unlike other regions of the world, there is not yet a well-developed and effective regional system of human rights protection in Asia, which is a reflection of the general reluctance of developing states in the region to adopt an internationalized approach to issues that are traditionally seen as internal matters. The overall relationship between Asia and the ICC can similarly be described as one of particular hesitation,142 as many developing countries in the region are still being impeded by sovereignty-related concerns about international criminal law. This was evident during the negotiations leading to the establishment of the permanent court, during which Asian states generally supported the creation of the ICC, but expressed their concerns to protect national sovereignty in various contexts.143 In addition, there has been a lingering concern among developing countries, especially those in Africa, that the ICC runs the danger of becoming hostage to the machinations of a few privileged and powerful countries.144 Apart from these common legal concerns among developing states, there are several particular policy reasons for China’s ambivalence towards international criminal law as it continues to confront thorny domestic and international challenges such as those relating to Xinjiang, Taiwan and the South China Sea, as discussed earlier. On the other hand, as a major international player, China has much in common with other permanent members of the UNSC staying outside of the Rome Statute, in particular the United States, in its wariness towards international criminal law. For instance, the amendment on the crime of aggression adopted in Kampala, which was a decisive effort by the majority states to isolate the ICC from the UNSC’s political influence over the issue of aggression, is a far cry from the long-standing shared Chinese and US policy for a dominant role of the UNSC. Despite its policy concerns as an important international player, China remained benignly engaged with international criminal law. This is in sharp contrast with the United States, whose relationship with the body of law can be defined by a mixture of open hostility, disengagement and, now, principled engagement.145 Part of what led the United States to shift its policy was the realization of the disadvantages of its insulation from, or opposition to, international criminal law. In fact, 140

141

142 143 144

145

Christian Welzel, ‘The Asian Values Thesis Revisited: Evidence from the World Values Surveys’ (2011) 12(1) Japanese Journal of Political Science, 2. Simon Chesterman, ‘Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’ (2016) 27(4) European Journal of International Law, 945–78. Ibid. Triffterer and Ambos, The Rome Statute, supra note 87. For the Africa–ICC relationship, see Charles C. Jalloh and Ilias Bantekas (eds.), The International Criminal Court and Africa (Oxford: Oxford University Press, 2017). On the history of the US–ICC relationship, see Megan A. Fairlie, ‘The United States and the International Criminal Court Post-Bush: A Beautiful Courtship but an Unlikely Marriage’ (2010) 29 Berkeley Journal of International Law, 533–77.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

256

Dan Zhu

neither China nor the United States can afford to pay the price of opting out of the evolution of international criminal law, which carries weight and structural implications not only within its own sphere of activity but for international law and institutions more generally. As international crimes almost always have large ramifications in terms of international peace and security, China’s preference for a stronger UNSC not only reflects its privileged position and ‘vested interest’ as a great power but also mirrors its growing role in shaping the evolution of international criminal law in ways that lead up to ideal visions of the international legal system that are based on respect for the Charter of the UN.146 Owing to China’s dual identifies when engaging with international criminal law, it is impossible for China to take a simple stand; thus, one dilemma confronting the country is how to reconcile its two seemingly incompatible identities. There are situations where China has to choose between being a member of the club of the permanent members of the UNSC and acting on the side of the developing countries. In the context of the crime of aggression, while the Chinese government calls for the independence of the Court, it has nevertheless been unwilling to derogate the primacy of the UNSC. On one hand, as the world’s largest developing country, China has been cautiously keeping a certain distance from the Western powers, and has firmly upheld the sovereignty rights and legitimate interests of fellow developing countries and spoken up for the developing world. On the other hand, as a permanent member of the UNSC carrying special responsibility for the maintenance of world peace and security, China did not seek to block the Chapter VII resolutions that authorized particular judicial interventions in certain developing states, such as the former Yugoslavia, Sudan and Libya. China seems to have balanced the tension between its practical position in the UNSC and its sovereignty concerns as a developing state by partly ignoring the latter. Nevertheless, for the foreseeable future, China will likely continue to lean towards the developing countries on many issues of international criminal law, but at the same time act as a responsible global power; thus, a serious challenge ahead for China is how to reconcile its identity as a member of the Global South and the developing world with its emerging de facto great power status. 12.5 CONCLUSIONS

China’s overall position with respect to international criminal law might be unique, but some aspects of its attitude at one level echo the preferences of the superpowers; at another level they reflect the approaches of the developing countries. Owing to its dual identities as a developing state and a great power, China has concerns about international criminal law that can be divided into two overarching themes: the threat that the body of law could pose to its government’s authority over its internal affairs and the diminution of its influence on matters of global peace and security as a permanent member of the UNSC. While it might be unrealistic to expect that all the Chinese concerns under the two overarching themes, which sometimes sit in tension with each other, will be resolved in a manner that is completely along the lines of the Chinese 146

See Statement by Mr Li Baodong (China), 6849th Meeting, SCOR, UN Doc. S/PV.6849, 17 October 2012. According to Li, China believes that justice cannot be pursued at the expenses of peaceful process, nor should it impede the process of national reconciliation . . . The ICC, as an integral part of the international system of the rule of law, must abide by the purposes and principles of the Charter and play a positive role in maintaining international peace and security . . . Since the Charter entrusts the Security Council with the primary responsibility for the maintenance of international peace and security, we hope that the ICC will exercise caution in carrying out its functions and avoid impeding the work of the Security Council by seeking political settlements to international and regional conflicts.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

12 China and International Criminal Law

257

preferences, the key lies in whether the balance of all these concerns could provide a sufficient level of comfort to the Chinese authorities. Even though the Chinese government has had and continues to have sovereignty concerns in respect of the way in which certain international human rights instruments and their associated institutional architecture operate, international criminal law, if properly defined and interpreted,147 should not be regarded as the appropriate box in which to place the same kinds of concern. However, owing to the broad definition of certain core crimes and the wilful application of international criminal law in the context of the ICC, it is likely to continue triggering the traditional Chinese concerns about external scrutiny of its domestic human rights policies. As an emerging great power, China no longer agrees to accept those norms handed over by others or imposed by the West but tries, instead, to project its own norms and values in the making of international criminal law norms. However, owing to China’s limited ability to shape and influence the international lawmaking process in the late 1990s, the substantive international rules defining the core crimes under the Rome Statute were by no means reflections of China’s normative preferences and values. While it remains to be seen whether the application of international criminal law becomes subject to internal or external political interference, the ICC’s ability to investigate the commission of crimes of aggression independently may indeed constitute an encroachment on the mandate of the UNSC in maintaining international peace and security, in which China has a keen interest as a permanent member. As such, a close examination of China’s specific concerns about the international criminal law in the context of its traditional concerns clearly shows that those Chinese concerns that have traditionally restricted its engagement with international law have not yet been satisfactorily resolved, and the development of international criminal law on the crime of aggression has additionally posed an unprecedented challenge to China’s privileged position in the system of collective security under the UN Charter. In particular, the Rome Statute and its amendment as well as their practical applications so far have failed to reflect the perceived Chinese legal or policy preferences either as a developing state or as a great power. Admittedly, the cost–benefit analysis of China’s accession to the ICC requires a consideration of the Court’s specific strengths and weaknesses as an institution, and those Chinese concerns discussed above are likely to outweigh all perceived benefits for China to move towards full participation in the Court, but this does not necessarily hold true for China’s future engagement with international criminal law. Although the ICC remains the main venue for implementing international criminal law, it does not close off other paths to international criminal justice and there has been a growing Chinese interest in developing alternative means of securing justice. Beyond the institutional context, one significant challenge confronting the Chinese policymaker is how China, as both a developing state and a rising great power, should respond to the normative change of international criminal law. As there has been a compelling trend both in practice and in theory pointing in a different direction that does not meet China’s normative preferences in international criminal law, clinging to the traditional Chinese position risks China becoming less influencing in this area and being relegated to normative irrelevance. There is thus an obvious need for China to reassess from time to time its traditional concerns, update its normative preferences in light of the developments of international criminal law, and engage with this body of law more actively and flexibly, so as to shape the evolution of international criminal law in ways that better serve China’s dual identities and lead towards its ideal visions of international legal order. 147

See Zhu, supra note 89, at 21–3.

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

https://doi.org/10.1017/9781009041133.014 Published online by Cambridge University Press

part v

Human-Centred International Law

Published online by Cambridge University Press

Published online by Cambridge University Press

13 China and International Human Rights Law Ruijun Dai

13.1 INTRODUCTION

Increasingly, scholars observe that China has gradually changed from a learner and an adapter into an active participant and builder of the international human rights system, and even has an ambition to become a rule maker.1 China does not shy away from these new roles. According to its National Human Rights Action Plans (2021–5) (NHRAP), China seeks, in the next five years, to play a leading and constructive role in maintaining the healthy and sustainable development of international human rights by engaging actively in setting international agendas, creating rules in the field of human rights and contributing ideas and solutions to human rights development around the world.2 In the eyes of some states, especially Western states,3 China is the ‘other’4 in the international human rights system, a challenger to, or even a destroyer of, the human rights regime.5 Recently, with China’s propositions such as ‘building a community of shared future for human beings’ and ‘promoting mutually beneficial cooperation in the field of human rights’ being adopted into the resolutions of the United Nations Human Rights Council (HRC),6 some Western scholars have responded with renewed vigilance. They deem China’s engagement to be weakening the premises of international institutions of human rights and describe China as a ‘norm entrepreneur’ seeking to displace existing international

1

2

3

4

5

6

Meng Sun and Haina Lu, ‘China and the Special Procedures of the UN Human Rights Council: Is China Cooperative and Can They Work Better with Each Other?’ (2020) 42(2) Human Rights Quarterly, 357–91, at 390; Yongjin Zhang and Barry Buzan, ‘China and the Global Reach of Human Rights’ (2020) 241 China Quarterly, 169–90, at 169. The State Council Information Office of the People’s Republic of China, ‘Human Rights Action Plan of China (2021– 2025)’, China Daily (10 September 2021), 7. The West or Western states in this chapter refers to societies that embrace Western culture, found mainly in Europe, North America and Australia. See Tom Zwart, ‘Using Local Culture to Further the Implementation of International Human Rights: The Receptor Approach’ (2020) 34(2) Human Rights Quarterly, 546–69, at 549. As Mary Ann Glendon points out in her work, the label ‘Western’ can be used to describe the composition and financial resources of most influential human rights organizations. See 美]玛丽·安·葛兰顿 : 《美丽新界 – 界人权 宣言诞生记》,刘轶圣译 (北京 : 中国政法大学出版社, 2016) 第230页 [Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), trans. by Shengyi Liu (Beijing: China University of Political Science and Law Press, 2016), 230]. Bjorn Ahl, ‘The Rise of China and International Human Rights Law’ (2015) 37(3) Human Rights Quarterly, 637–61, at 639. YuJie Chen, ‘China’s Challenge to the International Human Rights Regime’ (2019) 51(4) New York University Journal of International Law and Politics, 1179–1222. See, e.g., UN Doc A/HRC/RES/46/113, ‘Promoting mutually beneficial cooperation in the field of human rights’, resolution adopted by the Human Rights Council on 23 March 2021.

261 https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

262

Ruijun Dai

norms.7 They also urge the international society to ‘rethink how to address the challenge to international human rights posed’ by China.8 This kind of concern has long been questioned by many scholars in China and some other states, who deem it to be an example of a ‘Western centralist’ perspective and attitude.9 According to many developing states, China’s position is ‘a necessary corrective to the hegemony of liberalism and the neo-imperialistic tendencies of the Western-centric human rights movement’.10 They hope that China may one day provide a ‘viable normative alternative to the formal democracy and liberalism that have failed to resolve the very pressing issues of social inequality and human well-being for so many people in rich and poor countries alike’.11 While providing a relevant framework, this chapter does not intend to add to the debates on the relationship between China and the international human rights system from the perspective of international politics, as many of these, in my view, are rife with speculative accusations and ideological bias.12 Instead, the chapter adopts a norm-oriented approach, which an international lawyer should first and foremost bear in mind. The following issues will be discussed in this chapter: Does China’s position conform to international human rights law (Section 13.2)? How has China been involved in the creation of international human rights norms (Section 13.3)? How does China engage in the United Nations (UN) human rights mechanism (Section 13.4)? And what obligations under international human rights law have been accepted and implemented by China (Section 13.5)? Section 13.6 concludes. Limited by space, this chapter cannot engage in detail with so much actual practice, so it will be based mainly on human rights–related laws, policies and official statements from formal institutions of China, with cautious awareness that there is still a gap between the degree of human rights guaranteed on paper and that enjoyed in practice. 13.2 CHINA’S POSITION OF HUMAN RIGHTS IN THE CONTEXT OF INTERNATIONAL HUMAN RIGHTS LAW: A GENERAL EXAMINATION

At the UN level, the normative basis of international human rights law is the International Bill of Rights – composed of the Universal Declaration of Human Rights (UDHR),13 the International Covenant on Economic, Social and Cultural Rights (ICESCR)14 and the International Covenant on Civil and Political Rights (ICCPR)15 – and seven other core human rights 7

8

9

10

11 12

13 14 15

Sarah Biddulph and Joshua Rosenzweig (eds.), Handbook on Human Rights in China (Northampton, MA: Edward Elgar, 2019), 3, 5. YuJie Chen, supra note 5, at 1180. See also Mikkaela Salamatin, ‘China’s Belt and Road Initiative Is Reshaping Human Rights Norms’ (2020) 53(4) Vanderbilt Journal of Transnational Law, 1427–76, at 1475. 康华茹 : 《多元主义视角下国际人权秩序重构的“中国方案”》, 《人权研究》 (第二十五卷), 2021年第2期, 第 98页 [Huaru Kang, ‘“China’s Plan” for the Reconstruction of the International Human Rights Regime: A Pluralistic Perspective’ (2021) 25(2) Journal of Human Rights, 96–125, at 98]. Randall Peerenboom, ‘The Fire-Breathing Dragon and the Cute, Cuddly Panda: The Implication of China’s Rise for Developing Countries, Human Rights, and Geopolitical Stability’ (2006–7) 7(1) Chicago Journal of International Law, 17–50, at 38. Ibid. See, for instance, Kinzelbach’s summary of the competing views of different political scholars on the issue of China and human rights. Katrin Kinzelbach, ‘Will China’s Rise Lead to a New Normative Order? An Analysis of China’s Statements on Human Rights at the United Nations (2000–2010)’ (2012) 30(3) Netherlands Quarterly of Human Rights, 299–332, at 301–3. UN Doc A/RES/217(III), 10 December 1948. ICESCR, New York, 16 December 1966, in force 3 January 1976, 993 UNTS 3. ICCPR, New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

263

conventions.16 In terms of institutions, these norms are upheld and reviewed by Charter-based and treaty-based human rights mechanisms. To correctly understand these norms, it is necessary to understand the context under which they were created. This entails going back to the place of their birth – the negotiations that eventually led to these documents. The international community has reached many points of consensus while negotiating the different documents that now comprise the body of international human rights law, but these are often neglected or ignored when discussing China’s perspective and practice on human rights. However, we will now examine these points of consensus as they can give us important insights into how to interpret and place the different human rights views and practices. 13.2.1 International Points of Consensus on Human Rights Human rights are not exclusively based on norms that stem from Western civilizations. The UDHR, the cornerstone of international human rights law, embodies a global moral consensus on human rights. Firstly, an important point of consensus on human rights emerges from the contribution of the Chinese representative, Pengchun Chang. As the vice-chairman of the drafting team, he successfully incorporated the Confucian philosophy of ‘two men mindedness/conscience of one’s fellow men’ into the UDHR, which is reflected in Article 1 as ‘conscience’.17 It emphasizes the connection between individuals and others, between the individual and the community, and requires people to be considerate towards each other. Rene´ Cassin, another important drafter of the UDHR, introduced the idea of ‘brotherhood’,18 which was endorsed by Chang. Chang believed it was ‘perfectly consistent with the Chinese attitude towards manners and the importance of kindly and considerate treatment of others’.19 The integration of Confucianism provides non-Western inputs besides liberalism, which should not be denied. Studies have evidently showed that the sources of human rights are embedded in various civilizations,20 and the Western view of human rights is merely a local discourse, albeit very influential. The human rights standards that are to be applied universally should reflect not only the Western conception21 but a ‘civilized and compatible view of human rights’22 that is represented by a global moral consensus on human rights.23 16

17

18

19

20

21 22

23

They are: ICERD, New York, 21 December 1965, in force 4 January 1969, 660 UNTS 195; CEDAW, New York, 18 December 1979, in force 3 September 1981, 1249 UNTS 13; CAT, New York, 10 December 1984, in force 26 June 1987, 1465 UNTS 85; CRC, New York, 20 November 1989, in force 2 September 1990, 1577 UNTS 3; CMW, New York, 18 December 1990, in force 1 July 2003, 2220 UNTS 3; CRPD, New York, 13 December 2006, in force 3 May 2008, 2515 UNTS 3; and CED, New York, 20 December 2006, in force 23 December 2010, 2716 UNTS 3. ‘Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ 化国宇 : 《人权需要统一根基吗 – – 起草过程中的宗教和哲学论争》, 《政法论坛》2020年第5期, 第8页 [Guoyu Hua, ‘Do Human Rights Need a Unified Foundation? Religious and Philosophical Controversy during the Drafting of the Universal Declaration of Human Rights’ (2020) 38(5) Tribune of Political Science and Law, 3–12, at 8]. UN Doc A/C.3/SR.96, Meeting Records of General Assembly, 3rd session, Third Committee, 96th Meeting, 7 December 1948, at 99. See, for instance, Mahendra P. Singh, ‘Human Rights in the Indian Tradition: An Alternative Model’ (2009) 2(2) NUS Law Review, 145–82; Ravi Prakash Vyas and Rachit Murarka, ‘Understanding Human Rights from an Eastern Perspective: A Discourse’ (2018) 24 Asian Yearbook of International Law, 41–59; Ziyad Motala, ‘Human Rights in Africa: A Cultural, Ideological and Legal Examination’ (1989) 12(2) Hastings International and Comparative Law Review, 373–410. Glendon, supra note 3, at 72. [日]大沼保昭 : 《人权国家与文明 : 从普遍主义的人权观到文明相容的人权观》, 王志安译 (北京 : 三联书店, 2003) 第3页 [Onuma Yasuaki, Human Rights, States and Civilisation: From Universalism View of Human Rights to Human Rights View with Civilisational Compatibility, trans. by Zhian Wang (Beijing: SDX Joint Publishing Company, 2003), 3]. This new human rights theory established by the UDHR has been thoroughly discussed by scholars. See, e.g., Glendon, supra note 3; Chengwei Ju, ‘On the Contribution of Confucianism to the New Human Rights Theory:

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

264

Ruijun Dai

Secondly, human rights include both rights and obligations, according to the internationally agreed-upon UDHR. One of the reasons Chang endorsed the incorporation of ‘brotherhood’ in the UDHR is that it creates a happy balance between the broad statement of rights in the first sentence of Article 1 and the implied duties towards one another of the second sentence. According to Chang, ‘various rights would appear more selfish if they were not preceded by the reference to “a spirit of brotherhood”’.24 He emphasized that ‘statements of rights and duties should form an integral part of the declaration’.25 As stipulated in Article 29 of the UDHR, everyone has duties to the community; in the exercise of his or her rights and freedoms, everyone shall be subject to limitations for the purpose of securing due recognition and respect for the rights and freedoms of others. This complementarity of rights and obligations is echoed in American,26 African27 and Asian28 human rights instruments. Thirdly, a point of consensus has emerged that human rights are systematic, whether they be civil, political rights or economic, social and cultural rights. The UDHR, for the first time at global level, embraced these two sets of rights which were later confirmed and legalized by the two artificially separated Covenants (ICCPR and ICESCR) because of the Cold War between the East and the West blocs. Fourthly, human rights concern not only individuals but also collectives.29 For example, Article 1 of the two Covenants stipulates that all peoples have the right to self-determination. In 1986, the UN General Assembly adopted the Declaration on the Right to Development, ‘confirming that the right to development is an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals who make up nations’.30 Fifthly, international human rights law emphasizes social justice, equality and non-discrimination. Thereby, a number of human rights conventions protecting the human rights of vulnerable groups have been adopted under the auspices of the UN, including the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Convention on the Rights of Persons with Disabilities (CRPD) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW). To sum up these points of consensus, we can argue that: international human rights law consists of both individual and collective rights; that economic, social and cultural rights and civil and political rights are equally important; and that rights and obligations go hand in hand. Additionally, international human rights law attaches importance to social justice and international justice. Internationally, it recognizes the right to self-determination of oppressed peoples and the equal right to development of underdeveloped countries. Domestically, it highlights equality and non-discrimination, especially the protection of the rights of vulnerable

24 25 26

27 28 29

30

Starting from Peng Chun Chang’s Contributions to the Formulation of the Universal Declaration on Human Rights’ (2016) 4 China Legal Science, 50–68. UN Doc A/C.3/SR.96, supra note 19, at p. 98. Ibid. American Declaration of the Rights and Duties of Man (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1, p. 17. African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, in force 21 October 1986, Arts. 28, 29. ASEAN Human Rights Declaration, Phnom Penh, 19 November 2012, para. 6. See Yoram Dinstein, ‘Collective Human Rights of Peoples and Minorities’ (1976) 25(1) International and Comparative Law Quarterly, 102–20; Oleh Pankebych, ‘Collective Human Rights: Some Philosophical, Legal and General Theoretical Aspects (to the Anniversary of the Universal Declaration of Human Rights)’ (2018) 9 Law of Ukraine: Legal Journal (Ukrainian), 124–39. UN Doc A/RES/41/128, Declaration on the Right to Development, 4 December 1986.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

265

groups to ensure their equal participation and enjoyment of the fruits of development. According to the Vienna Declaration and Programme of Action of 1993, ‘all human rights are universal, indivisible and interdependent and interrelated’.31 Therefore, when discussing or evaluating the situation of human rights in the context of international human rights law, any one-sided recognition or denial of parts of those rights should be treated with caution. 13.2.2 China’s View on Human Rights China often stresses the point that the rights to subsistence and development are the primary human rights. This is in line with Chinese people’s historical experience of resisting aggression and fascism.32 China also sympathizes with the experience of human rights violations and deprivations in developing countries, and supports the national self-determination and independence of post colonial countries. In China’s view, invasion, occupation and domination of a country not only violate the sovereignty and territorial integrity of the country but also seriously violate the fundamental rights and freedoms of its people. Therefore, the White Paper 199133 started by saying that ‘for any country or nation, the right to subsistence is the most important of all human rights, without which the other rights are out of the question’. After the overthrow of oppression, it is imperative to solve people’s food, clothing, housing and transportation, and to ensure people’s right to subsistence. Therefore, states should attach importance to the right to development. For China, a developing country with relatively poor per capita resources, long suffering from foreign aggression, exploitation and oppression, the rights to subsistence and development have historically been the most urgent needs of Chinese people.34 At the same time, from the standpoint of pursuing a fair and just international political and economic order, China supports the international community in giving priority to the right to development of developing countries. China believes that human rights should integrate individual and collective rights. In 1985, Deng Xiaoping, the core figure of the second generation of leadership of the Chinese Communist Party (CCP), said, ‘What is human rights? First of all, how many people’s human rights? Is it the human rights of the minority, the human rights of the majority, or the human rights of the whole country? The so-called “human rights” in the Western world and the human rights we speak of are essentially different things.’35 The White Paper 1991 reaffirms that ‘[i]t is not a minority of the people or part of a class or social stratum but the entire Chinese citizenry who constitutes the subject enjoying human rights’. Such statements refer to social inequality, saying that all people of all social classes should be able to enjoy their human rights, 31 32

33

34

35

UN Doc A/CONF.157/24, Vienna Declaration and Programme of Action, 25 June 1993, part I, para. 5. On 18 September 1931, the Japanese army invaded Shenyang, China, then quickly occupied Northeast China, provoking the fourteen-year Japanese War of Aggression against China. On 2 September 1945, Japan formally surrendered. China’s anti-Japanese war is an important part and the main eastern battlefield of the world anti-fascist war. China’s war against Japanese aggression started the earliest and lasted the longest; it fought against the most Japanese troops and paid the most. It played an irreplaceable role in the final victory of the world anti-fascist war. Most commentators in developed countries have not realized the strategic significance of China’s war against Japan, and seldom do they know the suffering and great price that China has endured to resist evil. For limited discussion on this period of history by Western scholars, see Rana Mitter, China’s War with Japan, 1937–1945: The Struggle for Survival (London: Allen Lane, 2013); Rana Mitter, Forgotten Ally: China’s World War II 1937–1945 (New York: Houghton Mifflin Harcourt, 2013). The State Council Information Office of the People’s Republic of China, ‘Human Rights in China’ (hereinafter ‘White Paper 1991’), 1 November 1991. The State Council Information Office of the People’s Republic of China, ‘The Progress of Human Rights in China’, December 1995. 邓小平 : 《搞资产阶级自由化就是走资本主义道路》, 《邓小平文选》 (第三卷) (北京 : 人民出版社, 1993年), 第125页 [Deng Xiaoping, ‘To Pursue Bourgeois Liberalization Is to Follow the Capitalist Road’ in Selected Works of Deng Xiaoping (Vol. III) (Beijing: People’s Publishing House, 1993), 125].

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

266

Ruijun Dai

but might be misunderstood as China denies or despises individual human rights, favouring collective rights that concern the Chinese people as a whole. However, that may not be entirely the case. The White Paper 1991 also states that ‘the state pays full attention to safeguarding both individual and collective rights’. Recently, the Chinese government further emphasized individual rights by stating that ‘we must enable every person to enjoy opportunities for selfdevelopment and a good life, and prevent them from fear and threat’ and that ‘the free and well-rounded development of every person is the ultimate goal of human rights. The free development of each individual is the precondition for the free development of all people.’36 China calls for giving equal importance to civil, political, economic, social and cultural rights. As early as the beginning of the 1990s, China criticized some countries because, ‘instead of paying equal attention to all the universally recognized human rights and fundamental freedoms’, they ‘gave greater weight to only a fraction of them’.37 Therefore, Chinese representatives asked the Commission on Human Rights (CHR) to ‘accord equal importance to civil and political rights on the one hand and economic, social and cultural rights on the other’, since ‘the two categories were interdependent, indivisible and complementary’.38 China itself promises to coordinate the planning and promotion of all rights and endeavours to achieve a balanced development of economic, social and cultural rights and civil and political rights.39 By contrast, some Western countries and scholars have unilaterally emphasized civil, political rights and liberty,40 and narrowly interpreted the meaning of rights and state obligations,41 which deviates from international human rights law.42 China recognizes the universality of human rights but also emphasizes the particularity of the different ways to achieve enjoyment of human rights. China acknowledges that ‘it has been a long-cherished ideal of mankind to enjoy human rights in the full sense of the term’,43 and that ‘it is the common pursuit of human society to protect the life, value and dignity of human beings, and realize human rights for all’.44 Meanwhile, China asserts that human rights are a historical 36

37

38 39 40

41

42

43 44

The State Council Information Office of the People’s Republic of China, ‘Seeking Happiness for People: 70 Years of Progress on Human Rights in China’, September 2019. E/CN.4/1990/SR.50, Commission on Human Rights, Forty-Sixth Session Summary Record of the First Part of the 50th Meeting, 18 May 1990, para. 38. Ibid. ‘Seeking Happiness for People’, supra note 36. Against the background of the Covid-19 pandemic, some Western scholars began to reflect on the narrow-minded approach of Western countries towards human rights, which merely emphasizes refraining from interference. As Bennoune urges, ‘Human Rights must be more than a litany of prohibitions; it must also offer a positive vision of effective global reaction’; ‘such analysis has been more clearly reflected in articulations from the Global South, or from those whose work includes economic, social and cultural rights’. Karima Bennoune, ‘“Lest We Should Sleep”: Covid-19 and Human Rights’ (2020) 114(4) American Journal of International Law, 666–76, at 666. Taking the understanding of the right to life as an example, the USA persisted that it ‘did not believe that a State’s duty to protect the right to life by law extended to addressing general conditions in society or nature that might eventually threaten life or prevent individuals from enjoying an adequate standard of living’. UN Doc A/HRC/51/SR.41, Human Rights Council, Fifty-First Session, Summary Record of the 41st Meeting, 1 November 2022, para. 91. However, an evolving interpretation of the right to life made by the Human Rights Committee, the treaty body monitoring the ICCPR, requires the state not only not to arbitrarily deprive one’s life but also to take measures to prevent one’s life from being threatened by pandemic, gun violence, etc. (See UN Doc CCPR/C/GC/36 Human Rights Committee, ‘General Comment No. 36 Article 6: Right to life’, 13 September 2019, especially para. 26.) It is consensus among international human rights lawyers that all rights cost. All the human rights illustrated in the international covenants, whether civil, political, economic, social or cultural, require states parties to undertake obligations in both positive and negative aspects, and to take comprehensive measures to respect, protect and realize human rights. See the basic elaboration by the OHCHR on ‘what are human rights’: www.ohchr.org/en/what-arehuman-rights. White Paper 1991, supra note 33. 习近平 : 《坚定不移走中国人权发展道路, 更好推动我国人权事业发展》, 《求是》2022年第12期 [Xi Jinping, ‘Unswervingly Follow the Path of China’s Human Rights Development and Better Promote the Development of China’s Human Rights Cause’ (2022) Qiushi, 12].

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

267

and developmental concept. ‘There is no universally applicable model, and human rights can only advance in the context of national conditions and people’s needs.’45 This assertion is consistent with the general rule of international law on the implementation of international obligations. Generally speaking, international law seeks only to ensure that international obligations are fulfilled; it does not seek to define the way in which a state fulfils its obligations.46 As such, the international human rights conventions require states parties to ‘take all appropriate measures’ to fulfil their obligations; as for what measures are appropriate for a certain state, it is up to the state to decide independently according to its specific national conditions. Although some provisions of human rights conventions stipulate specific ways to implement the obligation, such as stipulating the principle of equality in the national constitution, eliminating discriminatory provisions in the criminal law and so on, states are generally given wide room for discretion. China claims that international human rights protection should abide by the principle of sovereignty.47 This assertion makes sense because, while the birth of international human rights law has made human rights issues a legitimate concern of the international community, this is based on the voluntary acceptance of international human rights law by a state. States are still the primary and main obligation holders when it comes to human rights protection. In the view of the International Law Commission, certain particularities of international human rights law are not enough to make human rights an exception of international law; consequently, the general rules of international law, such as state content, are still applicable.48 With regard to the working methods of international protection of human rights, China believes that the purpose of international protection is to promote cooperation in the field of human rights. Therefore, the White Paper 1991 states that international human rights mechanisms should solve human rights issues through dialogue and cooperation on the basis of equality and respect, rather than confrontation.49 China opposes the politicization of human rights, or the double standards, and urges the international community to deal with human rights issues in a fair, objective and non-selective manner.50 In this regard, China’s claim is in line with the principles stated in the UN Resolution establishing the HRC in 2006: ‘the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation’.51 An argument has emerged that the Chinese conception of human rights poses challenges to the concept of human rights generally accepted by the international community, and therefore will lead to the gradual erosion of international human rights norms.52 However, it can be seen from the earlier analysis that China’s conception on human rights is justified in light of the history of international human rights as well as the existing international human rights law. 45 46

47

48

49 50 51

52

‘Seeking Happiness for People’, supra note 36. See, for instance, Douglas Donoho, ‘Human Rights Enforcement in the Twenty-First Century’ (2006) 35(1) Georgia Journal of International and Comparative Law, 1–52, at 12. See the assertions made by China in White Paper 1991 (supra note 33) that ‘[d]espite its international aspect, the issue of human rights falls by and large within the sovereignty of each country’ and that ‘[r]espect for each country’s sovereignty and non-interference in internal affairs are universally recognized principles of international law, which are applicable to all fields of international relations, and of course applicable to the field of human rights as well’. See, for instance, A/CN.4/SER/A/2011/Add.1 (part 3), Report of the International Law Commission on the Work of Its Sixty-Third Session, pp. 141, 143, 221–3, 229. White Paper 1991, supra note 33. ‘Seeking Happiness for People’, supra note 36. UN Doc A/RES/60/251, Resolution adopted by the General Assembly on 15 March 2006, Human Rights Council, para. 4. See Kinzelbach, supra note 12.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

268

Ruijun Dai

Some Western countries, especially the United States, attempt to replace the universal human rights view advocated by international human rights law with the traditional Western human rights view that one-sidedly emphasizes the right to freedom and the non-interference of the state. China advocates the balanced development of international human rights law, thus helping to reverse this trend. While some consider China’s position to be ‘challenging in compliance’,53 an alternative explanation may be that China is helping to put international human rights back on its original track. 13.3 CHINA AND THE CREATION OF INTERNATIONAL HUMAN RIGHTS NORMS

Western states, based on their overwhelming power over non-Western states, have been enjoying a leadership position in creating the international legal order for centuries. This, unfortunately, has led many people to take for granted that Western countries are the sole formulators of human rights norms, while non-Western countries, especially developing countries, are merely ‘normtakers’.54 Such conventional thinking is rather questionable. Actually, as early as the 1940s China had a central role in the creation of modern international human rights law. First, Chinese representatives and scholars have actively participated in the creation of international human rights law, and many of their suggestions have been accepted into international human rights instruments. Besides Pengchun Chang whose contribution has already been discussed, another Chinese scholar named Chung-Shu Lo participated in the survey that helped determine the theoretical basis of human rights around the world. This survey was carried out by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and aimed to assist the drafting of the UDHR.55 Most of Lo’s contributions56 received a positive response in the International Bill of Rights. There are many similarities between China’s contemporary view on human rights and the proposals made by Lo based on traditional Chinese culture. Lo makes three basic claims: the right to live, the right to self-expression and the right to enjoyment. Lo believed that these three rights could eliminate the ‘respective characteristics of Western and Chinese perspectives on human rights’ and any possible divergences between these perspectives, thus allowing these rights to comprise a universal standard.57 As for the right to live, Lo argued that the natural resources of the earth should be provided plentifully for all people to live comfortably; each individual should be allowed to have his or her proper share in society, as well as to make his or her proper contribution to it.58 Therefore the right to live differs from the right to life, and is more similar to the right to subsistence stressed by China today. It refers to a set of rights which may include the right to life, the right to liberty and security, the right to work, the right to social security, the right to adequate living standards and so on. It also indicates a need for social justice, a right to equality and even sustainable development.59 53

54 55

56

57 58 59

See Tom Zwart, ‘Contesting Through Compliance: How China Can Gain More Support for Its Human Rights Positions’ (2017) 3 Chinese International Law Review, 3–15. See Biddulph and Rosenzweig, supra note 7, at 5. For UNESCO’s research on human rights philosophy during 1946–7, see Shiyan Sun, ‘A Commentary on Lo Chung-shu’s Human Rights Philosophy’ (2019) 18(5) Journal of Human Rights, 634–49, at 636–9. Chung-Shu Lo, ‘Human Rights in the Chinese Tradition’ in UNESCO (ed.), Human Rights: Comments and Interpretations, UNESCO/PHS/3 (rev.) (Paris: UNESCO, 25 July 1948), 185–90. See Shiyan Sun, supra note 55, at 641. Chung-Shu Lo, supra note 56, at 187–8. In clarification of the right to live, Lo points out that ‘natural resources are wasted in many ways and are not made accessible to all’. He argues that ‘no individual should be allowed to have more than his share or to live idly at the expense of others’. Ibid., 188. Lo’s conception of right to live is considered to encompass elements of the concepts of sustainable development that were only formed decades later. See Shiyan Sun, supra note 55, at 644.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

269

When it comes to the right to expression, Lo asserts that it stems from one’s dignity, with the aim being to realize one’s social value. According to Lo, in order to contribute fully to society, ‘each individual should have the fullest degree of self-expression’. He also considered the selfdetermination of national groups to be a form of self-expression.60 Obviously, the profound meaning of this right covers most political rights and freedoms, and even radiates to a collective right, the right to self-determination. Lo linked the right to enjoyment to the inner dimension of life. He argued that one’s life should be not only materially adequate (right to live) and socially free (right to self-expression) but also inwardly enjoyable. The right to enjoyment, according to Lo, at least includes the right to leisure and aesthetic, intellectual, cultural and religious enjoyment,61 perfectly corresponding to several rights confirmed in the two main Covenants, especially the ICESCR. Generally speaking, the three human rights proposed by Chung-Shu Lo as universal rights for all covered almost all the rights that appear in the International Bill of Rights at a later time, although the wording is not identical. As Lo wished, ‘when man can enjoy the rights at all levels, he attains a full life’.62 In 2018, President Xi Jinping proposed that ‘[p]eople’s happy life is the greatest human right’, which is gauged by people’s sense of gain, happiness and security.63 This proposal coincides well with the three proposals of Lo seventy years ago. Second, after its founding in 1949, the People’s Republic of China has also played a constructive role in the negotiation of many core human rights instruments, such as CEDAW, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT), CRC, CMW, CRPD and several optional protocols to the Conventions. I now outline some examples to illustrate the role of China in determining the content of these Conventions. Before the last meeting of negotiation of the optional protocol to CEDAW in 1999, there were still great differences on many issues, the most prominent of which is the issue of standing, which determines who is qualified to submit a communication to the treaty body. The Western position was that communications could be submitted by the representatives of victims, and that there should be no restrictions on the qualifications of representatives. The developing countries, represented by China, argued that communications should, in principle, be submitted by the victims themselves; only under special circumstances could communications be submitted by representatives explicitly authorized by the victims.64 After a series of fierce negotiations, the final text fully accepted the proposal of China and other developing countries on the issue of standing. In the interpretative statement, China expressed the concern that totally irrelevant persons could take advantage of the special situation of victims for their own purposes. Besides, it reiterated the importance of respecting the victims’ will, and that their representative, if any, should be from the same country as the victim.65 The statement of China evidently reflects its emphasis on the principle of sovereignty and its vigilance against politicizing human rights and interfering in internal affairs under the pretext of human rights. 60 61 62 63

64

65

Chung-Shu Lo, supra note 56, at 188. Ibid. Ibid., 189. 魏哲哲 : 《人民幸福生活是最大的人权》, 《人民日报》2018年12月11日第4版 [Zhezhe Wei, ‘People’s Happy Life Is the Greatest Human Rights’, People’s Daily (11 December 2018), 4]. 孙昂 : 《一项国际人权文书的问 – – 记的谈判经历》, 《武大国 际法评论》2015年第1期, 第333页 [Ang Sun, ‘The Coming Out of an International Human Rights Instrument: On the Negotiation Experience of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women’ (2015) 18(2) Wuhan University International Law Review, 327–41, at 333]. UN Doc E/199/27, E/CN.6/1999/10, Commission on the Status of Women, Report on the Forty-Third Session, 1–12 March and 1 April 1999, p. 61.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

270

Ruijun Dai

During the drafting of the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (OPSCC), China insisted that the Protocol should strengthen the existing mechanisms and provide better protection for child victims.66 This was reflected in China’s proposition on the definition of the term ‘pornography’. The representative of Japan raised a question as to whether ‘pornography’ was confined to visual images in which a real child was used. China expressed her concern that such an approach was too narrow and suggested further consideration of this issue.67 At the next session, the representative of Japan continued to suggest that the definition should be restricted to actual visual pornography.68 But China stated that ‘cultural diversity could not be used to justify a narrow definition of child pornography. The definition should be as broad as possible and aim at protecting children.’69 Finally, China’s view was adopted,70 since providing a broader protection for child victims of related crimes may be more consistent with the best interests of the child. Third, China indeed seeks to reshape contemporary international human rights discourse. On the relationship between development and human rights, China has formed a series of propositions, such as ‘adhering to the people-centred development concept, adhering to the principle that development is for the people, [that] development depends on the people, and [that] development achievements are shared by the people’.71 Xi Jinping has noted that China will ‘strive to achieve higher quality, more efficient, more equitable, more sustainable and safer development’;72 ‘[p]romote development through cooperation, promote human rights through development, and jointly build a community with a shared future for mankind’; and so on.73 These propositions were expressed in different ways in the resolutions adopted by the UN HRC in 2017, 2019 and 2021 successively, under the name The Contribution of Development to the Enjoyment of all Human Rights.74 For example, the resolutions ‘[c]all upon all countries to realize people-centred development of the people, by the people and for the people’.75 The 2019 resolution then reaffirms that ‘meeting the aspiration of the people for a better life is the priority of each State’,76 which closely echoes the judgement of China on what it considers to be the principal contradiction in Chinese society.77 The 2021 resolution enriched the earlier ones by adding that development should 66 67 68

69 70

71 72 73

74 75 76 77

See, e.g., UN Doc E/CN.4/1998/103, Report of the Working Group on Its Fourth Session, 24 March 1998, para. 38. Ibid., para. 52. See, e.g., UN Doc E/CN.4/1999/74, Report of the Working Group on a Draft Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography on Its Fifth Session, 25 March 1999, para. 56. Ibid., para. 57. Article 2(c) of the OPSCC defines child pornography as ‘any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes’ (emphasis added). Xi Jinping, supra note 44. Ibid. 习近平 : 《习近平致首届“南南人权论坛”的贺信》, 《人权》2018年第1期, 第1页 [Xi Jinping, ‘A Congratulatory Letter to the First South–South Forum on Human Rights’ (2018) Human Rights 1, at 1]. See UN Docs A/HRC/RES/35/21, 7 July 2017; A/HRC/RES/41/19, 17 July 2019; A/HRC/RES/47/11, 27 July 2021. Ibid. A/HRC/RES/41/19, 17 July 2019; it is also reiterated in the 2021 resolution. The 19th Congress of the Communist Party of China (CPC) proposed that the main contradiction of Chinese society has been transformed into ‘the contradiction between the people’s growing needs for a better life and unbalanced and inadequate development’. 习近平 : 《决胜全面建成小康社会 夺取新时代中国特色社会主义伟大胜利》, 《习近平谈治国理政 (第三卷) 》(北京 : 外文出版社2020年版) 第9页 [Xi Jinping, ‘To Win the Decisive Victory in Building a Moderately Prosperous Society in an All-Round Way and Win the Great Victory of Socialism with Chinese Characteristics in the New Era’ in Xi Jinping: The Governance of China (Vol. III) (Beijing: Foreign Languages Press, 2020), 9].

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

271

be inclusive and sustainable, and that the aim of development is to ‘constantly improve the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom’.78 Another example is a set of resolutions on promoting mutually beneficial cooperation in the field of human rights adopted by the UN HRC in 2018, 2020 and 2021.79 This set of resolutions emphasizes that working methods of international human rights mechanisms should be guided by the principles of multilateralism, universality, impartiality, objectivity and non-selectivity, non-politicization, equality and mutual respect, constructive international dialogue and cooperation. As interactions in the UN HRC are regularly reduced to political struggle and confrontation, these resolutions emphasize that dialogue and cooperation should be the working methods of international human rights mechanisms, which has always been a point of consensus for the majority of developing countries, including China. ‘Mutually beneficial cooperation’ and ‘building a community of shared future for human beings’, the core themes of this set of resolutions, are the two guidelines for dealing with international relationships forged by human rights law, and were initiated by China in recent years. Together with other countries, China initiated a resolution on the negative impact of the legacies of colonialism on the enjoyment of human rights, and pointed out that ‘the legacies of colonialism, in all their manifestations, such as economic exploitation, inequality within and among States, systemic racism, violations of indigenous peoples’ rights, contemporary forms of slavery and damage to cultural heritage, have a negative impact on the effective enjoyment of all human rights’, therefore inviting the UN human rights mechanisms and procedures to pay continuous attention to its negative impact on the enjoyment of human rights.80 Obviously, this resolution is intended to correct the unbalanced targeting of developing countries by the UN human rights mechanisms, which intentionally or unintentionally ignore the serious violations of human rights committed by some Western countries.81 Finally, China has co-sponsored a resolution on promoting and protecting economic, social and cultural rights within the context of addressing inequalities in the recovery from the Covid-19 pandemic,82 which recalled that the Office of the High Commissioner for Human Rights (OHCHR) ‘is mandated to, inter alia, promote and protect the effective enjoyment by all of all human rights, including economic, social and cultural rights’.83 This resolution not only is a reminder that the pandemic has drastically exacerbated existing inequalities within and among states but also intends to emphasize the importance of economic, social and cultural rights, which may help to reverse the long-standing international emphasis on the right to freedom.

78 79 80

81

82

83

A/HRC/RES/47/11, 27 July 2021. See UN Docs A/HRC/RES/37/23, 6 April 2018; A/HRC/RES/43/21, 2 July 2020; A/HRC/RES/46/13, 31 March 2021. UN Doc A/HRC/RES/48/7, Resolution adopted by the Human Rights Council on 8 October 2021, Negative Impact of the Legacies of Colonialism on the Enjoyment of Human Rights, 14 October 2021. See Henning Boekle, ‘Western States, the UN Commission on Human Rights, and the “1235 Procedure”: The “Question of Bias” Revisited’ (1995) 13(4) Netherlands Quarterly of Human Rights, 367–402. UN Doc A/HRC/RES/49/19, Resolution adopted by the Human Rights Council on 1 April 2022, Promoting and Protecting Economic, Social and Cultural Rights within the Context of Addressing Inequalities in the Recovery from the Covid-19 Pandemic, 8 April 2022. Ibid.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

272

Ruijun Dai

13.4 INTERACTIONS BETWEEN CHINA AND INTERNATIONAL HUMAN RIGHTS MECHANISMS

Since the restoration of its lawful rights in the UN in 1971,84 the PRC has maintained a close interaction with the Charter-based and treaty-based human rights mechanisms. It has also tried to play a constructive role in them. 13.4.1 From the Commission on Human Rights to the Human Rights Council: China’s Role Transformation China has continually participated in the meetings of the CHR since 1979. Since 1982, China has officially served as a member of the Commission and has been re-elected consecutively. During this period, China has actively participated in UN human rights affairs, supported the national self-determination of Asian, African and Latin American countries, and safeguarded the independence and development rights of third world countries. However, the 1989 incident led to a transformation of China’s role in the CHR. For quite a while, China became a responder,85 and fought fiercely against the United States and some other Western countries that targeted China in the CHR. China asserted that the work of the CHR had been poisoned by politicization, and accused some large Western countries, stating that they stubbornly adhere to the modes of thinking of the cold war period to inject politics and ideology into the issue of human rights. On the international stage they take human rights as a means to compel developing countries to submit and a means to pursue hegemony and power politics, encouraging political confrontations in the human rights field.86

The root cause for the eventual replacement of the CHR by the HRC in 2006 is that the process of human rights review of the CHR had become increasingly politicized and selective. Kofi Annan, who was the UN Secretary-General at the time, pointed out that the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism. In particular, States have sought membership of the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on the reputation of the United Nations system as a whole.87

It is precisely for this reason that China has actively participated in the reform of the UN human rights mechanism and played an important role in establishing the HRC. China stressed that the new institutions should solve the ‘credibility problem’, avoid politicization of work, be fully representative and recognize the diversity of the world. It also advocated for a Council that promotes cooperation, dialogue and exchange, rather than name and shame, the strategy that was at the time favoured by the West, as in China’s view this actually damages the basis of cooperation between states.88 84

85

86 87

88

UN Doc A/RES/2758 (XXVI), Restoration of the Lawful Rights of the People’s Republic of China in the United Nations, 25 October 1971. 康华茹 : 《“前白皮书时代”中国国际人权话语考略 – – 以中国政府在合国人权委员会的发言和立场文件为中 心》, 《人权研究》2021年第2期, 第65页 [Huaru Kang, ‘China’s International Human Rights Discourse in 1979– 1991: An Analysis of the Speeches and Position Papers of China at the UN Commission on Human Rights’ (2021) 5(2) Chinese Journal of Human Rights, 65–85, at 65]. ‘The Progress of Human Rights in China’, supra note 34. See UN Doc A/59/2005, ‘In Larger Freedom: Towards Development, Security and Human Rights for All’, Report of the Secretary-General, 21 March 2005, para. 182. 《王光亚大使在第60届大三委关于人权问题的发言》 [Ambassador Wang Guangya’s speech on human rights at the Third Committee of the 60th General Assembly, un.china-mission.gov.cn, 26 October 2005].

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

273

However, as an intergovernmental body, the HRC could not escape the fate of politicization; in fact, it laid the groundwork for politicization from the very beginning.89 Signs indicate that it is repeating the mistakes of its predecessor.90 The HRC has in fact been divided into two camps. A recurring phenomenon is that when a resolution is put to vote, as long as China and most developing countries vote in favour, the USA, the UK and other developed countries will vote against. In the interpretative statements, both camps accuse the other of politicizing and polarizing the HRC, and both cite the Working Principles of the Council to defend their objective and impartial position.91 It may be thorny to judge who is on the side of right, but there is an indisputable fact that in the past half-century since the establishment of Procedure 1235,92 all countries whose human rights situations were reviewed under the country mandates, without exception, are developing countries; no Western country has ever become the object of review. Do Western countries keep such perfect human rights records? Looking back on the slavery, the colonial rule, the driving out of Indigenous people, the systematic racism, the nuclear testing in the territory of other countries, the invasion of other countries and the overthrow of their regimes through criminal acts, followed by documented humanitarian disasters, and so on that have occurred in the past fifty years, the answer should probably be no. Besides, although the strategy of naming and shaming preferred by the West may have brought about positive results in certain domestic contexts,93 it may not be a proper approach in the international arena where states with equal status are expected to treat each other in a friendly and cooperative way. As pointed out by US scholar Daniel Chow, human rights are merely used by the United States ‘to justify rough actions against China in other areas’, which might pierce the true purpose behind the human rights curtain.94 13.4.2 Interaction between China and Special Procedures Special procedure mandate-holders of the HRC are independent human rights experts who are asked by the HRC to report and advise on human rights from a thematic or country-specific perspective. They carry out the mandates mainly through country visits and by sending communications to states in relation to individual cases of alleged violations. China has not been included in the country mandate of the special procedures. Therefore, country visits and replies to communications from thematic mandate-holders are the main lens for observing China’s interactions with special procedures. 89

90

91 92

93

94

The Human Rights Council retained the country-mandate under special procedure, which has attained an unhealthy degree of politicization during the Commission era. The signs of politicization of the HRC are clearly reflected in the proceedings of the Human Rights Council. See, e.g., UN Docs A/HRC/51/SR.40, A/HRC/51/SR.41, A/HRC/51/SR.42, A/HRC/51/SR.43 and A/HRC/51/44. Ibid. On 6 June 1967, the United Nations Economic and Social Council (ECOSOC) adopted resolution 1235, which explicitly authorized the CHR and its Sub-Commission to review the situation of serious violations of human rights and fundamental freedoms in all relevant countries, reversing the policy of inaction that the CHR had followed for the twenty years since its establishment and providing a legal basis for the controversial country-mandates in the future. See ECOSOC Res 1235 (XLII) Question of the Violation of Human Rights and Fundamental Freedoms, Including Policies of Racial Discrimination and Segregation and of Apartheid, in All Countries, with Particular Reference to Colonial and Other Dependent Countries and Territories, in UN Doc E/4393, Economic and Social Council Official Records, Forty-Second Session, 8 May–6 June 1967, Resolutions, Supplement No. 1, pp. 17–18. Lily Talerman, ‘Name and Shame: How International Pressure Allows Civil Rights Activists to Incorporate Human Rights Norms into American Jurisprudence’ (2021–2) 17 Duke Journal of Constitutional Law and Public Policy Sidebar, 303–32. Daniel C. K. Chow, ‘China’s Defense on Its Human Rights Policies’ (2021) 10 Penn State Journal of Law and International Affairs, 1–48, at 47.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

274

Ruijun Dai

According to the database of the OHCHR,95 in the period between 1 February 2011 and 31 May 2022, that is from the 18th to the 51st session of the HRC, the special procedures mandate-holders sent 187 communications to China and received 134 replies from China. This means that the response rate was 71.7 per cent, which compares well with other major countries over the same period. For example, France replied to 37 of the 65 communications, with a response rate of 56.9 per cent; Russia replied to 113 of the 145 communications, with a response rate of 77.9 per cent; the UK responded to 74 of the 92 communications, with a response rate of 80.4 per cent; while the USA responded to 137 of the 266 communications, with the lowest response rate of 51.5 per cent among the five permanent members of the Security Council. Another study compared responses to communications received by the above five countries during the first and second cycles of the Universal Periodic Review (UPR), and found that ‘China is more responsive than other powerful states with the communications mechanisms’.96 China has not extended a standing invitation to the special procedures. According to China’s reply in the latest UPR, it will not send such an invitation in the short term.97 As of the end of December 2022, China has received eleven visits from nine theme mandate-holders.98 Themes covered include religious intolerance (from 19 to 30 November 1994),99 arbitrary detention (from 6 to 16 October 1997100 and from 18 to 30 September 2004),101 the right to education (from 9 to 19 September 2003),102 torture (from 20 November to 10 December 2005),103 the right to food (from 15 to 23 December 2010),104 discrimination against women and girls (12 to 19 December 2013),105 the effects of foreign debt (from 29 June to 6 July 2015),106 extreme poverty (from 15 to 23 August 2016)107 and older persons (from 25 November to 3 December 2019).108 Other mandate95 96 97

98

99

100

101

102

103

104

105

106

107

108

OHCHR, ‘Communication Report and Search [Database]’, spcommreports.ohchr.org/TmSearch/TMDocuments. Meng Sun and Haina Lu, supra note 1, at 367–8. UN Doc A/HRC/40/6/Add.1, Report of the Working Group on the Universal Periodic Review: China, Addendum, Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review, 15 February 2019, paras. 28.29. OHCHR, ‘Country Visits of the Special Procedures of the Human Rights Council since 1998’, spinternet.ohchr.org/ ViewCountryVisits.aspx?visitType=all&country=CHN&Lang=en. UN Doc E/CN.4/1995/91, Implementation of the Declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief, report submitted by Mr Abdelfattah Amor, Special Rapporteur in accordance with Commission on Human Rights Resolution 1994/18, 22 December 1994, pp. 110–34. UN Doc E/CN.4/1998/44/Add.2, Question of the human rights of all persons subjected to any form of detention or imprisonment, Report submitted by the Working Group on Arbitrary Detention, Addendum, visit to the People’s Republic of China, 22 December 1997. UN Doc E/CN.4/2005/6/Add.4, Civil and political rights, including the questions of torture and detention, Report of the Working Group on Arbitrary Detention, Addendum, Mission to China, 29 December 2004. UN Doc E/CN.4/2004/45/Add.1, Economic, social and cultural rights, the right to education, Report submitted by the Special Rapporteur Katarina Tomasˇevski, Addendum, Mission to China, 21 November 2003. UN Doc E/CN.4/2006/6/Add.6, Civil and Political Rights, including the question of torture and detention, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Mission to China, 10 March 2006. UN Doc A/HRC/19/59/Add.1, Report of the Special Rapporteur on the right to food, Olivier De Schutter, Addendum, Mission to China, 20 January 2012. UN Doc A/HRC/26/39/Add.2, Report of the Working Group on the issue of discrimination against women in law and in practice, Mission to China, 12 June 2014. UN Doc A/HRC/31/60/Add.1, Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights on his mission to China, 1 March 2016. UN Doc A/HRC/35/26/Add.2, Report of the Special Rapporteur on extreme poverty and human rights on his mission to China, 28 March 2017. UN Doc A/HRC/45/14/Add.1, Visit to China, Report of the Independent Expert on the enjoyment of all human rights by older persons, 7 August 2020.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

275

holders, such as the Special Rapporteurs on housing, freedom of religion, toxics and human rights, freedom of expression, cultural rights, human rights and counterterrorism, disability, environment, torture, trafficking, and privacy, as well as Working Groups on business and human rights, disappearances and mercenaries, and others, such as independent experts on the democratic international order, have also requested country visits but have not yet received an invitation from China. Compared to the relatively high response rate to communications, China is not so responsive to the requests for country visits. However, for a country that cherishes sovereignty and has a bitter experience with special procedures, country visits can be seen as more intrusive.109 Additionally, receiving mandate-holders requires cooperation from many government departments and a lot of preparatory work, especially for a country with a large geographical area, a large population and a complex national situation; as such, the large number of requests for country visits may be difficult to cope with. With respect to the tasks and themes of special procedures that China has accepted, the balance between economic, social and cultural rights and civil and political rights has been basically maintained. However, in the past decade, China has been more inclined to accept mandate-holders that focus on economic, social and cultural rights. This may deepen the impression that China attaches more importance to economic, social and cultural rights than to civil and political rights. China is expected to be more open to country visit requests relating to civil and political rights now that it repeatedly maintains to attach equal importance to the two sets of rights. China’s commitments stemming from the third UPR include that China has invited mandate-holders on the right to development, the rights of older persons110 and the rights of persons with disabilities to visit China at a mutually convenient time; it has also promised to respond positively to the visit request of the Special Rapporteur on freedom of religion or belief.111 13.4.3 Cooperation with the UPR Compared with the special procedures, China has a more positive attitude towards the UPR since it reflects the attempt of the UN human rights mechanism to reform, and to shift from selectivity to universality. Since 2009, China has undergone the UPR three times. During its first review on 9 February 2009, sixty delegations made statements or recommendations, among which recommendations from nineteen states did not enjoy the support of China,112 meaning that China accepted 68.3 per cent of the recommendations. During the second review on 22 October 2013, China accepted 204 of the 252 recommendations, about 81 per cent of the total recommendations, and did not accept 48 recommendations.113 The third review took place on 6 November 2018, when China accepted 284 of the 346 recommendations, about 82.1 per cent of the total recommendations, but chose not to accept 62 recommendations which may, according 109 110

111

112

113

Meng Sun and Haina Lu, supra note 1, at 381. The Independent Expert on older persons completed her country visit to China in 2019 and delivered the report in 2020, supra note 108. UN Doc. A/HRC/40/6, Report of the Working Group on the Universal Periodic Review: China, 26 December 2018, paras. 17, 28.24; UN Doc A/HRC/40/6/Add.1, supra note 97. UN Doc A/HRC/11/25, Report of the Working Group on the Universal Periodic Review: China, 5 October 2009, para. 117. UN Doc A/HRC/25/5/Add.1, Report of the Working Group on the Universal Periodic Review: China, Addendum, Views on conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review, 27 February 2014.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

276

Ruijun Dai

to China, be inconsistent with China’s national conditions, contradictory with Chinese laws, politically biased or untruthful.114 Generally speaking, the number of recommendations made to China has increased significantly, and the proportion of these accepted by China has also increased steadily. Since the second review, China has given specific reasons for rejecting each recommendation, which to some extent shows that China is committed to a frank and open attitude. China has accepted almost all suggestions concerning economic, social and cultural rights, the rights of vulnerable groups such as women, children, the disabled, the elderly and farmers, as well as collective rights such as environmental rights. It has also accepted many suggestions concerning civil and political rights. In fact, a review of the most recent UPR shows that China’s acceptance of a recommendation does not depend on the type of rights but on the way a recommendation is proposed and whether it clashes with China’s consistent attitude towards international human rights mechanisms. Taking the third UPR as an example, firstly, China accepted a broad spectrum of recommendations in the field of civil and political rights, such as the recommendations to ‘prevent torture and ill-treatment’ and to ‘fully protect freedom of religion or belief’ raised by Australia, New Zealand, Peru and Austria; to ‘respect, protect and ensure the freedom of expression of all citizens’ and a similar recommendation raised by Norway and Sweden; to ‘ensure a safe environment for journalists and other civil society actors to carry out their work’ raised by Greece and similar recommendations raised by Norway and Spain; to ‘expand the list of professional supervisory units to accommodate the registration of non-governmental organizations that seek to work in China’ raised by Denmark; and to ‘enable all members of civil society to freely engage with international human rights mechanisms without fear of intimidation and reprisals’ raised by Estonia and others.115 Secondly, China emphasizes its autonomy, and therefore refuses recommendations that set a specific deadline for implementation; that said, it accepts suggestions such as that it should ‘strive to achieve [the recommendation] as soon as possible’. For example, China rejected the recommendation from Czechia that ‘before the next Universal Periodic Review cycle, set a clear timeline for ratification of the ICCPR’,116 but accepted the recommendation to ‘continue working towards ratification of the ICCPR by the earliest possible date’117 from New Zealand. China did not accept recommendations from Togo, Uruguay and Mali to ‘speed up the establishment of’ an independent national human rights institution in accordance with the Paris Principle,118 but accepted to ‘continue its path towards’ establishing a national human rights institution from Georgia,119 on the grounds that the specific date for ratification or establishing an institution ‘depends on whether relevant conditions in China are in place’.120 Thirdly, China rejects recommendations that might interfere with or undermine its independent decisions. For instance, China did not accept to extend a standing invitation to all special procedure mandate-holders,121 and emphasized that ‘decisions to invite special procedures for visits should be made by countries independently in accordance with their national conditions’.122 China also rejected recommendations that ‘allow independent observers 114 115 116 117 118 119 120 121 122

UN Doc A/HRC/40/6/Add.1, supra note 97. Ibid. Ibid., para. 28.10 Ibid., para. 28.4. Ibid., para. 28.66. Ibid., para. 28.70. Ibid., para. 28.14. Ibid., para. 28.29. Ibid., para. 28.25.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

277

unfettered access to all parts of China’s territory’.123 In China’s view, such a recommendation is just an attempt to open a convenient door for ‘people with ulterior motives’ to interfere in China’s internal affairs in the name of human rights, and, as such, China ‘firmly opposes the practice of using the visits as an excuse to pressure the Chinese government and interfere in China’s internal affairs’.124 However, some specific suggestions, such as Poland’s recommendation to ‘respond positively to the invitation addressed to it by the Special Rapporteur on freedom of religion or belief’,125 or suggestions that leave more room for discretion, such as those put forward by Luxembourg to ‘strengthen cooperation with the OHCHR and the special procedures’,126 were accepted by China. Fourthly, China categorically rejects some specific allegations, denies the existence of some situations or defends its own understanding on particular matters. For example, China did not accept recommendations to ‘[c]ease the arbitrary detention of Uygurs and other Muslim groups in Xinjiang’ from Australia or the United States because, according to China, ‘there is no such problem as arbitrary detention’.127 Regarding the recommendation to ‘end prosecution and persecution on the basis of religion or belief, including Falun Gong’ raised by Canada,128 China pointed out that ‘Falun Gong is not a religion but an out-and-out cult’,129 and that ‘those who break the law must be punished in accordance with [the] law whether they are religious believers or not’.130 It is worth noting that some suggestions not accepted at the time of review have since been resolved or adopted. For example, the abolition of re-education through labour,131 the ratification of conventions on forced labour,132 the protection of the right to defence in cases that include the death penalty,133 the definition of ‘discrimination’ in the law,134 domestic violence legislation,135 an invitation to the High Commissioner for Human Rights to visit China136 and so on have all been implemented at a later date.

123 124 125 126 127 128

129 130 131

132

133

134

135 136

Ibid., para. 28.28. Ibid., para. 28.27. Ibid., para. 28.24. Ibid., para. 28.41. Ibid., para. 28.175. UN Doc A/HRC/40/6, supra note 111, para. 28.190. See also A/HRC/25/5 Report of the Working Group on the Universal Periodic Review: China (including Hong Kong, China and Macao, China), 4 December 2013, para. 186.142. UN Doc A/HRC/25/5/Add.1 (2014), supra note 113. UN Doc A/HRC/40/6/Add.1 (2019), supra note 97. 《全国人民代表大会常委委员会关于废止有关劳动教养法律规定的决定》 [Decision of the SCNPC on Abolishing the Legal Provisions Concerning Reeducation through Labour, adopted at the sixth meeting of the SC of the twelfth NPC on 28 December 2013]. 《全国人民代表大会常委委员会关于批准的决定》《全国人民代表大会常委委员会 关于批准的决定》 [Decision of the SCNPC on the Ratification of the Forced Labour Convention 1930, Decision of the SCNPC on the Ratification of the Abolition of Forced Labour Convention 1957, adopted at the 34th meeting of the SC of the thirteenth NPC on 20 April 2022]. 法[2021]348号, 《最高人民法院 司法部印发》 [Fa [2021] 348, Notice by the Supreme People’s Court and the Ministry of Justice of Issuing the Provisions on Providing Legal Aid to Defendants in Cases of Death Sentence Review (for Trial Implementation), 30 December 2021]. The 2022 amendment to the Law on the Protection of Women’s Rights and Interests defines ‘discrimination’ in Article 2. The Anti-Domestic Violence Law, 27 December 2015, in force 1 March 2016. Ms Michelle Bachelet, then High Commissioner for Human Rights, visited China from 23 to 28 May 2022.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

278

Ruijun Dai

13.4.4 Dialogue with the Treaty Bodies China has maintained an open and cooperative attitude towards the work of treaty bodies. China submits periodic reports on schedule,137 complies with the reporting guidelines, takes the concluding observations seriously, replies to the list of issues and sends high-level delegations to undertake dialogue with treaty bodies. Essentially, comments and observations of treaty bodies are only recommendations, and states parties have no legal obligation to implement them one by one. In addition, the review of a state by treaty bodies occurs mainly based on information captured from both state reports and shadow reports submitted by organizations that have the capacity to write and submit them. As such, these documents can never fully convey the national conditions of the state. Yet on the whole, for China, concluding observations from treaty bodies have indeed played a positive role in promoting the improvement of China’s legal system, although on many occasions the impact is not immediately reflected. Formally, China has made clear commitments in the NHRAPs that for suggestions proposed by human rights treaty bodies, China will ‘adopt and implement suggestions that are reasonable and feasible in the Chinese context’.138 In fact, China has adopted many recommendations. For example, Chinese legislation, to different degrees, has taken into account the recommendations from the CEDAW Committee on the definition of discrimination, sex-disaggregated statistics,139 governance of sexual harassment140 and domestic violence, combating trafficking in women,141 and protecting the land rights and interests of rural women.142 However, China indeed holds critical views on some issues relating to the treaty body system. In its contributions to the Strengthening Process (2009–14)143 and the Co-Facilitation Process 137

138 139

140

141

142

143

So far, China has two overdue reports, namely the 5–6th consolidated report under CRC and the 6th periodic report under CAT. China has promised to submit both of them during 2021–5; see NHRAP (2021–5). See, for instance, NHRAP (2012–15), NHRAP (2021–5). Article 9 of the Law on the Protection of Women’s Rights and Interests as revised in 2022 stipulates that the state shall ‘improve the statistical gender monitoring indicator system’. For recommendations from the Committee, see ‘Concluding Comments by the Committee: China’, in UN Doc A/ 54/38/Rev.1, Report of the Committee on the Elimination of Discrimination against Women (1999), part one, para. 286; CEDAW/C/CHN/CO/6, Concluding Comments of the Committee on the Elimination of Discrimination against Women: China, 25 August 2006, para. 30; CEDAW/C/CHN/CO/7-8, Committee on the Elimination of Discrimination against Women: Concluding Observations on the combined seventh and eighth periodic reports of China, 14 November 2014, para. 37(c). Correspondingly, the 2005 amendment to the Law on the Protection of Women’s Rights and Interests stipulated that ‘sexual harassment against women is banned’ and the Special Rules on the Labor Protection of Female Employees adopted by the State Council in 2012 provided that ‘[e]mployers shall prevent and prohibit the sexual harassment of female employees in their work places’. The 2022 amendment to the Law on the Protection of Women’s Rights and Interests further refines the measures to prevent and stop sexual harassment. The CEDAW Committee recommended that China adopt a comprehensive anti-trafficking legislation. See CEDAW/C/CHN/CO/7-8 (2014), supra note 140, at para. 29(a). In the Action Plan against Human Trafficking of China (2021–30), it mentioned in particular ‘studying and expounding the necessity and feasibility of a special legislation against human trafficking and promoting the incorporation of the anti-human trafficking law into the legislative plan of the SCNPC’. See Guo Fa Ban [2021] 13, General Office of the State Council, Notice on Printing and Distributing Action Plan against Human Trafficking of China (2021–30), 9 April 2021. See CEDAW/C/CHN/CO/7-8 (2014), supra note 140, at para. 43. In order to unblock relief channels for women whose land rights and interests have been infringed, Art. 265, para. 2 of the Civil Code 2020 clarifies that ‘where a decision made by a rural collective economic organization, or a villagers’ committee or by the person in charge thereof infringes upon the lawful rights and interests of any member of the collective, such a member may request the people’s court to revoke such a decision’. Accordingly, for village rules and regulations that infringe on rural women’s land and related rights and interests, victims can either request the superior government to order the villagers’ committee to correct, or directly bring a suit before the court for cancellation. For the views of the Chinese government regarding the human rights treaty body strengthening process, see OHCHR, ‘Treaty Body Strengthening – Submissions by States Parties’, www.ohchr.org/en/treaty-bodies/treatybody-strengthening-submissions-states-parties.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

279

held in 2020,144 China expressed its concern about some specific practices of the treaty bodies, especially emphasizing that treaty bodies should operate ‘strictly within the terms of their mandates provided for under the respective treaties’; that they should give due respect and enough weight to state reports and replies; and that they should work ‘objectively and fairly’ and ‘prevent abuse of power, or selective or politicized practices’.145 In China’s view, treaty bodies ‘arbitrarily rely on unverified material and information of unconfirmed sources’ while showing inappropriate disregard for the reports, interpretations and replies from states parties, which in China’s view is contrary to the purpose of constructive dialogue and is beyond the mandate from respective treaties. China’s concerns are not unsound. As is well known, the treaty body system has sunk into the contradiction between the growing demand for missions and mandates and the limited resources and capabilities since the 1980s.146 The expansion of the system as well as its ambitions to push states parties to implement its recommendations and decisions have further aggravated the dilemma. Facts show that technical improvements such as the coordination of working methods have little effect on these challenges.147 In order to enhance the effectiveness, it may be necessary for treaty bodies to bear in mind the purpose and operating principles of the UN human rights mechanisms, to avoid duplication and unrealistic demands. 13.5 ACCEPTANCE AND IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS LAW IN CHINA

China has ratified six of the nine core UN human rights treaties,148 and has signed but is yet to ratify the ICCPR. Besides, China is a contracting party to more than twenty human rights– related treaties dealing with international labour standards, refugees and international humanitarian law.149 In 2022, China ratified three treaties closely related to human rights protection, namely, the Marrakesh Treaty150 and No. 29 and No. 105 of the International Labour Organization’s conventions on forced labour. There are some speculations about China’s motive for ratifying human rights treaties. Some believe that China’s acceptance of international human rights treaties is the result of pressure from Western countries, asserting that China has no real sincerity towards implementing them.151 In my opinion, this interpretation is arguable for the following reasons.

144

145 146

147

148 149 150

151

Submission by the Government of the People’s Republic of China on the Consideration of the State of the UN Human Rights Treaty Body System (hereinafter ‘China Submission 2020’), see www.ohchr.org/en/calls-for-input/cofacilitation-process-treaty-body-review-2020. Ibid. See UN Doc A/44/668, ‘Effective Implementation of International Instruments on Human Rights, including Reporting Obligations under International Instruments on Human Rights’, 8 November 1989. Data published by the OHCHR showed that over the last two years (2020–2) the backlog of state reports, individual communications and urgent actions increased by 80 per cent. This happened when more than 80 per cent of countries failed to submit their national reports on time. If all countries were to submit their reports on time, however, the workload faced by treaty bodies would be unimaginably huge. www.ohchr.org/en/treaty-bodies/treatybody-strengthening. They are CEDAW, ICERD, CAT, CRC, ICESCR and CRPD. 中华人民共和国条约数据库 [Treaty database of the People’s Republic of China], treaty.mfa.gov.cn. Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, Marrakesh, 27 June 2013, in force 30 September 2016, World Intellectual Property Organization (WIPO). See, e.g., Ann Kent, China, the United Nations, and Human Rights: The Limits of Compliance (Philadelphia: University of Pennsylvania Press, 1999), 195–7. See also Yongjin Zhang and Buzan, supra note 1, at 190.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

280

Ruijun Dai

Firstly, human rights treaties are treated by China as legally binding instruments, and ratification of human rights treaties accordingly leads to legal reforms. China has clearly expressed its intention to conclude international human rights treaties for the purpose of promoting human rights in China.152 The Chinese legislature believes that ratification of human rights conventions is conducive to establishing an atmosphere of respect for human rights and promoting the development of China’s human rights cause.153 All the human rights treaties need to be approved by the Standing Committee of the National People’s Congress (SCNPC) before ratification. In its deliberation, the SCNPC will examine the consistency between the convention and domestic law, although such examination is not so detailed as to review the document article by article.154 The ICESCR was deliberated on three times before ratification,155 which indicates that China was well aware of the legal binding force of the Convention and was preparing for follow-up domestic implementation.156 It often happens that China amends or enacts laws before or after ratification of human rights conventions, or following recommendations of UN human rights mechanisms. In 2008, for example, the SCNPC comprehensively revised the Law on the Protection of Persons with Disabilities to prepare for ratification of the CRPD. The provision on the ‘prohibition of discrimination against the disabled’ was replaced by a ‘prohibition of discrimination on the basis of disability’. Reasons given by the legislature were that Article 5(2) of the CRPD stipulates that ‘[s]tates parties shall prohibit all discrimination on the basis of disability’, which implies that the prohibition is not limited to discrimination in education, employment and so on but also includes refusal to provide reasonable accommodation for the disabled.157 In this case, the revised law uses exactly the same language as the CRPD. In another case, the CEDAW Committee recommended that China ‘consider abolishing the custody and education programme, which may be used to justify the arbitrary detention of 152

153

154

155

156

157

‘The Chinese government cherishes the important role of international human rights documents in promoting and protecting human rights . . . and has taken every measure to honor its obligations under those conventions.’ The State Council Information Office, ‘China’s Progress in Human Rights: 2003’, March 2004. 张晓松王茜 : 《中国拟批准》 [Xiaosong Zhang and Qian Wang, ‘China Plans to Ratify the Convention on the Rights of Persons with Disabilities’], www.npc.gov.cn/zgrdw/huiyi/cwh/1103/2008-06/25/con tent_1435063.htm. For instance, in the proposal for ratification of CEDAW, the State Council pointed out that ‘the specific provisions of the Convention do not fundamentally conflict with China’s Constitution, marriage law or other laws’. 《国务院 关于提请批准合国的议案》 [Proposal of the State Council on Submitting for Ratification of CEDAW, 20 September 1980]. Before ratifying the CRC, the State Council believed that ‘the main content and basic spirit of the Convention are consistent with the relevant laws and policies of China’ and ‘China has no difficulty in implementing the basic principles and most provisions of the Convention’. 国函[1991]78号《国 务院关于提请审议批准的议案》 [Guo Han [1991] 78, The State Council’s Proposal on Submitting for Consideration and Ratification of CRC, 13 November 1991]. Proposal for ratification of ICESCR was submitted to the third, eighteenth and twentieth sessions of the SCNPC for deliberations. See《第九届全国人民代表大会常务委员会第三次会议》, 《中国法律年鉴》1999年第1期, 第 68页 [‘The Third Session of the Standing Committee of the Ninth National People’s Congress’, 1999 Law Yearbook of China 1, p. 68];《第九届全国人民代表大会第十八次会议》, 《中国法律年鉴》2001年第1期, 第 102页 [‘The Eighteenth Session of the Standing Committee of the Ninth National People’s Congress’, 2001 Law Yearbook of China 1, p. 102];《第九届全国人民代表大会第二十次会议》, 《中国法律年鉴》2002年第1期, 第69 页 [‘The Twentieth Session of the Standing Committee of the Ninth National People’s Congress’, 2002 Law Yearbook of China 1, p. 69]. Li Peng, then Chairman of the SCNPC, pointed out after the ratification of ICESCR that ‘after the ratification of the Convention, China will take corresponding legislative, judicial and administrative measures in accordance with the specific national conditions to fulfill the rights and obligations stipulated in the Convention’. See ‘The Twentieth Session of the Standing Committee’, supra note 155, p. 69. 《全国人大法律委员会关于修改情况的汇报》[Report of the Legal Committee of the NPC on the Revision of the Law of the People’s Republic of China on the Protection of Disabled Persons (Revised Draft), 22 April 2008], www.npc.gov.cn/zgrdw/wxzl/gongbao/2008-06/03/con tent_1463229.htm.

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

281

women’.158 Then, on 28 December 2019, the SCPNC adopted the Decision on the Abolition of the Legal Provisions and Systems Concerning Custody and Education; the Measures of the State Council on Custody and Education for Prostitution were repealed accordingly. Secondly, human rights treaties have been invoked by courts and litigants in some cases in China, although, as in other countries, the courts usually ensure the enjoyment of rights by applying relevant domestic law. Whether or not the Chinese courts can invoke human rights treaties is a common concern of treaty bodies.159 Since China’s Constitution does not stipulate either the relationship between international treaties and domestic law, or the status of human rights treaties, there is no quick answer at the institutional level. In practice, some Chinese courts indeed have tried to apply human rights treaties to resolve disputes in specific cases. Chinese citizens are invoking human rights treaties ratified by China to claim rights more frequently.160 Of course, this practice is not yet prevalent and is obstructed by the ambiguity of the system, but it can be argued that it reflects the increasing awareness of Chinese citizens and some Chinese judges of human rights treaties as a means to protect rights. In Li v. Haizhu District Branch of Guangzhou Municipal Public Security Bureau, the appellant (plaintiff of the first instance) accused the Public Security Bureau of detaining her daughter, who was less than two years old, together with her for twenty-two and a half hours, violating her daughter’s rights under the CRC. She appealed to the court to find that ‘the behaviour of the public security organ is illegal, and order compensation for spiritual consolation’. The Court upheld the appellant’s claim, confirmed that the public security organ had illegally placed her daughter in a detention place, and ordered compensation of 5,000 yuan for spiritual damage.161 In this case, the appellant cited the CRC but did not manage to cite specific provisions. The court upheld the appellant’s claim, but, instead of invoking CRC, it based the judgment on Article 50 of the Law on the Protection of Minors of China, which can be deemed a domestic transformation of Article 3 of the CRC. Chinese courts sometimes interpret domestic law with reference to human rights treaties. In Beijing iQIYI v. Shanghai Beauty Culture Media, both parties claimed that the determination of the alleged infringement should take into account the provisions of the CRPD and the Marrakesh Treaty. The court held that since the relevant provisions of the Marrakesh Treaty have been reflected in China’s Copyright Law 2020, the provisions of the Treaty are no longer directly applicable to this case. ‘Nevertheless, we can refer to the relevant provisions of the Marrakesh Treaty for the understanding of the relevant provisions of the Copyright Law 2020.’162 The judge in this case found that human rights treaties cannot be used directly as the basis for judgment, but they can be used to interpret domestic law, so as to make China’s domestic law consistent with human rights treaty obligations. 158 159

160

161

162

CEDAW/C/CHN/CO/7-8 (2014), supra note 140, at para. 29(c). See, for instance, UN Docs E/C.12/Q/CHN/1 (2004), E/C.12/WG/CHN/Q/2 (2013), CEDAW/C/CHN/Q/6 (2006), CERD/C/CHN/Q/10-13 (2009), CRC/C/CHN/Q/3-4 (2013) and CAT/C/CHN/Q/5/Add.1 (2015). A study shows that, as of 22 November 2018, in at least fifty-seven cases the parties or courts cited human rights treaties ratified by China, of which eight cases were cited by the courts or procuratorial organs, and forty-nine cases were cited by the parties. See Ruijun Dai, ‘Judicial Application of International Human Rights Treaties in China’ (2020) 19(1) Journal of Human Rights, 93–115, at 97–9. (2013) 穗中法少行终字第46号, 广东省广州市中级人民法院 : “李盛燕等诉广州市公安局珠海分局行政行为违 法要求行政赔偿案” [(2013) Sui Zhong Fa Shao Xing Zhong Zi No. 41, Guangzhou Intermediate People’s Court of Guangdong Province, ‘Shengyan Li and others v. Haizhu District Branch of Guangzhou Municipal Public Security Bureau for administrative compensation for illegal administration acts’, 6 November 2013]. (2021) 京73民终2496号, 北京知识产权法院 : 《上海俏佳人文化传媒有限公司与北京爱奇艺科技有限公司侵 害作品信息网络传播权纠纷二审民事判决书》[(2021) Jing 73 Min Zhong No. 2496, Beijing Intellectual Property Court, ‘Civil judgment of the second instance of the dispute between Shanghai Beauty Culture Media Co., Ltd. and Beijing iQIYI Technology Co., Ltd. over infringement of the right to network dissemination of works information’, 29 September 2022].

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

282

Ruijun Dai

Before the treaty bodies, the Chinese delegation did once confirm the direct applicability of human rights treaties,163 but has recently denied it and indicated that human rights treaties need to be transformed into domestic law, and the courts cannot hear cases directly on the basis of human rights treaties.164 Considering these facts, the Chinese delegation’s denial could be interpreted as a subjective assumption without careful investigation of current judicial practice in the country. Thirdly, the NHRAPs have become an important way to carry out human rights treaty obligations in China. Since 2009, the Chinese government has begun to formulate the NHRAPs, and so far has formulated four.165 Initially conceived of as a follow-up to the implementation of the Vienna Declaration and Programme of Action,166 the NHRAP has now become an effective measure for China to systematically promote and safeguard all human rights. The four NHRAPs are expressly guided by the spirit of the UDHR and other relevant international conventions on human rights, and closely echo international human rights law. The content of each NHRAP is divided into different parts, namely: economic, social and cultural rights; civil and political rights; rights of ethnic minorities, women, children, the elderly and the disabled; human rights education and research; fulfilment of obligations to international human rights conventions, and exchanges and cooperation in the field of international human rights; and implementation, supervision and assessment. With such a wide scope, the NHRAPs cover the different themes of international human rights treaties. The specific rights classified are the same as those in the two Covenants, and the list of rights is constantly enriched. It is noteworthy that the NHRAP (2021–5) has significantly improved the steps to promote and protect civil and political rights. For the first time, it separately lists the ‘right to life’, asserting that ‘China protects the life and dignity of citizens against illegal infringements under all conditions, normal or emergency’; it also puts forward that China should be ‘strictly controlling and prudently applying the death penalty’, in order ‘to ensure the death penalty is only applicable to very few criminals guilty of very serious crimes’. Besides, it separately lists for the first time rights to vote and stand for election, to ensure that ‘the NPC and local people’s congresses at all levels are created through the combination of direct and indirect elections’. As a characteristic content, the NHRAP lists the ‘individuals’ information rights and interest’ separately to respond to the challenge of rights in the digital era.167 The NHRAPs announce to the public what the Chinese government plans to do and what goals it intends to achieve in a specific period of time. They are a commitment subject to evaluation and regular testing. A large number of indicators set in the Plans make the progress of human rights protection measurable. This planned path of human rights protection ‘embodies the top-down administrative leadership, [and] requires the central government to have the will and [the] ability to urgently improve the human rights situation’.168 163

164

165 166 167 168

According to the core documents submitted by China in 1993 as part of the state report to the treaty body system, China expressed its position on the status of human rights conventions as follows: ‘once approved, the instrument is binding under Chinese Law and China must honour the corresponding obligations[;] no further special legal transformation is required to turn it into domestic law’. UN Doc HRI/CORE/1/Add.21, ‘Core documents forming part of the reports of states parties: China’, 18 March 1993, para. 51. In its reply to the list of issues raised by the Committee on Economic, Social and Cultural Rights (CESCR) in 2022, China asserted that ‘Chinese courts cannot directly invoke international human rights treaties when hearing cases, but apply domestic laws that have transformed the contents of such instruments through legislative procedures to ensure the realization of the spirit of those instruments.’ See UN Doc E/C.12/CHN/RQ/3, Replies of China to the list of issues in relation to its third periodic report, 11 May 2022, p. 3. They are NHRAP (2009–10), NHRAP (2012–15), NHRAP (2016–20) and NHRAP (2021–5). See Vienna Declaration and Programme of Action (1993), supra note 31, at para. 71. See NHRAP (2021–5). 王理万 : 《规划型人权发展道路 : 以国家人权行动计划为切入点》, 《人权法学》2022年第6期, 第141-142页 [Liwan Wang, ‘Plan-Based Human Rights Development Path: Starting from the National Human Rights Action Plan’ (2022) 1(6) Journal of Human Rights Law, 116–58, at 141–2].

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

13 China and International Human Rights Law

283

13.6 CONCLUDING REMARKS

As an influential power, China has made substantive contributions in the creation of international human rights law, and promoted it to reflect the global moral consensus view of human rights. Past practice demonstrates that China has been a more supportive and cooperative player within the international human rights mechanisms. It has maintained good cooperation and interaction with the UN human rights monitoring mechanisms and insists on principles of respect, dialogue and cooperation rather than confrontation, all while resisting politicization, selectivity and double standards. In the past decade, the international community has generally felt China’s proactive role in the international human rights discourse. This discourse is only a return to the original intention of international human rights law, rather than a challenge or weakening of existing norms, as some scholars propose. In the face of external doubts, China promotes and protects human rights at its own pace. In 1982, the current Constitution put the ‘fundamental rights and obligations of citizens’ ahead of the ‘state institutions’ in structure, highlighting the status of rights protection. In 1997, for the first time, the CCP wrote that it seeks to ensure ‘that people enjoy extensive rights and freedoms according to law, and [to] respect and protect human rights’ in its fifteenth National Congress report.169 Since then, ‘respect and protect human rights’ was repeatedly emphasized in the National Congress reports of the ruling party. In 2004, the line ‘The State shall respect and protect human rights’ was formally written into the Constitution, which raised the respect and protection of human rights from a policy proposition of the ruling party to a constitutional principle and a concept and value of national construction. In 2007, ‘respect and protect human rights’ was written into the Constitution of the CCP. In 2012, the 18th National Congress of the CCP took as a strategic goal that ‘human rights are effectively respected and guaranteed’ towards building a moderately prosperous society in a holistic way.170 After more than forty years of reform and opening up, China’s gross domestic product has leapt to second place in the world, absolute poverty has been eliminated and the living standard of its 1.4 billion people has significantly improved. These are concrete manifestations of the great progress in human rights protection. The rapid development of economy and society has further strengthened China’s confidence in its human rights protection path. The report of the 20th National Congress of the CCP proposed that the country is to ‘adhere to the path of human rights development in China, actively participate in global human rights governance, and promote the comprehensive development of [the] human rights cause’. China has a strong will and consciousness to better protect human rights. Considering its positive commitment to civil and political rights during the third UPR and in the NHRAPs (2021–5), China is expected to make new substantive progress in the comprehensive and balanced protection of all human rights.

169

170

江泽民 : 《高举邓小平理论伟大旗帜, 把建设有中国特色社会主义事业全面推向二十一纪》, 《江泽民文选 (第二卷) 》 (北京 : 人民出版社2006年版) 第29页 [Jiang Zemin, ‘Hold High the Great Banner of Deng Xiaoping Theory and Push the Cause of Building Socialism with Chinese Characteristics into the 21st Century’ in Selected Works of Jiang Zemin (Vol. II) (Beijing: People’s Publishing House, 2006), 29]. 胡锦涛 : 《坚定不移沿着中国特色社会主义道路前进, 为全面建成小康社会奋斗》, 《胡锦涛文选 (第三卷) 》(北京 : 人民出版社2016年版)第626页 [Hu Jintao, ‘Unswervingly Follow the Path of Socialism with Chinese Characteristics and Strive to Build a Moderately Prosperous Society in All Respects’ in Selected Works of Hu Jintao (Vol. III) (Beijing: People’s Publishing House, 2016), 626].

https://doi.org/10.1017/9781009041133.015 Published online by Cambridge University Press

14 China and Global Health Law in the Face of Covid-19 Qingjiang Kong and Shuai Guo

14.1 INTRODUCTION

The year 2020 witnessed the outbreak and spreading of an unprecedented global Covid-19 pandemic. As of 12 May 2022, there had been recorded more than 516,476,402 cases worldwide.1 From an international law point of view, debates have also been concerned with the rights and obligations of sovereign states.2 China, where the first case was reported, was the centre of the debate about the pandemic, and it drew much attention from the international health and legal communities. The debates revolved around the transparency of China’s disease detecting and reporting system and its obligations under the World Health Organization (WHO). More recently, the WHO initiated a global process of drafting and negotiating a convention, agreement or other international instrument under the Constitution of the WHO to strengthen pandemic prevention, preparedness and response.3 This chapter focusses on how China responds to global health law in and beyond the shadow of Covid-19. Section 14.2 starts with a general introduction to global health law, in particular the rules embedded in the WHO, inter alia, through its Constitution and the International Health Regulations (IHR).4 The remaining part of this section examines China’s role in international health governance. Section 14.3 poses the heatedly debated question raised during the Covid-19 pandemic: whether China has fulfilled its obligations under the IHR, in particular the obligation of notification. The same section also examines the general duty of cooperation under global health governance. Section 14.4 envisages the future of global health law from the perspective of China. This chapter proposes that, on the one hand, more effective global health governance should be in place, especially with a binding mechanism to ensure a global response strategy; on the other hand, in addition to a strengthened WHO undertaking the leading role, more international cooperation and coordination are needed.

1 2

3

4

See WHO, ‘Coronavirus Disease (COVID-19) Pandemic’, www.who.int/emergencies/diseases/novel-coronavirus-2019. See, e.g., Steve Charnovitz, ‘The Field of International Pandemic Law (IPaL)’ (10 May 2020), https://ielp .worldtradelaw.net/2020/05/the-field-of-international-pandemic-law.html (Charnovitz raised the discussion of an International Pandemic Law, which he defines as ‘the emerging and potential law of how governments and international organizations should address pandemics like COVID-19’), citing Armin von Bogdandy and Pedro A Villarreal, ‘International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis’, Research Paper No. 2020-07 (Max Planck Institute for Comparative Public Law & International Law (MPIL), 2020), https://ssrn.com/abstract=3561650. WHO, ‘World Health Assembly Agrees to Launch Process to Develop Historic Global Accord on Pandemic Prevention, Preparedness and Response’ (1 December 2021), https://bit.ly/45zkF2Z. For an overview of global health law, see Lawrence O. Gostin and Benjamin Mason Meier, ‘Introducing Global Health Law’ (2019) 47(4) Journal of Law, Medicine & Ethics, 788–93, https://doi.org/10.1177/1073110519897794.

284 https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

285

14.2 CHINA AND GLOBAL HEALTH LAW

14.2.1 The WHO and Global Health Law 14.2.1.1 The WHO Constitution and the IHR The WHO is a specialized agency of the United Nations (UN) that aims at ‘building a better, healthier future for people all over the world’.5 In April 1945, during the conference to set up the UN held in San Francisco, the Chinese and Brazilian representatives proposed to establish an international health organization. Afterwards, proposals for the constitution of the health organization were presented to the International Health Conference in New York City between 19 June and 22 July 1946, and representatives of fifty-one members of the UN and ten other nations signed the Constitution on 22 July 1946.6 The Constitution of the WHO is its founding treaty; it regulates the general rights and obligations of the WHO and its member states. Article 1 of the Constitution states: ‘The objective of the World Health Organization . . . shall be the attainment by all peoples of the highest possible level of health.’7 A UN member may become a member of the WHO by signing or otherwise accepting the Constitution of the WHO.8 The WHO Constitution sets out the general functions and operations of the WHO. The activities of the WHO are carried out by (i) the World Health Assembly (WHA); (ii) the Executive Board; and (iii) the Secretariat.9 In particular, Article 21 of the WHO Constitution enables the WHA to adopt legally binding regulations concerning (i) ‘sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease’; (ii) ‘nomenclatures with respect to diseases, causes of death and public health practices’; (iii) ‘standards with respect to diagnostic procedures for international use’; (iv) ‘standards with respect to safety, purity and potency of biological, pharmaceutical and similar products moving in international commerce’; and (v) ‘advertising and labelling of biological, pharmaceutical and similar products moving in international commerce’.10 Accordingly, the IHR were adopted in 1969,11 and later amended twice in 197312 and 1981.13 The early versions focussed on six diseases: cholera, plague, yellow fever, smallpox, relapsing fever and typhus. With the expansion of international travel and trade, as well as the threats posed by the emergence of international diseases, the IHR were revised in 2005, which entered into force on 15 June 2007.14 This new version covers all biological, chemical and nuclear incidents, as well as zoonotic diseases and food safety concerns. 5 6

7

8 9 10 11 12 13

14

WHO, ‘About WHO’, www.who.int/about. WHO, ‘History of WHO’, www.who.int/about/who-we-are/history. The previous attempt included the Health Organization of the League of Nations set up in 1920. See Iris Borowy, Coming to Terms with World Health: The League of Nations Health Organisation 1921–1946 (Frankfurt: Peter Lang, 2009). Article 1 of the WHO Constitution. See, e.g., Eric C. Ip, ‘The Constitutional Economics of the World Health Organization’ (2021) 16(3) Health Economics, Policy and Law, 325–39, https://doi.org/10.1017/S1744133120000249; Lawrence O. Gostin, ‘COVID-19 Reveals Urgent Need to Strengthen the World Health Organization’ (2020) 1(4) JAMA Health Forum, e200559, https://doi.org/10.1001/jamahealthforum.2020.0559. Article 4 WHO Constitution. Article 9 WHO Constitution. Article 21 WHO Constitution. WHO Official Records, No. 176, 1969, Resolution WHA22.46 and Annex I. WHO Official Records, No. 209, 1973, Resolution WHA26.55. Document WHA34/1981/REC/1 Resolution WHA34.13; see also WHO Official Records, No. 217, 1974, Resolution WHA27.45 and Resolution EB57.R 13, Amendment of the International Health Regulations (1969). Resolution WHA58.3.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

286

Qingjiang Kong and Shuai Guo

The IHR (2005) were formulated with the purpose to ‘prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’.15 As indicated in their foreword, the IHR (2005) have several innovations: (i) a broad coverage of ‘illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans’; (ii) ‘State Party obligations to develop certain minimum core public health capacities’; (iii) ‘obligations on States Parties to notify WHO of events that may constitute a public health emergency of international concern [PHEIC]’; (iv) the WHO being authorized to ‘take into consideration unofficial reports of public health events and to obtain verification from States Parties concerning such events’; (v) procedures for determination of PHEIC and issuance of corresponding temporary recommendations; (vi) protection of human rights; and (vii) ‘the establishment of National IHR Focal Points and WHO IHR Contact Points for urgent communications between State Parties and WHO’.16 These requirements form the presently existing rules of global health law under the WHO. 14.2.1.2 The Human Rights Dimension of Health Issues The general international human rights law also represents an important dimension of global health law.17 The Universal Declaration of Human Rights 1948 (UDHR) prescribes, in Article 25, that ‘[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family’.18 Similarly, the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966 prescribes, in Article 12, that ‘[t]he States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.19 In particular, Article 12.2(c) highlights ‘[t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases’.20 In 2000, the UN Committee on Economic, Social and Cultural Rights adopted a General Comment No. 14 which is an explanatory document to interpret the right to health regulated in Article 12 of the ICESCR.21 In this document, health is interpreted as ‘a fundamental human right indispensable for the exercise of other human rights’.22 General Comment No.14 puts obligations on states to guarantee the availability, accessibility, acceptability and quality of health facilities, collectively called ‘AAAQ’. Availability requires that ‘[f]unctioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party’; accessibility requires that ‘[h]ealth facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party’; acceptability requires that ‘[a]ll health facilities, goods and services must be respectful of medical ethics and culturally appropriate’; and quality 15 16 17

18 19 20 21

22

Article 2 IHR (2005). IHR (2005), Foreword. Karima Bennoune, ‘“Least We Should Sleep”: COVID-19 and Human Rights’ (2020) 114 American Journal of International Law (AJIL), 666. Article 25 UDHR. Article 12 ICESCR. Article 12.2(c) ICESCR. ICESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), adopted at the twenty-second session of the Committee on Economic, Social and Cultural Rights, on 11 August 200 (contained in Document E/C.12/2000/4). ICESCR General Comment No. 14, para. 1.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

287

requires that ‘health facilities, goods and services must also be scientifically and medically appropriate and of good quality’.23 Like all human rights, the right to health imposes three types of obligation on states parties: the obligations to respect, to protect and to fulfil. The obligation to respect requires states to ‘refrain from interfering directly or indirectly with the enjoyment of the right to health’; the obligation to protect requires measures to, inter alia, prevent third parties from interfering with the right to health and protect from violations, which can come from omissions, such as the failure to regulate the activities of corporations to prevent them from violating the right to health of others, and the failure to protect consumers;24 and the obligation to fulfil requires states to ‘adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health’.25 As a specialized agency of the UN, the WHO constantly supports the human rights cause. The WHO Constitution prescribes that international human rights law needs to protect a right that is attainable by all peoples of the highest possible level of health, namely, ‘the right to health’.26 The WHO has undertaken projects closely related to human rights, including ‘strengthening the capacity of WHO and its Member States to integrate a human rightsbased approach to health’; ‘advancing the right to health in international law and international development processes’; and ‘advocating for health-related human rights, including the right to health’.27 Dr Tedros Adhanom Ghebreyesus, in his interview as a candidate for WHO Director-General, stated: ‘WHO must evolve and adapt, put the right to health at the core of its functions, and be the global vanguard to champion them’; he intended to promote universal health coverage and offer unique opportunities to advance equity in health.28 It is the WHO’s duty as an international organization to ensure that the right to health can be achieved at the global level. 14.2.2 China’s Contribution to Global Health Law China was one of the pioneers in global health cooperation, and, together with Brazil, it called for the early convocation of a general conference for the purpose of establishing an international health organization in 1945.29 In January 1946, after the establishment of the Generally Assembly and the Economic and Social Council, China put forward a draft resolution proposing an international conference to consider international actions in the field of public health and the establishment of a specialized UN agency.30 On 22 July 1946, China was among the first signatures to the WHO Constitution and one of the two that made no reservation, the other being the United Kingdom.31

23 24 25 26 27

28

29 30 31

Ibid., para. 12. Ibid., paras. 33, 35 and 51. Ibid., para. 33. Article 1 WHO Constitution. WHO, ‘Human Rights and Health’, www.who.int/news-room/fact-sheets/detail/human-rights-and-health. See, e.g., Brigit Toebes, The Right to Health as a Human Right in International Law (Amsterdam: Intersentia/Hart, 1999); Esther Pearson, ‘Towards Human Rights-Based Guidelines for the Response to Infectious Disease Epidemics: Righting the Response’ (2018) 24 Australian Journal of Human Rights, 201. Benjamin Mason Meier, ‘Human Rights in the World Health Organization: Views of the Director-General Candidates’ (2017) 19 Health and Human Rights, 293. See WHO, The First Ten Years of the World Health Organization (Geneva: World Health Organization, 1958), 38. Ibid., 38–9. Ibid., 39.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

288

Qingjiang Kong and Shuai Guo

In May 1950, the government of the then Republic of China notified the Director-General of its withdrawal from the WHO.32 Two years later, the Taiwan authorities intended to rejoin the WHO and put forward a proposal regarding their financial difficulties, and the Sixth WHA agreed to resume China’s membership subject to future financial arrangements.33 In the meanwhile, the People’s Republic of China (PRC), founded in 1949, showed its intention to assume the membership of China but was denied by the WHO.34 It was not until 1972, after the United Nations General Assembly restored the lawful rights of the PRC in the UN in 1971, that the PRC resumed its seat in the WHO.35 As the Taiwan authorities no longer held a legitimate position in the UN, they also did not have a legitimate place within the WHO,36 membership of which rests on UN membership. In the following decades, the PRC worked closely with the WHO and contributed to the global health undertakings, while improving its domestic health systems.37 When it comes to the recent years, China became more active in health issues. It proposed its Healthy China 2030 initiative and the concept of ‘Health for All, and All for Health’ with a view to ensuring that the Chinese population has access to health care.38 On the international front, China has also been increasing its financial contribution to the WHO,39 and Chinese scientists and health experts have more voices heard on the international health stage.40 In 2019, the WHO for the first time included traditional Chinese medicine in its International Classification of Diseases and Related Health Problems 11th Revision.41 China had been playing an important role in global health governance before the outbreak of Covid-19. 14.3 CHINA AND THE WHO AMID THE COVID-19 PANDEMIC

As the first country stricken by the Covid-19 pandemic, China deployed a policy response that turned out to be chaotic at the start but effective in the end. A complete account of China’s Covid-19 experience should explain both. 32 33 34

35

36

37 38

39

40

41

Ibid., 81. Ibid. Communication from the Ministry of Foreign Affairs of the Central People’s Government of the People’s Republic of China, Official Records of WHO, A3/68 Add.1. See also, for a general overview, Jingjing Su, ‘The Commence of Multilateral Health Diplomacy of People’s Republic of China’ (2018) 39 Chinese Journal for the History of Science and Technology, 73. WHO Official Records, Representation of China in the World Health Organization (Draft resolution proposed by the delegations of Albania, Algeria, Ceylon, Cuba, Guinea, Iraq, Mali, Malta, Nepal, Pakistan, People’s Democratic Republic of Yemen, Romania, Somalia, Sudan, Syrian Arab Republic, Uganda, United Republic of Tanzania, Yugoslavia and Zambia), 25th World Health Assembly, A25/43. The Taiwan authority has been trying to join the WHO. See, e.g., Michael Sheng-ti Gau, ‘Legal Controversies Between China and Taiwan in the WHO from the Perspectives of an International Law Scholar in Taiwan’ (2008) 1 Journal of East Asia and International Law, 159; Shang-Yung Yen and Shu-Mei Tang, ‘Global Health Governance: A Gewirthian Perspective on Taiwan’s Status in the WHO’ (2010) 1 East Asian Law Journal, 29. WHO, ‘Our Work in China’, www.who.int/china. Xiaodong Tan, Yanan Zhang and Haiyan Shao, ‘Healthy China 2030: A Breakthrough for Improving Health’ (2019) 26 Global Health Promote, 96. Srinivas Mazumdaru, ‘What Influence Does China Have Over the WHO?’, DW (17 April 2020), www.dw.com/en/ what-influence-does-china-have-over-the-who/a-53161220. See, e.g., L. H. Chan, P. K. Lee and G. Chan, ‘China Engages Global Health Governance: Processes and Dilemmas’ (2009) 4 Global Public Health, 1; Katherine E. Bliss (ed.), Key Players in Global Health: How Brazil, Russia, India, China and South Africa Are Influencing the Game (Washington, DC: Centre for Strategic & International Studies, 2010); R. Hu, R. Liu and N. Hu, ‘China’s Belt and Road Initiative from a Global Health Perspective’ (2017) 5 Lancet Global Health, e752. See ICD-11, https://icd.who.int/en. See, e.g., Wai Ching Lam, Aiping Lyu and Zhaoxiang Bian, ‘Impact on Traditional Chinese Medicine and World Healthcare Systems’ (2019) 33 Pharmaceutical Medicine, 373.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

289

14.3.1 China’s Initial Response and Certain Issues in Light of International Law The Covid-19 pandemic is the most extensive to afflict humanity in a century. When the unknown, unexpected and devastating disease first hit Wuhan, it was such an exogenous shock that the local government and even the national health authority were unprepared in the first place, which invalidated the normal policy logics followed by multiple policy actors, resulting in chaos such as ‘obstacles to act immediately on early alerts’ or insufficient capacity for isolation and care as well as for frontline health-care workers.42 In this context, it might be fair to say that China was less prepared for an outbreak of a contagious disease at the beginning, and it might be natural that the outsiders, which were later stricken by the pandemic, questioned the rightfulness of China’s response and even doubted whether China violated its obligation of notification under the WHO at the beginning of the pandemic.43 Some even claimed that China has an obligation to make full reparation for such violation as it caused damages in other countries.44 While admitting that China’s initial response was imperfect, it should, however, be noted that, thanks to the Chinese scientific capacity in detecting and diagnosing the virus, the Chinese authorities soon became aware of the outbreak and its serious potentials, and in the wake of this, China launched a resolute battle to prevent and control its spread. The first known cluster of Covid-19 cases arising in Wuhan took place in late November 2019, according to a US national intelligence community report.45 An examination of the timeline thereafter finds that in early December China identified certain cases;46 the country first informed the WHO, through the WHO’s China Office, of a pneumonia of unknown cause on 31 December 2019,47 and released the genome sequence of the novel coronavirus. 14.3.1.1 China’s Behaviour Relating to Its Obligation of Notification under the IHR (2005) Article 6 IHR (2005) requires that [e]ach State Party shall notify WHO, by the most efficient means of communication available, by way of the National IHR Focal point, and within 24 hours of public health information, of all events which may constitute a public health emergency of international concern [PHEIC] within its territory in accordance with the decision instrument, as well as any health measure implemented in response to those events.48

42

43

44

45

46

47

48

WHO, ‘Report of the WHO–China Joint Mission on Coronavirus Disease 2019’ (16–24 February 2020), 17–18, www .who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf. See, e.g., David Fidler, ‘COVID-19 and International Law: Must China Compensate Countries for the Damage?’, Just Security (27 March 2020), https://bit.ly/3qCNoVR; Peter Tzeng, ‘Taking China to the International Court of Justice’, EJIL: Talk! (2 April 2020), www.ejiltalk.org/taking-china-to-the-international-court-of-justice-over-covid-19/; Chime`ne Keitner, ‘Don’t Bother Suing China for Coronavirus’, Just Security (8 April 2020), www.justsecurity.org /69460/dont-bother-suing-china-for-coronavirus/. See, e.g., James Kraska, ‘China Is Legally Responsible for Covid-19 Damage and Claims Could Be in the Trillions’, War on Rocks (23 March 2020), https://bit.ly/45xtwSY. National Intelligence Council, ‘Unclassified Summary of Assessment on Covid-19 Origins, Key Takeways’, https://bit .ly/47D1G9H. Chaolin Huang et al., ‘Clinical Features of Patients Infected with 2019 Novel Coronavirus in Wuhan, China’ (2020) 395 Lancet, 497. WHO, ‘Pneumonia of Unknown Cause – China’ (5 January 2020), www.who.int/csr/don/05-january-2020pneumonia-of-unkown-cause-china/en/. Article 6 IHC. See also Annex 2 Decision Instrument for the Assessment and Notification of Events That May Constitute a Public Health Emergency of International Concern.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

290

Qingjiang Kong and Shuai Guo

And Article 7 IHR (2005) continues to regulate that a state party ‘shall provide to the WHO all relevant public health information’ if it ‘has evidence of an unexpected or unusual public health event within its territory, irrespective of origin or source, which may constitute a [PHEIC]’.49 The question raised is whether China has fulfilled the obligation to inform the WHO of a potential event that may constitute a PHEIC. A somewhat convincing argument that it did not fulfil its obligation is that there was a time elapse between the identification of the first virus in early December 2019 and China’s notification to the WHO, which was not until the end of that month.50 Sceptics have even shed doubt on the WHO’s ability to verify national reports, speculating that China notified false information to the WHO.51 However, this chapter stresses that we cannot overlook the possibility that the time difference between the admission of the first patient, identification of a new virus and the ultimate notification to the WHO may be reasonably mandated as scientific research into a new virus takes time. This pattern can also be seen from the process of declaration of a PHEIC on 30 January 2020,52 one month after China notified the WHO.53 Within this period, China shared the genome sequence of the new virus on 12 January 2020,54 the first case outside China was notified on 13 January 2020 in Thailand,55 and human-to-human transmission was reported on 22 January 2020.56 This process also demonstrates that confirming a PHEIC requires time for collecting epidemiologic evidence, conducting scientific research and completing verification. Without strong scientific evidence, it is not convincing to conclude that China failed to notify the WHO in a timely manner. 14.3.1.2 Causality Between China’s Behaviours and the Spread of Covid-19, and Accountability The wide spreading of the Covid-19 pandemic has led to many discussions concerning the application of global health law, to pursue state responsibility and future reforms of global health law. Voices have been heard saying that China failed to take necessary precautions to prevent the worldwide spread of Covid-19, even though it did not intentionally release the virus.57 Critics were requesting China’s negligent omissions to be deemed international wrongful acts under the Draft Articles on Responsibility of States for Internationally Wrongful Acts.58 This chapter, however, identifies one issue that is an essential element in this accountability test but was not adequately addressed by previous literature,59 that is, the causality between 49 50

51

52

53 54

55

56

57

58 59

Article 7 IHR (2005). See, e.g., Emily Rauhala, ‘World Health Organization: China Not Sharing Data on Coronavirus Infections among Health-Care Workers’, Washington Post (26 February 2020), https://bit.ly/3OJKEOx. Lawrence O. Gostin, Sam F. Halabi and Kevin A. Klock, ‘An International Agreement on Pandemic Prevention and Preparedness’ (2021) 326(13)Journal of the American Medical Association, 1257–8, https://doi.org/10.1001/jama .2021.16104. WHO, ‘WHO Director-General’s Statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV)’ (30 January 2020), https://bit.ly/45hY7UX. See also the discussion of the WHO’s accountability in Section 14.4.2.1. WHO, ‘Novel Coronavirus – China’ (12 January 2020), www.who.int/csr/don/12-january-2020-novel-coronaviruschina/en/. WHO, ‘WHO Statement on Novel Coronavirus in Thailand’ (13 January 2020), www.who.int/news-room/detail/1301-2020-who-statement-on-novel-coronavirus-in-thailand. WHO, ‘Mission Summary: WHO Field Visit to Wuhan, China 20–21 January 2020’ (22 January 2020), www .who.int/china/news/detail/22-01-2020-field-visit-wuhan-china-jan-2020. Luca Bergkamp, ‘State Liability for Failure to Control the COVID-19 Epidemic: International and Dutch Law’ (June 2020) 11(2) European Journal of Risk Regulation, 343–9; Valerio Mazzuoli, ‘State Responsibility and COVID19: Bringing China to the International Court of Justice?’, International Law (15 May 2020), https://bit.ly/3slrcQR. Bergkamp, ‘State Liability’, supra note 57. See supra note 43.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

291

China’s alleged failure to notify and the international spread of Covid-19, which is a necessary condition60 to seek reparation and compensation from China.61 As can be seen from the data provided by the WHO,62 China managed to control the spread of the virus starting from late February 2020. By contrast, it is not because China filed no notification or because the WHO provided no recommendations that other countries have been suffering as much as they have. Rather, we cannot overlook the fact that many authorities in other countries were slow in responding to the pandemic and did not take effective measures. As early as February 2020, the WHO had urged all states to take ‘uncompromising and rigorous’ measures including ‘extremely proactive surveillance to immediately detect cases, very rapid diagnosis and immediate case isolation, rigorous tracking and quarantine of close contacts, and an exceptionally high degree of population understanding and acceptance’.63 At this time, states could be reasonably expected to follow the WHO’s advice for the protection of their people’s right to health, but, unfortunately, many did not do so.64 Many countries only began to take measures in March 2020, several weeks after the first case was reported.65 Some governments even proposed a controversial ‘herd immunity’ strategy in the first place, but soon had to abolish it. Richard Horton, the editor-inchief of The Lancet, a leading medical journal, publicly criticized this strategy for it did not follow the WHO’s advice to ‘test, test, test’ every suspected case.66 This chapter is not in a position and does not intend to investigate the real causality of the wide spreading of the pandemic and the different actions taken by different countries.67 It simply refutes attributing the cause of the global pandemic to China’s (in)actions. Also, while many believe that the virus originated from China, other reports have disagreed.68 At least it cannot be concluded that China developed the virus. The US National Intelligence Council concluded that the virus was neither developed as a biological weapon nor genetically engineered.69 The WHO organized a team of international scientists to work with Chinese scientists to conduct a joint study in Wuhan on the origins of Covid-19; the team concluded that 60

61 62 63 64

65

66 67

68

69

Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) Text adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly as part of the Commission’s report covering the work of that session (A/56/10). The report, which also contains commentaries on the draft articles, appears in the Yearbook of the International Law Commission, 2001, vol. II, part 2, as corrected, 92–3. Ibid., Articles 31 and 36. See supra note 1. WHO, ‘Report of the WHO–China Joint Mission’, supra note 42. For instance, the US government did not adopt nationwide testing, and the Food and Drug Administration (FDA) gave emergency approval to the test system only in March, two months after the first case in the United States was diagnosed in January 2020. See US Food & Drug Administration, ‘Coronavirus (COVID-19) Update: FDA Issues First Emergency Use Authorization for Point of Care Diagnostic’ (21 March 2020), https://bit.ly/3YPucAX. See comments, Talita de Souza Dias and Antonio Coco, ‘Part III: Due Diligence and COVID-19: States’ Duties to Prevent and Halt the Coronavirus Outbreak’, EJIL: Talk! (25 March 2020), www.ejiltalk.org/part-iii-due-diligenceand-covid-19-states-duties-to-prevent-and-halt-the-coronavirus-outbreak/. See, for example, Italy. BBC, ‘Coronavirus: Italy Extends Emergency Measures Nationwide’ (10 March 2020), www .bbc.com/news/world-europe-51810673. Richard Horton, ‘Offline: COVID-19 and the NHS – A “National Scandal”’ (2020) 395 Lancet, 1022. Such allegations against countries that do not effectively contain the virus may also be accountable under international law; see, e.g., Bergkamp, ‘State Liability’, supra note 57. See, e.g., PA Science, ‘The Coronavirus May Not Have Originated in China, Says Oxford Professor’, Science Focus (6 July 2020), https://bit.ly/3P2e77N; CGTN, ‘COVID-19 May Not Have Originated in China, Existed in Environment for Many Decades’ (6 July 2020), https://bit.ly/3P6eqi3. Compare with Jon Cohen, ‘With Call for “Raw Data” and Lab Audits, WHO Chief Pressures China on Pandemic Origin Probe’, Science (17 July 2021), www .science.org/content/article/who-chief-sharpens-call-china-further-help-probe-origin-pandemic. National Intelligence Council, ‘Unclassified Summary of Assessment on Covid-19 Origins, Key Takeaways’, www .dni.gov/files/ODNI/documents/assessments/Unclassified-Summary-of-Assessment-on-COVID-19-Origins.pdf.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

292

Qingjiang Kong and Shuai Guo

a virus leak from a Wuhan laboratory was ‘extremely unlikely’.70 It is probable that China was simply hit ‘out of the blue’ by the virus; it was unprepared and underwent chaotic periods at the beginning of the outbreak. It is not in a scientific pattern for China to identify the nature and characteristics of an unknown virus immediately, and it is thus justified that China did not notify the WHO immediately. All of these factors might weaken the causality link. 14.3.1.3 Jurisdiction of the International Court of Justice over China’s Initial Response There have been attempts to hold China accountable for its initial response, which was alleged to be in breach of international obligations. Nevertheless, any attempt to bring China to the International Court of Justice (ICJ) or other international tribunals for its non-compliance with its duty of notification must first meet the jurisdiction rule of the international tribunals. With respect to global health law, Article 56 IHR (2005) stipulates the procedures for dispute settlement, including first-instance negotiation or other peaceful means of dispute settlement, and a subsequent referral to the Director-General if no agreement is reached through peaceful means; this Article does not direct to the ICJ jurisdiction.71 Article 75 of the WHO Constitution does not preclude the possibility of the ICJ’s jurisdiction; however, it sets out the precondition that ‘[a]ny question or dispute concerning the interpretation or application of this Constitution . . . is not settled by negotiation or by the Health Assembly’, and any referral to the ICJ shall be ‘in conformity with the Statue of the Court, unless the parties concerned agree on another mode of settlement’.72 To be in conformity with the Statue of the Court, for contentious cases, a party’s consent is needed. However, China is not subject to the compulsory jurisdiction of the ICJ.73 In addition, jurisdiction can be opened based on treaties or conventions that are in force; however, the WHO Constitution is not listed in the treaties that form the basis of the ICJ’s jurisdiction.74 Although the 1969 version of the IHR is mentioned in the list of treaties, the 2005 version has deliberately deleted the dispute resolution provision that makes a referral to the ICJ.75 Thus, it is concluded that the IHR cannot be a sole basis for bring a party to the ICJ. Even if China gave its consent to the jurisdiction of the ICJ, such a proposal to sue China for breaching its obligation of notification should be dismissed on the basis of abuse of process. Although recent cases showed a tendency of the Court to reject the plea on the ground of abuse of process, which can be upheld only in ‘exceptional circumstances’,76 Judge Dondoghue in Equatorial Guinea v. France supported such an argument. She reasoned in this case that ‘the purpose of these actions is [a] personal one, to address difficulties faced by [the President of Equatorial Guinea’s] son’.77 The potential case against China serves no objective but an unjustified one, namely, distracting the outraged people and the disappointed governments from their inability to contain the outbreak of the virus by creating a foreign enemy.78 Thus, such an action should be dismissed. 70

71 72 73 74 75 76 77 78

WHO, ‘WHO-Convened Global Study of Origins of SARS-CoV-2: China Part – Joint WHO–China Study: 14 January–10 February 2021’ (30 March 2021), 120. Article 56 IHR (2005). Article 75 WHO Constitution. See ICJ, ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory’, www.icj-cij.org/en/declarations. ICJ, ‘Treaties’, www.icj-cij.org/en/treaties. Ibid. Equatorial Guinea v. France, para. 150; Certain Iranian Assets, para. 114; and Jadhav, para. 49. Equatorial Guinea v. France, Dissenting Opinion, para. 15. See, e.g., Business Insider US, ‘Republicans Are Using Racism Against China to Try to Distract from Trump’s Disastrous Coronavirus Response’, Business Insider (19 March 2020), www.businessinsider.com/trump-using-racismagainst-china-to-distract-from-coronavirus-failures-2020-3; Jamelle Bouie, ‘Don’t Let Trump Off the Hook’, New York Times (20 March 2020), www.nytimes.com/2020/03/20/opinion/trump-republicans-coronavirus.html.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

293

14.3.2 China’s Behaviours During the Covid-19 Pandemic and Its Contribution to the Global Fighting of It A further look at the timeline shows that China responded quickly to contain the Covid-19 spreading.79 Locking down Wuhan, mobilizing all medical resources nationwide to be available to patients, and erecting makeshift hospitals for quarantine and medical purposes were among the first steps that were taken in Wuhan immediately after the virus was identified.80 At the national level, China adopted an elimination or zero-Covid-19 strategy where nationwide virus control was conducted,81 and a policy mix that comprised traditional measures, that is, strict community lockdown, cross-jurisdictional mobilization of resources and officials’ sanction. It is fair to argue that the policy mix during the crisis contributed to the eventual effectiveness of China’s response to the pandemic.82 It was found that, since April 2020, the country has kept the virus within a manageable range. Of course, the zeroCovid-19 policy was not free from criticism by those at home and abroad, particularly after other countries had lifted control for the less dangerous Omicron variant of Covid-19, but it was proven to be effective at the earlier stage of the pandemic. Thanks to the timely intervention and control of the virus spreading, China quickly recovered from economic losses in the second half of 2020.83 In this regard, it should also be pointed out that during the pandemic, China was sharing its experiences with the international community84 and providing digital solutions with which to combat Covid-19.85 As the most populous country, China’s contribution to the international community was essential for the world to combat Covid-19.86 Interestingly, Chinese scientists and researchers reached out to their American counterparts to address the global pandemic despite the political row between the two countries.87 China also sent out vaccines to other countries.88 The world’s fight against Covid-19 could not have happened without China.

79 80

81

82

83

84

85

86

87

88

See supra notes 45 and 46. Weiwei Wu, Jing Wu and Lidan Cao, ‘COVID-19 Pandemic in China: Context, Experience and Lessons’ (2020) 9 Health Policy and Technology, 639. Guangyu Lu, Oliver Razum, Albrecht Jahn et al., ‘COVID-19 in Germany and China: Mitigation versus Elimination Strategy’ (2021) 14 Global Health Action, 1875601; Ruofei Lin, Shanlang Lin, Na Yan and Junpei Huang, ‘Do Prevention and Control Measures Work? Evidence from the Outbreak of COVID-19 in China’ (2021) 118 Cities, 103347. State Council Information Office of the People’s Republic of China, ‘Fighting Covid-19 China in Action’ (June 2020). Xiao Ke and Cheng Hsiao, ‘Economic Impact of the Most Drastic Lockdown During COVID-19 Pandemic – The Experience of Hubei, China’ (2021) Journal of Applied Econometrics, 1; Wei Tian, ‘How China Managed the COVID-19 Pandemic’ (2021) 20 Asian Economic Papers, 75. WHO, ‘China National Experts Share COVID-19 Experiences with International Community’ (12 March 2020), https://bit.ly/3P51pFe. WHO, ‘COVID-19 and Digital Health: What Can Digital Health Offer for COVID-19?’ (10 April 2020), https://bit .ly/3P0xRsl. Also Qing Ye, Jin Zhou and Hong Wu, ‘Using Information Technology to Manage the COVID-10 Pandemic: Development of a Technical Framework Based on Practical Experience in China’ (2020) 8 JMIR Medical Informatics, e19515. T. Smiley Evans, Z. Shi and M. Boots et al., ‘Synergistic China–US Ecological Research Is Essential for Global Emerging Infectious Disease Preparedness’ (2020) 17 Ecohealth, 160. Nadja Grammers, Dominic Millenaar, Tobias Fehlmann et al., ‘Research Output and International Cooperation Among Countries During COVID-19 Pandemic: Scientomatric Analysis’ (2020) 22 Journal of Medical Internet Research, e24514. CGTN, ‘How Has China Delivered on Its Promise to Make Its Vaccines a Global Public Good?’ (8 September 2021), https://bit.ly/3P6fYbR.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

294

Qingjiang Kong and Shuai Guo 14.4 CHINA AND WHO REFORM

The ongoing Covid-19 crisis demonstrated a lack of scientific preparedness and international health governance for combating infectious diseases. It even led to unfortunate situations where different strategies were deployed at the national level, which ultimately resulted in ineffective managing of the global pandemic. Global health law needs to be reformed, and this chapter continues to evaluate China’s positions and beyond. 14.4.1 Inability of the WHO to Address Covid-19 and Increasing Challenges for International Health Cooperation As an international organization mandated to monitor global health issues, the WHO itself was under public scrutiny. During the Covid-19 pandemic, the WHO was found to be clumsy in responding to the public health crisis. This highlights the inability of the WHO to address the Covid-19 pandemic. For instance, the Trump administration accused the WHO of not declaring a PHEIC in time, which led to the outbreak of Covid-19 in the United States.89 From an international law point of view, the WHO leadership was limited by its lack of enforcement authority, stemming from the absence of binding international instruments.90 A challenging issue was the increasing difficulty of achieving international cooperation in the health sector amid the Covid-19 pandemic. As a UN Special Committee report identified, ‘States should not merely tolerate the existence of other States, but should be prepared to help them as best they could’.91 The WHO highlighted the importance of international cooperation throughout the Constitution and the IHR. The Constitution states, in its Preamble, that ‘[t]he health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States’, and ‘[i]nformed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people’.92 In addition, the Constitution is ‘for the purpose of co-operation among [the Contracting Parties]’.93 Many provisions in the WHO Constitution set the duty of cooperation for the organization itself. Article 2 prescribes that the WHO should take the functions to ‘promote, in co-operation with other specialized agencies where necessary, the prevention of accidental injuries’, to ‘promote, in co-operation with other specialized agencies where necessary, the improvement of nutrition, housing, sanitation, recreation, economic or working conditions and other aspects of environmental hygiene’, to ‘promote co-operation among scientific and professional groups which contribute to the advancement of health’ and to ‘study and report on, in co-operation with other specialized agencies where necessary, administrative and social techniques affecting public health and medical care from preventive and curative points of view, including hospital services and social security’.94 And Article 18 specifies one of the functions of the WHA as to ‘promote and conduct research in the field of health by the personnel of the Organization, by the 89

90

91

92 93 94

See, e.g., Dawn Kopecki and Berkeley Lovelace Jr., ‘Trump Blames WHO for Getting Coronavirus Pandemic Wrong, Threatens to Withhold Funding’, CNBC (7 April 2020), https://bit.ly/3E5qZDH. Eyal Benvenisti, ‘The WHO – Destined to Fail? Political Cooperation and the COVID-19 Pandemic’ (2020) 114 AJIL, 588. UN Doc. A/6230, Report of the 1966 Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States (the Second Report) (27 June 1966), 85, para. 420. WHO Constitution, Preamble (emphasis added). Ibid. Article 2(h), (i), (j) and (p) WHO Constitution (emphasis added).

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

295

establishment of its own institutions or by co-operation with official or non-official institutions of any Member with the consent of its Government’.95 Article 71 once again highlights that ‘[t]he Organization may, on matters within its competence, make suitable arrangements for consultation and co-operation with non-governmental international organizations and, with the consent of the Government concerned, with national organizations, governmental or nongovernmental’.96 Similarly, Articles 14 and 44(2) IHR (2005) also impose a duty of cooperation on the organization.97 For states parties, the IHR (2005) also stipulate, in Article 44(1), that ‘State Parties shall undertake to collaborate with each other, to the extent possible’ in four dimensions: (i) ‘the detection and assessment of, and response to, events as provided under these Regulations’; (ii) ‘the provision or facilitation of technical cooperation and logistical support, particularly in the development, strengthening and maintenance of the public health capacities required under these Regulations’; (iii) ‘the mobilization of financial resources to facilitate implementation of their obligations under these Regulations’; and (iv) ‘the formulation of proposed laws and other legal and administrative provisions for the implementation of these Regulations’.98 Despite this, many countries take a unilateral approach, preferring to act alone.99 Yet, the Covid-19 pandemic in particular required international cooperation, in the forms of sharing information, mobilizing resources such as essential medical products and equipment across the globe, reducing trade barriers, providing humanitarian support to less prepared countries and conducting joint scientific research on vaccines and medicines.100 Global health governance lacks political commitment, let alone effective international cooperation.101 To be more specific, the WHO is technical-oriented, consisting of mostly health experts who have little influence on the political ecosystem.102 The WHO has limited powers to exercise its functions such as gathering information,103 sharing information,104 issuing travel advisories105 and (maybe most importantly) enforcing sanctions.106 For other examples, some countries were slow in response to the WHO’s declaration of a PHEIC.107 And even the UN Security Council only took

95 96 97

98 99

100

101 102 103 104 105 106

107

Article 18(k) WHO Constitution (emphasis added). Article 71 WHO Constitution (emphasis added). Article 14 IHR (2005) (Cooperation of WHO with intergovernmental organizations and international bodies); Article 44(2) (Collaboration and assistance). Article 44(1) IHR (2005). For example, ‘vaccine nationalism’; see UN, ‘Global Cooperation Is Our Only Choice Against COVID-19, Says WHO Chief’ (6 August 2020), https://news.un.org/en/story/2020/08/1069702. See, e.g., UN Affairs, ‘Onset of COVID-19 Pandemic Boosts Support for International Cooperation’ (20 April 2020), https://news.un.org/en/story/2020/04/1062122; Kemal Dervis¸ and Sebastian Strauss, ‘What COVID-19 Means for International Cooperation’, Brookings (6 March 2020), www.brookings.edu/opinions/what-covid-19-means-forinternational-cooperation/; Matiangai Sirleaf, ‘Capacity-Building, International Cooperation, and COVID-19’ (2020) 24(17) ASIL Insights; Gordon Brown and Daniel Susskind, ‘International Cooperation During the COVID-19 Pandemic’ (2020) 36(Supp. 1) Oxford Review of Economic Policy, S64–S76. Benvenisti, ‘The WHO – Destined to Fail?’, supra note 90. von Bogdandy and Villareal, ‘International Law on Pandemic Response’, supra note 2. Article 9 IHR (2005). Articles 10–11 IHR (2005). Article 43 IHR (2005). WHO, Report of the Review Committee on the Functioning of the International Health Regulations (2015) in Relation to Pandemic (H1N1) 2009, para. 24, WHO Doc. A64/10 (5 May 2011). See also, e.g., Frederick M. Burkle, Jr., ‘Global Health Security Demands a Strong International Health Regulations Treaty and Leadership from a Highly Resourced World Health Organization’ (2015) 9 Disaster Medicine and Public Health Preparedness, 568. See Section 14.3.1 in this chapter.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

296

Qingjiang Kong and Shuai Guo

responsive actions, such as halting in-person meetings, in March/April 2020, two months after the WHO’s declaration.108 International health lacks a collective global leadership.109 14.4.2 China’s Perspective 14.4.2.1 China’s Position Towards Global Health Governance Despite the recent challenges, China is committed to strengthening global health governance. As President Xi Jinping declared during the opening ceremony of the 73rd WHA, China aims to further enhance international cooperation and coordination.110 In his view, there are five aspects that need global efforts: first, Covid-19 control and treatment needed concerted actions to be taken by every country; second, a global response should be led by the WHO; third, greater support for Africa should be provided; fourth, effective global governance is needed for a quicker response to public health emergencies, by, for example, establishing global and regional reserve centres of anti-epidemic supplies; fifth, international macroeconomic policies should be coordinated to restore economic and social development.111 In particular, China promised to provide USD 2 billion in the two years after 2020 to help inflicted countries, especially developing countries, set up a global humanitarian response depot and hub with the UN to ensure the operation of anti-epidemic supply chains, to establish a cooperation mechanism for African hospitals, to make vaccines developed in China available to developing countries and to work with G20 members and the international community to help the poorest countries by setting up the Debt Services Suspension Initiative.112 The human rights dimension of international health law in particular requires equal access to global public health, which is in line with the WHO’s mandates.113 The WHO has been actively involved in global research projects on therapeutics trials, serologic studies and vaccines.114 As the WHO confirmed, ‘[u]nder international human rights law, the obligations undertaken by State parties beyond their borders, i.e. to International Assistance and Cooperation are akin to their domestic obligations, not subsidiary or secondary in any way’.115 China is among the countries that aim to provide global public goods. For instance, in October 2020 China joined COVAX, an initiative led by the WHO working for global equitable access to Covid-19 vaccines.116 In the following year, as of August 2021, China had delivered about 800 million vaccine doses to more than 100 nations.117 In a written message, President Xi promised to provide 2 billion vaccine doses to the world throughout the year 2021 and offered USD 100 million to 108

109

110

111 112 113

114

115

116

117

UN Security Council, VTCs of the Security Council Members and Outcomes During the COVID-19 Pandemic (UN), https://bit.ly/3E5WVrI. Peter G. Danchin, Jeremy Farrall, Shruti Rana and Imogen Saunders, ‘The Pandemic Parados in International Law’ (2020) 114 AJIL, 598, 601–3. ‘Full Text: Speech by President Xi Jinping at Opening of 73rd World Health Assembly’, Xinhua (18 May 2020), www .xinhuanet.com/english/2020-05/18/c_139067018.htm. Ibid. Ibid. See Section 14.2.1.2. See also Anto´nio Guterres, ‘The World Faces a Pandemic of Human Rights Abuses in the Wake of Covid-19’, Guardian (22 February 2021), https://bit.ly/44qCGzS. WHO, ‘Global Research on Coronavirus Disease (COVID-19)’, www.who.int/emergencies/diseases/novelcoronavirus-2019/global-research-on-novel-coronavirus-2019-ncov. WHO, ‘Addressing Human Rights as Key to the COVID-19 Response’ (21 April 2020), www.who.int/publications/i/ item/addressing-human-rights-as-key-to-the-covid-19-response. WHO, ‘COVAX: Working for Global Equitable Access to COVID-19 Vaccines’, www.who.int/initiatives/actaccelerator/covax. CGTN, ‘How Has China Delivered on Its Promise’, supra note 88.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

297

COVAX for the distribution of vaccines to developing countries.118 In June 2021, China and twenty-eight countries jointly launched the Initiative for Belt and Road Partnership on Covid-19 Vaccines Cooperation.119 These measures demonstrate the vision of China for a community of shared future for mankind (CSFM). In the health sector, China is endeavouring to contribute to a shared community of health for all. 14.4.2.2 China’s Support for the WHO’s Leadership China generally stresses the importance of the WHO and supports its leading role in handling global health crises. A core controversial event is that the WHO had discussions on 22 and 23 January 2020, but it decided not to declare a PHEIC.120 The United States has questioned whether the decision was made under pressure from China. However, it should be noted that the decision was jointly reached and there were representatives of many other countries other than China that participated in the meeting.121 Also, the decision was not made by the Director-General alone. As Professor Gostin explained, ‘[the Director-General’s] obligation under the law is to convene a committee but not to follow it. But he feels that politically he needs to get a unanimous decision before he acts or at least an overwhelming majority.’122 Back at the time, as the Director-General emphasized in his statement, there was no sufficient evidence to support a PHEIC declaration.123 With an increasing amount of evidence, one week later, the WHO declared a PHEIC on 30 January 2020. And still, at that time, only some Asian countries had reported community transmission of the virus. The United States did not declare a national emergency for another six weeks, on 13 March 2020.124 Some critics believe that this questioning is only Trump’s strategy to ‘use the [WHO] as a scapegoat for the failings of his administration’s sluggish response’.125 In this connection, it is difficult to establish any real causality link between the decision-making process within the WHO and the wide spreading of the virus in the United States, certainly not enough to hold the WHO accountable. It is also interesting to note that China contended that certain countries politicized the issue of virus origin tracing when the WHO Director-General moved to further despatch delegations one after another to the country for the purpose of tracing origin.126 Although the WHO’s moves were subject to politicized interpretations by its members, it cannot be justifiable to abandon the leadership of the WHO in promoting global public health. 118 119 120

121

122 123 124 125

126

Ibid. Ibid. WHO, ‘WHO Director-General’s Statement on IHR Emergency Committee on Novel Coronavirus’ (22 January 2020), https://bit.ly/3KQ1Q3Fs; WHO, ‘WHO Director-General’s Statement on the Advice of the IHR Emergency Committee on Novel Coronavirus’ (23 January 2020), https://bit.ly/3OBsDBO. Julian Borger, ‘Caught in a Superpower Struggle: The Inside Story of the WHO’s Response to Coronavirus’, Guardian (18 April 2020), https://bit.ly/44cU7DK. Ibid., citing Lawrence Gostin. See supra note 120. See supra note 64. Julian Borger, ‘US Gives G7 Countries a List of Reforms It Wants WHO to Undertake’, Guardian (30 April 2020), www.theguardian.com/world/2020/apr/30/us-gives-g7-countries-a-list-of-reforms-it-wants-who-to-undertake. See also Thomas J. Bollyky and Jeremy Konyndyk, ‘It’s Not the WHO’s Fault That Trump Didn’t Prepare for the Coronavirus’, Washington Post (14 April 2020), www.washingtonpost.com/outlook/2020/04/14/trump-whocoronavirus-response/. Hamdhan Shakeel, ‘COVID-19: Debunking the US’ Pollicization of the Origin Tracing of the Virus’, China Daily (9 August 2021), http://global.chinadaily.com.cn/a/202108/09/WS6110e78ca310efa1bd667af8.html.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

298

Qingjiang Kong and Shuai Guo

14.4.3 Future WHO Reforms: Enhanced Cooperation and Coordination International cooperation should be an international legal obligation for states in the health field. This chapter further argues that enhanced cooperation and coordination are needed for future global health law reforms.127 However, it has to be acknowledged that the present international cooperation is facing difficulties. As identified by Meier et al., ‘[i]t will be crucial to reform global health law to prepare for future global health challenges, but WHO member states find themselves at a crossroads in their reforms: accept the divisive nationalist responses which have characterized the response to COVID-19 or recommit to international cooperation through global health governance’.128 This concern is not unrelated to the dysfunctions of the WHO during the pandemic, such as the timing and the transparency of the procedures for declaring a PHEIC129 and the lack of obedience to WHO recommendations by national authorities.130 It is expected that with reformed IHR or even an international treaty, nations would have in a more cooperative attitude.131 Regardless of the concern for the (in)effectiveness of the global health cooperation, several actions must be taken. First and foremost, the WHO should continue its leading role in monitoring and managing international health issues, serving as a multilateral platform for international communication. The WHO’s importance has been highlighted again in the 2020 WHA, which adopted a resolution by states’ consensus.132 Most states have acknowledged the significance of maintaining the WHO. Cooperation among WHO members was manifested in the origin tracing process of the pandemic. The WHO despatched a team of international and Chinese scientists to research into the origin of the virus in Wuhan for future human preparedness.133 When there has been speculation on the origin in other places,134 such investigations cannot be complete without orchestrated cooperation among the international community. Second, although cooperation of different state parties is stated in the IHR (2005),135 various issues are left unaddressed. For example, at the height of the Covid-19 pandemic, quite a few institutions 127

128

129

130

131

132

133 134 135

Curtis A. Bradley and Laurence R. Helfer, ‘Introduction to “the International Legal Order and the Global Pandemic”’ (2020) 114 AJIL, 571. Benjamin Mason Meier, Allyn Taylor, Mark Eccleston-Turner et al., ‘The World Health Organization in Global Health Law’ (2020) 48 Journal of Law, Medicines and Ethics, 796, 797. See, e.g., M. Eccleston-Turner, ‘COVID-19 Symposium: The Declaration of a Public Health Emergency of International Concern in International Law’, Opinion Juris (31 March 2020), https://bit.ly/3YH9m6E. See, e.g., R. Habibi, G. L. Burci, T. C. de Campos et al., ‘Do Not Violate the International Health Regulations During the COVID-19 Outbreak’ (2020) 395 Lancet, 664; Benjamin M. Meier, Roojin Habibi and Y. Tony Yang, ‘Travel Restrictions Violate International Law’ (2020) 367 Science, 1436. Kerry Cullinan, ‘Pandemic Treaty: US Proposes Amending Existing International Health Rules First; Germany Presses for Sanctions’, Health Policy Watch (3 September 2021), https://bit.ly/3ON4J6y. WHO, ‘COVID-19 Response Draft Resolution Proposed by Albania, Australia, Azerbaijan, Bahrain, Bangladesh, Belarus, Bhutan, Bolivia (Plurinational State of), Brazil, Canada, Chile, China, Colombia, Cook Islands, Costa Rica, Djibouti, Dominican Republic, Ecuador, El Salvador, Fiji, Georgia, Guatemala, Guyana, Honduras, Iceland, India, Indonesia, Iraq, Jamaica, Japan, Jordan, Kiribati, Maldives, Marshall Islands, Mexico, Micronesia (Federated States of), Monaco, Montenegro, Morocco, Nauru, Nepal, New Zealand, North Macedonia, Norway, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Qatar, Republic of Korea, Republic of Moldova, Russian Federation, San Marino, Saudi Arabia, Serbia, Singapore, Sri Lanka, Thailand, the African Group and Its Member States, the European Union and Its Member States, Tonga, Tunisia, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland and Uruguay’, adopted by the Seventy-Third World Health Assembly (A73/ CONF./1 Rev.1) on 18 May 2020. See comments, e.g., Pedro A. Villarreal, ‘Pandemic Intrigue in Geneva: COVID-19 and the 73rd World Health Assembly’, EJIL: Talk! (22 May 2020), www.ejiltalk.org/pandemic-intrigue-in-genevacovid-19-and-the-73rd-world-health-assembly/. WHO, ‘WHO-Convened Global Study of Origins of SARS-CoV-2’, supra note 70. See supra note 68. Article 44 IHR (2005).

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

299

across various countries were in the process of developing vaccines.136 They were trying different approaches, such as an mRNA vaccine, a DNA vaccine or a non-replicating viral vector and so on.137 While it is beneficial to have different experiments underway to reach more possibilities, it does raise the concern of vaccine nationalism, which may result in malignant competition or a price war.138 It is therefore proposed that cooperation is needed in the process of developing vaccines, in the way of joint research or joint manufacturing lines in different countries.139 It is suggested that the WHO should take a more active approach in joining the scientific forces of different countries and mobilizing resources by initiating scientific research cooperation platforms. Third, the WHO should work with other international organizations to remove any legal barriers that may prevent effective control of a virus such as Covid-19. A relevant aspect regards intellectual property, more specifically patents of vaccines or medicines vis-a`-vis affordable treatment.140 The WHO needs to work together with the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) to come up with solutions for countries to have access to the latest scientific achievements concerning prevention and treatment of pandemic diseases, especially for countries that cannot afford patent licensing or do not have the domestic manufacturing capacity for vaccines and medicines. Under the current framework, it is questionable whether a WHO member can invoke Article 73(b)(iii) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to suspend patent enforcement ‘necessary for the protection of its essential security interests’141 or Article 31bis when it exports patented products.142 The United States showed its intention to waive intellectual property rights for Covid-19 vaccines, as a solution to IP-related issues.143 China has made clear that it was ready to share the vaccines with developing countries and delivered a large amount of vaccines abroad for free, although its position on the patent issue remains unclear. Although many countries have imposed restrictions on exports of medical equipment or medicines,144 it is questionable whether these measures are WTO-consistent.145 However, more importantly, the WHO, together with the WTO, needs to provide incentives for member states not to impose export restrictions so that resources can be reallocated across borders in a next health crisis.146 A critical action for the WHO is still improving the preparedness of each state, guaranteeing necessary reserves of medical products. 136 137 138 139

140 141

142

143 144

145

146

See London School of Hygiene and Topical Medicine, https://vac-lshtm.shinyapps.io/ncov_vaccine_landscape/. Ibid. See supra note 99. See, e.g., OECD, ‘Treatments and a Vaccine for COVID-19: The Need for Coordinating Policies on R&D, Manufacturing and Access’ in OECD Policy Response to Coronavirus (COVID-19) (Paris: OECD Publishing, 2020), https://bit.ly/3QPgXyo. Ibid. Article 73(b)(iii) TRIPS Agreement reads: ‘Nothing in this Agreement shall be construed to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests taken in time of war or other emergency in international relations.’ Articles 31bis and 73(b) TRIPS. See, e.g., Emmanuel Kolawole Oke, ‘Is the National Security Exception in the TRIPS Agreement a Realistic Option in Confronting COVID-19?’, EJIL: Talk! (6 August 2020), https://bit.ly/3OHPnQM. Reuters, ‘U.S. Says It Will Push COVID Vaccine Waivers, but “May Take Time”’ (11 June 2021), https://bit.ly/3OMmnrj. World Customs Organization, ‘List of National Legislation of Countries That Adopted Temporary Export Restrictions on Certain Categories of Critical Medical Supplies in Response to COVID-19’, https://bit.ly/3KNuGBQ. See, e.g., Siddharth S. Aatreya, ‘Are COVID-19 Related Trade Restrictions WTO-Consistent?’, EJIL: Talk! (25 April 2020), www.ejiltalk.org/are-covid-19-related-trade-restrictions-wto-consistent/. Timothy Meyer, ‘Trade Law and Supply Chain Regulation in a Post-COVID-19 World’ (2020) 114 AJIL, 637; Alan O. Sykes, ‘Short Supply Conditions and the Law of International Trade: Economic Lessons from the Pandemic’ (2020) 114 AJIL, 647.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

300

Qingjiang Kong and Shuai Guo

Last but not least, the WHO should collaborate with other international financial institutions to come up with financial support measures for worst-hit or less-prepared countries. For example, the International Monetary Fund (IMF) and the World Bank Group (WBG) provided emergency financial assistance,147 and the G20 countries promised a debt moratorium for poor countries.148 As mentioned earlier, China also promised USD 2 billion to support developing countries.149 Despite being a specialized organization for health, the WHO cannot focus only on health issues; it must also consider closely related economic concerns. The WHO, therefore, should cooperate with other international financial organizations to draft a framework that allows economic stimulus programmes. When facing a global pandemic, the WHO needs to consider all possible agendas to enhance global cooperation and coordination. On the bright side, actions were taken regarding Covid-19. On 31 May 2021, for instance, 194 members of the WHO, including China, adopted the decision to discuss a new international treaty on pandemics.150 On 1 December 2021, the WHO announced that it is in the process of drafting and negotiating a convention, agreement or other international instrument under the WHO Constitution to strengthen pandemic prevention, preparedness and response, and the agenda was set that a draft agreement is going to be finalized by May 2024 for consideration by the 77th WHA.151 An Intergovernmental Negotiating Body (INB), which has been established for this initiative, convened for the first time on 1 March 2022 to agree on working methods and deadlines.152 In its second meeting on 18–21 July 2022, INB members agreed that a new international instrument on pandemic prevention should be legally binding.153 The present draft treaty consists of six parts: (1) introduction; (2) objectives, principles and scope; (3) general obligations; (4) specific provisions/areas/elements/obligations; (5) institutional arrangements; and (6) final provisions, which are subject to future changes.154 As a member of the INB, China is actively involved in the treaty-making process. For instance, China emphasized that the treaty’s underlying principles should include the principle of science and evidence, the principle of solidarity and non-discrimination, and the principle of sovereignty that allow states to maintain their own public health policies; also, countries, regions and the international community should have their respective obligations.155 These endeavours show that global leaders are working towards more effective global health governance, which will enable countries around the globe to strengthen national, regional and global capacities, resilience and future pandemic preparedness.

147

148 149 150

151

152 153

154 155

IMF, ‘The IMF and COVID-19 (Coronavirus)’, www.imf.org/en/Topics/imf-and-covid19; WBG, ‘World Bank Group and COVID-19 (Coronavirus)’, www.worldbank.org/en/who-we-are/news/coronavirus-covid19. G20, ‘Communique´ G20 Finance Ministers and Central Bank Governors Meeting’ (15 April 2020). See supra note 110. See, e.g., the European Council, which adopted on 20 May 2021 a decision to support the launch of negotiations for an international treaty on the fight against pandemics within the framework of the WHO. Council of the European Union, ‘EU Supports Start of WHO Process for Establishment of Pandemic Treaty: Council Decision’ (20 May 2021), https://bit.ly/3qDyoai. See also ‘U.S., China Positive on Pandemic Treaty Ideal WHO’s Tedros’, Reuters (30 March 2021), www.reuters.com/article/us-health-coronavirus-treaty-members-idUSKBN2BM10T. WHO, ‘World Health Assembly Agrees to Launch Process to Develop Historic Global Accord on Pandemic Prevention, Preparedness and Response’ (1 December 2021), https://bit.ly/45zkF2Z. Ibid. WHO, ‘Pandemic Instrument Should Be Legally Binding, INB Meeting Concludes’ (21 July 2022), www.who.int/news/ item/21-07-2022-pandemic-instrument-should-be-legally-binding–inb-meeting-concludes. The draft treaty can be viewed at https://apps.who.int/gb/inb/pdf_files/inb2/A_INB2_3-en.pdf. See the live broadcast of the INB meeting at https://apps.who.int/gb/inb/e/e_inb-2.html.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

14 China and Global Health Law

301

14.5 CONCLUSION

In a time of crisis, nations are supposed to work together to overcome the difficulties and to restrain from blaming each other. The purpose of establishing the WHO is ‘the attainment by all peoples of the highest possible level of health’,156 and that is ‘dependent upon the fullest cooperation of individuals and States’.157 It is of vital importance to investigate the source of the Covid-19 pandemic and the mechanism failures, so that any future pandemic can be contained at an earlier stage, building on the cooperation of the whole international community. Humankind has faced a crisis that affected everyone. As China has been advocating in various international forums, cooperation is the key to future healing, restoration and prosperity. Cooperation in the health sector also reflects China’s position on a CSFM.158 What the international community needs right now is solidarity. What the international legal community can do is to promote global cooperation and help build a more resilient global health governance. China’s shift from being a passive rule-taker to being an active rule-maker signifies its aspiration for an entrepreneurial role. In the international health field, China has demonstrated its support for the leadership of the WHO and continuous international cooperation in the future. The detailed international rules, however, are not clear at the time of writing this chapter. It is certain that, with or without China’s support, there is still a long way to go before a binding international treaty is in place.

156 157 158

Article 1 WHO Constitution. Preamble WHO Constitution. Refer to Chapter 3 in this volume.

https://doi.org/10.1017/9781009041133.016 Published online by Cambridge University Press

15 China and International Humanitarian Law Binxin Zhang

15.1 INTRODUCTION

China’s engagements with international humanitarian law (IHL) started in the late nineteenth century, when IHL was at its inception and China was caught in the turmoil of wars – sometimes wars to which it was not even a party but were nonetheless fought on its soil. It should be noted, however, that China has a rich tradition of regulating wars, with ancient Chinese thinkers of the Spring and Autumn and the Warring States periods (771–221 BC) widely writing on principles and rules concerning wars, many of which closely parallel elements of IHL. With not harming innocent people a basic principle, the rules mirroring the modern notion of protecting civilians and civilian property include prohibitions on enslaving people, disturbing graves, scorching grains, destroying property, stealing domestic animals, hurting the elderly or the very young when entering an offender’s territory, and treating adults as enemies unless they engage in combat. There are also norms mirroring the protections for the wounded and the sick, and specifying that those who surrender should be treated with benevolence and righteousness. Rules on the conduct of hostilities include the requirement to observe proprieties on the battlefield and the prohibition of pillage.1 Liang argued that a special feature of the Chinese ancient tradition concerning wars is that the norms of jus in bello were inseparable from jus ad bellum, that the former were part of the constituent elements of just war. The violation of the former would render the war itself unjust, even though its cause was well-founded to begin with. According to Liang, this tradition is still reflected in contemporary Chinese military thinking and China’s approaches to IHL.2 On that note, this chapter nevertheless focusses on China’s engagement with IHL in its modern sense. Section 15.2 looks back to the late Qing dynasty till the early decades of the People’s Republic of China (PRC). Section 15.3 examines China’s contemporary IHL practices, including China’s participation in IHL treaties, its domestic legislations, its IHL training and education, as well as its participation in international rule-making processes. Section 15.4 focusses on developments of new technologies, which have called into question the applicability, relevance and sufficiency of IHL. As IHL is in the process of being adapted, (re)interpreted and expanded, China is seeking to play a more active role in these processes. The chapter concludes in Section 15.5 with a reflection on China’s changing role and perspectives on its likely future engagements with IHL.

1

2

Zhuo Liang, ‘Chinese Perspectives on the ad bellum/in bello Relationship and a Cultural Critique of the ad bellum/ in bello Separation in International Humanitarian Law’ (2021) 34 Leiden Journal of International Law, 299–300. Ibid., at 302–4.

302 https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

303

15.2 HISTORICAL ENGAGEMENTS

This section offers a brief overview of China’s engagements with IHL from the late Qing dynasty up until China’s reform and opening-up era in the late 1970s. 15.2.1 The Turn of the Twentieth Century: The ‘Encounter’ with IHL The late Qing dynasty marks the ‘encounter’ of China and international law.3 At this time of foreign invasion, it was of little surprise that China’s initial encounter with and understanding of international law had a notable focus on international rules governing warfare. The Shanghaibased English language newspaper North China Daily News introduced the 1864 Geneva Convention and the work of the International Committee of the Red Cross (ICRC) as early as 1874. The article was later translated to Chinese and published by Shun Pao, considered the most influential newspaper in China at that time.4 In February 1904, the Russo–Japanese War broke out in Manchuria. As the war was fought mainly on Chinese soil, both the Qing government and the public attempted to provide aid or evacuate Chinese nationals.5 The Qing government approached nationals and delegates of the UK, the United States, France and Germany, and established a ‘Shanghai International Red Cross Society’, the work of which was mainly organized and carried out by the Chinese side, but it had the support of the other four countries so that it could be accepted by Russia and Japan.6 At the same time, the Qing government started the procedure to ratify the Geneva Convention, and became a state party in July 1904. In 1907, the Shanghai International Red Cross Society was dissolved and an independent Chinese Red Cross Society was established.7 The Qing government participated in the 1899 and 1907 Hague Conferences. During the 1899 Conference, the Qing government decided to ratify two of the treaties of the 1899 Hague Convention and all three declarations.8 As the Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention was in essence an extension of the 1864 Geneva Convention but applicable to maritime warfare, the Qing government also decided to ratify the Geneva Convention. But the work was delayed owing to the outbreak of the Boxer Rebellion in 1900, and the ratification was carried out only in 1904.9 Apart from the activities of the Red Cross Society, China’s first application of IHL concerned the treatment of prisoners of war (POWs). During World War I, large numbers of German and Austrian-Hungarian POWs were detained in Siberia. The Red Cross Societies of Germany, 3

4

5

6 7 8

9

‘Encounter’ is itself a dubious concept as it is a combination of selected moments and events in constructed historical narratives, rather than an ‘objective’ historical occurrence as often claimed by such narratives. For an analysis of the different narratives of this ‘encounter’, see Jean d’Aspremont and Binxin Zhang, ‘China and International Law: Two Tales of an Encounter’ (2021) 34 Leiden Journal of International Law, 899–914. 袁灿兴 : 《国际人道法在华传播与实践研究 (1874–1949) 》, 苏州大学博士学位论文, 2014, 第38页 [Yuan Canxing, ‘The Dissemination and Practice of IHL in China, 1874–1949’, Doctoral Dissertation, Suzhou University, 2014, at 38]. 王义茗、缪露、李璐: 《中国红十字会与中国国际人道法实践》, 《中国卫生法制》, 2020年9月, 第28卷第5期, 第7–10页, 见第8页 [ Wang Yiming, Miao Lu and Li Lu, ‘The Red Cross Society of China and China’s Practice of IHL’ (2020) 28 China Health Law, 7–10, at 8]. Ibid. Ibid., at 47. What is commonly referred to as the Hague Convention of 1899 consists of three treaties and three declarations. The Qing government decided to ratify the Convention for the Pacific Settlement of International Disputes and the Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864. It refrained from signing the Convention with respect to the Laws and Customs of War on Land, which was later ratified by the Republic of China in 1917. Yuan, ‘The Dissemination and Practice of IHL in China’, supra note 4, at 55–6.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

304

Binxin Zhang

Austria-Hungary, the United States and Sweden purchased supplies for these POWs in China to transport to Siberia, as China was closer to Siberia and there was a railway from Manchuria to Siberia, and also because China was a neutral state for most of the war.10 China exempted these supplies from customs in accordance with relevant IHL conventions and charged half the price for the transportation.11 The same policy was applied to supplies for German POWs in Japan.12 During the Siege of Qingdao, some German soldiers chose to surrender to China.13 There were also some German and Austrian POWs who escaped from Siberia and ended up in the north-eastern part of China.14 As a neutral power, China refused Russia’s request to return the POWs, invoking the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land.15 As the number of escaped POWs kept increasing, three POW camps were established in Jilin, Longjiang and Hailun from 1916 to 1917.16 After joining the Allied Powers in 1917, China disarmed German and Austrian armies in Beijing and Tianjin, and established altogether 8 POW camps all over China, detaining a total number of 1,033 POWs from Germany, Austria-Hungary and the Ottoman Empire.17 China promulgated regulations on the treatment, management and punishment of POWs according to the provisions of relevant conventions.18 The treatment of POWs was particularly good. For example, the standard food supply for one POW was tantamount to more than half of the food expenses of a middle-level family of four in Beijing. Apart from basic food supplies, alcohol, coffee, fruits, sugar and so on were also available, and Western food was provided to accommodate the taste of the POWs.19 Further, POWs were given wages according to Article 17 of the Hague Convention (IV) on War on Land; medical care was provided, and the right of correspondence was guaranteed according to relevant rules.20 15.2.2 The Second Sino–Japanese War and Its Aftermath The Second Sino–Japanese war broke out in July 1937. During a large part of the war, the Nationalist government only half-heartedly engaged in the resistance against the Japanese invasion, as Chiang Kai-shek considered the Chinese Communist Party (CCP) his major enemy regardless of the Guomingdang (GMD)-CCP United Front against Japan.21 Nevertheless, the Nationalists were still the major resistance force, while the CCP engaged mainly in guerrilla warfare, especially after the Japanese ‘three all’ (‘kill all, loot all, burn all’) campaign that devastated the CCP’s base areas in the northern plains.22 After the surrender of Japan, ten military tribunals were established across China to conduct war crimes trials. One of the major trials was that of Tani Hisao, by the Nanjing War Crimes 10 11 12 13 14 15 16 17 18 19 20 21 22

Ibid., at 102. Ibid., at 102–3. Ibid., at 103. Ibid., at 111. Ibid., at 111–12. Ibid., at 112. Ibid., at 114. Ibid., at 114–15. Ibid., at 116–17. Ibid., at 117. Ibid., at 118–19. Bruce A. Elleman, Modern Chinese Warfare, 1795–1989 (London: Routledge, 2001), 194–5, 208. Lyman Van Slyke, ‘The Chinese Communist Movement During the Sino–Japanese War 1937–1945’ in John K. Fairbank and Albert Feuerwerker (eds.), The Cambridge History of China, Vol. 13: Republican China 1912– 1949, Part 2, 609–722 (Cambridge: Cambridge University Press, 1986), at 679.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

305

Tribunal (Nanjing Tribunal). Tani Hisao was convicted for his involvement in the infamous Nanjing Massacre. The trial was conducted according to the Law Governing the Trial of War Criminals, promulgated in 1946, and adhered to the rules and procedures as established by domestic law and international practices at that time.23 Nevertheless, the Nationalist trials were conducted in great haste faced with an imminent civil war. Almost immediately after the surrender of Japan, Chiang Kai-Shek delivered a speech in which he announced what became known as the ‘magnanimous’ policy or the policy of ‘to repay hatred with kindness’.24 According to this policy, the Nationalist government quickly repatriated Japanese POWs. But it also meant, in relation to the trials, that while the ‘most important Japanese war criminals’ were to be tried and punished, for other suspects, ‘leniency and promptness’ was to be the guiding principle.25 Thus, many of the worst atrocities committed by the Japanese during the war were not investigated and prosecuted, including the use of chemical weapons, biological experiments on Chinese POWs and civilians, issues of ‘comfort women’, forced labour and so on.26 Moreover, the Nationalist government was not able to conduct investigations in CCP-controlled areas, including the rural areas in the northern plains where appalling atrocities against civilians happened under the ‘three all’ campaign.27 This policy of leniency with respect to war criminals was heavily criticized by the CCP. Interestingly, in the 1950s, when the CCP itself had the opportunity to conduct war crimes trials, it also adopted a policy of leniency. In 1950, the Soviet Union transferred to China 969 Japanese internees28 that it had captured in the north-eastern part of China. The trials took place in 1956. Before that, the Japanese internees were kept in the Fushun war criminals management centre and received an intense campaign of ‘re-education’, with the purpose of turning them from enemies to ‘friends’ and ‘messengers’ that could ‘say some good words’ about China and the CCP when they returned to Japan.29 For that purpose, internees received good treatment. The living conditions of the internees were even better than the staff at the management centre and ordinary Chinese families at that time.30 The CCP’s re-education campaign has attracted some

23

24

25

26 27

28

29 30

For a detailed discussion of the case and its compliance with relevant legal standards, see Daqun Liu, ‘The Nanjing Trials – Victor’s Justice? Revisiting the Case of Tani Hisao’ in Daqun Liu and Binxin Zhang (eds.), Historical War Crimes Trials in Asia, 113–51 (Brussels: Torkel Opsahl Academic EPublisher, 2016). 袁成毅 : 《战后蒋介石对日“以德报怨”政策的几个问题》, 《抗日战争研究》, 2006年第1期, 第210–31页, 见第 212页 [ Yuan Chengyi, ‘Several Issues concerning Chiang Kai-shek’s “Magnanimous” Policy Towards Japan after the War’ (2006) 1 War of Resistance against Japanese Aggression Study, 210–31, at 212]. Binxin Zhang, ‘War Crimes Trials in China after the Second World War: Justice and Politics’ in Daqun Liu and Binxin Zhang (eds.), Historical War Crimes Trials in Asia, 231–49 (Brussels: Torkel Opsahl Academic EPublisher, 2016), at 239. Liu, ‘The Nanjing Trials’, supra note 23, at 148. 刘统 : 《国民政府审判日本战犯概述 (1945–1949) 》, 《民国档案》, 2014年1月, 第76页 [Liu Tong, ‘Overview of the Trials of Japanese War Criminals by the Guomingdang Government, 1945–1949’ (January 2014) Republic of China Archives, 72–84, at 76)]. I use the term ‘internee’ instead of ‘POW’ because the status of these people is unclear. While some were soldiers of the Japanese Guandongjun army that surrendered to the Soviet Union after the end of the war, others were members of the Kempeitai, or armed police, that policed the Japanese occupied territory before the breakout of the war. Zhang, ‘War Crimes Trials in China’, supra note 25, at 243–4. 李鑫 : 《人权视角论中国政府对日本战犯的改造审判》, 《日本侵华史研究》, 2016年第1卷, 第81–8页, 见第82 页 [Li Xin, ‘The Transformation and Trial of Japanese War Criminals: from a Human Rights Perspective’ (2016) 1 Japanese Invasion of China History Research, 81–8, at 82]; 郭晓敏 : 《抚顺战犯管理所对日本战犯的改造措施述 评》, 《文史博览 (理论) 》, 2015年9月, 第24–6页, 见第25页 [Guo Xiaomin, ‘Commentary on the Measures of Transformation of Japanese War Criminals at Fushun War Criminals Management Centre’ (September 2015) Culture and History Vision (Theory), 24–6, at 25].

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

306

Binxin Zhang

controversy. While its ideological indoctrination is sometimes criticized as ‘brainwashing’, some commentators recognize its positive effect and see it as an example of restorative justice.31 15.2.3 The Civil War The GMD-CCP United Front against Japan hardly ever worked, as epitomized by the ‘New 4th Army Incident’ of January 1941, when the Nationalist and CCP forces clashed. When Japan surrendered, the People’s Liberation Army (PLA) quickly seized the large areas of northern China as they disarmed Japanese units and obtained Japanese weapons.32 By that time, the PLA had undergone a fundamental transformation from an irregular military force to a disciplined regular army with seasoned officers and modern Japanese weapons, and was to obtain more modern ordnance from the Nationalist Army.33 When Lin Biao’s Northeast PLA fought in Manchuria, which became the first region to fall under full CCP control, he was fighting a conventional war, rather than a guerrilla-style people’s war. What remained of the people’s war tradition, however, was that the CCP relied upon a broad popular base. The war effort went hand in hand with revolution, and the latter nourished the former because it created the popular base that then provided manpower and supplies to the war effort.34 This strategy that led to CCP success in the north-east thus reflects the tradition of the CCP forces of relying on popular support way before the breakout of the civil war. For example, a wellknown military doctrine of the Red Army, the Three Rules of Discipline and Eight Points for Attention (‘the Three Rules’), first appeared as early as 1920, even though the exact content went through many changes.35 During the civil war, Mao Zedong reissued the Three Rules as a formal military directive in 1947. The rules included respect for civilians and civilian property, and prohibition of maltreatment of captured enemy soldiers.36 In 1948, when the PLA defeated the Nationalist Army and entered Shenyang, the US Consul General reported to Washington the ‘outstanding characteristics of troops’, acting with perfect discipline towards the civilian population, quickly restoring order in the city, putting an end to looting and ‘making food available to populace which has been hungry for months’ with controlled prices.37 15.2.4 The PRC’s Wars: The Korean War, the Sino–Indian War and the Sino– Vietnamese War The Korean War was the first time the PRC’s armed forces engaged in large-scale military operations outside of China, with extremely difficult conditions that involved fighting the best 31

32 33

34 35

36

37

朱力宇、熊侃: 《新中国处理日本战犯的成功经验及中国对国际人权事业的重要贡献 – 过渡司法的视角》, 《中共中央党校学报》, 2015年10月, 第19卷第5期 [Zhu Liyu and Xiong Kan, ‘A Study on the Disposition of Japanese War Criminals in the Early Years of New China and China’s Contribution to the International Human Rights Undertaking: from the Perspective of Transitional Justice’ (2015) 19 Journal of the Party School of the Central Committee of the C.P.C., 13–19]. Elleman, Modern Chinese Warfare, supra note 21, at 222. Steven I. Levine, Anvil of Victory: The Communist Revolution in Manchuria, 1945–1948 (New York: Columbia University Press), 127–8. Ibid., at 125–8. 武艳, 《党的纪律建设的实践启示与创新 – 基于“三大纪律八项注意”的研究》, 《西部学刊》2022年11月下半月 刊 (总第175期) [Wu Yan, ‘Practices, Inspirations and Innovations of the Party’s Discipline Construction: A Research Based on the “Three Rules of Disciplines and Eight Points of Attention”’ (November 2022) 175 Journal of Western, 5–8, at 5]. Selected Works of Mao Zedong, vol. 4, online version, www.marxists.org/chinese/maozedong/marxist.org-chinesemao-19471010a.htm. US Department of State, Foreign Relations of the United States, 1948, The Far East: China, Volume VII, at 571–2, https://history.state.gov/historicaldocuments/frus1948v07/d467.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

307

militaries in the world with its foot soldiers and obsolete weaponry, often in acute shortage of supplies, especially in the early stages of the war. Thus, the Chinese saw it as a success when they managed to drive the United Nations (UN) forces out of northern Korea and were ready for negotiation. The issue of the POWs, however, became ‘the deadliest stalemate of the negotiations’, as the UN proposed a voluntary repatriation of POWs, while China and North Korea insisted on the return of all POWs.38 Treatment of the POWs also raised controversy. In China, narratives on the Korean War tended to boast about China’s ‘tolerance and leniency’ towards POWs in line with the PLA’s tradition of treating POWs humanely.39 In the West, however, it was the most gruesome stories that attracted the most attention even though some POWs attested that they had been fairly treated, experiencing ‘no “rough stuff” and a diet only as poor as their captors’.40 What is of little dispute is that the Chinese, following a long tradition of ‘thought reform’, performed ‘education campaigns’ similar to those carried out on the Japanese POWs after World War II on the POWs of the Korean War. Another big controversy during the Korean War was the Chinese allegations that the United States used biological weapons against Chinese troops and Korean civilians. An International Scientific Commission confirmed the allegations and suggested a link to the notorious Japanese Unit 731, a biological and chemical warfare research and development unit during the Second Sino–Japanese War.41 The United States denied these allegations, and scholars and historians continue to debate the issue.42 Both the Sino–Indian War and the Sino–Vietnamese War were brief in time, lasting less than one month. While China was quickly successful in gaining its objectives during the Sino–Indian War, the Sino–Vietnamese War has been perceived as a military failure of the PLA.43 The PLA suffered from tactical problems as well as heavy casualties, poor communication between regiments and logistical problems.44 Although details are lacking, accounts of former officers show that there were some procedures of discipline in place in the PLA against violations of civilian property. On one occasion, four PLA soldiers were disciplined for robbing a store and filling their tanks with jewellery, watches and other luxury goods.45 15.3 CONTEMPORARY PRACTICES

This section reviews China’s contemporary practices relating to IHL. After a general overview of international treaties to which China is a party, as well as China’s national legislations, IHL 38

39

40

41

42

43 44

45

Veterans of Foreign Wars, Pictorial History of the Korean War: 1950–1953; Ridgway and Clark Report, Memorial ed. (United States: Veterans’ Historical Book Service, Inc., 1954), 381. 刘小花 : 《抗美援朝战争中的两封美军家书》, 《炎黄春秋》, 2022年第4期, 第30-33页 [Liu Xiaohua, ‘Two Letters of American Soldiers to Their Family During the Korean War’ (2022) 4 Yanhuang Chunqiu, 30–3]; 鲍明荣 : 《中国人民 志愿军在抗美援朝战争中的战俘政策》, 《军事历史》, 2001年第6期, 第11–19页 [Bao Mingrong, ‘POW Policies of the Chinese People’s Volunteer Army During the Korean War’ (2001) 6 Military History, 11–19]. Susan Carruthers, Cold War Captives: Imprisonment, Escape, and Brainwashing (Berkeley: University of California Press, 2009), 191–4. Report of the International Scientific Commission for the Investigation of the Facts Concerning Bacterial Warfare in Korea and China, 1952, www.documentcloud.org/documents/4334133-ISC-Full-Report-Pub-Copy.html. For more discussion on the allegations and related disputes, see Shiwei Chen, ‘History of Three Mobilizations: A Reexamination of the Chinese Biological Warfare Allegations against the United States in the Korean War’ (2009) 16(3) Journal of American-East Asian Relations, 213–47. Elleman, Modern Chinese Warfare, supra note 21, at 285. Henry J. Kenny, ‘Vietnamese Perceptions of the 1979 War with China’ in Mark A. Ryan, David M. Finkelstein and Michael A. McDevitt (eds.), Chinese Warfighting: The PLA Experience Since 1949, 217–40 (Abingdon: Routledge, 2003), 231. Xiaobing Li, A History of the Modern Chinese Army (Lexington: University Press of Kentucky, 2007), 258.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

308

Binxin Zhang

training and education, and positions on specific IHL issues, the section looks at China’s participation in IHL-related international rule-making. 15.3.1 General Overview 15.3.1.1 International Treaties China is a party to most of the major IHL treaties, including the four Geneva Conventions of 1949 and their two Additional Protocols of 1977; major treaties on methods and means of warfare, such as the Convention on the Prohibition of Biological Weapons, the Convention Prohibiting Chemical Weapons, the Convention Prohibiting Certain Conventional Weapons (CCW) and its five protocols; and other IHL-related treaties like the Optional Protocol on the Involvement of Children in Armed Conflict and the Arms Trade Treaty (ATT). There are some important treaties to which China is not yet a party, notably the Anti-Personnel Mine Ban Convention (Mine Ban Convention) and the Convention on Cluster Munitions (CCM), a point that will be further discussed in Section 15.3.2.1. The ICRC was at the forefront of revising the Geneva Conventions; its push for revision was directly informed by the experiences of World War II, which were fresh in mind. In its campaign, the ICRC first guaranteed support from the major powers, including China.46 China, at the time represented by the Nationalist government, participated actively in the Diplomatic Conference in 1949. Interventions by the Chinese representatives were often informed by their experiences of the recent war. For example, the Chinese delegation insisted that a point concerning ‘all other means of exterminating the civilian population’ should be added to the draft Article 29 of the Convention on Protection of Civilians, which now became Article 32 of Geneva Convention IV on prohibition of corporal punishment, torture and other measures of brutality. In his interventions on this point, Chinese representative Nan-Ju Wu raised as examples Japan’s wartime practices of forcing the Chinese civilian population to plant poppies and compelling them to smoke opium, and of poisoning the civilian population by putting poison in the wells.47 The Chinese delegation opposed the application of the conventions in their entirety to non-international armed conflicts, which is unsurprising given the domestic situation of an imminent civil war.48 In the decades that followed World War II and the adoption of the four Geneva Conventions, the process of decolonization and the wars of self-determination changed the face of warfare and created a different international political arena where newly independent states gained unprecedented influence. The ICRC, again leading the movement for revisiting the treaty rules of IHL in response to these changes, convened conferences of government experts in 1971 and 1972 to consider what new rules of IHL were needed. The 1971 conference invited only some forty governments, including the PRC, which declined the invitation, while ‘expressing its interest in the work undertaken’.49 Criticized for its limited invitation, the ICRC opened the conference to 46

47

48 49

Giovanni Mantilla, ‘The Origins and Evolution of the 1949 Geneva Conventions and the 1977 Additional Protocols’ in Matthew Evangelista and Nina Tannenwald (eds.), Do the Geneva Conventions Matter?, 35–68 (New York: Oxford University Press, 2017), 38–9. Confe´rence diplomatique 1949: ste´nogrammes de la Commission III, tome III, 30e`me se´ance du 15 juin 1949 a` 15h, at 22. Confe´rence diplomatique 1949: ste´nogrammes de la Commission mixte, 2e`me se´ance du 27 avril 1949 a` 10h. ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 24 May–12 June 1971): Report on the Work of the Conference, Geneva, August 1971, at 18.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

309

all states in 1972,50 but China still did not send any representative.51 In 1974, the Swiss government summoned a Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which met on four occasions between 1974 and 1977 and adopted the two Additional Protocols in 1977. China participated only in the first session, but nevertheless expressed continued interest and requested to be kept informed.52 In the first session, Chinese representatives had a series of exchanges with the Soviet representatives on nuclear disarmament, each claiming to be in favour of the prohibition of nuclear weapons and accusing the other of blocking such efforts.53 15.3.1.2 Domestic Legislations In terms of domestic legislations, state parties to the Geneva Conventions are legally bound to enact any legislation necessary to provide effective penal sanctions for grave breaches.54 The Chinese Criminal Law does not have specific provisions on war crimes, but it contains a chapter on ‘crimes of military personnel breaching their duties’, which includes several articles that might cover war crimes. Article 446 criminalizes the act of ‘cruelly injuring innocent residents or looting innocent residents’ money or property in areas of military actions during war time’. Article 448 criminalizes the act of torturing POWs. Obviously, these provisions do not cover all the grave breaches. Moreover, they apply only to ‘military personnel’, defined as ‘active-duty military officers, civilian cadres, soldiers, and cadets with military status of the Chinese People’s Liberation Army; active-duty military officers, civilian cadres, soldiers, and cadets with military status in the Chinese People’s Armed Police; and personnel of the reserve force and other personnel carrying out military tasks’.55 Article 446 requires that the crime happened ‘in areas of military actions’. This is stricter than the existence of a nexus between the armed conflict and the criminal act as established by international criminal jurisprudence in terms of war crimes.56 Other domestic legislations that contain IHL-related provisions include the Emblem Regulations of the PRC, promulgated in 1996 by the State Council and the Central Military Committee. The Law of Red Cross Society, promulgated in 1993 and revised in 2017, also contains provisions on the use of the red cross emblem. 15.3.1.3 IHL Education and Training In November 2007, China established the National Committee on IHL.57 China has reported that the National Committee has supported the dissemination and implementation of IHL in 50

51

52

53 54

55 56

57

Judith Gardam, ‘Additional Protocols to the Geneva Conventions, Introductory Note’, UN Audiovisual Library of International Law, https://legal.un.org/avl/ha/pagc/pagc.html. For a list of participants, see ICRC, Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Second Session, Geneva, 3 May–3 June 1972): Report on the Work of the Conference, Geneva, July 1972, pp. 9–21. Federal Political Department of Switzerland, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1974–1977 (Bern: Federal Political Department, 1978), vol. 1, at 5; vol. 5, at 269, 371. Ibid., vol. 5, at 122, 208–9. Geneva Convention (I), Art. 49; Geneva Convention (II), Art. 50; Geneva Convention (III), Art. 129; Geneva Convention (IV), Art. 146. Criminal Law of the PRC, Art. 450. Knut Do¨rmann, Louise Doswald-Beck and Robert Kolb, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge: Cambridge University Press, 2003), 26–8. 中华人民共和国关于《儿童权利公约关于儿童卷入武装冲突问题的任择议定书》执行情况的首期报告 [PRC’s First Report on the Implementation of the Optional Protocol to the Convention on the Rights of the Child on

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

310

Binxin Zhang

the military, that study resources on IHL have been produced and disseminated in the military and that IHL has been incorporated in military training and exams.58 Further, IHL and other international rules have become part of the PLA’s legal training since 1986.59 The Chinese Red Cross Society, sometimes in cooperation with the ICRC East Asia Delegation, conducts IHL training and education for its own staff and medical personnel, as well as among youths.60 China has stated that it ‘has translated the provisions of IHL into domestic military laws, regulations, administrative instructions and code of conduct in combat which are binding to all the military units and personnel’.61 However, the military manuals and rules of engagement of the PLA are not available in public sources, although internal rules might exist.62 It is thus difficult to know whether and how exactly these rules have incorporated IHL rules and principles. As the PLA lacks practical experience with IHL, IHL training in the PLA has been criticized for focussing on theories and rules ‘on paper’ while lacking operationality.63 Moreover, there is a lack of expertise and experience in relation to IHL. In the PLA, there are not enough military lawyers and the military lawyers that do exist are more familiar with domestic law and lack knowledge of IHL.64 15.3.1.4 Positions on Specific Issues As China has not been involved in any armed conflict for decades, and the military manuals and rules of engagement of the PLA are not available in public sources, it is difficult to assess China’s positions on specific IHL issues. China expresses its positions only occasionally. Notably, China raised an IHL-related objection when voting against the adoption of the Statute of the International Criminal Court (Rome Statute), namely ‘the inclusion of domestic armed conflicts under the Court’s jurisdiction within the definition of war crimes’, the scope of which China considered far exceeding ‘not only customary international law but also the provisions of Additional Protocol II’.65 In the region, one area that entails risks of escalation is naval activities, which have been intensifying in recent years, with tensions between China and Japan remaining high and China’s military exercises increasing in number and scale.66 In 2022, Pelosi’s visit to Taiwan provoked the largest-ever Chinese military exercises around Taiwan. The United States has long claimed that China uses maritime militia to conduct grey zone activities. The People’s Armed Forces Maritime Militia (PAFMM), according to the United States,

58 59

60 61

62 63

64 65

66

the Involvement of Children in Armed Conflict], www.fmprc.gov.cn/web/ziliao_674904/tytj_674911/tyfg_674913/ t812061.shtml, para. 23. Ibid., paras. 24–5. Wang Wenjuan, trans. by Kelly Chen, ‘The PLA and International Humanitarian Law: Achievements and Challenges’, Institute for Security & Development Policy, Asia Paper (October 2013), 16–17. Wang, Miao and Li, ‘The Red Cross Society of China’, supra note 5, at 9. Statement by the Chinese Delegation on China’s Implementation of Relevant International Humanitarian Law Principles at the 12th Session of CCW GGE, November 15, 2005. Wang, ‘The PLA and International Humanitarian Law’, supra note 59, at 24. 徐新、王文娟 : 《加强武装冲突法的传播与实施》, 《中国社会科学报》, 2013年1月23日, 第B01版 [Xu Xin and Wang Wenjuan, ‘Strengthen the Dissemination and Implementation of the Law of Armed Conflict’, Chinese Social Sciences Today (23 January 2013), B01]. Wang, ‘The PLA and International Humanitarian Law’, supra note 59, at 26. Statement by Mr Qu Wensheng, in Sixth Committee, Summary Record of the 9th Meeting, UN Doc. A/C.6/53/ SR.9, 4 November 1998, para. 36. For more information on recent naval activities in the region, see Ian Anthony, Fei Su and Lora Saalman, ‘Naval Incident Management in Europe, East Asia and South East Asia’ (March 2023) 2023/03 SIPRI Insights on Peace and Security.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

311

is the only government-sanctioned maritime militia in the world; the PAFMM, the PLA Navy and the China Coast Guard (CCG) together form the largest maritime force in the Indo-Pacific.67 The United States asserts that the PAFMM has played significant roles in a number of high-profile military campaigns and incidents over the years, including the 2009 USNS Impeccable incident, the 2012 Scarborough Reef stand-off, the 2014 Haiyang Shiyou-981 oil rig stand-off and so on.68 In 2021, the presence of around 220 Chinese vessels at the Whitsun Reef prompted a diplomatic protest from the Philippines. 69 China, on the other hand, denied that these vessels belonged to its militia, called them ‘fishing boats sheltering from the wind at Niu’e Jiao [the Chinese name of the Whitsun Reef]’.70 These differences might raise legal issues in terms of the status of the vessels and personnel involved. While China might see them as civilians and civilian vessels, John Richardson, then head of the US Navy, asserted in 2019 that the United States would not treat the CCG or the PAFMM differently from the Chinese Navy.71 15.3.2 Participation in IHL-Related Rule-Making Besides China’s adhering to existing IHL treaties, its participation in IHL-related rulemaking is also an important aspect to look at when it comes to the history of China’s involvement with IHL. China generally favours a consensus-based approach to multilateral treaty negotiation. Overall, it seems to have become more active and constructive in international rule-making processes. Moreover, rule-making does not end at the time when a treaty is concluded. China’s accession to the ATT, for example, provides an opportunity for it to influence the ways in which ATT provisions will be interpreted and implemented in the future. 15.3.2.1 Preference for a Consensus-Based Approach As mentioned in Section 15.3.1.1, China has not yet signed the Mine Ban Convention and the CCM, stating that although it supports their goals and principles, it is not yet in a position to join them for ‘national defence needs’.72 Neither did China participate in the Ottawa Process or the Oslo Process. Apart from substantive concerns, one reason for China’s reluctance to participate 67

68 69

70

71

72

US DoD, Office of the Secretary of Defense, Annual Report to Congress: Military and Security Developments Involving the People’s Republic of China 2018, at 16, 71. Ibid., at 72. Andrew Erickson, ‘China’s Secretive Maritime Militia May Be Gathering at Whitsun Reef’, Foreign Policy (22 March 2021), https://foreignpolicy.com/2021/03/22/china-philippines-militia-whitsun/. Foreign Ministry Spokesperson Zhao Lijian’s Regular Press Conference on 6 April 2021, www.fmprc.gov.cn /mfa_eng/xwfw_665399/s2510_665401/2511_665403/202104/t20210406_9170720.html. Demetri Sevastopulo and Kathrin Hille, ‘US Warns China on Aggressive Acts by Fishing Boats and Coast Guard’, Financial Times (28 April 2019). 中国观察员代表团在《渥太华禁雷公约》第17次缔约国会议上的发言 [Statement of China at the Seventeenth Meeting of the Mine Ban Treaty States Parties), Geneva, 26 November 2018], www.apminebanconvention.org /fileadmin/APMBC/MSP/17MSP/Day_1_statements/7-gev-China-26Nov2018.pdf; Statement at the Third Review Conference of the Anti-Personnel Mine Ban Convention by Madame Dong Zhihua, Counsellor, Dept of Arms Control and Disarmament, MFA, China, Maputo, 26 June 2014, www.maputoreviewconference.org/fileadmin/ APMBC-RC3/friday/13_HIGH_LEVEL_SEGMENT_-_China.pdf; Statement at the Fifth Meeting of State Parties to the CCM by Mr Wang Hongqiang, San Jose, Costa Rica, 2 September 2014, www.clusterconvention.org /files/2014/09/China.pdf; 中国观察员代表团在《集束弹药公约》第七次缔约国大会上的发言 [Statement of China at the Seventh Meeting of CCM States Parties, Geneva, 4 September 2017], www.clusterconvention.org/wpcontent/uploads/2017/02/China.pdf.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

312

Binxin Zhang

is because it is generally not very enthusiastic about rule-making initiatives outside of the Conference of Disarmament (CD) or the CCW framework. In terms of cluster munitions, for example, China supported efforts to create a new CCW protocol.73 China elaborated on this position more clearly during the ATT process. In 2008, China expressed concerns about negotiating a disarmament treaty outside the CD, warning that doing so might ‘undermine the authority and function of the CD as the sole negotiation organisation of multilateral arms control’.74 Although China supported the treaty text in both the Diplomatic Conferences in 2012 and 2013, it abstained in the voting of United Nations General Assembly (UNGA) Resolution 67/234B, which adopted the final treaty text. When explaining the vote, the Chinese representative raised no substantive objections concerning the treaty text, but stated that ‘China would support a treaty reached through consensus. China is not in favour of pushing through a multilateral arms control treaty at the General Assembly . . . We are very concerned about the possible negative precedent for multilateral arms control negotiations. We should insist on negotiating to reach a treaty acceptable to all parties through consensus.’75 But it seems that this concern goes beyond multilateral arms control negotiations. In 1998, China likewise regretted that the Rome Statute was adopted by vote but not consensus.76 Nevertheless, divergent from its non-participation in the Ottawa and Oslo processes, China did participate in the ATT process. In the beginning of the ATT process, China was sceptical about the necessity of having such a treaty and how to reconcile it with existing norms on different levels.77 It abstained from the voting of Resolution 61/89, but still participated in all the activities listed in the Resolution and submitted its opinions to the Secretary General. This might have to do with the fact that the ATT process happened under UN auspices, but it might also be a sign that China did not want to miss once again the opportunity to participate in an important arms control treaty. China’s attitude changed more significantly from 2010 onwards, from scepticism into active participation, from questioning whether an arms trade treaty was necessary to participating in discussions on the specific content and provisions of such a treaty.78 During the second Preparatory Committee session in 2011, China proposed specific provisions concerning the standards of transfer risk assessment, in accordance with its policy considerations as well as its domestic legislations.79 It should be mentioned that despite being a non-state party, China attended all the Mine Ban Convention’s Review Conferences held in 2004, 2009, 2014 and 2019, as well as most of the treaty’s Meetings of State Parties and many inter-sessional meetings held in Geneva.80 Similarly, 73

74

75

76 77

78 79 80

Landmine & Cluster Munition Monitor, ‘China: Cluster Munition Ban Policy’, www.the-monitor.org/en-gb /reports/2020/china/view-all.aspx#0ftnref3. 中国代表团在第63届大一委关于“武器贸易条约”决议草案投票立场的解释性发言 [Chinese Delegation’s Explanatory Remarks on Its Vote on the Draft Resolution on the ‘Arms Trade Treaty’ at the First Commission of the 63rd Session of the General Assembly], 31 October 2008, New York, www.fmprc.gov.cn /web/ziliao_674904/zyjh_674906/t521632.shtml. Official Records, General Assembly, 71st Plenary Meeting, Tuesday, 2 April 2013, 10 a.m., New York, UN Doc. A/67/ PV.71, at 15. Statement by Mr Qu Wensheng, supra note 65, at para. 30. 伊丽莎白·柯卡姆、刘毅强汤潇敏 : 《武器贸易条约谈判进程 – 中国政策演变与谈判未来发展》, 《国际展 望》2013年第2期, 第55–66页 [Elizabeth Kirkham, Liu Yiqiang and Tang Xiaomin, ‘UN Arms Trade Treaty Process – Evolution of China’s Positions and Prospect of Negotiations’ (2013) 2 International Perspective, 52–66, at 56]. Ibid., at 58. Ibid., at 58–9. Landmine & Cluster Munition Monitor, ‘China: Mine Ban Policy’, www.the-monitor.org/en-gb/reports/2019/china/ mine-ban-policy.aspx; Fourth Review Conference Final Report, 22 January 2020, APLC/CONF/2019/5, para. 13.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

313

China has participated as an observer in all of the CCM’s meetings81 and in the Assembly of States Parties to the Rome Statute.82 15.3.2.2 China’s Accession to the ATT: Rule-Making After the Conclusion of a Treaty International rule-making does not stop at the time when a legal instrument is concluded. The text of the treaty is settled, but the interpretation of the text and its actual implementation could still be significantly malleable. China’s accession to the ATT in 2020 provides further opportunity for it to shape the ways in which the treaty will be interpreted and implemented in the future. This could be realized both through China’s arms trade practices and through its participation in the ATT forums as a state party. As China is a major arms exporter and importer, its arms trade practices and the way it interprets and implements the ATT will have a significant influence on other states and on the future interpretation of ATT provisions.83 Moreover, as a state party, China can exert direct influence on other state parties within ATT forums, and can shape official guidelines according to its priorities.84 International rule-making is obviously an arena in which major powers compete to realize their national interests, but it is also a competition of reputation and legitimacy. By acceding to the ATT, China portrays itself as a responsible multilateralist, especially in contrast with the United States, which has signed but not yet ratified the treaty. In 2019, Trump announced that the United States no longer supported the treaty and would not ratify it.85 When China ratified the ATT in 2020, China’s UN ambassador, Zhang Jun, did not miss the opportunity to criticize a ‘certain country’ for ‘unilateralism and bullying’, and stressed that ‘major powers need to . . . set an example by contributing to safeguarding the international order, the rule of law, the role of the UN and multilateralism’.86 Especially, the ATT process saw active involvement of many small and developing states from the Global South, and the treaty reflects many of their core concerns relating to international arms trade.87 China’s participation in the ATT process and its accession to the treaty may be perceived as a willingness to accommodate these concerns, while the absence of the United States is perceived as a signal that it does not care about the interests and voices of smaller countries.88 These dynamics might further increase the relevance and legitimacy of the ATT regime compared to other weapons export regimes, notably the United States-led Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (WA). The ATT is becoming a global mechanism with its 110 state parties, while the WA has only 42 members and has been criticized as an ‘exporters’ club’ that does not care about the interests of importing states, many of which are smaller countries in the 81 82

83

84 85

86

87

88

Landmine & Cluster Munition Monitor, ‘China: Cluster Munition Ban Policy’, supra note 73. Statements of the Chinese Observer Delegation at the General Debate of the Assembly of States Parties are available at https://asp.icc-cpi.int/sessions/general-debate. Tobias Vestner, ‘The New Geopolitics of the Arms Trade Treaty’, Arms Control Today (December 2020), www .armscontrol.org/act/2020-12/features/new-geopolitics-arms-trade-treaty#endnote01. Ibid. Jeff Abramson and Greg Webb, ‘U.S. to Quit Arms Trade Treaty’, Arms Control Today (May 2019), www .armscontrol.org/act/2019-05/news/us-quit-arms-trade-treaty. Michelle Nichols, ‘China Slams U.S. As It Joins Global Arms Trade Treaty at U.N.’, Reuters (7 July 2020), www .reuters.com/article/us-china-usa-arms-idUSKBN24730S. The title of the article is rather telling about how these competitions of legitimacy take place and how they are viewed by observers. Helena Whall and Allison Pytlak, ‘The Role of Civil Society in the International Negotiations on the Arms Trade Treaty’ (2014) 5 Global Policy, 453–68, at 456. Vestner, ‘The New Geopolitics of the Arms Trade Treaty’, supra note 83.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

314

Binxin Zhang

Global South.89 As China is a non-participant in the WA, its accession to the ATT provides an opportunity for it not only to claim moral high ground over the United States but also to delegitimize and sideline the WA. China’s active participation in especially the later stage of the ATT process is not a stand-out event. In fact, China is being increasingly active in international rule-making processes and is seeking a more important role. This ambition is reflected in the newly revised National Defence Law of the PRC. In terms of international rule-making, the original text of 1997 states that China ‘supports’ international activities to maintain peace, security and stability, as well as international efforts at dispute settlement and arms control.90 The 2020 revision adds that China ‘participates in multi-lateral dialogues and negotiations in the field of security’ and, notably, ‘promote[s] the making of universally accepted, just and reasonable international rules’.91 From ‘support’ to ‘participate’ and ‘promote’, the change shows clearly that China seeks to play a more active role in international rule-making in the military and national security field. This desire to increase participation is particularly visible in developments concerning new technologies. As developments in technology expand the domains of military activities, provide new possibilities for the means and methods of warfare, and even fundamentally shift the way in which wars are fought, they pose new challenges to IHL and thus prompt new efforts to strengthen the law. The next section examines China’s participation in rule-making practices in these areas. 15.4 NEW CHALLENGES TO IHL AND A NEW ROLE FOR CHINA?

Developments in technologies have raised a lot of new challenges to IHL. New technologies have expanded the domains of warfare. Cyberspace, for example, has been called ‘the fifth domain’ apart from the traditional domains of land, sea, air and space. The development of artificial intelligence (AI) and its military use has raised concerns about ‘killer robots’,92 and discussions under the CCW framework on lethal autonomous weapons systems (LAWS) have been ongoing since 2014.93 These new challenges to and possible new developments of IHL are providing an opportunity for China to participate more actively in international rule-making processes. This section will demonstrate that China realizes the importance of these processes and has the ambition to play a more active role in them. Based on a general overview of China’s participation in international rule-making processes concerning high technologies, it is argued that China’s current participation in these processes does not seem to fully match its ambitions. If China wishes to exert more influence on international rule-making processes, it needs to improve its research on relevant issues, and provide enough space for researchers, academic institutions and civil society to develop their expertise and activities.

89

90 91 92

93

Tobias Vestner, ‘Synergies between the Arms Trade Treaty and the Wassenaar Arrangement’, Geneva Centre for Security Policy, May 2019, Issue 5, https://dam.gcsp.ch/files/2y102vjaRJo9CCUZAgCU2XP0YequIEZV5 wodwIppHEGiOXu8bstaN1Qxu. National Defence Law of the PRC, 1997, Art. 66. National Defence Law of the PRC, 2020, Art. 69. See, e.g., the ‘Campaign to Stop Killer Robots’, a global coalition of more than 180 NGOs that advocates for a ban on LAWS, www.stopkillerrobots.org. For the latest update of the work of the Group of Governmental Experts (GGE) on LAWS, see https://meetings .unoda.org/ccw/convention-certain-conventional-weapons-group-governmental-experts-2022.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

315

15.4.1 General Overview: National Strategies and Participation in Relevant Processes It is of no doubt that China attaches great significance to the development of new technologies in the military and national defence field. A notable change in the revised Chinese National Defence Law in 2020 is that its Chapter IV, previously titled ‘Defence of the frontiers, seas and air space’ is now expanded to cover also ‘other significant security fields’, including space, electromagnetism and cyberspace.94 The significance attached to these new domains is owing to China’s understanding that (1) these new technologies are bringing about fundamental changes and (2) they are providing an opportunity for China to surpass the traditional military powers, notably the United States. The 2019 National Defence White Paper (White Paper), entitled ‘China’s National Defence in the New Era’, demonstrates China’s acute awareness of the importance of technologies in future warfare. The White Paper states that ‘[d]riven by the new round of technological and industrial revolution, the application of cutting-edge technologies such as artificial intelligence (AI), quantum information, big data, cloud computing and the Internet of Things is gathering pace in the military field. International military competition is undergoing historic changes’. However, it acknowledges that ‘the PLA still lags far behind the world’s leading militaries’, and thus ‘great efforts have to be invested in military modernization to meet national security demands’.95 Similarly, the Development Plan on the New Generation of Artificial Intelligence (Development Plan), issued by the State Council in 2017, considers AI ‘a major strategy to enhance national competitiveness and protect national security’, ‘a significant historical opportunity’ to promote the ‘leapfrog development of national competitiveness’, and aims to ‘reach world leading level’ by 2030.96 In terms of international rule-making, the White Paper declares that China ‘firmly maintains multilateralism, advances democracy in international relations, participates extensively in global security governance, actively engages in arms control and disarmament, and endeavors to offer Chinese proposals for resolving major issues and formulating important rules’. The formulation ‘offer Chinese proposals’ and similar phrases have gained wide usage in recent years in Chinese official rhetoric. In his speech delivered at the 19th National Congress of the Communist Party of China, President Xi Jinping pledged that China would ‘keep contributing Chinese wisdom and strength to global governance’.97 The undertone of these formulations is a more proactive stance and an ambition to exert more influence – instead of following other countries, China seeks to offer its own proposals and solutions to international issues. The White Paper mentions in particular China’s participation ‘in multilateral dialogues and negotiations on cyberspace and outer space’.98 The Development Plan states that China will ‘deepen international cooperation on AI laws and regulations, international rules and so on’, to cope with global challenges together with other countries.99

94 95

96

97

98 99

National Defence Law of the PRC, Art. 30. The State Council Information Office of the PRC, ‘China’s National Defence in the New Era’, July 2019, ch. I, www .scio.gov.cn/ztk/dtzt/39912/41132/41140/Document/1660348/1660348.htm. State Council, ‘The Development Plan on the New Generation of Artificial Intelligence’, 8 July 2017, www.gov.cn /zhengce/content/2017-07/20/content_5211996.htm. Xi Jinping, ‘Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era’, speech delivered at the 19th National Congress of the Communist Party of China, 18 October 2017, www.chinadaily.com.cn/interface/flipboard/1142846/ 2017-11-06/cd_34188086.html. ‘China’s National Defence in the New Era’, supra note 95. ‘The Development Plan’, supra note 96.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

316

Binxin Zhang

On the other hand, the international community also looks to China and considers important its stance on relevant issues, because its rising economic power and technological capacity often make it one of the few countries that are active in certain domains. For example, in terms of debris-creating anti-satellite (ASAT) weapons tests, scholars have envisaged that international agreements would start as trilateral (the United States, Russia and China), and then expand to other countries.100 One very simple reason is that the United States, Russia, China and India are the only four countries in the world that have succeeded in testing an ASAT weapon destroying an orbiting target. China is also among the handful of states that have the capacity to invest in the development of LAWS.101 China does actively participate in relevant debates at the international level and at times takes the initiative in rule-making. In terms of cyberspace, China has participated in the UN Groups of Governmental Experts (GGE) on the issue of information security since 2004.102 It participates in discussions at UN bodies like the General Assembly.103 Together with other member states of the Shanghai Cooperation Organisation (SCO), China has promoted an International Code of Conduct for Information Security104 that is largely based upon the Agreement among the Governments of the SCO Member States on Cooperation in the Field of International Information Security, concluded in 2009.105 China organizes the World Internet Conference (WIC), a less formal platform that involves both governmental and private actors and is aimed at promoting China’s ideas and model of internet governance. Chinese initiatives focus on internet governance, emphasizing particularly respect for sovereignty in cyberspace. In terms of the applicability of IHL in cyberspace, on the other hand, China has been rather cautious. Chinese officials and scholars have expressed the concern that such discussions draw too much attention to military activities in cyberspace, and thus risk intensifying the arms race in and the militarization of cyberspace.106 In its statement at the first substantive session of the UN Open-Ended Working Group (OEWG) on information security in 2021, China again emphasized that the discussion of the OEWG should ‘stay the course of pursuing peace in cyberspace’ and should be ‘neither encouraging nor legitimizing conflicts’.107

100

101

102

103

104

105

106

107

Victoria Samson and Brian Weeden, ‘Enhancing Space Security: Time for Legally Binding Measures’, Arms Control Today (December 2020), www.armscontrol.org/act/2020-12/features/enhancing-space-security-time-legallybinding-measures. Human Rights Watch, ‘Stopping Killer Robots: Country Positions on Banning Fully Autonomous Weapons and Retaining Human Control’ (August 2020), p. 3, https://bit.ly/3EdhMJT. For a general overview of the work of the UN GGEs on the issue and relevant documents, see www.un.org /disarmament/ict-security/. See, e.g., Statement by Counsellor Sun Lei of the Chinese Delegation at the Thematic Discussion on Information and Cyber Security at the First Committee of the 72nd Session of the UNGA, 23 October 2017, http://chnun .chinamission.org.cn/eng/chinaandun/disarmament_armscontrol/unga/t1505683.htm. UNGA, ‘Letter Dated 9 January 2015 from the Permanent Representatives of China, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan and Uzbekistan to the United Nations Addressed to the Secretary-General’, 13 January 2015, UN Doc. A/69/723. Agreement among the Governments of the SCO Member States on Cooperation in the Field of International Information Security, 16 June 2009, http://eng.sectsco.org/load/207508/. Ma Xinmin, ‘Key Issues and Future Development of International Cyberspace Law’ (2016) 2 China Quarterly of International Strategic Studies, 119–33, at 123. 黄志雄 : 《国际法视角下的“网络战”及中国的对策 – 以诉诸武力 权为中心》, 《现代法学》, 2015年9月, 第37卷第5期, 第145–58页, 见第153页 [Huang Zhixiong, ‘International Legal Issues Concerning “Cyber Warfare” and Strategies for China: Focusing on the Field of Jus ad Bellum’ (2015) 37 Modern Law Science, 145–58, at 153]. Statement by Counsellor Wu Jianjian, Head of the Chinese Delegation at the General Exchange of Views of the First Substantive Session of the Open-Ended Working Group on Security of and in the Use of Information and Communications Technologies, 14 December 2021, https://bit.ly/47yi9Mf.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

317

In terms of outer space, China has repeatedly proposed initiatives to ban placement of weapons in outer space, including proposing, together with Russia, the Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT) in 2008. However, the proposal never gained widespread acceptance, despite an attempt in 2014 to revise it and address some of the concerns about the previous draft.108 The PPWT reflects the interests of Russia and China as it bans the placement of weapons in outer space but not ground-based space weapons, thus targeting the United States’ development of space-based missile defences, while allowing the ground-based systems Russia and China are developing.109 On the other hand, the United States seeks the widest flexibility possible and does not want to be legally bound to refrain from any weapons development as it has the strongest technological capacity to develop future systems.110 Therefore, the United States mobilized its allies to object to the PPWT and no-first-placement proposals.111 China called this a ‘mindset of unilateralism, the pursuit for absolute superiority, absolute freedom and unilateral security in outer space, the strategy and policy pursuing dominance in space’, and has advocated for negotiation towards a binding international agreement on ‘the prevention of the placement of weapons in outer space, the threat or use of force in anywhere against outer space objects’.112 Apart from relevant processes at the UN, China is also employing other forums, such as the Brazil, Russia, India, China and South Africa (BRICS) summit, to push for an agreement on the prevention of an arms race in outer space and an obligation of no first placement.113 China has participated in the work on LAWS under the framework of the CCW since the 2014 informal Meeting of Experts. In its latest Working Paper submitted in 2022114 to the GGE, China stated that autonomous weapons systems should be classified into two categories: unacceptable and acceptable. It maintains a very high threshold for the unacceptable category, listing five basic characteristics of such weapons systems including lethality, autonomy meaning absence of human intervention and control, impossibility for termination once put into operation, indiscriminate killing, and evolution. For the category of acceptable LAWS, China defines it as weapons systems ‘always under human control’. This document, however, did not engage in more specific discussions such as what constitutes ‘human control’.115 Indeed, China’s interventions at the GGE seem to generally lack this sort of in-depth engagement with more nuanced discussions on specific issues. 15.4.2 Dissonance Between the Ambition and the Reality Although China has clearly demonstrated its ambition to play a more active and significant role in international rule-making in the above-mentioned domains, it is argued here that its actual 108

109 110

111 112 113

114

115

Michael Listner and Rajeswari Pillai Rajagopalan, ‘The 2014 PPWT: A New Draft but With the Same and Different Problems’, Space Review (11 August 2014), www.thespacereview.com/article/2575/1. Samson and Weeden, ‘Enhancing Space Security’, supra note 100. Statement by Ambassador Wood: The Threats Posed by Russia and China to Security of the Outer Space Environment, US Mission to International Organizations in Geneva, 14 August 2019, https://bit.ly/3QD8Rsq. Samson and Weeden, ‘Enhancing Space Security’, supra note 100. Document of the People’s Republic of China pursuant to UNGA Resolution 75/36 (2020), https://bit.ly/3Qybuf9. See, e.g., XIV BRICS Summit Beijing Declaration, 23 June 2022, www.fmprc.gov.cn/eng/zxxx_662805/202206/ t20220623_10709037.html. Working Paper of the People’s Republic of China on Lethal Autonomous Weapons Systems (July 2022), https://bit.ly /3KCLeMK. The question of how to understand human control is at the core of current debates concerning LAWS. For more on the concept and relevant debates, see, e.g., International Panel on the Regulation of Autonomous Weapons, ‘Focus on Human Control’, August 2019.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

318

Binxin Zhang

participation and its ability to engage in international debates do not match such ambitions. In a Joint Declaration of 2016, China and Russia assert that ‘[s]tates have the right to participate in the making of, interpreting and applying international law on an equal footing’,116 clearly demanding an equal role in international rule-making vis-a`-vis Western countries. However, such demand and ambition prove to be difficult to translate into reality. China’s weight has certainly increased in international rule-making processes, but it is not yet ‘on an equal footing’ with Western countries, particularly the United States. This ‘inequality’ is owing to not just a gap of ‘hard power’ but very often a gap of ‘soft power’.117 The aforementioned lack of contribution in discussions on specific issues in the LAWS process at the CCW, for example, has a lot to do with a lack of expertise and in-depth research. In 2019, the PLA Academy of Military Science (the highest-level research institute of the PLA) organized a conference on the military use of AI which had more than sixty participants from the Ministry of Foreign Affairs, the military, as well as military academies and civilian universities.118 Notably, the participants acknowledged that Chinese research on the military use of AI was far less advanced than the West’s, and that, within China, civilian researchers were far more active than military researchers. It was hoped that the conference could serve as a starting point from which China could deepen its research on military use of AI and participate more actively in the international rule-making processes.119 These observations show the dissonance between China’s ambition to play a more active role in international rule-making processes and its lack of the expertise and in-depth research that would enable it to effectively engage in debates on the international level. Moreover, states are not the sole players in international rule-making. Civil society organizations, research institutions and influential individuals can all play an important role in these processes. The Ottawa, Oslo and ATT processes all showed the key role of the civil society in setting the agenda, shaping the discourses, influencing the positions of states and coordinating among different actors.120 Apart from treaties, ‘soft law’ is also an important part of international rule-making. Guidelines and interpretations issued by authoritative organizations like the ICRC, or interpretative documents of existing law drafted by scholars and research institutions, though without binding force, may be very influential and inform subsequent state practices, which in turn shape the formation of customary law. In areas like those concerning new technologies, where urgent questions need to be answered, and inter governmental processes are long and inefficient, such guidelines and interpretations might be particularly important. One typical example is the Tallinn Manual concerning the application of international law in cyberspace. 116

117

118

119 120

The Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law, 25 June 2016, https://bit.ly/449LREm. ‘Soft power’ is a concept first developed by Joseph Nye in 1990 to describe the intangible source of influence that nations possess, such as persuasion, culture and a positive image, as opposed to ‘hard power’, which refers to tangible, material resources as the source of influence. For a recent discussion of the evolution of the concept, see Joseph Nye, ‘Soft Power: The Evolution of a Concept’ (2021) 14 Journal of Political Power, 196–208. 《人工智能军事应用诸多法律问题待解, 军事科学院军事法制研究院召开会议深入研讨》, 《法治日报》, 2019年10月24日 [‘Numerous Legal Issues Regarding Military Use of AI to Be Answered, The Legal Research Institute of the Academy of Military Science Held a Conference for In-Depth Discussions’, Legal Daily (24 October 2019)], https://kuaibao.qq.com/s/20191024A0H19600?refer=spider. Ibid. For a general overview of the roles of civil society in international rule-making concerning weapons, see Brian Rappert, Richard Moyes, Anna Crowe and Thomas Nash, ‘The Roles of Civil Society in the Development of Standards around New Weapons and Other Technologies of Warfare’ (2012) 94 International Review of the Red Cross, 765–85.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

15 China and International Humanitarian Law

319

On the governmental level, China’s rising economic power and its status as a permanent member of the UN Security Council guarantee that its voice is heard and carries significant weight, but, when it comes to private and civil society actors, China is at a significant disadvantage compared to the West. For that reason, China is usually sceptical about such processes. With regard to the Tallinn Manual, for example, Ma Xinmin, then deputy director-general of the Treaty and Law Department of the Ministry of Foreign Affairs, observed that it only reflects the views of certain scholars, not necessarily customary law.121 Chinese scholars have criticized the Tallinn Manual as an attempt at ‘re-making’ international law or ‘norm-making by scholars’ in the interests of the West, and stressed that proposals by private actors have to be approved by states to become binding rules.122 Private actors from China do participate in international rule-making processes. The Chinese corporation Huawei, for example, has been playing a leading role in the development of 5G specifications in the Third Generation Partnership Project (3GPP), an international organization that develops telecom standards.123 With regard to cyberspace, President Xi Jinping stated at the second WIC that an international governance regime of cyberspace should be a regime of ‘multilateral participation’, one that involves governments, international organizations, cyber enterprises, technology communities, civil organizations, as well as individual citizens.124 Chinese researchers and individual campaigners have also participated in the ATT process. Cooperating with international non-governmental organizations in the Control Arms coalition, they followed the process closely, participated in the Diplomatic Conferences at the UN as well as regional conferences promoting the ATT, and published articles aimed at raising public awareness.125 There are certainly talents as well as willingness to engage in international rule-making processes from the private sector. The Chinese leadership has expressed repeatedly its ambition to improve China’s ‘discourse power’,126 and it recognizes that this is not a task that can be achieved solely by the government.127 Chinese scholars have realized the importance of civil society in global governance and the weakness of China in this regard, and are calling for more 121

122 123

124

125

126

127

马新民, 《变革中的国际人道法 : 发展与新议程 – 纪念日内瓦公约1977年附加议定书通过40周年》, 《国际法 研究》2017年第4期, 第3–20页, 见第16页 [ Ma Xinmin, ‘International Humanitarian Law in Flux: Development and New Agendas – In Commemoration of the 40th Anniversary of the 1977 Additional Protocols to the Geneva Conventions’ (2017) 4 International Law Research, 3–20, at 16]. Huang, ‘International Legal Issues’, supra note 106, at 27. Guang Yang, ‘Who Are the Leading Players in 5G Standardization? An Assessment for 3GPP 5G Activities’, Strategy Analytics Report, 2020, https://bit.ly/3Osmvfg. For a detailed analysis of Huawei’s involvement in setting 5G standards, see 苏宇 : 《跨国公司与信息技术的国际造法 : 以中国华为公司参与制定5G标准为例的考察》, 《国际法治的理论与实践研究国际研讨会论文集》, 厦门大学法学院, 2021年4月, 第223–62页 [Su Yu, ‘Multinational Companies and the International Lawmaking in ICT: With a Special Focus on Huawei’s Participation in 5G Standards-Setting’ in Conference on Theory and Practice of International Rule of Law & Governance, Conference Proceedings, vol. I, School of Law, Xiamen University, April 2021, 223–62]. 习近平在第二届界互网大会开幕式上的讲话, 2015年12月16日 [Xi Jinping’s Speech at the Second Word Internet Conference, 16 December 2015], www.xinhuanet.com//politics/2015-12/16/c_1117481089.htm. Personal interview with Liu Yiqiang, November 2021. Liu participated in the ATT process as an individual campaigner. Partly inspired by the experience, he established the Chinese Initiative on International Law in 2012, an NGO promoting international law and international justice in the Greater China Region. 《中共中央关于全面推进依法治国若干重大问题的决定》[Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law], www.gov.cn/xinwen/2014-10/28/con tent_2771714_7.htm; 习近平 : 《新起点, 新愿景, 新动力 – 在金砖国家领导人第六次会晤上的讲话》, 《人民 日报》2014年7月17日第02版 [Xi Jinping, ‘New Start, New Perspective, New Motives: Speech at the Sixth BRICS Summit’, People’s Daily (17 July 2014), p. 2]. 习近平在哲学社会科学工作座谈会上的讲话, 2016年5月17日, [Xi Jinping, Speech at the Symposium of the Work of Philosophy and Social Sciences, 17 May 2016], recognizing the role of philosophy and social sciences research in the ‘building of discourse systems’, http://cpc.people.com.cn/n1/2016/0519/c64094-28361550.html.

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

320

Binxin Zhang

involvement of non-government sectors.128 To realize its ambition of playing a more important role in global governance and international rule-making, China needs to encourage involvement from private sectors by allowing more space for them to develop their expertise and take the initiative. 15.5 CONCLUSION

As we end this story, one thing that can be safely concluded is that China is no longer the same country it was when the story started. China today has the ambition, capacity and responsibility to participate more actively in international rule-making in the field of international security. The major rules and fundamental principles of IHL may have already been well-established, but new developments in warfare, especially new technologies in the fields of cyberspace, outer space and AI, are bringing new challenges to the interpretation and implementation of these rules and principles, as well as generating debates concerning the need to create new rules. As technologies continue to develop and the face of warfare continues to change, states will need to decide where they stand as to whether and how IHL will apply to these new situations, and whether it needs to be adapted, amended or supplemented. As illustrated in this chapter, China sees these areas as of strategic importance and calls for fairer participation of all countries in international rule-making processes. At the same time, as China has become a major player in many of these areas, other countries and stakeholders also take seriously China’s positions on relevant issues. However, China’s actual participation often does not match its ambitions or the expectations of the international community. Compared to areas like international economic governance and climate change, where China is exerting increasing influence,129 China’s involvement in IHL-related international rule-making remains modest. This might at times be a strategic choice, but it is more often because China lacks the ‘soft power’ to set the agenda and shape the discourses. On IHL-related issues, it is often nongovernmental stakeholders that have been playing a particularly important role in agenda-setting and discourse-shaping. If China wants to play a more significant role in IHL-related rule-making processes, it needs not just to rely on inter governmental processes and forums but also to harness the talents from the private sectors by providing more space and encouragement for such initiatives and expertise to develop.

128

129

孙吉胜, 《当前全球治理与中国全球治理话语权提升》, 载《外交评论》2020年第3期, 第1–22页, 见第21页 [Sun Jisheng, ‘Global Governance and the Improvement of China’s Discursive Power for Global Governance’ (2020) 37 Foreign Affairs Review, 1–22, at 21]. Scott Kennedy, Global Governance and China: The Dragon’s Learning Curve (Abingdon: Routledge, 2018).

https://doi.org/10.1017/9781009041133.017 Published online by Cambridge University Press

part vi

The Habitat and the Global Commons

Published online by Cambridge University Press

Published online by Cambridge University Press

16 China and International Environmental Law Sageliness Within and Kingliness Without? Nengye Liu*

Sageliness Within and Kingliness Without: a king can lead to an orderly world in which people can help each other to fulfill themself harmoniously, after accomplishing his self-cultivation to be a sage. Zhuang Zi (ancient Chinese philosopher)1

16.1 INTRODUCTION

Our planet is now facing an alarming, if not existential, environmental crisis, be it climate change, rising sea level or mass biodiversity loss. The Global Assessment Report on Biodiversity and Ecosystem Services, published by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) in 2019, estimates that ‘[t]he global rate of species extinction is already at least tens to hundreds of times higher than the average rate over the past 10 million years and is accelerating’.2 Moreover, some argue that the earth is now undergoing its sixth mass extinction period, driven by human actions in an era of industrialization and urbanization.3 It is commonly understood that the 1972 United Nations (UN) Conference on the Human Environment (Stockholm Conference) was a launch-pad for the development of contemporary international environmental law.4 During its chaotic cultural revolution, China sent a delegation to attend the Stockholm Conference, which marks the beginning of China’s opening up to the West.5 According to the International Environmental Agreements Database, so far there are more than 3,000 multilateral and bilateral environmental agreements

* 1 2

3

4

5

The author would like to thank Sarah Vanderfield for her excellent research assistance on this chapter. Zhuang Zi, Tian Xia, see Chinese text and English translation at ctext.org/zhuangzi/tian-xia/ens. Eduardo Brondizio, Sandra Diaz, Josef Settele and Hien T. Ngo (eds.), Global Assessment Report of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (Bonn: IPBES Secretariat, 2019), 28. Gerardo Ceballos, Paul R Ehrlich and Rodolfo Dirzo, ‘Biological Annihilation via the Ongoing Sixth Mass Extinction Signaled by Vertebrate Population Losses and Declines’ (2017) Proceedings of the National Academy of Sciences. See also Damian Carrington, ‘Earth’s Sixth Mass Extinction Event Under Way, Scientists Warn’, Guardian (11 July 2017); Tammana Begum, ‘What Is Mass Extinction and Are We Facing a Sixth One?’, National History Museum (19 May 2021). For the history of the development of international environmental law, see Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, 4th ed. (Cambridge: Cambridge University Press, 2018), 21–51. For China’s participation in the 1972 Stockholm Conference, see Ma Tianjie, ‘1972, The Start of China’s Environmental Journey’, China Dialogue, chinadialogue.net/en/nature/stockholm-1972-chinas-environmentaljourney/. US president Richard Nixon visited the PRC in the same year, as the first US president to visit Communist China.

323 https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

324

Nengye Liu

that have been created by states to deal with environmental issues.6 However, such an exponential expansion of international environmental law has still not achieved a planet for human beings to live on in harmony with nature.7 Is international environmental law effective at dealing with the global environmental crisis in the Anthropocene?8 This is a big question mark to bear in mind when talking about international environmental law’s future and China’s role in it. The development of modern international environmental law has progressed in parallel with the rise of China. Since the opening-up and reform policy was adopted in 1978, the Chinese economy has been soaring to become the second largest economy in the world, second only to that of the United States. By 2021, the gross domestic product (GDP) of China was about 77 per cent of the size of the United States.9 From a Western dominant point of view, China, today, is a challenger to the so-called rules-based international order10 anchored by the United States. There is still hope that even though the West and China are competitors, they could cooperate in selective issues of common concern, when it comes to combating climate change and biodiversity loss. The term ‘rules-based international order’, at least through the Chinese government’s eyes, is narrow-minded and confronting. The Chinese government has been openly criticizing the term of ‘rules-based international order’, while promoting an international system that is centred by the UN and underpinned by international law.11 On the one hand, global environmental crisis absolutely requires solidarity and sincere cooperation among states. If international environmental law is part of the rules-based international order, then to what extent could the existing rules-based international order accommodate a rising China? On the other hand, it is still uncertain what kind of international environmental law China wants to make and contribute to on the basis of its own national interests. This chapter investigates the interaction between China, under the guidance of the principle of ‘ecological civilization’, and international environmental law. It aims to tackle the above questions through case studies on two selected issue areas that are at the forefront of international 6

7

8

9

10

11

Ronald B. Mitchell, Liliana B. Andonova, Mark Axelrod et al., ‘What We Know (and Could Know) about International Environmental Agreements’ (2020) 20 Global Environmental Politics, 103–21. Convention on Biological Diversity, Rio De Janeiro, 5 June 1992, in force 29 December 1993, 1760 UNTS 79 (CBD); Secretariat on the Convention on Biological Diversity, 2050 Vision: The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, Doc UNEP/BD/COP/DEC/X/2, 2010, Annex para. 11. The Anthropocene is a new geological epoch in which humans have replaced nature as the dominant environmental force on earth. See Jan Zalasiewicz Mark Williams, Will Steffen and Paul J. Crutzen, ‘The New World of the Anthropocene’ (2010) 44(7) Environmental Science and Technology, 2228–31; Rakhyun E. Kim and Klaus Bosselmann, ‘International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’ (2013) 2(2) Transnational Environmental Law, 285–309. World Bank, ‘GDP (current US$) – China, United States’, data.worldbank.org/indicator/NY.GDP.MKTP.CD? locations=CN-US. Rules-based international order is a term largely created by Western think tanks, while being widely mentioned in Western (particularly Australian, UK and US) defence and foreign policy papers in recent years. According to Chatham House, ‘rules-based international order’ refers to ‘[t]he framework of liberal political and economic rules, embodied in a network of international organizations and regulations, and shaped and enforced by the most powerful nations’. See Chatham House, Challenges to the Rules-Based International Order (2015), www.chathamhouse.org /sites/default/files/London%20Conference%202015%20-%20Background%20Papers.pdf. The Atlantic Council has a similar definition: ‘The system is predicated on a set of norms and principles pertaining to global security, the economy, and governance. It consists of: a set of rules encouraging peaceful, predictable, and cooperative behaviour among states that is consistent with liberal values and principles; formal institutional bodies, such as the UN and the North Atlanic Treaty Organization, that serve to legitimize and uphold these rules, and provide a forum to discuss and settle disputes; and the role of powerful democratic states to help preserve and defend the system’ See Atlantic Council, Global Strategy 2021: An Allied Strategy for China (2020). See, e.g., Wang Yi, China Ministry of Foreign Affairs, ‘United Under the Flag of the United Nations, Jointly Pursuing the Community of Shared Futures for Mankind [王毅: 团结在合国旗帜下, 携手推动构建人类命运共同体]’ (15 December 2021), www.gov.cn/guowuyuan/2021-12/15/content_5660789.htm (in Chinese).

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

16 China and International Environmental Law

325

environmental lawmaking: biodiversity conservation and global ocean governance.12 The chapter first briefly introduces the principle of ecological civilization. It then examines China’s legal efforts on biodiversity conservation. Given that China was for the first time the host of the Convention on Biological Diversity’s 15th Conference of the Parties (CBD COP15) between 2021 and 2022, we pay particular attention to China’s role in the negotiation of the Kunming– Montreal Global Biodiversity Framework – ‘a new global biodiversity framework to guide actions worldwide through 2030, in order to preserve and protect nature and its essential services to people’.13 The chapter then moves to focus on China’s participation in two latest negotiations of global ocean governance – biodiversity in areas beyond national jurisdiction (BBNJ) and the Mining Code in the deep seabed. It concludes with some suggestions regarding how China could possibly act towards a desirable future for a thriving planet for nature and human beings. 16.2 ECOLOGICAL CIVILIZATION

China is one of the most populous nations and the twelve mega-diverse countries in the world.14 According to China’s National Biodiversity Conservation Strategy and Action Plan (2011–30), China has known 34,984 higher plants, ranking the third in the world. China also has 6,445 vertebrate animal species, accounting for 13.7% of the total in the world. The fungi species known in China are more than 10,000, making up 14% of the total in the world. China has rich genetic resources and a country of origin of many important agricultural crops such as rice and soybean, as well as [being] a key center of origin of wild and cultivated fruit trees. According to incomplete statistics, there are 1,339 cultivated crops and 1,930 wild relatives in China and the fruit tree species rank top in the world. China has 567 species of domesticated animals, being one of the countries with the most diverse domesticated animals in the world.15

Before the 1972 Stockholm Conference, it was a common assumption in China that only ‘capitalist’ countries would have environmental problems.16 This soon proved to be an illusion given the serious pollution and extinction issues China has been facing since its adoption of the ‘open door and reform’ policy in 1978, followed by unprecedented rapid industrialization and urbanization across the country. Ecological civilization first appeared on the Chinese Communist Party’s political agenda at its 17th National Congress in 2007, which is believed by the governing party of China to be a useful philosophy with which to balance economic development with environmental protection.17 During his presidency from 2002 to 2011, President Hu Jintao proposed the major

12

13

14

15

16 17

This chapter does not discuss China’s practice regarding climate change, which is referred to in Chapter 17. Moreover, climate law is arguably a distinct set of rules that go well beyond the environmental sphere. Convention on Biological Diversity, Preparation for the Post-2020 Biodiversity Framework, www.cbd.int /conferenCes/post2020. UN, Convention on Biological Diversity, ‘China – Main Details: Biodiversity Facts’, www.cbd.int/countries/profile/? country=cn#facts. UN Food and Agriculture Organization (FAO), China National Biodiversity Conservation Strategy and Action Plan, 2011–30. The NBSAP is a treaty obligation for contracting parties of the CBD under Article 6. See Ma Tianjie, ‘1972’, supra note 5. Zhou Shengxian, ‘The Innovation and Practice of Ecological Civilisation Theory with Chinese Characteristics [周 生贤,中国特色生态文明建设的理论创新和实践]’, Central People’s Government of the PRC, www.gov.cn /jrzg/2012–10/02/content_2237120.htm (in Chinese). See also Sibo Chen and Yuezhi Zhao, ‘Ecological Civilization: A Blindspot in Global Media Coverage of China’s Environmental Governance’ (2022) 16(2) Environmental Communication, 195–208.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

326

Nengye Liu

policy goal of establishing a ‘harmonious society’.18 The harmonious society includes a pillar of ‘living in harmony with nature’, which perhaps is the starting point of mainstreaming environmental protection into China’s social and economic development blueprint. President XI Jingping championed this concept as an important part of the ‘community of shared future for mankind’ (CSFM) since he took office in 2013.19 In 2018, the latest amendments to the Constitution of the People’s Republic of China (PRC) incorporated ‘Ecological Civilization’ and ‘Beautiful China’ into the Chinese legal system as its guiding principles.20 Furthermore, immediately following the Constitution Amendment in 2018, the former Ministry of Environmental Protection was replaced by the newly established Ministry of Ecology and Environment (MEE). So, what exactly does ‘ecological civilization’ mean? And how does this concept influence China’s interaction with international environmental law? As elaborated by the State Council of the PRC in its General Reform Plan on Achieving Ecological Civilization,21 ecological civilization is based on traditional Chinese wisdom with a few core principles, namely civilizations thrive on their natural surroundings; man and nature should coexist in harmony; lucid water and lush mountains are invaluable assets; no welfare is more universally beneficial than a sound natural environment; mountains, waters, forests, farmlands, lakes and grasslands are part of a community of life; the strictest regulations and laws must be applied in protecting the environment; an all-nation effort is needed to build a beautiful China; global ecological conservation requires the joint efforts of all.22

Following these core principles, several initiatives have been taken regarding biodiversity conservation in China in recent years. For example, in 2021, China established five pilot national parks across the country,23 covering a total of 230,000 square kilometres (88,800 square miles) and containing nearly 30 per cent of the country’s key terrestrial wildlife species. This is an ambitious starting point of restructuring China’s protected areas network to establish a national park system.24 The new structure aims to ‘break the barriers set by different government departments and local interest groups’ and ‘build a unified and efficient management 18

19

20

21

22

23

24

6th General Assembly of Central Committee of Chinese Communist Party, CCP’s Decisions on Several Important Issues of Building Socialism and Harmonious Society [中共中央关于构建社会主义和和谐社会若干重大问题的 决定, 2006年10月11日中国共产党第十六届中央委员会第六次全体会议通过], 11 October 2006, www.gov.cn /gongbao/content/2006/content_453176.htm (in Chinese). Xinhua, ‘Work Together to Build a Community of Share Future for Mankind [共同构建人类命运共同体]’ – Speech by H. E. Xi Jinping, President of the PRC at the UN Office at Geneva [习近平主席在合国日内瓦总部的演 讲], 18 January 2017, at www.xinhuanet.com//world/2017–01/19/c_1120340081.htm (in Chinese). The CSFM is a broad concept with the aim of achieving a world of peace, security, prosperity, open and a clean environment. For further analysis, see Chapter 3 of this volume. PRC, Amendment of Preamble, PRC Constitution Amendments 2018, adopted by the 1st Meeting of the 13th National People’s Congress, 11 March 2018, para. 7. See also ch. 6 on international considerations in the Chinese Constitutions. State Council of the PRC [国务院], General Plan on Ecological Civilisation Reform [生态文明体制改革总体方案], 21 September 2015, www.gov.cn/guowuyuan/2015–09/21/content_2936327.htm (in Chinese). See also China’s Ministry of Ecology and Environment (MEE), Building a Shared Future for All Life on Earth: China in Action, Position Paper of the People’s Republic of China for the United Nations Summit on Biodiversity, 2020, p. 2, https://bit.ly/3R3IVGq. Lilit Marcus and Shawn Deng, ‘China Announces Its First National Parks’, CNN (14 October 2021), edition.cnn.com /travel/article/china-first-national-parks-intl-hnk/index.html. See also Xiaoping Tang, ‘The Establishment of National Park System: A New Milestone for the Field of Nature Conservation in China’ (2020) 8(4) International Journal of Geoheritage and Parks, 195–202. State Council of the PRC [国务院], The General Plan for the Establishment of National Park System [建立国家公园 体制总体方案], 26 September 2017, www.gov.cn/zhengce/2017-09/26/content_5227713.htm (in Chinese).

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

16 China and International Environmental Law

327

mechanism for its ecosystems’.25 It is expected that 18 per cent of territory under China’s jurisdiction will be covered by national parks by 2035.26 The Ecological Conservation Redline is another important initiative. It was first proposed in 2011, incorporated into the Environmental Protection Law in 201527 and formally adopted by the central government in 2017.28 The Ecological Conservation Redline is designed to ‘constrain human activities in areas important to maintaining national ecological security and which provide essential ecosystem services, including water and soil conservation, biodiversity maintenance, windbreaks and sand-fixation, along with ecologically fragile regions that are prone to soil erosion, desertification and salinization.’29 16.3 CHINA AND BIODIVERSITY CONSERVATION

China ratified the CBD in 1993 and became a contracting party of the CBD’s Cartagena Protocol on Biosafety and the Nagoya Protocol on Access and Benefit-Sharing in 2005 and 2016, respectively. Moreover, China has ratified several biodiversity-related conventions over the years, including, for example, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),30 the Convention on Wetlands (Ramsar Convention),31 the World Heritage Convention32 and the International Plant Protection Convention.33 It is noted that China has yet to accede to the Convention on the Conservation of Migratory Species of Wild Animals34 and the International Treaty on Plant Genetic Resources for Food and Agriculture.35 The CBD is a so-called framework convention, which means that it ‘establishes broader commitments for its parties and leaves the setting of specific targets either to subsequent more detailed agreements or to national legislations’.36 The three objectives of the CBD are the 25

26 27

28

29

30

31

32

33

34

35

36

‘China Is Building the World’s Largest National Park System’, Bloomberg News (11 December 2021), www .bloomberg.com/news/features/2021-12-11/inside-china-s-new-massive-national-park-system?in_source=embeddedcheckout-banner. Tang, ‘The Establishment of National Park System’, supra note 23, at para. 9. Environmental Protection Law of the PRC [中华人民共和国环境保护法], adopted 26 December 1989, amended 24 April 2014, Art. 29: ‘The State will delineate ecological conservation redline in key ecological functioning areas, environmental and ecological sensitive and vulnerable areas, in order to carry strict protection’ [国家在重点生态功 能区生态环境敏感区和脆弱区等区域划定生态保护红线, 实行严格保护]. PRC Ministry of Environmental Protection and National Commission for Development and Reform [中华人民共 和国生态环境部和国家发展改革委员会], Guidelines for the Delineation of Ecological Conservation Redlines [生 态保护红线划定指南], May 2017 (in Chinese). Fuwen Wei, Shuhong Cui, Ning Liu et al., ‘Ecological Civilization: China’s Effort to Build a Shared Future for All Life on Earth’ (2021) 8(7) National Science Review, 279. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington, 3 March 1973, in force I July 1975, 993 UNTS 76. China acceded to CITES on 8 January 1981. Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), Ramsar, 2 February 1971, in force 21 December 1975, 996 UNTS 245. China acceded to the Ramsar Convention on 31 March 1992. Convention for the Protection of the World Cultural and Natural Heritage, Paris, 16 November 1972, in force 17 December 1975, 1037 UNTS 151. China ratified the Convention on 12 December 1985. International Plant Protection Convention, Lebanon, 6 December 1951, in force 3 April 1952, 150 UNTS 67. China acceded to the Convention on 20 October 2005. Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979, in force 1 November 1983, 1651 UNTS. International Treaty on Plant Genetic Resources for Food and Agriculture, Rome, 3 November 2001, in force 29 June 2004, 2400 UNTS 303. United Nations Economic Commission for Europe, Committee on Housing and Land Management, Framework Convention Concept, 72nd Session, 3–4 October 2011.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

328

Nengye Liu

conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.37 Apart from two legally binding protocols adopted, the CBD COP has embraced a ‘target-based approach’ since COP5 in 2000.38 Subsequently, the 2010 Biodiversity Target was set at COP6 in 2002,39 while the Aichi Targets were concluded in 2010 at COP10.40 Those targets are not legally binding, though. Moreover, it is provided by Article 4 of the CBD that the provisions of the Convention apply to components of biodiversity in areas within national jurisdiction, or processes and activities carried out under national jurisdiction or control.41 Therefore, China’s domestic measures are essential to help achieve the CBD’s objectives and targets. As required by the CBD, so far, China has submitted six National Reports for the CBD (1998, 2001, 2005, 2009, 2014 and 2018) as well as two National Biodiversity Conservation Strategy and Action Plans (NBSAPs, 1994 and 2010)42 to the CBD Secretariat.43 Qin summarized that China’s implementation of the CBD had gone through three stages: 1) follower (1992–2000), when China had insufficient understanding of biodiversity conservation, relevant domestic strategies, plans, policies, laws institution building, and international exchange were all at initial stage. 2) main participant (2000–2021), when China fully recognized [that] environmental problems greatly restrict social and economic development and began coordinating economic growth with environmental protection, focusing on pollution control. 3) active contributor (from 2012 onwards), when China started promoting the idea of ‘ecological civilisation’ and also provides ideological guidance for environmental policy reform and innovation.44

Despite all of the efforts China has made in recent years towards implementing the CBD, biodiversity conservation is still a long march in the country. It is fair to say that China’s rich biodiversity is under significant threat. For example, it is estimated that ‘90% of grasslands are experiencing different degrees of degradation and desertification and 40% of China’s major wetlands are facing threats of severe degradation, especially mudflats and mangroves’.45 Biodiversity has yet to become a mainstream issue, meaning that it is not an essential part of the social-economic decision-making processes at the national and local levels.46 For example, the Ecological Conservation Redline was repeatedly mentioned in policy documents, yet no detailed regulations exist regarding how exactly to set up and manage the area within ecological redlines.47 This has caused tensions between different policies and made local implementation difficult.48 37 38 39

40

41 42

43 44

45 46 47 48

Art. 1 CBD, supra note 7. CBD, COP5, Decision V/20 on the Operations of the Convention, 2000, UNEP/CBD/COP/DEC/V/5. CBD, COP6, Decision VI/26 on a Strategic Plan for the Convention on Biological Diversity, 2002, UNEP/CBD/COP/ DEC/VI/26. CBD, 2050 Vision: The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, 2010, UNEP/BD/ COP/DEC/X/2. Art. 4 CBD, above note 7. As examined by Lim, NBSAPs are ‘merely statements about countries’ ambitions, rather than achievements’, see Michelle Lim, ‘Biodiversity 2050: Can the Convention on Biological Diversity Deliver a World Living in Harmony with Nature?’ (2019) 30 Yearbook of International Environmental Law, 93. CBD, ‘National Reports and NBSAPS’, 1998–2014, www.cbd.int/reports/search/?country=cn. Tianbao Qin, ‘The Evolution and Challenges in China’s Implementation of the Convention on Biological Diversity: A New Analytical Framework’ (2021) 21(3) International Environmental Agreements, Politics, Law and Economics, 352–9. See ‘China – Main Details: Biodiversity Facts’, supra note 14. Qin, ‘The Evolution and Challenges’, supra note 44, at 360. Wang Chunhui, ‘How to Strengthen China’s Ecological Redlines?’, China Dialogue (29 July 2021). Ibid.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

16 China and International Environmental Law

329

As discussed earlier, until recently, China’s interaction with international environmental law regarding biodiversity conservation has been focussed on domestic implementation. Meanwhile, China has become more and more interested in shaping the international agenda. China hosted the CBD COP15 for the first time between 2021 and 2022. The COP15 was divided into two phases owing to the Covid-19 pandemic. Phase I was completed with the adoption of the Kunming Declaration in October 2021,49 while Phase II was held at the CBD Secretariat in Montreal, Canada in December 2022, and led to the conclusion of the Kunming–Montreal Global Biodiversity Framework (GBF).50 As indicated by the UN Secretary General in the 2020 UN Biodiversity Summit, ‘Humanity is waging war on nature. Despite repeated commitments, our efforts have not been sufficient to meet any of the global biodiversity targets set for 2020.’51 Therefore, the COP15 is crucial for the international community to negotiate a new post-2020 GBF.52 The GBF ‘builds on the Strategic Plan for Biodiversity 2011–2020 and sets out an ambitious plan to implement broad-based action to bring about a transformation in society’s relationship with biodiversity and to ensure that, by 2050, the shared vision of living in harmony with nature is fulfilled’.53 The framework recognizes that action globally, regionally and nationally is required to transform economic, social and financial models so that the trends that have exacerbated biodiversity loss will stabilize in the next 10 years (by 2030) and allow for the recovery of natural ecosystems in the following 20 years, with net improvements by 2050 to achieve the Convention’s vision of ‘living in harmony with nature by 2050’. It also assumes that a whole of-government and society approach is necessary to make the changes needed over the next 10 years as a stepping stone towards the achievement of the 2050 Vision.54

As the host of the CBD COP15, China was offered a golden opportunity to lead the negotiation of the GBF. The title of the Kunming Declaration, ‘Ecological Civilization: Building a Shared Future for All Life on Earth’, already reflects an extension of President Xi’s CSFM idea into the area of biodiversity conservation.55 Nevertheless, the GBF is a non-binding, soft law document that aims to boost political will and optimism for global efforts for biodiversity conservation. When it comes to the negotiation, China’s MEE published its position paper ahead of the COP15.56 It is well-known that China calls for a balanced approach and a more multilateral, just and democratic international system in international negotiations, as will be discussed in Section 16.4 as well. In this regard, China also urges all parties to ‘broaden consensus, move in the same direction, and facilitate the adoption of an ambitious, balanced and realistic Post-2020 Global Biodiversity Framework, and move toward a more just and equitable biodiversity governance system that embodies the best efforts of all parties’.57 Nevertheless, the Position 49

50

51 52

53 54 55 56 57

CBD Secretariat, COP15, Kunming Declaration – Declaration from the High-Level Segment of the UN Biodiversity Conference 2020 (Part I) under the theme ‘Ecological Civilization: Building a Shared Future for All Life on Earth’, 11–15 October 2021 and 25 April–8 May 2022, CBD/COP/15/5/Add.1. CBD/COP/15/L25, Final Text of Kunming-Montreal Global Biodiversity Framework, www.cbd.int/article/cop15final-text-kunming-montreal-gbf-221222. UN, ‘UN Secretary-General’s Remark to United Nations Biodiversity Summit’, 30 September 2020. CBD Secretariat, COP 10 Decision X/2, Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, 2011. CBD Secretariat, First Draft of the Post-2020 Global Biodiversity Framework, 5 July 2021, CBD/WG2020/3/3, p. 3. Ibid. As to the CSFM, see Chapter 3 of this volume. China’s MEE, Building a Shared Future, supra note 22. Ibid.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

330

Nengye Liu

Paper concentrates on talking about China’s domestic achievements and actions in the field, without elaborating on China’s answers to how to achieve an ‘ambitious, balanced and realistic’ post-2020 GBF at the same time. One concrete contribution from China is its pledge of RMB 1.5 billion to a new Kunming Biodiversity Fund.58 This fund aims to address the financing need of biodiversity conservation in developing countries. Meanwhile, through the establishment of the Kunming Biodiversity Fund, China has, for the first time, emphasized the ‘common but differentiated principle’ (CBDR)59 in the field of combating biodiversity loss, calling other countries, especially developed countries, to take the lead and make similar commitments. 16.4 CHINA AND GLOBAL OCEAN GOVERNANCE

The United Nations Convention on the Law of the Sea (UNCLOS)60 established a zonal approach regarding states’ jurisdiction over the sea. Moreover, UNCLOS, as a so-called umbrella convention underpinning global ocean governance, devotes a detailed Chapter 12 to marine environmental protection. When UNCLOS was negotiated during the Third UN Conference on the Law of the Sea (1973–82), China’s focus was its coastal jurisdiction. According to Zhiguo Gao, a former judge of the International Tribunal of the Law of the Sea (ITLOS), ‘the two most significant physical features of China’s geography, the length of its coastline and the size of its continental shelf, naturally led China to adopt a position favouring extensive coastal State jurisdiction’.61 When it came to the high seas, like many other developing countries, China was very supportive of the idea of ‘common heritage of mankind’ (CHM).62 In those days, China was barely recovering from the devastation caused by the Cultural Revolution, a period of political, economic and social disorder lasting ten years (1966–76). It had no capacity to explore and exploit natural resources beyond its borders. As Gao noted, ‘China voiced its strong support for the principle of the “Common Heritage of Mankind” during the negotiations and maintained that “the seas and oceans as well as their submarine resources beyond the limits of territorial seas and national jurisdiction are in principle commonly owned by all the peoples of the world”’.63 Nevertheless, China has experienced an extremely fast transformation over the recent decades. By 2021, China owned the world’s largest distant-water fishing fleet;64 the third largest 58

59

60

61 62

63 64

David Stanway, ‘China’s Xi Launches $232 mln Biodiversity Protection Fund for Developing Countries’, Reuters (12 October 2021), www.reuters.com/business/sustainable-business/china-launches-new-biodiversity-protection-fund -2021–10–12/. The CBDR principle is known to be enshrined by developing countries, including China, in the UN Framework Convention on Climate Change. It recognizes that countries (known as parties) have different duties and abilities to address the negative impacts of climate change, but all countries have an obligation to address climate change. See further Chapter 17 of this volume. UN Convention on the Law of the Sea (UNCLOS), Montego Bay, 10 December 1982, in force 16 November 1994, 1833 UNTS 397. Zhiguo Gao, ‘China and the LOS Convention’ (1991) 15(3) Marine Policy, 204. In 1967, Maltese Ambassador Dr Arvid Pardo gave a historic speech at the UNGA, proposing that the deep seabed and its natural resources beyond national jurisdiction should benefit mankind as a whole. See UNGA, First Committee, 1515th Meeting, 22nd Session, 1 November 1967. This is reflected in Art. 136 UNCLOS: ‘The Area and its resources are the common heritage of mankind.’ Moreover, Art. 311(6) stipulates that ‘States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof’. Gao, ‘China and the LOS Convention’, supra note 61. According to official statistics published in 2016 by the State Fisheries Bureau, China Ministry of Agriculture and Rural Affairs, China has 162 DWF companies with 2,900 DWF vessels; and the catch of its distant-water fleets is 1.99 million tons per year. See China Ministry of Agriculture and Rural Affairs, 13th Five-Year Plan for the Development of National Distant Water Fishing Industry, 2017 (in Chinese).

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

16 China and International Environmental Law

331

commercial shipping fleet by deadweight tonnage;65 and advanced deep-sea technology such as submersible ‘Jiao Long’ that can go as deep as 10,909 metres in the Mariana Trench.66 It also runs its own global satellite system, ‘Beidou’,67 not to mention that by completing its fifth research station on Ross Sea Shelf in 2022,68 China had amassed three permanent, year-round research stations in Antarctica, the same as the United States. Therefore, China, nowadays, has a unique status as a hybrid state in the international environmental lawmaking arena. It is a powerful player with both economic interests and technological capacity. Meanwhile, China is not in the camp of Western developed countries. This unique status shapes China’s foreign policy in the Xi Jiping era. Since President Xi Jinping took office in 2013, Chinese foreign policy has substantially recalibrated Deng Xiaoping’s strategy of ‘keeping a low profile’ as a quiet follower in the development of international law. Rather, in many areas, China has become much more vocal, firm, proactive regarding its ambitions to shape global governance and the international legal agenda. In 2017, in order to implement President Xi’s signature foreign policy – the Belt and Road Initiative (BRI)69 – the National Development and Reform Commission (NDRC) and the State Oceanic Administration (SOA) published the Vision for Maritime Cooperation under the Belt and Road Initiative.70 In 2021, the Chinese government adopted its 14th Five Year Plan (2021–5) for National Economic and Social Development and the Long-Range Objectives Through the Year 2035.71 The chapter dealing with the ocean72 provides that China aims to [a]ctively develop blue partnership; deeply involve [itself] in global ocean governance regarding institutional building, rules-making and implementation; foster the ‘ocean community of shared destiny for mankind’; participate in pragmatic cooperation in the Arctic to build [an] ‘Ice Silk Road’; as well as enhance capacity to protect and use Antarctica.

In this context, the rest of this section examines China’s interaction with two most recent and important international environmental lawmaking processes related to global ocean governance. 16.4.1 Biodiversity in Areas Beyond National Jurisdiction In areas beyond national jurisdiction (ABNJ), the freedom of the seas is to a large extent enshrined by UNCLOS, meaning that states enjoy freedom of navigation, fishing, overfly, as well as to lay submarine cables and pipelines.73 The high seas cover approximately 40 per cent of 65 66

67 68

69

70

71

72 73

United Nations Conference on Trade and Development, Review of Maritime Transport 2021, 2021, p. 35. China Global Television Network, ‘China’s Deep-Sea Manned Submersible Dives 10,909 Meters in Mariana Trench’, CGTN (10 November 2020), https://news.cgtn.com/news/2020-11-10/China-s-deep-sea-submersible-divesover-10-000-meters-VimT3OYNR6/index.html. BeiDou Navigation Satellite System, ‘System’ (n.d.), http://en.beidou.gov.cn/SYSTEMS/System/. China Global Television Network, ‘China Has Chosen the Site for Its Fifth Antarctic Station’, CGTN (15 January 2018), news.cgtn.com/news/31456a4e78677a6333566d54/share_p.html. State Council of the PRC, Action Plan on the Belt and Road Initiative, 2015, english.www.gov.cn/archive/publica tions/2015/03/30/content_281475080249035.htm. See also Chapter 2 of this volume. Vision for Maritime Cooperation under the Belt and Road Initiative’, Xinhua (20 June 2017), english.www.gov.cn /archive/publications/2017/06/20/content_281475691873460.htm. State Council of the PRC [国务院], 14th Five-Year Plan National Economic and Social Development and the LongRange Objectives for 2035 [中华人民共和果国民经济和社会发展第十四个五年规划和2035年远景目标纲要], 12 March 2021, www.gov.cn/xinwen/2021–03/13/content_5592681.htm (in Chinese). Ibid., part 9, p. 33. UNCLOS, supra note 60, at Art. 2.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

332

Nengye Liu

the earth’s surface, 64 per cent of the ocean’s surface and 95 per cent of its volume.74 However, the freedom of the high seas is sliding towards a tragedy of commons in the era of the Anthropocene.75 For example, according to The State of World Fisheries and Aquaculture published by the UN Food and Agriculture Organization (FAO), more than one-third of the world’s marine fish stocks are now overfished: ‘the percentage of stocks fished at biologically unsustainable levels increased from 10 percent in 1974 to 33.1 percent in 2015’.76 In December 2017, the UN General Assembly (UNGA) decided in Resolution 72/249 to convene an intergovernmental conference ‘to elaborate the text of an internationally legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ)’. The BBNJ negotiations began in September 2018. Six intergovernmental conferences (IGC 1–4, IGC 5.1 and 5.2) were held between 2018 and 2023. The BBNJ agreement was concluded in March 2023;77 it is probably the most important legal instrument for global ocean governance since the adoption of UNCLOS. The BBNJ negotiations address four key themes: marine genetic resources (MGRs), including benefit sharing; area-based management tools, such as marine protected areas (MPAs); environmental impact assessment (EIA); and capacity building and the transfer of marine technology (CBTT).78 During IGC 1 (4–17 September 2018), the Chinese delegation outlined their four general principles for BBNJ negotiations. They should: (1) be consensus-driven and parties should avoid making decisions via taking votes; (2) be based on UNCLOS, in line with the 2017 UNGA resolution that set the stage for the meeting; (3) strive to maintain common interests; (4) balance the interests of all parties and all sides to avoid favouring one over the other.79 In 2020, China once again reaffirmed its general position that ‘a balance between conservation and sustainable use is necessary’ for achieving any new legally binding instrument.80 However, ‘balance’ is not an objective and concrete term. China’s statements during the negotiations therefore help us further understand exactly where China stands. For example, China stated that the BBNJ agreement would not apply to ‘the use of fish and other marine living resources as the catch of fishing or for fishing, including fishing for commercial profit, living, sport, or recreation, and the relative activity including marine science research for fishing’.81 This is based on the ‘not undermining directive’ – the directive established along with the BBNJ Preparatory Committee (PrepCom) in UNGA Resolution 69/292, that the final agreement ‘should not undermine existing relevant legal instruments and frameworks and relevant global, 74

75

76 77

78

79

80

81

Global Environment Facility, ‘Areas Beyond National Jurisdiction’ (2022), www.thegef.org/topics/areas-beyondnational-jurisdiction. Hardin ‘pointed out the problem of individuals acting in rational self-interest by claiming that if all members in a group used common resources for their own gain and with no regard for others, all resources would still eventually be depleted’ (https://en.wikipedia.org/wiki/Tragedy_of_the_commons). See Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162(3859) Science, 1243–8. UN FAO, The State of World Fisheries and Aquaculture (Rome: FAO, 2018), 39–40. Draft agreement under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 4 March 2023, www.un.org/bbnj/. See UN, United Nations Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, Fifth Session of the Intergovernmental Conference, New York, 15–26 August 2022. ‘China Outlines Four Principles for Talks Towards Treaty on Marine Biodiversity Protection’, Xinhua (5 September 2018), www.xinhuanet.com/english/2018–09/05/c_137446710.htm. ‘China’s Deputy Ambassador to the United Nations Calls for Building Community of Shared Destiny for Ocean’, Xinhua (9 December 2020), www.xinhuanet.com/2020–12/09/c_1126839718.htm (in Chinese). International Institute for Sustainable Development, Earth Negotiations Bulletin, 3rd Session of the Intergovernmental Conference (IGC) on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction, New York, 19–30 August 2019.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

16 China and International Environmental Law

333

regional and sectoral bodies’.82 Needless to say, this statement is probably based on China’s huge distant-water fishing interests in the high seas, which are governed by existing regional fisheries management organizations. In the BBNJ negotiations, MGRs have been the most controversial, with states divided between camps regarding whether the CHM principle should be considered for regulations of access to and use of MGRs in ABNJ.83 As written in the UNCLOS Preamble: Desiring by this Convention to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.84

The CHM is enshrined by developing countries as a legally binding principle of international law. However, it is not recognized by Western developed countries owing to their interests in conducting commercial mining activities in the deep seabed.85 The International Seabed Authority (ISA) was established under Part XI of UNCLOS and its 1994 Agreement to ‘organize and control all mineral-resources-related activities in the Area for the benefit of mankind as a whole’.86 This offers a great opportunity to analyse China’s stance in international environmental lawmaking related to the high seas because China now is perhaps the only non-Western country that can undertake deep seabed mining. In fact, China has been very active in the ISA, which will be further discussed in Section 16.4.2. During the BBNJ negotiations, free access to MGRs is emphasized by a small group of developed countries, such as Japan, the European Union and the United States.87 They believe that activities such as bioprospecting in the high seas are subject to the freedom of the seas, while the Group of 77 + China, which has in total 134 members,88 supports the idea that oversight and, more crucially, benefit-sharing are required in relation to the extraction of MGRs.89 China stood with the Group of 77 (G77) and made a written submission to the Preparatory Committee on 5 December 2016 to ‘reaffirm the view that the principle of common heritage of humankind 82 83

84 85

86 87

88 89

UNGA Resolution A/RES/69/292, 6 July 2015, Sixty-Ninth Session, agenda item 74(a). Joanna Mossop, ‘Update on the Intergovernmental Conference for an International Legally Binding Instrument for the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction’, ANZSIL Perspective (2020); Vito De Lucia, ‘A Very Quick Look at the Revised Draft Text of the New Agreement on Marine Biodiversity in Areas beyond National Jurisdiction’, EJIL: Talk! (23 January 2020), www.ejiltalk.org/a-very-quick-look -at-the-revised-draft-text-of-the-new-agreement-on-marine-biodiversity-in-areas-beyond-national-jurisdiction/; Ethan Beringen, Nengye Liu and Michelle Lim, ‘Australia as a Middle Power: Challenging the Narrative of Developed/Developing States in International Negotiations Surrounding Marine Genetic Resources’ (2021) 52(2) Ocean Development and International Law, 143–68. Preamble, UNCLOS, supra note 60. To be further discussed in Section 16.4.2. See Ru¨diger Wolfrum, ‘The Principle of the Common Heritage of Mankind’ (1983) 43 Zeitschrift fu¨r ausla¨ndisches o¨ffentliches Recht und Vo¨lkerrecht, 314. International Seabed Authority (ISA), ‘About ISA’ (2022), at www.isa.org.jm/about-isa. International Institute for Sustainable Development, ‘Summary of the first session of the Intergovernmental Conference on an Internationally Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction’ (2018) 25 (179) Earth Negotiations Bulletin, 1, 3. Group of 77 at the United Nations, ‘The Member States of the Group of 77’, www.g77.org/doc/members.html. International Institute for Sustainable Development, Earth Negotiations Bulletin, 2nd Session of the Intergovernmental Conference (IGC) on the Conservation and Sustainable Use of Marine Biodiversity of Areas beyond National Jurisdiction (BBNJ), Summary Highlights, 25–5 April 2019.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

334

Nengye Liu

must underpin the new regime governing marine genetic resources of areas beyond national jurisdiction’.90 It holds the view that ‘the principle of the common heritage of humankind provides the legal foundation for a fair and equitable regime of conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including the access and sharing of benefits of marine genetic resources’.91 The Chinese delegation expressed specific views in IGC 3 (19–30 August 2019) such as that there is a need for a broad definition of access to MGRs, going beyond the simple collection of MGRs;92 and the importance of fair and equitable benefit-sharing from the utilization of MGRs in ABNJ.93 It is difficult for China to openly abandon the CHM principle, given that China firmly supports the G77 to include the CHM principle in UNCLOS negotiations during the Third UN Conference on the Law of the Sea.94 Nevertheless, China, a country with advanced maritime technology, might inevitably favour unrestricted access to MGRs in the future. China’s 2016 Deep Seabed Law, as further elaborated in Section 16.4.2, provides that ‘the guiding principles of Chinese activities in the deep seabed are the peaceful use, cooperation, environmental protection, as well as for the “common wellbeing of humankind”’.95 This deliberate, vague wording ‘common wellbeing of humankind’ leads some to believe that when it comes to state practice related to the CHM principle, China might stay in the middle ground of the two camps and adopt a more nuanced approach.96 16.4.2 Deep Seabed The seafloor beyond national jurisdiction (the Area) contains rich mineral resources that are potentially feasible for commercial exploitation. The deep seabed is another area that China has been eyeing; China has been very active in trying to shape the deep seabed’s governance regime in recent years. As early as 1990, the Chinese government established the China Ocean Mineral Resources Research and Development Association (COMRA), which registered itself as one of the seven pioneer investing institutions for the preparatory committee for ISA and ITLOS in 1991. So far, ISA has issued thirty-one fifteen-year contracts with twenty-two contractors for the exploration of polymetallic nodules, polymetallic sulphides and cobalt-rich ferromanganese crusts in the deep seabed.97 China is probably the most active player among a small group of major countries. The Chinese government is the only country in the world that has sponsored three entities – COMRA, China Minmetals Corporation and Beijing Pioneer Hi-Tech Development Corporation – to enter into contracts for the exploration of all three types of deep seabed mineral 90

91

92

93 94 95

96 97

Group of 77, Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, Group of 77 and China’s Written Submission, 5 December 2016. Group of 77, Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, Group of 77 and China’s Written Submission, 2016. International Institute for Sustainable Development, Earth Negotiations Bulletin, 3rd Session of the Intergovernmental Conference (IGC) on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction, 19–30 August 2019. Ibid. Li Jing, ‘High Seas Treaty: Race for Rights to Ocean’s Genetic Resources’, China Dialogue (7 August 2019). Law of the PRC on the Exploration and Development of Resources in Deep Seabed Areas (promulgated by the Standing Committee of the National People’s Congress, 26 February 2016, effective 1 May 2016), Art. 3. Li, ‘High Seas Treaty’, supra note 94. ISA, ‘Exploration Contracts’ (2022), www.isa.org.jm/exploration-contracts.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

16 China and International Environmental Law

335

deposit in deep seabed and subsoils beyond national jurisdiction (the Area). Therefore, China’s Deep Seabed Law, which applies to the activities of any Chinese citizen, juridical person or organization,98 is an important domestic benchmark with which to understand China’s position towards international environmental lawmaking in the Area. The Deep Seabed Law, which entered into force on 1 May 2016, aims to regulate activities including prospecting,99 exploration100 and exploitation;101 promote marine scientific research; protect the marine environment; achieve sustainable utilization of resources; and benefit mankind as a whole in the Area.102 The Deep Seabed Law has been further implemented by three administrative measures, with respect to ‘licensing’,103 ‘sample management’104 and ‘data and information management’.105 The adoption of the Deep Seabed Law is essential for China to fulfil several existing international obligations. Firstly, it is provided by Article 139 of UNCLOS that ‘State Parties have the responsibility to ensure that activities carried out by their sponsored contractors in the Area shall conform with Part XI of the UNCLOS’.106 States shall ‘assist the ISA by taking all measures necessary to ensure such compliance in accordance with article 139’.107 Annex III of UNCLOS further elaborates that ‘the sponsoring State or States shall, pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention’.108 Secondly, according to UNCLOS, ‘a sponsoring State shall not be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction’.109 The landmark ITLOS Advisory Opinion in 2011 clarifies that a sponsoring state’s liability results from its failure to fulfil obligations and consequent damage by the contractor.110 That is to say, the sponsoring state must actively adopt ‘all necessary and appropriate measures to secure effective compliance’ of the sponsored contractor with its obligations, so as to shield any liability for damage resulting from deep seabed activities.111 As revealed by Chen, the adoption of

98 99 100 101 102 103

104

105

106 107 108 109 110

111

Deep Seabed Law, supra note 95, Art. 2. Ibid., Art. 27(3). Ibid., Art. 27(1). Ibid., Art. 27(2). Ibid., Art. 1. State Oceanic Administration [国家海洋局], ‘Measures for the Management of Permits on the Exploration and Development of Resources in Deep Seabed Areas’ [海洋局关于引发《深海海底区域资源勘探开发许可管理办 法》的通知], 27 April 2017, www.gov.cn/gongbao/content/2017/content_5227831.htm (in Chinese). State Oceanic Administration [国家海洋局], ‘Interim Measures for the Management of Marine Samples from Exploration and Development of Resources in Deep Seabed Areas’ [海洋局关于印发《深海海底区域资源勘探 开发样品管理暂行办法》的通知], 29 December 2017, www.gov.cn/gongbao/content/2018/content_5299621.htm (in Chinese). State Oceanic Administration [国家海洋局], ‘Interim Measures for the Management of Data on the Exploration and Development of Resources in Deep Seabed Areas’ [海洋局关于印发《深海海底区域资源勘探开发资料管 理暂行办法》的通知], 29 December 2017, www.comra.org/2018–01/04/content_40131061.htm (in Chinese). UNCLOS, supra note 60, Art. 139. Ibid., Art. 153(3). Ibid., Art. 4, Annex III. Ibid. International Tribunal for the Law of the Sea Reports, Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, 1 February 2011. Ibid., pp. 60–1, para. 186.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

336

Nengye Liu

the 2016 Deep Seabed Law is actually a necessity for the Chinese government to avoid any potential claim of state responsibility owing to wrongdoing by its sponsored entities.112 Chinese scholars have already pointed out that the Deep Seabed Law is limited in ensuring environmental protection in the Area. For example, the current legislation focusses on contractors’ environmental obligations before and during the exploration and development activities.113 The missing part is the stage when activities have been fully carried out.114 Further, Chapters 5 and 6 of the Deep Seabed Law provide a detailed inspection scheme and liability for contractors in violation of the Deep Seabed Mining Law.115 Nevertheless, there is no financial arrangement for compensation or remediation arising from a contractor’s failure to fulfil certain obligations.116 Following the successful adoption of Exploration Regulations on polymetallic nodules (2000 and revised in 2013), polymetallic sulphides (2010) and cobalt-rich ferromanganese (2012), ISA began drafting regulations to govern the exploitation of mineral resources in 2014.117 Until now, ISA has delivered four drafts,118 the latest one published in July 2019.119 It must be pointed out that the Exploitation Regulation aims to ‘give effect to article 150 of the UNCLOS by ensuring that activities in the Area shall be carried out in such a manner as to foster the healthy development of the world economy and the balanced growth of international trade, and to promote international cooperation for the overall development of all countries, especially developing States’.120 This is not an environment-focussed regulation,121 though ‘the effective protection of the Marine Environment from the harmful effects which may arise from Exploitation’122 is a ‘fundamental consideration’ for the Regulation. Needless to say, as a key member of the ISA Council,123 China boasts considerable potential influence and strong political will over the development of the Exploitation Regulation. The Chinese government has so far made three comprehensive submissions (20 December 2017,124 30 September 2018125 and 15 October 2019126) to ISA with comments on the Draft Regulations on Exploitation of Mineral Resources in the Area. Similar to China’s positions in the BBNJ, the Chinese government hopes to strike a balance between the CHM principle and the interests of 112

113

114

115

116 117 118

119 120 121

122 123

124

125

126

Chelsea Zhaoxi Chen, ‘China’s Domestic Law on the Exploration and Development of Resources in Deep Seabed Areas’ in Catherine Banet (ed.), The Law of the Seabed, Access, Uses and Protection of Seabed Resources (Leiden: Brill, 2020), 343. Yen-Chiang Chang, ‘Chinese Legislation in the Exploration of Marine Mineral Resources and Its Adoption in the Arctic Ocean’ (2019) 168 Ocean and Coastal Management, 265–73, at 266. Guobin Zhang and Pai Zheng, ‘A New Step Forward: Review of China’s 2016 Legislation on International Seabed Area Exploration and Exploitation’ (2016) 73 Marine Policy, at 244, 246, 251–3. Nengye Liu and Rakhyun Kim, ‘China’s New Law on Exploration and Exploitation of Resources in the International Seabed Area of 2016’ (2016) 31(4) International Journal of Marine and Coastal Law, 697. Chen, ‘China’s Domestic Law’, supra note 112, at 368. ISA, Draft Regulations on Exploitation of Mineral Resources in the Area, 15–19 July 2019, ISBA/25/c/WP.1. Four versions include February 2016, First Working Draft; August 2017, Draft Regulations; June 2018, Revised Draft Regulations (ISBA/24/LTC/WP.1); and July 2019 (ISBA/25/C/WP.1). ISA, Draft Regulations, supra note 117. Ibid., reg 2(b). Indeed, ‘little consideration has been given as to how, and to an even lesser extent, whether deep seabed mining should proceed’. See Rakhyun Kim, ‘Should Deep Seabed Mining Be Allowed?’ (2017) 82 Marine Policy, 134–7. ISA, Draft Regulations, supra note 117, reg 2(e). China was part of Group B (largest investors) from 1996 to 2004. It became a member of Group A (largest consumers) in 2005. PRC, Comments by the Government of the People’s Republic of China on the Draft Regulations on Exploitation of Mineral Resources in the Area, 20 December 2017. PRC, Comments by the Government of the People’s Republic of China on the Draft Regulations on Exploitation of Mineral Resources in the Area, 30 September 2018. PRC, Comments by the Government of the People’s Republic of China on the Draft Regulations on Exploitation of Mineral Resources in the Area, 15 October 2019.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

16 China and International Environmental Law

337

sponsoring states and the contractors that they have sponsored;127 as well as between exploitation of mineral resources and marine environmental protection.128 It is noted that initially, in the 2017 Submission, China paid most attention to the rights of contractors. China emphasized that ‘the balance of a Contractor’s rights and obligations should be ensured’;129 ‘The Regulation should incorporate in a comprehensive manner not only a Contractor’s obligations, but also the rights of a Contractor including the priority of an exploration Contractor for exploiting the resources’.130 China was also concerned that in terms of environmental matters, the application procedure for a Plan of Work for exploitation was not ‘concise and explicit’.131 After some time had gone by, the Chinese delegation’s 2019 Submission was much more comprehensive with comments on almost all parts of the Draft Exploitation Regulation, with particular focus on the Enterprise, Payment Mechanism, Inspection Mechanism and Independent Expert.132 Although China has been working on environmental management of deep seabed mining as well,133 to a large extent, China’s contributions to the Draft Exploitation Regulation fall in the area of facilitating exploitation, rather than environmental protection. 16.5 CONCLUDING REMARKS

In conclusions, what are the findings of this chapter on the interaction between China and international environmental law? Although the rising China, as the world’s second largest economy, has shown great interest in shaping international environmental lawmaking, in practice it still pays more attention to domestic implementation. This is evidenced in areas of biodiversity conservation. The adoption of the 2016 Deep Seabed Mining Law is perhaps another example. China rushed to fulfil her international obligations under UNCLOS, following ITLOS’s issuance of its Advisory Opinion in 2011. China’s focus on domestic practice in the field of international environmental law is probably understandable, given its difficult relations with the West in recent years. Increasing geopolitical tensions between China and the United States are indeed jeopardizing the international cooperation and collaboration that are essential to addressing existential environmental threats.134 Nevertheless, the development of international environmental law is largely driven by external forces – human-induced and global environmental change. It is acknowledged by the international community in the Preamble of the Kunming Declaration that ‘unprecedented and interrelated crises of biodiversity loss, climate change, land degradation and desertification, ocean degradation, pollution and increased risks to human health and food security, pose an existential threat to our society, our culture, our prosperity and our planet’.135 Therefore, be it

127 128 129 130 131 132 133

134

135

PRC, Comments on Draft Regulations (2017), supra note 124, para. 2. Ibid., para. 3. Ibid., para. 4. Ibid. Ibid., p. 8. PRC, Comments on Draft Regulations (2019), supra note 126, pt. II. For example, ‘CORMA proposed the setting up of a regional environmental management plan (REMP) within an area of the western Pacific where China, Russia, Japan and South Korea have exploration claims for a cobalt crust exploration contract area’. See Wang Yan, ‘China’s Deep-Sea Mining, a View from the Top’, China Dialogue (18 October 2019), chinadialogueocean.net/10891-china-deep-sea-exploration-comra/. Nengye Liu, ‘Australia–China Environmental Cooperation in a Hyperconnected World’, Asialink Insights (3 May 2022), asialink.unimelb.edu.au/insights/australia-china-environmental-co-operation-in-a-hyperconnectedworld. CBD Secretariat, Kunming Declaration, supra note 49.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

338

Nengye Liu

biodiversity loss, climate change or marine pollution, they are shared concerns for China and the West to address together, in order to have a sustainable future for all people on the planet. A more fundamental question in this regard is how human beings can make contemporary decisions that will be able to deal with long-term threats that are well beyond the lifetime of those who are currently in charge. This is particularly an important question for China because of its size in population, economy and geography. As the world’s major power on almost all fronts, China’s decision is of great importance to what kind of future Chinese and other people on this planet are going to embrace. Once again, this is a question outside the box of the rise of China, which has nothing to do with the United States or the West. This chapter concludes by urging the Chinese leaders to seek wisdom from traditional Chinese philosophy dating back a thousand years – Sageliness Within and Kingliness Without. That means ‘a king can lead to an orderly world in which people can help each other to fulfill themsel[ves] harmoniously, after accomplishing his self-cultivation to be a sage’. A country like China, if she is dedicated to making positive, transformative, domestic changes towards a sustainable, green future, will no doubt become a fearless leader in the field of international environmental law and beyond.

https://doi.org/10.1017/9781009041133.018 Published online by Cambridge University Press

17 China and Global Climate Change Governance A Union of Top-Down Governance and Multi-stakeholder Engagement Tianbao Qin and Bingyu Liu

17.1 INTRODUCTION

Traditional global climate change governance is characterized by states having the central role, poor enforcement and insufficient funding. As a result, the international community has not effectively addressed global climate change, which threatens the survival of humankind. Over time, however, it has come to be recognized that larger involvement by multiple stakeholders, including corporations, financial institutions and non-governmental organizations (NGOs), is not only helpful but also necessary to enhance global climate change governance. This recognition has promoted the gradual transition of climate governance from the traditionally statecentric approach to a multi-stakeholder engagement approach. Against this background, as an essential player in global climate change governance, China has already adopted a combination of the top-down governance and multi-stakeholder engagement approaches to address climate issues, guided by the concepts of ‘ecological civilization’ and building a ‘community with a shared future for mankind’ (CSFM).1 As China is the world’s largest greenhouse gas (GHG) emitter, its climate policy framework is of considerable importance for the future of global climate governance. In recent years, China has been proactive in climate change policymaking and has improved its climate governance through progressive policymaking and institution building domestically and internationally. China’s climate policy framework demonstrates a stable movement towards developing a sustainable industrial transformation and a lowcarbon economy. This chapter examines how China is seeking to steadily exert its influence on global climate change governance by jointly adopting the two aforementioned governance approaches, namely the top-down governance approach and the multi-stakeholder engagement approach. Section 17.2 briefly examines China’s profile in global climate change governance, which is characterized by its adoption of a combination of the state-centric approach and multistakeholder engagement in international climate change lawmaking and negotiations. The authors identify China’s evolving role, examine the framework of China’s participation in global climate change governance and reveal China’s transformation from a norm follower to a positive participant and further to a normative contributor to global climate change governance. Section 17.3 analyses the specific measures that China has taken in the areas of climate lawmaking, green investment and foreign aid to fight climate change. It examines China’s general climate policy framework under the top-down governance approach at both the national and the international levels and the convergence of China’s participation in international 1

For more on ‘ecological civilization’, see Chapter 16 in this volume; for more on the CSFM, see Chapter 3 in this volume.

339 https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

340

Tianbao Qin and Bingyu Liu

climate treaties with the development of China’s domestic climate change legal framework. This section explicitly illustrates the rapid growth of China’s multi-stakeholder engagement in addressing climate issues by providing specific examples of Chinese corporations’ and financial institutions’ efforts to incentivize the transition to a low-carbon economy. Further, it describes how China’s multiple stakeholders’ involvement in climate governance has progressively developed. Section 17.4 explores how China should improve the engagement with the international law of global climate change governance in a changing global context. This section proposes that China should enhance cooperation with key partners in global climate governance, such as the United States and the European Union (EU). And, in the authors’ view, adopting a combination of the top-down and the multi-stakeholder engagement approaches can enhance the coordination of stakeholders at different levels of governance and across various sectors as well as help to accelerate the reduction of carbon emissions globally. The conclusion (Section 17.5) recaps the main findings of the chapter. 17.2 CHINA’S ENGAGEMENT WITH GLOBAL CLIMATE GOVERNANCE

China is emerging as one of the key actors and leaders in global climate change. Since the United Nations (UN) Framework Convention on Climate Change (UNFCCC) was concluded in 1992, climate change and its adverse effects have been deemed a common concern of humankind.2 The Chinese government has demonstrated its ambition to lead in this area by implementing the UNFCCC and contributing to the finalization of the Paris Agreement.3 China has also adopted measures to address climate change domestically. In fact, China’s climate change policy framework is fully integrated into its domestic economic and social development reform programmes. This section analyses China’s evolving role in global climate change governance and China’s efforts to transition from being an active participant to becoming an active contributor and ultimately a global leader of global climate governance. The key point of this section is that China is now adopting a mixed approach that combines top-down governance and multi-stakeholder engagement to address climate issues domestically and internationally. 17.2.1 A Combination of State-centric and Multi-stakeholder Engagement Approaches Owing to its commitment to behave as a responsible great power and the belief that such a role requires further commitment to environmental governance, China has endeavoured to strengthen its leadership in global environmental governance. Generally speaking, when implementing governance activities, the Chinese government has adopted a top-down or state-centric governance approach, with governmental agencies playing a dominant role in the fight against climate change and leading the efforts in low-carbon development and climate change adaptation.4 The climate change policy framework has become an integrated part of China’s 2

3

4

United Nations Framework Convention on Climate Change, United Nations Treaty Series, vol. 1771, 107, New York, 9 May 1992, Preamble. X. Wang, T. Tang, K. Lu and Y. Zhang, ‘Research and Scholarship on Climate Change Law in Developing Countries’ in D. Farber and M. Peeters (eds.), Climate Change Law (Elgar Encyclopedia of Environmental Law), ch. 10 (Cheltenham: Edward Elgar, 2016), 121. For China’s efforts during the negotiation of the Paris Agreement, see X. S. Gao, ‘The Paris Agreement and Global Climate Governance: China’s Role and Contribution’ (2016) 2 China Quarterly of International Strategic Studies, 378–80. J. Cao, ‘Reconciling Economic Growth and Carbon Mitigation: Challenges and Policy Options in China’ (2010) 5(1) Asian Economic Policy Review, 110–29.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

341

domestic economic and social development and reform programmes, and the Chinese government has strategically taken advantage of international pressure to address climate change to overcome domestic resistance and facilitate the transition to a low-carbon and sustainable development regime.5 Against this background, the Chinese government has promulgated many climate policies and guidelines for corporate social responsibility to enhance its international reputation and ensure the faithful implementation of international climate conventions. Section 17.3.2 specifically provides an overview of the Chinese government’s regulations and policies concerning climate governance, which demonstrate that China has made diligent efforts to improve its climate regulations and guidelines, including by encouraging the contribution of the Chinese private sector to climate governance. Simultaneously, multi-stakeholder engagement has become a crucial approach enabling China to engage in global climate governance. A multi-stakeholder approach refers to global climate governance being pursued at multiple levels by a variety of participants.6 Traditional global climate governance has been beset by collective-action failures, manifesting as deficiencies in participation, implementation and funding. The fragmentation of global climate change governance and the decreasing influence of the traditional state-centric governance structure of climate change governance provide opportunities for multi-stakeholder engagement.7 Consequently, the role of multi-stakeholder participation in global climate negotiations and governance has increased dramatically since the conclusion of the Paris Agreement.8 The UN Intergovernmental Panel on Climate Change has also actively promoted pluralistic, multi-tiered and participatory global climate governance schemes in which public–private partnership is considered an effective tool for global climate governance.9 Multiple stakeholders can influence the power structure of climate negotiations and governance through flexible mechanisms.10 The active participation of multiple stakeholders, which include transnational corporations, financial institutions and social organizations, helps to address the insufficiency of traditional top-down climate governance and mitigates conflicts of interest between states.11 Thus, owing to multi-stakeholder governance being more efficacious, a gradual transition in climate governance is taking place, where multi-stakeholder governance is replacing sovereign state dominance. In addition, multi-stakeholder engagement can effectively expand the social support for UN climate governance. Direct participation of multiple stakeholders in climate negotiations can yield extensive consultation, shared benefits and joint contributions and thus enhance the effectiveness of the international climate governance regime.12 5

6

7

8

9

10 11

12

Haibin Zhang et al., ‘China’s Participation of International Climate Change Negotiations for 30 Years: History and the Evolution of China’s Role’ (2021) 6 Yuejiang Academic Journal, 15–40 [张海滨等 : 《中国参与国际气候变化谈 判30年 : 历史进程及角色变迁》, 载《阅江学刊》2021年第6期]. T. Hale, ‘Transnational Actors and Transnational Governance in Global Environmental Politics’ (2020) 23 Annual Review of Political Science, 203–20; S. Chan et al., ‘Reinvigorating International Climate Policy: A Comprehensive Framework for Effective Non-state Action’ (2015) 6(4) Global Policy, 466–73. F. Zelli, ‘The Fragmentation of the Global Climate Governance Architecture’ (2011) 2(2) Wiley Interdisciplinary Reviews: Climate Change, 255–70. H. Van der Ven et al., ‘Valuing the Contributions of Nonstate and Subnational Actors to Climate Governance’ (2017) 17(1) Global Environmental Politics, 1–20. L. I. Huiming, ‘The Paris Agreement and Transition of the Global Climate Governance System’ (2016) Global Review, 1–20 [李慧明 : 《巴黎协定》与全球气候治理体系的转型, 载《国际展望》2016年第2期, 第1–20页]. Hale, ‘Transnational Actors and Transnational Governance’, supra note 6. M. Ja¨nicke, ‘The Multi-level System of Global Climate Governance – The Model and Its Current States’ (2017) 27(2) Environmental Policy and Governance, 108–21. See also M. Schreurs, ‘Multi-level Climate Governance in China’ (2017) 27(2) Environmental Policy and Governance, 163–74. Ibid.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

342

Tianbao Qin and Bingyu Liu

With the increasing participation of multiple stakeholders in climate governance, corporations, financial institutions and NGOs are attaching more importance to international cooperation and playing an increasingly important role in climate diplomacy.13 Both the 2019 UN Climate Action Summit and the 2020 UN Climate Ambitions Summit highlighted the importance of multi-stakeholder cooperation in achieving the Paris Agreement goal of carbon neutrality. As of March 2021, more than 300 international companies, commercial institutions and investment banks have joined the carbon-neutral movement to achieve net-zero emissions between 2030 and 2050.14 China has been late to incorporate economic policy mechanisms and actors into its environmental governance system.15 It was not until the mid-1990s that China’s environmental officials began to experiment with policy initiatives that were more oriented towards, and made use of, economic mechanisms.16 Section 17.3.3 provides an overview of the involvement of China’s private sector in combating climate change. 17.2.2 China’s Evolving Role in Global Climate Governance China has been active in international lawmaking concerning climate governance, including in negotiating the UNFCCC, the Kyoto Protocol and the Paris Agreement. The Chinese government has shown its ambition by implementing the UNFCCC and contributing to the finalization of the Paris Agreement.17 Ever since China entered into the UNFCCC negotiations at the end of the 1980s, its position and policies have exhibited both continuity and some adjustments. With respect to its position in international climate change negotiations, from being an active participant China has evolved into being an active contributor and, further, is becoming an active leader. Additionally, its domestic climate actions have evolved along with its international commitments. China’s engagement in international climate lawmaking negotiations can be divided into three phases.18 China was an active participant in global climate negotiations between 1990 and 2006. This period saw China’s involvement in the early global climate change negotiations that led to the UNFCCC. To further coordinate its domestic policies with international climate change policies, China established a National Coordination Group on Climate Change with the participation of thirteen ministry-level departments in 1998.19 In 2007, China established its National Expert Committee on Climate Change; this has become a vital think tank that has supported China’s participation in climate change negotiations.20 During the early stage, discrepancies between global and China’s domestic climate law and policy were apparent. Although the Chinese government did pay attention to environmental problems, economic growth considerations continued to play a more important role in guiding China’s climate law and policy. 13 14 15

16 17

18

19

20

J. Gupta. The History of Global Climate Governance (Cambridge: Cambridge University Press, 2014), 147–72. Santander, Climate Finance Report 2021–June 2022, https://bit.ly/3DWgmD6. E. Elizabeth, ‘Environmental Governance: The Emerging Economic Dimension’ (2006) 15(2) Environmental Politics, 171–89. Ibid. X. Gao, ‘China’s Evolving Image in International Climate Negotiation: From Copenhagen to Paris’ (2018) 4(2) China Quarterly of International Strategic Studies, 213–39. See also Z. Li et al., ‘China’s 30-Year Participation in International Climate Governance in Retrospect’ (2021) 31(9) China Population, Resources and Environment, 202–10 [李志斐等 : 《中国参与国际气候治理30年回顾》, 载《中国人口·资源与环境》2021年第9期]. Haibin Zhang et al., ‘China’s Participation’, supra note 5. See also M. Pearson, ‘China and Global Climate Change Governance’ in K. Zeng (ed.), Handbook on the International Political Economy of China, 411–23 (Cheltenham: Edward Elgar, 2019). ‘Report of The State Council on the Work of Addressing Climate Change’ [《国务院关于应对气候变化工作情况 的报告》], npc.gov.cn/zgrdw/huiyi/ztbg/jjydqhbh1110/2009-08/25/content_1515278.htm. Ibid.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

343

In the second period (2007–14), China shifted to become a more active contributor in global climate change governance. This change indicated that China was willing to give increasing attention to the problem of climate change, and this entailed a recalibration of its position in global climate governance. China began to mainstream and systematize its climate change policies. Aware that its energy-intensive growth model was unsustainable, the Chinese government started to consider adopting a new sustainable development model. This transition gradually closed the gap between international climate law and policy and China’s domestic climate law and policy. In June 2007, the State Council issued China’s National Plan for Addressing Climate Change, which for the first time explicitly included addressing climate change in the overall plan for national economic and social development.21 This was also China’s first comprehensive policy document on climate change and the first national plan on climate change issued by a developing country. In October 2007, the 17th National Congress of the Communist Party of China (CPC) proposed ‘strengthening capacity building to respond to climate change and make contributions to protecting the global climate’.22 This marked the first time that addressing climate change was included in a CPC National Congress report. Since 2008, China has annually elaborated its policies and actions on climate change. China’s negotiating and policy positions have subtly shifted since 2007. China actively advanced the UN climate change negotiation process during this phase, participating in the development of the Bali Action Plan and the Copenhagen Accord. While reaffirming that developing countries should not be held to as stringent an emission reduction standard as that of developed countries at the present stage, China proposed that developing countries should take active measures, to the extent that they are able, to control GHG emissions. In 2010, China made voluntary commitments under the Copenhagen Accord and committed to reduce its carbon intensity per unit of gross domestic product (GDP) by 40 per cent to 45 per cent below 2005 levels, to increase the share of non-fossil fuels used in primary energy consumption to roughly 15 per cent by 2020, and to increase forest coverage by 40 million hectares and forest stock volume by 1.3 billion cubic metres by 2020 from 2005 levels.23 Despite being a voluntary commitment, it represented the first quantified, explicit commitment China had made in the history of climate change negotiations. During this period, China also established and improved functional institutions and working mechanisms for addressing climate change, such as the National Leading Group on Climate Change, Energy Conservation, Emission Reductions and the Department for Climate Change under the National Development and Reform Commission.24 The third period commenced around 2015, when China began to play a leadership role in global climate governance.25 This period marks China’s comprehensive engagement in the international negotiations of the Paris Agreement era. Although the resistance to a binding 21

22

23

24

25

‘China’s National Plan for Addressing Climate Change’ [《中国应对气候变化国家方案》], gov.cn/gzdt/2007–06/ 04/content_635590.htm. ‘Speech Delivered at the 17th National Congress of the Communist Party of China’ [《在中国共产党第十七次全 国代表大会上的报告》], npc.gov.cn/zgrdw/npc/xinwen/szyw/zywj/2007–10/25/content_373528.htm. See letter from Department of Climate Change, National Development and Reform Commission of China (28 January 2010), unfccc.int/files/meetings/cop_15/copenhagen_accord/application/pdf/chinacphaccord_app2.pdf. In 2007, China established the National Leading Group on Climate Change, Energy Conservation and Emission Reduction to serve as the deliberation and coordination body for the national work on climate change, energy conservation and emission reduction. In September 2007, the Ministry of Foreign Affairs set up a leading Group for external work on Climate Change and a special representative for climate change negotiations. In 2008, the National Development and Reform Commission set up a Department for Climate Change. In the report of the 19th CPC National Congress, it is clearly stated that China will ‘take a driving seat in international cooperation to respond to climate change, [and] China has become an important participant, contributor, and torchbearer in the global endeavor for ecological civilization’.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

344

Tianbao Qin and Bingyu Liu

GHG emission–reduction target has remained unchanged, China’s attitude towards global climate change negotiations has become more flexible and cooperative. China has coordinated with other major countries to facilitate the process of the signing of the Paris Agreement. China has continued to adhere to the principle of ‘common but differentiated responsibilities’, which was finally included in the Paris Agreement. In addition, China has jointly issued bilateral cooperation statements with other countries, such as the China–US Joint Statement on Climate Change, the China–UK Joint Statement on Climate Change (2014), the China–France Joint Statement on Climate Change (2015) and the China–EU Joint Statement on Climate Change (2015), which ultimately promoted the successful adoption of the Paris Agreement.26 At the domestic level, in 2016 China declared in its nationally determined contribution (NDC) that it intended to achieve peak carbon dioxide emissions by 2030 and exert its best efforts to achieve this goal earlier; China further committed to lowering its carbon dioxide emissions per unit of GDP by 60 per cent to 65 per cent from 2005 levels, to increase non-fossil fuel use in primary energy consumption to 20 per cent and to increase its forest stock by 4.5 billion cubic metres compared with 2005 levels.27 During this period, China has been a positive participant and contributor to global climate change governance, with the concepts of ‘ecological civilization’, building a CSFM and the ‘Green Belt and Road Initiative’ (Green BRI) as guiding principles. Specifically, China’s efforts to incentive the transition to a low-carbon economy are led by the concept of ecological civilization, which advocates for a shift from the focus on exploiting fossil energy to utilizing renewable energy and low-carbon energy. During this period, the international community has widely recognized China’s leading role. China’s capacity to cope with climate change continues to improve, and its climate negotiation power is becoming stronger.28 During the 75th session of the UN General Assembly, China announced that it would increase its NDC and expend more effort to achieve peak carbon emissions by 2030 and carbon neutrality by 2060. This further demonstrates China’s consistent commitment to addressing climate change.29 17.2.3 Reasons for China’s Participation in Global Climate Governance Many factors contribute to China’s participation in global climate governance. In general, China’s seeking to lead in global climate governance is motivated by China’s own national conditions and is a strategic response to international expectations, manifesting China’s intention to be responsible for protecting global ecological security.30 Climate change poses an increasingly severe threat to global ecology, and, to secure the common interests of mankind, China has deemed it prudent to take a more active role in international climate negotiations. Thus, economics, ecology and the ever-intensifying global trend of green and low-carbon

26 27 28

29

30

Haibin Zhang et al., ‘China’s Participation’, supra note 5, at 24. NDC Registry, www4.unfccc.int/sites/ndcstaging/Pages/Party.aspx?party=CHN&prototype=1. CCICED, ‘Global Climate Governance and China’s Role’ (2019), cciced.eco/wp-content/uploads/2020/06/ccicedsps-1–1-climate.pdf. ‘China Headed Towards Carbon Neutrality by 2060’, news.un.org/en/story/2021/09/1100642; ‘Xi’s Statements at UN Meetings Demonstrate China’s Global Vision, Firm Commitment’, english.cctv.com/2020/10/03/ ARTIHvrMfX8O1nBZAx0LlBSa201003.shtml; ‘China Carbon Neutrality in 2060: A Possible Game-Changer for Climate’, https://bit.ly/3se54HW. F. Teng and P. Wang, ‘The Evolution of Climate Governance in China: Drivers, Features, and Effectiveness’ (2021) 30(1) Environmental Politics, 141–61.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

345

development have jointly compelled China to assume a leadership role.31 Surpassing the United States as the world’s largest carbon emitter in 2006, China has found that its energy consumption has increased rapidly owing to its unprecedented industrialization and urbanization. With China’s rapid economic growth, the international community’s expectations for China’s participation in international climate negotiations increased, and continue to increase, accordingly.32 Against this background, China has faced mounting international pressure to reduce GHG emissions. Coupling that pressure with a desire to play a leadership role in global climate governance and present itself as a responsible developing country, China has endeavoured to strengthen its soft power in global climate governance. China’s shift from the pursuit of a high GDP growth rate to high-quality development has contributed to China’s assumption of a leadership role in fighting climate change.33 Further, with mounting pressure to tackle domestic environmental problems associated with the burning of fossil fuels, such as air pollution and local effects of global warming, China has looked to adjust its national energy policy, perceiving renewable energy as a key alternative to fossil fuels. In addition, the country’s enormous energy demand and heavy reliance on imported fuels make energy a crucial national security issue for China. Given the strategic importance of the renewable energy sector in relation to alleviating China’s dependence on foreign energy resources and contributing to China’s domestic sustainable economic growth, developing renewable energy is considered to be crucial.34 17.3 CHINA’S EFFORTS IN CONTRIBUTING TO GLOBAL CLIMATE GOVERNANCE

To understand China’s mixed approach to combating climate change, this section examines the measures taken pursuant to said approach to fight climate change. This section further analyses China’s specific top-down measures taken to contribute to global climate governance, namely its participation in global climate lawmaking, its green investment and its provision of ‘green’ foreign aid. The section also describes China’s integration of international climate policy into its domestic social and economic development plans and regulations. Under the multi-stakeholder engagement approach, Chinese corporations and financial institutions are increasingly active participants in global climate governance, which helps promote China’s compliance with climate conventions. 17.3.1 Participation in Climate Lawmaking, Green Investment and Green Aid China is a major backer of the UNFCCC and adheres to the goals and principles of the Paris Agreement in relation to implementing the 2030 Agenda for Sustainable Development. In 1997, when the Kyoto Protocol was adopted in Japan, China actively participated in devising the Clean Development Mechanism, one of the Kyoto Protocol’s financial mechanisms for mitigating and adapting to climate change. In accordance with the provisions of the Bali Action Plan, 31

32

33

34

M. J. Trombetta, ‘Securitization of Climate Change in China: Implications for Global Climate Governance’ (2019) 5 (1) China Quarterly of International Strategic Studies, 97–116. A. Engels, ‘Understanding How China Is Championing Climate Change Mitigation’ (2018) 4(1) Palgrave Communications. M. Liu and K. Lo, ‘Pathways to International Cooperation on Climate Governance in China: A Comparative Analysis’ (2021) 6(3) Journal of Chinese Governance, 417–34. D. Gielen et al., ‘The Role of Renewable Energy in the Global Energy Transformation’ (2019) 24 Energy Strategy Reviews, 38–50.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

346

Tianbao Qin and Bingyu Liu

and in conjunction with China’s economic and social development plan and sustainable development strategy, China has formulated and published the National Programme on Climate Change and promulgated a series of laws and regulations. In 2009, at the Copenhagen Climate Conference, China and the United States jointly promoted the Copenhagen Accord.35 The joint statement on climate by China and other countries covered the core issues of climate negotiations and laid a solid foundation for the conclusion of the Copenhagen Accord. In the negotiation process of the Paris Agreement, China committed to its carbon emissions peaking by 2030 and expending its best efforts to achieve an earlier peak; it further committed to using 20 per cent non-fossil energy as its primary energy supply by 2030. In October 2021, China’s National Focal Point for the UNFCCC formally submitted to the Convention Secretariat the ‘China’s Achievements, New Goals and New Measures for Nationally Determined Contributions ’36 and ‘China’s Long-Term Low Greenhouse Gas Emissions Development Strategy for the Mid-Century’.37 These initiatives and strategy are major measures adopted by China to implement the Paris Agreement and reflect China’s determination and effort to promote green and low-carbon development and actively respond to global climate change. The documents introduced China’s NDC policies, measures and achievements since 2015; proposed new NDC goals and essential policies and initiatives; and detailed China’s position concerning contribution to and interest in further promoting international cooperation with a view to fighting against climate change. The Chinese government also released a White Paper on China’s Policies and Actions on Climate Change in October 2021.38 All these actions demonstrate China’s effort for transparency in climate action and GHG emissions reduction. China has also sought to address climate concerns through its investment policies in the Green BRI. In jointly building the Belt and Road, China has attached importance to green development and issued a series of policy documents, plans and measures concerning achieving green growth. The first official document issued in 2015 proposed to ‘strengthen green and lowcarbon infrastructure construction and operation management’, ‘fully consider the impact of climate change in the construction’, ‘highlight the concept of ecological civilization in investment and trade, strengthen cooperation on ecological environment, biodiversity, and climate change, and build a green Silk Road’.39 Since 2006, the Chinese government has promulgated many sustainable policies and guidelines applicable to overseas ventures to enhance its international reputation and highlight its role in promoting Chinese companies’ sustainable overseas investment.40 Various agencies have been involved in the regulatory process, including China’s State Council, the National Development and Reform Commission, the Ministries of 35

36

37

38

39 40

G. G. Zheng et al., ‘Paris Climate Change Conference: A Fresh Start of International Climate Governance in the New Era’ (2016) 4(1) Chinese Journal of Urban and Environmental Studies, worldscientific.com/doi/pdf/10.1142 /S2345748116500044. ‘China’s Achievements, New Goals and New Measures for Nationally Determined Contributions’ [《中国落实国 家自主贡献成效和新目标新举措》], unfccc.int/sites/default/files/NDC/2022-06/中国落实国家自主贡献成效和 新目标新举措.pdf (in Chinese). ‘China’s Long-Term Low Greenhouse Gas Emissions Development Strategy for the Mid-Century’ [《中国本纪中 叶长期温室气体低排放发展战略》], unfccc.int/documents/307766. ‘White Paper on China’s Policies and Actions on Climate Change’ [《中国应对气候变化的政策与行动》白皮 书], m.thepaper.cn/baijiahao_15094136. Ibid. N. Bernasconi-Osterwalder, L. Johnson and Jianping Zhang (eds.), Chinese Outward Investment: An Emerging Policy Framework (Winnipeg: International Institute for Sustainable Development, 2013); B. Liu, ‘China’s StateCentric Approach to Corporate Social Responsibility Overseas: A Case Study in Africa’ (2021) 10(1) Transnational Environmental Law, 66.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

347

Commerce and Foreign Affairs, and other state entities such as the Export–Import Bank of China. The various policy documents provide a framework that reveals how the Chinese state intends to shape the environmental performance of all Chinese companies overseas. This is a critical demonstration of China’s efforts to put the concept of global climate governance into action. China has helped developing countries improve their capacity to cope with climate change, creating exchanges and cooperating with countries along the Belt and Road in green technology, green equipment, green services and green infrastructure development. Given that Chinese companies and financial institutions are increasingly investing in infrastructure projects overseas, in September 2021 President Xi Jinping announced that Chinese companies would not make new investments in coal-power projects in other countries.41 China’s commitment to cease building international coal-power projects will help spur the global clean energy transition, generate clean energy jobs and further promote the transition to a green economy. Finally, China also financially contributes to institutions and bodies that are responsible for addressing climate change concerns globally as a means of helping developing countries adapt to climate change. Guided by the vision of building a CSFM, China has been actively engaged in cooperating with other developing countries to address climate change and providing support for their effective adaptation to climate change. Developing countries face many difficulties in climate change adaptation owing to capital, technology and human resources limitations. China has promoted South–South climate cooperation and strengthened its capacity to provide foreign climate assistance.42 In terms of financial assistance, since 2011 the Chinese government has provided funding for climate adaptation in developing countries and proposed the establishment of a South–South Cooperation Fund on climate change worth RMB 20 billion. By 2021, China had allocated more than RMB 1.2 billion for South–South cooperation on climate change.43 In addition to financial assistance, China has also assisted developing countries by donating equipment related to climate change, such as solar street lamps, photovoltaic power generation systems, electric motorcycles, new energy transportation infrastructure and environmental monitoring equipment to help them improve their ability to adapt to climate change.44 By 2021, China had signed forty climate change cooperation documents and implemented relevant cooperation with thirty-five developing countries.45 17.3.2 Development of Domestic Climate Policy China’s effective implementation of international climate change law largely depends on the enforcement of China’s domestic climate law. The convergence between China’s domestic and global climate law under China’s top-down governance approach demonstrates the interaction between the respective climate rule-making processes. Climate change is garnering more attention from China’s top leadership, and the Chinese government has adopted a top-down or central planning approach. Governmental agencies thus play a dominant role in addressing 41

42

43

44

45

The State Council Information Office of the People’s Republic of China, ‘Responding to Climate Change: China’s Policies and Actions’ (October 2021), english.www.gov.cn/archive/whitepaper/202110/27/content_WS617916abc6d0df 57f98e3f3b.html. UNDP China, ‘More Money, More Impact? China’s Climate Change South–South Cooperation to Date and Future Trends’, https://bit.ly/456PYCw. ‘China Set Up South–South Climate Change Cooperation Fund with 20 Billion Yuan’ [中国200亿元建“中国气候 变化南南合作基金”], ccchina.org.cn/Detail.aspx?newsId=55652&TId=66. ‘Responding to Climate Change: China’s Policies and Actions’, global.chinadaily.com.cn/a/202110/28/ WS6179dfdba310cdd39bc71b86.html. ‘China’s Policies and Actions on Climate Change (2021)’ [《中国应对气候气候变化的政策与行动》], ncsc.org.cn /yjcg/cbw/202111/P020211110580652498512.pdf.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

348

Tianbao Qin and Bingyu Liu

climate change and working on low-carbon development and climate change adaptation.46 The Chinese legal and policy framework for climate change has improved to facilitate the transition to renewable energy and mitigate climate change. The policy framework in place is intended to help China adapt to climate impacts.47 China’s domestic climate-related legal framework includes the general policy framework at the national and local levels. As early as during the 11th Five-Year Plan (2006–10) period, China set an overall goal of reducing energy consumption per unit of GDP and controlling GHG emissions.48 For the first time, climate change then became an independent element of the 12th Five-Year Plan (2011–15), which included intensity targets, energy consumption targets, renewable energy targets and carbon sink targets.49 The 13th Five-Year Plan (2016–20) called for increasing the low-carbon proportion in the energy mix and the effective control of total carbon emissions. This represented the first time that total carbon emissions control was mentioned in a planning document.50 The 14th Five-Year Plan (2021–5) set the goal of accelerating green and low-carbon development. China has implemented various measures to optimize its industrial structure by transitioning the economic system towards more minor energy-intensive sectors and the tertiary sector of the economy, investing in renewable energy and improving energy efficiency.51 These show China’s increasing ambition to curb GHG emissions. China has set ambitious long-term climate mitigation goals and adopted relevant policies to establish a national carbon trading system to address global warming and meet its emission targets. Building a nationwide carbon market is a major measure52 aimed at controlling and reducing GHG emissions through market mechanisms and promoting green and low-carbon development.53 Once fully implemented, it will be the largest emissions trading system (ETS) globally. It also represents a key starting point for realizing China’s vision of carbon neutrality. The development of the domestic ETS can also effectively promote the transformation of the domestic economic growth model. Per the 14th Five-Year Plan, the Ministry of Ecology and Environment (MEE) expects a stable and effective national ETS.54 China also aims to reduce non-GHG emissions under the national ETS and to further refine its legal regulations, data management and market supervision system.55 The MEE issued the Rules on Carbon Emission Registration and Management (Trial), the Rules on Carbon Emission Trading Management (Trial) and the Rules on Carbon Emission Settlement Management (Trial) in mid-May 2021; these included rules on allowance management; emissions trading; measurement, reporting and 46

47

48

49

50

51

52

53

54

55

J. Cao, ‘Reconciling Economic Growth and Carbon Mitigation: Challenges and Policy Options in China’ (2010) 5(1) Asian Economic Policy Review, 110–29. Y. Qi and T. Wu, ‘The Politics of Climate Change in China’ (2013) 4(4) Wiley Interdisciplinary Reviews: Climate Change, 301–13. ‘11th Five-Year Plan (2006–2010) for National Economic and Social Development’, policy.asiapacificenergy.org /node/115. ‘China’s Policies and Actions for Addressing Climate Change’ (2012), en.ccchina.org.cn/Detail.aspx? newsId=38742&TId=107. ‘The 13th Five-Year Plan for Economic and Social Development of the People’s Republic of China (2016–2020)’, en .ndrc.gov.cn/policies/202105/P020210527785800103339.pdf. ‘The 14th Five-Year Plan for Economic and Social Development of the People’s Republic of China (2016–2020)’, fujian.gov.cn/english/news/202108/t20210809_5665713.htm. ‘The Role of the National Carbon Market for China’s Carbon Peak and Carbon Neutrality Are Very Important’ [《全国碳市场对中国碳达峰碳中和的作用和意义非常重要》], gov.cn/xinwen/2021–07/14/content_5624921 .htm. P. Wang et al., ‘A Review of China’s Climate Governance: State, Market and Civil Society’ (2018) 18(5) Climate Policy, 664–79. Ministry of Ecology and Environment, ‘Measures for the Administration of Carbon Emission Trading (Trial)’ [《碳 排放权交易管理办法 (试行) 》], www.mee.gov.cn/xxgk2018/xxgk/xxgk02/202101/t20210105_816131.html. Mr Li Gao, Director General of the Department of Climate Change (DCC), ets-china.org/news/.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

349

verification; compliance; offsets; supervision and management; and accountability. They further standardize the regulation of the national carbon emissions market.56 17.3.3 Private Actors’ Engagement in Global Climate Governance In addition to the Chinese government, multiple stakeholders in China are playing an increasingly large role in climate governance.57 China’s regulatory approach to addressing global climate challenges has tended to rely heavily on top-down, command-and-control regulations that govern behaviour through directives regarding emission-control levels or methods. In recent years, however, the role of multi-stakeholder participation in global climate negotiations and governance has expanded substantially. As a consequence, the Chinese government has increasingly called for greater use of market-based instruments to address climate issues.58 Since the signing of the Paris Agreement, Chinese corporations, financial institutions and social organizations have increased their enthusiasm for participating in global climate action and shared China’s advanced concepts and practices in ‘ecological civilization’ construction and development. The Paris Agreement advocated for a multi-stakeholder engagement approach; hence, social organizations, NGOs, companies and financial institutions at both the national and the local levels have become important players in combating climate change in China. In line with these multiple stakeholders’ new role as crucial non-state actors in carbon neutrality and climate cooperation endeavours, their actions and climate commitments are increasingly valued in the global climate governance system.59 The active participation of Chinese companies and financial institutions in incentivizing the transition to a low-carbon economy exemplifies China’s shift to multi-stakeholder involvement in global climate negotiations and governance. Chinese state-owned enterprises (SOEs) are a significant source of GHG emissions owing to their focus on energy-intensive production activities such as cement, iron and steel production; power generation; machine manufacturing; and petroleum and chemical refining.60 The ownership structure strongly influences the governance practices of Chinese companies. As Chinese SOEs are usually organized around networked hierarchies, they are linked through institutionalized personnel channels and political approaches to state organs.61 Therefore, Chinese SOEs also bear the additional responsibility of projecting a positive image of the Chinese state and government.62 Before the cap-and-trade pilot programmes were launched, China’s SOEs were actively responding to the government’s call to conserve energy and reduce emissions. Measures they adopted included improving energy efficiency, adopting new technologies, substituting a proportion of their fuel consumption with 56

57 58

59 60

61

62

Ministry of Ecology and Environment, ‘Rules on Carbon Emission Registration and Management (Trial), Rules on Carbon Emission Trading Management (Trial), and Rules on Carbon Emission Settlement Management (Trial)’ [关于发布《碳排放权登记管理规则 (试行) 》《碳排放权交易管理规则 (试行) 》和《碳排放权结算管理规 则 (试行) 》的公告], www.mee.gov.cn/xxgk2018/xxgk/xxgk01/202105/t20210519_833574.html?keywords=%E7%99% BB%E8%AE%B0. M. Schreurs, ‘Multi-level Climate Governance in China’ (2017) 27(2) Environmental Policy and Governance, 163–74. The State Council Information Office of the People’s Republic of China (2021), ‘Respond to Climate Change: China’s Policies and Actions’, cciced.net/ccicedPhoneEN/NewsCenter/LEaDN/202111/t20211104_130073.html. Pearson, ‘China and Global Climate Change Governance’, supra note 18, at 411–23. C. Marquis et al., ‘Regulatory Uncertainty and Corporate Responses to Environmental Protection in China’ (2011) 54 (1) California Management Review, 39. V. Ho, ‘Beyond Regulation: A Comparative Look at State-Centric Corporate Social Responsibility and the Law in China’ (2013) 46(2) Vanderbilt Journal of Transnational Law, 408. B. Liu, ‘China’s State-Centric Approach to Corporate Social Responsibility Overseas: A Case Study in Africa’ (2021) 10(1) Transnational Environmental Law, 72.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

350

Tianbao Qin and Bingyu Liu

solar, wind, biomass or other renewable energy sources, and centralizing production in the coalfired power and steel industries.63 Financial institutions are also taking action and demonstrating leadership on climate change. The development of low-carbon finance is conducive to China’s green economy transformation. Climate mitigation is a priority within China’s green finance policies, and many Chinese local governments have issued green finance guidance documents.64At the Second Belt and Road Forum held in April 2019, twenty-eight major Chinese financial institutions, including the China Development Bank, the China International Capital Corporation, the China Construction Bank and the Agricultural Development Bank of China, endorsed the ‘Green Investment Principles for the Belt and Road Initiative’.65 The Belt and Road Initiative International Green Development Coalition was established in Beijing with the aim of promoting green and sustainable development in countries along the Belt and Road to protect the ecological environment and mitigate climate change impacts.66 The Asian Infrastructure Investment Bank (AIIB) is also playing an increasingly important role in helping member states improve capacity building to address climate change and promote green development.67 The People’s Bank of China’s Guidelines for Establishing the Green Financial System68 and other green finance policy documents highlight climate mitigation and low-carbon development. Some financial institutions allocate capital and steer financial flows towards more lowcarbon, sustainable activities. Others are taking steps to change corporate behaviour; influence policy outcomes; and collect the data, develop the tools and normalize the transparency required to embed climate change in how markets function.69 The green finance policies adopted by Chinese financial institutions promote investment in a wide range of assets, including renewable energy projects, water treatment plants, recycling facilities and mass transit.70 Chinese financial institutions have realized the importance of financing support for enterprises implementing energy conservation and emissions reduction initiatives. To improve energy efficiency to reduce carbon emissions, tax exemptions are granted to enterprises. Financial institutions also play an essential role in China’s carbon market; their involvement helps to bring greater liquidity to carbon markets. In addition, by developing derivative products and services, financial institutions are helping to accelerate the formation of carbon assets and increase the willingness of enterprises to participate in carbon markets. Additionally, financial institutions are contributing to innovations in business systems and the mechanisms and products of the carbon 63

64

65 66

67

68

69

70

H. Bergsager and A. Korppoo, China’s State-Owned Enterprises as Climate Policy Actors: The Power and Steel Sectors (Copenhagen: Nordic Council of Ministers, 2013), 11–25. Climate Bonds Initiative and SynTao Green Finance, ‘Study on China’s Local Government Policy Instruments for Green Bonds’, climatebonds.net/files/reports/chinalocalgovt_02_13.04_final_a4.pdf. See also Climate Bonds Initiative and SynTao Green Finance, ‘China Green Finance Policy’, climatebonds.net/files/reports/policy_analy sis_report_2021_en_final.pdf. ‘Green Belt and Road Principles Receive Industry Backing’, City of London (24 April 2019). UNEP, ‘The Belt and Road Initiative International Green Development Coalition’, unep.org/regions/asia-andpacific/regional-initiatives/belt-and-road-initiative-international-green. G. T. Chin, ‘Asian Infrastructure Investment Bank: Governance Innovation and Prospects’ (2016) 22 Global Governance, 11. People’s Bank of China, ‘Guidelines for Establishing the Green Financial System’ (2 September 2016), at 1(1), pbc .gov.cn/english/130721/3133045/index.html. UNEP Finance Initiative, ‘Financial Institutions Taking Actions on Climate Change’, unepfi.org/fileadmin/docu ments/FinancialInstitutionsTakingActionOnClimateChange.pdf. S. Gilbert and L. H. Zhou, ‘The Knowns and Unknowns of China’s Green Finance’, Global Commission on the Economy and Climate (March 2017).

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

351

market, improving the economic and social benefits of China’s financial industry, and enhancing the social responsibility of financial institutions.71 17.3.4 International Concerns Regarding China’s Engagement China’s commitment to substantially reduce its carbon emissions has gained considerable international attention. As one of the world’s largest GHG emitters, China has pledged under the Paris Agreement to cut emissions, reduce coal use and invest in renewable energy, which has been welcomed by the international community. Yet, other activity has been subjected to scrutiny. For instance, Chinese foreign investment overseas has been concentrated in environmentally sensitive areas and carbon-intensive industries, such as infrastructure construction, oil and gas extraction, mining, hydropower, timber and manufacturing.72 As the world’s largest producer and consumer of coal and a lead actor in addressing global climate change, China is under international pressure to improve its environmental performance overseas.73 In addition, the main targets set in China’s updated NDC appear to fall short of the goals outlined in the Paris Agreement.74 A rapid energy transition may pose a risk to international supply chains owing to competition among major powers, and the comprehensive transformation of the energy system may induce supply instability. However, as the energy transition accelerates, the number of markets for lowcarbon goods will increase substantially. China thus perceives the energy transition as a massive economic opportunity for it to take the lead in clean energy technologies and products. Its central role in the solar value chain, for example, may limit the options available to competing powers, such as the United States. 75 In addition, the rapid shift to green energy poses challenges in terms of unanticipated spikes in energy demand and shortfalls in renewable electricity production, which may lead to electricity shortages and energy risks. The potential risks to energy security owing to carbon reduction efforts are also a concern for the international community. 17.4 CHINA’S ENGAGEMENT IN GLOBAL CLIMATE GOVERNANCE IN THE POST-PARIS ERA

The global green and low-carbon development trend is ubiquitous, and the global race to lead in green and low-carbon technologies has become intense. Likely, competition for international climate leadership will intensify among the major global powers; yet, climate change action represents a point of major convergence of interests and the best entry point for cooperation among countries.76 With the rise of its economy, China has become a climate superpower on par 71 72

73

74 75

76

M. Haigh, ‘Climate Policy and Financial Institutions’ (2011) 11(6) Climate Policy, 1367–85. C. Z. Ge, Y. F. Xia, Y. B. Zhi and F. Long, Environmental Policies on China’s Investment Overseas (Beijing: China Environmental Science Press, 2010). See also R. Gonza´lez-Vicente, ‘China’s Engagement in South America and Africa’s Extractive Sectors: New Perspectives for Resource Curse Theories’ (2011) 24(1) Pacific Review, 65–87. B. Walker, ‘China Stokes Global Coal Growth’, China Dialogue (2016). See also L. Pike, ‘Is the Belt and Road Compatible with Paris?’, China Dialogue (2017). ‘China’s New Climate Plan Falls Short of Cop26 Global Heating Goal’, Guardian (2021), https://bit.ly/3qyBBrD. ‘China’s Climate Change Strategy and U.S.–China Competition’, Center for Strategic and International Studies, csis.org/analysis/chinas-climate-change-strategy-and-us-china-competition; ‘The Competition and Cooperation of China, the US and the EU in the Realm of Global Climate Governance’, projekter.aau.dk/projekter/files/259874199/ CIR_Thesis_by_Tang_Sangyuan.pdf. B. Yan, ‘Divergences and Convergences Between the EU and China on Post-2020 Global Climate Governance’ in M. Telo` et al. (eds.), Deepening the EU–China Partnership in an Unstable World, 193–203 (Abingdon: Routledge, 2017).

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

352

Tianbao Qin and Bingyu Liu

with the EU and the United States. In the new context of climate governance aimed at achieving the goal of carbon neutrality, enhancing global cooperation with leading partners and further enhancing coordination mechanisms between levels of governance will be essential. Additionally, improving global climate change partnerships and enhancing the coordination mechanism between levels of governance actors and sectors will require a mixed approach. 17.4.1 Enhancing Global Cooperation with Major Partners Climate change is a matter of environmental policy as well as industrial policy and social policy; it is a central geopolitical issue today. It has also prompted protectionist national trade policies, which has led to economic conflict during climate governance negotiations. Yet, cooperation among states under the top-down governance approach could serve as a solid basis for better relations between China, the EU, the United States and other leading partners on climate issues. Cooperative relationships on climate change between China and other countries have the potential for both positive and negative outcomes, with the nature of the relationships influencing the trends in international politics and economics. China and the EU have engaged in close cooperation to fight climate change. The EU has typically been a leader in international forums.77 However, in recent years, China has taken on an increasingly proactive role within the global climate regime. China’s increasing assertiveness and competitiveness in climate change issues means that the EU needs to rethink its engagement strategy with China.78 Despite their differences in principles and policies in regard to climate change governance,79 the EU and China have much more in common than in conflict. This provides an opportunity to further enhance bilateral cooperation frameworks and achieve mutually beneficial outcomes. In this light, the two sides have increased their efforts to promote green and sustainable development, working together to address climate change in terms of energy transition, carbon emissions trading, scientific research and innovation, and green finance.80 The two parties are working together to address energy supply challenges and transfers of technology.81 Take cooperation on green finance, for example: China launched the Sustainable Finance Working Group in 2016, which demonstrated leadership abilities in forging a greener domestic system.82 China and the EU are ‘coordinating on taxonomies within the International Platform on Sustainable Finance through the Common Ground Taxonomy’, which favours shared criteria for sustainable financial markets.83 The EU–China joint statements, such as the EU–China Leaders’ Joint Statement on Climate Change and Clean Energy84 77

78

79

80

81

82 83

84

P. De Matteis, ‘The EU’s and China’s Institutional Diplomacy in the Field of Climate Change’ (2012) European Union Institute for Security Studies, https://bit.ly/44bWB56. L. Liu et al., ‘The EU–China Relationship in a New Era of Global Climate Governance’ (2019) 17(2) Asia Europe Journal, 243–54. J. Men, ‘Climate Change and EU–China Partnership: Realist Disguise or Institutionalist Blessing?’ (2014) 12 Asia Europe Journal, 49–62. Yan, ‘Divergences and Convergences’, supra note 76. See also D. Belis and S. Schunz. ‘China and the European Union: Emerging Partners in Global Climate Governance?’ (2013) 15(3) Environmental Practice, 190–200. D. M. Pietro, ‘EU–China Cooperation in the Field of Energy, Environment and Climate Change’ (2010) 6(4) Journal of Contemporary European Research, 449–77. G20 Sustainable Finance Working Group, g20sfwg.org. EIAS, ‘China and the EU in Climate Geopolitics’ (2022), eias.org/publications/op-ed/china-and-the-eu-in-climategeopolitics%EF%BF%BC/. See also GIZ, ‘Green Finance in China and the EU: A Starting Point for Cooperation’ (2021), energypartnership.cn/fileadmin/user_upload/china/media_elements/113GRE_EN.PDF. ‘The EU–China Leaders’ Joint Statement on Climate Change and Clean Energy’ (2017), ecbi.org/sites/default/files/ EU-China-Leaders-Joint-Statement-on-Climate-Change_pdf.pdf.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

353

and the EU–China 2020 Strategic Agenda for Cooperation,85 are also helping to facilitate exchanges of views on climate issues between the two parties. Overall, strong EU–China bilateral relations are predicted to improve the international response to combating the climate crisis. In the future, the EU and China should establish more legal and institutional frameworks to mediate controversial issues and formalize bilateral cooperation over the long term.86 The carbon border adjustment mechanism proposal in the EU’s green deal plan has attracted widespread attention as it is likely to positively impact the implementation of the Paris Agreement and the use of carbon markets and carbon taxes as tools to develop a green economy. As a unilateral measure of the EU, however, it may have a negative impact, conflicting with World Trade Organization trade rules and upsetting the global economic order. The mechanism’s emphasis on ‘carbon leakage’, the uncertainty concerning the basis for emissions assessments of specific industries, the complexity of the mechanism and the potentially high regulatory costs may render it unfeasible. Avoiding the carbon border adjustment mechanism could thus become a new trade barrier and hinder the development of multilateral trade; this is a major issue in coordinating the ETS and the climate change framework, and it requires further consultation involving the EU and other states in follow-up negotiations. Further cooperation will require mutual trust to implement a shared vision, further financial criteria and trade regulations, and enhanced strategic cooperation on industry and technological transfers.87 Global climate change is perhaps one of the few areas in which China and the United States, whose bilateral relations have deteriorated in recent years, have aligned interests; here, they should be keen to coordinate their policies to address a common challenge. The success of China–US cooperation on climate change depends on the extent to which the two countries are willing to create a flexible and robust framework to accelerate both the reduction of new carbon emissions and the global transition to a low-carbon socio-economic paradigm.88 By engaging in continual, high-level discussions, China and the United States can bolster the aspirations of their next set of NDCs and galvanize a race to the top among other countries to reach net-zero emissions. The US–China Joint Statement Addressing the Climate Crisis signed in April 202189 and the Glasgow Joint Declaration on Intensified Climate Action in the 2020s signed in November 202190 send positive signals and imply new opportunities for cooperation between the world’s two largest emitters of GHGs. Their cooperative intentions span a number of initiatives, from cutting carbon dioxide and methane emissions to halting illegal deforestation. The expectation is that a working group between the two sides would facilitate multilateral cooperation to address the climate crisis and encourage concrete actions to curb illegal deforestation. From this starting point, regular bilateral talks and cooperation to share best practices and experiences concerning low-carbon innovations, pilot projects and low-carbon innovations would be highly effective in achieving mutual goals. Establishment of the Working Group on 85

86

87 88

89

90

Delegation of the European Union to the People’s Republic of China, ‘The EU-China 2020 Strategic Agenda for Cooperation’ (2020), eeas.europa.eu/delegations/china/eu-china-2020-strategic-agenda-cooperation_en. H. Cao, ‘China and the European Union in Global Climate Governance: Ideas, Actions, Differences and Cooperation’ (2015) 5 Chinese Journal of European Studies, 50–65 [曹慧 : 《全球气候治理中的中国与欧盟:理 念、行动分歧与合作》, 载《欧洲研究》2015年第5期, 第50–65页]. EIAS, ‘China and the EU in Climate Geopolitics’, supra note 83. R. MacNeil and M. Paterson. ‘Trump, US Climate Politics, and the Evolving Pattern of Global Climate Governance’ (2020) 32(1) Global Change, Peace & Security, 1–18. ‘China–U.S. Joint Statement on Addressing the Climate Crisis’ [《中美应对气候危机合声明》], mee.gov.cn /ywdt/hjywnews/202104/t20210418_829133.shtml. ‘China–U.S. Reached Joint Declaration on Enhanced Climate Action’ [《中美达成强化气候行动合宣言》], mee .gov.cn/ywdt/hjywnews/202111/t20211111_959899.shtml.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

354

Tianbao Qin and Bingyu Liu

Enhanced Climate Action for the 2020s, a commitment under the Glasgow Declaration, will likely further promote bilateral cooperation on climate change and the multilateral process. Resumed informal communication between the United States and China on climate change cooperation at the COP27 UN climate conference has shown the willingness and efforts of both parties to jointly champion multilateralism to combat climate change collaboratively.91 Although there has been a commitment to cooperation in combating climate change between the United States and China, the cooperation may be threatened by escalating tensions over trade relations, political and ideological matters. Many fear tensions between the United States and China are going to have a cost on the global security agenda, the political agenda and the climate agenda.92 Additionally, it remains uncertain whether official talks between the leadership of the two countries will result in meaningful action to address the use of fossil fuels and implement regulatory frameworks to mitigate climate change. Both countries need to come to an agreement on reducing carbon emissions, which is challenging given their reliance on fossil fuels. The misalignment of priorities between China and the United States could also be an obstacle to cooperation.93 Specifically, despite both countries recognizing climate change as an urgent threat, the United States portrays competition from China as an even greater threat to US security and prioritizes competition with China.94 On a global scale, cooperation between China and the United States is essential for addressing climate change. Despite the tensions and different ideologies that exist between the two sides, it is crucial for the two nations to continue to collaborate in this critical area in the future. Cooperation between non-state actors, including corporations and financial institutions, in the two countries should also be further enhanced to overcome the deficiency of political cooperation at the state level. China has also undertaken cooperation with other developing countries under the South– South Cooperation Framework. Many developing countries still lack the capacity or resources to combat climate change effectively. As analysed before, China recognizes that climate change is a common challenge for humanity and advocates for international cooperation to address the crisis. In practice, China has been actively collaborating with African countries and Small Island Developing States through providing technical support, technology transfer and capacity building.95 China has also partnered with other countries and organizations to establish the Global South–South Cooperation on Climate Change mechanism, which focusses on policy coordination, capacity building and information sharing among developing countries.96 Additionally, China has launched several initiatives, such as the BRI and the South–South Cooperation Fund, which aim to promote green infrastructure and low-carbon development in developing countries. The provided funding, equipment, human resources, technical support and capacity building further promote exchange and cooperation between China and other developing countries in the fight against the climate crisis.97 As many developing countries, including China, have been accelerating their domestic green transition, there will be opportunities for mutual learning to ensure successful achievement of 91

92

93

94 95

96 97

W. James and V. Volcovici, ‘Biden–Xi Climate Cooperation to Energise COP27 Negotiations’, reuters.com/busi ness/cop/biden-xi-climate-cooperation-energize-cop27-negotiations-2022–11–14/. V. Volcovici, ‘U.S.–China Diplomatic Breakdown Clouds Outlook for Global Climate Progress’ (2022), https://bit.ly /3sioc7u. M. Klare, ‘What If the U.S. and China Really Cooperate on Climate Change?’ (2022), fpif.org/what-if-the-u-s-andchina-really-cooperated-on-climate-change/. Ibid. UNDP, ‘China’s Climate Change South–South Cooperation: History and Future Trends’ (2016), https://bit.ly /44ja0Zy. Ibid. Ibid.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

355

the Paris Agreement. Many developing countries can learn from China’s experience in successfully adapting to the adverse effects of climate change. Developing countries have identified priority areas, such as energy efficiency, renewable energy, and education and public awareness, where China can focus on capacity-building projects.98 Education and public awareness activities, particularly, can help fill the capacity gaps in developing countries. Also, China could continue to share ecological security and climate law enforcement cases, improve international and regional climate policies and legislation, share its experience in low-carbon emissions reduction and seek to enhance inter-agency coordination in the fight against climate change.99 Another possible way to increase the expertise provided to developing countries and improve communication with partner governments is through the expansion of trilateral cooperation involving both bilateral cooperation agencies and intergovernmental organizations. This could be facilitated through various means, such as leveraging UN country offices and other established channels.100 In addition, China’s broader foreign development cooperation and international trade and investment have significant impacts on the developing countries’ ability to address climate change. Green investment can help countries cope with climate change impacts through improved infrastructure projects. Development banks like the AIIB and the New Development Bank’s recent pledge to focus on green infrastructure can also enhance mitigation efforts.101 Continued financial support, including climate change funds, can create innovative opportunities to further help developing countries’ clean energy transition and to further promote China’s green investment overseas. As China’s national ETS came online in 2021, China could also introduce its experience in establishing a carbon market to support other developing countries in establishing carbon trading systems and promote global international cooperation to combat climate change. China can also cooperate with other countries in carbon trading and explore the possibility of linking China’s carbon market with an international market. 17.4.2 Enhancing Coordination Among Various Actors Traditional global climate governance has several weaknesses, namely deficient participation, implementation and funding from sovereign states. The regular involvement of multiple stakeholders, chiefly social organizations, corporations and financial institutions, is thus considered necessary to address the shortcomings of traditional climate governance regimes. Against this background, as an important player in global climate governance, the Chinese government must continue to adhere to its overall national plan and leverage the top-down approach to design climate policies. But, further, the Chinese government should also pay attention to the rise in participation of multiple stakeholders, especially the active involvement of Chinese companies and financial institutions, in combating climate change and incentivizing the transition to a low-carbon economy. The combination of the top-down governance approach and the multi-stakeholder engagement approach, guided by the concepts of ‘ecological civilization’ and building a CSFM, will help to lead the shift of China’s climate governance from a state-led climate governance system 98 99

100 101

UNDP China, ‘More Money, More Impact?’, supra note 42. UNCTAD, ‘South–South Cooperation for Climate Adaptation and Sustainable Development’ (2022), unctad.org/ system/files/official-document/tcsgdsinf2022d1_en.pdf. UNDP China, ‘More Money, More Impact?’, supra note 42. Ibid.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

356

Tianbao Qin and Bingyu Liu

to a co-governance system with participation from multiple stakeholders. Further, increasing investment in the private sector and enhancing the status of corporations and financial institutions in the climate negotiation and rule-making process can help address the insufficiencies of traditional climate change governance.102 Strengthening the consultation, collaboration and sharing between non-state participants and governments is necessary to enable the global climate governance partnership network to combat climate change collectively,103 and strengthening collaboration among the multiple stakeholders and leveraging all available collaborating entities, including the public sector, civil society and the private sector, will further help China implement climate initiatives and meet targets. 17.5 CONCLUSION

China’s role in climate governance is becoming more prominent. China has set domestic targets and taken steps to achieve carbon neutrality as well as assumed leadership responsibility among the international community to fight climate change. As China is one of the world’s largest GHG emitters, its efforts in combating climate change are crucial for the success of the international climate change regime. China has steadily exerted its influence on global climate change governance by adopting the aforementioned two governance approaches, namely the top-down governance approach and the multi-stakeholder engagement approach, in conjunction. Under the state-centric approach, the concepts of ecological civilization and building a CSFM provide principles on the basis of which to lead in climate governance. Against this background, China has shifted from being an active participant to becoming an active contributor and ultimately an active leader in global climate governance. China is a defender of the goals and principles of the UNFCCC and the Paris Agreement, a mediator of the North–South climate-related political conflicts, a supporter of developing countries’ efforts to deal with climate change and an initiator of the green development of the BRI. All these efforts are designed to help China fulfil its responsibility to combat the climate crisis. Multiple stakeholders also play a crucial role in global climate governance. China’s climate governance partnerships, including with corporations and financial institutions, have been rapidly developing. China’s private sector participation and agenda-setting capabilities in climate governance continue to evolve. China’s mixed approach brings valuable contributions from various stakeholders. The mixed approach is central to China’s leadership in international climate governance and negotiations; by adopting this combined approach, China is constructively moving climate governance from a state-led governance system to a co-governance system with participation from multiple stakeholders from throughout the international community. Through this dynamic and flexible approach, China and other leading partners can create a broad foundation for policy cooperation to accelerate the reduction of carbon emissions and enhance climate ambitions globally. China’s role in global climate governance still faces some challenges. For example, the Chinese national ETS remains in development. At present, it applies only to electricity generation; it does not cover process emissions, and extends only to GHGs. The scope of the system is thus still limited. Moreover, essential design features have not been clarified, hindering the system’s ability to incentivize the economy’s transition to carbon neutrality. Further, China’s ability to set agendas in international climate change negotiations, power to make global climate 102 103

Wang et al., ‘A Review of China’s Climate Governance’, supra note 53. J. Dirix et al., ‘Strengthening Bottom-Up and Top-Down Climate Governance’ (2013) 13(3) Climate Policy, 363–83.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

17 China and Global Climate Change Governance

357

governance regime rules and ability to introduce Chinese discourse into global climate governance remain limited.104 More efforts should be made to promote China’s overall progress in climate governance, climate diplomacy, climate security and climate communication. China will also need to respond appropriately to the potential economic, financial and social risks that may arise during the green and low-carbon transformation to avoid any excessive or disruptive response and ensure that carbon emissions are reduced safely and with environmental and ecological security assured. The efforts to reduce pollution and carbon emissions should be balanced with the need to ensure the security of energy, industrial chains, supply chains and food production, as well as normal daily life.105 The rapid development of the energy structure, economic decarbonization and green finance have brought global climate change governance to a new developmental stage. Addressing climate change is a point of convergence for the interests of all states and a constructive entry point for promoting multilateralism and cooperation among states. When competition among major powers intensifies and global cooperation seems impossible, China should continue trying to mitigate the tension and create a more favourable international environment from within which to better fight against the climate crisis. Combating the climate change crisis requires international collaboration and solidarity. Although divergent economic and political interests in global climate governance still exist among states, states nevertheless have a common interest in international collaboration for the greater good. Further, enhancing the capacity of other developing countries by sharing and exchanging information and practice is a desirable initiative. Despite there being competition owing to the pursuit of self-interested national economic and political gains, the deepening understanding of the significance of climate change and the recognition of the common interests of all mankind will make global climate cooperation possible under the idea of building a CSFM.

104

105

Q. Li, ‘Constructing China’s Discourse Power in Post-Paris Global Climate Governance: Connotations, Challenges and Pathways’ (2019) 6 International Forum, 3–14 [李强 : 《后巴黎时代”中国的全球气候治理话语权构建-内 涵、挑战与路径选择》, 载《国际论坛》2019年第6期]. ‘Working Guidance for Carbon Dioxide Peaking and Carbon Neutrality in Full and Faithful Implementation of the New Development Philosophy’, en.ndrc.gov.cn/policies/202110/t20211024_1300725.html.

https://doi.org/10.1017/9781009041133.019 Published online by Cambridge University Press

18 China and the Law of the Sea Haiwen Zhang

18.1 INTRODUCTION: CHINESE CONCEPTION OF THE LAW OF THE SEA FROM THE PERSPECTIVES OF STATE PRACTICE AND THE HISTORIES

The law of the sea, which is a significant part of international law, is a body of the principles and rules (conventional or customary) governing human marine activities under and beyond the jurisdiction of coastal states, with the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as the basic framework. From the historical perspective, the formation and the development of the law of the sea are closely related to human ocean activities. Freedom of the high seas and coastal states’ sovereignty over territorial sea and offshore fishery resources constitute the core content of the law of the sea.1 As the past several decades witnessed the tremendous expansion of maritime activities, the law of the sea has correspondingly been expanded and sophisticated. For example, the continental shelf is a major driver for maritime claims in the aftermath of World War II. Claims over the continental shelf quickly brought about the formation of the relevant customary international law and further codification through the Convention on the Continental Shelf (CCS) in 1958 and then UNCLOS in 1982. States do not formulate the law of the sea once and for all by, for instance, negotiating a treaty. They instead continue to shape the law of the sea by interpreting and applying the relevant rules, which clarifies the ambiguities of, and fills the gaps in, the law of the sea. States practice on the law of the sea is undertaken in various ways. For example, states may negotiate treaties on the law of the sea, undertake international consultations and dialogues on maritime affairs, implement at the domestic level the international treaties they have ratified with legislative, executive and judicial means, or settle maritime disputes through international jurisprudence. The significance of state practice on the formation and development of the law of the sea is at least reflected in the following three aspects. First, state practice is the original driving force for the formulation of maritime legal regimes. For example, the maritime practices of European countries in the seventeenth and eighteenth centuries promoted the establishment of the principle of freedom of the high seas and the territorial sea regimes. Also, in 1945, President Truman of the United States issued Proclamation 2667 claiming rights over the seabed and subsoil, as well as its resources beyond the territorial sea and under the high sea. Borrowing the concept of the continental shelf in marine geology, the Proclamation created a new concept of the law of the sea, namely the continental shelf.2 The practice of claiming rights over appurtenant parts of the continental shelf by the United States 1 2

Timothy Hillier, Principles of Public International Law, 2nd ed. (London: Routledge-Cavendish, 1999), 183. US Presidential Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, Executive Order 9633 of 28 September 1945, 10 Fed. Reg. 12, 305 (1945).

358 https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

359

led to similar claims by other countries, which shaped the embryonic form of the continental shelf legal system and laid the foundation for the establishment of the CCS in 1958. The great development of the law of the sea came after World War II. Many countries were likewise extremely keen to broaden their own claims to maritime jurisdiction. From the 1960s, promoted by developing countries in Latin America, Africa and Asia, many coastal states gradually expanded their jurisdiction from the traditional 3-mile territorial sea to exclusive ‘fishing zones’ and ‘economic zones’ that measured 200 nautical miles wide. Under the auspices of the United Nations (UN), many new legal regimes and rules on the law of the sea have been created or codified. As a result, the modern law of the sea has been formulated, at the core of which are the four Geneva Conventions on the law of the sea3 that came about through the first UN Conference on the Law of the Sea (UNCLOS I). Second, the interpretation and application of relevant provisions of UNCLOS by states parties continually plays an important role in the evolution of the international law of the sea. For example, states disagreed over the jurisdiction over foreign military activities in the exclusive economic zone (EEZ) of coastal states from the very beginning of UNCLOS negotiations until now. Different interpretations and practices of states in this regard are highly relevant to the future development of the EEZ regime. In addition, the relevant international jurisprudence also plays a part in the development of the law of the sea. Third, marine science and technology, which have rapidly developed in the past decades and will continue to develop in the coming years, are a significant dynamic underlying the development of the law of the sea. For example, the development of deep-sea science and technology promoted the continuous discovery of deep-sea surveys, which enriched mankind’s knowledge of deep-sea genes and marine biodiversity, and also revealed the gaps in the law of the sea. Growing deep-sea activities have become an important driving factor for ongoing negotiations with an aim to develop a new binding legal regime for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (hereinafter, BBNJ).4 In addition to this introductory section, this chapter is divided into five main sections. Section 18.2 explores China’s engagement with the international law of the sea in the period 1840–1949. It first examines how the Western international law was introduced into China in the late Qing dynasty (1840–1912) and how the Qing government accepted and applied international law including the law of the sea. It also examines how the government of the Republic of China (ROC), which was founded in 1911 and overthrew the Qing dynasty, accepted and applied international law including the law of the sea. It is found that China always defended maritime rights such as territorial sea, contiguous zone and fishing zone rights, as well as sovereignty over the South China Sea (SCS) islands. Section 18.3 focusses on the People’s Republic of China (PRC) and international lawmaking in relation to the law of the sea. It first examines China’s initial practice of the law of the sea with a focus on territorial sovereignty and security. It then looks into how, in the 1970s, China participated in UNCLOS III, which opened a new era of Chinese comprehensive practising of the law of the sea. It is argued in this section that China has made important contributions to the formulation of UNCLOS, and that UNCLOS was not formulated to solve all maritime issues; a large number of other international conventions, customary rules and national practices, which are also parts of the 3

4

These four Geneva Conventions are the CTS, the CHS, the CFCLR and the CCS. They are the product of UNCLOS I, held in Geneva from 24 February to 27 April 1958. In its resolution 72/249 of 24 December 2017, the General Assembly decided to convene an intergovernmental conference to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The BBNJ negotiation has gone through five conferences, with the final agreement reached on 3 March 2023.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

360

Haiwen Zhang

law of the sea, play a very important role in the settlement of maritime disputes. Section 18.4 focusses on how, through domestic practice, China implements the international law of the sea. Section 18.5 shows how China upholds the international system with the UN at its core, advocates the settlement of maritime disputes through negotiation and promotes the establishment of a maritime order based on international law. Section 18.6 concludes. 18.2 THE PERIOD 1840–1949: CHINA’S ENGAGEMENT WITH THE INTERNATIONAL LAW OF THE SEA

The introduction of international law into China in the late Qing dynasty is a far-reaching historic process. That process witnessed both China’s gradual acceptance, understanding and application of international law, including the law of the sea, and China’s century-old conception of world order, such as ‘the world is for the common’ and ‘the world is in harmony’. This Chinese conception was replaced by ‘Western civilization’ and so on, in which modern international law is deeply imbedded. In other words, the introduction of international law into China was not simply a process of transplanting West-based international law to the East, but rather a process through which China shifted its traditionally universal or imperial conception of order towards the interstate conception of order.5 Without a proper understanding of this background of the introduction of international law into China, it is difficult to understand why both the Chinese government and Chinese people are sensitive to national sovereignty, national humiliation and international status. These concerns have always been a prominent factor in the Chinese acceptance, understanding and application of the international law of the sea in the past; they are currently and will be in the future. 18.2.1 China’s Engagement with International Law in the Nineteenth Century China’s first encounter with international law came in the late Qing dynasty, with the first ‘unequal treaty’, the Treaty of Nanking between China and Britain, signed in 1842 after the Opium War (1839). The Opium War and the Treaty of Nanking reversed the relationship between China and the outside world. They represented ‘turning-points’ in Sino–Western relations6 after which China began to be disqualified from treatment as a normal member in an international society. It was forced to sign a number of unequal treaties. Western powers, under these treaties, were authorized, among other things, to enjoy capitulation and to manage customs affairs in China.7 China thus evolved into a ‘semi-colonial’ country.8 It is in the period of ‘national humiliation’ that international law was gradually introduced to China.9 It should be noted that China, in the period of the late Qing dynasty and the early ROC, 5

6 7

8

9

See, for example, Immanuel C. Y. Hsu¨, China’s Entrance into the Family of Nations: The Diplomatic Phase, 1858– 1880 (Cambridge, MA: Harvard University Press, 1960), 207–10; Xuezhong Lin, From Universal Law to Public Law Diplomacy: The Introduction, Interpretation and Application of International Law in the Late Qing Dynasty (Shanghai: Shanghai Ancient Books Publishing House, 2019), Peikai Zheng: Preface 1, p. 2 [林学忠著, 《从万国 公法到公法外交 : 晚清国际法的传入、诠释与应用》, 上海 : 上海古籍出版社, 2019年, 郑培凯 : 序一, 第2页]. Gerrit W. Gong, The Standard of ‘Civilization’ in International Society (Oxford: Clarendon Press, 1984), 136. See Wang Tieya, ‘International Law in China: Historical and Contemporary Perspectives’ in Collected Courses of the Hague Academy of International Law, vol. 221 (1990), 250–62; Turan Kayaolu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman, and China (Cambridge: Cambridge University Press, 2010), 155–60. See Constitution of the People’s Republic of China (1982, as amended in 2004), Preamble [《中华人民共和国宪法 (1982年, 2004年修订)》, 序言]. See, generally, Rune Svarverud, International Law as World Order in Late Imperial China: Translation, Reception and Discourse, 1847–1911 (Leiden: Brill, 2007), 8–10.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

361

struggled and, on some occasions, succeeded in defending the state interest by using international law.10 Therefore, China long maintained an ambivalent attitude towards international law. On the one hand, international law was essentially created by the Western powers while China and other non-Western states did not have any meaningful say in its creation. International law was actually used by Western powers to infringe China’s sovereignty and justify their colonialization in China. Therefore, China has long been critical of international law. On the other hand, however, China, based on the experience of successfully using international law, recognized that international law was also an instrument with which to defend Chinese state interest. Therefore, China always struggled to seek a larger role in international law creation and application. 18.2.2 The Only Successful Case of the Qing Government Utilizing International Law for Maintaining Its Inner Waters The maritime provisions in the unequal treaties are not unimportant in practice. This was illustrated by an inner waters–related dispute which is known as the Dagu Port case. In handling that dispute, China used the concept of inner waters in diplomatic negotiation for the first time. And, based on many translated works of international law, in particular Henry Wheaton’s Law of Nations, the Qing government was aware that the Bohai Sea was China’s inner water. In 1864 Prussia was at war with Denmark. In April of the same year, Prussian Envoy Herr Von Rehfues met three Danish merchant ships when he arrived at Dagu Port in China on his own warship (the Gazelle), ready to enter Beijing and contact the Prime Minister.11 Rehfues spotted the three Danish merchant ships outside the Dagu Port and detained them. At that time, the Qing dynasty’s officials had good knowledge of the law of war and the law of the sea through the Law of Nations.12 Therefore, the Qing government stated: First, neither the Sino–Prussia treaty nor the Sino–Denmark treaty provided that one contracting party should enter into alliance with the other contracting party in the case of war. China thus had no obligation to side with either Prussia or Denmark. Therefore, the Qing government decided to remain neutral between the warring states. Second, the area where China’s Dagu Estuary was located belonged to China’s territorial sea instead of the high seas. Thus, the detention of Danish merchant ships in China’s territorial sea constituted a clear violation of international law. Moreover, the Qing government recognized that if the government did not defend the right in the territorial waters and oppose the detention, this case would set a precedent for other countries to use the waters around the Dagu Estuary as a ‘common ocean surface for all countries’ and ‘do anything as they please’.13 For instance, the leader of Zongli Yamen (also known as Prime Minister) Yi Xin believed that ‘no matter which country is at war with whom, one should never retaliate in the Chinese waters’.14 10

11

12 13

14

Maria Adele Carri, Sovereignty in China: A Genealogy of a Concept Since 1840 (Cambridge: Cambridge University Press, 2019), chs. 2, 3 and 4. Bao Jun (eds.), The Complete Account of the Management of Barbarian Affairs, vol. 26 (Tongzhi period) (Peking: Palace Museum, 1930), 31–2 [宝鋆等主编 : 《筹办夷务始末》第二十六卷 (同治时期), 故宫博物院1930年版, 第 30-31页]; Hsu¨, China’s Entrance into the Family of Nations, supra note 4, at 132–3; Zhipeng He and Lu Sun, A Chinese Theory of International Law (Beijing: Law Press China and Springer Nature Singapore, 2020), 104–5. Hsu¨, China’s Entrance into the Family of Nations, supra note 4, at 132–5. Kuang Luohua, ‘Dagu Port Ship Incident: A Successful Case of Diplomatic Application of International Law in the Late Qing Dynasty’ (2006) 25 Journal of Anqing Teachers College (Social Science Edition), at 22 [况落华 : 《大沽口 船舶事件 : 晚清外交运用国际法的成功个案》, 《安庆师范学院学报(社会科学版)》2006年第1期, 第22页]. Bao Jun, The Complete Account, supra note 10, at 31–2.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

362

Haiwen Zhang

The Qing government sent many diplomatic notes to Rehfues on the matter. Under the auspices of the Qing government, Prussia relieved two of the three Danish merchant ships at the beginning of the negotiations, and paid a compensation of 1,500 yuan of silver for the third ship. In this regard, Yi Xin stated again: The reason that the officials of China insist on resolving the matter of Prussian envoy detaining Denise ships, is because the conflict was taken place on Chinese ocean. The boundary of the said ocean was clearly documented. Regardless of the military conflict between Prussia and Denmark, detaining ships on Chinese sea surface is a contemptuous gesture to China. Therefore our persistence on settling the dispute is not a protection for Denmark, but rather a defend to the rights of China.15

The statement showed clearly that what China did was intended to protect its own sovereignty, rather than to side with Denmark.16 The Dagu Port case was the first time that the Chinese government was proactive in relying on the law of the sea to deal with diplomatic issues after the introduction of international law into China.17 In several diplomatic notes to Rehfues, the Qing government successively invoked the principle of territorial sea sovereignty, the obligations of bilateral treaties and Western diplomatic practices and other rules of international law and customary law. This was a bold attempt by the Qing government to use international law, including the law of the sea, to resolve diplomatic issues and safeguard sovereignty. In one word, the Qing government, in the Dagu Port case, succeeded in defending the state interests.18 18.2.3 The Qing Government’s Practice in Relation to Maritime Jurisdiction After the Opium War, the Qing government was forced to enter into dozens of unequal treaties. Obviously, China’s earliest practice of maritime jurisdiction was embodied in the unequal trade treaties signed with foreign countries during the Qing dynasty, and in the way that the Qing government unilaterally assumed obligations.19 In some of these treaties, China undertook the obligations of maintaining maritime safety and providing rescue in the ‘inner sea of China’s jurisdiction’, ‘seas under China’s jurisdiction’ and ‘coastal areas of China’. However, the treaty signed by the Qing government and Mexico on 14 December 189920 was the first ‘equal’ treaty regulating matters relating to the territorial sea, which was essentially an anti-smuggling zone. Article 11 of the treaty stipulated that ‘[t]he two contracting parties agree upon considering a distance of three marine leagues measured

15 16 17

18 19

20

Ibid., at 34–5. Luohua Kuang, ‘Dagu Port Ship Incident’, supra note 12, at 23. Weijian Wang, ‘The Ship Incident at the Dagu Port between Prussia and Denmark and the Introduction of Western International Law into China’(1985) 5 Academic Research at 84. (王维俭 :《普丹大沽口船舶事件和西方国际法传入 中国》,《学术研究》1985年第5期, 第84页) Luohua Kuang, supra note 12, at 1. There are similar provisions in many trade treaties in the later Qing Dynasty. For details, see Tieya Wang (eds.), Compilation of Old Treaties and Regulations between China and Foreign Countries, vol. 1 (Shanghai: Shanghai University of Finance and Economics Press, 2019), 51; Items 26 and 27 of the Five-Port Trade Charter: Customs Tariff signed by the Qing government and the United States on 3 July 1844, p. 90. Articles 19 and 20 of the Treaty of Tianjin signed by the Qing government and the UK on 26 June 1858 [王铁崖等主编 : 《中外旧约章汇编》第1卷, 上 海财经大学出版社2019年版, 第51页“1844年7月3日清政府与美国签订的《五口通商章程 : 海关关税》第26、27 项”、第90页“1858年6月26日清政府与英国签订的《天津条约》第19条和第20条”]. The Treaty was reprinted in Tieya Wang, Compilation of Old Treaties and Regulations, supra note 18, vol. 1, 871.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

363

from the line of lowtide as the limit of their territorial water’.21 However, although written in many trade treaties, the exact extent of these jurisdictions of the ‘inner sea of China’s jurisdiction’, ‘seas under China’s jurisdiction’ and ‘coastal areas of China’, namely the equivalent of internal waters and territorial seas in the law of the sea, was not defined during the Qing dynasty. In order to safeguard the rights and interests of fishermen, the Qing government proposed setting up fishing areas. At the end of the nineteenth century, as the imperialist states forced China to implement the ‘open door’ (门户开放) policy, foreign fishing vessels frequently intruded into the coastal waters where Chinese fishermen had fished for centuries, endangering their livelihood and Chinese sovereignty. In March 1904, Zhang Jizhi, the chief advisor of the Ministry of Commerce of the Qing government, suggested that ‘the old and new fishing areas should be defined according to the internal and external fishing boundaries’ in order to protect ‘China’s independent right’ in the offshore waters. He suggested that ‘fishing by tugboats should be carried out in the open oceans’.22 Zhang Jizhi’s suggestion was accepted. The Qing government instructed the Ministry of Foreign Affairs, the Admiral of Guangdong Navy and the North and South Naval Command Sa Zhenbing, who worked together to draw up the Complete Map of River and Maritime Fishing Circles. ‘The map shall include destinations of Chinese fishing vessels and place names, as well as their English translations. This venue will provide the opportunity of declaring fishing boundary and establishing sovereignty of territorial sea.’23 In addition, from 1905 to 1906, the Qing government attended events including the Exhibition of International Fisheries held in Milan, Italy.24 These events indicated that, while the Qing government had no clear conception of the width of its territorial sea, it recognized that Chinese people fished beyond the territorial sea and therefore stated that ‘tugboat fishing should be carried out in open oceans’. Although the Qing government proposed the claim of territorial sea, it never defined the width of its territorial sea. Instead, it was only roughly known as ‘ten Li’. For example, in 1875, Hongzhang Li refuted the excuse given by Mori Arinori, a Japanese ambassador appointed in Beijing, that Japanese warships were surveying on the coast of Korea, which was under the tributary of the Qing dynasty at that time. Li stated that, ‘according to the law of nations, the Korean seaport that Japanese warships are currently surveying is in fact Korea’s territory which extended ten Li measured from the coast’.25

21

22

23 24 25

Hungdah Chiu (ed.), Contemporary International Law, 4th ed. (Taibei: San Min Book Co. Ltd, 1983), 366 [宏达主编 : 《现代国际法》, 三民书局1983年版, 第366页]. Also see Tieya Wang (eds.), Chinese and Foreign Old Testament Chapter Compilations, vol. 1 (Shanghai: Shanghai University of Finance and Economics Press, 2019), 871 [王铁崖主编 : 《中外旧约章汇编》第一卷, 上海财经大学出版社2019年版, 第871页]. Shihao Li and Ruoqian Qu, History of Chinese Fisheries (Beijing: Commercial Press, 2018), 14 [李士豪屈若搴 : 《中 国渔业史》, 商务印书馆1937年版, 第14页]. Ibid., at 66. Ibid., at 63. Qing Guangxu Dynasty: Historical Materials of Sino–Japanese Negotiations, vols. 1–2 (from the first year to the seventh year), p. 8, quoted in Zhenguo Chen, ‘The Contiguous Zone Regime in the Law of the Sea and the Necessity of Setting Up China’s Contiguous Zone’ in Lihai Zhao (ed.), Theory and Practice of Contemporary Law of the Sea (Beijing: Law Publishing House, 1987), 76 [《清光绪朝中日交涉史料》, 第1–2卷 (从元年到七年), 第8页, 转引自 陈振国《论海洋法中的毗连区制度和我国设置毗连区的必要性》, 载赵理海主编 : 《当代海洋法的理论与实 践》, 法律出版社1987年版, 第76页]; Hungdah Chiu, Contemporary International Law, supra note 20, at 365–6; Liang Wang (ed.), Diplomatic Historical Materials of the Qing Dynasty, vol. 5 (Beijing: Bibliography Literature Publishing House, 1987), 7 [王亮等主编 : 《清季外交史料》第5卷, 书目文献出版社, 第7页].

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

364

Haiwen Zhang

18.2.4 Application of the Law of the Sea during the ROC Period In contrast to the Qing dynasty, the ROC government, from its founding in 1912 until its downfall in 1949, was more active in engaging the law of the sea. From 1911 to 1949, the Chinese government carried out many acts in relation to the law of the sea, such as signing bilateral treaties, issuing decrees and maps to establish its territorial sea of 3 nautical miles, setting up special control zones for customs, quarantine, fisheries, security and neutrality, and using international law to safeguard sovereignty over islands and reefs.26 In particular, the Chinese government ratified and acceded to the Treaty of Spitzbergen (later renamed the Treaty of Svalbard)27 in 1925. China, in accordance with the Treaty, was entitled to undertake, among other things, fishing, mining, trading and scientific research on those islands and in the sea area around Svalbard in the Arctic Ocean. It was on the very basis of the Treaty that, eighty years or so later, China set up the Yellow River Station, China’s Arctic scientific research station, on New Alsung Island of Spitzbergen, Norway.28 18.2.4.1 The Territorial Sea and the Contiguous Zone Before 1949, regarding the width of its territorial sea, China advocated a width of 3 nautical miles under the influence of European and American theories of international law.29 In April 1931, the Chinese government issued the Decree on Territorial Sea with Three Nautical Miles, and stipulated that ‘[t]he anti-smuggling mileage is 12 nautical miles’.30 In 1934, the Chinese government issued a decree proclaiming the extension of jurisdiction up to 12 nautical miles from its coast in order to enforce the Customs Law. Furthermore, in order to suppress smuggling, the ROC government claimed the contiguous zone with a width of 12 nautical miles.31 In addition to legislation, the government also enhanced the institution-building. In 1911, the Maritime Boundary Commission was established. The Commission was entrusted to handle maritime issues, including the delimitation of the territorial sea.32 18.2.4.2 The Fishing Zone Before 1949, although the Chinese government had made claims for the establishment of fishing zones, it never definitely stated the outer limit of fishing areas or boundaries. For example, in April 1914, the Ministry of Communications issued Regulations on High Seas Fisheries as an incentive to encourage Chinese fishing vessels to fish on the high seas. On 27 April 1915, the Ministry of Agriculture and Commerce issued Regulations for the Inspection of Fishing Vessels 26

27

28 29

30

31 32

Chinese Society of International Law (ed.), The South China Sea Arbitration Awards: A Critical Study (Beijing: Foreign Languages Press, 2018), 279–90, published as a special issue in the Chinese Journal of International Law, at https://academic oup.com/chinesejil/issue/17/2 [中国国际法学会主编 : 《南海仲裁案裁决之批判》, 外文出版社 2018年版, 第279-290页, 这篇文章同时被《中国国际法年刊》作为专刊全文发表]. The Svalbard Treaty, www.jus.uio.no/english/services/library/treaties/01/1-11/svalbard-treaty.xml, or The Spitzbergen Treaty, http://library.arcticportal.org/1909/1/The_Svalbard_Treaty_9ssFy.pdf. The Yellow River Station is located at 78˚55’N and 11˚56’E. Hungdah Chiu, Contemporary International Law, supra note 20, at 367 nn. 155–7. Also see Gang Huang, The Territorial Sea of the Republic of China and Its Related Systems (Taipei: Taiwanese Commercial Press, 1973), 52 [黄 刚 : 《中华民国的领海及其相关制度》, 商务印书馆1973年版, 第52页]. Hungdah Chiu, Contemporary International Law, supra note 20, at 367 n. 159. Also see Tieya Wang, Chinese and Foreign Old Testament Chapter Compilations, supra note 20, at 871. Zhenguo Chen, ‘The Contiguous Zone Regime’, supra note 24, at 77. Jielong Duan (ed.), Practice and Cases of International Law in China (Beijing: Law Press, 2011), p.71. (段洁龙主编 : 《中国国际法实践与案例》, 法律出版社2011年版, 第71页)

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

365

on the High Seas.33 However, the two regulations did not clearly define ‘high seas’, ‘ocean surface’ and ‘sea surface’, even though the Qing government did define them before. During the Period of the Republic of China, a number of officials proposed that fishing zones should be delimited outside the territorial sea. In 1924, for example, Xu Jixiang (许继祥), the founding Head of the Hydrographic Department of the Ministry of Navy and Director of the National Coast Guard, in a report on Japan’s invasion of China’s Dongsha Islands (Pratas Islands) for fishing and mining, suggested that the principles and customary rules of the international law should be followed when the outer line of the territorial seas was defined, and in turn that the fishing zone should be expanded.34 In 1931, the 21st meeting of the State Council decided that the limitation of the territorial sea should be 3 nautical miles and the limit for anti-smuggling should be 12 nautical miles.35 18.2.4.3 Sovereignty Having witnessed the grave infringement of Chinese sovereignty by Western powers during the Qing dynasty, Japan’s invasion and occupation of some Chinese territory including several islands in the SCS during World War II and France’s occupation of the ‘Nine Islets’ in the SCS in 1933,36 the Chinese government took various steps to safeguard territorial sovereignty, including its islands and reefs. Among them were China’s efforts to enhance maritime claims. Following the experience of negotiating with France on the issue of the ‘Nine Islets’, the Chinese government attached greater importance to its sovereignty over the SCS islands. For example, the government set up the Committee of Naming for Water and Land Territory, which was responsible for approving the names of the SCS islands. The Committee announced in 1935 the Name of the South China Sea Islands, dividing the islands into four groups, namely the Dongsha Islands (Pratas Islands), the Zhongsha Islands (Macclesfield Bank), the Xisha Islands (Paracel) and the Tuansha Islands, which were later renamed the Nansha Islands (Spratly).37 In August 1945, China, in accordance with the Cairo Declaration of 1943, the Potsdam Proclamation of 1945 and the Japanese Instrument of Surrender, resumed sovereignty over Taiwan, the Penghu Islands and other islands that were ceded to Japan in 1895.38 Furthermore, the Chinese government exercised its sovereignty over the SCS islands, for instance Yongxing Island (Woody Island) and Taiping Island (Itu Aba Island) which were occupied by Japan during World War II. For example, the Chinese government sent officials to the islands on warships and held ceremonies on the islands, raising the national flag, firing guns and erecting a sovereignty monument. This showed that China had recovered the territory once occupied by foreign countries. Based on its sovereignty over the four groups of islands, and in accordance with international law and the law of the sea, China exercised its claims in the 33

34 35 36

37

38

Lin Cao, ‘Quality Inspection and Fishery Management of Fishing Vessels in the Beiyang Government Period’ (2017) China Ship Survey at 99. (曹凛 : 《北洋政府时期山东一带的渔政管理及船质检查》, 《中国船检》2017年第3 期, 第99页) Zhenguo Chen, ‘The Contiguous Zone Regime’, supra note 24, at 77. Hungdah Chiu, Contemporary International Law, supra note 20, at 367 n. 159. See Gongsu Xu, ‘French Occupation of Nine Small Islands’ (1933) 2 Diplomatic Review, at 13–14 [徐公肃 : 《法国占 领九小岛事件》, 《外交评论》1933年第9期, 第13-14页]. See Guoqiang Li, ‘The Government of the Republic of China and the Nansha Islands’ (1992) Modern History Research, at 168–9 [李国强 : 《民国政府与南沙群岛》, 《近代史研究》1992年第6期, 第168-169页]. ‘It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China.’ Cairo Declaration of 1943.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

366

Haiwen Zhang

SCS.39 For example, in February 1948, the Ministry of the Interior Affairs published the Map of Administrative District of the Republic of China, declaring China’s sovereignty over the abovementioned territorial units, together with a map showing the location of the SCS islands including reefs.40 In May 1949, the Chinese government promulgated the Regulations on the Organization of the Office of the Chief Executive of the Hainan Special Zone, placing ‘Hainan Island, Dongsha Islands, Xisha Islands, Zhongsha Islands, Nansha Islands and other affiliated islands’ into the Hainan Special Zone.41 18.3 THE PRC AND INTERNATIONAL LAWMAKING IN RELATION TO THE LAW OF THE SEA

The PRC government was founded in 1949. However, it was not until March 1972 that the PRC began to represent China, in lieu of the ROC government, in the UN, in accordance with Resolution 2758 adopted by the UN General Assembly (UNGA) on 25 October 1971.42 As a result, the PRC government could not attend UNCLOS I held in 1958 or UNCLOS II held in 1960. Therefore, the PRC did not participate in the negotiations of the four Geneva Conventions – the Convention on the Territorial Sea and the Contiguous Zone (CTS), the Convention on the High Seas (CHS), the Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR) and the CCS – that were agreed upon at UNCLOS I. Accordingly, the PRC did not ratify these conventions. Shortly after resuming its lawful seat in the UN, the PRC government demonstrated its constructive attitude towards engaging the law of the sea. In March 1972, China sent a delegation to participate in the working of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (referred to as ‘the Seabed Commission’). This opened a new chapter of China engaging the law of the sea. On 3 March 1972, the Chinese delegation stated at the meeting of the Seabed Commission the Chinese government’s position on the principle of sovereign equality and non-interference in internal affairs.43 The Chinese delegation believed that the 1958 Geneva convention on the law of the sea was an outdated system built on the basis of the hegemony of traditional maritime powers. Specifically, the Chinese delegation firmly supported the efforts of the Latin American 39

40

41

42

43

Jinming Li, ‘Paracel Islands: Chinese Territory Is Unassailable’ (2014), World Affairs, at 27 [李金明 : 《西沙群岛 : 中 国领土不容置疑》, 《界知识》2014年第13期, 第27页]. Also see Weiyuan Tan, ‘Chinese Government Exercise of Sovereignty over South China Sea Islands during the Republic of China (1912–1949)’, An Wuhan University Doctoral Dissertation, defense passed in May 2013 [谭卫元 : 《民国时期中国政府对南海诸岛行使主权的历史 考察 (1912–1949) 》, 武汉大学2013年博士学位论文]. This Map of the Administrative Regions of the Republic of China compiled by the Department of Geographical Areas of the Ministry of the Interior of the Chinese Government is a model for the compilation of maps of China by various publishers. The Map of Location of the Nanhai Zhudao that was attached to it shows the names of Nanhai Zhudao and the line composed of eleven segments. Jielong Duan (ed.), Practice and Cases of International Law in China (Beijing: Law Publishing House, 2011), 70–1 [段 洁龙主编 : 《中国国际法实践与案例》, 法律出版社2011年版, 第70-71页]. UNGA, Restoration of the lawful rights of the People’s Republic of China in the United Nations, UN Doc. Res. 2758 (XXVI), 25 October 1971. The Resolution decides to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, as to expel forthwith the representative of the Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it. Department of International Law, Peking University Law School (ed.), Compilation of Materials on the Law of the Sea (Beijing: Peoples Publishing House, 1974), 33 [北京大学法律系国际法教研室主编 : 《海洋法资料汇编》, 人 民出版社1974年版, 第33页].

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

367

countries to safeguard the maritime rights of 200 nautical miles and protect their marine resources. On 29 March 1973, in addressing Sub-Commission II of the UN Seabed Commission, the representative of China expressed firm support for the proposal suggested by many small and medium-sized delegations, which was to formulate a new, comprehensive convention on the law of the sea at UNCLOS III. China participated in the negotiations on the drafting of UNCLOS, aiming not only to protect China’s interests in the sea but also to completely change the old law of the sea and ‘establish a fair and reasonable new law of the sea that meets the requirements of the current era and safeguards the sovereignty and national economic interests of all countries’.44 China is one of the architects of UNCLOS. The Chinese delegate attended all eleven sessions of UNCLOS III, which was held from 3 December 1973 to December 1982. As illustrated in the rest of this section, China put forward suggestions on various aspects in relation to UNCLOS. 18.3.1 The Territorial Sea In the Working Paper on Sea Areas Under State Jurisdiction presented at the meeting of SubCommission II of the Seabed Commission on 14 July 1973, the Chinese delegate put forward specific proposals relating to the draft regimes on the territorial sea, EEZs or exclusive fishing zones and the continental shelf.45 Since the founding of the PRC government in 1949, China had been facing a grave security threat from the United States, one of the two superpowers in the world. For instance, after the outbreak of the Korean War, the United States sent the Seventh Fleet to the Taiwan Strait and stationed the 13th Air Force in Taiwan.46 China recognized that there indeed were no customary rules governing the breadth of territorial sea and that the practices of coastal states in this regard were divergent. Therefore, China decided to expand the scope of its territorial sea. On 4 September 1958, the Chinese government issued the Declaration on the Territorial Sea.47 The Declaration provided that ‘the breadth of the territorial sea of the People’s Republic of China is 12 nautical miles’.48 The 12 nautical mile rule applies to all of China’s territory, including the Chinese mainland and its coastal islands, as well as the high seas around the island of Taiwan and the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and other islands belonging to China.49 China believed that establishment of the territorial sea regime was necessary to safeguard its sovereignty and security. In light of the security threat that China encountered in the 1950s, as well as the development of modern technology, China’s decision to expand the width of its territorial sea was understandable and necessary.

44

45

46

47

48

49

(Author unknown), A Compilation of Documents on Chinese Delegation’s Attendance at Relevant United Nations Conferences (1975.1–6) (Beijing: World Affairs Press, 1976), 42–6 [《我国代表团出席合国有关会议文件集1975.1– 6》, 界知识出版社1976年版, 第42-46页]. Working Paper on Sea Areas under National Jurisdiction presented by the Chinese delegation at the meeting of SubCommission II of the United Nations Seabed Commission on 14 July 1972. Duan Jielong (ed.), Practice and Cases of International Law in China (Beijing: Law Publishing House, 2011), 79–82 [段洁龙主编 : 《中国国际法实践与案例》, 法律出版社2011年版, 第79-82页]. Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, published by the government of the People’s Republic of China, ratified at the 100th Session of the Standing Committee of the First National People’s Congress. Art. 1 of the Declaration of the Government of the People’s Republic of China on China’s Territorial Sea [《中华人 民共和国政府关于领海的声明》第1条]. Ibid.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

368

Haiwen Zhang

Based on its legislation, China expressed its general position on the breadth of its territorial sea during the UNCLOS negotiations. China suggested that ‘coastal states have the right to reasonably determine the breadth and scope of their territorial sea and publish it, after taking into consideration . . . the states’ geographical characteristics, the needs of economic development and national security, as well as taking into account the legitimate interests of their neighbors and the convenience of international navigation’.50 Owing to disputes over the width of the territorial sea among the negotiating parties, China proposed establishing a principle to delimit the ‘maximum limit of territorial sea’,51 instead of having a uniform width. The latter approach, in China’s view, was likely to lead the negotiations to a dead end.52 Such a flexible position helped the negotiating parties reach consensus on the conundrum of determining the width of the territorial sea. The agreement was eventually embodied in Article 3 of UNCLOS, which provides that ‘[e]very State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention’. In addition, regarding the baselines of the territorial sea, China proposed that islands with relatively close proximity to each other be considered as a whole to delimit the territorial sea baselines.53 Heated disagreements also occurred at UNCLOS III on the issue of the innocent passage of warships in the territorial sea. The final text of UNCLOS was almost similar to the CTS of 1958,54 which was still vague and open to different interpretations. For instance, there may be two interpretations of ‘ships of all States’. On the one hand, one could argue that warships have the right of innocent passage, much like other ships. On the other hand, the term may be understood to refer to merchant ships only, owing to the fact that warships are very different from general merchant vessels; the view here is that if UNCLOS wanted to give warships the right of innocent passage, it should clearly state this.55 In view of this, some scholars have suggested that UNCLOS has not made any decision on the right of innocent passage of warships and that the issue is therefore still subject to the customary international law.56 According to Oppenheim’s International Law, the 1958 Geneva Conventions can be read ‘either as implicitly permitting the right of innocent passage of warships through territorial sea, or as failing to address the issue at all’, and the ‘latter seems to be the reasonable explanation’.57 Moreover, since UNCLOS was adopted, differences still exist and states’ practices remain different. For example, according to Ashley and Schmitt, until 1 January 1997 there were forty-one countries that required foreign warships to give prior notice or seek approval before entering their waters.58 Therefore, ‘extensive and substantially consistent’ international practice regarding the right of innocent passage of warships in territorial sea has not yet been formed, and the different positions and practices of 50 51

52

53

54 55 56 57

58

Working Paper on Sea Areas under National Jurisdiction (14 July 1973), I. Territorial Sea (II). Statement by Chai Shufan at the second part of the Third Conference on the Law of the Sea on 2 July 1974, in Third UN Conference on the Law of the Sea, Official Records 4: 78, quoted in Hungdah Chui, ‘China and the Law of the Sea Conference’ (1981) 41(4) Occasional Papers/Reprint Series in Contemporary Asian Studies, at 19. A/AC 138/SC II/SR 55(1973) 82, quoted in Zhiguo Gao, ‘China and the LOS Convention’ (1991) 15(3) Marine Policy, at 204. Working Paper on Sea Areas under National Jurisdiction, in Peking University Institute for the International Law (ed.), Compilation of Data on the Law of the Sea (Beijing: People’s Publishing House, 1974), 74 [《国家管辖海域的 工作文件》, 载北京大学国际法研究所 : 《海洋法资料汇编》, 北京人民出版社1974年版, 第74页]. Article 30 of UNCLOS and Article 23 of CTS 1958. D. P. O’Connell, The International Law of the Sea, vol. I (Oxford: Clarendon Press, 1982), 290–1. Ibid. Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, vol. I, 9th ed. (London: Longman, 1992), 618–19, 793–4. Commander John Astley III, USCG and Lieutenant Colonel Michael N. Schmitt, USAF, ‘The Law of the Sea and Naval Operations’ (1997) 42 Air Force Law Review, at 132 n. 50.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

369

various countries cannot form the ‘general rules’ necessary for the generation of customary international rules. 18.3.2 The EEZ and the Continental Shelf The EEZs are not part of the traditional law of the sea; they were created under the new regime established through UNCLOS III. Before UNCLOS III was convened, many developing countries in Latin America and Africa had established 200-mile fishing zones or economic zones, which was arguably inspired by the Proclamation issued by US President Truman in 1945 extending the sea bed beyond the US jurisdiction. China had repeatedly expressed its support for the appeal of coastal states to expand maritime jurisdictions.59 China proposed many suggestions in a working paper it submitted on the rights of coastal states in the EEZ, most of which were adopted at UNCLOS III. For example, China argued that fishing rights in the EEZ should fall under the exercise of sovereignty of coastal states. Under Article 56 of UNCLOS, coastal states have the sovereign right to engage in economic development and exploration, including fishing rights, within the EEZ. Also, China proposed that the exploitation of natural resources within the EEZ should take into account the interests of land-locked and geographically disadvantaged countries.60 China’s position was included in UNCLOS, which, in Articles 69 and 70, defines the rights of land-locked states and geographically disadvantaged states, including the right of those states to participate in the development of the remaining biotic resources in the EEZ of coastal states in the same region. Again, on the matter of jurisdiction over the protection of the marine environment in the EEZ, China maintained that coastal states have the right to enact laws and regulations within their EEZ in light of their own conditions to prevent pollution by ships. In addition, regarding negotiations on jurisdiction over marine scientific research in the EEZ, China supported the claim that coastal states have the exclusive jurisdiction and the right of consent. These suggestions were reflected in the UNCLOS provisions.61 The definition of the continental shelf and its breadth had always been a focus of controversy. From 1973 to 1982, the Chinese representatives during the negotiations on the continental shelf insisted that the principle of natural prolongation serve as the basic principle for determining the outer limitation of a country’s continental shelf. At the same time, China agreed that a state could extend its continental shelf to 200 nautical miles if it was less than that, as long as the extension did not derogate the principle of natural prolongation of the continental shelf. These views were also embraced in Article 76 of UNCLOS.62 A more controversial issue related to the delimitation of maritime boundaries (including EEZs and the continental shelf) using the ‘median line principle’, in accordance with which the 59

60

61

62

Statement made by Representative An Zhiyuan at the Plenary Session of the Seabed Committee on the Principled Position of the Chinese Government on the Question of Maritime Rights (3 March 1972), in Peking University Institute for the International Law (ed.), Compilation of Materials on the Law of the Sea (Beijing: People’s Publishing House, 1974), 14–17 [《中国代表安致远在合国海底委员会会议上发言阐明中国政府关于海洋权问题的原则立 场》, 载北京大学国际法研究所主编 : 《海洋法资料汇编》, 人民出版社1974年版, 第14-17页]. Statement by Ling Qing, The Second Committee on exclusive economic zones at the second session of the Third Conference on the Law of the Sea on 1 August 1974, in Third UN Conference on the Law of the Sea, Official Records, vol. 2 (New York: UN, 1975), 133–4. Gao Jianjun, China and international Law of the Sea (Beijing: China Ocean Press, 2004), 80 [高健军 : 《中国与国 际海洋法》, 海洋出版社2004年版, 第80页]. Article 76(1) of UNCLOS provides that the continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

370

Haiwen Zhang

two countries delimit the disputed area with a median line as the boundary. China opposed this principle, arguing that the median line, or equidistant line, is only one method for delimitation of maritime boundaries and should not be defined as a compulsory method, let alone a principle. The fundamental principle of maritime delimitation, in the view of China, should be the equity principle.63 While, according to the final text of Articles 74 and 83 of UNCLOS, the middle-line method was not adopted in relation to delimiting the EEZ or the continental shelf, both provisions stipulate that ‘[t]he delimitation of the exclusive economic zone [read “continental shelf” in Article 84] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statue of the International Court of Justice, in order to achieve an equitable solution’. Before and after the entry into force of UNCLOS, disputes over the delimitation of maritime boundaries, as a rule, were resolved either by diplomatic negotiations between coastal states or by international jurisprudence. All of these practices play an important role in interpreting and promoting the development of the relevant rules of the law of the sea. 18.3.3 The International Seabed Area Another thorny issue during UNCLOS III concerned the legal regime and administration of the seabed and its subsoil beyond national jurisdiction. The Chinese delegate participated in all of the consultations on international seabed issues; its main position was reflected in the Working Paper on General Principles in International Maritime Areas presented at the first SubCommittee of the Seabed Commission.64 China supports the principle of ‘common heritage of mankind’ proposed by developing countries as the basis of the international seabed regime. Article 136 of UNCLOS stipulates that ‘[t]he Area and its resources are the common heritage of mankind’. Other draft proposals were all basically incorporated into the text, including recommendations on the legal regimes relating to exploration and exploitation of international seabed mineral resources, and the composition and functions of the International Seabed Authority. 18.3.4 China’s Active Participation in Negotiations on Relevant Agreements in the Post-UNCLOS Era After UNCLOS came into force in 1994, China continued to actively participate in the followup negotiations under the auspices of the UN. On 4 August 1995, the UN started negotiations on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.65 China participated in all of the negotiations,66 but has yet to ratify the agreement.67 In 1999, the UNGA adopted Resolution 54/33 establishing the UN Informal Consultation Process on Ocean Affairs and the Law of the Sea. China participated in every meeting of the 63

64

65

66

67

Peking University Institute for the International Law, supra note 58, at 17 [北京大学法律系国际法教研室主编 : 《海洋法资料汇编》, 人民出版社1974年版, 第17页]. Working Paper on General Principles for the International Sea Area, UN Doc. A/AC.138/SC.II/L.45, 6 August 1973, reprinted in Jeanette Greenfield, China’s Practice in the Law of the Sea (Oxford: Clarendon Press, 1992), 235. The Agreement was adopted and opened for signature on 4 December 1995 and entered into force on 11 December 2001. Xuedong Hu, Study on Biological Resources Management System of High Seas (Beijing: China Books Press, 2013), 105–7 [胡学东 : 《公海生物资源管理制度研究》, 北京中国书籍出版社2013年版, 第105-107页]. Due to differences over the dispute settlement mechanism in the Agreement.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

371

Process and expressed its position on relevant issues.68 For the purpose of the implementation of Article 76 of UNCLOS and in light of the lack of capacity of developing countries, China worked with many developing countries at the Conference of the Parties of UNCLOS, proposing that developing countries be allowed to postpone the deadline for submitting information to the Commission on the Limits of the Continental Shelf (CLCS). After consultations, the recommendation was adopted by the Conference of the Parties.69 In November 2004, the UNGA adopted Resolution 59/24 establishing an informal ad hoc open-ended Working Group to open the BBNJ consultation. On June 19, 2023, the BBNJ negotiation was successfully concluded. China has been actively participating in the consultation and negotiation process and has raised many concerns and proposed amendments to the text.70 On the matter of the exploration and development of mineral resources in the International Seabed Area (‘the Area’), China participated fully in the formulation of the Regulations on Prospecting and Exploration, including those relating to polymetallic manganese nodules, cobalt-rich crust and polymetallic sulphides. At present, China, together with other member states, continues to participate in the negotiations organized by the International Seabed Authority on formulating regulations on seabed mining, and has put forward many constructive suggestions on revising the framework of regulations and various draft versions. The Chinese government has emphasized that the draft Exploitation Regulation is a legal document regulating activities in ‘the Area’ and is crucial to the implementation of ‘the principle of the common heritage of mankind’. The regulation should faithfully, accurately and strictly take into account the provisions and spirit of UNCLOS and the Implementation Agreement, treating the Authority and the contractors fairly and ensuring a balance of rights and obligations of all parties. Benefit-sharing is an important content and embodiment of the ‘principle of common inheritance of mankind’, and also an important responsibility stipulated by UNCLOS for the Authority. As an important part of the overall legal regimes of the Area’s resources development, benefitsharing is necessary to coordinate with other issues of deep-sea development.71 18.4 CHINESE DOMESTIC LAWS IMPLEMENTING THE LAW OF THE SEA

While UNCLOS has prescribed many legal regimes and rules regulating marine activities and constitutes an important part of the modern law of the sea, it does not deal with ‘all ocean uses successfully’.72 There are also many other international treaties, international documents, customary international rules, as well as national practices that are relevant to keeping legal 68

69

70 71

72

See United Nations Division for Ocean Affairs and the Law of the Sea, Reports on the Work of the United Nations Open-ended Informal Consultative Process (2000–22), www.un.org/depts/los/consultative_process/consultative_pro cess.htm. In May 2001, the Conference of the Parties adopted the Decision on the Starting Date for the Ten-Year Period for submission of information to the Commission on the Limits of the Continental Shelf, as set out in Annex II, Article IV of the United Nations Convention on the Law of the Sea (SPLOS/72, 2001) and the Decision on the Workload of the Commission on the Limits of the Continental Shelf and the Capacity of States, in particular Developing Countries, to Implement the Decisions contained in Annex II, ARTICLE IV and paragraph (a) of Document SPLOS/72 of the United Nations Convention on the Law of the Sea (SPLOS/182, 2008), respectively. See www.un.org/bbnj/. See also Chapter 14, Section 4.1. Permanent Mission of PRC to International Seabed Authority, Speech by Ambassador Tian Qi, Permanent Representative to the International Seabed Authority, at the first session of the 25th Council of the International Seabed Authority under the topic ‘Financial Issues of Exploitation Regulations’, https://bit.ly/3OD0RX1 [常驻国际海底管理局代表田琦大使在 国际海底管理局第25届理事会第一期会议“开发规章财务问题”议题下的发言]. See also Conference Reports of the Mining Code, International Seabed Authority, www.isa.org.jm/the-mining-code/studies-reports-and-workshopreports/. Anastasia Strati, Maria Gavouneli and Nikolaos Skortos (eds.), Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After (Leiden: Martinus Nijhoff, 2006), xii.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

372

Haiwen Zhang

order in the sea, which constitute parts of, and enhance, the continuous development of the modern law of the sea, including UNCLOS. First, as the content of UNCLOS shows, some problems have not been fully resolved. For example, UNCLOS fails to define important terminologies such as ‘freedom of navigation’ and ‘marine scientific research’. Furthermore, while some matters have been addressed in UNCLOS, other international treaties may also play a part. For example, Part XII of UNCLOS deals with the protection and preservation of the marine environment; however, the issue of how to prevent, reduce and control marine environmental pollution falls under many other international treaties, not least of which are the London Dumping Convention, MARPOL73/78 and more than a dozen other conventions and their protocols relating to prevention of marine environmental pollution under the framework of the International Maritime Organization, as well as the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). Again, in addition to UNCLOS, many international documents deal with maritime fishing resources. The UNCLOS drafters were obviously aware that UNCLOS could not deal with all maritime issues; for this reason, the Preamble to UNCLOS clearly affirms that ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law’. In short, UNCLOS is a core part, but not the whole, of the modern law of the sea. Second, from the perspective of legal development, UNCLOS is not static but dynamic over time. As UNCLOS was negotiated and formulated in the 1970s and the early 1980s, there is no way that it could have been written so as to effectively address the many challenges, activities and situations that would only emerge several decades later. For example, UNCLOS only deals with the protection and preservation of the marine environment; it does not mention conservation of marine ecosystems or marine biodiversity at all. The reason is simple: it was not until the birth of the Rio Declaration in the 1990s that the protection and conservation of marine ecosystems and marine biodiversity became an important international agenda. Issues that were not prevalent at the time of the initial UNCLOS negotiations, such as rising sea levels caused by climate change, pollution from plastic waste, and the application of new technologies for autonomous vessels, will pose new challenges to the existing regime and rules. Some of these new challenges have or will become a driving force for the development of new international agreements or new rules of the modern law of the sea. In short, the modern law of the sea is still in a constant process of development. Obviously, the BBNJ agreement negotiation represents a significant development. Therefore, the relevant legal practice of particular states is not only allowed by the international law of sea, especially UNCLOS, but also necessary for its implementation. Bearing this in mind, now that I have elaborated on China’s participation in the making of the international law of the sea, the next section will examine how China has developed its legal system in relation to the sea by means of legislation, judicial adjudication and law enforcement, especially since China ratified UNCLOS on 15 May 1996.73 At present, there have been more than 100 laws on maritime affairs adopted by the central and local governments. While not yet fully fledged, the Chinese maritime legal system has become more and more systematic. The development of China’s marine legal system can be roughly divided into three phases, as will be illustrated one by one in Sections 18.4.1–18.4.3. 73

Adopted at the 19th Session of the Standing Committee of the Eighth National People’s Congress, see Bulletin of the Standing Committee of the National People’s Congress of the People’s Republic of China, Issue 5, 1996 [《中华人 民共和国全国人民代表大会常务委员会公报》1996年第5期]; or, Bulletin of the State Council of the People’s Republic of China, Issue 16, 1996 [《中华人民共和国全国人民代表大会常务委员会公报》1996年第16期].

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

373

18.4.1 The Embryonic Period (1949–Late 1970s) From 1949 to the end of the 1970s arguably represents the embryonic period of the PRC’s domestic legal practice related to marine affairs. In the first thirty years or so since the founding of the PRC, the government did not propose any marine law to the National People’s Congress (NPC), China’s highest legislature. This indicates that marine affairs were not considered so important that the NPC needed to take action. This does not mean, however, that the Chinese government did not do anything. Rather, the government adopted some regulations and made policy statements, responding to the relevant situations. For example, in 1956 it adopted the Regulations Required to be Observed by Merchant Vessels Passing Through the Lao Tie Shan Channel,74 which provide the requirements for merchant ships navigating in Lao Tie Shan Channel in terms of their passage range, reporting, signal lights and so on, in order to regulate the use of the Straits and ensure the operation of Bohai Bay. In 1964, the government adopted the Regulations on the Passage of Non-Military Vessels with Foreign Nationality through Qiongzhou Strait, stating that Qiongzhou Strait is China’s inland sea and, thus, that foreign military ships are not allowed to pass through it without permission.75 And in 1979, the government approved the Regulations on Management of Vessels with Foreign Nationality, which set the rules for foreign vessels on entry and exit, sailing, berth, communication, dangerous goods, waterway protection, depollution, fire and rescue, maritime accidents and penalty.76 Among these, the most important was the Declaration on the Territorial Sea, which, as noted in Section 18.3.1, the Chinese government issued on 4 September 1958. It was the first time that the new Chinese government made a clear statement on the issue of maritime rights, asserting that territorial sea breadth is 12 nautical miles and adopting the straight baseline. It should be stressed that the Declaration was supported by the Vietnamese government. On 6 September 1958, three days after China’s Declaration was issued, the People’s Daily, the official newspaper of the Central Committee of the Vietnamese Workers’ Party, published the full text of the Chinese government’s Declaration on China’s territorial sea on its front page to express the support from Vietnam. Later, Vietnam’s then prime minister sent a diplomatic note to his Chinese counterpart reiterating his support for China’s Declaration.77 18.4.2 The Rapid Development Period (Early 1980s–Late 1990s) From the early 1980s to the late 1990s, Chinese marine legislation boomed. A large number of laws covering a wide range of maritime affairs were adopted successively by either the NPC or the State Council. The booming trend was largely enhanced by China’s more active engagement with the international law of the sea, especially participation in the UNCLOS negotiations. These laws are roughly divided into two groups. The first group of laws concerns the implementation of UNCLOS. After its ratification of UNCLOS, China adopted several significant laws in light of relevant provisions of UNCLOS. 74

75

76 77

Regulations Required to Be Observed by Merchant Vessels Passing Through the Lao Tie Shan Channel (1956) in Sea Department of Policy, Legislation and Planning, State Oceanic Administration, Collection of the Sea Laws and Regulations of the People’s Republic of China, 4th ed. (Beijing: Ocean Press, 2012), 518–19 [《商船通过老铁山水道 的规定》(1956年), 载国家海洋局主编 : 《中华人民共和国海洋法规汇编》, 海洋出版社2012年版, 第518-519页]. See Article 1 of Rules governing the passage of non-military ships of foreign nationality through the Qiongzhou Strait, adopted by the State Council on 5 June 1964, full text www.gov.cn/zhengce/2020-12/25/content_5574181.htm [见《外 国籍非军用船舶通过琼州海峡管理规则》第1条, 国务院于1964年6月5日通过]. The regulation was adopted by the Ministry of Transport on 18 September 1979, full text https://bit.ly/3DD5cDc. See a 1958 diplomatic note from Van Dong Pham to Enlai Zhou; the proof photo can be found at www.gov.cn/foot/ 2014-06/09/content_2696697.htm.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

374

Haiwen Zhang

For instance, the NPC promulgated the Law on Territorial Sea and Contiguous Zone, and the Law on Exclusive Economic Zone and Continental Shelf.78 It should be noted that the relevant provisions of UNCLOS were largely incorporated into the two laws.79 The second group of laws intended to build the maritime legal framework in consideration of China’s own circumstances. For example, in 1982 the State Council promulgated the Regulations on the Exploitation of Offshore Oil Resources in Cooperation with Foreign Countries.80 It was the first time that China, by employing legal means, claimed oil resources in the continental shelf and other sea areas under its jurisdiction. A major consideration underlying that law was to attract foreign investment into China, which was hungry for capital in order to strengthen its ‘reform and opening-up policy’, which it put into place in the late 1970s. 18.4.3 The Modernization Period (Late 1990s–) Since the late 1990s, China has experienced tremendous transformation in terms of economy, marine technologies, the maritime environment and so on. This has induced China to modernize its maritime legal system. In this current phase, maritime legislation covers a wider range of sea areas. On the one hand, China revised many maritime laws which were found to be outdated in the new context. For instance, China revised the Law on Maritime Environmental Protection in 1999, 2013, 2016 and 2017. Similarly, marine environment protection legislation has evolved from relating to the prevention and control of marine environmental pollution to focussing on the protection of marine ecology. The legal system has been gradually improved, with the enhancement of awareness of protecting the marine ecological environment and the increase of severity of punishment.81 On the other hand, a lot of maritime laws and regulations have been issued, covering almost all aspects of utilization and protection of maritime resources, as well as law enforcement. For example, the Law on Utilization and Management of Sea Areas in 2001 and the Law on the Protection of Islands in 2003 both lay down relevant legal regimes for the utilization and protection of coastal areas and islands. China has five contract areas in the Area. In order to fulfil its obligations under UNCLOS, China needed to strengthen its management of the 78

79

80

81

Law on the Territorial Sea and the Contiguous Zone, People’s Republic of China, 25 February 1992 [《中华人民共 和国领海及毗连区法》, 1992 年 2 月 25 日]; Law on Exclusive Economic Zone and Continental Shelf, People’s Republic of China, 26 June 1998 [《中华人民共和国专属经济区和大陆架法》, 1998 年 6 月 26 日]. For example, in the Law on the Territorial Sea and the Contiguous Zone, China determines that the width of the territorial sea is 12 nautical miles from the baseline of the territorial sea, the baseline of the territorial sea is delineated using the straight-line baseline method, and the entry of foreign military ships into China’s territorial waters must be approved by the Chinese government. In the law of exclusive economic zone and continental shelf, it is stipulated that the scope of the exclusive economic zone is to extend to 200 nautical miles from the baseline for measuring the breadth of the territorial sea, and the continental shelf is the entire natural promulgation of the land territory. If the distance from the baseline for measuring the breadth of the territorial sea to the outer edge of the continental shelf is less than 200 nautical miles, it shall be extended to 200. These contents are made in accordance with the distancebased approach embodied in UNCLOS. Regulations of the People’s Republic of China on Foreign Cooperative Exploitation of Offshore Oil Resources, issued by the State Council on 30 January 1982 [《中华人民共和国对外合作开采海洋石油资源条例》, 1982年1 月30日国务院发布]. For details of the four revisions, see Haiwen Zhang, ‘Review and Prospect: The Marine Environmental Protection Law of the People’s Republic of China’ (2020) 45(4) Environment and Sustainable Development, 79–84 [见张海文 : 《发展历程回顾及展望》, 《环境与可持续发展》2020年第4期, 第7984页].

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

375

exploration and development activities of Chinese citizens, enterprises and other organizations in the Area and protect the seabed ecological environment. To this end, the Law on the Exploration and Development of Deep-Sea Seabed Resources of the People’s Republic of China was adopted at the 19th Meeting of the Standing Committee of the 12th National People’s Congress on 26 February 2016. The Law on the Coast Guard was promulgated in 2021, providing a legal basis for the newly recombined China Coast Guard to exercise maritime law enforcement powers. In particular, China has made greater efforts to work with the international community to promote global ocean governance and make joint efforts to constantly improve the law of the sea. For instance, China supports the UN Sustainable Development Goals (SDGs), especially SDG 14.82 For this purpose, on 19 August 2022, with the approval of the State Council, the Ministry of Natural Resources led the establishment of the China Committee for the United Nations Ocean Decade. The Committee is responsible for coordinating different authorities to implement the United Nations Ocean Decade.83 18.5 CHINA’S EFFORTS TO SETTLE MARITIME DISPUTES BY PEACEFUL MEANS

Many states are involved in maritime disputes and to settle these disputes is a common challenge for almost all states. It is estimated that there are 417 potential maritime boundaries and only 189 or so have been settled.84 In East and Southeast Asia, there still exist many disputes over islands and reefs, or overlapping maritime claims, most of which remain unsettled.85 China has a total of twenty neighbouring countries. In addition to twelve land neighbours,86 China has eight maritime neighbours.87 China borders four marginal seas of the northwest Pacific Ocean: the Bohai Sea,88 the Yellow Sea, the East China Sea and the SCS. From north to south, all of China’s eight maritime neighbours are coastal states with semi-enclosed seas: namely, the Democratic People’s Republic of Korea (DPRK) and Republic of Korea (ROK) in the Yellow Sea; ROK and Japan in the East China Sea; and the Philippines, Malaysia, Brunei, Indonesia and Vietnam in the SCS. To date, China has almost completed the delimitation of all of its land borders with its land neighbours, except for small parts of the borders with India and Bhutan that are not yet settled. All of these delimitations were reached through bilateral diplomatic negotiations without the intervention of any third-party mechanisms.89 This indicates that negotiation is a suitable, if not 82

83

84

85

86

87

88 89

Cui Feng and Shen Bin, ‘Progress and Prospects of China in Implementing the Goal 14 of the 2030 Agenda for Sustainable Development’ (2019) 7(1) Chinese Journal of Urban and Environmental Studies, at 8. Ministry of Natural Resources of China, China establishes National Decade Committee, The Ocean Decade (29 September 2022), oceandecade.org/news/china-establishes-national-decade-committee/. Andreas Østhagen and Clive H. Schofield, ‘An Ocean Apart? Maritime Boundary Agreements and Disputes in the Arctic Ocean’ (2021) 11 Polar Journal, at 330–3. For instance, in the Sea of Japan, DPRK, ROK and Japan dispute the sovereignty of Dokdo (known as Takeshima in Japan). Except that ROK and Japan delimited a continental shelf boundary in the Tsushima Strait in the 1950s, no further maritime boundary delimitation has been made among the three countries. See Wonjae Hwang, Wonbin Cho and Krista Wiegand, ‘Do Korean-Japanese Historical Disputes Generate Rally Effects?’ (2018) 77(3) Journal of Asian Studies, at 693–711. They are Russia, Mongolia, Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan, Pakistan, India, Bhutan, Nepal, Myanmar and Laos. DPRK (which is also a land neighbour), ROK, Japan, the Philippines, Malaysia, Brunei, Indonesia and Vietnam (which is a land neighbour also). DPRK and Vietnam are also land neighbours. Bohai Sea is the inner sea of China owing to its being surrounded by Chinese landmass. See further Chapter 25 in this volume.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

376

Haiwen Zhang

the best, way to resolve territorial disputes and similar sovereignty-sensitive disputes. It seems logical, then, that maritime disputes between China and its neighbouring states can also be properly settled through bilateral negotiations. For instance, after nearly twenty years of bilateral diplomatic negotiation, China and Vietnam, on 25 December 2000, signed the Agreement of Maritime Boundary Delimitation of Beibu Gulf (Gulf of Tonkin), the first maritime boundary agreement between China and its neighbours. In fact, China and its neighbouring states have always sought to resolve their maritime disputes and enhance their mutual cooperation through negotiation. For instance, on 1 November 2022, China and Vietnam issued the Joint Statement on Further Strengthening and Deepening the China–Vietnam Comprehensive Strategic Cooperative Partnership.90 Recognizing that they are ‘good neighbors and friends connected by mountains and rivers, good comrades and partners with common aspirations and common destiny’, the two countries stated that it was essential to properly manage their differences and maintain peace and stability in the SCS. They, thus, agreed to properly handle their maritime issues in such a way as to contribute to long-term peace and stability in the region.91 Again, on 16 November 2022, China and Indonesia issued a Joint Statement.92 The Joint Statement, among other things, states that the two sides agreed to make good use of the bilateral maritime cooperation mechanism, to deepen cooperation in marine scientific research and environmental protection, navigation safety, disaster prevention and mitigation, maritime capacity building, fisheries and other fields, to carry out Indonesia’s ‘National Fish Warehouse’ and other projects and to create new highlights of maritime cooperation.93 In November 2002, the Association of Southeast Asian Nations (ASEAN) and China signed a Declaration on Conduct for the South China Sea (DOC), which is a milestone in the China– ASEAN dialogue relationship. The DOC embodies the joint commitment of all parties to promote regional peace and stability in accordance with international law, including UNCLOS. On the occasion of the 20th anniversary of the 25th China–ASEAN Summit and the signing of the DOC, the leaders of China and members of ASEAN issued a Joint Statement Commemorating the 20th Anniversary of the Signing of the Declaration on the Conduct of Parties in the South China Sea on 11 November 2022.94 The parties reaffirmed their commitment that all disputes should be settled through friendly consultations and negotiations among the states directly concerned, in accordance with commonly recognized principles of international law, including UNCLOS.95 Indeed, states, in accordance with international law including UNCLOS, have the right to settle maritime disputes by resorting to particular third-party adjudication mechanisms such as 90

91 92

93 94

95

Permanent Mission of the People’s Republic of China to the United Nations Office at Geneva and Other International Organizations in Switzerland, Li Keqiang Meets with General Secretary of the CPV Central Committee Nguyen Phu Trong (1 November 2022), geneva.china-mission.gov.cn/eng/zgyw/202211/ t20221106_10801087.htm. Ibid. Ministry of Foreign Affairs of China, Joint Statement between the People’s Republic of China and the Republic of Indonesia (16 November 2022), www.mfa.gov.cn/web/zyxw/202211/t20221117_10976699.shtml. Ibid., para. 10. Ministry of Foreign Affairs of China, Joint Statement on the 20th Anniversary of the Declaration on the Conduct of Parties in the South China Sea (11 November 2022), www.mfa.gov.cn/web/zyxw/202211/t20221114_10974207.shtml. Ibid. The main text of the Declaration also ‘reaffirms our common commitment to maintaining and promoting peace, security and stability in the South China Sea’; to continuing ‘to explore and carry out maritime practical cooperation in such fields as marine environmental protection, marine scientific research, maritime navigation and traffic safety, search and rescue, and combating transnational crimes’; and to continuing ‘to exercise self-restraint, refrain from actions that complicate and expand disputes and affect peace and stability, and refrain from actions that may further complicate the situation’.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

18 China and the Law of the Sea

377

the International Tribunal of the Law of the Sea. However, there has been a growing concern among states that some countries intentionally misuse or abuse international adjudication, while some international judges and arbitrators unduly expand their jurisdiction by misreading international law. Therefore, many states have been more cautious about international adjudicatory mechanisms and taken steps to make them more controllable.96 In this regard, how China responded to the SCS arbitration initiated by the Philippines in 2013 with a final award issued in 2016 raised a grave concern among many states as to China’s commitment to UNCLOS and, more generally, the international rule of law. As we all know, China firmly opposed the SCS arbitration from the beginning. The Chinese government, in several governmental statements, reiterated that the Philippines has no right to bring the case and the international tribunal has no power to hear the case.97 Since international lawyers in China and abroad have already debated the SCS arbitration intensively,98 I do not join them here. Rather, I just want to point out that China does not oppose international adjudication, which has been demonstrated by China’s frequent appearances, as complainant or respondent, before the WTO dispute settlement body, for example; however, the SCS arbitration, in China’s view, was initiated and handled without legal basis. 18.6 CONCLUSION

Like many other fields of international law, the law of the sea was overwhelmingly crafted by the powers in the West with little meaningful participation from the non-Western world. This legal body is not static but evolutionary. Initially, it was mainly intended to determine the legal status of the seas, for instance coastal states’ sovereignty over the territorial sea and freedom of the high seas. Over time, it has gone far beyond issues of the sovereignty and jurisdiction of coastal states to manage the international community’s common interests in relation to the deep seabed, the high seas and natural resources, to protect the marine environment, to conduct marine scientific research and so on, which is constantly inspired by new circumstances, new technologies and so on. Furthermore, it does not stop at the conclusion of particular international instruments, especially UNCLOS. It instead develops over time in line with continuous state practice and international jurisprudence. Specifically, while UNCLOS, which is often seen as ‘the Ocean Charter’, represents the core part of the law of the sea, it has not exhausted all issues. Therefore, not only other international laws (customary and conventional) but also domestic laws play an important part in the development and application of the international law of the sea. Like many other fields of international law, the international law of the sea was overwhelmingly created by a handful of Western powers. As Western powers expanded their colonial 96

97

98

See, generally, Andreas Follesdal and Geir Ulfstein (eds.), The Judicialization of International Law: A Mixed Blessing? (Oxford: Oxford University Press, 2018), 245–59; Harlan Grant Cohen, Andreas Follesdal, Nienke Grossman and Geir Ulfstein (eds.), The Legitimacy and International Courts (Cambridge: Cambridge University Press, 2019), 32–3. See, generally, Haiwen Zhang, Mincai Yu, Yunqing Liu and Xiuxia Li (eds.), Selected Documents and Materials of China’s Position and Statements on the South China Sea Arbitration (New York: William S. Hein & Co. & Wells Information Services, 2021), 3, 41, 155–9. See also Ministry of Foreign Affairs of China, Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014), www.fmprc.gov.cn/mfa_eng/wjdt_665385/ 2649_665393/201412/t20141207_679387.htm. See, for example, Chinese Society of International Law (ed.), The South China Sea Arbitration Awards: A Critical Study (Beijing: Foreign Languages Press, 2018). This work was simultaneously published as a special issue in the Chinese Journal of International Law (2018) [中国国际法学会主编 : 《南海仲裁案裁决之批判》, 北京外文出版 社2018年版这篇文章同时被《中国国际法年刊》作为专刊全文发表].

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

378

Haiwen Zhang

interests in the rest of the world, many non-Western nations encountered the law of the sea and had to accept it ambivalently. After the Opium War (1839), China was forced to sign dozens of unequal treaties. Some of these treaties included provisions infringing China’s sovereignty over the waters. Nonetheless, the Chinese government, during the Qing dynasty, managed to use the law of the sea to argue and defend its sovereignty since the 1840s. During the ROC period, the Chinese government was more active in claiming sovereignty in the SCS. In the first twenty years after its founding in 1949, the PRC government, given that it could not represent China in the UN, did not effectively participate in the making of the international law of the sea, especially the four Geneva Conventions. However, it actively elaborated its positions during UNCLOS III and ratified UNCLOS in 1996. Through UNCLOS, China has also been inspired to continually develop its own maritime legal system. Various laws have been adopted or updated and institution building has been strengthened. These efforts are helpful not only to protect Chinese maritime rights and interests but also to implement UNCLOS and to improve global ocean governance.

https://doi.org/10.1017/9781009041133.020 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space Towards a Relational Normativity Matthias Vanhullebusch

19.1 INTRODUCTION

The global commons have become the site par excellence where states have advanced their normative agendas to address threats to international and national security emanating from state and non-state actors alike. Outer space is one of those security realms in the global commons where developed and developing countries have fundamentally differed on how to govern security. With the rise of normative powers that are perceived as disruptors of the international rules-based order,1 it is unlikely that a consensus on the application of existing and the creation of future security norms will emerge. Indeed, the stakes are high and render a compromise on normative contestations between liberal and illiberal states elusive: ownership over international norms and technological and military superiority over outer space. China has been at the centre of those hegemonic concerns.2 Pursuant to its latest National Defence White Paper in 2019, outlining its national security interests to the world, China considers outer space ‘a critical domain in international strategic competition’.3 Since it is still catching up with its technological capabilities, it remains a competition that China at this stage cannot win. In the normative realm, however, China has shown more confidence and success. Before various international fora, China has striven to profile itself as a responsible power (负责任的国家) and has insisted on its ‘right to be heard’ (话语权). Together with Russia, it has called for the non-weaponization of outer space in the Conference on Disarmament and the First Committee (on Disarmament) of the UN General Assembly (UNGA) since 2008.4 This claimed-to-be-peaceful normative agenda must be seen as the natural prolongation of China’s ‘legal warfare’ (法律战) calling for ‘the use of international and domestic laws to gain international support and manage possible political repercussions of China’s military actions’.5 1

2

3

4

5

L. Vinjamuri, ‘The Future of International Security Norms’ in A. Gheciu and William C. Wohlforth (eds.), The Oxford Handbook of International Security, 288–303 (Oxford: Oxford University Press, 2018), 295. G. J. Ikenberry, ‘The Rise of China and the Future of the West: Can the Liberal System Survive?’ (2008) 87 Foreign Affairs, 23. See State Council Information Office of the People’s Republic of China (PRC), ‘White Paper on China’s National Defense in the New Era’ (July 2019). Permanent Mission of the PRC to the United Nations Office and Other International Organizations in Switzerland, ‘Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects (first draft)’, Doc. CD/1839 (29 February 2008); ibid. (second draft), Doc. CD/1985 (10 June 2014). Since December 2003, China’s legal warfare is part of the concept of ‘Three Warfares’ [三种战争] adopted by top military and political authorities in the country – the Chinese Military Commission and the Central Committee of the Communist Party of China (CPC). See Article 14(18), Central Military Commission, People’s Liberation Army of China Regulation on Political Work (December 2003). The term lawfare, however, was coined by US Colonel Charles J. Dunlap in 2001 following the United States-led war on terror in Afghanistan. Against that background, the

379 https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

380

Matthias Vanhullebusch

According to Kittrie, the primary objective of China’s instrumentalization of lawfare ‘is to create and promote international legitimacy for expanding China’s sovereignty rights as part of its access control strategy’.6 In the long term, China’s norm-entrepreneurship could give it the decisive edge in securing its national security interests and tilting the military and technological competition in outer space in its favour. In particular vis-a`-vis the majority of developing countries, China has gradually succeeded in gaining their support around their shared values of peace and development and through different forms of functional cooperation in their outer space activities. Conversely, China’s differential approach towards developed countries has yet to restore their trust in its normative and technological ambitions in outer space. That is to say, before the submission of its first draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT) to the Conference on Disarmament in February 2008,7 China launched an anti-satellite missile against its own weather satellite in January 2007. Unsurprisingly, Western states favoured trust-building measures before the adoption of a legally binding instrument and came up with their own competing normative agenda on a draft International Code of Conduct for Outer Space Activities (ICoC) in March 2014.8 Some experts on China’s foreign policy have described it as unpredictable. Kent in particular argued that such unpredictability is likely to endure9 – also in the normative realm. From this point of view, the choice of engaging China to respect the international rule of law10 or to contain it to protect the liberal order gets ever more complicated11 when international peace, humanity and justice are at stake. Current studies have not moved beyond the description of indeterminacies of China’s international normative conduct. Instead, they have perpetuated and deepened misunderstandings – already against the background of an ideological bifurcation of the world into liberal and illiberal regimes. Genuine as they are, those fears about the survival of the liberal international order have blurred more than ever rational explanations of international legal argumentation of an authoritarian regime that is there to persist within the international system.12 According to Ginsburg, however, ‘[t]oday’s authoritarian regimes are increasingly facile in their engagement with international legal norms and institutions, deploying legal arguments with greater acuity’.13 To make sense of the differential approach of China’s norm-entrepreneurship14 in outer space in its relationships with developing and developed countries, Section 19.2 of this chapter draws

6 7

8

9

10 11

12

13 14

term referred to the ‘use of law as a weapon of war’ potentially undermining US interventions and leadership globally. See Charles J. Dunlap, ‘Law and Military Interventions: Preserving Humanitarian Values in the 21st Century’, paper presented at the Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Harvard Kennedy School, 29 November 2001. O. F. Kittrie, Lawfare: Law as a Weapon of War (Oxford: Oxford University Press, 2016), 166. Speech of Chinese Ambassador Cheng Jingye at the Plenary Meeting of the Conference on Disarmament, 1048th Session, Doc. CD/PV.1048 (24 January 2007), 21. 2014 ICoC, https://eeas.europa.eu/archives/docs/non-proliferation-and-disarmament/pdf/space_code_conduct_ draft_vers_31-march-2014_en.pdf. A. Kent, ‘China’s Participation in International Organisations’ in Y. Zhang and G. Austin (eds.), Power and Responsibility in Chinese Foreign Policy, 132–66 (Canberra: Australia National University Press, 2001), 157. ‘America’s Military Relationship with China Needs Rules’, Economist (16 May 2019). F. Zakaria, ‘The New China Scare: Why America Shouldn’t Panic about Its Latest Challenger’, Foreign Affairs (January/February 2020), www.foreignaffairs.com/articles/china/2019–12-06/new-china-scare. J. V. Feinerman, ‘Chinese Participation in the International Legal Order: Rogue Elephant or Team Player?’ (1995) 141 China Quarterly, 186. T. Ginsburg, ‘Authoritarian International Law’ (2020) 114 American Journal of International Law, 221, 223. See I. de la Rasilla and Y. Hao, ‘The Community of Shared Future for Mankind and China’s Legalist Turn in International Relations’ (2021) 20 Chinese Journal of International Law, 341–79.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space

381

from the Theory on the Relational Normativity of International Law (TORNIL).15 This theory takes stock of a relational perspective in its reconceptualization of the different – interdependent – sources from which international law derives its binding force. Namely, the norms themselves (first source), the common values that underpin them (second source) and the context (third source) – the relationships amongst the share- and stakeholders on the international plane. The differences of view amongst those share- and stakeholders regarding the content of the norms and the values underlying them as well as the nature of their relationship, which is characterized on a scale of trust and distrust, inform how existing norms are interpreted and applied, on the one hand, and how new rules are created and developed, on the other hand. In its application of TORNIL to China’s norm-entrepreneurship in the creation and development of new norms on the non-weaponization of outer space, Section 19.3 dissects the impact on the interdependent sources that give those future norms on the non-weaponization of outer space their binding force in light of China’s differential – relational – approach vis-a`-vis the developing world; while Section 19.4 focusses on the normative competition between China and developed countries affecting the development of future norms on the non-weaponization of outer space. The chapter concludes (Section 19.5) that the evolving – dynamic – nature of China’s relationships with developing and developed countries puts further strain on its normative agenda. Lacking the trust of developed countries, the agenda on the nonweaponization of outer space will not succeed and will undermine China’s normentrepreneurship in the long run.16 19.2 GLOBAL GOVERNANCE, INTERNATIONAL LAW AND CHINA: TOWARDS A RELATIONAL NORMATIVITY

Past and recent studies on China’s international normative conduct have primarily focussed on explaining both its compliance and its non-compliance with international norms in certain areas and its ambition to shape the international and regional legal order. From their perspective, China’s oscillation between sovereignty and community perspectives is reflected in its selective adaption to and efforts at innovation regarding, certain international norms. Such research focussing on individual actions in relation to particular contested norms of international law has not fully accounted for the reasons behind China’s normative malleability and instead has reinforced anxieties regarding China’s model of governance and its hidden motives. A contextual perspective will be considered here to grasp China’s relational perspective on international law and global governance in the security realms of the global commons; that is, the chapter will capture China’s differential normative stance in relation to the particular actors on the international plane with whom it interacts, ranging from small states to those with a great power status. Those individual and contextual perspectives can be traced back to two distinctive – Western and Asian – epistemological frameworks. They determine not only the way people receive and perceive reality but also how they diffuse their knowledge about reality, including 15

16

For other applications of my theory, see M. Vanhullebusch, ‘Governing Asymmetries on the Battlefield: Towards a Relational Normativity’ (2016) 9 Chinese Journal of International Politics, 307; M. Vanhullebusch, Global Governance, Conflict and China (Leiden: Brill Nijhoff, 2018); M. Vanhullebusch, ‘China’s International Investment Strategy: Towards a Relational Normativity’ (2020) 21 Journal of World Investment & Trade, 951; M. Vanhullebusch, ‘Complying with Custom before the World Court: Towards a Relational Normativity’ (2021) 12 Journal of International Dispute Settlement, 325–41. Given the strategic split between middle and emerging countries on this issue, one could imagine that in the wake of the war in Ukraine, those differences could spur further militarization, including of outer space. Comparing to other normative debates, such divide has been present for some time. See, for example, A. Hofer, ‘The Developed/ Developing Divide on Unilateral Coercive Measures: Legitimate Enforcement or Illegitimate Intervention?’ (2017) 16 Chinese Journal of International Law, 175–214.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

382

Matthias Vanhullebusch

foreign policy arguments and scholarly works on international normative behaviour. As will be explored next, TORNIL aims, firstly, to reconcile the Western and Asian epistemological frameworks; secondly, to combine two different units of analysis – actors and relationships – in order to understand how international relations (IR) shape the normative conduct of players on the international plane; and, thirdly, to reconceptualize the different sources from which international law derives its binding force, namely norms, values and relationships. Firstly, cognitive psychologists have carried out various studies in identifying the unique characteristics of Western and Asian epistemological frameworks. According to cognitive psychologists, Western peoples generally look at individual objects and distinguish objects from each other within a given environment based on sets of individual characteristics that are categorized along different taxonomies. Asian peoples, including Chinese, are in general more focussed on the relationships between objects that they observe in a given environment and, accordingly, those different objects give meaning to each other.17 Within the realm of social psychology, those individual and relational thought processes have been linked respectively to the individualist or communitarian organization of Western and Asian societies.18 Through the prism of those cognitive, psychological and sociological studies, comparative legal scholars and legal anthropologists have also investigated crossborder private investment relationships between Chinese and Western counterparts.19 Their studies observe that the conclusion of and the respect for their formal contracts depend on the presence of trust that was reached only after long-term negotiations. Moreover, research on the social psychology of negotiation shows proof that the level of importance attributed to the outcome or the nurturing of the relationship is determined by the epistemological frameworks of those sitting at the negotiation table.20 Also within a Western–American–domestic context, legal scholars have observed that the successful execution of private contracts, as well as dispute resolution, relies on the presence of or the efforts to restore trust between the (disputing) parties to the contract.21 To reduce transactional costs in the execution of an agreement and the resolution of a dispute, the parties would focus on fixing their relationship rather than fall back on the contractual provisions governing their relationship – even in the event of a dispute. Secondly, IR experts have drawn parallels on those processes between private business transactions and exchanges between actors on the international plane. They stress the primordial role of trust in establishing and fixing conflictual relationships between them regardless of the unique institutional context in which they interact – bilateral, regional or global alike.22 For Yaqing Qin, in particular, a Chinese scholar of IR, trust is central in understanding how IR evolve. He has used it in his theory on relational governance, which he defines ‘as a process of negotiating socio-political arrangements that manage complex relationships in a community to produce order so that members behave in a reciprocal and cooperative fashion with mutual trust evolved over a shared understanding of social norms and human morality’.23 Qin examines the 17

18

19

20

21 22

23

R. Nisbett, The Geography of Thought: How Asians and Westerners Think Differently . . . and Why (New York: Free Press, 2003), 220. K.-H. Yeh, ‘Relationalism: The Essence and Evolving Process of Chinese Interactive Relationships’ (2010) 3 Chinese Journal of Communication, 76. K. Z. Zhou, L. Poppo and Z. Yang, ‘Relational Ties or Customized Contracts? An Examination of Alternative Governance Choices in China’ (2008) 39 Journal of International Business Studies, 526. W. L. Adair and J. M. Brett, ‘Culture and Negotiation Process’ in M. J. Gelfand and J. M. Brett (eds.), The Handbook of Negotiation and Culture, 158–76 (Stanford, CA: Stanford University Press, 2004), 159. I. R. Macneil, ‘Relational Contract: What We Do and Do Not Know’ (1985) 3 Wisconsin Law Review, 483. A. M. Hoffman, ‘A Conceptualization of Trust in International Relations’ (2002) 8 European Journal of International Relations, 375. Y. Qin, ‘International Society as a Process: Institutions, Identities, and China’s Peaceful Rise’ (2010) 3 Chinese Journal of International Politics, 129, 138.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space

383

process itself – contrary to the majority of IR scholarship, which draws from individual thought processes, and which, accordingly, focusses on describing the pursuit of interests of individual actors along with realist, liberal and constructivist interpretations, to name but a few. As a result, he observes how relationships between different actors over time can evolve or not towards successful cooperation depending respectively on the presence or absence of trust. In other words, the characteristics of relational governance are its focus on dynamic, ever-changing processes as opposed to static observation, its trust-driven perspective and its emphasis on longterm gains that can be reached through a synthesis of opposing interests. Thus, trust is the starting point for establishing and restoring healthy relationships. Conversely, Qin adds that ‘rules, regimes, and institutions are not established to govern or restrain the behaviour of individual actors in society, but to harmonize relations among members of society’.24 Here too – similar to the scholarship on cross-cultural private business relationships – the pre-eminence of relationships on the international plane may outplay the role of international norms. That is the case when those norms governing the relationship or even the dispute could disrupt the restoration of trust and, as a result, the so-called harmony within those relationships. Thirdly, from an international legal point of view, relational governance may be contested. From a Western perspective, international law is universally valid irrespective of time and geography. The conduct of individual players is measured on a scale of compliance with international norms. Thus, relational governance challenges the certainty, predictability and transparency for which the international legal and political order stands. Conversely, from the Asian perspective, priority must be given to the harmonization of relationships, nurturing a fertile ground in which existing and future international norms can gain root. As a result, respect for international law governing international relationships and disputes is favoured by well-functioning relations in the first place. These opposing normative perspectives can be reconciled if the sources from which international law derives its normativity are also reconceptualized, thus expanding the traditional sources of international law, namely the norms themselves (including treaties, customs and general principles), on the one hand, and the values25 underpinning them (including peace, humanity, justice, development, free trade and so on), on the other hand.26 In this regard, TORNIL accommodates a third source, namely the context – the relationships between relevant share- and stakeholders concerned with the creation and development of future as well as interpretation and application of existing norms of international law. Each of those three sources from which international law derives its binding force operates interdependently. If there is a common ground on the moral values underpinning the normative regimes governing a particular subject area of international law, not only the application of existing but also the development of future norms in such areas may be positively affected. Also, the trust amongst the relevant share- and stakeholders, such as conflicting parties on the ground and even the decision-makers – for example, the members of the UN Security Council (UNSC) ruling by norms governing collective security – can be enhanced and/or restored. In the absence of trust amongst those actors on the international plane, reciprocal normative and moral 24 25

26

Ibid., 133. The (New) International Legal Process School has also paid attention to the role of moral values in the decisionmaking processes within international organizations. See M. E. O’Connell, ‘New International Legal Process’ (2004) 36 Studies in Transnational Legal Policy, 79; H. H. Koh, ‘Internalization through Socialization’ (2005) 54 Duke Law Journal, 975. In his definition of relational governance, Yaqing Qin had already alluded to those two potential sources from which international law could derive its binding forces, namely ‘social norms and human morality’. See Qin, ‘International Society as a Process’, supra note 23, at 133.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

384

Matthias Vanhullebusch

expectations would be slim. According to TORNIL, identifying the presence or absence of trust that characterizes those relationships within different bilateral, regional and international settings is a prerequisite to determining whether or not the normativity of contested norms (in the making) is potentially subject to erosion. With such information in mind, it is also possible to think about strategies to strengthen their normativity, including through – but not limited to – relational governance aimed at establishing and/or restoring trust. As a result, any trustworthy relationship – whether on the interpersonal or the interstate level – which is resilient to internal and external shocks will no longer compromise the application of contested norms. When parties trust each other, the application of international law may adversely affect the interests of one party to an agreement this time; next time, its affairs may be better served by the application of another norm that is not advantageous to the other party. As with any theory-building, TORNIL has its promises and limitations. Regarding the former, it may explain the dysfunctional application of international law as it takes rules and relationships as units of analysis in comprehending the normative conduct and agendas of different players on the international plane. It can refine one’s understanding of areas where normative tensions arise and possibly – subject to the political will of relevant actors – strengthen the normativity of international law where it has been eroding. And, as a result, potentially, it can enhance the effectiveness of institutions that are governing within the confines of international law. Since TORNIL inevitably looks at the dynamic evolution of those various relationships in time and space between different players on the international plane to determine its impact upon the normativity of international norms from the moment of their creation and development to their interpretation and application, the selection of those relationships tends to be overinclusive. Furthermore, the differential quality of those relationships is explained on the basis of one principal variable, that is, the presence or absence of trust. Measuring when and how trust can arise, be maintained or be restored in those relationships as well as the different degrees of trust is predicated on insight information regarding the negotiation processes amongst specific agents. For outsiders, its indeterminacy remains a significant obstacle in characterizing the quality of relationships on such a scale.27 As with relational governance, indeterminacy as to the means of restoring trust, too, including dialogue, cooperation and so on, may further reinforce unpredictable normative behaviour. If no trust is present and cannot be restored, resolving conflicts by resorting to international law will be to no avail, thus undermining the international rules-based order. Examining the outcome of those processes where disagreement remains or has been overcome, however, can shed – in hindsight – a new light onto the dynamic nature of trust. In the present study on the non-weaponization of outer space, TORNIL can explain and cautiously predict whether China’s norm-entrepreneurship will succeed in the adoption of new norms. The following sections respectively highlight the strong interdependency of the sources from which such future norms derive their binding force. Like communicating vessels, the presence and the absence of trust inform the extent to which a common understanding on the values underpinning those norms as well as on their actual content can mature or not. It shows proofs that normative expectations have converged amongst developing countries based on a common development narrative. Yet, China’s relational governance has yet to gain trust from developed countries, the United States in particular, in support of its normative agenda. 27

Qin Yaqing’s theory, for example, on relational governance has equally been criticized on those grounds, see Shangtao Gao, ‘Relationalism and the Chinese School [关系主义与中国学派]’ (2010) 8 World Economics & Politics [界经济与政治], 116.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space

385

It faces challenges to prevent the majority of developing countries from defecting to the competing normative agenda of developed countries. 19.3 THE FRAGILITY OF MUTUAL TRUST BETWEEN CHINA AND DEVELOPING COUNTRIES

From the outset, China and Russia explicitly linked their normative agenda on the nonweaponization of outer space with the values of peace and development. Those values have long been advocated before the international community in disarmament matters and, accordingly, have underpinned the development of international norms on the non-weaponization of outer space ever since. From the perspective of TORNIL, a shared understanding of norms and values amongst nations does not suffice to give those norms in the making their normativity. Trust amongst those taking part in the negotiation is a precondition for the adoption of a legally binding instrument governing their relationship. China’s promotion and realization of the common values of peace and development that underpin the draft PPWT will be traced back next – from its earliest international position on matters of economic development and disarmament to its attempt to connect its national development discourses to the UN Sustainable Development Goals (SDGs). Despite this growing international consensus and irrespective of China’s material support to multilateral outer space cooperation, however, trust on behalf of developing states of China’s norm-entrepreneurship – as will be discussed consecutively – has been eroding and will affect, according to TORNIL, the normativity of the future legal framework governing the non-weaponization of outer space. The joint initiative of China and Russia to put the non-weaponization of outer space with their draft PPWT back on the agenda of the Conference on Disarmament has been seen as a way to revitalize the Conference on Disarmament – the premier forum where other important international treaties have been negotiated, including the Biological Weapons Convention.28 In this regard, the Conference on Disarmament had already been discussing the prevention of an arms race in outer space (PAROS) in an Ad Hoc Committee established since 29 March 1985. Despite the latter’s dissolution on 24 August 1994 – ascribed to the opposition of Western states, in particular of the United States – China and the Group of 21 viewed those earlier discussions as a stepping-stone towards the most-needed adoption of an international treaty within its seat.29 On 9 February 2000, China called again – in vain – for the re-establishment of the Ad Hoc Committee on PAROS.30 In the absence of a specially designated forum, China and Russia – with the support of five other developing nations, namely Belarus, Indonesia, Syria, Vietnam and Zimbabwe – pursued, nevertheless, their normative agenda and, accordingly, submitted their first joint working paper on ‘Possible Elements for a Future International Legal Agreement on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects’ to the Conference on Disarmament on 28 June 2002.31 With the input from the other 28

29

30

31

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, in force 26 March 1976, 1015 UNTS 164. Speech of Chinese Ambassador Qian Jiadong before the (350th) Plenary Meeting of the Conference on Disarmament, Doc. CD/PV.350 (1986); Report of the Ad Hoc Committee on Prevention of an Arms Race in Outer Space, Doc. CD/1271 (24 August 1994), 8. China’s Position on and Suggestions for Ways to Address the Issue of Prevention of an Arms Race in Outer Space at the Conference on Disarmament, Doc. CD/1606 (9 February 2000). Doc. CD/1679 (28 June 2002). The joint proposal was preceded by another Chinese working paper on ‘Possible Element of the Future International Legal Instrument on PAROS’. See Doc. CD/1645 (6 June 2001).

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

386

Matthias Vanhullebusch

members of the Conference,32 China and Russia submitted their first and second revised drafts of the PPWT to the Conference on Disarmament respectively on 29 February 2008 and 10 June 2014.33 Unsurprisingly, given the nature of the initiation of both drafts before the Conference on Disarmament, their normative agenda puts the values of peace and development at the centre of their new legal regime. They constitute a firm basis around which the support of developing countries can be rallied and secured.34 In this regard, their earliest references in the preamble stress that peaceful ‘exploration and use of outer space is playing an ever-increasing role in the development of humankind’.35 Conversely, an arms race and military confrontation jeopardize the realization of those development goals.36 This link between disarmament and economic development has already long been the subject of heated discussions during the Special Sessions on Disarmament held between 1978 and 1988 and the International Conference on the Relationship between Disarmament and Development convened by the UNGA in August–September 1987.37 In those fora, China, too, had consistently tied disarmament efforts with peace and economic development, which, in its view, should be the dominant themes of today’s world.38 It was not until 1998 – a decade later – that some members of the international community, in particular those of the Non-Alignment Movement, reemphasized their commitment to the disarmament goals in order to channel military resources towards economic development instead.39 Finally, in 2001, the UNGA picked up these growing grievances again and called upon the Secretary-General to report on the nexus between disarmament and economic development as concluded in the earlier debates that it had convened between 1978 and 1988.40 On 22 November 2002, its resolution was ‘stressing the importance of the symbiotic relationship between disarmament and development in current international relations, and concerned at increasing global military expenditure, which could otherwise be spent on development needs’.41 The draft PPWT does not only insert itself into such broadly supported disarmament logic; it rests equally upon another pillar, namely one on the peaceful use of and development in outer space.42 Here, too, the UNGA had set the tone in advancing the peaceful exercise of the freedoms of access, exploration and use of outer space – the cardinal principles of international space law.43 With the fiftieth anniversary of the first resolution on International Cooperation and 32 33 34 35 36 37 38

39

40 41 42 43

For the compilation of comments: Doc. CD/1769 (14 February 2006) and Doc. CD/1818 (14 March 2007). Doc. CD/1839 (29 February 2008); Doc. CD/1985 (10 June 2014). Doc. CD/1769 (14 February 2006), Part XII; Doc. CD/1818 (14 March 2007), paras. 24 and 153. Doc. CD/1839 (29 February 2008), Preamble, para. 1; Doc. CD/1985 (10 June 2014), Preamble, para. 1. Ibid., Preamble, para. 1. UN Doc. E.87.IX.8 (30 September 1987). Speech of Chinese Ambassador Huang Hua before the UNGA during the First Special Session on Disarmament, UN Doc. A/S-10/PV.7 (29 May 1978), at 140–1; speech of Chinese Ambassador Huang Hua before the UNGA during the Second Special Session on Disarmament, UN Doc. A/S-12/PV.8 (11 June 1982), at 112–13; speech of Chinese Ambassador Qian Qichen before the UNGA during the Third Special on Disarmament, UN Doc. A/S-15/PV.4 (2 June 1988), at 64–5; China’s Note Verbale to the Secretary-General of the International Conference on the Relationship between Disarmament and Development, UN Doc. A/CONF/130/34 (11 September 1987). See also Opening Statement of Chinese Ambassador Hu Xiaodi to the UN in Geneva in UNIDIR, Safeguarding Space Security: Prevention of an Arms Race in Outer Space (Conference Report, 21–22 March 2005), at xx. Final Document of the 12th Conference of Heads of State or Government of Non-aligned Countries (Durban, 29 August–3 September 1998), UN Doc. A/53/667-S/1998/1071, annex I, para. 142: ‘to divert . . . resources from armaments to economic growth and economic development’. UN Doc. A/RES/56/24 E (29 November 2001), para. 5. UN Doc. A/RES/57/65 E (22 November 2002), Preamble, para. 6. (160–1-4). 2014 PPWT, Preamble, paras. 1 and 2; 2014 PPWT, Article III. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967, in force 10 October 1967, 610 UNTS 205, Art. I, para. 3.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space

387

Peaceful Uses of Outer Space, on 26 October 2018, the UNGA – by consensus – called upon states ‘with major space capabilities’ to prevent an arms race in outer space and tied the achievement of the UN SDGs to such peaceful uses of outer space.44 Against the background of this growing international consensus, China has also taken ample opportunity to give legitimacy to its normative agenda by hooking its development discourse – the Common Community of Shared Destiny of Mankind (人类命运共同体)45 – and its model of win–win cooperation (共赢) (reflected in its Belt and Road Initiative46) to the realization of the SDGs in outer space.47 The realization of this peace, security and development nexus is at the core of China’s foreign policy objectives. According to Xi Jinping, [s]ustainable security means that we need to focus on both development and security so that security would be durable. As a Chinese saying goes, for a tree to grow tall, a strong and solid root is required; for a river to reach far, an unimpeded source is necessary. Development is the foundation of security, and security the precondition for development. The tree of peace does not grow on barren land while the fruit of development is not produced amidst flames of war.48

National and international security do not depend on the pursuit of common values alone. To that end, China has been initiating multilateral space cooperation – regionally and internationally alike – to enhance trustworthy relationships that are also expected to give its new norms on the non-weaponization of outer space their binding force. Regarding the former, in October 2005, China had established a new intergovernmental organization – the Asia-Pacific Space Cooperation Organization (APSCO) – with its headquarters in Beijing to advance the peaceful uses of and scientific and industrial cooperation in outer space.49 Regarding the latter, China granted access to developing countries to its Manned Space Agency in outer space – in partnership with the UN Office for Outer Space Affairs (UNOOSA) under the latter’s Access to Space for All Initiative.50 Bilaterally, too, China has concluded various cooperation agreements with the European Space Agency and individual countries, including Algeria, Argentina, Belgium, Brazil, France, Germany, India, Indonesia, Italy, Kazakhstan, the Netherlands and the UK, to solidify their joint scientific efforts.51 From the perspective of TORNIL, China’s and Russia’s relational governance approach – through various international fora and other forms of functional cooperation at the regional and international level – aims to sew a tight web of common understanding – evolved through mutual trust – around the values of peace and development that underpin their future norms 44 45

46

47

48

49

50

51

UN Doc. A/RES/73/6 (26 October 2018), Preamble, para. 15. Speech of President Xi Jinping, ‘Towards a Community of Common Destiny and a New Future for Asia’ (Boao Forum for Asia Annual Conference, 28 March 2015). See further Chapter 3 of this volume. State Council Information Office of the State Council of the PRC, Chinese National Development and Reform Commission, Ministry of Foreign Affairs and Ministry of Commerce, ‘Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road’ (March 2015). See further Chapter 2 of this volume. UN SDG Goal 9 Build Resilient Infrastructure, Promote Sustainable Industrialization and Foster Innovation. See Y. Zhao, ‘The Role of Regional Space Cooperation in Procuring Space Security in the Asia-Pacific Region: Prospects for the Future’ in Y. Zhao (ed.), International Governance and the Rule of Law in China under the Belt and Road Initiative, 243–58 (Cambridge: Cambridge University Press, 2018), 257. Speech of President Xi Jinping on ‘New Approach for Asian Security Cooperation’, 21 May 2014 quoted in J. Xi, The Governance of China, vol. 1 (Shanghai: Shanghai Press, 2014), 393. Convention of APSCO (28 October 2005), Art. 4(1)–(5). Members include Bangladesh, China, Iran, Mongolia, Pakistan, Peru, Thailand and Turkey. UNOOSA, ‘Sustainable Development Goal 9: Industry, Innovation and Infrastructure’, www.unoosa.org/oosa/en/ ourwork/space4sdgs/sdg9.html. State Council Information Office of the State Council of the PRC, ‘White Paper on China’s Space Activities’ (December 2016), http://english.www.gov.cn/archive/white_paper/2016/12/28/content_281475527159496.htm.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

388

Matthias Vanhullebusch

on the non-weaponization of outer space. They have reinvigorated the earlier consensus on the nexus between the peaceful uses of and activities promoting economic development in outer space, on the one hand, and disarmament efforts, on the other hand, in the pursuit of their present norm-entrepreneurship in this specific outer space realm. Emboldened with confidence and conviction, China and Russia were eager to formally move their draft PPWT through the UNGA whose resolutions in the past have contributed to the development of international law. They firmly believed that the long-term process of discussing and negotiating the draft PPWT in the Conference on Disarmament could now culminate in a vote of confidence. Unlike the limited membership of the Conference on Disarmament, all states can equally participate in the decision-making of the UNGA. International treaty-making on outer space could now finally be decided by majority rule. This logic of democratization of IR,52 however, departs from the Western notion to restore the legitimacy of international institutions and their decision-making processes in the eyes of the peoples.53 Instead, its outcome would contribute further to the development of fairer and more equitable norms for states in the first place – a general call infused by the principle of sovereign equality which China had repeatedly supported,54 together with other developing countries.55 Within the specific context of outer space, too, according to China’s latest defence White Paper, it claimed that it ‘has actively participated in multilateral dialogues and negotiations on . . . outer space, and pushed for the formulation of widely accepted international rules that are fair and equitable’.56 From this point of view, China’s relational governance efforts are concerned with establishing trustworthy interstate relationships that have been instrumentalized and are a prerequisite to closing a deal and adopting an international treaty – thus, giving effect to its vision of a new international legal order. Yet, as China and Russia put their normative agenda to the test before the UNGA, from the perspective of TORNIL, the lack of trust between developed and developing countries ran even deeper than expected and compromised the future normativity of the rules on the nonweaponization of outer space. In this regard, when China and Russia submitted their draft resolution entitled ‘No First Placement of Weapons in Space’, welcoming their early draft PPWT for the first time on 2 December 2014, more than one-third of the states before the UNGA abstained in the vote.57 Unsurprisingly, supporters of the draft PPWT also voted in favour of the ‘No First Placement of Weapons in Space’ resolution. Conversely, the lack of trust persisted in the eyes of predominantly Western states.58 This voting outcome contrasted with UNGA Resolution 69/31 on PAROS that was adopted on the same day. Resolution 69/31 enjoyed almost unanimous support – with Israel and the United States voting against.59 This one and another (annual) consecutive PAROS resolution showed proof of the reservations to the draft PPTW as they only noted rather than 52

53

54 55

56

57 58

59

State Council Information Office of the PRC, ‘White Paper on China and the World in the New Area’ (September 2019), https://english.www.gov.cn/archive/whitepaper/201909/27/content_WS5d8d80f9c6d0bcf8c4c142ef.html. A. von Burgandy, ‘Thoughts on International Democracy’ in H. P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity (Leiden: Martinus Nijhoff, 2012), 1387. China’s Position on Establishing a New International Political and Economic Order (August 2003). Final Document of the 12th Conference of Heads of State or Government of Non-aligned Countries (Durban, 29 August–3 September 1998), UN Doc. A/53/667-S/1998/1071, annex I, para. 58. State Council Information Office of the PRC, ‘White Paper on China’s National Defense in the New Era’ (July 2019), http://english.www.gov.cn/archive/whitepaper/201907/24/content_WS5d3941ddc6d08408f502283d.html. UN Doc. A/RES/69/32 (2 December 2014) (129–4-46). H. Liu and F. Tronchetti, ‘United Nations Resolution 69/32 on the “No First Placement of Weapons in Space”: A Step Forward in the Prevention of an Arms Race in Outer Space’ (2016) 30 Space Policy, 64, 67. UN Doc. A/RES/69/31 (2 December 2014) (178–2-0).

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space

389

welcomed the draft PPWT.60 Such a split along those lines dates back to the adoption of earlier UNGA resolutions. Their initiators, namely the Western Europe and Others Group (WEOG) and Eastern European and other states, respectively diverged on the objectives of negotiating an agreement on the prohibition of anti-satellite (ASAT) weapon systems or of the placement of any weapons in outer space.61 While China and Russia were sitting on a comfortable majority supporting the consecutive – annual – ‘No First Placement of Weapons in Space’ resolutions endorsing their draft PPWT, from 2018 onwards, a bloc of Western states – including the three other permanent members of the UNSC – France, the UK and the United States – started voting against the draft rather than abstaining as they did before. They have managed to have up to one-fifth of the members of the UNGA voting against the latest ‘No First Placement of Weapons in Space’ resolution.62 Some developing countries, Haiti in particular, have been defecting to the Western camp.63 China and Russia will have to consider the concerns of developing countries, too, in the realization of their normative agenda and step up their efforts to enjoy the support from all nations – including developed countries.64 However, as will be discussed in the next section, there is a difficult road ahead to engage developed countries including those countries with major strategic capabilities – in particular the United States.65 19.4 NORMATIVE COMPETITION AND MUTUAL DISTRUST BETWEEN CHINA AND DEVELOPED COUNTRIES

Disagreement on the content of the norms and values underpinning the future norms governing the non-weaponization of outer space – exacerbated by the lack of trust of developed countries in the initiators of this normative agenda – compromised from the beginning the future adoption of a legally binding instrument. Such distrust of China’s normative, technological and military ambitions in outer space was marked by its ASAT weapon test launched prior to the submission of its first draft PPWT. As will be discussed consecutively, according to TORNIL, China’s ASAT weapon test significantly informed the opposition of developed countries – the United States in 60

61 62

63 64

65

UN Doc. A/RES/69/31 (2 December 2014) (178–2-0); UN Doc. A/RES/70/26 (7 December 2015) (179–0-2); UN Doc. A/RES/71/31 (5 December 2016) (182–0-4); UN Doc. A/RES/72/26 (4 December 2017) (182–0-3); UN Doc. A/RES/73/ 30 (5 December 2018) (178–2-0); UN Doc. A/RES/74/32 (12 December 2019) (183–2-0); UN Doc. A/RES/75/35 (7 December 2020) (185–2-0); UN Doc. A/RES/76/22 (6 December 2021) (adopted without a vote). UN Doc. A/RES/36/97 C (9 December 1981); UN Doc. A/RES/36/99 (9 December 1981). Consecutive resolutions on ‘No First Placement of Weapons in Space’ include: UN Doc. A/RES/70/27 (7 December 2015) (129–4-46); UN Doc. A/RES/71/32 (5 December 2016) (130–4-48); UN Doc. A/RES/72/27 (4 December 2017) (131–4-48); UN Doc. A/RES/73/31 (5 December 2018) (128–12-40); UN Doc. A/RES/74/33 (12 December 2019) (128–14-38); UN Doc. A/RES/75/37 (7 December 2020) (132–34-21); UN Doc. A/RES/76/23 (6 December 2021) (130–35-20). Haiti is one of the few countries that has formal diplomatic ties with Taiwan – in defiance of the One-China Policy. Since their 2014 annual summit, the BRICS countries, too, have endorsed the peaceful uses of outer space and space cooperation as well as the agenda for the adoption of a treaty prohibiting the weaponization of outer space. See Fortaleza Declaration (15 July 2014), para. 40; Ufa Declaration (9 July 2015), para. 32; Goa Declaration (16 October 2016), paras. 55–6; Xiamen Declaration (4 September 2017), paras. 58–9; Johannesburg Declaration (26 July 2018), para. 49; Brasilia Declaration (14 November 2019), para. 19; Moscow Declaration (17 November 2020), paras. 19–21; New Delhi Declaration (9 September 2021), para. 26; Beijing Declaration (23 June 2022), para. 29. In their joint statement issued on 4 February 2022, China and Russia reaffirmed their commitment to the peaceful uses of outer space and its non-weaponization through the adoption of a legally binding instrument. They also expressed their concerns about the US plans to militarize outer space. Joint Statement on the International Relations Entering a New Era and the Global Sustainable Development (4 February 2022), https://china.usc.edu/russia-chinajoint-statement-international-relations-february-4-2022.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

390

Matthias Vanhullebusch

particular. They disagreed on the content of the norms, criticized the disconnect on the values of peace and development as well as preferred to prioritize the building and restoration of trust instead of negotiating a legally binding instrument in the first place. While diplomatic negotiations were still ongoing in the siege of the Conference on Disarmament, China tested its ASAT weapon systems and carried out a successful ASAT weapon test against Fengyun-1C – a Chinese defunct weather satellite – at an altitude of 863 km on 11 January 2007. China was not the only nation that had launched attacks against space objects. The United States had repeatedly tested such weapon systems against its own satellites. The difference resides in their kinetic effects and the position of their targets. Unlike the United States’ collision attack against Solwind – a US solar observation satellite – at an altitude of 555 km on 13 September 1983 or the explosion of its USA-193 – a defunct spy satellite – at an altitude of 214 km on 20 February 2008,66 the destruction of Fengyan-1C took place at a more critical orbital height.67 Unlike China, however, the United States did not pursue the development of a new legal framework governing the non-weaponization of outer space. While the United States only called China’s ASAT weapon test ‘regrettable’,68 China, on the other hand, was ‘highly concerned’ with the United States’ one and its ‘damage to the security of outer space’.69 Prior to the launch, the Chinese Head of Delegation to the Conference on Disarmament – Ambassador Xu Xiaodi – claimed that ‘[f]or ensuring security in outer space, political and legal approaches can still be more effective, while resorting to force and the development of space weapons will only be counter-productive’.70 After the launch, during his press statement of 16 March 2007, Chinese Premier Wen Jiabao reassured when stating: The test is not directed against and does not threaten any country. Neither does it violate any international treaties. China advocates the peaceful use of outer space and opposes space arms race. I reaffirm that we still maintain this position. And I call on States concerned to sign an international treaty on peaceful use of outer space as soon as possible.71

Developed countries had difficulties understanding and accepting such explanation and it fed into their distrust of China’s normative, technological and military ambitions in outer space. Unsurprisingly, they expressed their strong reservations as to what has been excluded and included in the draft PPWT. The United States, in particular, denounced the limited material scope of the draft PPWT. It prohibited only the actual placement of weapons in outer space. The testing, possession and stockpiling72 as well as the development, testing and deployment of earthbased ASAT weapon systems (which have been deployed by the China and the United States before) do not fall under this prohibition.73 Dual-use technologies that have already been deployed in outer space and that could potentially disrupt the normal functioning of other 66

67

68 69

70 71

72 73

D. A. Koplow, ‘ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons’ (2009) 30 Michigan Journal of International Law, 1187, 1209. NASA, ‘USA Space Debris Environment, Operations, and Modeling Updates’, Presentation to the 50th Session of the Scientific and Technical Subcommittee of UNCOPUOS (11–12 February 2013). US Ambassador Christina Rocca before the Conference on Disarmament (13 February 2007). Liu Jianchao, Chinese Foreign Ministry Spokesperson, ‘Remarks on the U.S. Plan to Destroy Malfunctioning Satellite’, 18 February 2008, at http://ch.china-embassy.gov.cn/ger/fyrth/200802/t20080218_3190308.htm; Liu Jianchao, ‘Regular Press Conference’ (21 February 2008), at http://se.china-embassy.gov.cn/eng/fyrth/200802/ t20080227_2877720.htm. Hu, Safeguarding Space Security, supra note 38. Wen Jiaboa’s statement at an international press conference (16 March 2007) quoted in J. Su, ‘The “Peaceful Purposes” Principle in Outer Space and the Russia–China PPWT Proposal’ (2010) 26 Space Policy, 81, 87. Doc. CD/1998 (2 September 2014), para. 9. Doc. CD/1998 (2 September 2014), para. 14. See also J. Su, ‘Towards an Effective and Adequately Verifiable PPWT’ (2010) 26 Space Policy, 152.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space

391

space objects are also excluded from this prohibition.74 Once technological asymmetries were bridged, it was believed that China and Russia would not desire to fill these normative lacunae. China and Russia, however, reassured that the perceived legal vacuum was addressed by the general prohibition on threats or use of force against space objects,75 regardless of their actual placement – on earth or in outer space – rendering the development and testing of any of those weapon systems more costly and superfluous.76 Although those examples of ASAT weapon tests were not aimed against the space objects of other nations, the draft PPTW has also been silent on the limits to minimize space debris – even beyond self-defensive action – in accordance with the UNCOPUOS Space Debris Mitigation Guidelines as endorsed by the UNGA on 22 December 2007.77 To the contrary, a reference to due diligence obligations would have held China – in hindsight – accountable for its ASAT weapon test or at least be a sign of goodwill towards those reluctant states. Alternative modes of liability were also missing. In this respect, the 1971 Convention on International Liability for Damage Caused by Space Objects to which China is a party does not deal with damage caused by ASAT weapon tests to space objects. Moreover, the United States remained unconvinced that the lack of a verification mechanism on the weapons covered by the draft PPWT was justified on limited technical grounds alone, as China and Russia asserted.78 The latter portrayed that the draft PPWT’s consultation mechanism would suffice for the time being and could be the stepping-stone towards a separate treaty or protocol to the PPWT on that matter, to be adopted later on – when such a consensus would be present.79 Conflictual views on the draft PPWT were not limited to these legal vacuums alone. They equally extended to the inclusion of a definition of the threat and use of force against space objects in the future legal framework. On the one hand, from the Chinese and Russian perspective, such reference was needed to clarify such prohibition under international law in general and the UN Charter in particular within the unique context of outer space warfare – unforeseen at the time of the adoption of the UN Charter.80 The United States, on the other hand, deemed such definition unwarranted and preferred to rely on the ‘existing international legal obligations on the use of force – including Articles 2(4) and 51 of the UN Charter and customary legal obligations’.81 The conditions to allow for legitimate exceptions for states refraining ‘from any action which brings about, directly or indirectly, damage, or destruction, of space objects’, including per the inherent right to self-defence, remained a source of contention.82 The inclusion of jus ad bellum issues within a disarmament treaty is rather unusual. Indeed, Article VII of the draft PPWT authorizes any state party to raise concerns about another state party for violating its obligations, including the prohibition of the threat or use of force against space objects, through a consultation process even with the intervention of the Executive Organization – that is, the future treaty body – to settle the disputes. Only in the last instance may the Organization bring the case to the attention of the UNGA or the UNSC.83 The United States and other permanent members of the UNSC were dissatisfied with such an organizational arrangement as 74 75 76 77 78

79 80 81 82 83

Doc. CD/2129 (2 August 2018), para. 6. The 2014 PPWT, Art. II, para. 2. Doc. CD/2042 (11 September 2015), paras. 7 and 30. UN Doc. A/RES/62/217 (22 December 2007), para. 4 (adopted without vote). Doc. CD/2042 (11 September 2015), paras. 7–11; China’s and Russia’s Working Paper on the Verification Aspects of PAROS, Doc. CD/1781 (22 May 2006), para. 6(ii). Doc. CD/2042 (11 September 2015), paras. 22–3 and 28. Doc. CD/2042 (11 September 2015), paras. 8 and 10. Doc. CD/2042 (11 September 2015), para. 16. 2014 ICoC, Art. 4.2. 2014 PPWT, Art. VII.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

392

Matthias Vanhullebusch

it would bypass the role of the UNSC in restoring and maintaining international peace and security – even in outer space. Beyond the disagreement between China and developed countries on the content of the future norms on the non-weaponization of outer space and even the normative lacunae, fundamental differences regarding the values that underpin those norms as well as the very purpose of the diplomatic negotiations must, according to TORNIL, also be accounted for in one’s determination of the future normativity of those norms vis-a`-vis developed countries. From November 2002 onwards – shortly after the submission of the first joint working paper by China, Russia and five other developing countries before the Conference on Disarmament in June 2002,84 the three Western permanent members of the UNSC reiterated their longstanding reservations in the seat of another international forum, namely the UNGA. They opposed the adoption of those resolutions explicitly, coupling disarmament efforts with economic development before the UNGA by a simple majority.85 Although those transatlantic partners initially shared a consensus on disagreeing with this nexus between peace and development, they shared different views when, in December 2006, the UNGA invited proposals to enhance transparency and build confidence in outer space.86 The United States, on the one hand, had denied the existence of an arms race at that time87 and opposed ‘the development of new legal regimes or other restrictions that seek to prohibit or limit US access to or use of space’ in its 2006 US National Space Policy.88 France and the UK, on the other hand, supported the European Union’s initiative to adopt a non-legally binding code of conduct on the responsible use of outer space activities from 2008 onwards. Eventually, the United States changed its course of action and joined this open-ended multilateral process in January 2012,89 which led to the adoption of the draft ICoC on 31 March 2014. Those developed countries who joined the diplomatic negotiations (from the beginning) leading up to the adoption of the ICoC inspired the UNGA to call for more transparency and confidence-building measures in outer space. Despite the competing normative agendas of developing and developed nations – pursuing different norms and values, reconciliation remained in reach. In this regard, the United States argued that, alternatively, the report of the Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities of July 201390 should be the basis for future discussions. Therefore, before a legally binding instrument was put on the negotiating table – before either the Conference on Disarmament or the UNGA – the prevention of an arms race in outer space could start with such transparency and confidence-building measures.91 According to the United States, the consensus recommendations of the expert report, including on information exchange on outer space military expenditures,92 could be moved forward on a voluntary bilateral basis and even according to multilateral non-binding guidelines of good conduct in outer 84 85

86 87 88 89

90

91 92

Doc. CD/1679 (28 June 2002). UN Doc. A/RES/57/65 E (22 November 2002) (160–1-4). The United States voted against and France, Israel, Micronesia and the UK abstained. UN Doc. A/RES/61/75 (6 December 2006), para. 1 (178–1-1). See UN Doc. A/61/PV.67 (6 December 2006), 19. US National Space Policy (6 October 2006). Press Statement of Secretary of State Hillary Rodham Clinton (Washington, DC, US Department of State, 17 January 2012), at https://2009-2017.state.gov/secretary/20092013clinton/rm/2012/01/180969.htm. UN Doc. A/RES/189 (29 July 2013). Experts of the following countries were members of the group: Brazil, Chile, China, France, Italy, Kazakhstan, Nigeria, Republic of Korea, Romania, Russian Federation, South Africa, Sri Lanka, Ukraine, UK and United States. Doc. CD/2129 (2 August 2018), para. 5. UN Doc. A/RES/189 (29 July 2013), para. 38.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

19 China and the Non-weaponization of Outer Space

393

space, such as the draft ICoC.93 This can contribute to the much-needed restoration of trust that capitalizes on the shared fruits and interests of space-faring nations94 before progress can be made on the non-weaponization of outer space – in line with the findings of the expert report.95 In the meantime, the latest National Space Strategy of 2018 departs from those consensus recommendations. It denounced that the United States’ adversaries have, in the meantime, ‘turned space into a warfighting domain’. It called upon the United States to strengthen its ‘deterrence and warfighting options’ to defend its access to space (architecture).96 This deterrence logic that governs the relationship between two superpowers pursuing their normative, technological and military ambitions in outer space appears to be irreversible – even under the incumbent Biden administration.97 If a legal framework governing the non-weaponization of outer space were to be accepted by the broader international community – developed and developing nations alike – diplomatic and other efforts have to be stepped up to gain the trust of developed countries in particular. Only if mutual trust across the board can be ensured over a common understanding of the content of the future norms of international law and the values underpinning them can, according to TORNIL, the normativity of the new legal regime be safeguarded. In this respect, disarmament talks between Russia and the United States on the prohibition of placing nuclear weapons in outer space and on celestial bodies provide valuable lessons. Their consecutive adoption of an international treaty – that is, the Outer Space Treaty – was, according to TORNIL, possible because both superpowers invested in prior long-term bilateral negotiations leading towards the establishment of mutual trust over a shared understanding of these norms and the values underpinning them.98 In the current case, China and Russia had internationalized their normative agenda before engaging in prior bilateral negotiations with the United States. The consensus recommendations of the report of the Group of Governmental Experts could have been further explored. Instead, the negotiation process was too soon steered towards a vote of confidence on China and Russia’s normative initiative in the siege of the UNGA. This legitimacy test raised eyebrows in developed countries who could not only lend their support – by means of abstention in the voting – but started to oppose the references to the draft PPWT in the ‘No First Placement on Weapons in Space’ resolutions. Furthermore, without the United States changing its space policy, according to Listner and Rajagopalan, the ‘legitimacy of the PPWT is questionable, if not terminal’.99 19.5 CONCLUSION

From the perspective of TORNIL, the successful adoption of new norms of international law is conditioned on the alignment of different interdependent sources from which those norms derive their binding force. In this respect, differences between those sitting on the negotiating table must be 93

94 95 96

97

98 99

Statement of Marie Harf (US Department of State spokesperson) on the consensus achieved by the UN Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities (Washington, DC, US Department of State, 18 July 2013), https://2009-2017.state.gov/r/pa/prs/ps/2013/07/212095.htm. Doc. CD/2129 (2 August 2018), para. 18. UN Doc. A/RES/189 (29 July 2013), para. 26. See White House, ‘President Donald J. Trump Is Unveiling an America First National Space Strategy’, 23 March 2018, www.whitehouse.gov/briefings-statements/president-donald-j-trump-unveiling-america-first-national-space-strategy/. The United States has now its own ‘Space Force’ operating as a separate and distinctive branch of its military, signalling its preparedness to use outer space for military ends too. See US Space Force, at www.spaceforce.mil. See C. McDonald, ‘Biden Says U.S. Won’t Lift Sanctions Until Iran Halts Uranium Enrichment’, CBS News (7 February 2021), www.cbsnews.com/news/biden-interview-iran-sanctions-nuclear-agreement/. Outer Space Treaty, Art. IV. M. Listner and R. P. Rajagopalan, ‘The 2014 PPWT: A New Draft but With the Same and Different Problems’, The Space Review (11 August 2014), www.thespacereview.com/article/2575/1.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

394

Matthias Vanhullebusch

bridged in order to establish a common understanding of the future norms that are going to govern their relationship – on earth and in outer space – (that is, the first source) and the values that underpin them (that is, the second source). The interaction of those first sources that give international norms their normativity must also be seen in the particular context in which negotiating parties relate and engage with each other on a scale of trust and distrust (that is, the third source). The introduction of the last relational perspective into the study of the sources of the normativity of future norms of international law offers new insight into the very conditions that contribute to the establishment, restoration or erosion of trust between relevant share- and stakeholders on the international plane. In order for new rules of international law to take root, sufficient time and effort must be granted and invested throughout long-term negotiations, allowing for trust to mature between the respective negotiating parties so that they can agree on the content of those norms and the values that underpin them. The application of TORNIL with its relational outlook on the sources of the normativity of the future norms on the non-weaponization of outer space has demonstrated that China’s contradictory normative conduct can be explained from its differential – relational – approach vis-a`-vis different parties participating in the diplomatic negotiations before the Conference on Disarmament and the UNGA. China has been very effective in pursuing its norm-entrepreneurship within the realm of the non-weaponization of outer space. According to Kennedy, such acceptance of the legality of its draft PPWT would give China’s norm-entrepreneurship its much-desired legitimacy.100 Indeed, Western countries may have limited choices other than to rely on China as the only other major power in the developing world in order to preserve the multilateral system together in various areas – it is not reserved to security in outer space alone. Significant military advancements, however, are becoming game changers to China’s normative agenda. In particular, India and Russia have increased their investments in their ASAT weapon systems and, accordingly, were carrying out tests respectively in the spring of 2019 and 2020 as well as in the autumn of 2021.101 The proliferation of such military technologies amongst those very supporters of the draft PPWT could undermine the non-weaponization of agenda on outer space. Furthermore, Iran’s launch of its military satellite in June 2020 may defy the UNSC’s restrictions102 on potential linkages to ballistic missile technology for delivering nuclear weapons.103 It remains to be seen how China can keep up in leading the narrative alongside Russia in the face of these external security threats. The war in Ukraine and Russia’s repeated ASAT tests could put China in a rather difficult position.104 It may be bound to pursue new partnerships to advance the non-weaponization of outer space before there is no way back from military confrontation in outer space.

100

101

102 103

104

D. Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton, NJ: Princeton University Press, 2016), 173. A. J. Tellis, ‘India’s ASAT Test: An Incomplete Success’, Carnegie Endowment for International Peace, 15 April 2019, carnegieendowment.org/2019/04/15/india-s-asat-test-incomplete-success-pub-78884; R. S. Cohen, ‘Russia Flexes Space Muscle With Anti-Satellite Weapon Test’, Air Force Magazine (15 April 2020), www .airforcemag.com/russia-flexes-space-muscle-with-anti-satellite-weapon-test/; S. Bugos, ‘Russian ASAT Test Creates Massive Debris’, Arms Control Today, December 2021, https://bit.ly/3QWwdt1. UN Doc. S/RES/2231 (20 July 2015). ´ irkovic´ and J. McDowell, ‘Defining Military Activities in Outer Space: The Launching of the Iranian Satellite E. C Nour 1’, EJIL: Talk! (10 June 2020), www.ejiltalk.org/defining-military-activities-in-outer-space-the-launching-of-the -iranian-satellite-nour-1/. Some authors, however, argue that the China–Russia relationship has never been any better since the war in Ukraine. See D. O. Shullman and A. Kendall-Taylor, ‘Best and Bosom Friends: Why China–Russia Ties Will Deepen After Russia’s War on Ukraine’, CSIS Briefs (June 2022), www.csis.org/analysis/best-and-bosom-friends-whychina-russia-ties-will-deepen-after-russias-war-ukraine.

https://doi.org/10.1017/9781009041133.021 Published online by Cambridge University Press

p a r t v ii

International Economic Law

Published online by Cambridge University Press

Published online by Cambridge University Press

20 China and International Trade Law Rising from Within the System or Always an Outlier? Jiangyu Wang

20.1 INTRODUCTION

The astounding success of the People’s Republic of China (PRC or China) in international trade stands as one of the modern era’s economic marvels. During the first three decades following the establishment of the PRC in 1949, the Chinese mainland remained essentially isolated from the Western world. In 1978, when China began embracing international trade and investment, its external trade – including exports and imports – amounted to a mere USD 20.6 billion. That figure represented less than 1 per cent of world trade, positioning China as the thirty-second largest trading nation in the world.1 In 2021, even amid the Covid-19 pandemic that significantly hindered global trade growth, China’s foreign trade reached USD 6.05 trillion, the largest in the world.2 China replaced Germany as the world’s largest exporter in 2009, and has maintained its status as the leading trading nation in goods since 2014. Notably, China has become deeply integrated into the international economic system. As observed by Eichengreen and Tong: ‘China’s importance as an assembly platform for exports of manufactures, a destination for foreign investment, and a consumer of imported technology, raw materials and industrial goods is not a one-time shock; rather, it is an ongoing process continually reshaping the balance of global supply and demand.’3 China’s foreign trade relations since 1949 have also evolved in tandem with the country’s interaction with the global trade system under the umbrella of the GATT/WTO regime. Sponsored by the United States, the General Agreement on Tariffs and Trade (GATT) was established in 1947 as one of the three pillars of the Bretton Woods System in the aftermath of World War II. It entered into effect – albeit on a provisional basis – on 1 January 1948, a year before the PRC was founded.4 At that time, China was officially represented by the Republic of China government as a founding signatory to the GATT.5 This agreement remained in effect until January 1995, when it was merged into the newly established World Trade Organization (WTO). Therefore, for the purpose of this chapter, ‘international trade law’ primarily refers to the regulatory rules embodied within the GATT/WTO regime, along with other relevant rule

1

2

3

4 5

Information Office of the State Council of China, China’s Foreign Trade [中国的对外贸易] (December 2011), Part I, english.www.gov.cn/archive/white_paper/2014/08/23/content_281474983043184.htm. Press conference of the PRC General Administration of Customs (14 January 2022), www.customs.gov.cn/customs/ xwfb34/302330/4124672/index.html. Barry Eichengreen and Hui Tong, ‘How China Is Reorganizing the World Economy’ (2006) 1 Asian Economic Policy Review, 74. Andreas F. Lowenfeld, International Economic Law, 2nd ed. (Oxford: Oxford University Press, 2008), 25–8. See the preface of GATT 1947, www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm.

397 https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

398

Jiangyu Wang

sets that have emerged in the more recent decades, such as the regional and free trade agreements (RTAs/FTAs). The PRC’s engagement with international trade law is marked by numerous twists and turns. It has undergone several historical phases, from initially ‘leaning to one side’ – obviously the side of the Soviet Union in the 1950s – to complete isolation after severing ties with the Soviet camp in the 1960s and 1970s, to opening up to the West in the late 1970s, and finally to partially decoupling from the United States in the late 2010s. This chapter argues that, during the Reform and Opening-Up period (1978–present), insofar as compliance with international trade law is concerned, China has primarily been a rule-taker and a responsible – though possibly reluctant at times – status quo power in the United States–led, West-dominated international economic order. Simultaneously, China has adopted an instrumentalist approach to international trade law, implementing a foreign trade policy that has pragmatically focussed on striking a balance between trade liberalization and protectionism. This approach has been achieved through the calculated uses of industrial policy tools and non-tariff barriers designed to support selected domestic industries.6 20.2 CHINA’S PRE-REFORM FOREIGN TRADE REGIME AND THE POST-WAR INTERNATIONAL LEGAL ORDER FOR TRADE

The trade system established for the ‘pure’ economy planned in line with Communism, which was practised in China from 1949 to the 1980s, formulated the initial conditions for China’s relationship with international trade law, and has remained a persistent feature in China’s market-oriented trade reform that started in the 1980s and began to unfold in the 1990s. That is, China’s trade reform has always been path-dependent, and, for this reason, many characteristics of the pre-reform trade regime not only inform our understanding of China’s trade policy today but must also be considered as enduring features of contemporary Chinese trade practice. In other words, although China arguably is transitioning to a market economy, the institutional structure and practice of its economic system, including the foreign trade regime, still exhibit continuity with certain features of the pre-reform periods. The decade following the PRC’s establishment saw a trade pattern characterized by dependency on the Soviet Union. Confronted with an American costal blockade and food shortage in urban areas in the 1950s, Mao Zedong decided to ‘lean to one side’, allowing the alliance relationship with the Union of Soviet Socialist Republics (USSR) to dominate China’s political and economic agenda.7 This position was prompted by both ideological and practical considerations. On the ideological front, a strong alliance with the USSR was a natural extension of the Chinese Communist Party’s (CCP) pursuit of socialist and communist revolutions, as the party’s political beliefs were rooted exclusively in Marxism and Leninism. On a practical level, the fledgling People’s Republic was in dire need of Soviet economic and technological assistance, which was generously provided at the time. During that decade, China primarily traded with the USSR and other countries within the Soviet camp, importing capital goods such as machinery 6

7

‘Instrumentalism’ is the key feature of China’s approach to international law in general. See generally Jiangyu Wang and Huaer Cheng, ‘China’s Approach to International Law: From Traditional Westphalianism to Aggressive Instrumentalism in the Xi Jinping Era’ (2022) 10(1) Chinese Journal of Comparative Law, 140–53. Mao Zedong announced unequivocally in 1949 that the ‘Chinese people must lean either to the side of imperialism or to the side of socialism. There can be no exception. There can be no sitting on the fence; there is no third path.’ See I. C. Y. Hsu, The Rise of Modern China (Oxford: Oxford University Press, 2000), 661.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

399

and industrial equipment and exporting mainly primary goods like agricultural and mineral products.8 Interestingly, during this period, China’s external trade and economic relations were conducted based on an extensive range of Westphalian-style trade treaties and agreements. Gene T. Hsiao observed that in the first fifteen years of the PRC, from 1 October 1949 to 31 December 1964, Beijing concluded 408 bilateral ‘economic’ treaties and agreements with 48 states. These arrangements covered issues concerning: (1) commerce and navigation; (2) economic aids, loans and technical cooperation; (3) trade and payments; (4) general conditions of delivery; (5) registration of trademarks; and (6) miscellaneous.9 These legal arrangements were made in the form of treaties (tiaoyue), agreements (xieyi), conventions (gongyue), declarations (xuanyan), protocols (yitingshu) and exchanges of notes (huanwen).10 Despite being a member of the Soviet family owing to the initially strong Sino–Soviet alliance, China’s reliance on traditional international law tools to order its trade relations, even with the socialist countries, highlighted the young Communist republic’s ambivalent attitude towards international law. On one hand, following Marxist ideology, China viewed traditional international law as a coercive instrument wielded by imperialist Western states to impose their will on less developed nations, as exemplified by the historical ‘unequal treaties’ levied on China.11 On the other hand, China saw some value in international law, particularly in its use by newly emerging nation-states, such as China, to assert sovereignty and autonomy against powerful foreign forces attempting to interfere in their internal affairs.12 In this sense, employing legal instruments provided by traditional international law enabled Beijing to participate in international negotiations and establish itself as a recognized, legitimate international player.13 The PRC’s ideological and practical honeymoon with the Soviet Union was short-lived. In the early 1960s, the China–Soviet alliance deteriorated into a split that eventually led to the emergence of a new trend of pragmatism in China’s international economic relations in the 1970s, oriented towards seeking cooperation with the West. The shift occurred after China ceased economic ties with the USSR – and, naturally, with many of the socialist countries within the Soviet sphere of influence – primarily owing to ideological disagreements. However, for most of the 1960s, China essentially closed its door to the outside world, maintaining substantial trade relations with neither the Soviet camp nor the Western camps. Consequentially, its economic interactions with the rest of the world touched upon the lowest levels, while its commitment to Communist revolutionary ideals and its ties with the Third World peaked.14 Mao Zedong’s ‘Great Leap Forward’ campaign, based on a radical idea of self-reliance, assigned a minor role to foreign trade. Nevertheless, China still had to import significant quantities of grains and other 8

9

10

11

12 13

14

Madelyn C. Ross, ‘China’s International Economic Behaviour’ in Thomas W. Robinson and David Shambaugh (eds.), Chinese Foreign Policy: Theory and Practice, 435–52 (Oxford: Clarendon Press, 1994), at 439. Gene T. Hsiao, ‘Communist China’s Trade Treaties and Agreements (1949–1964)’ (1968) 21(5) Vanderbilt Law Review, 623, 626–7. Hsiao noted that, of the 408 trade and economic arrangements mentioned earlier, 7 assumed the title ‘treaty of trade and navigation’, 393 were ‘agreements’, ‘protocols’ and ‘exchange[s] of notes’, while 8 others took miscellaneous designations such as ‘correspondence’, ‘joint statement’, ‘communique’ and others. See ibid., 628–9. Suzanne Ogden, ‘Sovereignty and International Law: The Perspective of the People’s Republic of China’ (1974) 7 New York University Journal of International Law & Politics, 1, 8–9; Wang Tieya, ‘International Law in China: Historical and Contemporary Perspectives’ (1990) 221 Recueil de Cours, 195, 250–62. Wang and Cheng, supra note 6, at 141. Hsiao, supra note 9, at 625 (noting that ‘trade treaties and agreements . . . become a convenient vehicle to promote the [Chinese] regime’s diplomatic interests’). Ross, supra note 8, at 439.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

400

Jiangyu Wang

basic consumption goods in the early 1960s because its own agricultural and industrial performance output plummeted and resulted in three consecutive years of nationwide great famine.15 It was also during the 1960s that China began to diversify its trading partners. In 1960, Prime Minister Zhou Enlai approved trading with Japan, which led to Japan becoming China’s largest trading partner in 1965. Trade with Western Europe also increased dramatically with China’s shifting its purchase of industrial equipment from the USSR to Western suppliers. Meanwhile, trade with the British colony of Hong Kong continued to expand.16 In the 1970s, despite the domestic chaos resulting from the ongoing ‘Cultural Revolution’ (1966–76), China’s relations with the West gradually improved as Mao Zedong pragmatically turned to the West in search of political cooperation and economic support. Between 1970 and 1972, normalized relations were established with Canada, West Germany and Japan. These developments were followed by President Nixon’s visit to China in 1972, a year after China entered the United Nations (UN). Trade with the West expanded tremendously when political relations were normalized: US–China trade alone jumped from USD 5 million to more than USD 800 million in 1973. From that point on, members of the Western economic camp, including Japan, the United States, West Europe, Singapore and Hong Kong, assumed roles as China’s top trading partners in the next several decades.17 In essence, the pre-reform trade regime in China was characterized by three main features. First, from the late 1950s, the organization of foreign trade in China was entirely monopolized by the state through the central government. Around 4,600 private companies, established during the Republic of China period (1912–49) and controlling one-third of the country’s total foreign trade at that time, continued to operate in China in the early 1950s. The ‘socialist transformation of ownership of the means of production’ from 1953 to 1956 eliminated private ownership almost entirely. As a result, foreign trade became completely controlled by a small group of specialized state trading corporations, the number of which varied between ten and sixteen at different times, led by the PRC Ministry of Foreign Trade.18 Corresponding to the separation of functions between different ministries in China’s planned economy, there was also a clear division of labour among the national foreign trade corporations. For instance, only the China National Chemicals Import and Export Corporation could handle the produce of state-owned factories managed by the Ministry of Chemical Industry. Similarly, the China National Cereals, Oils, and Foodstuffs Import and Export Corporation dealt exclusively with goods produced by farms and factories supervised by the Ministry of Agriculture.19 Second, foreign trade served as an instrument of the planned economy to implement the strategy of ‘import substitution’. In fact, China’s foreign trade pattern before the late 1970s could be characterized as an extreme example of import substitutionalism. As stated by a Chinese trade official in 1955, ‘the purpose of importing more industrial equipment from the Soviet Union is to lay the foundation of China’s industrial independence, so that in the future China can make all of the producer goods it needs and will not have to rely on imports from the outside’.20 Under the centralized trade planning system, the State Planning Commission designed trade plans 15 16 17 18

19

20

Hsu, supra note 7, at 655–8. Ross, supra note 8, at 209. Hsu, supra note 7, at 442–3. In 1955, the central foreign trade corporations managed already more than 99 per cent of the PRC’s total foreign trade. See Robert Kleinberg, China’s Opening to the Outside World: The Experiment with Foreign Capitalism (Boulder, CO: Westview, 1990), 105. Nicholas Lardy, Foreign Trade and Economic Reform in China (Cambridge: Cambridge University Press, 1992), 16–17. Ross, supra note 8, at 438.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

401

covering more than 90 per cent of all imports and almost all exports. The demand for imports was intended to primarily increase the supplies of machinery and equipment, industrial raw materials, as well as intermediate goods that were in short supply and needed to meet the production targets for high-priority final goods. Exports were not meant to gain wealth from the international markets based on China’s comparative advantage, but instead were intended to earn foreign exchange to finance imports.21 Once demands of imports were determined, exports sufficient to pay these imports were then identified. Goods for which domestic supplies exceeded planned demands were the most obvious potential exports. However, if they were still not adequate in value to pay the demanded imports, goods for final consumption in the domestic economy would be cut back to free up more goods for export.22 Institutionally, this type of trade regime, sustained by a high degree of trade protectionism and an overvalued exchange rate of the renminbi (RMB) or Chinese yuan, was biased for production for the domestic market and against production for export.23 This orientation is embedded in the third feature of China’s pre-reform trade regime, which was the disconnect between RMB exchange rates and foreign trade insofar as the magnitude and commodity composition of imports and exports were concerned.24 First, prices of all domestic products were officially fixed – which was the essence of the planned economy system. Although export prices had to align with international markets, export products were sold to the centrally owned foreign trade corporations at officially decided domestic prices. The different prices – and, accordingly, costs – between the domestic and international markets thus played little or no role in determining the pattern of exports. As the producers of export products could not share the profits and losses in exports, they had little incentive (except for the ‘spirit of socialist patriotism’) to expand production of goods no matter whether the goods were highly demanded in international markets or not. Similarly, import prices had no direct relationship with the actual selling prices of the imported products in domestic markets. Domestic prices of imported goods were largely determined according to domestic like products. Because imports were made only to supplement domestic production and imports were sold domestically at non-competitive prices, they presented no threats and posed no competitive challenges to domestic producers. In a nutshell, China’s pre-reform foreign trade system was designed to achieve industrialization through an import-substitution strategy. The system operated to protect inefficient domestic producers from foreign competition and made little space for the law of comparative advantage to play a role. During the same period, international trade law under the auspices of the GATT experienced seven rounds of multilateral trade negotiations.25 The GATT was created to promote open markets and freer trade through negotiations based on the free trade philosophy of comparative advantage, using primarily rules-based tools such as the most-favoured nation (MFN) principle, the national treatment principle, reciprocity, prohibitions on quantitative restrictions, trade remedy laws, and so on.26 The Tokyo Round of negotiations (1973-9), with 102 countries participating, cut the tariffs of the world’s nine major industrial economies by onethird and brought the average tariff on industrial goods to 4.7 per cent. It also shifted trade talks 21 22 23

24 25

26

Lardy, supra note 19, at 18. Ibid., at 17. Hui Feng, The Politics of China’s Accession to the World Trade Organization: The Dragon Goes Global (London: Routledge, 2006), 42. Nicholas Lardy, Integrating China into the Global Economy (Washington, DC: Brookings Institute Press, 2002), 30. World Trade Organization, ‘The GATT Years: From Havana to Marrakesh’, www.wto.org/english/thewto_e/wha tis_e/tif_e/fact4_e.htm. John H. Barton et al., The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and the WTO (Princeton, NJ: Princeton University Press, 2006), 27–38.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

402

Jiangyu Wang

from the traditional focus on customs duties to non-tariff barriers, including agricultural trade, customs valuation, government procurement, technical barriers to trade, import licensing, antidumping duties, as well as subsidies and countervailing duties.27 However, China was entirely detached from the dynamic development of international trade law from the 1940s to the 1970s. As noted previously, the Republic of China, led by the Nationalist/Kuomintang government, was a founding signatory to the GATT and occupied China’s seat in the organization until 1950 when it formally withdrew ‘China’ from the GATT, reportedly under pressure from the United States, which feared the PRC taking over China’s status as a contracting party to the GATT.28 In March 1965, Taiwan, in the name of the Republic of China, was accepted by the GATT’s contracting parties as an observer, until the same contracting parties acted to remove Taiwan from the GATT based on UN General Assembly Resolution No. 2758 (XXVI) recognizing the PRC government as the sole legal representative of China in the UN and its affiliated associations in October 1971.29 Although this move offered a chance for the PRC to join the GATT, Premier Zhou Enlai decided not to engage with the GATT out of two concerns. First, China felt that the GATT was a ‘rich countries’ club’; as a nonindustrialized nation, China had a sense of insecurity about being part of it. Second, China, quite rightly, realized that the GATT operated on the basis of market economy principles and capitalism, which were fundamentally incompatible with its planned economy system.30 20.3 CHINA’S PRE-WTO TRADE REFORM: VOLUNTARY COMPLIANCE WITH INTERNATIONAL TRADE LAW

The PRC embarked on a reform course to engage with the liberal international economic order in the late 1970s. A few years after Chairman Mao’s death, Deng Xiaoping ended China’s isolation from the West and removed many of the ideological barriers to market-oriented economic growth. The Third Plenum of the Eleventh Central Committee of the CCP Congress held in December 1978 was a game changer and a landmark development in the political and economic life of post-Mao China, marking the official launch of the ‘reform and opening-up’ policy.31 Foreign trade was assigned a significant role in the reform programme since Chinese policymakers, with a changed mentality, were more receptive to the lessons of international specialization and prepared to advance China’s comparative advantages in world markets. The system of foreign trade planning was gradually dismantled in the 1980s, and the framework of a decentralized, market-oriented system was gradually established to allow China to trade with as many countries as possible and to enhance its full-capacity participation in the international economic system.

27

28

29 30 31

Gerald M. Meier, ‘The Tokyo Round of Multilateral Trade Negotiations and the Developing Countries’ (1980) 13(2) Cornell International Law Journal, 245–7. ‘The 10th Anniversary of China’s WTO Membership: Shi Guangsheng Looks Back on the Hardships in China’s WTO Accession [中国入世十周年]’, 21st Century Business Herald (19 February 2011), shiguangsheng .mofcom.gov.cn/article/activities/201204/20120408078245.shtml. (Note: Shi Guangsheng was China’s Minister for Foreign Trade and Economic Cooperation, known as the MOFTEC, who led China’s negotiation team and signed China’s WTO Access Protocol in 2001.) Ya Qin, ‘China and GATT: Accession Instead of Resumption’ (1993) 27 Journal of World Trade, 77, 80. Interview with Shi Guangsheng, supra note 28. Ronald Coase and Ning Wang, How China Became Capitalist (New York: Palgrave Macmillan, 2012), 41 (noting ‘[b]oth the Chinese government and academic circles view the Third Plenum as the beginning of China’s market transformation, the genesis of the extraordinary story that unfolded in the following three decades, as the world’s most populous country turned from a poor, stagnant socialist economy into one of the world’s most dynamic economies’).

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

403

From the inception of the ‘reform era’, China’s trade reform, as part of the country’s comprehensive economic liberalization programme (jingji gaige), was intended to make China’s foreign trade regime compatible with the GATT-based international trade system. On this basis, reform measures were designed to increase the number and types of enterprises (though not yet individuals) eligible to engage in foreign trade, to introduce trade policy instruments permitted by the GATT that were previously absent or unimportant in a planned economy, and to adopt trade remedy laws by transplanting relevant GATT rules. The expansion of trading rights was one of the most significant initiatives adopted in the early stage of reform. As mentioned earlier, pre-reform trading rights were exclusively held by about a dozen specialized foreign trade corporations. This monopoly was gradually curtailed in the 1980s and 1990s when a significant number of other enterprises were authorized to conduct foreign trade. First, the laws and regulations on foreign investment promulgated in the late 1970s and 1980s allowed all foreign-invested enterprises (FIEs) the right to engage in foreign trade. This was coupled by the Ministry of Foreign Trade creating hundreds of trading companies on an annual basis during the same period. By 2001, more than 35,000 firms were licensed to engage in foreign trade.32 Meanwhile, the number of commodities that were subject to the exclusive trading rights of the specialized foreign trade corporations was greatly reduced, and most of the trading activities of the new trading companies were no longer subject to state planning.33 The creation of market-based, GATT-permitted trade policy instruments to replace the old importing planning mechanism was another milestone in the economic transformation of the reform era. These primarily included tariffs and non-tariff barriers such as import/export licences and quotas. Before reform, tariffs had little effect on the pattern of imports. From the early 1980s, tariffs on many products were set to block the influx of foreign goods into Chinese markets as state trade planning was being phased out. The initial tariffs were rather high, averaging 56 per cent in 1982. However, in the following two decades, China launched more than ten rounds of massive tariff cuts, reducing average MFN tariff rate to 15 per cent in 2001, which ‘was about half that of India and roughly equivalent to Brazil and Mexico’.34 In other words, in terms of systematic tariff reductions, China demonstrated being more of a free trade practitioner than many existing WTO members, possibly as a deliberate gesture. The most dramatic tariff cuts occurred in the 1990s thanks mainly to China’s enthusiastic pursuit of WTO membership: the average import tariff, still at 42 per cent in 1992, was reduced to 35 per cent in 1994. Over the next three years, tariffs were further cut by half to 17 per cent in 1997. As an economist observed, the ‘most important reason for taking such a major step in opening up was that China hoped to accede to the WTO as soon as possible’.35 Non-tariff measures, including licences and quotas, were also created in the early 1980s to fill in the gaps of foreign trade administration when central trade planning was fading away. In 1992, Tong Zhiguang, Vice Minister of Foreign Trade, testified before the GATT’s Working Party on China’s Accession in Geneva that the Chinese government had decided to abolish the planned economy-based import-substitution list and replace it primarily with tariff and non-tariff measures in line with the spirit of the GATT.36 As observed by Nicholas Lardy, although these nontariff measures are typically viewed as restrictions on trade, they represented a step towards free 32

33 34 35 36

Lardy, supra note 24, at 41. See also Jiangyu Wang, ‘The Evolution of China’s International Trade Policy: Development through Protection and Liberalization’ in Y. S. Lee (ed.), Economic Development through World Trade (London: Kluwer Law International, 2007), 196. Wang, ibid., at 197. Lardy, supra note 24, at 33. Miaojie Yu, China’s Miracle in Foreign Trade (London: Springer, 2022), 6. Wang, supra note 32, at 197.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

404

Jiangyu Wang

trade in the Chinese context of transforming from a planned to a market economy since they are market-based and less trade-restrictive measures.37 Furthermore, the use of non-tariff measures was also oriented towards achieving trade liberalization objectives, with the ultimate goal of facilitating China’s joining of the GATT/WTO regime. Quotas and licences reached their peak level in the late 1980s, covering products accounting for 46 per cent of all imports. The share of licensed imports fell to 18 per cent in 1992, followed by larger-scale cuts in the next few years, presumably in preparation for WTO accession. By the end of the 1990s, only 4 per cent of tariff lines (5 per cent of the total) were subject to import licensing, accounting for just 8.45 per cent of China’s total imports.38 At the end of this period, the import-substitution system was totally repealed.39 During this period, China also internalized some of the major legal principles of the GATTbased international trade system. The Foreign Trade Law, adopted in 1994, provided for MFN and national treatment in trade relations with other countries on a reciprocal basis.40 It transplanted the GATT’s trade remedy rules, including anti-dumping, countervailing duties and safeguards, all of which were widely employed by market economies in the name of fair trade. More significantly, the substitution of the market-based trade policy instruments and the internalization of international trade regulations for the traditional trade planning models underlined a movement from administrative governance to legal governance in China’s foreign trade regime. More significantly, the unilateral liberalization measures represented China’s voluntary compliance with international trade law in its endeavour to join the GATT/WTO system. 20.4 CHINA AS A RULE-TAKER IN THE WTO: COMMITMENTS, COMPLIANCE AND PERFORMANCE

China’s formal acquisition of WTO membership on 11 December 2001 marks the beginning of its journey towards fully embracing the international economic system underpinned in part by international trade law.41 As a WTO member, China is bound to abide by the entire package of GATT/WTO law, essentially without exceptions.42 China’s enthusiasm in pursuing WTO membership and its performance in the organization were indicative of its attitude towards the international rule of law, at least in the economic arena. Since becoming a WTO member, China has demonstrated its ability to play by the rules of international trade law without allowing its domestic economic agenda to be controlled or determined by external forces. In addition, China has attempted to take advantage of the legalism feature of WTO law to put its competitors – mainly the United States and Europe – in a defensive position. 37 38 39 40

41

42

Lardy, supra note 24, at 39. Ibid. Wang, supra note 32, at 197. Foreign Trade Law of the People’s Republic of China, adopted by the National People’s Congress on 12 May 1994, Art. 6. WTO Doc. WT/Let/408, 20 November 2001 (letter from WTO Director-General Mike Moore to note China’s notification of acceptance and the entry into force of its WTO membership). In the Letter of Ratification of the WTO Accession Protocol signed by then Chinese president Jiang Zemin and foreign minister Tang Jiaxuan, China declared that it would ‘fully comply with everything provided in the Protocol’. See Pin Zhun Shu, ‘[Letter of Ratification,] 1 November 2001’ in Office of the National People’s Congress Standing Committee (ed.), Legal Documents on China’s WTO Accession and the Related International Treaties [中国加入世 界贸易法律文件] (Beijing: Chinese Democracy and Legal System Press, 2002), 3. See also Jiangyu Wang, ‘The Rule of Law in China: A Realistic View of the Jurisprudence, the Impact of the WTO, and the Prospects for Future Development’ (2004) Singapore Journal of Legal Studies, 347–89, 374.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

405

In WTO negotiations, China has been cautiously maintaining a balance between promoting free trade and supporting the interest of the developing countries, or the Global South, to prevent radical trade liberalization and allow the developing countries the policy space to protect domestic producers. On the other hand, international economic law, especially GATT/WTO-based international trade law, has profoundly changed China’s economic system, its international economic behaviour and the Chinese people’s mentality regarding China’s relationship with the liberal international economic order. 20.4.1 Membership: From GATT ‘Resumption’ to WTO ‘Accession’ The PRC sent a delegation to observe a meeting of GATT contracting parties in November 1982, shortly after the reform era started, and became a formal observer at GATT in November 1985.43 On 10 July 1986, the PRC officially requested GATT membership.44 China set three principles, or preconditions: (i) it sought ‘the resumption of its status as a contracting party to GATT’;45 (ii) it would join GATT as a developing country; and (iii) it would not accept any discriminatory provisions in exchange for WTO membership.46 The ‘resumption’ request was nothing but an indication of the PRC’s insistence on international acceptance of its identity as the sole legitimate government for China including the Taiwan island where the ‘Republic of China’ government was based. However, the PRC pragmatically accepted GATT’s condition to treat ‘resumption’ as a legal formality only and agreed that ‘the PRC would not inherit any rights and obligations from China’s original contracting party status, and all substantive terms of China’s GATT membership would be subject to negotiation’.47 The negotiation lasted fifteen years, from 1986 to 2001, culminating in the conclusion of a US–China agreement on 15 November 1999 that outlined the terms China would accept in order to earn American support of its WTO membership.48 During this period, the WTO replaced GATT in 1995, rendering the ‘resumption’ of GATT status a meaningless legal point. After the China–US deal, China reached agreements with the European Union (EU) in May 2000 and Mexico in September 2001. The case then moved to Geneva for a WTO working party to formulate a protocol on China’s accession, leading to China’s official joining of the global trade institution in December 2001.49 China’s WTO accession was the single most significant event in the WTO’s history since its establishment. Raj Bhala noted that ‘[t]he story itself is an epic saga, and no country currently seeking WTO Membership – Saudi Arabia, Iran and Russia, for example – could possibly create a more complex array of issues than has [China]’.50 The sheer size of China’s population, its political influence, its giant economic scale and its share in world trade gave rise to expectations that China’s presence in the WTO would contribute to the healthy development of international trade law. In other words, ‘China’s accession to the WTO will help strengthen and improve the 43

44

45 46 47 48

49

50

‘Chronicle of Events in China’s Resumption of GATT Status and WTO Accession’ (15 November 2011), www .scio.gov.cn/ztk/xwfb/51/10/Document/1047822/1047822.htm. ‘China’s Status as a Contracting Party – Communication from the People’s Republic of China’, GATT Doc. L/6017 (14 July 1986). Ibid. Qin, supra note 29, at 77. Ibid., at 78. ‘Bilateral Agreement on China’s Entry into the WTO between China and the United States’, www.fmprc.gov.cn /mfa_eng/ziliao_665539/3602_665543/3604_665547/200011/t20001117_697866.html. ‘Chronicle of Events’, supra note 43. See also Protocol on the Accession of the People’s Republic of China, WT/L/ 432, 23 November 2001 (China Protocol). Raj Bhala, International Trade Law: Theory and Practice (New York: Lexis, 2001), 143.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

406

Jiangyu Wang

multilateral trade system, promote world economic and trade development, and establish a new, open, and just international economic order’.51 However, although China accepted ‘WTO-plus’ obligations – a concept to be explained further in Section 20.4.2.1 – its performance in the WTO exhibits a rather complex relationship with the multilateral trading system sustained by international trade law. 20.4.2 China’s WTO Commitments and Their Impacts 20.4.2.1 WTO-Plus Obligations Upon joining the WTO, China ‘swallowed a set of obligations which were much stricter than it was originally prepared to accept’. Further, contrary to its original intention of serving as a developing country member in the WTO, China ‘joined the WTO neither as a developing country nor a developed country but as something in between’.52 One issue in the package of legal obligations China accepted for its WTO membership is worth highlighting, as it may have profound implications for the development of international trade law. Julia Ya Qin observed that the protocol on China’s WTO accession (hereinafter, China Protocol) is a rather unique legal document because it ‘has significantly revised WTO rules of conduct when applied to China’ by containing ‘a large number of special provisions that elaborate, expand, modify or deviate from the existing WTO agreements’,53 with respect to, in particular, transparency, judicial review, uniform administration, national treatment, foreign investment, market economy status and transitional review.54 For example, the China Protocol requires China to afford national treatment to foreign persons and FIEs with respect to conditions affecting their production of goods in China and the marketing and sale of such goods, but GATT/WTO law itself only requires such treatment for imported goods.55 China also accepted that it would be treated as a ‘non-market economy’ and committed to take specific measures to ‘improve’ its economic system to let market forces determine prices, ensure that state-connected enterprises operate on commercial basis without state influence, and liberalize its foreign trade regime. However, none of these commitments have treaty basis in any of the existing provisions of the WTO Agreements and are therefore considered ‘WTOplus’ obligations. Qin argued that such country-specific ‘WTO-plus’ obligations, which apply only to China, may have some positive implications for positive law, such as providing a new standard for WTO rules and trade liberalization.56 However, they also generate negative ‘grave implications’ for the WTO legal system in general because they damage ‘the uniformity of WTO rules of conduct and the new dispute settlement system’.57 In other words, such discriminatory treatment against China directly undermines the spirit of the rule of law which the WTO system intends to promote. Further, the many special WTO-plus provisions in the China Protocol, which were made on an ad hoc basis in

51

52 53

54 55 56 57

Huang Xingwei, ‘PRC, British Deputy Prime Ministers Hold Talks’, World News Connection (20 January 2000), Westlaw No. WL10331994, quoted in Wang, supra note 32, at 198. Wang, supra note 32, at 198. Julia Ya Qin, ‘“WTO-Plus” Obligations and Their Implications for the World Trade Organization Legal System: An Appraisal of the China Accession Protocol’ (2003) 37(3) Journal of World Trade, 483. Ibid., at 491–509. Ibid., at 500. Ibid., at 512–13. Ibid., at 514.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

407

the accession negotiations, remarkably lack clarity and consistency, such that many of them are unlikely to be followed and enforced.58 The WTO-plus phenomenon raises a profound issue in emerging economies’ interaction with the international economic system. China’s immense size and unique socio political system would make it reasonable to argue that it is always a special case among trading nations. On the other hand, China was not the only Asian country subject to special/extra obligations. Vietnam joined the WTO in January 2007 and also accepted ‘WTO-plus’ obligations, many of which are similar to China’s. As will be discussed in Section 20.4.4, China’s positive contributions to rulemaking and norm-creation in international trade law are still wanting, but China-related state practice is increasingly an important source generating or inspiring new rules and standards in international economic law. Both the normal and the WTO-plus obligations are embedded in China’s general and specific commitments in its accession protocol and schedules, which can be divided into three groups: market access commitments, rule of law–related commitments and rules-based commitments, explicated next. 20.4.2.2 Market Access Commitments on Goods and Services On trade in goods, the central market access provisions served to open Chinese markets to foreign exports. China agreed to bind all tariff lines for imported merchandise and reduce the average bound rate for industrial goods to 8.9 per cent. Duties on cars were committed to fall to 25 per cent by mid-2006. The agreed average rate for agricultural products was 15 per cent by 2010. China also acceded to the Information Technology Agreement (ITA) and thereby agreed to eliminate tariffs on all products covered under the ITA by 1 January 2003 and all remaining IT products before 2005.59 In addition, China agreed to remove all quotas, licences, tendering requirements and other non-tariff barriers to imports by 2005. More significant market access concessions from China were regarding services. China agreed to open services sectors including telecommunications and internet, banking, insurance, securities, audiovisual, distribution and a wide range of professional services including legal services and computer services. Foreign services suppliers would be allowed to offer services in those services markets with fewer barriers.60 Putting China’s market access concessions in a comparative light may lead to the conclusion that China embraced global free trade and the underpinning trade rules more broadly and deeply than many existing WTO members when it joined the organization. For example, China’s 8.9 per cent bound average tariff, which dropped to 6.5 per cent by early 2022,61 was comparably more favourable to foreign exporters than the average bound tariff rates of Argentina, Brazil, India and Indonesia, four other large developing countries, which were 30.9, 27.0, 32.4 and 36.9 per cent, respectively.62 China committed to binding all tariffs, while many WTO members, including some industrial countries, agreed to bind only a portion of their tariffs.63 On services, China made commitments in all services sectors under the General 58 59 60 61

62 63

Ibid., at 517–18. Wang, supra note 32, at 199. Ibid., at 201–2. Chad P. Bown, ‘US–China Trade War Tariffs: An Up-to-Date Chart’, Peterson Institute for International Economics (22 April 2022), www.piie.com/research/piie-charts/us-china-trade-war-tariffs-date-chart. Lardy, supra note 24, at 79. Ibid.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

408

Jiangyu Wang

Agreement on Trade in Services (GATS), while very few other WTO members had done so, and China’s commitments would produce deeper services liberalization than that in many other countries.64 20.4.2.3 Commitments to Accept Discriminatory Rules Of course, GATT/WTO law contains not only market accession requirements but also rules that direct how nations conduct their trade. China agreed to comply with all the WTO rules like any other WTO member. However, in the areas of trade remedy measures, including anti-dumping, subsidies and safeguards, ‘China was pressed to accept discriminatory treatment, that is, it is subject to WTO-plus requirements more onerous than those accepted by any other member’ of the WTO.65 In addition, China also accepted additional, rules-based obligations in regard to national treatment for foreigners and the liberalization-oriented reform of its own foreign trade regime. Specifically, in anti-dumping investigations initiated by other WTO members, China would not be treated as a market economy for fifteen years after it joined the WTO insofar as price comparability is concerned. That is, during those years, Chinese prices were not used unless Chinese producers could establish that China is a market economy under the national law of the importing country or that market economy conditions prevail in the particular industry or sector concerned.66 That allowed the United States and other WTO members to continue to treat China as a non-market economy for years. On subsidies and countervailing practice, China agreed to eliminate all subsidy programmes falling with the WTO’s Agreement on Subsidies and Countervailing Measures (SCM Agreement). It also accepted discriminatory treatment such that, in identifying and measuring the value of certain subsidies provided by the Chinese state to enterprises, other WTO members may turn to foreign or other market-based criteria ‘if there are special difficulties’ in applying the relevant rules of the SCM Agreement (i.e., when internal Chinese benchmarks are deemed inappropriate).67 Safeguard measures under GATT permit a WTO member to impose quantitative restrictions on imports under certain circumstances. Countries adopting safeguards are subject to a high threshold of preconditions, as the WTO does not intend to encourage trade protectionism. In this regard, China accepted a set of very discriminatory obligations, allowing other WTO members to easily launch safeguard measures against Chinese exports, as evidenced in the Transitional Product-Specific Safeguard Mechanism in the China Protocol.68 For example, while WTO’s Agreement on Safeguards allows a WTO member to apply safeguard measures to a product only if there exists ‘serious injury’ caused or threatened by increased quantities of such product being imported,69 any WTO member can adopt safeguard measures in relation to Chinese products on the grounds of ‘market disruption’, a term that almost issues a blank cheque for other WTO members to use to punish China based on criteria that are broadly defined.70

64 65 66 67 68 69 70

Ibid., at 79–90. Ibid., at 80. China Protocol, supra note 49, Art. 15. Ibid., Art. 15(b). Ibid., Art. 16. WTO Agreement on Safeguards, Art. 2.1. China Protocol, Art. 16.4.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

409

20.4.2.4 Rule of Law–Related Commitments: International Trade Law’s Contribution to the Chinese Legal System Several obligations in the China Protocol are not directly specific commitments on market access but instead general requirements related to the legal environment of doing business in China. In other words, these obligations are worth noting as they require China to reform its legal system towards the rule of law. The first one is transparency, which is an essential element of the rule of law,71 and one of the pillar principles of the WTO that underpins all substantive areas of the multilateral trading system.72 The China Protocol provides a lengthy article that spells out several specific transparency obligations including:73 -[m]aking public all relevant laws before they are implemented or enforced; -[e]nforcing only laws that are published; -[e]stablishing an official journal dedicated to the publication of all laws; -[g]iving the public a reasonable period of time to comment on laws before they are implemented; -[e]stablishing an enquiry point where published laws can be obtained and where authoritative replies to requests from the public can be provided. Second, the Protocol requires China to apply WTO agreements and obligations ‘to the entire customs territory of China’ at both the central and the local levels.74 More significantly, the laws, regulations and other measures shall be applied or administered ‘in a uniform, impartial and reasonable manner’.75 Third, China is obliged to establish a judicial review mechanism in which tribunals are set up to promptly review all administrative actions ‘relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application’.76 In addition, the judicial review tribunals shall be ‘impartial and independent’ of the administrative organs of the government,77 while the review procedures shall allow the opportunity to appeal without penalty.78 Julia Ya Qin considered the aforementioned rule of law requirements, among others, to be ‘WTO-plus’ obligations undertaken by China.79 For instance, with respect to transparency, China’s obligations to reply to requests for information within thirty days, provide a reasonable period for comment on laws before implementation and translate all laws into at least one official language of the WTO are not contained in any of the existing WTO agreements.80 On judicial review, although the Protocol obligations are generally derived from Article X of GATT and Article 6 of GATS, among others,81 a WTO member has no obligation to ‘institute a review mechanism if it would be inconsistent with its constitutional structure or the nature of its legal 71

72 73 74 75 76 77 78 79 80 81

For instance, one of the eight principles enshrined by Lon Fuller is ‘promulgation’, meaning that the rules of law should be made known or available to the affected party. See Wang, supra note 42, at 352. China Protocol, Art. 2(C). See also Wang, supra note 42, at 380. Wang, supra note 42, at 380. China Protocol, Art. 2(A)1. Ibid., Art. 2(A)2. Ibid., Art. 2(D)1. Ibid., Art. 2(D)1. Ibid., Art. 2(D)2. Qin, supra note 53, at 491. Ibid., at 492. Wang, supra note 42, at 384.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

410

Jiangyu Wang

system’.82 In addition, the requirement for the ‘right to appeal’ imposes more stringent obligations than required by GATT, GATS and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as there are no compulsory rules in those agreements regarding appeals.83 Finally, on uniform administration, the requirement to hold the Chinese central government itself responsible for all actions of its sub-national/local governments is a WTO-plus obligation simply because, in the GATT/WTO system, ‘it may be argued that the central government is not in breach when a subdivision violates GATT or GATS as long as the central government has taken all reasonable measures within its power to ensure local observance’.84 One may, however, argue that the above-discussed requirements, WTO-plus or not, might still have made significant contributions to the development of the Chinese legal system towards the rule of law. As this author argued elsewhere,85 China’s construction of a ‘thin’ rule of law has been accelerated by the country’s accession to the WTO, which has brought about massive revision of the WTO-inconsistent laws and promulgation of new ones. Specifically, WTO can greatly and effectively foster China’s legal projects for the ‘thin’ rule of law because WTO’s requirements on uniform, impartial and reasonable application of laws, transparency and judicial review obligate China to take measures which constitute key elements of the [‘thin’] theories. Thus, the WTO has direct, albeit limited, impact on the rule of law construction in China.

20.4.3 China in the WTO Dispute Settlement System: Use and Compliance China’s experience with the WTO’s dispute settlement mechanism (DSM), which John H. Jackson considered the core ‘linchpin’ of the whole trading system’,86 has gone through a lengthy learning curve. Initially, China took a passive role as a trade disputant in the first few years of its WTO accession, adopting a rather conciliatory approach in dispute resolution.87 Between 2001 and 2008, China initiated only three WTO cases while being sued by others in thirteen disputes. Of the thirteen cases, six were settled through mutually agreed solutions.88 There was, however, a sudden change of behaviour in 2009, when seven of the total fourteen cases brought before the Dispute Settlement Body (DSB) involved China, while China alone filed three cases. To date, China has brought 22 cases against other WTO members, been sued in 49 cases and appeared as a third party in 192 cases.89 China’s engagement with the WTO dispute settlement system, as evidenced in the vast number of cases involving it, appears to display a rather positive attitude towards adopting a rules-based, legalistic approach to resolving disputes in international trade relations. This 82 83 84 85 86

87

88

89

Qin, supra note 53, at 495. Ibid. Ibid., at 497. Wang, supra note 42, at 388. John H. Jackson, The World Trading System: Law and Policy of International Economic Relations, 2nd ed. (Cambridge, MA: MIT Press, 1997), 124. Gregory Shaffer and Henry Gao, ‘China’s Rise: How It Took on the U.S. at the WTO’ (2018) University of Illinois Law Review, 134. See also generally James Scott and Rorden Wilkinson, ‘China Threat? Evidence from the WTO’ (2013) 47(4) Journal of World Trade, 761–82; Chi Manjiao, ‘China’s Participation in WTO Dispute Settlement over the Past Decade: Experiences and Impacts’ (2012) 1(1) Journal of International Economic Law, 29–49. Jiangyu Wang, ‘International Economic Law and Asia’ in Simon Chesterman, Hisashi Owada and Ben Saul (eds.), The Oxford Handbook of International Law in Asia and the Pacific, 237–66 (Oxford: Oxford University Press, 2019), at 248. ‘Member Information: China and the WTO’, www.wto.org/english/thewto_e/countries_e/china_e.htm #disputesHeading.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

411

contrasts starkly with its displayed stance on legalized dispute settlement concerning noneconomic issues.90 As this author observed elsewhere, ‘[o]verall, China has been suspicious of binding dispute resolution at the international level, especially on sovereignty-related issues, such as territorial disputes’,91 as evidenced in China’s ‘Four No’s – namely, ‘no acceptance, no participation, no recognition, no enforcement’ – in the South China Sea arbitration.92 Contrasted markedly, China has never questioned the compulsory jurisdiction of the WTO’s DSB either generally or in specific cases, as embodied in both its active participation in the dispute settlement process and its official rhetoric materials.93 It is, however, worth noting that, with one exception, China has initiated complaints only against the United States and the EU in the WTO, though it has had trade tensions with a range of countries including Japan, Korea and the Philippines, among others.94 That is, to the extent that China does have the discretionary power to decide how to use the WTO’s DSM, it has taken a strategic and instrumentalist approach. As James Scott and Rorden Wilkinson have observed,95 ‘China does not want to alienate the developing world and has therefore been highly circumspect about which trade concerns it chooses to take through the dispute settlement process. Rather, it chooses to use the DSM primarily in tit-for-tat retaliation in response to US and EU disputes.’ China has also contributed to the enforceability of international trade law by delivering ‘a good record of compliance with adverse rulings’.96 Weihuan Zhou conducted a thorough examination of four dozen WTO disputes involving China to study the ‘quality’ of China’s implementation of WTO rulings.97 He concluded that ‘China’s record of compliance compares favourably with those of the other major players in the system such as the US’.98 However, Timothy Webster has argued that China’s implementation and enforcement of WTO rules and rulings can be best described as ‘paper compliance’, a theory which posits that ‘China will entertain legislative and regulatory reform to achieve a result compliant with a WTO ruling’.99 However, the argument goes, legislative reform does not necessarily ensure ‘faithful compliance’.100 Webster observed that, ‘[d]espite amendments to its legal and regulatory structures, China continues to implement policies that contravene the WTO’s neoliberal prescription of low tariffs, minimum export restrictions, market access, equal treatment of foreign investment, and strong intellectual property rights’.101 Assuming that all this is true and a cause of concern, Scott and Wilkinson 90 91 92

93

94

95

96 97

98 99

100 101

See Chapter 24 of this volume. Wang and Cheng, supra note 6, at 146. See generally Jiangyu Wang, ‘Legitimacy, Jurisdiction and Merits in the South China Sea Arbitration: Chinese Perspectives and International Law’ (2017) 22 Journal of Chinese Political Science, 185. For instance, China’s first White Paper on the WTO stated: ‘China supports WTO members to solve their trade disputes within the WTO dispute settlement mechanism.’ See State Council Information Office, ‘China and the World Trade Organization’, part II:2 (June 2018), english.www.gov.cn/archive/white_paper/2018/06/28/con tent_281476201898696.htm. The one and only exception was Australia, against which China brought the case ‘DS603: Australia – Anti-dumping and Countervailing Duty Measures on Certain Products from China’, for which the WTO DSB agreed to establish a panel on 28 February 2022; at the time of writing, however, the panellists have not yet been chosen. See DS603’s official webpage, www.wto.org/english/tratop_e/dispu_e/cases_e/ds603_e.htm. James Scott and Rorden Wilkinson, ‘China and the WTO, Redux: Making Sense of Two Decades of Membership’ (2022) 56(1) Journal of World Trade, 87, 103. Ibid., at 103. See generally Weihuan Zhou, China’s Implementation of the Rulings of the World Trade Organization (London: Hart, 2019). Ibid., at 16. Timothy Webster, ‘Paper Compliance: How China Implements WTO Decisions’ (2014) 35(3) Michigan Journal of International Law, 525, 533. Ibid. Ibid., at 574.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

412

Jiangyu Wang

pointed out that other great trading powers, namely the United States and the EU, have defied WTO decisions in similar ways, each being ‘unwilling to subject its own economy to the full liberal spirit contained therein’.102 The United States – and to some extent the EU – managed to exclude its protectionist farm subsidies and the textile and clothing sectors from the coverage of the GATT and, more recently, constantly refused to comply with endless adverse WTO rulings against its anti-dumping practice.103 Unfortunately, this is the dark reality of international law in general and international trade law in particular: ‘[T]he pattern is quite similar across all great powers within the system: they comply where it is relatively uncostly to do so but ignore international law when principles at stake drive at more fundamental aspects of their political economy. In this sense, China is no different.’104 In recent years, the WTO dispute settlement system, which China has seemed comfortable with, is facing assaults, mainly from the United States. Since October 2017, the United States has blocked all appointments to the Appellate Body (AB), leaving it with no members (judges) since 2020.105 As the AB is essentially a supreme court for global trade, the United States effectively paralyzed the two-tier dispute settlement process by abolishing its appellate function. On 30 April 2020, nineteen WTO members, including the EU, China, Australia, Canada and Singapore, among others (but without the United States), notified the WTO of the establishment of a multi-party interim appeal arbitration arrangement (MPIA) through which these members committed to use the arbitration procedures provided for under Article 25 of the Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU) as an interim appeal procedure to resolve WTO disputes among themselves that would otherwise be appealed to the currently non-functional AB.106 The creation of the MPIA was an EU-led effort to address the disfunction of the AB. As EU Commissioner for Trade Phil Hogan remarked: ‘This is a stop-gap measure to reflect the temporary paralysis of the WTO’s appeal function for trade disputes. This agreement bears testimony to the conviction held by the EU and many other countries that in times of crisis working together is the best option.’107 China followed the lead of the EU in this endeavour, and its participation in the MPIA was crucial for the new system’s success. Without China, there would be no critical mass in terms of participating membership in the MPIA, especially considering that the United States, Japan, the UK, India and South Korea, all major trading nations in the world, were not part of the group. This gesture demonstrates China’s support for the multilateral trading system, though this move did not necessarily represent China’s attitude to structural reforms of the WTO, which is discussed in Section 20.4.5. 20.4.4 China in WTO Negotiations: Participation (or Lack of) in Rule-Making in International Trade Law Forthrightly speaking, China has not made much contribution to the rule-making in international trade law, even though it has actively participated in the WTO’s trade negotiations since joining the organization in 2001. In part, this is because international trade law itself has not 102 103 104 105 106

107

Scott and Wilkinson, supra note 95, at 104. Ibid. Ibid. ‘Appellate Body Members’, WTO website, www.wto.org/english/tratop_e/dispu_e/ab_members_descrp_e.htm. ‘Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes. Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU’, 30 April 2020, WTO doc: JOB/DSB/1/Add.12. ‘EU and 15 World Trade Organization Members Establish Contingency Appeal Arrangement for Trade Disputes’, European Commission press release (27 March 2020), ec.europa.eu/commission/presscorner/detail/en/IP_20_538.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

413

developed much in the past two decades. New rules for international trade are primarily created through trade negotiations conducted by WTO members. Unfortunately, the Doha Development Round, launched in the same year as China’s WTO accession, has essentially stalled owing to the lack of substantial progress.108 That said, China has actively participated in all WTO negotiations which, though generally fruitless, have achieved limited success on a few specific issues. However, no notable results have been gained in market access and rule-making, as evidenced by the most recent negotiations concluded at the 12th Ministerial Conference (MC12).109 As a key player in the WTO, China’s involvement is crucial to the success – or failure – of any major trade negotiations in the GATT/WTO regime. China was not an active participant in WTO negotiations, at least initially. One commentator described China as a ‘silent player’ in global trade talks in the early years,110 and speculated that it could be because China, as a newly acceded WTO member, lacked experience in economic negotiations and it took some time for it to take notes and learn from other WTO members.111 In any event, before 2008, China’s WTO diplomacy displayed a ‘low-key profile’, with the country not seeking a leadership role in the Doha Round negotiations or attempting to rewrite WTO rules in any substantial manner.112 A Chinese source even indicated that China initially refused to join the established process of the small-group, ‘green room’ meetings in which a handful of countries dominated the trade talks and determined whether negotiations could achieve results or become fruitless in the end.113 During the Mini-Ministerial Conference in July 2008 in Geneva, China was invited to join a group of the key WTO members for small-room meetings and became a member of the so-called G7 countries comprising the United States, EU, Japan, India, Brazil, Australia and China. The Mini-Ministerial Conference failed, marking the collapse of the Doha Round, because the United States and India could not agree on the numeric threshold of a ‘Special Safeguard Mechanism’ for agricultural products.114 China eventually decided to side with India, showing its willingness to support the (protectionist) preferences of certain developing countries, though this position did not necessarily align with its own economic interests. In the end, China and India were jointly blamed by the United States for having ‘thrown the entire Doha round into the gravest jeopardy’ by ‘controlling a large group of even poorer nations’.115 Since then, China has become more cooperative, though mainly on less significant issues which were unable to revive the Doha Round. For example, China and the United States agreed on the ITA in the Nairobi Ministerial Conference in 2015, helping prevent the Nairobi Ministerial Conference from being a complete failure once again in the history of trade negotiations. Most notably, China played an active – somewhat leadership – role in helping the WTO secure a package of trade outcomes in the 12th Ministerial Conference 108

109

110

111 112

113

114 115

‘The Doha Round Finally Dies a Merciful Death’, Financial Times (22 December 2015), www.ft.com. See also generally David Kleimann and Joe Guinan, ‘The Doha Round: An Obituary’, Global Governance Programme Policy Brief, Issue 2011 (June 2011). See ‘WTO Members Secure Unprecedented Package of Trade Outcomes at MC 12’, WTO News (17 June 2022), www.wto.org/english/news_e/news22_e/mc12_17jun22_e.htm. At MC 12, WTO members agreed on issues including fisheries subsidies, reforming the WTO, compulsory licensing for Covid-19 vaccines, and food security. Henry Gao, ‘From the Periphery to the Centre: China’s Participation in WTO Negotiations’ (2012) 1 China Perspectives, 59–65. Ibid., at 59–62. C. L. Lim and Jiangyu Wang, ‘China and the Doha Development Agenda’ (2010) 44(6) Journal of World Trade, 1309. See also Scott and Wilkinson, supra note 87, at 771. Scott and Wilkinson, supra note 87, at 775 (interview with Chinese trade officials, though this claim ‘was uncorroborated and could not be fully verified’). Lim and Wang, supra note 112, at 1318. Ibid., at 1310.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

414

Jiangyu Wang

(MC12) in July 2022, for which the WTO Director-General Ngozi Okonjo-Iweala explicitly stated that ‘China–USA cooperation was instrumental in getting to positive outcomes’.116 However, apart from these limited achievements, there has been little real rule-making in the WTO, even though the major economic powers in the WTO are involved in a competition to propose new rules for the next generation of international trade law, which is discussed in Section 20.4.5. 20.4.5 China, WTO Reform and the New Issues in International Trade Negotiations The need for structural reform of the WTO has been long-standing and has evolved into a crisis in the rules-based multilateral trading system, affecting the three functions of the WTO: ‘[N]egotiations have failed to modernise the rules, the dispute settlement system has de facto reverted to the days of the GATT where panel reports could be blocked, and the monitoring of trade policies is ineffective.’117 China, as has been alleged by Western countries, inadvertently made substantial contribution to the calamity here. An EU report has succinctly described the existing problems of the WTO system, in which China was regarded as one of the main troubles, as follows: A key driver of the [WTO] crisis is that China’s accession to the WTO has not led to its transformation into a market economy. The level at which China has opened its markets does not correspond to its weight in the global economy, and the state continues to exert a decisive influence on China’s economic environment with consequent competitive distortions that cannot be sufficiently addressed by current WTO rules. But the WTO has not been able to negotiate new rules to tackle this or other pressing issues (e.g. digital trade or sustainability).

The United States, the EU and Japan have formed a ‘united front’ in dealing with China in the preparation of multilateral trade negotiations, as well as in the public opinion warfare. This is partially owing to the high degree of convergence in the reform agenda among them, through the so-called joint statement initiatives in recent years.118 The first such statement, issued on 14 January 2020, saw top trade officials from the three parties agree that the ‘current list of prohibited subsidies provided for in Article 3.1 of the Agreement on Subsidies and Countervailing Measures is insufficient to tackle market and trade distorting subsidization existing in certain jurisdictions’,119 a call ‘clearly taking aim at China’.120 The joint statement also mentioned disciplining ‘forced technology transfer’, strengthening ‘market oriented conditions for a free, fair, and mutually advantageous trading system’, WTO institutional reform including developing country status, and ‘international rule-making on trade-related aspects of electronic commerce at the WTO’.121 116

117

118

119

120

121

Twitter post of Ngozi Okonjo-Iweala (@NOlweala) on 19 July 2022, twitter.com/NOIweala/status/ 1538490877240295425. European Commission, Reforming the WTO: Towards a Sustainable and Effective Multilateral Trading System (Brussels: European Union, 2021), 5. ‘U.S., EU and Japan Trade Ministers Agree to Renew Three-Way Partnership – Statement’, Reuters (17 November 2021). See also Andrew Stoler, ‘“Joint Statement Initiatives” and Progress in the WTO System’, Institute for International Trade, University of Adelaide (21 May 2021), iit.adelaide.edu.au/news/list/2021/05/21/jointstatement-initiatives-and-progress-in-the-wto-system. ‘Joint Statement of the Trilateral Meeting of the Trade Ministers of Japan, the United States and the European Union’ (14 January 2020), trade.ec.europa.eu/doclib/docs/2020/january/tradoc_158567.pdf. Wendy Wu, ‘US, EU and Japan Take Aim at China with Proposed WTO Rules Targeting State Subsidies’, South China Morning Post (15 January 2020), www.scmp.com/news/world/united-states-canada/article/3046108/us-eu-andjapan-target-china-new-global-trade-rules. Japan–US–EU ‘Joint Statement’, supra note 119.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

415

It is, however, critical to emphasize that the Chinese position on WTO reform and multilateral trade negotiations is equally important. As Hoekman and Wolfe have noted, successful WTO reform depends on the joint effort of another triangular relationship:122 China, the EU, and the US, as the WTO members with the largest shares in global trade, play a critical role in updating and bolstering the WTO to keep it fit in a rapidly changing world economy. No two of them can provide the public good of an open liberal multilateral trading system on their own. The WTO reform is, to a large extent, a triangular challenge.

In this context, China’s own position on WTO reform and the new issues in international trade negotiations demonstrates three features. First, China remains a status quo power, seeking only minor reform of the existing rules without intending to alter the fundamental structures of the GATT/WTO regime or transform it beyond its current nature as a multilateral institution for curbing trade barriers between nations. Consequentially, China has not been willing to support any proposal that might lead to radical change in WTO rules or its institutional structures. For example, regarding the WTO dispute settlement system, the United States alleged that the ‘Appellate Body has added to U.S. obligations and diminished U.S. rights by failing to comply with WTO rules, addressing issues it has no authority to address, taking actions it has no authority to take, and interpreting WTO agreements in ways not envisioned by the WTO Members who entered into those agreements’.123 Based on this, the United States refused to continue engaging in the WTO dispute settlement system and has blocked AB appointments, causing the AB to cease to function in 2019. However, China is part of the force in the WTO membership that aims to maintain the integrity of the dispute settlement system with only minor institutional changes. Specifically, China joined a few WTO members, including the EU, Canada, India, Australia and others, to propose amendments that would bring minor changes to the DSU while calling for WTO members to act without delay to fill the vacancies of the AB.124 In addition, it has made an insignificant proposal calling for improving the compliance of notification obligations since ‘[WTO] Members’ overall fulfilment of notification obligations still falls short of the requirements under various WTO agreements’.125 Frankly, this is hardly a pressing issue in the current debate on WTO reform. The second feature of the Chinese position is its primary concern with using the WTO to constrain economic sanctions imposed by the United States against Chinese goods and industries. Thus, in China’s official proposal on WTO reform, it has demanded that the WTO tighten disciplines in order to curb unilateralist punitive measures, including ‘the abuse of national security exception’ and the imposition of economic sanctions – particularly the ‘secondary sanctions’ – that are inconsistent with WTO rules.126 The former request was a response to tariffs imposed by the Trump administration on steel and aluminium imports in 2018 on the 122

123

124

125

126

Bernald Hoekman and Robert Wolfe, ‘Reforming the World Trade Organization: Practitioner Perspectives from China, the EU and the US’ (2021) 29(4) China and World Economy, 1–34, at 2. United States Trade Representative (USTR), ‘Report on the Appellate Body of the World Trade Organization’ (February 2020), ‘Introduction’, https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_ of_the_World_Trade_Organization.pdf. ‘Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore, Mexico, Costa Rica and Montenegro’, WT/GC/W/752/Rev. 2, 11 December 2018. ‘China’s Proposal on WTO Reform: Communication from China’, WT/GC/W/773, 13 May 2019, WTO, para. 2.26, https://bit.ly/3PY8bgO. Ibid., paras. 2.1.2 and 2.1.3.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

416

Jiangyu Wang

ground of national security protection,127 while the latter generally referred to the unilateral economic sanctions adopted by the United States – and its Western allies – against Chinese tech companies such as Huawei and ZTE. However, even on the issues of utmost concern, China did not push for radical or significant changes. For instance, on national security, it suggested merely that the WTO ‘enhance the notification requirements on measures such as imposing import tariffs on the ground of national security exceptions, and carry out multilateral reviews on such measures’.128 On Western sanctions, it hoped only that ‘[s]uch unilateralist measures should be constrained through . . . enhancing the multilateral review mechanism, authorizing the members affected to take prompt and effective provisional remedies in cases of urgency and accelerating relevant dispute settlement proceedings’.129 Interestingly, the third feature of China’s position reveals that it has taken an offensive stance, advocating on behalf of developing countries to criticize the injustice experienced by the South because of the alleged privileges enjoyed by the North in the global economic system. In this regard, China requested reform of the existing WTO rules to address the ‘[s]ignificant inequality, imbalance and unfairness [that] persist in current rules on agriculture, in particular the provisions regarding the Aggregate Measurement of Support (AMS)’.130 The AMS is a monetary measure of the annual level of domestic support provided to the producers of agricultural products. An AMS limit is based on a WTO member’s agricultural support over a base period, through which the member agrees to limit the support to a level at or below its AMS for the base period. Under the WTO’s Agreement on Agriculture, developed country members have to reduce base-period support by 20 per cent over six years, while developing country members must do so by 13 per cent over ten years.131 China claimed that ‘[a] number of developed Members enjoy high levels of AMS and therefore are able to provide much higher levels of support than their de minimis level with respect to a number of specific products, seriously distorting agricultural production and trade’.132 On this basis, it boldly proposed that the ‘AMS entitlements of developed Members should be eliminated in gradual instalments’.133 Similarly, China rhetorically defended the right of special and deferential treatment (S&D) for developing countries in the WTO, advocating for a more specific, visible, effective and operationalizable S&D regime. There is no consensus on what constitutes the ‘new issues’ in WTO negotiations. By definition, the ‘new issues’ are areas in international trade and investment that require new global rules to be made at the multilateral level. From the EU’s perspective, they are e-commerce, investment facilitation, domestic regulation of services and the role of the state in the economy.134 Furthermore, in regard to China, the EU and the United States, together with Japan on some occasions, have agreed to update the WTO rulebook ‘with more effective disciplines on industrial subsidies, unfair behaviour of state-owned enterprises [SOEs], and 127

128 129 130 131 132 133 134

China filed a WTO case against the United States in 2018 and a panel report, a functional equivalent of the DSB’s ‘first instance’ judgment, was issued in December 2022. See United States – Certain Measures on Steel and Aluminium Product, Report of the Panel, WT/DS544/R, 9 December 2022 (hereinafter, DS544). In this case, the panel said it was not persuaded that the United States faced an emergency in international relations to justify innovating the national security exception clause in GATT. The USTR later rejected the ‘flawed’ interpretation and conclusions of the panel. ‘China’s Proposal on WTO Reform’, supra note 125, para. 2.7. Ibid., para. 2.10. Ibid., para. 2.11. WTO, ‘Domestic Support’, www.wto.org/english/tratop_e/agric_e/ag_intro03_domestic_e.htm. ‘China’s Proposal on WTO Reform’, supra note 125, para. 2.11. Ibid., para. 2.13. European Commission, ‘Reforming the WTO’, supra note 117, at 10.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

417

other trade and market distorting practices’.135 However, China has refused to align with their priorities. For China, the new issues are trade and investment, investment facilitation and the treatment of micro, small and medium-sized enterprises;136 China has merely hoped that WTO members will continue to discuss those issues but itself has not demanded that any new rules be made.137 In summary, it can be reasonably argued that China maintains its role as a status quo power in international trade, particularly in relation to WTO reform and trade negotiations. In essence, this reveals a deep-rooted Chinese commitment to preserving the existing international trade system. This stance serves China’s interests in two primary ways. First, it ensures that China remains a beneficiary of traditional free trade principles, such as non-discrimination treatment, prohibitions on quantitative restrictions, and treaty-based reciprocity. By adhering to these principles, China retains its central position within the global production networks. Second, this approach allows China to sidestep challenging questions, especially those regulatory issues pertaining to the relationship between the state and business. 20.5 CHINA’S FTA STRATEGY: BUILDING A PARALLEL TRADE ORDER

20.5.1 China and Asian Regionalism: From ACFTA to RCEP To the extent that it is defined as ‘a legal regime governing the economic and commercial activities attendant to foreign trade’,138 international trade law extends beyond the rules of the multilateral trading system. The rise of regionalism, characterized by the proliferation of RTAs and FTAs, has been striving to establish a parallel – and to some extent alternative – trade order on a regional basis. The first wave of trade regionalism started in West Europe in the 1950s with the establishment of regional integration organizations, which later became the European Economic Community and eventually the EU. The second major wave of regionalism was kicked off by the North American Free Trade Agreement (NAFTA), which took effect in 1994. Asia jumped on the bandwagon of regional economic integration a decade later when China, in anticipation of its WTO accession, proposed an FTA to the leaders of the Association of Southeast Asian Nations (ASEAN) in 2000. A Framework Agreement on the ASEAN–China FTA (ACFTA) was signed in 2002 and a fully fledged ACFTA took shape in 2010.139 Since then, China has become one of the most active players in concluding FTAs. As of this writing, China has signed twenty-two such agreements, is engaged in negotiations for ten agreements and has eight agreements under consideration (meaning they are at the feasibility study stage).140 The Regional Comprehensive Economic Partnership (RCEP), which came into effect on 1 January 2022, is the most important FTA China has signed up to and plays an instrumental role in the successful formation of the world’s largest free trade area according to economic output, 135

136 137 138

139

140

European Commission, ‘EU–US Relations: Factsheet on Reforming the WTO’, trade.ec.europa.eu/doclib/docs/ 2021/june/tradoc_159643.pdf. See also ‘Joint Statement of the Trade Ministers of the United States, Japan and the European Union After a Trilateral Meeting’, 30 November 2021, https://bit.ly/3PTyXXO. ‘China’s Proposal on WTO Reform’, supra note 125, para. 2.23. Ibid., para. 2.25. Jiangyu Wang, ‘China’s Regional Trade Agreements: The Law, Geopolitics, and Impact on the Multilateral Trading System’ (2004) 8 Singapore Year Book of International Law, 119. Jiangyu Wang, ‘Association of Southeast Asian Nations–China Free Trade Agreement’ in Simon Lester and Bryan Mercurio (eds.), Bilateral and Regional Trade Agreements: Case Studies, 192–225 (Cambridge: Cambridge University Press, 2009), at 193. See ‘China FTA Network’, official website for FTAs established by the PRC Ministry of Commerce, at fta .mofcom.gov.cn.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

418

Jiangyu Wang

share of global trade and gross domestic product, and population.141 Although the RCEP is widely believed to have been led by China in response to the United States–dominated TransPacific Partnership (TPP), it is not a Chinese initiative. In fact, RCEP negotiations were proposed and driven by the ASEAN, much to China’s satisfaction. ‘China happily joined the RCEP negotiations not because it could be a tool to exclude the U.S., but because it saw this as an opportunity for it to overcome its exclusion from the TPP and, accordingly, the Asian economic integration process.’142 China enthusiastically welcomed the conclusion of the RCEP negotiations and promptly began implementing the rules.143 However, compared to the TPP, which later became the CPTPP (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) following the US withdrawal, the RCEP is a ‘shallow’ agreement conducting a relatively lower level of trade liberalization. Nevertheless, the RCEP is still more significant than all of China’s other FTAs in terms of the extent and scale of free trade promotion. In addition, the RCEP’s dispute settlement system adds more diversity to the toolbox for dispute resolution in China’s external trade relations. Chapter 19, the dispute settlement part of the RCEP, builds upon the existing dispute settlement mechanisms in the WTO and ASEAN +1 FTAs, but also deviates from them with regard to the RCEP’s exclusion of non-violation complaints, removal of the AB and allowing the panel to reconvene after suspension of concessions/obligations. One commentator noted that the RCEP dispute settlement system incorporates the ‘ASEAN way’ to promote ‘flexibility, consensus and the avoidance of direct confrontation in resolving interstate controversies’.144 As the WTO’s DSM is facing heavy criticism – mainly from the United States – for being too rigid and legalistic, the RCEP might offer a more pragmatic approach for Asian countries to work out their economic disagreements. 20.5.2 Characteristics of China’s ‘Free Trade Agreements (FTA) Strategy’ and the Implications for International Trade Law About two decades ago, China made the signing of FTAs a ‘national strategy’, ‘which, in China’s political language, usually suggests that the Chinese state will mobilize all possible resources to fulfil its realization’.145 In his 2009 Work Report, Chinese Prime Minister Wen Jiabao stated that ‘China will accelerate the implementation of the FTA strategy’.146 Shortly after assuming China’s paramount position, President Xi Jinping called for the ‘acceleration of FTA strategy’ in December 2014 and requested Chinese authorities to be proactive in making use of FTAs to open foreign markets, especially in light of the decline of multilateralism under the umbrella of the WTO.147

141

142

143

144

145 146 147

See Policy Department for External Relations of the European Parliament, ‘Short Overview of the Regional Comprehensive Economic Partnership (RCEP)’, EP/EXPO/INTA/FWC/2019-01/LOT5/3/C/06, February 2021. Jiangyu Wang, ‘Between Power Politics and International Economic Law: Asian Regionalism, the Trans-Pacific Partnership and U.S.–China Trade Relations’ (2018) 32(2) Pace International Law Review, 383, 422. ‘Premier Li Keqiang Chaired the State Council’s Executive Meeting to Plan for the Implementation of the RCEP after It Taking Effect [李克强主持召开国务院常务会议 部署做好《区域全面经济伙伴关系协定》生效后实施 工作]’, Xinhua News (23 December 2021), fta.mofcom.gov.cn/article/rcep/rcepnews/202112/46722_1.html. Massimo Lando, ‘Enhancing Conflict Resolution “ASEAN Way”: The Dispute Settlement System of the Regional Comprehensive Economic Partnership’ (2022) 12 Journal of International Dispute Settlement, 98. Jiangyu Wang, ‘China and East Asian Regionalism’ (2011) 17(5) European Law Journal, 611, 612. Ibid. Xi Jinping, ‘Accelerating the Implementation of the FTA Strategy and Accelerating the Construction of a New Openness Oriented Economic System [习近平 : 加快实施自由贸易区战略 加快构建开放型经济新体制]’, Xinhua News (6 December 2014), fta.mofcom.gov.cn/article/zhengwugk/201412/19394_1.html.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

419

China’s FTA programmes concluded thus far exhibit the following characteristics. First, there is diversity in terms of FTA partners, coverage and level of integration. China’s FTA partners are widely diversified and can be grouped in three categories: high-income developed countries (Australia, New Zealand, Singapore, Switzerland, Singapore, Korea, Iceland); middle-income countries (Chile, Peru); developing countries (Cambodia, Mauritius, Maldives, Pakistan, Costa Rica, among others). The second feature is flexibility and pragmatism. Unlike the United States, China does not have a template for FTAs,148 and its approach to negotiating FTAs is conspicuously flexible and pragmatic. In other words, China’s FTA strategy is outcome-oriented, and it does not have a fixed approach towards regionalism. It generally does what it practically takes to reach FTAs with other countries where coverage and level of trade liberalization are concerned. In terms of coverage, some of the FTAs are comprehensive (RCEP, ACFTA, China–Australia, China–Korea, China–New Zealand, China–Singapore, for example), while many others are limited agreements covering much fewer sectors and products. Additionally, the level of integration ranges from ‘shallow’ to ‘deeper’. The FTAs with Australia, New Zealand, Singapore and South Korea are examples of high-level trade agreements, while most of the others are comparatively shallow. This pragmatic approach leads to the third feature: China uses strategic planning in choosing FTA partners, gaining negotiating and rule-making skills through FTA negotiations, phasing in economic liberalization to ensure the success of agreements and connecting FTAs to bilateral investment treaties.149 20.6 THE CHINA–US TRADE WAR: SUPERPOWERS’ ASSAULT ON INTERNATIONAL TRADE LAW

The China–US trade war, initiated by the Trump administration in March 2018 and continuing today (since the Trump tariffs all are still in place halfway through the Biden administration), is a prime example of blatant disregard for international trade law by great powers, which, at this stage, are the United States and China.150 The initial 25 per cent tariffs that the Trump government imposed on 1,333 Chinese products worth USD 50 billion were met with retaliation in the form of China imposing 25 per cent tariffs on 106 American products, also covering USD 50 billion worth of Chinese imports from the United States.151 Punishing duties between the two countries went back and forth. In the end, the United States has imposed tariffs on roughly USD 335 billion worth of Chinese goods, covering 66.4 per cent of US imports from China. Meanwhile, China’s retaliatory tariffs on USD 90 billion worth of American goods account for 58.3 per cent of imports from the United States. Consequently, average US tariffs on Chinese exports have now reached 19.3 per cent, while Chinese tariffs on American goods have risen to 148 149

150

151

Before the TPP, traditional US FTAs were based on NAFTA. As to China’s BITs, see Chapter 21 of this volume. It is worth noting here that China has attached great importance to concluding BITs with the United States and the EU. Negotiations for a US–China BIT were launched in 2008 and went through about three-dozen rounds of negotiations. In those negotiations, China agreed to subscribe to the negative list approach in investment and services, and provide pre-establishment national treatment for foreign investment and investors. China and the EU reached the Comprehensive Agreement on Investment (CAI) in 2020, but its ratification was frozen by the European Parliament in May 2021 thanks to a diplomatic fiasco between the two sides. The CAI marks a significant step in China’s economic liberalization as the ‘high standard’ provisions in the CAI exceed China’s commitments in almost all its other FTAs and BITs (except, to some degree, the Closer Economic Partnership Arrangement with Hong Kong). On the major events concerning the China–US trade war, see Chad P. Bown and Melina Kolb, ‘Trump’s Trade War Timeline: An Up-to-Date Guide’, Peterson Institute for International Economics (21 June 2022), www.piie.com/sites/ default/files/documents/trump-trade-war-timeline.pdf. Ibid.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

420

Jiangyu Wang

21.2 per cent, both well above their bound tariff rates, to which they are committed as WTO members.152 The tariff measures of both the United States and China nakedly breach the rules of international trade law under the GATT/WTO regime. As Julia Qin lucidly writes,153 At the most basic level, both the US Section 301 tariffs and China’s retaliatory tariffs have violated GATT Article I ‘General Most-Favoured-Nation Treatment’, and Article II ‘Schedules of Concessions’. Under GATT Article I, a WTO Member is required to treat another Member no less favourably than it treats any other country with respect to customs duties and related matters (MFN treatment). Because Section 301 tariffs apply to China alone, the US has treated China less favourably than other Members, hereby breaching its obligation under Article I. By imposing additional tariffs on China, the US has raised its duties above the scheduled level, thereby breaching its obligations under GATT Article II.

A similar line of legal reasoning was adopted by the panel in WTO case DS543 ‘US – Tariff Measures’, which was initiated by China challenging US tariff measures imposed during the trade war for violating Articles I and II of GATT.154 The panel refuted the US argument, which sought to justify its tariffs on Chinese goods under the GATT exception of ‘public morals’, and concluded that the ‘challenged [US] measures are prima facie inconsistent with Articles I:1, II:1(a) and II:1(b) of the GATT 1994’.155 In short, the panel made it more than clear that the United States violated WTO law – the masterpiece of international trade law – in imposing extra tariffs on Chinese goods. The panel, however, did not intend to lend any legitimacy, through this decision, to any of China’s retaliatory measures. Instead, the panel issued an unusual concluding comment to indicate that it would likely make a same or similar ruling should China’s relevant measures be challenged:156 At the same time, it is not the role of this Panel to draw any legal conclusions or make recommendations on any matters other than those it has been specifically tasked to deal with through those dispute settlement proceedings. In this connection, the Panel recalls that the Government of the United States has not . . . initiated action under the WTO Dispute Settlement Understanding with respect to any measures China has imposed in response to the United States’ measures at issue in this dispute.

The panel’s aforesaid statement points to another violation of WTO law by China and the United States. That is, the WTO prohibits unauthorized ‘self-help’ in international trade relations. Article 23 of the DSU grants WTO members the right to seek redress of a violation of GATT/WTO obligations by bringing complaints against the offending member to the DSB, which has compulsory jurisdiction over trade disputes between the members. Article 23 prohibits disputant members from making self-determination as to whether a violation has occurred and taking any retaliatory action without the authorization of the DSB. The DSB decides whether to 152

153

154

155 156

In comparison, the final bound tariff rate of the United States, for both agricultural and non-agricultural produce, is 3.3 per cent and the simple average MFN applied rate was 3.4 per cent in 2021. China’s simple average final bound tariff rate is 10 per cent and the applied simple average MFN rate was 7.5 in 2021. See ‘Trade Profiles’ of WTO members, www.wto.org/english/res_e/statis_e/tariff_profiles_list_e.htm. Julia Ya Qin, WTO Reform: Multilateral Control Over Unilateral Retaliation – Lessons from the US–China Trade War, Wayne State University Law School Legal Studies Research Paper Series No. 2020-73 (1 November 2020), http://dx.doi.org/10.2139/ssrn.3654510. United States – Tariff Measures on Certain Goods from China: Report of the Panel, WT/DS543/R, 15 September 2020 (hereinafter, DS543). Ibid., paras. 8.1 and 8.2. Ibid., para. 9.3.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

20 China and International Trade Law

421

recommend retaliation after a case going through the dispute settlement process.157 By resorting to unilateral punitive and rotatory measures against each other, rather than bringing complaints to the WTO’s DSM, both China and the United States violated, again, WTO law. The US–China trade war has had disastrous consequences for the development of international trade law. In resorting to unilateral and tit-for-tat measures, the world’s two largest economies displayed a blatant disregard for WTO law. This tremendous phenomenon has generated an impression that the superpowers can ignore rules of international trade law whenever their domestic and geopolitical agendas dictate. Furthermore, the behaviours of the United States and China during the trade war have damaged their reputations as leading statecitizens of the international society. More significantly, the US–China trade war seems to be just the beginning of something much bigger and increasingly threatening in our world today. It appears to be part of a broader shift towards a confrontational rivalry between the United States and China.158 This development is not positive news for the contemporary credibility and future prospects of international trade law, as it makes it increasingly difficult for trading nations to trust in the multilateral trading system and invest in the WTO’s trade negotiations. 20.7 CONCLUSION

China’s history with international trade law has been a journey full of twists and turns. In the first three decades after the establishment of the PRC, it was an outlier of the international economic system. However, it then embarked on a path of steady integration into the neo-liberalism-based world economy. Since the late 1970s, China had been preparing to join the West-dominated international economic order by reforming its centrally planned economy and pursuing economic openness on a unilateral – and occasionally bilateral – basis. Its WTO accession marked an epic moment in China’s openness to international trade and investment, as well as its harmonious relationship with the United States–led Western world. Circumstances began to change about a decade later when mounting accusations emerged, putting China on the defensive regarding its (stalled) economic reform and trade and investment liberalization. The ongoing US–China trade war has generated two implications in this regard. First, the findings of the US Trade Representative’s Section 301 investigation, together with the numerous reports issued in recent years documenting the inconstancies between China’s trade law, policies and practices and international trade law, have revealed a deep-rooted mistrust of China by the United States regarding China’s commitment to being a law-abiding member of the international economic system. Second, a common theme in the American and Chinese approaches to the 2018-initiated trade war is their disregard of international trade law; their ‘trade war has been waged outside the WTO legal framework’, based more on the law of the jungle in a presumably anarchic international society. Both implications point to the unfortunate demise of international trade law, at least according to the current geopolitical and economic situation. A robust system of international trade law depends on three factors: trade negotiations, dispute settlement mechanisms and, most significantly, trading nations’ belief in the rule of law in international economic relations. The current situation does not provide reasons for optimism. The Doha Round essentially ended more than a decade ago, leaving multilateral trade 157 158

Qin, supra note 153, at 18. Yukon Huang, ‘The U.S.–China Trade Has Become a Cold War’, Carnegie Endowment for International Peace (16 September 2021), https://carnegieendowment.org/2021/09/16/u.s.-china-trade-war-has-become-cold-war-pub -85352.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

422

Jiangyu Wang

negotiations unattainable in the foreseeable future. The United States’ ongoing block of the appointment of WTO AB members has essentially paralyzed the DSM for global trade. The US– China trade war has further undermined the credibility of international trade law. If China and the United States wish to mend the situation so that trading nations can continue doing business with each other based on their comparative advantages under a sustainable framework of international trade law, they must work together with the EU, Japan, emerging economies and developing countries to start negotiations on controversial issues including reforming the WTO’s DSM, treatment of SOEs, intellectual property rights, e-commerce/digital trade, investment protection, social issues relating to labour, environment and human rights, and climate change. China’s relationship with international trade law will continue to evolve and will have an even larger impact on the international economic order in the future. It is already the largest trading nation in terms of combined imports and exports; thus, China’s compliance with the rules of international trade law will always be a significant concern for the international community. China’s trade policy and behaviour will greatly impact not only its economic relations with trading partners but also the global economy in general. More significantly, China’s stance on the so-called new issues will directly affect the direction of the evolution of international trade law at the multilateral level. China, in its rise, has benefited from the liberal economic order and it thus has a moral obligation to safeguard the order to ensure that it can continue to carry out free and fair trade on a not only regional but also global basis under international trade law.

https://doi.org/10.1017/9781009041133.022 Published online by Cambridge University Press

21 China An Emerging Rule-Maker in International Investment Law? Freya Baetens and Sheng Zhang

21.1 INTRODUCTION

For the past forty years – following the conclusion of its first bilateral investment treaty (BIT) in 1982 with Sweden – China has been slowly developing its network of international investment agreements (IIAs). While initially China followed the template set by contracting partner countries,1 it has increasingly adopted its own approach towards investment protection in treaty negotiations, in an attempt to translate its rapid economic growth into greater political and negotiating power. This aspiration is also visible in China’s domestic policy initiatives concerning inward investment, in particular its enactment of the Foreign Investment Law (FIL) and its implementation of related measures, including a set of exemptions from tax liability for certain reinvestments. China’s continued shaping of investment treaties in accordance with its own bespoke needs has the potential to influence the future development of international investment law worldwide. This chapter is divided into five sections. Section 21.2 provides a brief summary of the history of China’s investment treaty practice and its domestic policies concerning inward investment. Section 21.3 looks at the particular issues that have arisen in investment treaty arbitrations involving China (as a respondent) or its nationals (as claimants). Section 21.4 then analyses China’s proposals for international investment law reform, before Section 21.5 concludes. Altogether, this chapter traces China’s investment practice over time, with a view to demonstrating China’s potential role as an emerging rule-maker in international investment law. 21.2 CHINA’S INTERNATIONAL AND DOMESTIC REGULATORY PRACTICES

21.2.1 A History of China’s Investment Treaty Practice Sceptical of the long history of unequal treaties in international law,2 China only began negotiating IIAs in the 1980s, more than twenty years after the first BIT was concluded between Germany and Pakistan. As of 2022, China had signed 145 BITs of which 20 had been terminated and 19 were not (yet) in force; moreover, it had concluded 25 treaties with investment provisions of which 2 were not (yet) in force.3 As a result of its increased integration into the global 1

2

3

Axel Berger, ‘Hesitant Embrace: China’s Recent Approach to International Investment Rule-Making’ (2015) 16(3) Journal of World Investment and Trade 843–68, 865. Hanqin Xue, Chinese Contemporary Perspectives on International Law: History, Culture and International Law (Leiden: Brill, 2012), 57–61. A full list of BITs and treaties with investment provisions signed by China (signed, in force and terminated) is available at https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china.

423 https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

424

Freya Baetens and Sheng Zhang

economy, China’s investment treaty practice is gradually becoming less restrictive, attempting to balance public and private interests.4 In general, the development of China’s investment treaty practice can be divided into four phases.5 The IIAs concluded in the first phase, between 1982 and 1997, are marked by two characteristics. First, they contain restrictions on the scope of investor–state dispute settlement (ISDS) available to investors, with most treaties providing that only disputes concerning the amount of compensation in cases of expropriation can be submitted to international arbitration. Second, these treaties contain no or qualified national treatment provisions, if any:6 for example, the 1986 China–UK BIT provides that ‘either Contracting Party shall to the extent possible, accord treatment in accordance with the stipulations of its laws and regulations to the investments of its nationals or companies of the other Contracting Party the same as that accorded to its own nationals or companies’.7 The second phase, between 1998 and 2007, resulted in China’s IIAs offering foreign investors unrestricted national treatment and full access to ISDS.8 The third phase, between 2008 and 2012, provided an attempt to achieve a more balanced treaty regime, incorporating the concept of sustainable development. During the fourth phase, since 2013 up to the present day, Chinese IIAs have adopted a negative list approach to national treatment (meaning that national treatment is extended to all sectors, except those that are explicitly listed as excluded) and aimed to establish a comprehensive treaty regime that covers broad topics beyond investment, including sustainable development, privacy and climate change.9 Two examples are indicative of its modern approach. A first example can be found in the China–EU Comprehensive Agreement on Investment (CAI),10 negotiations of which concluded in December 2020.11 The CAI is China’s first BIT with a separate section on sustainable investment, which can arguably be viewed as a major development for China’s investment interactions.12 It contains a number of notable elements. First, its preamble reaffirms the contracting parties’ commitment to both promoting investment and protecting environmental and labour rights, referencing both climate change13 and forced labour.14 The preamble acknowledges the World Trade Organization (WTO) agreements as 4

5

6 7 8 9

10

11

12

13

14

Yongjie Li, ‘Factors to be Considered for China’s Future Investment Treaties’ in Wenhua Shan and Jinyuan Su (eds.), China and International Investment Law: Twenty Years of ICSID Membership, 173–9 (Leiden: Brill, 2014). G. Matteo Vaccaro-Incisa and Wojciech Giemza ‘Economic Integration via Novel Investment Agreements: CAI’s Focus on Market Access vis-a`-vis the Current Bilateral Investment Treaties between China and European Union Member States’ (2022) 23 Journal of World Trade and Investment 521, 529) also distinguish a preliminary phase from 1949 to 1978 focussed on nationalization and exclusion. For instance, see Article 7 of the 1986 China–UK BIT. See Article 3(3) of the 1986 China–UK BIT. Vaccaro-Incisa and Giemza, supra note 5, at 530. For a detailed discussion of BIT development, see Sheng Zhang, ‘China and the Investment Treaty Regime: Rule Taker or Rule Maker?’ in Mahdev Mohan and Chester Brown (eds.), The Asian Turn in Foreign Investment, 63–79 (Cambridge: Cambridge University Press, 2021). European Commission, EU–China CAI: List of Sections, 22 January 2021, https://trade.ec.europa.eu/doclib/press/ index.cfm?id=2237. European Commission, EU and China Reach Agreement in Principle on Investment, 30 December 2020, https://ec .europa.eu/commission/presscorner/detail/en/IP_20_2541. Julien Chaisse, ‘FDI and Sustainable Development in the EU–China Investment Treaty: Neither High nor Low, Just Realistic Expectations’, Columbia FDI Perspectives, No. 323 (24 January 2022), https://bit.ly/44If7Tt. Preamble of CAI. For a discussion of climate change in the context of investment treaties, see Freya Baetens, ‘Combating Climate Change through the Promotion of Green Investment: From Kyoto to Paris without RegimeSpecific Dispute Settlement’ in K. Miles (ed.), Research Handbook on Environment and Investment Law, 107–30 (Cheltenham: Edward Elgar, 2019). Preamble of CAI.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

425

well as other relevant international treaties and arrangements to which China and the EU are party.15 Second, the CAI contains binding provisions aimed at labour protection, including a mechanism to address labour disputes.16 Under the CAI, China committed to implementing certain International Labour Organization (ILO) Conventions and to ratifying two ILO Conventions, the Forced Labour Convention (No. 29) and the Abolition of Forced Labour Convention (No. 105); it did so in April 2022.17 The two contracting parties also agreed to promote investment policies that further the objectives of the Decent Work Agenda, in accordance with the 2018 ILO Declaration on Social Justice for a Fair Globalization.18 Third, the CAI provides the parties with the right to regulate in order to achieve legitimate public interest objectives such as privacy, data protection and cultural diversity.19 The CAI does not, however, contain any mechanism to resolve disputes between investors and host states, so its actual enforceability can be doubted as, based on the practice under existing free trade agreements (FTAs), it can safely be predicted that the interstate dispute settlement mechanism is unlikely to be used.20 A second example lies in the proactive inclusion by China of investment provisions in its recent FTAs. Some of these FTAs, such as those with New Zealand, Peru, Singapore, South Korea, Australia, Georgia and Mauritius, contain separate chapters on investment that comprise provisions similar to those found in most Chinese BITs. The China–Singapore FTA, for example, provides for incorporation of the China–ASEAN (Association of Southeast Asian Nations) investment agreement into the investment chapter, following this IIA’s conclusion.21 Most FTAs were concluded after 2000, and so generally contain more liberal and balanced investment rules than Chinese BITs. Some FTAs stipulate that their investment chapters will replace earlier BITs signed between the same contracting parties. Article 8.21 of the China– Mauritius FTA, for instance, provides that once the FTA enters into force the 1996 China– Mauritius BIT will be terminated. Generally, China maintains a flexible approach to IIA negotiations, which it regards as ‘utilitarianist’ or ‘pragmatic’,22 as illustrated by its habit to accept its contracting partner’s model BIT as the starting point for negotiations. Only when such a model BIT does not exist, 15 16

17

18

19 20 21 22

Ibid. Section IV Investment and Sustainable Development of CAI. See further Kari Otteburn and Axel Marx, ‘A Glass Half-Empty or Half-Full? An Assessment of the Labour Provisions in the CAI from Chinese and European Perspectives’ (2022) 23 Journal of World Investment and Trade, 601, 617. Articles 4 and 5, subsection 3 ‘Investment and Labour’, section IV ‘Investment and Sustainable Development’ of CAI; ‘ILO Welcomes China’s Move towards the Ratification of Two Forced Labour Conventions’, International Labour Organization (20 April 2022), www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_842739/lang–en/index.htm. European Commission, ‘The EU–China Agreement Explained’, https://ec.europa.eu/trade/policy/in-focus/eu-china -agreement/agreement-explained/. However, compared with the EU FTAs, the obligations under the Sustainable Development section are almost entirely based on China’s and the EU’s existing commitments under other international treaties. The commitments in this section are further undermined by their optional wording (‘shall strive to ensure’), jeopardizing their enforceability. See Axel Berger and Manjiao Chi, ‘The EU–China Comprehensive Agreement on Investment: Stuck Half-Way?’, Columbia FDI Perspectives, No. 299 (8 March 2021), https://bit.ly/44BeVWk. While the CAI is not as comprehensive as its title indicates, its section on Investment and Sustainable Development could become a source of inspiration for a new generation of trade and investment treaties, as new treaties shall promote sustainable investment. See Chaisse, ‘FDI and Sustainable Development in the EU–China Investment Treaty’, supra note 12. Article 1 of section I Objectives and General Definitions of CAI. Vaccaro-Incisa and Giemza, supra note 5, at 537. Article 84(1) of the China–Singapore FTA. As pointed out by Professor Kenneth Vandevelde, the United States mainly proposed to negotiate the BITs largely based on its model BIT, and it was extremely reluctant from the beginning to compromise on any but a few of the BIT provisions. If such a proposal was not accepted, there would be no BIT with that state. See Kenneth Vandevelde, US International Investment Agreements (Oxford: Oxford University Press, 2009), 32.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

426

Freya Baetens and Sheng Zhang

or the partner country prefers not to use its template, does China put forward its own model.23 Chinese IIAs are shaped by a combination of domestic and global factors.24 Domestically, China aims to ensure that its IIAs are consistent with its political system. For instance, before 1992, when China had a planned economy and the socialist market economy was written into China’s constitution, national treatment provisions could rarely be found in Chinese IIAs as domestic companies received financial support from the government in return for taking on public interest responsibilities such as building schools or hospitals. China did not want to extend similar support (or demands) to foreign investors as part of national treatment. Since then, China developed from a capital-importing country to a country with two-way investment: as it wishes to secure national treatment for its own investors abroad, it started including this standard in its IIAs.25 Moreover, China aims to incorporate global factors such as a desire towards ISDS reform into its BIT design. Throughout, China tries to ‘strike a balance between the protection of investors and the right to regulate, between importing and capital-exporting interests, [including by means of] an improved dispute settlement mechanism’.26 21.2.2 China’s Domestic Policies Concerning Inward and Outward Investment Alongside its stated interest in pursuing a liberal, balanced and comprehensive investment treaty regime,27 China has further opened up its markets through enacting domestic legal reform. Its international investment practice has had a ‘spillover’ effect on the domestic regulatory regime. For example, China’s acceptance of the pre-establishment national treatment standard28 resulted in implementation of the same approach in the pilot free trade zones (FTZs) in 2015.29 These zones are designated domestic regions where institutional reforms in relation to foreign investment and international trade are tested prior to nationwide implementation. China also administers a so-called negative list, which sets out restrictive measures or bans with respect to accessing foreign investment in certain special business sectors such as rare earth mining or stem cell research.30 Foreign investments in any sector not specified in the negative list benefit from national treatment as they are only subject to the same administrative measures as Chinese domestic investment. Furthermore, in 2019 China adopted the FIL so as to provide a unified regime on the entry, promotion, protection and management of foreign investment.31 Previously, foreign-invested enterprises (FIEs) and domestic enterprises were subject to different laws, including different

23 24 25 26 27 28

29

30

31

Berger, supra note 1, at 865–6. Yongjie Li, supra note 4, at 173. Ibid. Ibid., 179. Ibid., 173–9. ‘MOFCOM Spokesman Shen Danyang Comments on China and US to Promote Energetically Negotiations on Bilateral Investment Agreement’, Ministry of Commerce (16 July 2013), http://english.mofcom.gov.cn/article/news release/policyreleasing/201307/20130700200566.shtml. Dan Markus, ‘China and the Negative-List Principle: Possibilities and Uncertainties’ in Scott Kennedy (ed.), State and Market in Contemporary China: Toward the 13th Five-Year Plan, 36–9 (Lanham, MD: Rowman & Littlefield / Center for Strategic and International Studies, 2016), 37. Special Administrative Measures for Access of Foreign Investments (Negative List) (2021 ed.), www.garrigues.com /sites/default/files/documents/2021_national_list.pdf. Foreign Investment Law of the People’s Republic of China, adopted at the 2nd Session of the Thirteenth National People’s Congress of the People’s Republic of China as Order No. 26 of the President of the People’s Republic of China. Available in English at https://en.ndrc.gov.cn/policies/202105/t20210527_1281403.html.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

427

establishment requirements.32 The FIL put an end to the prior regime governing FIEs that had spanned the previous four decades, including the Sino–foreign Joint Venture Law, the Sino– foreign Cooperative Joint Venture Law and the Wholly Foreign-Owned Enterprises Law.33 Under the FIL, both foreign and domestic enterprises are to be treated alike, and no additional approval for foreign investments is required. However, exceptions are provided for investments that fall under the negative list. Finally, the FIL provides for enhanced promotion and protection of foreign investment as well as greater regulatory transparency. Given the increase of Chinese outward foreign investment, China is moving away from its traditionally restrictive position and increasingly encourages Chinese companies to avail themselves of international investment arbitration. In June 2021, for example, China released a reference guide aimed at assisting Chinese investors in navigating the terms and conditions of its investment treaties so as to enable them to initiate investment arbitration proceedings if disputes with host state governments arise.34 This text could also be used by foreign investors in China to help them institute claims against China, although their access is limited by the text’s being exclusively published in Mandarin. 21.3 CHINA’S PARTICIPATION IN INTERNATIONAL INVESTMENT ARBITRATION

21.3.1 China as Respondent As of 2022, China has been a respondent in nine investment arbitration cases, of which one has been settled,35 two discontinued36 and one decided in favour of China,37 with the remaining five pending.38 This section explores two cases – the still-ongoing case of Hela Schwarz v. China39 and Ansung Housing v. China,40 in which the final award was issued in 2017 – as a means of distilling

32

33

34

35 36

37

38

39 40

Hui Huang, ‘The Regulation of Foreign Investment in Post-WTO China: A Political Economy Analysis’ (2009) 23(1) Columbia Journal of Asian Law, 185–215, 201. Article 42 of the Foreign Investment Law provides: ‘The Law shall come into effect as of January 1, 2020. The Law of the People’s Republic of China on Sino–Foreign Equity Joint Ventures, the Law of the People’s Republic of China on Wholly Foreign-owned Enterprises and the Law of the People’s Republic of China on Sino–Foreign Cooperative Joint Ventures shall be repealed simultaneously.’ China Ministry of Commerce, Reference Guide for Enterprises to Use Investment Treaties, 28 June 2021, www .mofcom.gov.cn/article/zcfb/zczh/202106/20210603162407.shtml. Ekran v. China, ICSID Case No. ARB/11/15. Macro Trading v. China, ICSID Case No. ARB/20/22, and Goh Chin Soon v. People’s Republic of China (I), ICSID Case No. ARB/20/34. The case of Macro Trading v. China was discontinued by the tribunal for lack of payment of the required advances, pursuant to ICSID Administrative and Financial Regulation 14(3)(d). See Macro Trading v. China, procedural details, https://icsid.worldbank.org/cases/case-database/case-detail?CaseNo=ARB/20/22. The case of Goh Chin Soon v. China (I) was discontinued and it was moved to the venue of arbitration under the Permanent Court of Arbitration. See Damien Charlotin, ‘Real Estate Case Against China Was Discontinued’, Investment Arbitration Reporter (27 August 2021), www.iareporter.com/articles/real-estate-case-against-china-isdiscontinued/. Ansung Housing v. China, ICSID Case No. ARB/14/25. The tribunal rendered the award on 9 March 2017, dismissing Ansung’s claims on the basis that the claims were ‘manifestly lack of legal merits’ pursuant to ICSID Arbitration Rule 41(5). See Ansung v. China, Award, 9 March 2017. Hela Schwarz v. China, ICSID Case No. ARB/17/19; Jason Yu Song v. China, PCA Case No. 2019-39; AsiaPhos. v. China, ad hoc arbitration; Goh Chin Soon v. People’s Republic of China (II), PCA Case No. 2021-30; Eugenio Montenero v. China, ad hoc arbitration. Hela Schwarz v. China, ICSID Case No. ARB/17/19. Ansung Housing Co., Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

428

Freya Baetens and Sheng Zhang

two primary issues within China’s investment practice: the relationship between domestic administrative litigation and international investment arbitration, and the temporal limitations of IIAs. 21.3.1.1 Parallel Proceedings Hela Schwarz v. China was brought under the 2003 China–Germany BIT by a German investor, Hela Schwarz GmbH (Hela Schwarz), a German-owned spice and food additive manufacturer that had been investing in the city of Jinan since 1996. In 2014, the Jinan government adopted a Housing Expropriation Decision that expropriated lands and buildings owned by Jinan Hela Schwarz,41 Hela Schwarz’s subsidiary. Unhappy with this expropriation, Jinan Hela Schwarz challenged it through the Shandong Provincial Government’s administrative review procedure; however, this challenge was rejected in a review decision dated 15 April 2016.42 Jinan Hela Schwarz then challenged this decision through an administrative litigation procedure against the Jinan Municipal Government at the Jinan Intermediate People’s Court. The court issued a procedural ruling dismissing Jinan Hela Schwarz’s claim, and its ruling was upheld by the Shandong High People’s Court on 6 December 2016.43 Subsequently, Hela Schwarz sought the creation of a tribunal under Article 9 of the 2003 China–Germany BIT. This Article provides that any dispute may be submitted to international arbitration if it cannot be settled within six months. However, under a separate Protocol to the BIT, China additionally requires two elements to be satisfied before the dispute can be referred to international arbitration: the foreign investor must have initiated domestic administrative review procedures, and the dispute must still exist three months after submission for review.44 The tribunal was established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) on 8 January 2018, and it has not yet rendered its decision. Almost half of China’s BITs include provisions similar to those in the China–Germany BIT requiring prior administrative review,45 which offers host states an opportunity to self-correct. However, these provisions may also lead to parallel or multiple proceedings, with both domestic litigation and international arbitration occurring simultaneously.46 This could result in uncertainty concerning the jurisdiction of the arbitral tribunal, and may create conflicting rulings.47 While administrative review provisions have not been contentious in other proceedings (including in cases where the relevant BIT contains such provisions),48 the possibility of uncertainty and conflict remains, which may explain China’s omission of such provisions in its recent IIAs.49 21.3.1.2 Temporal Limitations The case of Ansung Housing v. China concerned the interpretation of temporal requirements included in the 2007 China–South Korea BIT. Ansung Housing (Ansung) was a South Korean company that had invested in a golf course and condominium development project in Jiangsu 41 42 43 44 45

46

47 48 49

Hela Schwarz v. China, Procedural Order No. 2, 10 August 2018, para. 36. Ibid., para. 37. Ibid., para. 38. Article 6 of the Protocol of the 2003 China–Germany BIT. Manjiao Chi and Zongyao Li, ‘Administrative Review Provisions in Chinese Investment Treaties: “Gilding the Lily”?’ (2021) 12(1) Journal of International Dispute Settlement, 125–50, 125. Wei Shen, ‘Parallel Proceedings under Chinese BITs: The Case of Hela Schwarz GmbH v. PR China’ (2020) 11(2) Journal of International Dispute Settlement, 335–63. Ibid., 336. See, for example, Ansung v. China, considering the China–South Korea BIT. Manjiao Chi and Zongyao Li, supra note 45, at 148.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

429

Province. Ansung filed an investment claim with ICSID, alleging that various arbitrary and illegal actions and omissions of the local government had deprived it of the use and enjoyment of its investment.50 A tribunal was constituted on 2 September 2016. Relying on Rule 41(5) of the ICSID Arbitration Rules, China asserted that Ansung’s claim was ‘manifestly without legal merit’ and argued for its dismissal on the basis that the claim was timebarred under the 2007 BIT.51 Article 9(7) of the BIT provides that ‘[a]n investor may not make a claim pursuant to paragraph 3 of this Article if more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge that the investor had incurred loss or damage’. Arguably, this Article refers to knowledge of the fact that there had been a loss, not the exact quantum lost: accordingly, China claimed that Ansung necessarily knew (or should have known) that it had incurred losses prior to the disposal of its investment in October 2011. As the case was registered at the ICSID on 4 November 2014, China argued that Ansung did not comply with the applicable temporal requirement.52 The tribunal agreed that Ansung should have first acquired knowledge of its loss or damage before October 2011.53 In the tribunal’s view, ‘Ansung’s actual sale of its shares on December 17, 2011 marked the date on which it could finalize or liquidate its damage, not the first date on which it had to know it was incurring damage’.54 Considering the dies ad quem of the temporal limitation period, the tribunal held that the plain language in Article 9(7) pointed to the date on which the investor deposited its request for ICSID arbitration – 7 October 2014 (electronically) or 8 October 2014 (physically) – rather than the date of registration (4 November 2014). As both deposit dates arose more than three years after the dies a quo,55 the tribunal concluded that the three-year limitation period had elapsed and the claim was time-barred.56 The tribunal further examined whether the most favoured nation (MFN) clause in Article 3 of the BIT could save Ansung’s claim from being time-barred. Article 3(3) provides: Each Contracting Party shall in its territory accord to investors of the other Contracting Party and to their investments and activities associated with such investments by the investors of the other Contracting Party treatment no less favourable than that accorded in like circumstances to the investors and investments and associated activities by the investors of any third State (hereinafter referred to as ‘most-favoured-nation treatment’) with respect to investments and business activities, including the admission of investment. (emphasis added)

China argued that the MFN clause could not save Ansung’s untimely claim.57 It claimed that a contextual interpretation of Article 3(5), which provides MFN treatment with respect to ‘access to courts of justice and administrative tribunals and authorities’, demonstrated that Article 3(3) was unrelated to dispute settlement.58 The tribunal agreed, concluding that a plain reading of Article 3 did not extend MFN treatment to a state’s consent to arbitration and, in particular, to the three-year period in Article 9(7) of the BIT.59 Article 3(5) offered MFN protection to investors’ remedies only through domestic avenues, with express reference to international 50

51 52 53 54 55 56 57 58 59

Jawad Ahmad, Kelvin Poon and Andre Yeap SC, ‘Investment Arbitration in Asia’, Global Arbitration Review (18 May 2015), https://bit.ly/3rwxlZI. Ansung Housing Co., Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25, Award, 9 March 2017, para.92. Ibid., para. 85. Ibid., para. 114. Ibid., para. 110. Ibid., para. 115. Ibid., para. 122. Ibid., para. 56. Ibid., paras. 127–8. Ibid., para. 138.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

430

Freya Baetens and Sheng Zhang

dispute resolution conspicuously absent from Article 3(3).60 As a result, the tribunal determined that China established its Rule 41(5) objection ‘clearly and obviously, with relative ease and despatch’.61 The tribunal therefore considered Ansung’s claim to be manifestly without legal merit.62 21.3.1.3 Why China Features Rarely as Respondent While the two aspects of China’s investment treaty practice at issue in the above cases – the relationship between domestic and arbitral proceedings, and temporal limitations on actions – are not exclusive to Chinese BITs, they are also not universal, and neither is their interpretation, so they might well arise again in future proceedings. But, despite China’s increased activities in both inward and outward foreign investment, and its expanded web of IIAs, relatively few cases have been brought against it.63 There appear to be four reasons for this. First, ISDS clauses in earlier Chinese BITs have a narrow scope, limiting investors’ access to investment arbitration to cases involving compensation for expropriation. Second, as exemplified in Hela Schwarz v. China, most Chinese BITs impose an obligation upon foreign investors to go through the domestic administrative review process before initiating international arbitration. Third, there are legal obstacles to the recognition and enforcement of investment arbitral awards in mainland China. China’s Arbitration Law places severe restrictions on the arbitrability of disputes.64 More specifically, Article 2 of China’s Arbitration Law provides that contractual disputes and other disputes over rights and interests in property between citizens, legal persons and other organizations that are equal subjects may be decided through arbitration.65 Disputes between private investors and host states are, however, excluded from the scope of arbitration. This also affects local courts’ attitudes towards awards rendered through international treatybased arbitration, making them unwilling to recognize or enforce foreign arbitral awards.66 The underlying reason for this can be found in the fact that China considers itself to hold absolute sovereign immunity.67 When ratifying the New York Convention, China made it clear that it would not recognize or enforce international investor–state arbitration awards (arguably acting against the Convention’s object and purpose),68 and its courts have followed this approach in practice.69 Also, China has not enacted any specific legislation to comply with its recognition and enforcement obligations under the ICSID Convention, nor has it designated ‘a competent court or other authorities’ to receive the copy of the award in accordance with Article 54(2) of the ICSID Convention. However, its obligation to comply with ICSID awards arises regardless of the existence of such legislation and designation because the ICSID Convention 60 61 62 63

64

65

66

67 68

69

Ibid., para. 139. Ibid., para. 142. Ibid., para. 143. Dilini Pathirana, ‘A Look into China’s Slowly Increasing Appearance in ISDS Cases’, Investment Treaty News (26 September 2017), https://bit.ly/3pMLvWk. Men Chen, ‘Embracing Non-ICSID Investment Arbitration? The Chinese Perspective’ (2019) 39(3) Northwestern Journal of International Law and Business, 249–74, 268. Arbitration Law of the People’s Republic of China, adopted at the 9th Session of the Standing Committee of the Eighth National People’s Congress as Order No. 76 of the President of the People’s Republic of China. Xiangling Chen, ‘Challenging and Enforcing Arbitration Awards: China’, Global Arbitration Review (n.d.), https:// bit.ly/3PWgJot. Hanqin Xue, supra note 2, 100. People’s Supreme Court of China, Notice of the Supreme People’s Court on Implementing the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Acceded to by China, No. 5 (1987) of the Supreme People’s Court, 4 October 1987. Xiangling Chen, supra note 66.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

431

has direct effect in China’s domestic system, so a change in national regulation is not necessary for the Convention to apply.70 In other words, if an investor were to pursue enforcement of an ICSID award in China and this were to be denied by the authorities on the basis of the lack of domestic regulation, China would most likely be acting in breach of its international obligations. So far, it would seem that China is acting in the (factually correct) belief that it will be only rarely challenged by foreign investors, so it does not seem to be a major problem in practice.71 Fourth, culturally, China prefers to promote the amicable settlement of disputes, and so arbitration and litigation can be seen as a serious challenge to harmony and relationships.72 However, China’s attitude towards investment arbitration appears to be changing. Its successful defence in the Ansung v. China case may have boosted its confidence in the ISDS mechanism.73 Further, in order to support its arbitral institutions in managing international investment arbitration cases, China has begun to revise its Arbitration Law to accommodate investment disputes. It released a draft of the amended Arbitration Law in July 2021 to solicit public comments.74 As stated already, the Arbitration Law presently provides that disputes between citizens, legal persons and other economic organizations that are equal subjects may be decided through arbitration. The draft removes the ‘equal subjects’ requirement and replaces ‘citizens’ with ‘natural persons’: this has the effect of allowing disputes between states and physical or corporate entities to be decided under the arbitral regime, indicating a greater acceptance of investment disputes.75 Once this law has been formally adopted, more cases may arise in the future. 21.3.2 Chinese Investors as Claimants Chinese investors have availed themselves of ISDS mechanisms, bringing cases against countries in a number of regions, with varying levels of success.76 These claims highlight several frequently occurring issues for Chinese investors: (1) the status of state-owned enterprises (SOEs) 70

71 72

73

74

75

76

Julian Ku, ‘The Enforcement of ICSID Awards in the People’s Republic of China’ (2013) 6(1) Contemporary Asian Arbitration Journal, 31–48. For the recognition and enforcement of foreign arbitral awards by Chinese courts, Article 283 of the Chinese Civil Procedure Law specifies that the application should be directed to the intermediate people’s court of the place where the party subject to execution is domiciled or where its property is located. The people’s court shall handle the matter pursuant to international treaties concluded or acceded to by China or in accordance with the principle of reciprocity. Yet when China is a losing party to an ICSID arbitration, it would be difficult to identify which court is an appropriate forum for the recognition and enforcement of ICSID awards, as the textual interpretation of ‘domiciled’ or ‘property’ may arguably direct a successful claimant to any intermediate people’s court in China. See Shengchang Wang, Ning Fei et al., ‘China’ in Tafadzwa Pasipanodya (ed.), Investor–State Arbitration 2022, 4th ed., 29–36 (International Comparative Legal Guide, 2022). Julian Ku, supra note 70, at 48. Guiguo Wang, ‘Chinese Mechanisms for Resolving Investor–State Disputes’ (2011) 1(1) Jindal Journal of International Affairs, 204–33. ‘MOFCOM Department of Treaty and Law Comments on China’s Winning Over the Investment Dispute Cases Launched by Anseong Company’, Ministry of Commerce (13 March 2017), http://english.mofcom.gov.cn/article/ newsrelease/policyreleasing/201703/20170302534180.shtml. See also Dilini Pathirana, supra note 63. Ministry of Justice, Revised Arbitration Law (Draft for Comment), 30 July 2021, www.moj.gov.cn/pub/sfbgw/zlk/ 202107/t20210730_432958.html (in Chinese). The period to submit opinions has expired, but no government response to the public comments has been made public as of yet. Terence Wong et al., ‘Draft Revised Arbitration Law of PRC Published for Comments’, Winston and Strawn LLP (23 August 2021), https://bit.ly/43ujFMe. Tza Yap Shum v. Peru, ICSID Case No. ARB/07/06, decision in favour of the investor; Beijing Shougang and others v. Mongolia, PCA Case No. 2010-20, decision in favour of the state; Standard Chartered Bank (Hong Kong) Limited v. Tanzania Electric Supply Company Limited, ICSID Case No. ARB/10/20, decision in favour of investor; Philip Morris v. Australia, PCA Case No. 2012-12, decision in favour of the state; Ping An v. Belgium, ICSID Case No. ARB/ 12/29, decision in favour of the state; Sanum Investment Limited v. Laos (I), PCA Case No. 2013-13, decision in favour

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

432

Freya Baetens and Sheng Zhang

as claimants; (2) the application of Chinese BITs to the Hong Kong Special Administrative Region (HKSAR) and the Macau SAR; (3) the temporal application of investment treaties; (4) the scope of ISDS clauses; and (5) the interpretation of indirect expropriation clauses. 21.3.2.1 Status of SOEs as Claimants The majority of Chinese outward foreign direct investment (FDI) is made by SOEs.77 As such, whether SOEs can act as claimants under BITs is crucial for Chinese investors. The close links between SOEs and the Chinese government have frequently led respondent states as well as scholars to allege that, as the government is the ultimate decision-maker with regard to SOEs’ actions, Chinese SOEs do not qualify as private investors under the applicable BIT.78 This issue was, for example, raised in Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen (BUCG v. Yemen)79 and China Heilongjiang International Economic & Technical Cooperative Corp., Beijing Shougang Mining Investment Company Ltd., and Qinhuangdaoshi Qinlong International Industrial Co. Ltd. v. Mongolia (Beijing Shougang and others v. Mongolia).80 In BUCG v. Yemen, Yemen argued that the tribunal lacked jurisdiction ratione personae because BUCG, an SOE, was an agent of the Chinese government and discharged governmental functions.81 In support of its claim, Yemen relied on Chinese constitutional law and company law, alongside various Chinese government publications and directives, to demonstrate that BUCG was expected to advance China’s national interest.82 Accordingly, the Chinese state was the ultimate decision-maker for key management, operational and strategic decisions.83 In response, BUCG argued that its investment in Yemen was made while acting in a commercial capacity and not under the direction or control of the government.84

77

78

79 80

81

82 83 84

of the investor; Beijing Urban Construction v. Yemen, ICSID Case No. ARB/14/30, settled; Standard Chartered Bank (Hong Kong) Limited v. Tanzania, ICSID Case No. APB/15/41, decision in favour of the investor; Zhongshan Fucheng v. Nigeria, ad hoc arbitration, decision in favour of investor; Wuxi T. Hertz Technologies and Jetion Solar v. Greece, ad hoc arbitration, investor withdrew the notice of arbitration in December 2019; Sanum Investments v. Laos (II), ICSID Case No. ADHOC/17/1, pending; Jetion and T-Hertz v. Greece, ad hoc arbitration, discontinued; Fengzhen Min v. Republic of Korea, ICSID Case No. ARB/20/26, pending; Wang Jing et al. v. Ukraine, ad hoc arbitration, pending; Shift Energy v. Japan, ad hoc arbitration, pending; Wang Jiazhu v. Finland, ad hoc arbitration, pending; Beijing Everyway Traffic and Lighting Tech Co. Ltd. v. Ghana, ad hoc arbitration, pending; Alpene Ltd v. Republic of Malta, ICSID Case No. ARB/21/36, pending; Qiong Ye and Jianping Yang v. Kingdom of Cambodia, ICSID Case No. ARB/21/42, pending; Huawei Technologies Co., Ltd. v. Kingdom of Sweden, ICSID Case No. ARB/ 22/2, pending; PCCW Cascade (Middle East) Ltd. v. Saudi Arabia, ICSID Case No. ARB/22/20, pending; PowerChina HuaDong & China Railway v. Vietnam, ICSID Case No. ARB(AF)/22/7, pending; Astronergy Solar v. Bulgaria, ICSID Case No. ARB/22/32, pending. This case overview has been updated until December 2022. China Ministry of Commerce, National Bureau of Statistics and State Administration of Foreign Exchange, 2021 Statistical Bulletin of China’s Outward Foreign Direct Investment (Beijing: China Commerce and Trade Press, 2022), 121. Sheng Zhang, ‘The Status of State-Owned Enterprises in ISDS from a Chinese Perspective’ in Yuwen Li, Tong Qi and Cheng Bian (eds.), China, the EU and International Investment Law: Reforming Investor–State Dispute Settlement, 198–211 (Abingdon: Routledge, 2020). Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30. China Heilongjiang International Economic & Technical Cooperative Corp., Beijing Shougang Mining Investment Company Ltd., and Qinhuangdaoshi Qinlong International Industrial Co. Ltd. v. Mongolia, UNCITRAL, PCA Case No. 2010-20. Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30, Decision on Jurisdiction, 31 May 2017, para. 29. Ibid., para. 37. Ibid., para. 47. Ibid., para. 30. Freshfields Bruckhaus Deringer LLP, ‘BUCG v. Yemen Decision Clears Jurisdictional Hurdles for Investment Claims by Chinese State-Owned Enterprises under the ICSID Convention’, Lexology (7 August 2017), www.lexology.com/library/detail.aspx?g=a1d5d3bd-7046-4341-ba51-03d6c50f1f15.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

433

The tribunal determined that the ‘Broches test’ – the test to determine whether a claimant qualifies as a foreign investor for the purposes of a specific BIT – requires a context-specific analysis of the commercial function of the investment,85 and consideration of whether BUCG functioned as an agent of the Chinese government within this context.86 Ultimately, the tribunal decided the jurisdictional point in favour of BUCG.87 Yemen’s positioning of BUCG in the broad context of the People’s Republic of China’s (PRC) state-controlled economy and its structural links with the PRC government were deemed ‘largely irrelevant’.88 The tribunal added that ‘the assertion that “the Chinese State is the ultimate decision maker” for BUCG is too remote from the facts of the Sana’a International Airport project to be relevant’.89 Accordingly, the tribunal concluded that there was no evidence to suggest that BUCG was fulfilling Chinese government functions within the sovereign territory of the Republic of Yemen.90 Rather, BUCG participated in the airport project as a general contractor following an open tender and its bid was selected on its commercial merits. Moreover, BUCG’s contract had been terminated not because of ‘the PRC’s decisions or policies’ but owing to reasons relating to BUCG’s performance of its commercial services on the airport site.91 On the merits, the proceeding was discontinued following a settlement by the parties. Similarly, in the case of Beijing Shougang and others v. Mongolia, Mongolia argued that two SOE claimants (Beijing Shougang and China Heilongjiang) were ‘quasi-instrumentalities of the Chinese government’:92 it claimed that a narrow approach should be adopted when interpreting the term ‘economic entities’ under the BIT, such that the two SOEs would be disqualified as investors, preventing the claim.93 Mongolia also alleged that another investor, Qinglong, lacked the requisite ‘separateness’ implied in the term ‘economic entity’, and similarly was excluded from the BIT.94 The tribunal rejected these objections, finding that nothing in the treaty’s language allowed for the restrictions advanced by Mongolia and that any entity ‘engaging in economic or business activities’ could qualify as an investor, irrespective of its form or owner. Similarly, there was no proof that the claimants had acted as ‘quasi-instrumentalities of the Chinese government’ in pursuance of China’s foreign policy goals.95 Ultimately, the case was decided in China’s favour. In sum, when faced with claims from (Chinese) SOEs, tribunals have tended to refrain from lifting the corporate veil, thereby allowing these companies to qualify as private foreign investors within the protective scope of the relevant BIT, unless they are discharging ‘Chinese government 85

86 87 88 89 90 91 92

93 94 95

Beijing Urban Construction Group Co. Ltd. v. Republic of Yemen, ICSID Case No. ARB/14/30, Decision on Jurisdiction, 31 May 2017, para. 35. Ibid., para. 39. Ibid. Ibid., para. 42. Ibid., para. 43. Ibid., para. 44. Ibid., para. 40. China Heilongjiang International Economic & Technical Cooperative Corp., Beijing Shougang Mining Investment Company Ltd., and Qinhuangdaoshi Qinlong International Industrial Co. Ltd. v. Mongolia, UNCITRAL, PCA Case No. 2010-20, Award, 30 June 2017, para. 271. Ibid., paras. 268–9. Ibid., para. 272. Damien Charlotin, ‘In-Depth: A First Look Inside the Now-Surfaced Award in the Case of China Heilongjiang v. Mongolia Award; Claimants Now Pursuing Set-Aside’, Investment Arbitration Reporter (1 October 2017), https://bit .ly/3NTPs3k. In the CAI, the EU and China have included SOEs under the term ‘covered entities’. Each contracting party has to ensure that, when engaging in commercial activities, its covered entities shall act in accordance with commercial considerations. See Article 3 bis ‘Covered Entities’, subsection II ‘Liberalization of Investment’, section I ‘Objectives and General Definitions’ of the CAI. See also Xueji Su, ‘Liberalising the Chinese Market: State-Owned Enterprise Disciplines in CAI’ (2022) 23(4) Journal of World Trade and Investment, 545–71.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

434

Freya Baetens and Sheng Zhang

functions’ through their investment activities or acting as ‘quasi-instrumentalities of the Chinese government’ so as to achieve China’s policy objectives. 21.3.2.2 Application of Chinese BITs to Hong Kong SAR and Macau SAR All but one of the Chinese investment treaties are silent on whether they apply to China’s SARs, Hong Kong and Macau. The exception is the 2006 China–Russia BIT, which provides in its Protocol that, unless otherwise agreed by the contracting parties, the treaty does not apply to the two regions.96 Whether treaties generally apply to Hong Kong and Macau, however, is debatable. While the regions legally form part of China, they maintain a high degree of autonomy and have the power to enter into international agreements in economic and trade matters.97 Further, international agreements dictate the scope of agreements over the regions: the 1984 Sino–British Joint Declaration on Hong Kong98 stipulates that ‘the application to Hong Kong Special Administrative Region of international agreements to which the People’s Republic of China is or becomes a party shall be decided by the Central People’s Government, in accordance with the circumstances and needs of the Hong Kong Special Administrative Region, and after seeking the views of the Hong Kong Special Administrative Region Government’.99 The same wording can be found in the 1987 Joint Declaration of China and Portugal on the Question of Macau.100 This position is also confirmed in the Hong Kong Basic Law101 and the Macau Basic Law.102 In June 1997 and December 1999, respectively, China submitted to the United Nations (UN) Secretary-General a list of treaties that it intended to apply to Hong Kong and Macau after their handovers (214 and 158 treaties, respectively);103 no BITs were included. As such, it would appear that Chinese BITs apply only to Hong Kong and Macau if and when the treaty texts expressly so stipulate;104 however, tribunal practice has differed. In the cases Tza Yap Shum v. Peru and Sanum v. Laos, the tribunals respectively found that the 1994 China–Peru BIT applies to Hong Kong investors and the 1993 China–Laos BIT applies to Macau investors. In Tza Yap Shum v. Peru, Mr Tza Yap Shum, a Hong Kong resident with an investment in fishmeal manufacturing in Peru, challenged the tax audit measures taken by Peru’s national tax authority, alleging that they constituted an unjustified indirect expropriation. One of Peru’s objections to the jurisdiction of the ICSID tribunal was that Mr Shum had not proven that he held Chinese nationality. Moreover, even if he held such nationality, Peru argued that he could not rely on the China–Peru BIT as he was resident in Hong Kong.105 The ICSID tribunal held 96 97

98

99

100 101 102 103

104 105

Article 1, Protocol to the 2006 China–Russia BIT. Article 151 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, www.basiclaw.gov.hk/filemanager/content/en/files/basiclawtext/basiclaw_full_text.pdf; Article 136 of the Basic Law of the Macau Special Administrative Region of the People’s Republic of China, https://bit.ly/3Odqb5y. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, www.cmab.gov.hk/en/issues/joint3 .htm. XI Foreign Affairs, Annex I Elaboration by the government of the People’s Republic of China of its basic policies regarding Hong Kong, Sino–British Joint Declaration on Hong Kong, www.cmab.gov.hk/en/issues/jd3b.htm #foreign. Article VIII, Annex I, 1987 Joint Declaration of China and Macau on the Question of Macau, https://bit.ly/3Odqb5y. Article 153 of the Hong Kong Basic Law. Article 138 of the Macau Basic Law. John Shijian Mo, ‘The Dilemma of Applying Bilateral Investment Treaties of China to Hong Kong and Macau: Challenges Raised by Sanum Investments to China’ (2018) 33(1) ICSID Review, 125–55, 127. Ibid., 125–7. Tza Yap Shum v. Peru, ICSID Case No. ARB/07/6, Decision on Jurisdiction and Competence, 19 June 2009, paras. 40–3.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

435

that the documentation submitted by Mr Shum, including a passport issued by the government of Hong Kong, was sufficient to demonstrate that he held Chinese nationality.106 The tribunal found that, as Chinese nationality law applies to Hong Kong, Hong Kong permanent residents of Chinese descent born in mainland China are Chinese nationals.107 Further, nothing in the ICSID Convention or the China–Peru BIT provided that Chinese nationals resident in Hong Kong were excluded from the scope of the BIT.108 When interpreting the term ‘foreign investors’, the tribunal strictly followed the text of the BIT. However, the case addressed only the nationality of natural persons: it is not clear whether legal persons, such as an entity incorporated in the HKSAR, would be entitled to treaty protection under a Chinese BIT. Whereas Chinese nationality is conferred upon individuals by Chinese nationality law, the incorporation of a corporate entity in Hong Kong is based on Hong Kong’s own law, which differs from Chinese law on the issue.109 China did not provide a response in this case. However, one Chinese scholar, An Chen, has argued that the decision rendered by the tribunal is incorrect, unreasonable and unacceptable.110 In his view, under the ‘one country, two systems’ policy, Hong Kong has the competence to conclude BITs with other countries of its own accord, so its residents should not be allowed to rely on Chinese BITs in addition. In Sanum v. Laos, Laos argued that the China–Laos BIT could not be relied on by Sanum Investment Limited, an entity incorporated in Macau, to institute an ICSID arbitration because the China–Laos BIT did not cover Macau.111 Laos also relied on the list submitted by China to the UN Secretary-General in 1999, which did not proclaim the China–Laos BIT as extending to Macau. Laos argued that this list operated as a reservation to the territorial application of China’s BITs to Macau.112 The tribunal recognized that the China–Laos BIT’s extension to Macau was central to the question of jurisdiction.113 Accordingly, it first considered the 1999 submission, finding that the UN Secretary-General, when acting as depository, records reservations only to multilateral treaties: ‘no question of reservation arises in relation to bilateral treaties’.114 As a result, the tribunal considered the 1999 notification to be irrelevant to a consideration of BITs.115 Second, it examined the relevance of Article 29 of the Vienna Convention on the Law of Treaties (VCLT)116 and Article 15 of the Vienna Convention on Succession of States in Respect of Treaties (VCST),117 which 106 107

108 109 110

111 112 113 114 115 116

117

Ibid., para. 66. Ibid., paras. 54–60. See also Wei Shen, Decoding Chinese Bilateral Investment Treaties (Cambridge: Cambridge University Press, 2021), 155. Tza Yap Shum, supra note 105, para. 69. Wei Shen, supra note 107, at 156. An Chen, ‘Queries to the Recent ICSID Decision on Jurisdiction Upon the Case of Tza Yap Shum v. Republic of Peru: Should China–Peru BIT 1994 Be Applied to Hong Kong SAR under the “One Country Two Systems” Policy?’ (2009) 10 Journal of World Investment and Trade, 829–64. Sanum v. Lao (I), Award on Jurisdiction, 13 December 2013, paras. 51–2. Ibid., para. 57. Ibid., para. 205. Ibid., para. 219. Ibid., para. 220. Art. 29 ‘Territorial Scope of Treaties’ of VCLT reads: ‘Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’ VCLT (signed 23 May 1969, entered into force 27 January 1980) 1115 UNTS 331. Art. 15 ‘Succession in Respect of Part of Territory’ of VCST reads: When part of the territory of a State, or when any territory for the international relations of which a State is responsible, not being part of the territory of that State, becomes part of the territory of another State: (a) treaties of the predecessor State cease to be in force in respect of the territory to which the succession of States relates from the date of the succession of States; and

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

436

Freya Baetens and Sheng Zhang

consider the application of treaties to state territory. While Macau’s handover in December 1999 did not involve a transfer of sovereignty, the tribunal nevertheless found that the rules on state succession did not contradict the Chinese position.118 Further, the tribunal found the application of the China–Laos BIT to Macau to be not incompatible with the treaty’s object and purpose:119 this application did not radically change the conditions of the BIT’s operation120 and neither the China–Laos BIT121 nor the 1987 Joint Declaration between China and Portugal precluded such application.122 Accordingly, the tribunal concluded that the China–Laos BIT extended to Macau.123 Following this decision, on 4 January 2014, the Laotian Ministry of Foreign Affairs sent a letter to China’s embassy in Vientiane, Laos, repeating its view that the China–Laos BIT did not extend to Macau and seeking the Chinese government’s formal opinion.124 The Chinese embassy replied on 9 January 2014, stating that the China–Laos BIT would not extend to Macau ‘unless both China and Laos make separate arrangements in the future’.125 On that basis, Laos challenged the tribunal’s award on jurisdiction before the High Court of Singapore, submitting its claim on 10 January 2014. The Court admitted the two letters as new evidence demonstrating that both China and Laos considered the China–Laos BIT to not apply to Macau, and held that the tribunal had no jurisdiction over the dispute.126 Sanum then appealed the High Court’s judgment at the Court of Appeal of Singapore. First, the Court of Appeal considered the ‘moving treaty frontier rule’:127 this rule is established in Article 15 of the VCST and Article 29 of the VCLT, and presumptively provides for the automatic extension of a treaty to a new territory as and when it becomes part of the successor state.128 The Court found this rule to be reflected in customary international law, such that it applies to China even though it is not a party to the VCST. Second, in relation to the exchange of letters between Laos and China in January 2014, the Court of Appeal adopted the ‘critical date’ doctrine, which limits the use, relevance and weight of evidence submitted after the dispute’s crystallization.129 In the Court’s view, the critical date in this case was 14 August 2012, that is, the date on which Sanum initiated the ICSID arbitration.130 Accordingly, Laos could not rely on the interstate correspondence. (b) treaties of the successor State are in force in respect of the territory to which the succession of States relates from the date of the succession of States, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation. (Vienna Convention on Succession of States in Respect of Treaties [signed on 23 August 1978 and entered into force on 6 November 1996] 1946 UNTS 3) 118 119 120 121 122 123 124

125 126 127

128

129 130

Sanum v. Lao (I), Award on Jurisdiction, 13 December 2013, para. 237. Ibid., paras. 239–42. Ibid., paras. 243–69. Ibid., para. 270. Ibid., paras. 276–7. Ibid., para. 269. High Court of the Republic of Singapore [2015] SGHC 15, Government of the Lao People’s Democratic Republic v. Sanum Investments, Judgment, 20 January 2015, para. 39. Ibid., para. 40. Ibid., paras. 110–11. It presumptively provides that a state’s treaties will automatically extend to any new territory that becomes part of the state. See Gary Born and Jonathan W. Lim, ‘Sanum v. Laos (Part I): The Singapore Court of Appeal Affirms Tribunal’s Jurisdiction under the PRC–Laos BIT’, Kluwer Arbitration Blog (10 November 2016), https://bit.ly /43qU1YE. Judgment of the Court of Appeal of Singapore [2016] SGCA 57, Sanum Investments v. Government of the Lao People’s Democratic Republic, Judgment, 29 September 2016, para. 49. Ibid., para. 104. Ibid., para. 106.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

437

The Court of Appeal found that while ‘states may, by agreement, elect to derogate inter se from customary international law’ when entering into a treaty,131 on the facts there was insufficient pre-critical date evidence to ‘otherwise establish’ that the China–Laos BIT was not intended to apply to Macau, contrary to the operation of the moving treaty frontier rule.132 The Court accordingly reversed the High Court’s ruling and restored the tribunal’s award.133 The Chinese government described the judgment of the Court of Appeal as ‘incorrect’,134 arguing that the territorial application of the BIT depended on the contracting parties’ intention and that the Singaporean Court of Appeal had failed to give appropriate determinative weight to the diplomatic letters in which China and Laos had confirmed the non-applicability of their BIT. China has since reiterated in diplomatic notes that the China–Laos BIT does not apply to Macau.135 In sum, China is of the opinion that its investment treaties, where they are silent on this point, do not apply to SARs as these can conclude their own agreements.136 China is also arguably gaining confidence in defending its views on the international plane: where it did not provide a response to the Tza Yap Shum v. Peru award in 2009, there was no such reticence in the Sanum v. Laos proceedings in 2014. In its response in this case, China did not support its national but rather chose the side of the respondent state. The correctness of these adjudicatory decisions could be debated, not solely because the states parties to the respective BITs exchanged diplomatic notes after the case had been decided by the arbitral tribunal but also because the relevant BITs were not mentioned in the notification to the UN Secretary-General listing the treaties that would be applicable to the SARs. This list was available to the investors long before the facts took place. 21.3.2.3 Temporal Application of Investment Treaties China has on occasion signed successive BITs with a single country; this usually occurs where the initial BIT is more restrictive in scope. For example, China has entered into two BITs with the Belgium–Luxembourg Economic Union (BLEU): the first was signed in 1984, entering into force in 1986 (the 1986 China–BLEU BIT), and the second, replacing the former, was signed in 2005, entering into force in 2009 (the 2009 China–BLEU BIT). Both the 1986 China–BLEU BIT and the 2009 China–BLEU BIT provide for the substantive protection of foreign investment, but they contain different dispute settlement provisions. Under the 1986 China–BLEU BIT, only disputes concerning the amount of compensation for expropriation, nationalization or other similar measures can be submitted to international arbitration. By comparison, the 2009 China–BLEU BIT renders any legal disputes arbitrable. In Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China, Limited v. Belgium (Ping An v. Belgium), two insurance companies relied on these BITs as the basis for their claim. The dispute arose from the companies’ investment in the Belgian-Dutch financial institution Fortis Group. In order to rescue Fortis Group during the 2008 financial crisis, the Belgian government had implemented a series of measures that in effect nationalized the Belgian subsidiary of the Fortis Group. These measures did not resolve Fortis 131 132 133 134

135 136

Ibid., para. 77. Ibid., para. 99. Ibid., para. 122. Ministry of Foreign Affairs, Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on 21 October 2016, www.mfa.gov.cn/ce/cegv//eng/fyrth/t1407743.htm. Ibid. Ibid.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

438

Freya Baetens and Sheng Zhang

Group’s liquidity crisis. In 2009, Belgium sold the Belgian subsidiary to a French bank, which resulted in the claimants alleging significant loss. In October 2008, the claimants wrote to the Belgian government to express their dissatisfaction over the measures taken to rescue the Fortis Group.137 In October 2009, a second letter was sent to the Belgian government, describing the October 2008 letter as a notice of dispute pursuant to the 1986 China–BLEU BIT.138 The memorandum attached to the second letter set out claims for alleged breaches of the fair and equitable treatment standard and the protection against unlawful expropriation.139 The 2009 China–BLEU BIT entered into force two months after the second letter was sent. In July 2012, referring to the letters of 2008 and 2009, the claimants sent a third letter, claiming that the 2009 letter constituted a notice of dispute according to the 2009 China–BLEU BIT.140 The claimants instituted an ICSID arbitration in September 2012, filed under the 2009 China–BLEU BIT, while the merits of the claim were based on the substantive obligations under the 1986 China–BLEU BIT, customary international law and general principles of law relating to unjust enrichment.141 With respect to the relationship between the two treaties, the 2009 China–BLEU BIT at Article 10(2) ‘Transition’ provides: The present Agreement shall apply to all investments made by investors of either Contracting Party in the territory of the other Contracting Party, whether made before or after the entry into force of this Agreement, but shall not apply to any dispute or any claim concerning an investment which was already under judicial or arbitral process before its entry into force. Such disputes and claims shall continue to be settled according to the provisions of the Agreement of 1984 mentioned in paragraph 1 of this Article.

The Belgian government raised five objections to the tribunal’s jurisdiction, with the tribunal finding in favour of Belgium on the basis of the first: that there was absence of jurisdiction ratione temporis as the dispute crystallized while the 1986 China–BLEU BIT was still in force.142 The tribunal also considered Article 8(1) of the 2009 China–BLEU BIT, which reads: ‘When a legal dispute arises between an investor of one Contracting Party and the other Contracting Party, either party to the dispute shall notify the other party to the dispute in writing.’ The tribunal held that this provision referred to future disputes, not disputes that had already arisen.143 While Article 10(2) of the 2009 BIT prevents the BIT’s application to disputes already under a pending judicial or arbitral process before its entry into force, the tribunal rejected the claimants’ argument that this Article supports the ‘inference that pre-2009 disputes which were notified under the earlier BIT but not under judicial or arbitral process must come within the scope of the 2009 BIT’.144 The intention of Article 10(2) to replace the earlier BIT did not mean that disputes that have been ‘notified but not matured’ into judicial or arbitral proceedings under the 1986 BIT would be covered by the 2009 BIT.145 Another obstacle with this inference was that ‘it would have the effect of allowing the use of the much wider dispute resolution provisions of the 137

138 139 140 141 142 143 144 145

Ping An Life Insurance Company, Limited and Ping An Insurance (Group) Company, Limited v. The Government of Belgium, ICSID Case No. ARB/12/29, Award, 30 April 2015, para. 106. Ibid., para. 108. Ibid., para. 110. Ibid., para. 111. Ibid., para. 118. Ibid., para. 130. Ibid., paras. 224–5. Ibid., para. 227. Ibid., para. 228.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

439

2009 BIT to bring claims already notified under the 1986 BIT’146 without any express consent by the contracting parties.147 In sum, though the tribunal acknowledged the risk that certain disputes, including the one at question in this case, ‘might fall into some “black hole” or “arbitration gap” between the two BITs’,148 the tribunal nevertheless upheld the ratione temporis objection raised by Belgium and dismissed the claimants’ case. The correctness of this decision has been debated. Although some have defended the tribunal’s reasoning,149 others are of the opinion that the tribunal improperly interpreted each subordinating clause in Article 10(2) of the 2009 BIT in isolation, leading to incorrect conclusions on their meaning.150 No evidence has been presented that the states parties indeed intended for any disputes to fall in such an ‘arbitration gap’ – if anything, the tribunal’s interpretation could be perceived as running counter to the effectivity principle, which entails that the authors of a treaty have a presumed interest in making a treaty provision effective rather than ineffective.151 Officially, China has not taken any position on the matter. 21.3.2.4 Narrow Scope of ISDS Clauses As mentioned in Section 21.3.1.3, ISDS clauses in China’s early BITs have a narrow scope. Moreover, upon its accession to the ICSID Convention, China submitted a notification indicating that it consented to submit itself to the jurisdiction of an ICSID arbitral tribunal only in cases where the dispute concerns compensation resulting from expropriation and nationalization.152 The narrow scope created by China’s restrictive attitude to jurisdiction was interpreted in the cases of Tza Yap Shum v. Peru, Sanum v. Laos and Beijing Shougang and others v. Mongolia. As already mentioned in Section 21.3.2.2, in Tza Yap Shum v. Peru, Mr Tza Yap Shum commenced ICSID arbitration proceedings against Peru under the 1994 China–Peru BIT. Peru challenged the tribunal’s jurisdiction by relying on the narrow scope of the ISDS clause. However, the tribunal upheld its jurisdiction, finding that a good faith interpretation of the words ‘involving the amount of compensation for expropriation’ in Article 8 of the China–Peru BIT merely required ‘that the dispute should “include” the determination of an amount of compensation and not that the disputes should be restricted to this element’.153 It considered that concluding otherwise would undermine the arbitration clause, which precluded the possibility of arbitration if the investor had already submitted other matters to a competent court of the host state.154 Peru applied to the ICSID for an annulment of this decision. The ad hoc committee found in favour of the investor, concluding that the tribunal did not exceed its power by 146 147 148 149

150 151

152

153

154

Ibid., para. 229. Ibid., para. 230. Ibid., para. 207. Eric De Brabandere and Saskia Lemeire, ‘The Jurisdiction Ratione Temporis of International Investment Tribunals: Some Observations on the Decision of the Tribunal in Ping An v Belgium’ (2016) 2 b-Arbitra – Belgian Review of Arbitration, 139–49. Qing Ren, ‘Ping An v Belgium: Temporal Jurisdiction of Successive BITs’ (2016) 31(1) ICSID Review, 129–37. I. Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed. (Manchester: Manchester University Press, 1984); Ce´line Braumann and August Reinisch, ‘Effet Utile’ in Joseph Klingler, Yuri Parkhomenko and Constantinos Salonidis (eds.), Between the Lines of the Vienna Convention? Canons and Other Principles of Interpretation in Public International Law, ch. 4 (Alphen aan den Rijn: Kluwer Law International, 2019). China’s Notifications Concerning a Class or Classes of Disputes Which the Contracting State Would or Would Not Consider Submitting to the Jurisdiction of the Centre (Article 25(4)), https://icsid.worldbank.org/about/memberstates/database-of-member-states/member-state-details?state=ST30. Sen˜or Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Jurisdiction and Competence, 19 June 2009, para. 151. Dilini Pathirana, supra note 63.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

440

Freya Baetens and Sheng Zhang

interpreting Article 8 of the China–Peru BIT broadly so that issues generally involved in an expropriation were deemed arbitrable.155 The tribunal interpreted similar wording broadly in Sanum v. Laos (I). It held that a term such as ‘involving’ is wider than one such as ‘limited to’, which could have been used if the states parties had intended to limit the tribunal’s jurisdiction to disputes concerning compensation amounts only. In light of the other provisions of the treaty, this wider interpretation of Article 8(3) of the China–Laos BIT seems more consistent.156 The finding was overturned by the Singapore High Court, ruling that Article 8(3) of the China–Laos BIT applied only to disputes over the amount of compensation for expropriation, not other substantive issues pertaining to expropriation.157 Sanum appealed to the Court of Appeal of the Supreme Court of Singapore, which upheld the arbitration award.158 The Tribunal in Beijing Shougang and others v. Mongolia offered a different interpretation of similar wording in the 1991 China–Mongolia BIT. In this case, three Chinese investors challenged Mongolia’s decision to cancel their licence in an iron ore mine located in a north-central province of Mongolia. Article 8(3) of the China–Mongolia BIT provided that ‘a dispute involving the amount of compensation for expropriation’ may be submitted to international arbitration if it could not be resolved within six months following a resort to negotiations. The investors maintained that the jurisdiction of the tribunal under Article 8(3) was not limited to an assessment of compensation against expropriation: rather, this Article granted the tribunal jurisdiction to determine the existence of an expropriation, its lawfulness and any compensation due. The tribunal did not accept this argument. Considering the ordinary meaning of Article 8(3), the tribunal found that its jurisdiction was limited to disputes on whether the amount of compensation owed was ‘equivalent to the value of the expropriated investments at the time when expropriation is proclaimed’.159 Unsatisfied, the claimants sought to set aside this award on jurisdiction at the US District Court for the Southern District of New York; however, their claim was rejected.160 The District Court’s decision was upheld by the US Court of Appeals for the Second Circuit, which concluded that ‘that the arbitrators did not exceed their powers in construing the scope of the arbitral agreement, and thus that the Award is not subject to vacatur under the New York Convention’.161 In sum, the jurisprudence demonstrates how diverging interpretations of identical clauses in Chinese BITs have led tribunals to reach diametrically opposite conclusions, to the detriment of stability and predictability.162 While the tribunals in Tza Yap Shum v. Peru and Beijing Shougang and others v. Mongolia both affirmed that they interpreted the relevant BITs in accordance with Article 31 of the VCLT, they prioritized different elements of the provision, thereby affecting its overall interpretation. The tribunal in Tza Yap Shum v. Peru strictly relied 155

156

157

158

159 160

161

162

Sen˜or Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Decision on Annulment, 12 February 2015, para. 181. Sanum Investments Limited v. Lao People’s Democratic Republic, UNCITRAL, PCA Case No. 2013-13, Award on Jurisdiction, 13 December 2013, para. 329. High Court of the Republic of Singapore [2015] SGHC 15, Government of the Lao People’s Democratic Republic v. Sanum Investments, Judgment, 20 January 2015, para. 121. Judgment of the Court of Appeal of Singapore [2016] SGCA 57, Sanum Investments v. Government of the Lao People’s Democratic Republic, Judgment, 29 September 2016, paras. 148–52. Beijing Shougang and others v. Mongolia, PCA Case No. 2010-20, Award, 30 June 2017, para. 442. United State District Court Southern District of New York, Beijing Shougang Mining v. Mongolia, Opinion & Order, 17 Civ.7436 (ER), 19 November 2019. US Court of Appeal for the Second Circuit, Beijing Shougang Mining v. Mongolia, August Term 2020, https://bit.ly /3Q1O3e1. Yuwen Li and Cheng Bian, ‘China’s Stance on Investor–State Dispute Settlement: Evolution, Challenges, and Reform Options’ (2020) 67(4) Netherlands International Law Review, 503–51, 505.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

441

on the ordinary meaning of the term ‘involving’ to reach a broad interpretation, while the tribunal in Beijing Shougang and others v. Mongolia prioritized the overall BIT as context, as well as its object and purpose, in order to (perhaps counter-intuitively) arrive at a narrow reading.163 This interpretative confusion is in part owing to China’s originally highly restrictive approach towards the types of claim that could be decided through arbitration. This problem should gradually be alleviated as China’s new BITs with more extensive ISDS clauses enter into force, although it has not (yet) withdrawn its notification under the ICSID Convention. 21.3.2.5 Interpretation of Indirect Expropriation Clauses Almost none of China’s BITs contain detailed provisions addressing indirect expropriation. For example, Article 4(1) of the China–Peru BIT merely provides that ‘[n]either Contracting Party shall expropriate, nationalize or take similar measures (hereinafter referred to as “expropriation”) against investments of investors of the other Contracting Party in its territory’. Where questions of indirect expropriation arise, tribunals are called upon to decide whether such provision covers all types of expropriation, even if not expressly mentioned in the treaty. In the case of Tza Yap Shum v. Peru, for example, the tribunal found that the interim measures taken by Peru’s national tax authority were arbitrary in nature and constituted indirect expropriation:164 they significantly interfered with Mr Tza’s investment and were ineffective, and Mr Tza was not offered any form of effective due process.165 The difficulties with not explicitly accounting for indirect expropriation were also discussed in the case of Zhongshan Fucheng v. Nigeria. This case involved a dispute arising out of a joint venture agreement between a subsidiary of Zhongshan Fucheng and the Ogun State of Nigeria to operate and manage the Ogun Guangdong FTZ located in Ogun State. However, Ogun State terminated the concession agreement and evicted Zhangshan Fucheng from the FTZ in 2016. The tribunal held that these measures amounted to an expropriation. Citing the award in Metalclad v. Mexico, the tribunal noted that indirect actions amount to expropriations where the measures have ‘the intended effect of enabling the State’ to seize private property.166 Nigeria provided no evidence that the expropriation was in the public interest; further, the expropriation was effected in breach of domestic legal procedure. Additionally, the measures appeared to be discriminatory and no fair compensation was paid.167 In sum, tribunals have consistently interpreted the term ‘expropriation’ to cover both direct and indirect expropriation, even where no such distinction was made explicit in the treaty.168 However, the legal reasoning routes taken to arrive at such a conclusion differed. The tribunal in Zhongshan Fucheng v. Nigeria found that the measures taken by Nigeria amounted to indirect expropriation on the basis of four characteristics: public interest, domestic legal procedure, discrimination and provision of fair compensation. By comparison, the tribunal in Tza Yap Shum v. Peru focussed solely on the ex post effect of the government measures. 163 164

165

166 167 168

Ibid., at 513. Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6, Award, 7 July 2011, paras. 281–5. See also Wei Shen, ‘Tza Yap Shum v. Peru’ (2014) 108(2) American Journal of International Law, 315–20. Kenneth Juan Figueroa, Case Report: Tza Yap Shum v. Peru, ICSID Case No. ARB/07/6, Award, International Arbitration Case Law (n.d.), www.italaw.com/sites/default/files/case-documents/ita0882.pdf. Zhongshan Fucheng v. Nigeria, Award, 26 March 2021, para. 131. Ibid., para. 131. Norah Gallagher and Wenhua Shan, Chinese Investment Treaties: Policies and Practice (Oxford: Oxford University Press, 2009), 262.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

442

Freya Baetens and Sheng Zhang 21.4 CHINA’S APPROACH TOWARDS INTERNATIONAL INVESTMENT LAW REFORM

21.4.1 China’s Position vis-a`-vis Substantive Reform In developing its IIA programme, China has aimed to balance existing international standards with its own political and economic preferences.169 Simultaneously, China attaches great significance to the concept of state sovereignty, viewing it as the foundation of its relations with other countries.170 Most BITs concluded by China between 1988 and 1993 include a reference in their preamble to the principles of mutual respect for sovereignty and equality, and refer explicitly to the creation of mutual benefits as a treaty objective. Similar references can be found in more recent BITs; for example, the preambles of the 2013 China–Tanzania BIT and the 2011 China–Uzbekistan BIT specify that they are intended to respect the economic sovereignty of the contracting parties. Such references may guide investment tribunals in their interpretative process, by indicating the BIT’s object and purpose. Further, in its IIA negotiations, China avoids discussing issues it perceives as part of sovereign political decision-making, refusing, for example, to consider human rights standards during its FTA negotiations with Australia.171 China is willing, albeit tentatively,172 to include provisions on environmental and labour protection in its investment treaties, but it insists that the specific protection standards should match the respective levels of economic development of the parties concerned.173 In other words, the Chinese position is that countries with lower levels of economic development should be granted more flexibility vis-a`-vis environmental and labour protection. China itself is the beneficiary of such flexible arrangements under the Regional Comprehensive Economic Partnership (RCEP) Agreement, aimed to accord least-developed countries special and differential treatment, and to address the needs of both developing and least-developed countries through economic and technological cooperation.174 China has been open to accepting EU and US reform proposals in the form of modified versions of international investment standards. The investment promotion and protection provisions in China’s recent IIAs are similar to those in the 1994 North American Free Trade Agreement (NAFTA)175 (albeit this treaty has in the meantime been superseded by the Canada–US–Mexico Agreement (CUSMA)176 and the 2018 Comprehensive and Progressive Trans-Pacific Partnership Agreement (CPTPP)).177 For example, the minimum standard of treatment under Article 8.5 of the China–Mauritius FTA is identical to its equivalent under Article 9.6 of the CPTPP. However, China increasingly aims to insert into its IIAs some measure of consideration of its own political

169

170 171

172 173 174

175 176 177

See Julien Chaisse and Matthieu Burnay, ‘Introduction – CAI’s Contribution to International Investment Law: European, Chinese, and Global Perspectives’ (2022) 23 Journal of World Investment and Trade, 497, 504. Hanqin Xue, supra note 2, at 68–94. Jadranka Petrovic and Benjamin Grunberg, ‘Intersecting Trade, Politics and Human Rights: The Negotiation Phase of the Australia–China Free Trade Agreement’ (2017) 51(1) Journal of World Trade, 67–104. Otteburn and Marx, supra note 16, at 609. Hanqin Xue, supra note 2, at 144–5. ‘The Leading Official of the Department of International Trade and Economic Affairs of MOFCOM Expounded on the Regional Comprehensive Economic Partnership (RCEP) Agreement (I)’, Ministry of Commerce (16 November 2020), http://english.mofcom.gov.cn/article/newsrelease/policyreleasing/202011/20201103017259.shtml. North American Free Trade Agreement, 1867 UNTS 14. Canada–US–Mexico Agreement, https://bit.ly/3rs8HcQ. CPTPP, https://treaties.un.org/Pages/showDetails.aspx?objid=080000028056a333&clang=_en.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

443

system and economic realities.178 This is illustrated by the 2012 China–Canada BIT, which provides that an investor–state arbitral tribunal cannot decide whether a respondent state’s prudential measures defence in the context of a financial sector dispute is valid.179 Rather, the contracting parties must submit a joint report; if they fail to do so, an interstate arbitral tribunal has to decide this issue.180 By comparison, Canada’s 2004 Model BIT and the 1994 NAFTA allow investor–state tribunals to decide this issue themselves, if there is no joint report from the contracting parties and no decision from an interstate arbitration panel. In sum, China is highly reluctant to accept any obligations to protect societal values (in particular, environment and labour protection) through IIAs, believing that these issues should rather be addressed through specialized international instruments and relevant organizations.181 It is willing, however, to consider EU and US proposals aimed at clarifying existing international investment standards and has adopted some (modest) innovations in its own IIAs. 21.4.2 China’s Position vis-a`-vis Procedural Reform China has historically been wary of ISDS, as demonstrated by the highly restricted scope of the dispute settlement provisions in its early BITs. Such reticence has been overcome in its more recent BITs – but certain points of concern have remained. Such concerns relate to the absence of an error-correcting mechanism, which China views as affecting the stability and predictability of arbitral awards; the professionalism and independence of arbitrators; the existence of third-party funding; and the long duration and high cost of arbitration.182 Accordingly, China actively participates in the ISDS reform discussions held by United Nations Commission on International Trade Law (UNCITRAL) Working Group III, where it has put forward three proposals. First, China supports the use of mediation and conciliation to resolve disputes, as favoured within traditional Chinese culture. Compared to arbitration, these mechanisms might help the parties to achieve a mutually beneficial result, while avoiding lengthy procedures and high costs.183 Some Chinese BITs already include references to mediation and conciliation. For instance, the 2013 China–Tanzania BIT states: ‘Any legal dispute between an investor of one Contracting Party and the other Contracting Party in connection with an investment in the territory of the other Contracting Party shall, as far as possible, be settled amicably through negotiations between the parties to the dispute, including conciliation procedures.’184 To date (so far as is publicly known), one ICSID conciliation process involving Chinese investors has arisen. This related to a dispute concerning a gold mine lease between Barrick (Niugini)

178

179 180

181

182

183 184

Wenhua Shan and Hongrui Chen, ‘China–US BIT Negotiation and the Emerging Chinese BIT 4.0?’ in Chin Leng Lim (ed.), Alternative Visions of the International Law on Foreign Investment: Essays in Honour of Muthucumaraswamy Sornarajah, ch. 9 (Cambridge: Cambridge University Press, 2016). Article 20(2) of the 2012 China–Canada BIT. ‘Interpretation of China–Canada Bilateral Investment Protection Agreement by an Official from the Department of Treaty and Law of MOFCOM’, Ministry of Commerce (13 September 2012), http://english.mofcom.gov.cn/article/ policyrelease/Cocoon/201209/20120908359187.shtml, see also Wenhua Shan and Hongrui Chen, supra note 178, at 247. Wenhua Shan and Hongrui Chen, supra note 178, at 244; for further analysis, see Otteburn and Marx, supra note 16, at 609–13. UNCITRAL, Possible Reform of Investor–State Dispute Settlement (ISDS): Submission from the Government of China, A/CN.9/WG.III/WP.177, 19 July 2019, https://undocs.org/en/A/CN.9/WG.III/WP.177. Ibid. Article 13(1) of the 2013 China–Tanzania BIT.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

444

Freya Baetens and Sheng Zhang

Limited (a joint venture of a Chinese and a Canadian investor) and Papua New Guinea. The conciliation proceedings were concluded successfully and a report was issued in July 2020.185 China has also put forward mediation and conciliation as dispute resolution tools in the context of its Belt and Road Initiative (BRI) projects.186 For example, in January 2018, the Leading Group for Deepening Overall Reform headed by President Xi Jinping approved guidelines to establish a procedure to manage the resolution of investment and trade disputes arising from BRI-related issues.187 As a result, the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) was set up by the China International Chamber of Commerce in 2020.188 The ICDPASO provides diversified dispute resolution mechanisms, including dispute prevention, commercial mediation, commercial arbitration and investment arbitration.189 It also tries to ensure adequate representation of the Global South in international dispute settlement by adding a significant number of developing country nationals to its roster of mediators and conciliators.190 Cases are not publicly available, however, so it is unclear whether and, if so, how often this system is used. China has sought to further promote alternative dispute resolution by establishing a National Complaint Mechanism to detect and resolve disputes with foreign investors. Under the FIL, as further explained in the Rules on Handling Complaints of Foreign-Invested Enterprises issued by China’s Ministry of Commerce, a foreign-invested enterprise may submit an application to this mechanism if it deems that its legitimate rights have been infringed by the administrative acts of a government department.191 This system may also be used to report issues concerning the investment environment more broadly and to suggest improvements to relevant policies and measures.192 There is no appeal mechanism, and cases are not publicly available so it is unclear whether and, if so, how often this system is used.193 In some circumstances, mediation can even be conducted during arbitral proceedings, a combination known as the ‘Chinese experience’,194 facilitated through the rules of Chinese arbitration institutions.195 For instance, the China International Economic and Trade Arbitration Commission (CIETAC) allows the arbitral tribunal to conduct conciliation attempts during the arbitration proceedings upon the consent of the disputing parties;196 the requirement 185

186

187 188

189

190

191

192 193

194

195

196

Barrick (Niugini) Limited v. Independent State of Papua New Guinea, ICSID Case No. CONC/20/1, https://icsid .worldbank.org/cases/case-database/case-detail?CaseNo=CONC/20/1. Patrick M. Norton, ‘China’s Belt and Road Initiative: Challenges for Arbitration in Asia’ (2018) 13(2) University of Pennsylvania Asian Law Review, 72–101, 86. Zhang Yubin, ‘Process Eyed to Solve Belt, Road Disputes’, China Daily (24 January 2018). Yayezi Hao and Ignacio de la Rasilla, ‘China and International Adjudication – Picking Up Steam?’ (2021) 12(4) Journal of International Dispute Settlement, 637–68. Jian Zhang, ‘International Commercial Dispute Prevention and Settlement Organization: A Quick Overview’, China Justice Observer (15 October 2010), https://bit.ly/3Dgy8Rn. Ignacio de la Rasilla, ‘“Sharp Ears to Hear a Thunderclap”? The Rise of Mediation in the International Dispute Prevention and Settlement System of the Belt and Road Initiative’ (2021) 29(1) Asia Pacific Law Review, 167–88, www .tandfonline.com/doi/full/10.1080/10192557.2021.2013664. Article 26 of the FIL; ‘MOFCOM Order No. 3 of 2020 on Rules on Handling Complaints of Foreign-Invested Enterprises’, Ministry of Commerce (25 August 2020), http://english.mofcom.gov.cn/article/policyrelease/aaa/ 202008/20200802997073.shtml. Ibid. Sofia Baruzzi, ‘China’s New Mechanism to Handle Complaints by Foreign-Invested Entities’, China Briefing (9 October 2020), www.china-briefing.com/news/china-new-mechanism-to-handle-complaints-by-foreign-investedentities/. Christine Kang, ‘Oriental Experience of Combining Arbitration with Conciliation: New Development of CIETAC and Chinese Judicial Practice’ (2017) 40(3) Fordham International Law Journal, 919–51, 920. See Guiguo Wang and Xiaoli He, ‘Mediation and International Investment: A Chinese Perspective’ (2012) 65(1) Maine Law Review, 215–36. Article 47 of the CIETAC Arbitration Rules. See Guiguo Wang and Xiaoli He, supra note 195, at 225.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

445

of consent avoids the conflicts of interest that would otherwise arise with the combination of these processes. Reportedly almost 50 per cent of arbitration cases make use of conciliation by the tribunals.197 The mechanism is also referred to in the International Investment Arbitration Rules adopted by CIETAC in 2017.198 Further, the China International Commercial Court has established a ‘one stop dispute resolution platform’ that institutionally integrates litigation, arbitration and mediation into one unified platform;199 however, no further information on how this mechanism operates is available. Second, China supports proposals to assess the feasibility of an appeal mechanism in ISDS, as this might allow for the correction of errors and strengthen the disputing parties’ expectations in terms of a jurisprudence constante.200 Such a mechanism has been envisaged in some Chinese FTAs, including those with Australia and Mauritius. For example, Article 9.23 of the China–Australia FTA requires the contracting parties to commence negotiations with a view to establishing an appellate mechanism to review arbitral awards within three years of its entry into force. The scope of the review mechanism is to be limited to questions of law. China also supports the establishment of a permanent appellate mechanism for investor–state disputes on a multilateral basis similar to the WTO dispute settlement mechanism.201 The Investment Court System proposed by the EU contains an appellate mechanism.202 However, unlike the EU, China insists that the right for disputing parties to each appoint an arbitrator – a basic feature of arbitration – should be maintained.203 This point of divergence between China and the EU may explain why the CAI does not include detailed provisions on ISDS. Instead, it provides only that the contracting parties agree to continue their negotiations with a view to negotiating an agreement on investment dispute settlement, which they will endeavour to complete within two years of the signature of the main agreement.204 Third, China argues that measures should be undertaken to ensure the transparency of investment arbitration proceedings and to guarantee the impartiality and independence of arbitrators. Information regarding third-party funding should be disclosed on a continuous basis, and any direct or indirect conflict of interests between arbitrators and third-party funders should be avoided.205 This is not yet current practice: UNCITRAL has only issued a draft on the topic and, in the recent revision of the ICSID Arbitration Rules, the Secretariat rejected the proposal for Rule 2(2)(d) to be revised so as to render the provision of information about the ownership and control of each disputing party mandatory. Moreover, China considers it necessary to strengthen the arbitration process through improvement of the arbitrator selection and disqualification processes in order to lower the occurrence of conflicts of interests.206 China appears to prefer addressing this issue through the joint work of ICSID and UNCITRAL. In

197 198 199

200 201 202

203 204 205 206

Kang, supra note 194. Article 43 ‘Combination of Conciliation with Arbitration’ of the CIETAC Arbitration Rules. Wenhua Shan and Yunya Feng, ‘The China International Commercial Court: Towards an Integrated Dispute Resolution System’ (2021) 29(1) Asia Pacific Law Review, 107–28, www.tandfonline.com/doi/abs/10.1080/10192557 .2021.2013661. UNCITRAL, supra note 182. Ibid. Freya Baetens, ‘The European Union’s Proposed Investment Court System: Addressing Criticisms of Investor–State Arbitration While Raising New Challenges’ (2016) 43(4) Legal Issues of Economic Integration, 367–84. UNCITRAL, supra note 182. Section IV of the CAI. UNCITRAL, supra note 182. Ibid.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

446

Freya Baetens and Sheng Zhang

particular, it favours adoption of the codes of conduct currently being developed by those two bodies. Its proposal to Working Group III suggests: Considering the public-law nature of the ISDS mechanism, arbitrators should have professional knowledge in the fields of international public law and international economic law, avoid potential conflicts of interest and prevent inequities that may be caused by their improperly practising concurrently as lawyers. Countries with differing cultural backgrounds often have different understandings of arbitrators’ conflicts of interest or issues, so it is necessary to further clarify the specific connotation of such conflicts. The proposed reform should also improve the rules for selection and disqualification of arbitrators to increase transparency and reasonableness.207

In sum, China mainly supports three procedural reforms: increased use of mediation and conciliation to resolve disputes; a feasibility assessment of an ISDS appeal mechanism; and improvements to the transparency of investment arbitration proceedings, guaranteeing the impartiality and independence of arbitrators. 21.4.3 China’s Commitment to Multilateralism Since 2013, China has promoted the BRI as a way of gradually influencing the current climate of global governance.208 To implement the BRI, the Asia Infrastructure Investment Bank was established to fund cross-border infrastructure projects for energy, transportation and slum upgrading.209 Given the diverse types of dispute that may arise in the context of the BRI, there is no ‘one size fits all’ dispute settlement mechanism.210 This may explain China’s pragmatic and fragmented approach: in addition to the many non-binding intergovernmental agreements concluded by China with BRI countries and some governmental organizations, the China International Commercial Court was established in 2018 to resolve relevant commercial disputes.211 China intends to use its network of investment treaties to protect its outward FDI in BRI countries. However, a closer look at the current IIAs between China and BRI countries reveals that these treaties may not grant investors sufficient protection, particularly in terms of redress.212 Accordingly, China promoted the G20 Guiding Principles for Global Investment Policymaking at the Hangzhou Summit in 2016 and intends to seek amendment of its IIAs to reflect these principles.213 These guiding principles reflect the concrete efforts of G20 countries to develop an international or, at the very least, multilateral investment treaty regime. Although these principles are non-binding, they may serve as a guiding instrument for updating domestic FDI policies and negotiating BITs.214 207 208

209

210

211

212

213 214

Ibid. See generally Maria Adele Carrai, Jean-Christophe Defraigne and Jan Wouters (eds.), The Belt and Road Initiative and Global Governance (Cheltenham: Edward Elgar, 2020). OECD, China’s Belt and Road Initiative in the Global Trade, Investment and Finance Landscape (OECD Business and Finance Outlook 2018), 19, https://bit.ly/46LK238. James Crawford, ‘China and the Development of an International Dispute Resolution Mechanism for the Belt and Road Construction’ in Wenhua Shan, Sheng Zhang and Jinyuan Su (eds.), China and International Dispute Resolution in the Context of the ‘Belt and Road Initiative’, 11–22 (Cambridge: Cambridge University Press, 2021), 21–2. Sheng Zhang, ‘China’s International Commercial Court: Background, Obstacles and the Road Ahead’ (2020) 11(1) Journal of International Dispute Settlement, 150–74. See Anna Chuwen Dai, ‘The International Investment Agreement Network under the “One Belt One Road” Initiative’ (2017) 3 Transnational Dispute Management, www.transnational-dispute-management.com/article.asp? key=2474. OECD, Annex III: G20 Guiding Principles for Global Investment Policymaking, https://bit.ly/3ObHAM6. UNCTAD, World Investment Report 2017: Investment and the Digital Economy (Geneva: United Nations Publications), 118–19.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

447

China also engages with multilateral endeavours beyond the BRI countries. After actively participating in the negotiations, it ratified the RCEP Agreement, which entered into force on 1 January 2022. China signed the International Energy Charter Declaration in 2015 and is exploring the possibility of joining the Energy Charter Treaty (ECT).215 In September 2021, China submitted its formal application to join the CPTPP,216 which sets higher entry barriers than the RCEP, in particular in the areas of SOEs, cross-border data flows and labour rights.217 However, a careful analysis reveals that the gap between the CPTPP rules and China’s current international economic law obligations is much narrower than expected.218 In recent years, China has taken concrete steps to enhance investment liberalization, the business environment and the protection of intellectual property rights.219 Following its accession to the CPTPP, China aims to promote domestic political and economic reforms, as it enters a so-called deep water zone (referring to the increasingly complex development challenges it will be facing),220 and it will be more centrally integrated into the global trade and investment regime. Within the WTO, China has played a role in preparing a multilateral legal framework for investment facilitation, as part of a joint effort by more than seventy WTO members.221 In December 2021, 112 WTO members, including China, co-sponsored a Joint Statement on Investment Facilitation for Development (IFD), in which they took the Consolidated Document by the Coordinator as the basis for their ongoing negotiations and confirm their aim to conclude the text negotiations by the end of 2022.222 On 17 December 2022, it was announced that the WTO members had concluded their IFD negotiations, but no text was made available at that point.223 It is anticipated that China will continue to promote multilateralism and investment liberalization within the WTO.224 21.5 CONCLUSION

China’s treaty and case law practice demonstrates its efforts to not merely participate in global economic governance but also play an influential role in the development of international investment law. Generally, China maintains a flexible approach to IIA negotiations, as illustrated by its habit of accepting its negotiating partner’s model BIT as the starting point, which it tries to amend during the negotiations to reflect its own political and economic preferences. 215

216

217

218

219 220

221

222 223

224

ECT, 2080 UNTS 100. See Hao Zhang and Kaho Yu, ‘Chinese Perspective on the Modernization of the Energy Charter Treaty’, Energy Charter Secretary (2019), https://bit.ly/3OeHwuX. ‘China Officially Applies to Join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)’, Ministry of Commerce (9 September 20210, http://english.mofcom.gov.cn/article/newsrelease/significant news/202109/20210903201113.shtml. Zoey Zhang, ‘Joining CPTPP: What China Needs to Do and Comparison with the RCEP’, China Briefing (13 October 2021), https://bit.ly/44JNzNv. Henry Gao and Weihuan Zhou, ‘China’s Entry to CPTPP Trade Pact Is Closer Than You Think’, NIKKEI (20 September 2021), https://asia.nikkei.com/Opinion/China-s-entry-to-CPTPP-trade-pact-is-closer-than-you-think. Zoey Zhang, supra note 217. China’s official position and preparations for the CPTPP can be found in a report of China Daily (https://bit.ly /3XT4j2x); National People’s Congress of China, China’s Reform and Opening-Up (2018), 4, www.npc.gov.cn /zgrdw/npc/zgrdzz/site1/20190403/00016cd0abbd1e0e6af60a.pdf. Alan Wolff, ‘China in the WTO’, Peterson Institute for International Economics (27 April 2021), www.piie.com/sites/ default/files/documents/wolff2021-04-27.pdf. WTO, Investment Facilitation for Development, www.wto.org/english/tratop_e/invfac_public_e/invfac_e.htm. ‘Roundup: WTO Members Substantially Conclude Text Negotiations on IFD’, Xinhua (18 December 2022), https:// english.news.cn/20221218/de1ddf6d8cf2490292d2596ac896953f/c.html. The State Council Information Office of the People’s Republic of China, ‘China and the World in a New Era’ (27 September 2019), https://english.www.gov.cn/archive/whitepaper/201909/27/content_WS5d8d80f9c6d0bcf8c4c142ef .html.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

448

Freya Baetens and Sheng Zhang

China has further opened up its markets through enacting domestic legal reform, as exemplified by its adoption of the FIL, with the aim of providing a unified regime on the entry, promotion, protection and management of foreign investment. Two main points of contention that have come up in cases where China was the respondent state – the relationship between domestic and arbitral proceedings, and temporal limitations on actions – might well arise again in future proceedings owing to the structure and wording of Chinese BITs and the – at times divergent – interpretations given to such clauses by investment tribunals. Despite China’s increased activities in both inward and outward foreign investment, and its expanded web of IIAs, relatively few cases have been brought against it. Several reasons for this have been identified. First, ISDS clauses in earlier Chinese BITs limit investors’ access to investment arbitration to cases involving compensation for expropriation. Second, most Chinese BITs impose an obligation upon foreign investors to go through the domestic administrative review process before initiating international arbitration. Third, legal obstacles may block the recognition and enforcement of investment arbitral awards in mainland China. Fourth, China prefers the amicable settlement of disputes, so arbitration and litigation may be perceived as challenges to harmonic relationships. Divergent interpretations can also be found in the cases where Chinese investors have availed themselves of ISDS mechanisms, including on the status of SOEs as claimants, the application of Chinese BITs to SARs, the temporal application of treaties, the scope of ISDS clauses, and indirect expropriation clauses. In terms of substantive investment law reform, China is highly reluctant to accept any obligations to protect societal values such as environment and labour protection in its IIAs, but it has shown willingness to consider EU and US proposals aimed at clarifying existing international investment protection standards. China is promoting several procedural reforms: increased use of mediation and conciliation; a feasibility assessment of an ISDS appeal mechanism; and improved transparency of investment arbitration proceedings combined with enhanced guarantees concerning the impartiality and independence of arbitrators (while firmly maintaining the right of each party to the dispute to freely select its own arbitrator). Finally, China is signalling its commitment to multilateralism through its promotion of the BRI and its engagement with multilateral endeavours beyond the BRI countries, such as the RCEP, the ECT framework, the CPTPP and the WTO. With more uncertainties looming over the global economy, China’s commitment to further promoting investment liberalization225 is helping to build foreign investors’ confidence in its economy and to maintain the stability of the international investment law regime. Nonetheless, it needs to take further steps. Given that many Chinese BITs currently in force contain only relatively vague protection provisions and limited access to ISDS,226 China ought to renegotiate or replace these treaties to effectively protect cross-border investment flows and to deal with potential investment disputes.227 Meanwhile, reforms of the domestic legal regime need to be undertaken to ensure that China’s commitment to multilateralism is adequately reflected. For example, China should enact specific legislation to ensure that ICSID awards (and other arbitral awards) are fully recognized and enforced.

225

226

227

‘President Xi Jinping’s Message to the Davos Agenda in Full, World Economic Forum (17 January 2022), www .weforum.org/agenda/2022/01/address-chinese-president-xi-jinping-2022-world-economic-forum-virtual-session/. Shu Zhang, ‘China’s Approach in Drafting the Investor–State Arbitration Clause: A Review from the “Belt and Road” Regions’ Perspective’ (2017) 5(1) Chinese Journal of Comparative Law, 79–109, 88. Vivienne Bath, ‘China’s Role in the Development of. International Investment Law – From Bystander to Participant’ (2020) 15(2) Asian Journal of WTO and International Health Law and Policy, 359–97, 384–5.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

21 China: An Emerging Rule-Maker in Investment Law?

449

As the world’s second largest FDI recipient and the leading investing country in terms of FDI outflows,228 China has the potential to become a rule-maker in international investment law. In recent years, China has made clear attempts to fulfil this potential; whether these attempts will be successful will become clear in the next decades.

228

Kanishka Singh, ‘China Was Largest Recipient of FDI in 2020: Report’, Reuters (25 January 2021), www.reuters.com /article/us-china-economy-fdi-idUSKBN29T0TC.

https://doi.org/10.1017/9781009041133.023 Published online by Cambridge University Press

22 China and International Intellectual Property Law Striving to Become a Respected Player Jianqiang Nie

22.1 INTRODUCTION

Intellectual property rights (IPRs) originated from the Western modern industrial revolution. Under the impact of the Western industrial revolution, China became involved in the historical trend of world modernity.1 The Western powers first introduced intellectual property (IP) law into China in the late nineteenth century when the last Chinese imperial Qing Dynasty (1644– 1912) lost the Opium Wars to them. The Chinese learnt Western IP law ‘humiliatingly at gunpoint’.2 China encountered Western IP law the second time when the People’s Republic of China (PRC) adopted its policy of economic reform and opening-up to the world in 1978. The interrelationship between China and international IP law is full of challenges. The Western countries, in particular the United States and those of the European Union (EU), have been continuously accusing China of not respecting international IP law. The question of whether China honours international IP law is becoming much sharper in the twenty-first century, for this is an era of knowledge-based economy and globalization.3 Western countries like the United States and those of the EU are increasingly emphasizing that IP is an important strategic source if states want to strengthen their economic, scientific and technological power, and international competitiveness and to safeguard their national interests and economic security. They are consolidating further protection of IP through legal instruments of international law. The World Trade Organization’s (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is a typical example in this context. The United States and other Western developed countries, such as those in the EU, are paying close attention to the Chinese role in the international IP system. This chapter focusses on China’s evolving role and striving for respect within the international IP legal system. The chapter tries to answer the question of whether China is a respected player and a responsible stakeholder in the international IP system or a challenger to it. The answer will be important if we are to understand the interrelation between China and the international IP system and international law in general. The chapter is divided as follows: Section 22.2 focusses on conceptual issues, that is, the evolution of the Chinese conception of IPRs and their international law protection, from seeing IP protection as an instrumental tool to normatively recognizing it. Section 22.3 analyses China’s 1

2

3

Yu Jun, ‘Intellectual Property and the Origin of Chinese Modernity’ (2019) 8 Intellectual Property, 57 [余俊 : 《知识 产权与中国现代性的起源》, 《知识产权》2019年第8期, 第57页]. William P. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in China’s Civilization (Stanford, CA: Stanford University Press, 1995), 30. Jingwen Li, ‘Toward the Future: The General Trend of Economic and Technological Development in the 21st Century’ (2002) 2 Journal of Beijing University of Technology (Social Sciences Edition), 1 [李京文 : 《走向未来 : 21世 纪经济与科技发展大趋势》, 《北京工业大学学报 (社会科学版) 》2002年第3期, 第1页].

450 https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

451

role in the negotiation of IP treaties, demonstrating how China has changed from being a passive rule-taker to being an active negotiator and rule-shaper. Whether China has implemented its IP obligations in good faith will be discussed in Section 22.4. Section 22.5 concentrates on dispute resolution relating to international IP and expounds the Chinese attitude towards international IP disputes settlement. Section 22.6 provides some concluding remarks. 22.2 INTERNATIONAL IP PROTECTION IN CHINA: FROM INSTRUMENTAL TOOL TO NORMATIVE JUSTIFICATION

The Western concept of intellectual creation as private property to be protected by international treaties such as the Berne Convention and the Paris Convention, among others, is an alien one to traditional Chinese. It is also contradictory ideologically to the Chinese orthodox doctrines of a socialist legal system. In this context, when the PRC adopted its policy of economic reform and opening-up to the outside world in 1978, thus engaging more with the international IP system, it faced a clash of conceptions concerning IP protection. The Chinese conception of international IP protection has developed from seeing it as an instrumental tool to normatively justifying it. 22.2.1 Protection of IP as a Legal Instrument to Help China Realize Its Public Policy (1978–1992) Those in the West consider that intellectual creation should be protected as a private right. The IP concept developed across the world; it was introduced into China in the late nineteenth century by wars. The Western concept of IP clashes with the traditional Chinese perspective, which conceives of intellectual creation as a public good that should be shared and enjoyed by all.4 The PRC for the first several years (1950–66) protected intellectual creation in some ways.5 However, all the protection terminated owing to the lawless period of the Cultural Revolution (1966–76). In 1978, the PRC adopted a policy of economic reform and opening-up to the world. The PRC called for internal emancipation of thought6 and seeking truth from facts, as well as externally accepting international practices. In this context, IP protection was conceived of as a legal instrument that could help China realize its ‘four modernizations’ programme.7 Accordingly, in 1979 China signed the China–US Trade Agreement, Article VI of which contained IP provisions. China acceded to the Convention Establishing the World Intellectual Property Organization (WIPO) in 1980,8 the Paris Convention in 19849 and the Madrid Agreement in 1989.10 4

5

6

7

8

9

10

Confucian precepts emphasize duty consciousness (yi) and discourage profit (li), in particular private profit (si li). See Confucius, Lun Yu [The Analects], book 4, para. 16, translated by Arthur Waley (Beijing, 1999). Liu Jianwen (ed.), Modern Chinese Intellectual Property Law (Beijing, China Politics and Law Publishing House, 1993), 325–6 [刘剑文, 张里安 : 《现代中国知识产权法》, 北京 : 中国政法大学出版社1993年版, 第325-326页]. Peizhi Wang, ‘Emancipating the Mind: A Powerful Driving Force for China’s Reform and Opening Up’ (2009) 1 Theoretical Vision 22 [王培芝 : 《解放思想 : 中国改革开放的强大动力》, 《理论视野》2009年第1期, 第22页]. The ‘four modernizations’ are industrial modernization, agricultural modernization, national defence modernization, and scientific and technological modernization. WIPO Notification No. 110, Convention Establishing the World Intellectual Property Organization, Accession by the People’s Republic of China, www.wipo.int/treaties/en/notifications/convention/treaty_convention_110.html. Paris Notification No. 114, Paris Convention for the Protection of Industrial Property, Accession by the People’s Republic of China, www.wipo.int/treaties/en/notifications/paris/treaty_paris_114.html. Madrid (Marks) Notification No. 41, Madrid Agreement Concerning the International Registration of Marks, Accession by the People’s Republic of China, www.wipo.int/treaties/en/notifications/madrid-gp/treaty_ma drid_gp_41.html.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

452

Jianqiang Nie

The 1990s witnessed China’s speeding up of IP protection as China decided to adopt a ‘socialist market economy’ in 1992.11 China and the United States signed the Memorandum of Understanding on the Protection of Intellectual Property (1992 China–US IPRs MOU).12 China acceded to the Berne Convention13 and the Universal Copyright Convention in 1992,14 the Phonograms Convention15 and the Patent Cooperation Treaty (PCT) in 1993.16 China published its Provisions on the Implementation of the International Copyright Treaties (1992) and made the first modifications of its Patent Law (1992) and Trademark Law (1993). Taking an instrumental approach towards IP protection means that IP per se has no independent legal value. Its value depends on the public policies to be achieved via IP protection. For example, when on 23 June 1992 it was proposed to the National People’s Congress Standing Committee to join the Berne Convention, the Prime Minister Mr LI Peng stated: ‘[T]he State Council considers that accession to the two Conventions will be beneficial to the expansion of opening up, facilitation of the exchange and cooperation on the aspects of science and technologies, culture and economic and trade between China and foreign countries; beneficial also to international protection of Chinese works.’17 The same approach was taken towards accession to the Paris Convention.18 Chinese domestic IP legislations follow the same logic. Those IPRs that were considered ‘legal rights’ (fading quanli) under various laws, for instance, the Sino–Foreign Joint Venture Enterprise Law (1979), the General Provisions of Civil Law of China (1986), the Trademark Law (1982), the Patent Law (1984), the Copyright Law (1990), the Regulations for Computer Software Protection (1991), and the Anti-Unfair Competition Law (AUCL) (1993), were thought essential to economic, social and political development; accordingly, it was considered necessary to prescribe them under laws. In the instrumental approach, while those IP legislations provide for IPRs, the exercise of those rights must comply with the administration requirements. Enforcement of the rights largely depends on administrative authorities rather than judicial ones, and the emphasis is on administration of the rights rather than vindication of them.19 Overall, it is the government that controls the exercise and enforcement of IPRs. 11 12

13

14

15

16

17

18

19

The 14th National Congress of the Communist Party of China, Beijing, 12–19 October 1992. People’s Republic of China–United States of America: Memorandum of Understanding on the Protection of Intellectual Property, Done at Washington, 17 January 1992, 34 ILM 676 (1995). Berne Notification No. 140, Berne Convention for the Protection of Literary and Artistic Works, Accession by the People’s Republic of China, www.wipo.int/treaties/en/notifications/berne/treaty_berne_140.html. China acceded to the Universal Copyright Convention as revised on 24 July 1971, with Appendix Declaration relating to Article XVII and Resolution concerning Article XI, on 30 July 1992, en.unesco.org/countries/china/conventions. China acceded to the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Phonograms Convention) (Geneva, 1971) on 5 January 1993, wipolex.wipo.int/en/treaties/ parties/remarks/CN/18. PCT Notification No. 81, PCT, Accession by the People’s Republic of China, www.wipo.int/treaties/en/notifications/ pct/treaty_pct_81.html. The State Council submitted a proposal to consider and decide to join the two international conventions on IPRs. Song Muwen was entrusted by the State Council to explain the proposal [People’s Daily, 4th ed. (24 June 1992)] [《国务院提 请审议决定加入两个知识产权国际公约》 (宋木文受国务院委托就议案作了说明) 【《人民日报》1992年6月 24日第4版要闻], http://data.people.com.cn/rmrb/19920624/4. Huang Kunyi, Director of the State Patent Office, made a statement to the Standing Committee of the National People’s Congress proposing that China join the Paris Convention for the Protection of Industrial Property Rights [People’s Daily, 4th ed. (11 November 1984)] [《关于建议我国加入《保护工业产权巴黎公约》的说明》 (国家专 利局局长黄坤益向全国人大常委会作了说明) 【《人民日报》1984年11月11日第4版], http://data.people.com.cn /rmrb/19841111/4. Alford, To Steal a Book, supra note 2, at 94.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

453

The instrumental approach has its advantages. It is public policy-oriented and flexible, meaning that it can keep international protection of IP in China on the right path and respond quickly to the rapidly changing technological, economic and social environment. This is important as the Chinese process of opening-up and economic reform is full of risks and challenges, as well as uncertainties, ambiguities, inconsistencies and complexities.20 Nevertheless, the instrumental approach also has its limits. Without its own independent legal value, IP protection depends for its legitimacy and effectiveness on the context of public policies and a balance of various factors concerning IP protection. It is liable to be politicalized and arbitrary. With respect to international IP law, China might find it difficult to continue taking an instrumental approach. Most international IP protection instruments were designed by the Western countries. China cannot modify those instruments at will, except for reservations. Accordingly, China has to keep a delicate balance between international IP obligations and its domestic reform agenda, which is not easy. A critical legal issue is whether IP – and its international protection – should have its own independent normative value and enjoy its own legal status under Chinese legal theory. 22.2.2 Towards Normative Justification of IP Protection (1992–Present) Normative justification of IP protection simply means that IP should have its own independent legal value and, as such, be recognized and enforced as a proprietary right. The Western legal theories have borrowed from Western philosophies to explain the foundation for protection of IP.21 However, Chinese philosophies such as Confucianism and socialism are of no help in exploring justifications for protecting IP. Chinese IP justification must find other intellectual sources. Thus, the doctrine of contradictions (maodun lun) and the doctrine of ‘economic base and superstructure’ (jingji jichu shangcengjianzhu lun) have been adopted by the Chinese government to justify IP protection. The doctrine of contradictions states that all progress is driven by contradictions. Within the Chinese commitment to furthering economic reform and opening-up to the world, the principal contradiction was conceived as the one between the ever-growing material and cultural needs of the people and China’s low level of productive force (1981–2017).22 To improve its level of productive force, a doctrine of socialist market economy was proposed in 1992 and then officially provided in Chinese Constitution in 1993.23 The non-public economic sectors such as individually owned and private businesses are accepted as an important component of the socialist market economy.24 The state shall protect the lawful rights and interests of non-public economic sectors.25

20

21 22

23 24 25

Huan Yao, ‘Risks and Challenges Faced by the Party Since the Reform and Opening Up from 1978 to 2020’ (2020) 19 People’s Forum, 26–8, 26 [姚桓 : 《1978 – 2020改革开放以来党经受的风险及挑战》, 《人民论坛》2020年第19 期, 第26页]. see Peter Drahos, A Philosophy of Intellectual Property (Aldershot: Dartmouth, 1996). See the CCP: Constitution (2002), para. 7, the general programme [《中国共产党章程》, 中国共产党第十六次全 国代表大会部分修改, 2002年11月14日通过, 总纲第7段]. China’s Constitution (1993), Art. 15(1). China’s Constitution (2018), Art. 11(1). Ibid., Art. 11(2).

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

454

Jianqiang Nie

The doctrine of economic base and superstructure deals with the interrelationship between economic development, and law and right as superstructure.26 It claims that economy is the foundation upon which law and right are built. Along with China’s economic development, China amended its Constitution in 1999. The 1999 Constitution explicitly provides: ‘The People’s Republic of China governs the country according to law and makes it a socialist country under rule of law’ [Zhonghua renmin gongheguo shixin yi fa zhi guo, jianshe shehuizhuyi fazhi guojia].27 This means that the Chinese government accepts a ‘rule of law’28as its principle of governance. The principle of ‘rule of law’ is perceived as the objective requirement of implementation of China’s socialist market economy. Although the concepts of socialist market economy and socialist rule of law are not without controversies, the provisions under the Chinese Constitution may provide for normative justification of IP protection in China. As a private property right, IP protection can be justified only in the context of market economy and a rule of law environment. The normative justification was further consolidated when the Constitution was amended again in 2004. This version provides explicitly that lawful private property is inviolable. The state will protect private property rights,29 which include IP. In other words, IP has its independent legal value rather than merely being an instrument to depend on when realizing public policies. The Chinese normative justification has cleared up the ideological obstacle and thus legal restrictions on improving IP protection. China acceded to the WTO in 2001 and committed to the elevated level of IP protection under the TRIPS Agreement. China then started to enhance its IP protection on its own initiative. The State Council published its National IP Strategy in 2008. Furthermore, to guide IP protection in the future, China published its Guidelines Relating to Building Up a Powerful Country with IPRs (2021–35) in 2021.30 The year 2020 is important for Chinese IP laws. On 15 January 2020, China and the United States signed their Economic and Trade Agreement (2020 China–US Agreement) after two years of the bitter trade disputes which the Trump administration initiated against China; IP protection is a significant part of the Agreement.31 Among other things,32 the 2020 China–US Agreement particularly emphasizes trade secret protection and enforcement of IPRs. It provides that the parties agree to ensure effective protection for trade secrets and confidential business information and effective enforcement against the misappropriation of such information.33 26

27 28

29 30

31 32

33

Peiyong Chen, ‘Rethinking the Relationship between “Legal Superstructure” and “Economic Foundation”’ (2021) 2 Social Scientist, 14–20, 14 [陈培永 : 《“法律上层建筑”与“经济基础”关系的再思考》, 《社会科学家》2021年第2 期, 第14页]. China’s Constitution (1999), Art. 5. Whether the provision of fazhi guojia [法治国家] under the second part of Art. 5(1) of China’s Constitution (1999) should be translated as ‘a rule of law country’ or ‘a rule by law country’ is debatable. This chapter adopts ‘a rule of law country’ translation. First, the first part of Art. 5(1) of the Constitution (1999) states that ‘the People’s Republic of China governs the country according to law’ [中华人民共和国实行依法治国]. It implies rule by law. In this context, the second part of Art. 5(1) of the Constitution jianshe shehuizhuyi fazhi guojia [建设社会主义法治国 家] should be understood to be different from ‘rule by law’. Second, the Chinese words 法治 correspond literally to ‘rule of law’ in English. And third, being a rule of law country is a goal to be achieved in China in the future. China’s Constitution (2004), Art. 13. The Central Committee of the Communist Party of China and the State Council issued the Outline for Building a Powerful Country with IPRs (2021–35) [中共中央、国务院印发《知识产权强国建设纲要 (2021 – 2035年) 》], www.gov.cn/gongbao/content/2021/content_5643253.htm. China–US Agreement (2020), ch. 1. For example, for intellectual property related to pharmaceuticals (section C), patents (section D), piracy and counterfeiting on e-commerce platforms (section E), geographical indications (section F), manufacture and export of pirated and counterfeit goods (section G) and bad-faith trademarks (section H), see China–US Agreement (2020), ch. 1. China–US Agreement (2020), Preamble of section B.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

455

The Agreement clarifies the provisions on the scope of actors liable for trade secret misappropriation,34 the scope of prohibited acts constituting trade secrets misappropriation,35 the burden-shifting in a civil proceeding,36 provisional measures to prevent the use of trade secrets,37 the threshold for initiating criminal enforcement,38 criminal procedures and penalties,39 and protecting trade secrets and confidential business information from unauthorized disclosure by government authorities.40 Enforcement of IPRs is thus the focus of the 2020 China–US Agreement, with the word ‘enforcement’ occurring forty times in the document. China is obliged to transfer from administrative enforcement to criminal enforcement,41 provide deterrent-level penalties,42 expeditiously enforce judgments,43 and enforce copyright and related rights.44 China accordingly revised its IP legislations again, including both the Trademark Law and the AUCL in 2019 and the Patent Law and the Copyright Law in 2020. Furthermore, China enacted its Code of Civil Law in 2020, which opens a new chapter for IP protection in China.45 It categorizes IP as a separate civil right that shall be enforced by courts in accordance with the principle of the socialist rule of law. In conclusion, international IP law was transplanted to China.46 Over the past several years, China has changed its conception of IP protection from highlighting the public use to seeing it as a private right. This changed conception of IP and its international protection has considerable implications for Chinese negotiating and implementing of international treaties on the protection of IPRs, which will be examined in Sections 22.3–22.5. 22.3 CHINA AND INTERNATIONAL IP LAWMAKING: FROM NORM-TAKER TO NORM ENTREPRENEUR

International negotiation on IP is an important part of the international IP system. China’s role in negotiating international IP protection is a process of learning, leading and contributing, going from being a rules-taker to being a rules-shaper. 22.3.1 China as a Norm-Taker Historically, it was a bitter experience for China to take part in international treaty negotiations.47 In the later part of the Qing Dynasty, several Western powers forced China to accept ‘unequal treaties’, such as the 1902 China–UK Renewed Treaty on Commerce and the 34 35 36 37 38 39 40 41 42 43 44 45 46

47

Ibid., Art. 1.3. Ibid., Art. 1.4. Ibid., Art. 1.5. Ibid., Art. 1.6. Ibid., Art. 1.7. Ibid., Art. 1.8. Ibid., Art. 1.9. Ibid., Art. 1.26. Ibid., Art. 1.27. Ibid., Art. 1.28. Ibid., Art. 1.29. China’s Code of Civil Law, Art. 123. Handong Wu, ‘Basic Aspects of China’s Intellectual Property Law Change’ (2018) 8 Social Sciences in China, 108 [吴 汉东 : 《中国知识产权法律变迁的基本面向》, 《中国社会科学》2018年第8期, 第108页]. Zenghua Zhuo, ‘Translation, Diversion and Response: The Application of International Law in China’s Process of Revising Unequal Treaties in the Early 20th Century’ (2021) 4 The Jurist, 72 [卓增华 : 《转译、挪移与反响 : 20世纪 前期中国修订不平等条约过程中的国际法适用》, 《法学家》2021年第4期, 第72页].

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

456

Jianqiang Nie

1903 China–US Renewed Treaty on Commerce and Navigation, among others, which contained various IP protection provisions.48 The ensuing new national government took international law lightly after it failed to invoke international law to abolish the unequal treaties signed by the former government. That government had signed some treaties containing IP clauses and managed to adopt several legislations. However, few of the legislations were implemented in practice owing to the unstable economic and social order, as well as internal conflict.49 The PRC during its early period did sign a few treaties relating to IP. Furthermore, owing to the ideological struggles between socialism and capitalism, and major Western countries sabotaging the new China, the PRC was suspicious of the legitimacy and utility of international law. International law played a limited role in Chinese foreign affairs. However, it is interesting to note that the PRC did approve several exchanges of notes on trademark registrations with Western countries (1950s–70s).50 The reasons for this might have been that trademark registration was then conceived of as a quality control tool rather than private property, and that China needed foreign trade. 48 49 50

Alford, To Steal a Book, supra note 2, at 30. Liu Jianwen, Modern Chinese Intellectual Property Law, supra note 5, at 36. For example, China–UK Exchange of Notes on Reciprocal Trademark Registration (Beijing, 13 April 1956) [中英关 于互惠商标注册问题的换文 (1956年4月13日 北京)]; China–Switzerland Exchange of Notes on Trademark Registration (Beijing, 14 April 1956) [中瑞 (士) 关于商标注册问题的换文 (1956年4月14日 北京)]; China– Sweden Exchange of Notes on Trademark Registration (Beijing, 6 April 1957) [中瑞 (典) 关于商标注册问题的换 文 (1957年4月6日 北京)]; China–Denmark Exchange of Notes on Reciprocal Trademark Registration (Beijing, 12 April 1958) [中丹 (麦) 关于互惠商标注册问题的换文 (1958年4月12日 北京)]; China–Italy Exchange of Notes on Reciprocal Trademark Registration (signed 5 January 1973, effective 8 January 1973) [中意关于互惠商标注册问题 的换文 (签订日期1973年1月5日, 生效日期1973年1月8日)]; China–Australia Exchange of Notes on Reciprocal Trademark Registration (Beijing, 12 October 1974) [中澳关于互惠商标注册的换文 (1974年10月12日 北京)]; China–Norway Exchange of Notes on Reciprocal Trademark Registration (Beijing, 8 November 1974) [中挪关于 互惠商标注册的换文 (1974年11月8日 北京)]; China–Canada Exchange of Notes on Reciprocal Trademark Registration (16 July 1973) [中加 (拿大) 关于互惠商标注册问题的换文 (1973年7月16日)]; China–Belgium, Netherlands, Luxembourg’s Exchange of Notes on Reciprocal Registration and Protection of Trademarks (signed 10 April 1975, effective 22 January 1977) [中国与比、荷、卢关于互惠注册并保护商标的换文 (签订日期1975年4 月10日, 生效日期1977年1月22日)]; China–New Zealand Exchange of Notes on Reciprocal Registration of Trademarks (signed and effective on 18 June 1975) [中国和新西兰关于互惠商标注册的换文 (签订日期1975年6 月18日, 生效日期1975年6月18日)]; China–Greece Exchange of Letters on Mutual Protection of Trademarks (signed 19 April 1975, entered into force 19 June 1975) [(中国和希腊关于相互保护商标的换文 (签订日期1975年 4月19日, 生效日期1975年6月19日)]; China–France Exchange of Letters on Reciprocal Trademark Registration (signed 15 July 1975, entered into force 15 September 1975) [(中国和法国关于互惠商标注册的换文 (签订日期1975 年7月15日, 生效日期1975年9月15日)]; China–Germany Exchange of Documents on the Reciprocal Trademark Registration (signed and effective 8 August 1975) [中华人民共和国和德意志邦共和国关于互惠商标注册的换文 (签订日期1975年8月8日, 生效日期1975年8月8日)]; China–Iran Exchange of Documents on the Reciprocal Trademark Registration (signed and effective 15 December 1975) [(中国和伊朗关于互惠商标注册的换文 (签订 日期1975年12月15日, 生效日期1975年12月15日)]; China–Austria Exchange of Letters on the Reciprocal Registration of Trademarks and Service Marks between the Two Countries (signed and entered into force 4 April 1977) [中国和奥地利关于两国间商标和服务标记互惠注册问题的换文 (签订日期1977年4月4日, 生效 日期1977年4月4日)]; China–Spain Exchange of Letters on the Trademark Registration and Protection Agreement (signed 10 June 1977, entered into force 10 August 1977) [中国和西班牙两国政府关于商标注册和保护协议的换文 (签订日期1977年6月10日, 生效日期1977年8月10日)]; China–Thailand Exchange of Notes on the Right to Exclusive Use of Trademark Registration (signed and entered into force 18 January 1977) [中国和泰国关于商标 注册专用权的换文 (签订日期1977年1月18日, 生效日期1977年1月18日)]; China–Japan Agreement on Trademark Protection (signed 29 September 1977, entered into force 1 March 1978) [中华人民共和国和日本国商标保护协定 (签订日期1977年9月28日, 生效日期1978年3月1日)]; China–Japan Exchange of Letters on the Relevant Provisions of the Trademark Protection Agreement between the Two Countries (signed and entered into force 29 September 1977) [中国和日本关于两国商标保护协定有关规定的换文 (签订日期1977年9月29日, 生效日期 1977年9月29日)]; China–Argentina Exchange of Letters on Trademark Registration (signed and entered into force 30 May 1978) [中国和阿根廷关于商标注册问题的换文 (签订日期1978年5月30日, 生效日期1978年5月30日)].

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

457

The first important IP-related treaty negotiated and signed by the PRC is the 1979 China–US Trade Agreement which in Article VI provided for protection of patents, trademarks and copyrights and restriction of unfair competition. From the 1980s to the 2000s, the United States largely pressured China into negotiating IP treaties.51 China acted in a passive manner to respond to the United States’ demands. 22.3.1.1 China–United States IP Negotiation After almost thirty years of antagonism and conflict with each other, the PRC and the US government eventually established diplomatic relations on 1 January 1979.52 China’s relationship with the United States entered a new phase. In respect of IP, the two states negotiated and signed the 1979 China–US Trade Agreement,53 the 1992 China–US IPRs MOU,54 the 1995 China–US IPRs Agreement55 and the 2020 China–US Economic and Trade Agreement. However, owing to the different levels of scientific, technological and economic development and the different political and economic systems, IP negotiations between China and the United States were challenging. The United States acted as a demander and threatened to impose unilateral trade sanctions; China functioned as a demandee and was forced to change its IP laws. Article 6 of the China–US Trade Agreement (1979) provides for protection of patents, trademarks and copyrights. However, the United States Trade Representative (USTR), on 26 April 1991, pursuant to the Trade Act (1974), identified China as a ‘Priority Foreign Country’ (PFC).56 The USTR soon initiated an investigation of deficiencies in China’s acts, policies and practices related to the denial of adequate and effective protection of IPRs in China.57 In November, the USTR made determination to extend its investigation into the IP laws and practices of the government of the PRC. After more than seven months of difficult negotiations, the United States and China finally signed the 1992 China–US IPRs MOU. In 1994, the USTR again identified China as a PFC and initiated an investigation pursuant to the Trade Act.58 The USTR claimed that China had failed to create an effective IPRs enforcement regime. China had also failed to provide fair and equitable market access for persons who rely on IP protection.59 China negotiated again and entered into an Exchange of Letters (including an Action Plan for the Effective Protection and Enforcement of IPRs) with the United States. China committed to address the enforcement problems.60

51

52

53

54

55 56 57 58

59 60

Hongju Xu, ‘The Americanization of China’s Intellectual Property Law – The Influence and Trend of the American Model’ (2011) 1 Tsinghua Forum of Rule of Law, 287 [徐红菊 : 《中国知识产权法的美国化? – 美国模式的影响与 走向》, 《清华法治论衡》2011年第1期, 第287页]. Joint Communique´ on the Establishment of Diplomatic Relations between the People’s Republic of China and the United States of America (16 December 1978), www.mfa.gov.cn/ce/ceus/eng/zmgx/zywj/t36256.htm (‘The People’s Republic of China and the United States of America have agreed to recognize each other and to establish diplomatic relations as of January 1, 1979’). Proclamation 4697 – Agreement on Trade Relations between the United States of America and the People’s Republic of China, 23 October 1979, by the President of the United States of America. People’s Republic of China–United States of America: Memorandum of Understanding on the Protection of Intellectual Property (1992), 34 ILM 676 (1995). China–United States: Agreement Regarding IPRs (1995), 34 ILM 881 (1995). Federal Register, Vol. 56, No. 84, Wednesday 1 May 1991 (US Government Publishing Office). Federal Register, Vol. 56, No. 232, pp. 61347–63398, Tuesday 3 December 1991. Federal Register, Vol. 59, No. 132, Tuesday 12 July 1994 (Federal Register Online, www.gpo.gov, [FR Doc No: 94– 16826]). Ibid. Federal Register, Vol. 60, No. 44, Tuesday 7 March 1995 (US Government Publishing Office).

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

458

Jianqiang Nie

In 1996, the USTR identified China as a PFC for the third time. The Acting USTR announced that China was not satisfactorily implementing the 1995 China–US IPRs Agreement and the USTR proposed to impose increased duties on selected products from China.61 China submitted to the United States on 17 June 1996 two documents entitled ‘Report on China’s Enforcement Measures’ and ‘Other Measures’, by which it would implement key elements of the 1995 Agreement. Based on the commitment, the USTR determined not to impose the proposed sanctions. In addition, the USTR determined to revoke China’s designation as a PFC.62 With China’s accession to the WTO in 2001, the United States shifted its approach from a bilateral one to a multilateral one: the WTO dispute settlement body (DSB). The United States initiated three IP cases against China in the WTO, namely, DS362 China – Measures Affecting the Protection and Enforcement of IPRs (2007), DS363 China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (2007) and DS542 China – Certain Measures Concerning the Protection of IPRs (II) (2018). Under President Trump, the US government retreated from multilateralism. The United States adopted unprecedented trade sanctions against China. China negotiated again with the United States on the protection of IPRs. After some fierce negotiations, China and the United States signed the 2020 Economic and Trade Agreement, of which the first chapter is on IP. In a word, the United States, armed with its trade laws and threatening to impose unilateral trade sanctions, negotiated with China on strengthening IP protection. Although faced with many challenges, China has always taken the negotiations seriously. The IPR negotiations are thought to be consistent with China’s commitment to deepening economic reform and further economic opening-up to the world. 22.3.1.2 China and Multilateral IP Agreement Negotiations Chinese negotiation on accession to the multilateral IP treaties is on the one hand an imperative of Chinese economic reform and opening to the world, and on the other hand part of the result of implementing those China–US IP agreements. For example, the 1992 China–US IPRs MOU explicitly prescribes that China would accede to the 1971 Berne Convention and the Geneva Convention.63 China accordingly acceded to the Berne Convention in 1992 and the Geneva Convention in 1993. China also acceded to various agreements of global protection such as the PCT (1993) under the administration of the WIPO.64 Chinese negotiations on accession to those WIPO administered conventions have not been so hard. The reasons behind this might be that politically the WIPO is a special agency of the UN and the PRC restored her lawful rights in the UN on 25 October 1971, and that legally some conventions allow reservations. In contrast, Chinese negotiation on accession to the WTO (including the TRIPS Agreement) were complicated and challenging.65 The WTO adopts a single undertaking approach,66 meaning that IP obligations are very demanding, and implementing IP obligations is 61 62 63 64

65

66

Federal Register, Vol. 61, No. 124, Wednesday 26 June 1996, Notices 33147. Federal Register, Vol. 61, No. 124, Wednesday 26 June 1996, Notices 33148. The 1992 China–US IPRs MOU, Art. 3(1) and (2). China also acceded to the Budapest Treaty (1 April 1995), the Madrid Protocol (1 September 1995) and classification agreements such as the Nice Agreement (5 May 1994), the Locarno Agreement (17 June 1996) and the Strasbourg Agreement (17 June 1996). It took more than fifteen years in total for China to negotiate first on resumption of status of the GATT and then on accession to the WTO. Art. 16(5) of the Marrakesh Agreement Establishing the World Trade Organization states: ‘[N]o reservations may be made in respect of any provision of this Agreement. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements.’

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

459

subject to the scrutiny of the DSB whose decisions are binding.67 As China finally acceded to the WTO, China is bound by the TRIPS Agreement and the Protocol on Accession of the People’s Republic of China, including the commitments related to IP protection referred to in paragraph 342 of the Working Party Report. 22.3.2 China as a Norm Entrepreneur From 2007, the Chinese attitude towards negotiation of international IP treaties seemed to become more active. The State Council of the PRC adopted the National IP Strategy in 2008. China on its own initiative acceded to both the WIPO Copyright Treaty68 and the WIPO Performances and Phonograms Treaty,69 ratified the Marrakesh VIP Agreement, hosted the negotiations on the Beijing Treaty on Audiovisual Performances (Beijing Treaty) and contributed to the successful conclusion of the negotiations on the amendment to the TRIPS Agreement. 22.3.2.1 The Beijing Treaty The Beijing Treaty deals with the economic and moral rights of actors and performers in audiovisual performances including films, videos and television programmes. The new treaty brings audiovisual performers into the fold of the international copyright framework in a comprehensive way, for the first time.70 China hosted the Diplomatic Conference on the Protection of Audiovisual Performances in June 2012, with 156 member states, 6 intergovernmental organizations and 45 non-governmental organizations attending the Conference.71 The Diplomatic Conference was successfully concluded on 26 June 2012 with the finalization of the new treaty for audiovisual performers. Afterwards, WIPO Director General Francis Gurry praised China for the outstanding organization of the Diplomatic Conference and taking the lead in staging the Diplomatic Conference.72 The negotiators from WIPO’s member states named the treaty the Beijing Treaty on Audiovisual Performances in recognition of the city that hosted the final round of negotiations.73 China signed the Beijing Treaty at the conclusion of the Diplomatic Conference and ratified it on 9 July 2014. The Treaty entered into force in China on 28 April 2020. 22.3.2.2 China and the TRIPS Agreement Amendment On 17 June 2022, the WTO members concluded the Ministerial Decision on the TRIPS Agreement (Ministerial Decision).74 The Ministerial Decision provides that

67

68

69 70

71 72 73 74

Art. 2(2) of the Marrakesh Agreement Establishing the World Trade Organization states: ‘[T]he agreements and associated legal instruments included in Annexes 1, 2 and 3 are integral parts of this Agreement, binding on all Members.’ WCT Notification No. 66, WIPO Copyright Treaty, Accession by the People’s Republic of China, www.wipo.int /treaties/en/notifications/wct/treaty_wct_66.html Ibid. WIPO Beijing Treaty on Audiovisual Performances Is Concluded, Beijing, 26 June 2012, PR/2012/714, www.wipo.int /pressroom/en/articles/2012/article_0013.html Ibid. Ibid. Ibid. Ministerial Decision on the TRIPS Agreement (Ministerial Decision) of 17 June 2022, WT/MIN(22)/30, WT/L/1141, 22 June 2022.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

460

Jianqiang Nie

an eligible member may limit the rights provided for under Article 28.1 of the TRIPS Agreement by authorizing the use of the subject matter of a patent required for the production and supply of Covid-19 vaccines without the consent of the right holder to the extent necessary to address the Covid-19 pandemic, in accordance with the provisions of Article 31 of the Agreement, as clarified and waived in paragraphs 2 to 6 below.75

Further, ‘Members shall not challenge any measures taken in conformity with this Decision under subparagraphs 1(b) and 1(c) of Article XXIII of the General Agreement on Tariffs and Trade (GATT) 1994’.76 China played a pragmatic, constructive and significant role in the successful conclusion of the Ministerial Decision. As a developing country, China is an eligible member, meaning that it is entitled to enjoy all the rights and the privileges contained under the Ministerial Decision. However, China committed not to avail itself of the Ministerial Decision,77 a commitment that contributed greatly to the successful conclusion of the negotiation of the Ministerial Decision. China also earned a success in the negotiation of the Ministerial Decision. The draft text of the Ministerial Decision contained a footnote stating: ‘For the purpose of this Decision, developing country Members who exported more than 10 per cent of world exports of Covid19 vaccine doses in 2021 are not eligible Members.’78 China opposed use of the criterion of export share to define eligible members because the export share criterion is arbitrary and contradictory to the principles of free trade and multilateral cooperation of the WTO.79 Thanks to China’s efforts, that part of footnote 1 was deleted in the Ministerial Decision finally adopted by the 12th Ministerial Conference on 17 June 2022. Footnote 1 states: For the purpose of this Decision, all developing country Members are eligible Members. Developing country Members with existing capacity to manufacture COVID-19 vaccines are encouraged to make a binding commitment not to avail themselves of this Decision. Such binding commitments include statements made by eligible Members to the General Council, such as those made at the General Council meeting on 10 May 2022 and will be recorded by the Council for TRIPS and will be compiled and published publicly on the WTO website.80

22.3.2.3 China and IP Negotiation under FTAs China has taken an active part in negotiating IP protection when generating new free trade agreements (FTAs). More than eleven in-force FTAs entered into by China contain IP chapters. For example, Chapter 11 of the Regional Comprehensive Economic Partnership (RCEP) is the most comprehensive IP protection under the FTAs signed by China so far.81 It covers copyright 75 76 77

78

79

80 81

Ibid., Art. 1. Ibid., Art. 7. ‘Statement by H. E. Ambassador Li Chenggang at GC [General Council] Meeting’, Ministry of Commerce (12 May 2022), wto.mofcom.gov.cn/article/meetingsandstatements/202205/20220503311466.shtml (‘To further demonstrate our pragmatism and constructiveness and to better facilitate the negotiation, China hereby announces that if our concern on the footnote is addressed, we will not seek to use the flexibility provided by this decision’). Draft Ministerial Decision, Communication from the Chair of the Council for TRIPS, WT/MIN (22)/W/15, 10 June 2022. ‘Statement by H. E. Ambassador Li Chenggang at Informal Meeting of TRIPS Council’, Ministry of Commerce (6 May 2022), wto.mofcom.gov.cn/article/meetingsandstatements/202205/20220503310786.shtml. Ministerial Decision, supra note 74. ‘The International Department of the Ministry of Commerce Explains the Regional Comprehensive Economic Partnership (RCEP) No. 3’, Information Office of the Ministry of Commerce (17 November 2020), fta.mofcom.gov.cn /article/rcep/rcepjd/202011/43622_1.html [商务部国际司负责同志解读《区域全面经济伙伴关系协定》 (RCEP) 之三, 商务部新闻办公室 2020–11-17].

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

461

and related rights, trademarks, geographical indications, patents, industrial designs, genetic resources, traditional knowledge and folklore, unfair competition, country names, enforcement of IPRs, cooperation and consultation, transparency, transition periods and technical assistance, and procedural matters. The IP protection will promote deeper regional economic integration and cooperation and contribute to regional innovation cooperation and sustainable development.82 Furthermore, China is in the process of applying to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Chapter 18 of the CPTPP prescribes detailed high-level and full IP protection.83 In conclusion, although it has experienced unpleasant negotiations with the United States on IP protection, China has gradually learnt how to negotiate IP treaties. China is changing from a passive respondent to an active player in negotiating IP treaties. Further, China’s role in negotiating IP treaties is being elevated from that of a learner to that of a leading player; China is moving from being a rule-taker to becoming a rule-shaper. 22.4 IMPLEMENTATION OF IP TREATIES IN CHINA

Implementing IP treaties means giving effect to their provisions under domestic law to realize the purposes and objectives of the IP treaties.84 International treaties should be performed in good faith,85 but good faith implementation of IP treaties depends on both the provisions of the IP treaties themselves and the domestic constitutional arrangements. It relates to two issues: domestic validity of IP treaties and direct applicability of IP treaties under the domestic legal system. Whether China has fully implemented its IP obligations has been a serious concern of the Western countries, in particular the United States. There have been bitter disputes between China and the United States. This section discusses China’s implementation of IP treaties into its domestic legal system and how it enforces IPR laws through its administrative and judicial authorities. 22.4.1 China’s Implementation of IP Treaties into Its Domestic Legal System China’s domestic implementation of IP treaties relies on both the provisions of the IP treaties themselves and China’s domestic laws. Many IP treaties contain ‘give effect to’ requirements;86 these indicate that the provisions of the IP treaty are obligations where stated.87 However, IP treaties often prescribe that parties use an ‘appropriate method’ to implement their requirements.88 As the appellate body explained, an ‘appropriate method’ indicates that parties of treaties are free to determine their method of implementing their obligations under the treaty within the context of 82 83

84 85 86

87

88

Ibid. Huibin Zhang and Huaibin Wang, ‘New Intellectual Property Rules of High Standard Free Trade Agreement and China’s Response’ (2022) 2 Journal of International Relations, 84 [张惠彬, 王怀宾 : 《高标准自由贸易协定知识产 权新规则与中国因应》, 《国际关系研究》2022年第2期, 第84页]. Berne Convention (1979), Art. 36(2). Vienna Convention on the Law of Treaties (1969) (VCLT), Art. 26. The ‘give effect to’ model is provided under Art. 25(1)(2) of the Paris Convention, Art. 36(1)(2) of the Berne Convention, Art. 1(1) of the TRIPS Agreement and others. In the context of the TRIPS Agreement, one panel explained the meaning of the term of ‘give effect to’; see the Panel Report, China – Intellectual Property Rights, WT/DS362/R, 26 January 2009 (09-0240), para. 7.513. Third sentence of Art. 1.1 of the TRIPS Agreement, Art. 1.34 of the 2020 China–US Economic and Trade Agreement; see also Art. 11.5 of the RCEP, Art. 11.3 of the China–Australia FTA and Art. 11.3 of the China–Georgia FTA.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

462

Jianqiang Nie

their own legal system.89 In other words, the appropriate method approach implies that national law may choose to ‘adopt’ or ‘transform’ or use a mix of the two in order to implement IP obligations. Where IP treaties stipulate that obligations must be implemented via amendments or revisions of laws,90 China will accordingly amend or revise its IP laws via its legislative processes. The question that arises is what to do when there is no implementation method stipulated under a particular IP treaty. It is up to domestic constitutional arrangements to determine the method of implementing the IP obligations. China’s Constitution, however, has no provisions on either domestic validity or direct applicability of an international treaty, although some other Chinese legislations contain a ‘conflict – prevailing’ provision,91 which states that where there is any conflict or discrepancy between an international treaty and relevant Chinese laws, the provisions of the international treaty shall prevail, except for the reservations. Chinese scholars have debated the implications of those ‘conflict – prevailing’ provisions and discussed whether China should adopt a transformation or adoption approach based on the doctrine of dualism or monism.92 Nevertheless, in the field of IP, neither Chinese IP legislations such as the Copyright Law, the Patent Law and the Trademark Law nor the Chinese Code of Civil Law (2020) contains the ‘conflict – prevailing’ provision.93 How to give effect to IP treaties under the Chinese domestic legal system is a debated question.94 In practice, China has taken a transformation approach, that is, the Chinese national legislative authority has made or revised its laws to fulfil its IP obligations. To perform its obligations under treaties such as the 1979 China–US Trade Agreement, the 1992 China–US IPRs MOU, the WTO TRIPS Agreement and the 2020 China–US Agreement, China accordingly enacted or revised its main IP legislations – the Trademark Law (1982, 1993, 2001, 2013, 2019), the Patent Law (1984, 1992, 2000, 2008, 2020), the Copyright Law (1990, 2001, 2010, 2020) and the AUCL (1993, 2017, 2019). Chinese administrative authorities and Chinese courts will also apply domestic IP laws, rather than invoke the provision(s) of the IP treaties. Implementation of IP treaties via legislative transformation into the Chinese domestic legal system is important. However, fully enforcing IP is much more important as IP is a private right, realization of which is dependent on the enforceability of it under the domestic legal system. In other words, realizing the purposes or objectives of IP treaties will finally come down to the domestic enforcement of IP laws. The WTO TRIPS Agreement for the first time prescribes detailed multilateral obligations relating to enforcement of IP.95 Following China’s accession to the WTO in 2001, China has already made great efforts to implement the TRIPS Agreement.96 In addition, the MOUs between China and the United States also emphasize enforcement of IP rights.97 The 2020 89 90 91 92

93

94

95 96 97

Appellate Body Report, India – Patents (US), WT/DS50/AB/R, 19 December 1997 (97-5539), para. 59. For example, the 2020 China–US Economic and Trade Agreement and China’s WTO Accession Protocol. For example, Art. 267 of the Civil Procedure Law of the People’s Republic of China (2021 Amendment). Shaping Shao and Minyou Yu, Contemporary International Law Issues (Wuhan: Wuhan University Press, 2002), 429–50 [邵沙平, 余敏友 : 《国际法问题专论》, 武汉大学出版社2002年版, 第429-450页]. Art. 142(2) of the General Provisions of Civil Law (GPCL) (both 1986 and 2009 amended versions) used to stipulated ‘conflict – prevailing’ provisions. However, the GPCL was expired when the Chinese Code of Civil Law came into force in 2020. Jianqiang Nie, The Enforcement of Intellectual Property Rights in China (London: Cameron May, 2006). See also Peiru Yang, ‘Application of International Intellectual Property Treaties in Chinese Courts’ (2020) 9 Intellectual Property, at 72 [杨珮茹 : 《知识产权国际条约在我国法院的适用》, 《知识产权》2020年第9期, 第72页]. Part III of the TRIPS Agreement. Jianqiang Nie, The Enforcement of Intellectual Property Rights, supra note 94. Art. 5 of the 1992 China–US MOU and the 1995 China–US MOU.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

463

China–US Agreement focusses on enforcement of IPRs; the word ‘enforcement’ appears forty times in the agreement. The next two sections discuss Chinese domestic enforcement of IP. 22.4.2 Chinese Administrative Enforcement of IPRs One of the features of Chinese IP enforcement is that Chinese administrative agencies are empowered to deal with IP disputes. When an infringement occurs, the IP right holder may file a complaint with the governing administrative agencies.98 The administrative agencies may then take various administrative measures such as ordering the infringement to stop, imposing fines and other penalties,99 and mediating on damages at the request of the parties concerned.100 Where public interest is involved, the administrative agencies may also adopt administrative penalties.101 China has strengthened and improved its administrative enforcement of IP laws. The revised Patent Law (2020) provides that a patentee or any interested party may request the patent administrative department to settle a patent infringement dispute.102 Where the patent administrative department determines the existence of infringement, it may order the infringer to immediately stop the infringement act and apply to the people’s courts for compulsory enforcement of the order.103 It may also mediate on damages at the request of the parties concerned.104 The Patent Law (2020) further clarifies that at the request of the patentee or any interested party, the patent administrative department of the State Council may handle patent infringement disputes that have significant influence nationwide.105 It may also mediate on disputes concerning open licences.106 In addition, the Patent Law (2020) adds a new method of administrative enforcement, namely administrative adjudication (xingzheng caijue), which can be used to deal with disputes concerning royalties stemming from a compulsory licence107 or patent disputes related to a drug for which a registration for marketing application has been filed.108 Administrative adjudication is an act by an administrative agency to adjudicate and rule on civil disputes that are closely related to administrative activities and authorized by laws and regulations. It applies only to specified subject matter. The administrative ruling is not final.109 The Trademark Law (2019) adopts similar provisions on administrative enforcement.110 However, compared with the limited measures available to the patent administrative department, which can only resolve patent infringement by ordering the infringer to stop the infringing act, the administrative department for industry and commerce may adopt a variety of administrative measures to deal with trademark infringement, such as ordering the infringer to stop the infringing act, confiscating and destroying the infringing goods and tools, imposing fines and 98 99 100 101 102 103 104 105 106 107 108 109

110

Patent Law (2020), Arts. 65, 70; Trademark Law (2019), Art. 60. Patent Law (2020), Arts. 65, 70; Trademark Law (2019), Art. 60. Patent Law (2020), Arts. 52, 65; Trademark Law (2019), Art. 60(3); Copyright Law (2020), Art. 60. Patent Law (2020), Art. 68; Trademark Law (2019), Art. 61; AUCL (2019), Arts. 4, 21; Copyright Law (2020), Art. 53. Patent Law (2020), Art. 65. Ibid. Ibid. Ibid., Art. 70. Ibid., Art. 52. Ibid., Art. 62. Ibid., Art. 76(2). ‘The Head of the Ministry of Justice Answered the Reporter’s Question on the “Opinions on Improving the Administrative Adjudication System and Strengthening the Work of Administrative Adjudication”’, Xinhua News Agency (2 June 2019), www.gov.cn/zhengce/2019–06/02/content_5396933.htm [司法部负责人就《关于健全行政 裁决制度加强行政裁决工作的意见》答记者问, 2019–06-02 18:40, 来源 : 新华社]. Trademark Law (2019), Art. 60.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

464

Jianqiang Nie

other penalties;111 it also has the authority to investigate and punish any trademark infringing acts.112 Different from both the Patent Law (2020) and the Trademark Law (2019), the Copyright Law (2020) has no provisions on administrative settlement of copyright infringement disputes. Nevertheless, the Copyright Law (2020) provides that where any prescribed act of copyright infringement occurs and at the same time the infringing act prejudices public interests, the copyright authority shall order the infringer to stop the infringing act, issue a warning, confiscate illegal incomes, destroy or dispose of the infringing copies, as well as the materials, tools and equipment, and impose a fine.113 It also provides that the State Copyright Authority may adopt administrative adjudication (xingzheng caijue) to deal with the standard for collection of royalties.114 Administrative enforcement of IPRs has also been provided by other IP laws such as the AUCL (2019),115 the E-Commerce Law (2018),116 the Regulation on Protection of New Varieties of Plants (2014)117 and the Regulation on the Customs Protection of Intellectual Property Rights (2018). Given that China’s administrative authorities, such as the State Council, control most of the state’s financial and human resources and other facilities and enjoy a broad range of powers,118 through their centralized administrative network, China’s administrative authorities play an important role in enforcement of IP. To a considerable extent, China’s administrative enforcement of IPRs has achieved great success.119 However, administrative enforcement of IP also has its limits. On the one hand, administrative enforcement generally emphasizes the public interest rather than private rights protection as such. On the other hand, administrative enforcement may further be subject to perverse incentives, limited resources, power struggles among different governmental agencies, and particularly the administrative enforcement may be vulnerable to corruption and arbitrariness. China works hard to regulate its administrative enforcement powers. On the one hand, China’s IP laws provide for judicial review of administrative decisions,120 and Administrative Litigation Law (2017) further prescribes for administrative litigations concerning administrative enforcement measures, which are applicable to IPR enforcement measures.121 On the other hand, China revised its Law on Administrative Penalty in 2021.122 The revisions further clarified the procedural requirements in exercising administrative powers. This will contribute to the uniform enforcement of administrative penalty acts and protect people’s legal rights and legitimate interests. By conforming to the Law on Administrative Penalty, China will further strengthen and rationalize its administrative enforcement of IPRs. 111 112 113 114 115 116 117 118 119

120 121

122

Ibid., Art. 60(2). Ibid., Art. 61. Copyright Law (2020), Art. 53. Ibid., Art. 8(2). AUCL (2019), Art. 21. E-commerce Law (2018), Art. 84. Regulations on Protection of New Varieties of Plants (2014), Arts. 39, 40, 42. Patent Law (2020), Art. 69; Trademark Law (2019), Art. 62; Copyright Law (2020), Art. 55. Yearly Report on Chinese Protection of Intellectual Property Rights (1998–2021 respectively), China National Intellectual Property Administration, www.cnipa.gov.cn/ [1998-2021每年的中国知识产权保护状况, 国家知识产 权局]. Patent Law (2020), Arts. 41(2), 46(2), 63, 65; Trademark Law (2019), Arts. 34, 35(3), 44(2)(3), 45(2), 54. Administrative Litigation Law of the People’s Republic of China (2017), Order No. 71 of the President of the People’s Republic of China [中华人民共和国行政诉讼法(2017修正), 中华人民共和国主席令第71号]. Law of the People’s Republic of China on Administrative Penalty (2021), Order No. 70 of the President of the People’s Republic of China [中华人民共和国行政处罚法(2021修订), 中华人民共和国主席令第70号].

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

465

22.4.3 Chinese Judicial Enforcement of IPRs Judicial protection of IP means that the owner or holder of the IP, or related interested parties, brings a civil lawsuit against an infringer or brings an administrative litigation against a specific administrative decision relating to IP (including administrative penalties relating to the infringement of IPRs and a specific administrative decision relating to the granting or invalidating of patents, trademarks or other IPRs), and public prosecutors bring a criminal lawsuit against a criminal act against IPRs to Chinese courts. Chinese courts are empowered to adjudicate all IPrelated civil, criminal and administrative cases and to render various forms of judicial remedy.123 It should be noted that the Chinese Supreme People’s Court (SPC) has always emphasized performing international obligations.124 However, it does not indicate that IP treaties have direct applicability under the Chinese domestic legal system. As discussed earlier, IP treaties are implemented in China via being transformed into Chinese domestic laws; Chinese courts accordingly apply domestic IP laws rather than IP treaties to settle IP disputes. In practice, however, Chinese courts regularly invoke IP treaties to deal with IPR cases.125 The invocations may explain the eligibility of foreign parties under the IP treaties to initiate legal proceedings or to claim legal protection in Chinese courts,126 or to emphasize the principle of consistent interpretation to clarify the legal meaning of the terms of China’s IP laws as being consistent with IP treaties,127 or to stress the principle of performing international obligations.128 Nevertheless, according to a statistic of the IP treaties applied by Chinese courts (2013– 20),129 most cases were finally determined in accordance with Chinese domestic laws.130 Some cases were settled by application of both Chinese domestic IP laws and relevant provisions of IP treaties.131 Only two cases invoked the provisions of the Paris Convention for their 123

124

125

126

127

128

129 130 131

Patent Law (2020), Arts. 41, 46, 52, 63, 65, 68, 71, 72, 73, 76, 78, 80; Trademark Law (2019), Arts. 34, 35, 44, 45, 54, 60, 63, 64, 65, 66, 67, 68, 71; Copyright Law (2020), Arts. 52, 53, 54, 56, 57, 58, 60; Criminal Law (2020), Arts. 213–20. Report of the Supreme People’s Court on the Adjudication of Intellectual Property Rights in the People’s Courts, President of the Supreme People’s Court Zhou Qiang, at the 31st Meeting of the Standing Committee of the 13th National People’s Congress on 21 October 2021 [最高人民法院关于人民法院知识产权审判工作情况的报告 – 2021年10月21日在第十三届全国人民代表大会常务委员会第三十一次会议上, 最高人民法院院长周强]. At least 45 cases in 2022 and 104 cases in 2021 invoked IP treaties such as the Berne Convention and the Paris Convention, https://ersp.lib.whu.edu.cn/s/com/pkulaw/www/G.https/case?way=topGuid. Further, 521 cases applied IP treaties for the period 2013–20. See also Peiru Yang, ‘Application of International Intellectual Property Treaties’, supra note 94. Chinese courts may reason in accordance with Art. 2(2) of the Copyright Law (2020), which states that ‘any work of a foreigner or stateless person which enjoys copyright under an agreement concluded between the country and China, or under an international treaty to which both countries are parties, shall be protected by this Law’, or the similar provisions of Art. 17 of the Trademark Law (2019), Art. 17 of the Patent Law (2020), or Arts. 48 and 50 of the Law on Choice of Law for Foreign-Related Civil Relationships (2010), in order to invoke IP treaties such as the Berne Convention, the Paris Convention or the WTO TRIPS Agreement to protect foreign IPRs. For example, Laizhou Yongheng Guohuai Research Institute v. Ge Yanjun, over infringement of new plant variety rights, Supreme People’s Court, Case (2017) Zui Gao Fa Min Shen No. 4999 [莱州市永恒国槐研究所、葛燕军侵 害植物新品种权纠纷案, 最高人民法院, 案号 : (2017) 最高法民申4999号]. For example, Parfums Christiandior v. Trademark Review Board of the State Administration for Industry and Commerce, Supreme People’s Court, Case (2018) Zui Gao Fa Xing Zai No. 26 [克里斯蒂昂迪奥尔香料公司国 家工商行政管理总局商标评审委员会商标申请驳回复审行政纠纷案, 最高人民法院, 案号 : (2018) 最高法行再 26号]. Peiru Yang, ‘Application of International Intellectual Property Treaties’, supra note 94. Ibid. For example, Synopsys Technology Co., Ltd. v. Wuhan Xindong Technology Co., Ltd., over infringement of computer software copyright, Supreme People’s Court, Case (2020) Zui Gao Fa Zhi Min Zhong No. 1139 [新思 科技有限公司、武汉芯动科技有限公司侵害计算机软件著作权纠纷案, 最高人民法院, 案号 : (2020) 最高法知 民终1139号].

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

466

Jianqiang Nie

judgments.132 However, one of the two cases was retried by the SPC and the invocation of the provisions of the Paris Convention has been changed.133 In other words, Chinese courts have invoked the IP treaties as tools of legal reasoning rather than as legal bases of their judgments. China has continuously improved and consolidated judicial enforcement of IPRs via revising its IP laws, improving professional IPR adjudication institutions, reforming IPR adjudication mechanisms, unifying the criteria concerning IPR adjudication, and enhancing the cooperation and coordination between judicial and administrative enforcement of IPRs. With the latest amendments of China’s IP laws and the criminal law, the SPC accordingly issued or revised more than eighteen judicial interpretations relating to protection of IP.134 Judicial enforcement of IPRs relating to the rules on burden of proof, to damages and to criminal enforcement has been further strengthened. With regard to the burden of proof, the AUCL (2109) provides for burden-shifting in a civil proceeding in respect of trade secrets protection.135 The Copyright Law (2020) prescribes for similar provisions, including legal presumption136 and shifting of the burden of proof.137 In addition, in 2020 the SPC published its Several Provisions on Evidence Related to IPRs Civil Cases to clarify in detail the rules on evidence.138 With regard to the amount of damages, to provide for deterrent-level penalties, all three of the Patent Law (2020), the Trademark Law (2019) and the Copyright Law (2020) prescribe for punitive damages and statutory damages.139 In addition to punitive and statutory damages, the people’s courts may, in the case of trademark infringement, issue an order to destroy all counterfeit goods, as well as the materials and tools mainly used for manufacturing the goods, and prohibit all such materials and tools from entering commercial channels.140 The counterfeit goods are not allowed to enter commercial channels even after the unlawfully affixed trademark is removed.141 The criminal enforcement has also been further consolidated. On the threshold for initiating criminal enforcement of trade secrets protection, China has clarified the criteria as being losses or illegal gains in excess of 300,000 yuan, or bankruptcy and closedown of the business, or other major losses.142 132

133

134

135 136 137 138

139 140 141 142

Ferrero S.p.A. v. Montresor Food (Zhangjiagang) Co., Ltd., over unfair competition, Tianjin High People’s Court, Case (2005) Jin Gao Min San Zhong Zi No. 36 [意大利费列罗公司与蒙特莎(张家港)食品有限公司、天津经济 技术开发区正元行销有限公司不正当竞争纠纷案, 天津市高级人民法院, 案号 : (2005) 津高民三终字第36号]; Lizhen Plastic Surgery v. Guangzhou Chenxi Beauty Hospital, over infringement of business name and trade name, People’s Court of Baiyun District, Guangzhou City, Guangdong Province, Case (2013) Suiyun Fa Zhimin Chu Zi No. 396 [丽珍整形外科与广州晨曦美容医院侵害企业名称 (商号) 权纠纷案, 广州市白云区人民法院, 案号 : (2013) 穗云法知民初字第396号]. Ferrero S.p.A. v. Montresor Food (Zhangjiagang) Co., Ltd. and Zhengyuan Marketing Co., Ltd., over unfair competition in Tianjin Economic and Technological Development Zone, Supreme People’s Court, Case (2006) Min San Ti No. 3 [意大利费列罗公司诉蒙特莎公司、正元行销公司不正当竞争纠纷提审案, 最高人民法院, 案号 : (2006) 民三提字第3号]. Decision of the Supreme People’s Court to Amend Eighteen Intellectual Property Judicial Interpretations (2020), Fa Shi [2020] No. 19 [最高人民法院关于修改《最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题 的解释(二)》等十八件知识产权类司法解释的决定 (2020), 法释〔2020〕19号]. AUCL (2019), Art. 32. Copyright Law (2020), Art. 12. Ibid., Art. 59. Several Provisions of the Supreme People’s Court on Evidence in Intellectual Property Civil Litigation, Fa Shi [2020] No. 12 [最高人民法院关于知识产权民事诉讼证据的若干规定, 法释〔2020〕12号]. Patent Law (2020), Art. 71; Trademark Law (2019), Art. 63(1)(3); Copyright Law (2020), Art. 54(1)(2). Trademark Law (2019), Art. 63(4). Ibid., Art. 63(5). Notice by the Supreme People’s Procuratorate and the Ministry of Public Security of Issuing the Decision on Amending the Criteria for Launching Formal Investigation into Criminal Cases of Infringement upon Trade

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

467

With respect to criminal penalties, Article 219 of the Criminal Law (2020) provides for serious criminal liabilities for infringing trade secrets.143 The criminal penalties against trade secrets infringement have been further clarified by the Interpretation (III) of Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Involving Infringements of IPRs issued jointly by the SPC and the Supreme People’s Procuratorate (SPP) in 2020.144 The Interpretation (III) also sets forth in detail the circumstances of the ‘trademark identical to its registered trademark’ as provided for in Article 213 of the Criminal Law,145 the rules on the burden of proof concerning infringing copyright,146 as well as enforcement measures such as confiscation and destruction, heavier punishments and fines.147 China has also improved its professional IPR adjudication institutions. In 2018 China established the Intellectual Property Tribunal of the SPC to adjudicate patent and other technical IP appeal cases nationwide,148 as well as IP courts in Beijing, Shanghai, Guangzhou and Hainan free trade ports,149 and twenty-four other specialized IP tribunals to adjudicate IP cases of a strong professional and technical nature across the regions.150 As regards the IPR adjudication mechanism, China continues to expand its reform efforts, integrating the three separate civil, administrative and criminal IPR adjudication functions into one institution (‘three-in-one’ reform)151 and improving the mechanism for ascertaining technical facts.152 To unify the criteria concerning IPR adjudication, the SPC has established a case guidance system composed of guiding cases, communique´ cases, typical cases and so on, along with a database of IP cases and adjudication rules, and issues guiding opinions to improve the consistency of interpretation and application of IPR laws.153 To further promote the cooperation and coordination work between the judicial and administrative IPR enforcement authorities, in 2020 the State Council revised the Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs, and added

143

144

145 146 147 148

149

150 151

152

153

Secrets (2020), No. 15 [2020] of the Supreme People’s Procuratorate [最高人民检察院、公安部关于印发《关于修 改侵犯商业秘密刑事案件立案追诉标准的决定》的通知(2020), 高检发〔2020〕15号]. Criminal Law of the People’s Republic of China (2020), Order No. 66 of the President of the People’s Republic of China [中华人民共和国刑法(2020修正), 中华人民共和国主席令第66号]. Interpretation (III) of the Supreme People’s Court and the Supreme People’s Procuratorate of Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Involving Infringements of Intellectual Property Rights, Interpretation No. 10 [2020] of the Supreme People’s Court [最高人民法院、最高 人民检察院关于办理侵犯知识产权刑事案件具体应用法律若干问题的解释(三), 法释〔2020〕10号]. Interpretation (III), Art. 1. Ibid., Art. 2. Ibid., Arts. 7, 8, 10. Decision of the Standing Committee of the National People’s Congress on Several Issues Concerning Judicial Procedures for Patent and Other Intellectual Property Cases (2018) [全国人民代表大会常务委员会关于专利等知 识产权案件诉讼程序若干问题的决定 (2018)]. Decision of the Standing Committee of the National People’s Congress on Establishing Intellectual Property Right Courts in Beijing, Shanghai and Guangzhou (2014); Decision of the Standing Committee of the National People’s Congress on Establishing the Intellectual Property Court of the Hainan Free Trade Port (2020) [全国人民代表大会 常务委员会关于在北京、上海、广州设立知识产权法院的决定 (发布日期 : 2014年8月31日) ; 全国人民代表大 会常务委员会关于设立海南自由贸易港知识产权法院的决定 (发布日期 : 2020年12月26日) ]. Report of the Supreme People’s Court on the Adjudication of IPRs in the People’s Courts, supra note 124. Opinions of the Supreme People’s Court on Promoting the ‘Three in One’ Trial of Civil, Administrative and Criminal Cases Involving Intellectual Property Rights in Courts Nationwide (2016) [最高人民法院关于在全国法 院推进知识产权民事、行政和刑事案件审判“三合一”工作的意见, 发布日期 : 2016年7月5日]. Several Provisions of the Supreme People’s Court on Technical Investigators’ Participation in Legal Proceedings of Intellectual Property Cases (2019) [最高人民法院关于技术调查官参与知识产权案件诉讼活动的若干规定, 法 释〔2019〕2号, 发布日期 : 2019年3月18日]. Report of the Supreme People’s Court on the Adjudication of IPRs in the People’s Courts, supra note 124.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

468

Jianqiang Nie

one paragraph as the second paragraph of Article 3, which states that in cases of IPR violation, where the administrative law enforcement organs find that there is a reasonable suspicion of a crime having been committed, they shall transfer it to the public security organs.154 The Provisions further state that the administrative law enforcement organs shall transfer the suspected criminal cases to the public security organs rather than substitute administrative penalties for the transfer.155 China has further consolidated the coordination mechanism between administrative enforcement and criminal justice. The SPP published its Provisions on Promoting the Coordination between Administrative Law Enforcement and Criminal Justice in 2021.156 The Provisions emphasize the importance of effective coordination between and among administrative enforcement agencies and the criminal justice system,157 and set forth detailed measures relating to coordination, supervision and the time frame of transfers. In summary, China has implemented its commitments on protection of IPRs by revising its laws and relevant judicial interpretations. Those revisions are fully consistent with China’s obligations in relation to IPR protection. Although the processes of implementation was accompanied by pressure from the United States, China has always taken international IP law seriously and made every effort to implements its international obligations in good faith. Starting from 2008 when China adopted the National IP Strategy, China has performed its obligations on protection of IPRs voluntarily. China has furthermore consolidated and improved both administrative and judicial enforcement of IPRs. China has achieved great progress in the protection of IPRs. 22.5 CHINA AND THE SETTLEMENT OF INTERNATIONAL IP DISPUTES

International IP dispute resolution is a state–state dispute settlement mechanism that deals with disputes arising from interpretation and application of IP treaties. It does not concern any private party against a state for its protection of IPRs.158 There is no obligation in general international law to settle disputes. Procedures for settlement by formal and legal procedures are consensual in character.159 There are two categories of procedures for settlement of IP disputes: diplomatic (or political) approaches and judicial means. The diplomatic process is a voluntary settlement that is controlled by the disputing parties. However, judicial means indicate a compulsory third-party dispute settlement mechanism that to a large extent is independent of the disputing parties’ control, and decision of the settlement is binding on the parties to the dispute. 154

155 156

157 158

159

Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs (2020 Revision), Art. 3(2) [行政执法机关移送涉嫌犯罪案件的规定(2020修订)第3条第二款]. Ibid., Art. 11(1). Notice of Issuing the Provisions of the Supreme People’s Procuratorate on Promoting the Coordination between Administrative Law Enforcement and Criminal Justice, Interpretation No. 4 [2021] of the Supreme People’s Procuratorate [最高人民检察院关于印发《最高人民检察院关于推进行政执法与刑事司法衔接工作的规定》 的通知, 高检发释字〔2021〕4号]. Ibid., Art. 2. For example, Art. 20.17 of the FTA between China and Korea (signed 1 June 2015) provides: ‘Neither Party may provide for a right of action under its domestic law against the other Party on the ground that a measure of the other Party is inconsistent with this Agreement.’ Similar provisions are provided by a number of FTAs – China–Mauritius (2019), Art. 15.17; China–Georgia (2017), Art. 15.16; China–Costa Rica (2010), Art. 157; China–Peru (2009), Art. 192; China–Chile (2005), Art. 95 – and by Art. 28.22 of the CPTPP. James Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012), 718.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

469

The WIPO multilateral IP conventions, such as the Paris Convention and the Berne Convention, provide for both the diplomatic (political) approach and judicial means.160 The WTO TRIPS Agreement applies the Dispute Settlement Understanding (DSU) to settle its disputes.161 The DSU also prescribes for both political means and the compulsory third-party dispute settlement mechanism, including panels and appellate review procedures. China became bound by those dispute settlement provisions on its accession to the conventions and the WTO. More than eleven of the FTAs negotiated and signed by China contain dispute settlement provisions. With respect to dispute resolution under the IPR-related China–US trade agreements, the latest 2020 China–US Economic and Trade Agreement sets forth detailed provisions on dispute resolution applicable to IP.162 Along with China’s accession to the WIPO Conventions, the WTO and negotiation of the FTAs, the Chinese attitude towards international IP dispute settlement has changed, from emphasizing the political approach to accepting judicial means. 22.5.1 China’s Shifting from a Political Approach Towards Judicial Means China is a latecomer to the international IP system. As discussed, historically, owing to ideological conflicts, China was suspicious of the legitimacy of international law, which was dominated by the West. With respect to international dispute resolution, China insisted on political means through which the disputing parties could control the process of dispute resolution. China would make reservation of obligations concerning judicial dispute resolution. For example, when China acceded to the Paris Convention on 19 December 1984, China made the declaration that the PRC does not consider itself bound by the provisions of paragraph (1) of Article 28 of the Paris Convention.163 However, along with growing economic globalization and China’s integration into the international community and international law, China is increasingly playing a more important role in international affairs. It has started to advocate for international rule of law. China has gradually accepted judicial settlement of international disputes including IP disputes. When China acceded to the Berne Convention in 1992 and the PCT in 1993, it did not make reservation of Article 33(1) of the Berne Convention164 and Article 59 of the PCT,165 both of which concern the jurisdiction of the International Court of Justice (ICJ). This implies that China had started to accept the judicial methods of settlement under the Berne Convention and the PCT. The reason behind China’s accepting the judicial settlement of disputes under the WIPO conventions might be that the contracting parties to the conventions tend to have a lot of room to prevent the judicial way from happening. Disputing parties may to a large extent control the process of judicial settlement. In practice, no disputes have been brought to the ICJ. When China acceded to the WTO in 2001, China accepted explicitly the judicial nature of the dispute settlement system provided by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), which is equally applicable to the TRIPS 160 161 162 163 164 165

Art. 28 of the Paris Convention; Art. 33 of the Berne Convention’ Art. 64(1) of the TRIPS Agreement. Chapter 7 of the 2020 China–US Economic and Trade Agreement. Paris Notification No. 114, supra note 9. Berne Notification No. 140, supra note 13. PCT Notification No. 81, supra note 16.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

470

Jianqiang Nie

Agreement.166 The WTO dispute settlement system is a single unified process covering the TRIPS Agreement; it is an automatic, time-set, binding two-tier system of panels and an appellate body, a surveillance mechanism and multilaterally authorized sanctions. In other words, the WTO dispute settlement process is to a large extent independent of members’ control. It may be argued that China accepted the WTO compulsory dispute settlement system because of the non-reservation provisions available under the Agreement Establishing the World Trade Organization.167 Nevertheless, China has accepted the judicial nature of the dispute settlement system under the FTAs negotiated and signed by China on its own initiative. More than eleven of the FTAs contain dispute settlement chapters that are applicable to IP disputes. Those dispute settlement provisions under the FTAs provide, on the one hand, for political means such as good offices, conciliation, mediation or consultation168 and, on the other hand, for the judicial nature of the independent third-party dispute settlement mechanism. Where the political means fail, a panel169 or an arbitral tribunal170 may be established to settle disputes. For example, Article 19.8 of the RCEP prescribes that the complaining party may request the establishment of a panel to examine the matter, by way of notification to the responding party if the consultation fails. Article 19.12 prescribes: The panel or arbitral tribunal shall make an objective assessment of the matter before it, including an objective assessment of: (a) the facts of the case; (b) the applicability of the provisions of this Agreement cited by the Parties to the dispute; and (c) whether: (i) the measure at issue is not in conformity with the obligations under this Agreement; or (ii) the responding party has otherwise failed to carry out its obligations under this Agreement.171 The findings and determinations of the panel or arbitral tribunal shall be final and binding on the Parties to the dispute.172 The Responding Party shall: (a) if the panel makes a determination that the measure at issue is not in conformity with the obligations under this Agreement, bring the measure into conformity; or (b) if the panel makes a determination that the Responding Party has otherwise failed to carry out its obligations under this Agreement, carry out those obligations.173

Where the Responding Party does not comply with the obligation or fails to enter into or enforce mutually acceptable compensation, the Complaining Party may at any time thereafter notify the Responding Party and the other Parties that it intends to suspend the application to the Responding Party of concessions or other obligations equivalent to the level of nullification or impairment, and shall have the right to 166

167

168 169

170

171 172 173

Art. 64(1) of the TRIPS Agreement also provides: ‘The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.’ Art. 16.5 of the Agreement Establishing the World Trade Organization provides: ‘No reservations may be made in respect of any provision of this Agreement.’ For example, Arts. 19.6 and 19.7 of the RCEP. For example, Art. 19.8 of the RCEP, Art. 20.6 of the China–Korea FTA (2015), Art. 145 of the China–Costa Rica FTA (2010), Art. 177 of the China–Peru FTA (2009). For example, Art. 15.6 of the China–Mauritius FTA (2019), Art. 15.5 of the China–Georgia FTA (2017), Art. 15.7 of the China–Australia FTA (2015), Art. 15.4 of the China–Swiss Confederation FTA (2013), Art. 109 of the China– Iceland FTA (2013), Art. 188 of the China–New Zealand FTA (2008), Art. 84 of the China–Chile FTA (2005). Art. 19.12(1) of the RCEP; see also, e.g., Art. 15.8(1) of the China–Australia FTA (2015). Art. 19.15(1) of the RCEP; see also, e.g., Art. 15.8(3) of the China–Australia FTA (2015). Art. 19.15(1) of the RCEP; see also, e.g., Art. 15.13 of the China–Australia FTA (2015).

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

471

begin suspending concessions or other obligations 30 days after the date of the receipt of the notification.174

Compared with the WTO DSU, however, the dispute settlement provisions under the FTAs provide for neither the appellate level175 nor the authorized sanction mechanism. The FTAs furthermore clarify that the panel or arbitral tribunal may adopt a consensus or majority vote176 but not the ‘consensus not to adopt the report’ provided under the DSU.177 If the responding party has eliminated the non-conformity, the complaining party shall promptly stop the suspension of concessions or other obligations.178 The FTAs give more freedom of manoeuvre to the disputing parties; they are different from the mandatory nature of the WTO dispute settlement system. Nevertheless, the dispute resolutions under the FTAs are to some extent independent of the control of the parties. In this context, they have a flavour of judicial settlement. In a word, with China’s accession to the Paris Convention, the Berne Convention and the PCT, and the WTO TRIPS Agreement, and China’s negotiation of the FTAs, China’s attitude towards international IP dispute settlement systems has evolved from focussing on the political way to accepting judicial means. 22.5.2 China’s Practice Relating to Settling International IP Disputes China’s practice relating to international IP dispute settlement was concentrated on the WTO dispute settlement. No case has been reported under the WIPO conventions and the FTAs. Since China’s accession to the WTO, China has gradually learnt and used the WTO dispute settlement system, including the panel and appellate body procedures, to claim legal rights and legitimate interests.179 China has initiated twenty-two complaints180 and has been complained about in forty-nine cases.181 As regards IP cases, China has been cited as respondent in five cases: DS362 China – Measures Affecting the Protection and Enforcement of IPRs (2007); DS372 China – Measures Affecting Financial Information Services and Foreign Financial Information Suppliers (2008); DS542 China – Certain Measures Concerning the Protection of IPRs (2018); DS549 China – Certain Measures on the Transfer of Technology (2018); and DS611 China – Enforcement of IPRs (2022).182 The United States has initiated two cases against China: DS362 and DS542. It brought DS362 against China for Chinese failure to fulfil its obligations under the TRIPS Agreement relating to the protection and enforcement of works that have not been authorized for publication or distribution within China, the disposal of infringing goods confiscated by customs authorities, and the thresholds for criminal procedures and penalties for infringements of IPRs.183 174 175

176 177 178 179

180 181 182 183

Art. 19.17(3) of the RCEP; see also, e.g., Art. 15.16 of the China–Australia FTA (2015). Jian Zhang, ‘Innovation and Improvement of International Trade Dispute Settlement Mechanism in the Context of RCEP’ (2022) 2 Journal of China University of Political Science and Law, 216–29, 224 [张健 : 《RCEP背景下国际贸 易争端解决机制的创新与完善》, 《中国政法大学学报》2022年第2期, 第224页]. For example, Art. 19.13(6) of the RCEP, Art. 20.11(6) of the China–Korea FTA (2015). Art. 16(4) of the DSU. Art. 20.16(3) of the China–Korea FTA (2015). Jiaxiang Hu, ‘Empirical Analysis of China’s Participation in WTO Dispute Settlement Mechanism’ (2008) 11 Law, 66–76, 66 [胡加祥 : 《中国参与WTO争端解决机制的实证分析》, 《法学》2008年第11期, 第66页]. ‘Follow Disputes and Find Alerts’, WTO, www.wto.org/english/tratop_e/dispu_e/find_dispu_cases_e.htm. Ibid. Ibid. DS362 China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, www.wto.org /english/tratop_e/dispu_e/cases_e/ds362_e.htm.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

472

Jianqiang Nie

With respect to the works protection, the panel found that China’s failure to protect copyright in prohibited works (that is, works that are banned because of their illegal content) was inconsistent with Article 5(1) of the Berne Convention as incorporated in Articles 9.1 and 41.1, as the copyright in such prohibited works cannot be enforced.184 China also lost when it defended its disposal of infringing goods confiscated by customs authorities, that is, when it auctioned off the goods. The panel concluded that the way in which China’s customs authorities auctioned these goods was inconsistent with Article 59 because the auction permits the sale of goods after the simple removal of the trademark in more than just exceptional cases, which is not allowed under Article 59.185 The question of the thresholds for criminal procedures and penalties for infringement of IPRs is an interesting one. The panel did not endorse China’s thresholds but concluded that the factual evidence presented by the United States was inadequate to show whether or not the cases excluded from criminal liability met the TRIPS standard of ‘commercial scale’ when that standard is applied to China’s marketplace.186 China implemented the DSB adopted panel report via revision of the relevant provisions under the Copyright Law in 2010 and the Regulations for Customs Protection of IPRs in 2010. On 23 March 2018, the United States requested consultations with China again concerning certain measures pertaining to the protection of IPRs (DS542). The United States claimed that Chinese laws appeared to be inconsistent with Articles 3, 28.1(a) and (b) and 28.2 of the TRIPS Agreement, which relate to provisions on national treatment (Art. 3) and rights conferred (Art. 28).187 Owing to the panel being suspended twice and without being further requested to resume the work, the authority for the panel lapsed on 9 June 2021.188 The EU (EC) brought three cases against China: DS372, DS549 and DS611. Case DS372 concerns trade in services rather than protection of IPRs as such. China and the European Communities settled the dispute on 4 December 2008 by an agreement in the form of a MOU. Case DS549 concerns Chinese laws relating to transfer of technology, which the EU claimed were inconsistent with Articles 3, 28.1(a), 28.1(b), 28.2, 33, 39.1 and 39.2 of the TRIPS Agreement, Article X:3(a) of GATT 1994 and paragraph 2(A)2 of Part I of China’s Protocol of Accession. However, no further progress has been reported until now. Case DS611 is an interesting one. It concerns especially anti-suit injunctions issued by Chinese courts relating to standard essential patents cases and Chinese failure to publish three judicial judgments and to supply information on final judicial decisions.189 The EU claims that anti-suit injunctions prohibit patent holders from asserting their rights in other jurisdictions by commencing, continuing or enforcing the results of legal proceedings before a non-Chinese court. The Chinese measures at issue appear to be inconsistent with Chinese obligations under Articles 1.1, 28.1, 28.2, 41.1 and 44.1 of the TRIPS Agreement and section 2(A)(2) of China’s Accession Protocol.190 In respect of Chinese failure to publish judicial judgments and to supply information, the EU claims that China violates Articles 63.1 and 63.3 of 184

185 186 187

188 189

190

WTO Dispute Settlement: One-Page Case Summaries – 1995–2016, www.wto.org/english/tratop_e/dispu_e/ cases_e/1pagesum_e/ds362sum_e.pdf. Ibid. Ibid. China – Certain Measures Concerning the Protection of Intellectual Property Rights, Request for Consultations by the United States, WT/DS542/1, IP/D/38, 26 March 2018. Ibid. China – Enforcement of Intellectual Property Rights, Request for Consultations by the European Union, WT/ DS611/1, IP/D/43, G/L/1427, 22 February 2022. Ibid.

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

473

the TRIPS Agreement.191 On 27 January 2023, a panel was established, but it has not yet been composed.192 In a word, the WTO is the focus of China’s practice concerning international IP dispute settlement. China respects and learns from the WTO dispute system. When the United States and the EU initiated the five IP cases against China, China took the IP disputes seriously and defended her legal rights and legitimate interests in the WTO actively and persuasively. 22.5.3 Settlement of IP Disputes Under the China–US Agreements With respect to settling IP disputes between China and the United States, the 1992 China–US IPRs MOU prescribed consultation.193 Consultations were conducted in the spirit of the MOU, and on 26 February 1995, China and the United States exchanged letters on the protection of IPRs. The 2020 China–US Economic and Trade Agreement under its Chapter 7 sets forth the provisions on bilateral evaluation and dispute solution that are applicable to IP disputes.194 Dispute resolution includes provisions on appeal, scope of appeal, assessment and dispute procedures.195 The 2020 China–US Economic and Trade Agreement also adopts the consultation approach, although it places the emphasis on effectiveness and expeditiousness to resolve disputes. To that end, the Agreement contains a Bilateral Evaluation and Dispute Resolution Arrangement (Arrangement).196 The Arrangement sets forth a two-level structure: High-level Engagement and Daily Work. The High-level Engagement consists of the Trade Framework Group, which is to be led by the United States Trade Representative and a designated Vice Premier of the PRC. The Daily Work includes a Bilateral Evaluation and Dispute Resolution Office for each party. The Arrangement emphasizes consultation. It provides that the ‘Bilateral Evaluation and Dispute Resolution Offices shall . . . attempt to resolve disputes through consultations’.197 When the ‘assessment is completed, the designated officials shall begin consultations’.198 Where the ‘concerns of the Complaining Party are not resolved . . ., the Parties shall engage in expedited consultations on the response to the damages or losses incurred by the Complaining Party’.199 Concerning its effectiveness, the Arrangement provides to resolve disputes through administrative authorities in a hierarchical way. The ‘Complaining Party may submit an appeal to the Bilateral Evaluation and Dispute Resolution Office of the Party Complained Against’.200 ‘The Party Complained Against shall consider the facts, nature and seriousness of the issues presented by the Appeal.’201 If the Appeal cannot be resolved by the designated officials, the concerns may be raised to the designated Deputy United States Trade Representative and the designated Vice Minister. If the Appeal is not resolved at the deputy or viceministerial level, the Complaining Party may present 191 192 193 194 195 196 197 198 199 200 201

Ibid. Ibid. The 1992 China–US IPRs MOU, Art. 6. China–US Agreement (2020), Art. 7.1. Ibid., Art. 7.4. Ibid., Art. 7.1. Ibid., Art. 7.2(2)(c). Ibid., Art. 7.4(3). Ibid., Art. 7.4(4)(b). Ibid., Art. 7.4(1). Ibid., Art. 7.4(3).

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

474

Jianqiang Nie

the issue to the United States Trade Representative and the designated Vice Premier of the People’s Republic of China.202

As regards the expeditiousness, the Arrangement strengthens that ‘[b]oth parties will attempt to resolve the Appeal in the most efficient manner’.203 The Working Procedures of the Bilateral Evaluation and Dispute Resolution Arrangement further clarify the schedule of meetings, responses to requests for information and the dispute resolution timeline.204 Finally, the Arrangement also prescribes for remedies to be available to the complaining party where its concerns are not resolved. The parties shall engage in expedited consultations on the response to the damages or losses incurred by the complaining party. If the parties do not reach consensus on a response, the Complaining Party may resort to taking action, . . . including by suspending an obligation under this Agreement or by adopting a remedial measure in a proportionate way. . . . If the Party Complained Against considers that the action by the Complaining Party pursuant to this subparagraph was taken in good faith, the Party Complained Against may not adopt a counter-response, or otherwise challenge such action. If the Party Complained Against considers that the action of the Complaining Party was taken in bad faith, the remedy is to withdraw from this Agreement by providing written notice of withdrawal to the complaining Party.205

In a word, the bilateral China–US agreements focus on consultation to solve IP disputes. The 2020 China–US Economic and Trade Agreement follows the same logic of consultation but also focusses on the effectiveness and swiftness of the consultation. Furthermore, it imposes serious legal consequences in the case of failure to reach consensus through consultation. The Arrangement is different from the judicial nature of dispute resolution, which focusses on an independent third-party settlement. It seems that the process of dispute resolution is under the control of both parties. However, owing to asymmetry in power between China and the United States, the process will quite often be under the control of the United States. In conclusion, international IP dispute resolutions can be categorized from the perspective of the level of control of the disputing parties: the WTO model is to a large extent independent of the members’ control; the WIPO model is to a large extent controlled by the disputing parties; and the FTA model is to some extent independent of the control of the parties. China has accepted the mandatory dispute settlement system of the WTO and participated actively in the WTO dispute settlement practices.206 China has also negotiated and signed the judicial dispute settlement articles of the FTAs. China has changed its attitude towards international IP dispute settlement, moving from emphasizing political means to recognizing and supporting the judicial way. This attitude change corresponds to the evolution of the Chinese conception of international law. 22.6 CONCLUDING REMARKS

China is a newcomer to international IP law. Although some Western countries have continuously accused China of failing in IP protection, China has always striven hard to respect 202 203 204 205 206

Ibid., Art. 7.4(4)(a). Ibid., Art. 7.4(4). Ibid., Annex 7-A. Ibid., Art. 7.4(4)(b). Chenggang Li, ‘Ten Year Practice of China’s Participation in the WTO Dispute Settlement Mechanism’ (2011) 12 International Trade, 13–25, 13 [李成刚 : 《中国参与贸组织争端解决机制的十年实践》, 《国际贸易》2011年第 12期, 第13页].

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

22 China and International IP Law

475

international IP law. China has justified that IP has its own normative value and should be protected as such, taken active part in the negotiation of IP treaties, implemented its IP obligations in good faith, and accepted and supported judicial settlement of international IP disputes. It is true that not all of the processes are perfect. As China is the largest developing and transforming socialist country with its own thousand-year civilization, its interrelations with the international IP legal system are sure to be full of challenges. The process of legal construction of IPRs is not only a process of breaking through existing concepts but also a process of exploring innovative development paths.207 The interrelations are further complicated owing to a trial-anderror process of Chinese economic reform and opening-up to the world. Nevertheless, China makes every effort to respect the international IP legal system. China learns from the system, supports the system and contributes to the system. China is changing from being a follower of international IP law; it is elevating itself into being a key player in and a contributor to the international IP legal system. China deserves to be respected for her efforts, support and contribution to the system. Along with the rapidly growing knowledge-based economy and globalization, IP is playing a much more important role in national economic development and social progress. International IP law is accepted as an important instrument for governing cross-border intellectual creation, exploitation and protection. China is advocating for a fair, equitable, beneficial and inclusive international IP system. In the future, China will play a much more important role in developing international IP law.

207

Wenze Cao and Qian Wang, ‘Forty Years of China’s Intellectual Property Law: History, Characteristics and Prospects’ (2018) 11 Law, 3–16, 3 [曹文泽, 王迁 : 《中国知识产权法制四十年 : 历程、特征与展望》, 《法学》 2018年第11期, 第3页].

https://doi.org/10.1017/9781009041133.024 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law Bin Gu

23.1 INTRODUCTION

Globalization and multilateralism have been experiencing tremendous ups and downs in the aftermath of the 2008 global financial crisis. China had learnt that overdependence on the Bretton Woods institutions was unsustainable, and decided to push for the reform of global financial governance by ‘walking on two legs’: with one leg it initiated new international institutions, ranging from the Belt and Road Initiative (BRI), the Asian Infrastructure Investment Bank (AIIB), the New Development Bank (NDB), to the Multilateral Cooperation Center for Development Finance (MCDF), while with the other it continued to push the reforms in the World Bank and the International Monetary Fund (IMF) to realign the voting structure in favour of emerging powers and developing countries. The Chinese proverb ‘walking on two legs’ denotes both senses of balance and risk management – don’t put all your eggs in one basket. China keeps faith in the existing international institutions. As Chinese foreign minister Wang Yi stated, ‘We are not trying to build a rival system; on the contrary, we are trying to play a bigger role in the existing international order.’1 During the establishment of the AIIB, Robert Zoellick, former president of the World Bank, wrote a piece for the Financial Times, calling on the Obama administration to support the China-initiated bank.2 The American banker argued that ‘[t]he AIIB offers an opportunity to strengthen the very international economic system that the US created and sustained’.3 Indeed, the AIIB commits itself to complementing the traditional Bretton Woods system.4 Meanwhile, the AIIB is entitled to address the unsustainable elements of the existing world order,5 since the path-dependence culture of the traditional institutions and the American hegemony in them make such change from within difficult, if not unlikely. The traditional institutions have been criticized for having inconsistent lending policies. For example, the IMF generously bailed out Mexico under the guidance of the United States during the Mexico financial crisis in 1994.6 Its vigorous bailouts of some European nations during the 1

2 3 4

5

6

Wang Yi, ‘Foreign Minister Sets Out China’s Diplomatic Stall’, Xinhua (9 March 2016), at http://en.people.cn/n3/ 2016/0309/c90000-9027170.html. Robert B. Zoellick, ‘Shunning Beijing’s Infrastructure Bank Was a Mistake for the US’, Financial Times (7 June 2015). Ibid. The AIIB Articles of Agreement (AOA) provide in the preamble that the AIIB ‘will complement the existing multilateral development banks’. See my elaboration on the ‘unsustainable elements of the existing world order’, Bin Gu, ‘Chinese Multilateralism in the AIIB’ (2017) 20 Journal of International Economic Law, 137–58, at 141–3. The United States organized the bailout for Mexico because the United States’ trade and social stability hinged on Mexico, which was a member of the North American Free Trade Agreement and a neighbouring country to the United States.

476 https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

477

2009 eurozone crisis were all the more impressive. But, in a disappointing contrast, the IMF imposed harsh conditionality on Thailand and other South-East Asian countries during the 1997 Asian financial crisis. The Asian developing countries have little or no means to participate in the decision-making of those institutions. A similar situation exists with the World Bank. Thanks to the World Bank’s bureaucratic structures and practices, the borrowing countries are less empowered and thus less heard; the diverse national contexts are less considered; and the standards, being unfeasible, are less implemented. An international investigation report7 found that some of the World Bank projects had rendered poor records in respect of the implementation of environmental and social standards (ESSs). Particularly, those projects had been blamed for causing environmental deterioration, forced migration, low compensation for Indigenous people and so on. Some standards were burdensome and irrelevant, making the projects costly and delayed. Chinese multilateralism commits to changing the status quo. This chapter examines the reform and development in both traditional and new international financial institutions (IFIs), through the lens of ‘walking on two legs’, where the light of Chinese multilateralism has been shining. Section 23.2 surveys what Chinese multilateralism means as a point of departure in this chapter; in particular, China’s leadership role in the reform of global financial governance is discussed. Section 23.3 examines Chinese multilateralism as reflected in traditional financial institution reforms. It investigates two landmark case examples – (1) the IMF’s 2010 quota and governance reform and (2) the renminbi (RMB) joining the special drawing rights (SDR) basket – to show the general reform direction of increasing developing and emerging economies’ voice and representation in the Bretton Woods institutions, although the progress has been bumpy and often delayed. Sections 23.4–23.6 turn to new financial institutions, where China exercises leadership, to illustrate Chinese multilateralism specifically on three grounds: Section 23.4 on the ground of ‘extensive consultation, joint contribution, and shared benefits’ from a decision-making perspective; Section 23.5 on the ground of ‘high and feasible standards’ from a rule-making perspective; and Section 23.6 on the ground of legal interpretation and application from a teleological perspective. Section 23.5 on ‘high and feasible standards’ is further examined in light of three aspects: (1) environmental and social safeguards (Section 23.5.1), (2) open and transparent procurement (Section 23.5.2) and (3) debt sustainability (Section 23.5.3). Section 23.7 concludes. 23.2 CHINESE MULTILATERALISM IN GENERAL

Chinese multilateralism builds upon the wisdom of American multilateralism, combining well-established development theories, including international best practices, with developing countries’ particular needs and limited capabilities. American multilateralism is essentially rules-based, but with insufficient attention being paid to the voices of developing countries, the design and the implementation of its international rules and standards fail to take local conditions and needs into consideration, and thus fail to produce hoped-for results. This backfires on the reputation of American multilateralism. Chinese multilateralism addresses this defect by being responsive to the needs of particular developing countries, while maintaining a rules-based, high-standard system. This is best reflected in the BRI, the AIIB, the MCDF and the NDB. As regards China’s leadership role 7

Sasha Chavkin, Ben Hallman, Michael Hudson, Ce´cile Schilis-Gallego and Shane Shifflett, ‘How the World Bank Broke Its Promise to Protect the Poor’, HuffPost with ICIJ (15 April 2015), http://projects.huffingtonpost.com/world bank-evicted-abandoned.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

478

Bin Gu

in those institutions, it sounds logical to fear that China would seek hegemony in them. But the fear is groundless if we observe (1) from the angle of Chinese culture and China’s approach towards global governance; and (2) historical cases that involved China’s participation in international cooperation when China became a more powerful state, in particular since the turn of the new millennium. First, in its cultural gene, China is not a missionary society; it chooses to influence others more by inducing respect than by conversion,8 which contrasts with a hegemon’s intention to seek predominance over other countries.9 Since they were all initiated by China, along with other emerging powers, it is sensible that the four institutions are embedded with some degrees of Chinese multilateralism, different from what is typically expected in a US-dominated international organization. Chinese multilateralism holds that the light of international best practice shines only when it follows the principles of stakeholder engagement (e.g., meaningful consultations with borrowers) and situation-specific implementation. It is expected that in a China-led international organization, decisions are made through consultation more often than they are forcefully imposed by voting based on capital. Second, historical cases have consistently echoed the spirit of Chinese multilateralism. For example, in the USD 100 billion Contingency Reserve Arrangement (CRA) of the BRICS (Brazil, Russia, India, China, South Africa),10 which aims to provide emergency credit to BRICS members in financial duress – the same function as that of the IMF globally, China pledged USD 41 billion, while asking drawing rights of USD 20 billion only. In the Chiang Mai Initiative (CMI), a similar arrangement among Asian countries in the aftermath of the Asian financial crisis, China contributed USD 77 billion, while also voluntarily limiting its drawing rights.11 In AIIB operations, China as the biggest shareholder keeps advocating for the principle of ‘extensive consultation, joint contribution, and shared benefits’ or, alternatively, achieving ‘shared growth through discussion and collaboration’, with no intention of abusing veto power.12 China’s position regarding the BRI is similar to that regarding the AIIB, while both institutions can be compared to two engines, serving one aircraft of ‘a community of shared future for mankind’.13 China is no exception in the development of the MCDF and the NDB, playing a leadership role in them, while behaving responsibly to its partners. As the Chinese saying goes, ‘if we all chip in and add wood to the bonfire, the flames will be much higher’. Those case studies prove China to be a self-restrained and benign power in international cooperation. 23.3 CHINESE MULTILATERALISM AND TRADITIONAL FINANCIAL INSTITUTION REFORMS

In this section, I discuss how Chinese multilateralism is making an impact on the reform of the traditional international financial organizations. In the 14th Summit in Beijing in 2022, the BRICS countries collectively called for ‘the timely and successful completion of the 16th 8

9 10

11 12

13

As Confucius said, ‘If people from afar do not submit, influence them to do so by means of virtue and civil culture’ [‘远人不服, 则修文德以来之’ in Chinese]. An excellent exposition of China’s cultural mentality in the Western literature is seen in Henry A. Kissinger, World Order (New York: Penguin Books, 2015), 213–33. Bin Gu, ‘China, the US and What It Means to Be a Hegemon’, Straits Times (16 July 2022). Kai He and Huiyun Feng, ‘Leadership Transition and Global Governance: Role Conception, Institutional Balancing, and the AIIB’ (2019) 12 Chinese Journal of International Politics, 153–78, at 172. Ibid. Regarding China’s veto power in the AIIB, see Section 23.3. Also see Bin Gu and Tong Liu, ‘Shareholding Formulas in International Financial Institutions: Learning from the Asian Infrastructure Investment Bank’ (2022) 25(4) Journal of International Economic Law, 643–58, at 648–9. For an elaboration of the rhetoric ‘a community of shared future for mankind’, see Chapter 3 of this volume.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

479

General Review of Quotas by 15 December 2023, . . . to address under-representation of emerging markets and developing countries (EMDCs) for their meaningful engagement in the governance of IMF and protect the voice and quota shares of the poorest and smallest members’.14 Similar commitments in favour of EMDCs in the transition of global financial and economic governance, where China plays a leadership role, have been made in the G20 and other international platforms.15 During the past decade, the World Bank and the IMF have been embarking on a series of reforms in a bid to reflect the changed, and continuously changing, landscape of the world economy. This is because developing countries have been calling for a bigger say in the Bretton Woods institutions in terms of voting power, director seats, management appointment, staff recruitment and so on.16 The reforms catered to these countries’ demands, and resulted in increased voice and representation for them in those institutions. Two case studies are illustrated here, from which one may well conclude that ‘the two legs’ do not walk by themselves; they interact and reinforce each other. 23.3.1 The IMF’s 2010 Quota and Governance Reform The 2010 quota and governance reform is considered to be ‘the most fundamental governance overhaul’ in the IMF’s history, and ‘the biggest ever shift of influence in favor of emerging market and developing countries to recognize their growing role in the global economy’, as then IMF managing director Dominique Strauss-Kahn commented.17 And this comment remains true. The reform is two-pronged: one is quota increase and distribution, and the other is Board reform. The two prongs are closely linked by having the former’s effectiveness contingent upon the effectiveness of the latter. First, let us explore the quota increase and distribution. The quota is the primary asset of the IMF and it determines the IMF’s capacity to respond to the borrowing needs of its member states. The quota has four implications for a member state holding it: first, it determines how much the member is obliged to contribute to the Fund; second, it determines how many votes the member has in the decision-making of the IMF; third, it determines how much the member may borrow from the Fund; and fourth, it determines the member’s share in a general allocation of SDRs. Inspired by the burgeoning demands during the 2008 financial crisis and eurozone crisis, the IMF decided to double its quota totality from 238.5 billion SDRs to 477.7 billion SDRs (roughly equivalent to USD 737 billion). The increased quota would be distributed to member states for subscription. According to the reform plan, 6 per cent of the IMF quota would be shifted from the member states that were over-represented in the Fund to those that were underrepresented. It would mean that China moved from being the sixth largest shareholder in the IMF to the third largest, and that other BRICS countries (Brazil, Russia and India) would join the IMF’s top ten shareholder list for the first time ever. 14

15

16

17

‘XIV BRICS Summit Beijing Declaration’ (23 June 2022), www.fmprc.gov.cn/eng/zxxx_662805/202206/ t20220623_10709037.html. For example, G20 leaders declared in 2021 that they ‘remain committed to revisiting the adequacy of IMF quotas and will continue the process of IMF governance reform under the 16th General Review of Quotas, including a new quota formula as a guide, by 15 December 2023’; ‘G20 Rome Leaders’ Declaration’ (31 October 2021), www .g20.utoronto.ca/2021/211031-declaration.html. Some scholars may call this a revolutionary approach in international law, advocating the radical reform of the organs and the boards of the IMF and the World Bank where weighted voting favours Western states. The revolutionary approach is simply more concerned with changing the unjust system. Nigel D. White, The Law of International Organizations, 2nd ed. (Manchester: Manchester University Press, 2005), 40. ‘Press Release: IMF Executive Board Approves Major Overhaul of Quotas and Governance’ (5 November 2010), www .imf.org/en/News/Articles/2015/09/14/01/49/pr10418.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

480

Bin Gu

Second, let us turn to Board reform. According to the reform plan, the Executive Board of the IMF would retain the twenty-four-member size, but two seats in the Board would be relinquished by the over-represented European members and made available for African representation instead. Another important reform regarding IMF governance was the change in how Board members would be selected. Traditionally, the five biggest shareholders were privileged to ‘appoint’ their respective representatives in the Board. Under the reform plan, this privilege would be removed, and all Board members would be ‘elected’ by member states. These reforms involving the Executive Board, the central decision-making organ of the IMF, would surely help to achieve fair and equitable representation in the international organization. Third relates to the linkage between the quota change and the Board reform. In particular, the Board reform prong involved amendment of the IMF Articles of Agreement (AOA). It meant that the Board reform would take effect only if three-fifths of the IMF membership (i.e., 133 out of 188 members), representing 85 per cent of the total voting power, accepted it.18 The quota reform prong, in turn, would take effect only if (i) the Board reform took effect and (ii) members representing no less than 70 per cent of the IMF quota (as of 5 November 2010) accepted it. See Figure 23.1 showcasing the linkage between the two prongs of the 2010 quota and governance reform.19 It was not easy for the IMF – its Executive Board and its Board of Governors – to approve the 2010 quota and governance reform as a major achievement of the 14th General Review of Quotas, which takes place every five years.20 It turned out to be even tougher for the reform to take effect; it had a deadline originally set to be no later than 2012 but was delayed over and over again until 2016.21 The delay arose from the additional requirement of domestic acceptance of the reform plan by the member states. The United States, holding 16.7 per cent of the voting power in the IMF, decided to veto the reform by manoeuvring the linkage between its quota and its governance prongs. Its Congress blocked the proposed Board reform amendment and disapproved the necessary budget for subscribing its pertinent part of the increased IMF quota, until the establishment of the China-led AIIB in December 2015, when the United States became concerned that it might be left alone in the international community if procrastination persisted. Meanwhile, negotiations on a new quota formula are underway, as a guide for future IMF quota adjustments and in a bid to ‘increase . . . the quota shares of dynamic economies in line with their relative positions in the world economy’.22 The negotiations initially set a deadline of January 2013.23 It then became a crux in the subsequent 15th General Review of Quotas, which promised to conclude by January 2014. It was prolonged until an official declaration of failure in 18

19

20

21

22 23

The IMF AOA, Arts. XXVIII, stipulate in relevant parts: If the proposed amendment is approved by the Board of Governors, the Fund shall, by circular letter or telegram, ask all members whether they accept the proposed amendment. When three-fifths of the members, having eighty five percent of the total voting power, have accepted the proposed amendment, the Fund shall certify the fact by a formal communication addressed to all members. The chart is available at IMF, ‘IMF Quota and Governance Reform – Elements of an Agreement’ (31 October 2010), p. 9, www.imf.org/external/np/pp/eng/2010/103110.pdf. ‘The Board of Governors shall at intervals of not more than five years conduct a general review, and if it deems it appropriate propose an adjustment, of the quotas of the members.’ IMF AOA, Art. III, s. 2(a). ‘Press Release: IMF Managing Director Christine Lagarde Welcomes U.S. Congressional Approval of the 2010 Quota and Governance Reforms’ (18 December 2015), www.imf.org/en/News/Articles/2015/09/14/01/49/pr15573. IMF, ‘IMF Quotas’ (4 March 2021), www.imf.org/en/About/Factsheets/Sheets/2016/07/14/12/21/IMF-Quotas. IMF, ‘IMF Quota and Governance Reform’, supra note 19, at 1.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law Quotas

481

Governance

Timeline Amendment on Voice and Participation (2008) in force

Second Alternate ED

Amendment on all-elected Board in force By: 2012 Annual Meetings

14th General Review of Quotas effective, with consents from members having 70% of quotas

January 2013

Review of quota formula completed

January 2014

15th General Review of Quotas completed (Board of Governors resolution adopted)

Two fewer advanced European chairs Board composition reviewed every 8 years

figure 23.1 Quota and governance reform: a simple illustration of the phasing and interlinkages

Note: The arrow from X→Y indicates dependence of Y on completion of X.

2020.24 The quota formula reform remains top of the agenda of the ongoing 16th General Review of Quotas, scheduled to conclude by December 2023.25 It is unfortunate that ‘deadlines have come and gone, with next to no agreement’.26 The tactic of delay exercised by the United States during the IMF’s quota reforms has been widely criticized.27 23.3.2 The RMB Joined the SDR Basket The SDR basket is an international reserve asset created by the IMF and equating to gold and international convertible currencies in nature. As they evolve, SDRs play different roles. They were initially created in 1969, to complement gold and US dollars, since the par value system under the Bretton Woods system was not able to meet the liquidity demands as international trade grew. After the Bretton Woods system broke down in the 1970s, and because nations were able to access international capital markets with relative ease, the function of SDRs began to 24

25

26

27

IMF, ‘Fifteenth and Sixteenth General Reviews of Quotas – Report of the Executive Board to the Board of Governors’ (attaching a Draft Board of Governors Resolution concluding the fifteenth general review of quotas with no increase in quota) (13 January 2020), https://bit.ly/442OyHP. The Riyadh G20 leaders’ communique stated: ‘We remain committed to revisiting the adequacy of quotas and will continue the process of IMF governance reform under the 16th general review of quotas, including a new quota formula as a guide, by 15 December 2023.’ G20 Leaders Declaration, Riyadh, 21–22 November 2020, para. 14. This disappointing quote is from Jakob Vestergaard and Robert H. Wade, ‘Still in the Woods: Gridlock in the IMF and the World Bank Puts Multilateralism at Risk’ (2015) 6(1) Global Policy, 1–12, at 4. Kaya’s comment sheds light on the reason for the IMF stalemate: ‘[w]hile the formulae embody economic logic, such technical logic cannot be understood in a sterile manner that excludes politics’. See Ayse Kaya, Power and Global Economic Institutions (Cambridge: Cambridge University Press, 2015), 80. For example, Robert H. Wade and Jakob Vestergaard, ‘Why Is the IMF at an Impasse, and What Can Be Done about It?’ (2015) 6(3) Global Policy, 290–6.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

482

Bin Gu

diminish. It was not until the 2008 global financial crisis, when 182.6 billion SDR assets were pumped into the world economic system to complement nations’ foreign reserves, that the importance of SDRs was re-recognized. At the time of SDR initiation in 1969, one SDR equated to 0.888671 gram gold in value, that is, one US dollar. After the Bretton Woods system collapsed in 1971, a basket of currencies was used to determine the value of SDRs. Initially that basket had sixteen currencies. After 1999, as the global currency landscape evolved, four major international currencies were used instead, namely, the US dollar, the euro, the British pound and the Japanese yen. Those currencies weighed 41.9 per cent, 37.4 per cent, 11.3 per cent and 9.4 per cent, respectively, in the basket, prior to 2015 when the Chinese RMB joined the basket. As the weight of a currency in the SDR basket is determined by the evolving world economic landscape, as reflected in the currencyissuer nation’s trade and economic power and the currency’s position in international reserves, the valuation of SDRs must be adjusted accordingly. The Executive Board of the IMF is responsible for reviewing the valuation of SDRs. The purpose of such review is to ensure that SDRs keep representing the positions of the major currencies in world trade and finance, to increase the representation and attraction of SDRs, and to ultimately maintain the SDRs’ role as reserve assets. The scope of the review covers the standards for a potential currency to be selected to go in the basket; the number of currencies in the basket; the weighting of each currency in the basket; and the financial instruments used to determine SDR interest rates. For a new currency to join the basket, two criteria must be considered: First, during the past five years, the candidate currency-issuer nation should have been a major export country in goods and services. This criterion, which has existed since the 1970s, is to ensure that the basket currencies are at the core of the world economy. Second, the candidate currency must be deemed by the IMF a ‘freely useable currency’. This criterion was adopted by the IMF Executive Board in 2000 to capture the importance of financial transactions in the global economy. When the Executive Board of the IMF reviewed SDR valuation in 2010, it decided that the RMB met the export criterion but did not satisfy the ‘freely useable currency’ criterion. The RMB’s campaign to join the basket thus stalled. In 2015 the Executive Board made another review of the RMB. This time the review focussed on the test of ‘freely useable currency’ since the export criterion had been affirmed in the previous review. Besides this, work on the weighting of the basket currencies and the SDR interest rate instrument was also involved. The Executive Board ultimately determined that the RMB is a ‘freely useable currency’, thanks to China’s relentless efforts in improving its financial data transparency and opening up its financial markets during the previous years, as well as the IMF’s revision of its specific measurements for defining ‘freely useable currency’. The RMB formally joined the SDR basket in October 2016,28 after a period of transition, and was ranked in third place with a weight of 10.92 per cent, immediately after the US dollar and the euro.29 The latest SDR valuation review was concluded in May 2022,30 about one year later than originally scheduled as it takes place routinely every five years. Earlier the year before, the IMF Executive Board decided to extend the SDR basket until 31 July 2022 to prioritize its work in 28 29

30

IMF, ‘IMF Adds Chinese Renminbi to Special Drawing Rights Basket’ (30 September 2016), https://bit.ly/3OUgd9G. The US dollar weighed 41.73 per cent, the euro weighed 30.93 per cent, the Japanese yen weighed 8.33 per cent and the British pound weighed 8.09 per cent, after the RMB first joined the SDR basket in 2015. IMF, ‘IMF Executive Board Concludes Quinquennial SDR Valuation Review and Determines New Currency Weights for SDR Valuation Basket’ (14 May 2022), https://bit.ly/3YxyYTs.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

483

response to the Covid-19 pandemic, including the historic SDR allocation of USD 650 billion.31 The SDR valuation review in 2022 enabled the weight of the RMB to increase slightly to 12.28 per cent, still ranking third in the basket. All the while, it resulted in a slightly higher weight for the US dollar as well, and somewhat lower weights for the British pound, the euro and the Japanese yen.32 The RMB’s inclusion in 2016 diversified the SDR basket and made the composition of the basket more representative of the world’s major currencies. The IMF’s determination that the RMB is ‘freely usable’ reflects the ever-expanding role of China in global trade and the substantial increase in international use and trading of the currency. As then IMF managing director Christine Lagarde commented, the RMB’s inclusion was ‘an important milestone in the integration of the Chinese economy into the global financial system’. It was widely seen as a milestone step for RMB internationalization, reflecting the reform of global economic governance tilting towards emerging powers, since the RMB is the only currency from the developing world that is recognized as a major world currency. The increased weight of the RMB in the 2022 SDR valuation review is an acknowledgement of the deepened integration of the Chinese economy into the global financial system, while additional efforts are called upon to further open and deepen the onshore RMB market, and to further enhance data transparency, which will inform the direction for further internationalization of the RMB. 23.4 CHINESE MULTILATERALISM AND NEW FINANCIAL INSTITUTIONS: A PERSPECTIVE OF ‘EXTENSIVE CONSULTATION, JOINT CONTRIBUTION, AND SHARED BENEFITS’

China chose to start its contribution to global economic governance in the area of infrastructure and connectivity investments. Based on its own success in more than forty years of reform and openingup, where infrastructure building lays a solid ground, China is confident that infrastructure investment is vital to a country’s economic development, and it is ready to project this experience into the international arena. Statistics indicate that infrastructure investment needs in Asia alone between the year 2016 and 2030 will be USD 26 trillion, equalling USD 1.7 trillion each year on average.33 There is a large chunk of it yet to be met. But the key is not capital; rather, it is to have institutions that can use capital effectively and efficiently. The AIIB, the MCDF and the NDB – all initiated by China and other emerging economies – are committed to making it happen. Where the three institutions are all IFIs, it should be stressed that their decision-making processes are uniformly consensus-oriented, which is in contrast to the IMF and the World Bank. The golden rule of ‘extensive consultation, joint contribution, and shared benefits’, which China has been vigorously advocating during the campaign of the BRI, has been the tacit principle in these financial organizations. Such a consensus-building principle is consistent with Chinese multilateralism, enabling the needs and concerns of all stakeholders, including borrowers, to be heard. While American multilateralism similarly acknowledges consensus-seeking on the face of it, as exhibited in the rules of procedure in the Bretton Woods institutions, voices of developing countries as borrowers have traditionally been ignored, or heard little in operations, as criticized by Stiglitz, me 31

32

33

The IMF finished its largest ever general allocation of quotas in 2021, amounting to 456 billion SDRs, in a bid to boost global liquidity among member states, as well as to help poor and vulnerable countries to combat Covid-19 and debt distresses. IMF, ‘2021 General SDR Allocation’, www.imf.org/en/Topics/special-drawing-right/2021-SDR-Allocation. The US dollar weighs 43.38 per cent, the euro weighs 29.31 per cent, the Japanese yen weighs 7.59 per cent and the British pound weighs 7.44 per cent in the current SDR basket. AIIB Annual Report and Accounts 2016, at 7, quoting Asian Development Bank (ADB), ‘Meeting Asia’s Infrastructure Needs’ (2017).

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

484

Bin Gu

and others.34 In sequence, next is offered a brief introduction of the AIIB, the MCDF and the NDB, with the focus on the application of the consensus-building principle in decision-making. First, the AIIB is a capital-based international organization, like the World Bank and the IMF, where ‘one dollar, one vote’ is a traditional practice. In the AIIB, China holds 26.06 per cent of the Bank’s total voting power, securing it veto power over certain significant matters – increase of the Bank’s authorized capital stock, the size of the Board of Directors, election of the president, amendment of the AOA – all of which require ‘an affirmative vote of two-thirds of the total number of Governors, representing not less than three-fourths of the total voting power of the members’,35 a so-called super-majority vote.36 But, in practice, in the meetings of both the Board of Governors and the Board of Directors, consensus has always been preferred and sought over voting.37 As a dominant shareholder, China is committed to never vetoing, or threatening to veto, any matter that the majority of AIIB members favour, thus exhibiting the spirit of a self-restrained and benign power in international cooperation. The AIIB president also commits the Bank to ‘fully reflect the views, voices and values of all its shareholders’, in stark contrast to a US-dominated IFI, where the United States tends to threat to use veto power in the spirit of ‘America First’.38 Second, the MCDF is a multilateral platform that fosters high-quality infrastructure and connectivity for developing countries. It was initiated by China during the first Belt and Road Forum for International Cooperation (BRF) in May 2017, and the AIIB Board of Directors approved the AIIB assuming the role of MCDF administrator in June 2020. The MCDF has three designated functions: information sharing, capacity building, and project preparation – all spearheading high standards and quality in infrastructure investment.39 The MCDF’s activities are centred on the Finance Facility (responsible for capacity building and project preparation) and the Collaboration Platform (responsible for information sharing). The MCDF Governing Committee, the Finance Facility’s decision-making body, comprises contributors who are either voting members (if they commit at least USD 10 million for a period of five years at most, currently China, Egypt, Hungary and Saudi Arabia) or non-voting members (currently Cambodia, Lao PDR and Philippines).40 Decisions of the Governing Committee are made by consensus among the voting members.41 The MCDF Coordination Committee, overseeing the 34

35 36 37

38

39

40 41

Joseph E. Stiglitz, Globalization and Its Discontents (New York: Norton, 2002), at xiv, 41–50, 95–8; John W. Head, The Future of the Global Economic Organizations: An Evaluation of Criticisms Leveled at the IMF, the Multilateral Development Banks, and the WTO (Ardsley, NY: Transnational Publishers, 2005), 84–5, quoting Daniel D. Bradlow; Bin Gu, The Law and Governance of the Asian Infrastructure Investment Bank (Alphen aan den Rijn: Wolters Kluwer, 2019), at 8–9, 30–3. AIIB AOA Art. 28.2(ii). AIIB AOA Arts. 4, 25, 29, 53. AIIB Rules of Procedure of the Board of Governors, s. 9(a) provides: ‘Except as otherwise expressly provided in the Articles of Agreement, all matters before the Board shall be decided by a majority of the voting power of the votes cast. At any meeting the Chairman may ascertain the sense of the meeting in lieu of a formal vote but a formal vote shall be taken whenever requested by any Governor.’ Similarly, AIIB Rules of Procedure of the Board of Directors, s. 5(a) provides: ‘The Chairman shall ordinarily ascertain and announce to the meeting the sense of the meeting with regard to any matter and the Board shall be deemed to have acted in accordance with the announcement by the Chairman without the necessity of taking a formal vote.’ For example, the United States tried to block the appointment of WTO Director General Ngozi Okonjo-Iweala in 2020, as well as the effectuation of the IMF’s 2010 quota and governance reform, as discussed. The United States has never hesitated to threat to use veto power to retain the American presidency in the World Bank. On a detailed discussion of the MCDF’s functions, see Bin Gu, ‘MCDF: A New Beacon of Multilateralism in Development Finance’ (2020) 23(3) Journal of International Economic Law, 665–84, at 678–9. MCDF, ‘Partnering to Advance High-Quality Infrastructure and Connectivity’ (2021 Annual Report), pp. 11, 34. Governing Instrument of the Finance Facility of the MCDF (15 May 2020), the foundation document of the MCDF Finance Facility and the MCDF as a whole, states in Art. 9.2 that ‘Consensus shall be deemed to have been established in the absence of a request for a formal vote by any Voting Member. In the case of a formal vote, unanimity among Voting Members casting their votes shall be reached for all decisions otherwise requiring consensus.’

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

485

Collaboration Platform, consists of eleven multilateral development bank (MDB) parties to the Memorandum of Understanding (MOU) on Collaboration on Matters to Establish the MCDF and seven founding contributors to the MCDF Finance Facility. Decisions of the Coordination Committee are made by consensus among the members present at the meeting. Third, the NDB was established in 2015 by the BRICS countries. The Bank’s membership is open to members of the UN. The admission of the first four new members into the NDB in 2021 – Bangladesh, Egypt, the United Arab Emirates and Uruguay – heralded the beginning of the Bank’s expansion as a global multilateral institution. The purpose of the NDB is to ‘mobilize resources for infrastructure and sustainable development projects in BRICS and other emerging economies and developing countries’.42 The initial authorized capital stock of the NDB is USD 100 billion, of which USD 50 billion is initially subscribed and equally distributed among the five founding members. The permanent headquarters of the NDB is Shanghai, and the president is elected from one of the founding members on a rotational basis. The NDB is eligible to invest in both public and private projects, and its funding has a strong focus on local currencies, aiming to extend 30 per cent of total financing in local currencies (rather than the USD) according to the Bank’s General Strategy for 2022–6. Where there are formal requirements of voting for all matters before the NDB,43 that is, before the Board of Governors and the Board of Directors, consensus seeking is a normal and preferred practice, particularly in the Board of Directors.44 23.5 CHINESE MULTILATERALISM AND NEW FINANCIAL INSTITUTIONS: A PERSPECTIVE OF ‘HIGH AND FEASIBLE STANDARDS’

The community of development finance has been engaged in efforts to ‘think politically’ about aid.45 It has felt the need to increase flexibility of implementation, tolerate greater risk and ambiguity, devolve power from aid providers to aid partners, and avoid simplistic linear schemes for measuring results, all of which turns against long-established bureaucratic structures, practices and habits.46 For example, the IMF often prescribes and imposes a single, standard solution in lending activities, ignoring the concerns of borrowing countries.47 Borrowing countries have to commit to the principles under the Washington Consensus, namely, the three pillar reforms of fiscal austerity, privatization and market liberalization, in order to access IMF and World Bank funds, since these institutions are in the driver’s seat. The AIIB addresses those concerns by embracing both high and feasible standards to be responsive to the needs of borrowing countries, instead. 42 43

44

45

46 47

Agreement on the New Development Bank, Art. 1. There are three classes of voting: simple majority as default, qualified majority for important matters (e.g., change of the non-resident board, establishment of new special funds) and special majority for most important matters (e.g., admitting new members, amending the Agreement, increasing the size of the board, increasing the size of the capital stock, and distributing capital shares to new members). Articles of Agreement of the New Development Bank, Art. 6. Rules of Procedure of the Board of Governors of the New Development Bank (20 July 2016), s. 9(a): ‘At any meeting the Chairperson may ascertain the sense of the meeting in lieu of a formal vote but a formal vote shall be taken whenever requested by any Governor.’ Rules of Procedure of the Board of Directors of the New Development Bank (1 April 2019), s. 9(a): ‘The Chairperson shall ordinarily ascertain and announce to the meeting the sense of the meeting with regard to any matter and the Board shall be deemed to have acted in accordance with the announcement by the Chairperson without the necessity of taking a formal vote.’ World Bank, World Development Report 2017: Governance and the Law (Washington, DC: World Bank, 2017), https://doi.org/10.1596/978-1-4648-0950-7, at 27–8. Ibid., at 27–8, 271. Stiglitz, Globalization and Its Discontents, supra note 34, at xiv, 49–50.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

486

Bin Gu

First, high standards are integral in the operations of a top-notch development bank. There used to be concerns over what standards the AIIB would apply. Such concerns had substantially been relieved after the AIIB engaged internationally recognized experts to design its ESSs.48 The AIIB standards aim high for two reasons: The first reason is that maintaining high standards facilitates the AIIB’s financing needs in the global capital market. Satisfying high standards helps the AIIB to earn and maintain triple A credit ratings in the international capital market and borrow at low cost; this in turn enables the AIIB to lend at a favourable rate, maximizing development impact and return. The second reason is that high standards facilitate cooperation between the AIIB and other MDBs, which generally hold dear high standards in their operations. During recent years, most MDBs have updated their standards, demonstrating a trend of convergence. Second, AIIB standards must be feasible. They should be in line with the development needs of borrowing countries. While offering a leading role for the Bank’s clients in project preparation and implementation, AIIB standards are open to exploring greater flexibility for the benefit of borrowing countries, for example by relying on the latter’s system for standard compliance while conforming to AIIB’s core principles and standards, the so-called use of the country system (UCS).49 The high and feasible standards can be illustrated using the following three aspects. 23.5.1 Environmental and Social Safeguards In May 2021, the AIIB promulgated the new Environmental and Social Framework (ESF). It is a legal tool for regulating the behaviour of both AIIB staff and AIIB clients, in AIIB-financed projects, and the purpose is to safeguard project-affected people from possible negative impacts or risks in regard to environmental and social aspects. In effect as of October 2021, this new ESF is a major legal instrument to help the AIIB to achieve the ‘highest possible standards’,50 as embodied in its trademark corporate culture of ‘lean, clean and green’.51 The ESF, compared with its previous versions, offers stronger climate change provisions in alignment with the Paris Agreement and uses environmental, social and governance (ESG) approaches to capital market investments, among other innovative arrangements. Pursuant to the AIIB Charter, the Bank’s investment areas are ‘infrastructure and other productive sectors’,52 which normally means specific infrastructure projects, including physical, digital and social ones, but it may also invest in publicly traded securities in support of capital market engagement in infrastructure development.53 In such cases, the Bank will engage an asset 48

49

50

51

52 53

The AIIB not only engaged international experts in designing its ESSs but also opened international forums for experts from the World Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the European Investment Bank and so on, to discuss its ESSs, in a bid for the highest possible standards. The UCS may be understood in terms of both (1) environmental and social standards, and (2) procurement standards in an AIIB-financed project, as revealed in Sections 23.5.1 and 23.5.2, respectively. The quote is from a statement by then AIIB president-designate Jin Liqun; it has been reiterated both in AIIB official documents and on the AIIB’s official website. See AIIB, ‘Statement by Jin Liqun at a Press Conference in Tbilisi’ (26 August 2015), www.aiib.org/en/news-events/news/2015/Statement-by-Jin-Liqun-at-a-Press-Conference-inTbilisi.html. The three words are commonly defined as follows: ‘lean’, meaning with a small, efficient management team and highly skilled staff; ‘clean’, meaning an ethical organization with zero tolerance for corruption; and ‘green’, an institution that is built on respect for the environment. Nevertheless, the technical definitions vary across AIIB official documents. AIIB AOA, Art. 1(1). AIIB, ‘Environmental and Social Framework (ESF)’ (May 2021), vision, paras. 29–30, www.aiib.org/en/policiesstrategies/framework-agreements/environmental-social-framework.html. The authorization of such special investments is derived from AIIB AOA, Art. 16(9), which states: ‘The Bank may exercise such other powers and establish such rules and regulations as may be necessary or appropriate in furtherance of its purpose and functions, consistent with the provisions of this Agreement.’

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

487

manager or an investment advisor, leveraging the latter’s expertise to make individual investment decisions, rather than doing the job by itself. The engaged asset manager is expected to invest in infrastructure-related corporate bonds, thereby still serving the purpose of the AIIB. Furthermore, as its text is designed for ‘a private, bilateral agreement’ between the AIIB and the borrower, the ESF does not apply readily to portfolio investments featuring ‘a public, huband-spoke relationship’ between a bond issuer and numerous institutional investors (that is, the position of the AIIB).54 In this context, a special ESG framework is put in place, in lieu of the ESF, to enable the Bank to assess environmental and social risks involving such portfolio investments. Probably unaware of the high-standard dimensions of the ESG framework, as well as the inherent limit of the AIIB ESF as described, some critics wrongly blame the AIIB for lowering standards by choosing ‘to forgo its own standards for this new dynamic frontier of investment’.55 The AIIB’s ESG portfolio investments represent ‘a new and dynamic frontier’ for traditional MDBs, as acknowledged in the ESF.56 It invests in bond markets, guided by the ESG credentials of corporate issuers, and in the form of public–private partnership. By contrast, neither the World Bank nor the International Finance Corporation (IFC) acknowledges ESG portfolio investments in their ESFs.57 Partnering with an asset manager, the AIIB has the ambition to promote ESG market education across Asian capital markets, which are at an early development phase, compared with mature markets such as the United States and Western Europe.58 In the process, the AIIB expects to be a norm setter in this emerging area. As indicated in its Sustainable Capital Markets Initiative (SCMI), a winner of Environmental Finance’s 2021 Impact Awards,59 the ‘AIIB and the investment advisor will work to develop relevant benchmarks/indices based on learnings from the two portfolios, . . . [and] to test and report on ESG integration techniques applied to infrastructure-linked corporate bonds’.60 The AIIB-Amundi Climate Change Investment Framework is such a pilot knowledge product concerning climate bonds investments; in particular, it translates the key objectives of the Paris Agreement into fundamental metrics to assess an issuer’s level of alignment with climate change mitigation and adaptation objectives.61 While the AIIB’s environmental and social standards are high, they also aim to be feasible. In particular, the ESF prioritizes stakeholder engagement and meaningful consultation, 54

55

56

57

58

59 60 61

Specifically, capital markets investment is ‘governed by the terms of the publicly traded securities; the environmental and social assessment of any potential investment is made on the basis of publicly available information; reporting is made to all securities holders in the same manner; and environmental and social performance is more suitably assessed at the corporate rather than asset level by measuring publicly available ESG information against widely acknowledged benchmarks’. AIIB ESF 2021, ESP, para. 12. K. Horta and W. Wang, The Beijing-Led Asian Infrastructure Investment Bank: Global Leader in Infrastructure Finance, at What Cost? (Berlin: Heinrich Bo¨ll Foundation, October 2021), 13, 29. ‘Mobilization by development finance institutions of financial resources for infrastructure development through investments in publicly traded securities (i.e. stocks and bonds) using environmental, social and governance (ESG) approaches is a new and dynamic frontier’; AIIB ESF 2021, vision, para. 29 (emphasis added). An exceptional provision, which is general in nature, is that ‘[g]iven the importance of the private sector’s role in the reduction of greenhouse gas (GHG) emissions, IFC will engage in innovative investments’. See IFC, ‘Sustainability Framework’ (Policy on Environmental and Social Sustainability, para. 10) (1 January 2012), https://bit.ly/3qm404h. Statistics indicate that, among the top twenty countries for annual green bonds issuance in 2020, the United States led national rankings (US$51.1 billion), with Germany second (US$40.2 billion), France third (US$32.1 billion), China fourth (US$17.2 billion) and the Netherlands fifth (US$17 billion). See the Climate Bonds Initiative, ‘Record $ Green Issuance for 2020: Late Surge Sees Pandemic Year Pip 2019 Total by $3bn’ (24 January 2021), https://bit.ly /47xn7J6. Environmental Finance, ‘IMPACT Awards 2021’, https://bit.ly/3QAP6Sa. AIIB, ‘Asia Climate Bond Portfolio ESG Framework’ (version 1, March 2020), pp. 7–8, https://bit.ly/457YWiS. AIIB, ‘AIIB-Amundi Climate Change Investment Framework’, https://bit.ly/44fAATm.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

488

Bin Gu

committing that ‘all relevant parties have a voice in consultation, including national and subnational government, the private sector, nongovernmental organizations and people affected by the Project’.62 Where borrowing countries are duly heard and respected in AIIB decisionmaking, the principle of ‘extensive consultation, joint contribution, and shared benefits’ applies. Besides, the ESF emphasizes social development ‘in a manner consistent with local conditions’, while encouraging the subrogate use of the country systems if they are ‘materially consistent’ with its own.63 It defines good international practice as employing ‘the most appropriate technologies in the Project-specific circumstances’.64 Meanwhile, the implementation of AIIB standards is emphasized in order to avoid window-dressing, and strict monitoring responsibilities for both the AIIB and its clients are required.65 The AIIB must be held accountable for noncompliance under the Project-affected People’s Mechanism (PPM).66 23.5.2 Open and Transparent Procurement Each MDB has its own procurement policy regulating procurement in projects financed by it wholly or partially. The AIIB’s procurement policy follows the principles of value for money, sustainable development and integrity, which in turn take effect through efficient, fair, ethical and transparent procurement processes.67 Specific legal arrangements are designed and implemented to live up to those core procurement principles and standards. For example, in the case of public entities as loan recipients, procurement follows the formal international open competitive tendering norm,68 which is an MDB standard method of procurement. In the case of private entity borrowers, the use of competitive tendering methods may also be required, particularly for large contracts. Besides, the AIIB has established a quasi-judicial sanctions system that deals with corruption and fraudulence involved in project bidding and implementation under the Policy on Prohibited Practices (PPP), serving a major goal of building a clean bank.69 Meanwhile, the AIIB permits for its projects alternative procurement arrangements (APAs), which exist in two major forms: country systems and co-financing.70 For procurement under ‘country systems’, an AIIB-financed project defers to the borrowing country’s system of procurement design and implementation, which is nevertheless subject to the AIIB’s review and acceptance. Specifically, the AIIB assesses the borrower’s procurement system and the fiduciary risk involved.71 Such review and assessment ensure that the national procurement system to be applied is consistent with the AIIB’s statutory procurement principles and standards. For procurement under co-financing, an AIIB-financed project defers to the lead co-financer’s procurement system. The AIIB’s co-financer may be another MDB, a bilateral agency, an export credit agency or a private bank. Co-financing is categorized into two types: parallel co-financing 62 63 64 65 66

67 68 69

70 71

AIIB Environmental and Social Framework (May 2021), vision para. 18 and ESS1 para. 23.2. Ibid., vision para. 13 and ESP para. 54.1. Ibid., glossary. Ibid., ESP paras. 80–2. On a review of the highlights of the PPM, see Bin Gu, ‘A Legal Study of the Asian Infrastructure Investment Bank’s New Environmental and Social Framework’ (5 September 2022) Review of European, Comparative & International Environmental Law, 9–11, https://doi.org/10.1111/reel.12461. AIIB Procurement Policy (January 2016), ‘Vision Statement’. Ibid., para. 5.6. On a detailed discussion of the AIIB’s sanctions regime, Bin Gu, The Law and Governance of the Asian Infrastructure Investment Bank (Alphen aan den Rijn: Wolters Kluwer, 2019), 143–72. See AIIB Procurement Policy (January 2016), para. 5.4 on country systems and para. 5.11 on co-financing. Ibid., para. 5.4.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

489

and joint co-financing.72 Often APAs appear in joint co-financing, where it is untenable to apply two or more procurement frameworks to the same contract. In such a situation, the lead cofinancer is normally responsible for overseeing the procurement process, and its procurement policy applies accordingly. Typically, it is the other bank rather than the AIIB that acts as the lead co-financer. An interesting exception is a project co-financed by the AIIB and the Asian Development Bank (ADB) where the ADB is the lead co-financer, but the applied standard is the AIIB’s global procurement,73 not the ADB’s limiting standard.74 Thus, by co-financing with peer institutions, the AIIB is able not only to learn from those peer institutions but also, perhaps, to enlighten them about open and inclusive procurement arrangements. Among others, one key advantage that APAs bring is flexibility, to both AIIB and borrower countries. For example, under the country systems, APAs will strengthen national institutions in developing countries for public expenditures and will help harmonize aid flows, streamline the disbursement of funds, reduce donor overhead costs and return control over aid flows to borrowing countries.75 Thus, borrowing governments particularly emphasize country systems, arguing, ‘We have our own laws, why should we follow your procedures?’76 In the case of cofinancing, APAs make it possible for the lead financier’s procurement system, rather than all cofinanciers’ systems, to apply to a single project, thereby reducing the borrower’s compliance costs and contributing to project efficiency. 23.5.3 Debt Sustainability Debt sustainability is an important pillar of good governance, as acknowledged in the G20 Principles for Quality Infrastructure Investment in Osaka in 2019. It has become a top agenda before the international community, as Covid-19 struck low-income countries in particular. China initiated the Debt Sustainability Framework for Participating Countries of the Belt and Road Initiative (BRI-DSF), marking its major effort in dealing with debt sustainability. The BRI-DSF builds upon the IMF/World Bank’s Debt Sustainability Framework for Low Income Countries (LIC-DSF), combining best international practice with the local situations in BRI borrowing partners. Drawing upon China’s own developing experiences in particular, the BRI-DSF considers that a nation may take off optimally by starting from infrastructure investments. Such investments may well temporarily push high the nation’s debt level, but in the long term the infrastructure funded will lay the foundation for boosting foreign investments, exports and growth, thus resulting in sustainable development. The key is to find bankable projects and be wary of white-elephant projects, ensuring that investment returns surpass costs. Specifically, the BRI-DSF states that ‘[p]roductive investment, while increasing debt ratios in the short run, can generate higher economic growth, fiscal revenue and export, leading to lower 72

73

74

75

76

Ibid., para. 5.11. Parallel co-financing refers to the case in which co-financers individually finance separate contracts under one project; joint co-financing means that co-financers finance portions of the same contract under the project. AIIB Project Document, ‘Islamic Republic of Pakistan National Motorway M-4 (Shorkot-Khanewal Section) Project (PD 00001-PAK, June 6, 2016)’, para. 14, https://bit.ly/47Gzp2a. The ADB standard confines the project procurement to ADB membership only. ADB Articles of Agreement, Art. 14(ix). Gregory F. Smith and Timothy D. Ross (ed.), Multilateral Development Banks: US Policies and Contributions (New York: Nova Science Publishers, 2012), 31. Chris Humphrey, ‘The “Hassle Factor” of MDB Lending and Borrower Demand in Latin America’ in Susan Park and Jonathan R. Strand (eds.), Global Economic Governance and the Development Practices of the Multilateral Development Banks, 143–66 (New York: Routledge, 2016), 157.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

490

Bin Gu

debt ratios over time’.77 Consistent with this long-term view of debt sustainability, the BRI-DSF further notes: [A]n assessment for a country as [at] ‘high risk’ of debt distress, or even ‘in debt distress’, does not automatically mean that debt is unsustainable in a forward-looking sense. In general, when a country is likely to meet its current and future repayment obligations, its [public and publicly guaranteed] external debt and overall public debt are sustainable. In practice, sustainability would imply that the debt level and debt service profile are such that the policies needed for debt stabilization under both the baseline and realistic shock scenarios are politically feasible and socially acceptable, and consistent with preserving growth at a satisfactory level, while making adequate progress towards the authorities’ development goals. Thus, other factors not captured in the model, like feasibility issues, debt structure and holders, and impact on development goals, also need to be accounted for.78

This long-term view of debt sustainability in the BRI-DSF echoes the AIIB’s rules and practice. Article 13.6 of the AIIB AOA stipulates that [i]n providing or guaranteeing financing, the Bank shall pay due regard to the prospects that the recipient and guarantor, if any, will be in a position to meet their obligations under the financing contract’ (emphasis added). The provision does not require that the borrower is able to repay the loan at the time of borrowing; rather, it takes a forward look when assessing the debt situation of the borrowing country. As a precedent condition, the AIIB may ask for the debt data from a borrowing country, by having such right written beforehand into each sovereign-backed loan agreement.79 For example, in the landmark trans-Anatolian natural gas pipeline project, the AIIB investment team assessed the debt situation of both the borrower company SGC (a state-owned enterprise in Republic of Azerbaijan) and the Republic of Azerbaijan as guarantor. The AIIB concluded in the loan document that the project, with a funding volume of USD 8.6 billion, would bring a heavy debt burden upon Azerbaijan in the short term, but in the long run it would reward the country and the debt would be sustainable.80 23.6 CHINESE MULTILATERALISM AND NEW FINANCIAL INSTITUTIONS: A TELEOLOGICAL PERSPECTIVE IN LEGAL INTERPRETATION

Chinese multilateralism is expected to feed into the rule-making and implementation process. Such process should have some degree of flexibility and be situation-sensitive rather than ‘one size fits all’. It holds that law does not live in a vacuum; rather, it lives only when applied to particular facts and acts. As for the interpretation of institutional law, an advisable approach is the teleological (rather than the legalistic) methodology, which means that ‘for a finding that an institution has a particular power, the power needs not be shown to be necessarily or even reasonably implicit in any power given expressly by the institution’s law. It is enough that its exercise may further the achievement of the institution’s purposes, and that it is not prohibited by or inconsistent with the institution’s law.’81 In other words, an institution may make decisions 77

78 79

80

81

Ministry of Finance of People’s Republic of China, Debt Sustainability Framework for Participating Countries of the Belt and Road Initiative (25 April 2019), http://wjb.mof.gov.cn/ywwz_14955/Cooperation/mulid/202011/ P020201104575791004623.docx, para. 16. Ibid., para. 35. AIIB General Conditions for Sovereign-Backed Loans (1 May 2016), Art. V, s. 5.01 states: ‘The Member shall periodically furnish to the Bank all such information as the Bank shall reasonably request with respect to financial and economic conditions in its territory, including its balance of payments and its External Debt.’ Project Document of Asian Infrastructure Investment Bank: Republic of Azerbaijan Trans Anatolian Natural Gas Pipeline (TANAP) Project (PD0015-AZE, December 7, 2016), Annex 3, paras. 35–6. Jan Wouters and Jed Odermatt, ‘Assessing the Legality of Decisions’ in Jacob Katz Cogan, Ian Hurd and Ian Johnstone (eds.), The Oxford Handbook of International Organizations, 1006–25 (New York: Oxford University Press, 2016), 1019.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

491

concerning issues that are not explicitly mentioned in its constitution where this is required for the institution to fulfil its tasks and objectives. One must keep in mind that a teleological methodology tends to be conducive to the development of a new institution, while being no less consistent with the rule-of-law principle than a legalistic methodology. For example, a choice of interpreting the relationship between the BRI, the AIIB and the MCDF from a teleological perspective would enable those institutions to mutually reinforce each other, ultimately contributing to the formation of a new world order featuring a shared future for mankind. Respectively, the BRI is an international cooperative platform in a bid to enhance regional connectivity both within and between Asia, Europe, Africa and other regions. The AIIB identifies two purposive elements in the constituent instrument, the AOA: infrastructure connectivity and institutional cooperation. And the MCDF vows to serve as ‘a platform to foster high-quality infrastructure and connectivity for developing countries’.82 Thus, the three international agendas do converge in purpose and mandate, all having their mandates focussing on one and the same area: infrastructure and connectivity investments. In light of the shared object and purpose, it is sensible to argue that the three international institutions should be eligible to help and serve each other, given that there is no explicit provision against such cooperation. There are legal, theoretical and historical grounds to support this argument. Historically, the teleological methodology, or the doctrine of implied powers, informed the constitutional development of a state, as well as that of an international organization. First, on the interpretation of a national constitution, one of the most telling examples is the early development of the US Constitution in the eighteenth century. Alexander Hamilton used the doctrine of implied powers masterfully to expand the powers of the federal government, including establishing a central bank, when he encountered a strong denial from James Madison, the chief architect of the Constitution, who argued that ‘[r]eviewing the Constitution . . . it was not possible to discover in it the power to incorporate a bank’.83 Hamilton retorted by turning to Article 1.8 of the Constitution, a catch-all clause giving Congress the right to pass any legislation deemed ‘necessary and proper’ to exercise its listed powers, of which he argued for a liberal interpretation: ‘it is not denied that there are implied as well as express powers and that the former are as effectually delegated as the latter’.84 Hamilton’s interpretation won the support of both Congress and President Washington, ultimately giving birth to the Bank of the United States, and making good on American early development.85 Second, the doctrine of implied powers also helps in understanding the constitution of an international organization. Take the creation of the International Centre for Settlement of Investment Disputes (ICSID) by the World Bank during the 1960s, for example. The World Bank aims, among other purposes as designated in its Charter, to promote private capital flow to developing countries.86 But the Charter is short of an explicit mandate to establish an independent dispute-settlement institution focussed on arbitrating disputes between foreign investors and host developing countries to help achieve such purpose. Aron Broches, then general counsel of the World Bank, used the doctrine of implied powers skilfully to make it happen, arguing that the cause of the ICSID would serve the Bank’s purpose, and that the Bank’s powers were not 82

83 84 85 86

Memorandum of Understanding on Collaboration on Matters to Establish the Multilateral Cooperation Center for Development Finance (25 March 2019) (hereinafter, ‘The 2019 MOU of the MCDF’), Art. I.1. Find the MOU text at www.aiib.org/en/about-aiib/who-we-are/partnership/_download/collaboration-on-matters.pdf. Ron Chernow, Alexander Hamilton (London: Head of Zeus, 2016), 350. Ibid., at 350, 354. Ibid., at 350–5. International Bank for Reconstruction and Development (IBRD), AOA, Art. 1.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

492

Bin Gu

limited to those that were granted in express terms.87 Broches eventually persuaded the Bank’s executive directors to pass a decision to establish the ICSID; it eventually served to widen and deepen the flow of private capital to developing countries. The Vienna Convention on the Law of Treaties (VCLT) of 1969 encompasses a wide variety of means of treaty interpretation, the foremost of which is that a treaty should be read according to the ordinary meaning in the context of purpose and object.88 It is fair to say that a holistic interpretation, that is, reading purpose into text, is appropriate, and the two possible extremes of textualism and purposivism are unacceptable. But when it comes to interpretation of the constitution of an international organization, the element of purpose should, and tends to, be given more weight. This is because, enacted during the establishment of the international organization, a constitution cannot foresee all specific powers necessary to achieve the purpose stipulated in it, and thus it makes sense that the executive head of the organization be given sufficient discretion, provided that the exercise of such powers does not run counter to any explicit provision of the constitution. Even James Madison agreed that ‘For every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object; and be often properly varied whist the object remains the same.’89 There is much support in doctrine, and in practice, for the view that ‘particular attention must be given to the object and purpose of the relevant constitution and the aims of the international organization concerned’.90 International court case studies find that strong support gives ‘a meaning to constitutional provisions that is most favorable for giving effect to the objectives of the organization’.91 For example, the International Court of Justice (ICJ) Judge Weeramantry stated that, in the interpretation of constitutions of international organizations, ‘particularly one which sets before itself certain sociological or humanitarian goals, the task of interpretation should be guided by the object and purpose . . . A literal interpretation, using strict method of anchoring interpretation to the letter rather than the spirit . . . would be inappropriate.’92 On another occasion the ICJ stated similarly that ‘when the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that action is not ultra vires the Organization’.93 The teleological interpretation method, or alternatively the doctrine of implied powers, should be instructive for an appropriate understanding of the relationship between the AIIB and the BRI. Some people are concerned about whether the AIIB, as an independent international organization, should serve the BRI, which they consider is China’s own diplomatic 87

The position was expressed as follows by Broches in his 1959 lectures at the Hague Academy of International Law on ‘The International Legal Aspects of the Operations of the World Bank’: [T]he Bank’s powers are not limited to those that are granted in express terms. The fact that an operation or transaction is not expressly authorized or contemplated by a specific provision of the Articles, does not mean that the Bank has no power to undertake it. Whether it has or does not have a particular power must be determined in the light of the Bank’s purposes, by which all the Bank’s decisions must be guided.

88 89

90

91 92 93

Antonio R. Parra, The History of ICSID (Oxford: Oxford University Press, 2012), 29 n. 9, quoting Broches. The Vienna Convention on the Law of Treaties, Art. 31. Alexander Hamilton, James Madison and John Jay, The Federalist Papers, No. 44 (New York: Bantam Dell, 1982), 275. Niels Blokker, ‘Constituent Instruments’ in Jacob Katz Cogan, Ian Hurd and Ian Johnstone (eds.), The Oxford Handbook of International Organizations, 943–61 (New York: Oxford University Press, 2016), 955. Ibid. Ibid., quoting WHO Nuclear Weapons, Dissenting Opinion, ICJ Reports 1996, 148. Parra, The History of ICSID, supra note 87, at 29 n. 9, quoting Certain Expenses of the United Nations, 1949 ICJ Rep. 151, 168.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

23 Chinese Multilateralism in International Financial Law

493

strategy. Legal critics would argue that since no legal clause of the AIIB’s AOA refers explicitly to the BRI, the AIIB may not invest a dime in a BRI project, let alone act as a BRI partner. Such an approach – characterized as legalistic and disfavouring establishing nexus between the BRI and the AIIB – is detrimental to the development of the BRI, and even more so to that of the AIIB. Such a choice of interpretation would risk managing global public goods in a fragmented and isolated manner, failing an optimal synergy between the BRI and the AIIB. Admittedly, the term BRI does not appear in the AIIB Charter, or in any of its internal legal documents so far. But this does not mean that the AIIB is not eligible to serve the BRI. Since the BRI is ostensibly conducive to the realization of the AIIB’s objectives, as prescribed in its AOA Article 1.1, the AIIB should not hesitate to invest in BRI projects in order to achieve such designated purposes. Authorization of BRI investments may also be derived from AIIB AOA Article 16.9, which states: ‘The Bank may exercise such other powers and establish such rules and regulations as may be necessary or appropriate in furtherance of its purpose and functions, consistent with the provisions of this Agreement.’ Those clauses are the very legal basis for the AIIB to serve the BRI. It is reasonable to argue that all AIIB-funded projects may be characterized as BRI projects because they have so far all laid along the BRI routes.94 The MCDF’s relationship with the BRI and the AIIB follows the same logic line. First, let us consider the relationship between the MCDF and the BRI. The idea of the MCDF first appeared in the 2017 MOU of the BRI.95 Thus, the MCDF has an inborn connection with the BRI, although the MCDF’s mandate is not limited to the BRI; rather, it may expand to serve other initiatives, such as the EU’s connectivity plan for Eurasia. It is noted that the BRI is no longer mentioned in the language of the 2019 MOU of the MCDF. Second, let us turn to the relationship between the MCDF and the AIIB. No doubt the AIIB has been a faithful supporter of the MCDF, as it is a signatory to both the 2017 and the 2019 MOUs relating to the MCDF. The former AIIB vice president Von Amsberg endorsed it thus: ‘the MCDF is a timely initiative, as larger investment needs are demanding stronger coordination among stakeholders. By working with and through the development banks, the MCDF will promote a multilateral approach to connectivity initiatives and investments.’96 In 2020, the AIIB decided to host the MCDF, providing secretariat service for it and acting as the administrator of its funding facility. 23.7 CONCLUDING REMARKS

More than once, I have encountered an interesting question along the lines of ‘If China advocates Chinese multilateralism, India advocates Indian multilateralism and the EU advocates European multilateralism, then, with so many types of multilateralism, is it possible for nations to cooperate really in a multilateral manner?’ Indeed, Chinese multilateralism does not intend to decouple from others. The essence of Chinese multilateralism is an improvement on the existing world order, taking stock of both international best practices and particularities of the developing world, the latter of which were unfortunately ignored or heard little in the past. Chinese multilateralism promises to secure developing countries’ voice and representation in global financial governance. 94 95

96

See a complete list of AIIB approved projects at www.aiib.org/en/projects/list/index.html?status=Approved. The MOU’s full name is ‘Memoranda of Understanding on Collaboration on Matters of Common Interest under the Belt and Road Initiative’ (14 May 2017). Its text is available at www.ndb.int/wp-content/uploads/2018/09/MOU-onBRI-signed.pdf. ‘Multilateral Development Banks Key to Connectivity: VP of AIIB’ (26 April 2019), www.china.org.cn/business/201904/26/content_74725509.htm.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

494

Bin Gu

Chinese multilateralism makes it happen by walking on two legs, that is, reforming the old IFIs, while establishing new IFIs. The success of Chinese multilateralism lies in its advocating for the principle of ‘extensive consultation, joint contribution, and shared benefits’, for adherence to high and feasible standards, and for use of a teleological perspective in legal interpretation. China is the driving force behind the success of Chinese multilateralism. To further its success, China needs to maintain the image of a self-restrained and benign power in international cooperation; in other words, ‘in order to become a respected norm-maker, China must first be seen to be fully integrated as an appropriate norm-taker’.97 Finally, the nature of Chinese multilateralism is not unique but shared elsewhere. For example, emphasis on infrastructure and connectivity investments has been shared by many others, including the World Bank and Japan in the past. As a matter of fact, China was able to take off decades ago by choosing first to invest in infrastructure, thanks to the experiences drawn from Japan.98 Now, as part of Chinese multilateralism, China’s success in this sector is being shared and promoted through the AIIB, the MCDF and the NDB. As another example, from a perspective of good governance, the preference for consensus in decision-making within the AIIB is shared in the World Bank, and the promotion of alternative use of standards (namely, UCS) is also on the agenda of the World Bank. These years the World Bank considers borrowers’ local situations much more than before, reflecting in the 2017 World Development Report that it must ‘think not only about the form of institutions, but also about their functions; think not only about capacity building, but also about power asymmetries; think not only about the rule of law, but also about the role of law’.99 So, rather than de-coupling in this turbulent world, we have been experiencing dynamic reforms in global financial governance, with the destination of a droit commun still far away.100

97

98

99 100

Ignacio de la Rasilla and Hao Yayezi, ‘The Community of Shared Future for Mankind and China’s Legalist Turn in International Relations’ (2021) 20(2) Chinese Journal of International Law, 341–79, at 378. Deng Xiaoping, China’s chief designer of reform and opening up, stated that economic modernization should start from transport and telecommunication investments, drawing on the experience of Japan. He also commented that, in order to lay a solid foundation for economic development, four areas were important, among which were energy and transport. Deng Xiaoping, Selected Works of Deng Xiaoping [邓小平文选] (Beijing: People’s Publishing House, 1993), vol. 3, at 54, 165. See also Li Lanqing, Breakthrough: When the National Gate First Opens [突围:国门初开的 岁月] (Beijing: Central Literature Press, 2008), 277–316. World Bank, World Development Report 2017, supra note 45, at 71. The notion of droit commun is defined as a process through which various organizations develop and implement similar standards, rules or procedures. A droit commun allows for the emergence of a distinct legal corpus of the harmonized standards, rules and procedures that the institutions have in common. See Laurence Boisson de Chazournes, ‘Partnership, Emulation, and Coordination: Toward the Emergency of a Droit Commun in the Field of Development Finance’ in Hassane Cisse´, Daniel D. Bradlow and Benedict Kingsbury (eds), The World Bank Legal Review, Vol. 3: International Financial Institutions and Global Legal Governance, 173–88 (Washington, DC: World Bank, 2012), 174.

https://doi.org/10.1017/9781009041133.025 Published online by Cambridge University Press

p a r t vi i i

International Dispute Settlement

Published online by Cambridge University Press

Published online by Cambridge University Press

24 China and International Dispute Settlement by Adjudicative and Other Means Ignacio de la Rasilla and Yayezi Hao

24.1 INTRODUCTION

This chapter aims to examine how China’s new international assertiveness is affecting China’s engagement with international adjudication1 and, more broadly, with international dispute settlement during the rise of China.2 The prevalent perception in international legal and policy circles is that China is averse to international adjudication – broadly understood as the settlement of international disputes by adjudicative means, whether through independent third-party arbitrators or by judges on the basis of international law3 – preferring instead to have recourse to diplomatic and other alternative dispute settlement methods. However, on closer look, as Harriet Moynihan has noted, China’s current approach to international adjudication is characterized by ‘a general and gradual shift in recent years from outright rejection of legal methods of international dispute settlement towards greater acceptance of it in certain contexts’.4 To assess this contemporary trend, this chapter provides an updated holistic picture of the asymmetrical nature of China’s engagement with international adjudication across all relevant international legal regimes, identifying the rationales for China’s different attitude towards the corresponding adjudicative mechanisms in each case. It complements this analysis by examining a series of background factors, including Chinese major contemporary policy initiatives pointing both in favour of and against the maintenance of the present status quo in this area. The epistemic value of this approach lies in that it allows us to present a more nuanced understanding of China’s often misunderstood, and occasionally mischaracterized, asymmetrical and regime-specific approach to international adjudication and to identify and assess relevant Chinese patterns of state-behaviour regarding international dispute settlement. The chapter examines China’s asymmetrical engagement with different areas of international adjudication, at a time of rising Chinese assertiveness and influence in the shaping of international law, using a tripartite typology. Section 24.2 examines the relatively minor, yet still remarkable softening of China’s traditional strategic detachment from international adjudicative systems concerning general public international law, international criminal law and international human rights law. These areas exemplify China’s lowest point of engagement with the international adjudicative system, with different rationales in each case. Section 24.3 focusses on 1

2

3 4

For an earlier perspective, see J. G. Ku, ‘China and the Future of International Adjudication’ (2012) 27 Maryland Journal of International Law, 154. In particular, C. Cai, The Rise of China and International Law: Taking Chinese Exceptionalism Seriously (New York: Oxford University Press, 2019). J. G. Merrills, International Dispute Settlement (Cambridge: Cambridge University Press, 2011). H. Moynihan, ‘Briefing: China’s Evolving Approach to International Dispute Settlement’, Chatham House (29 March 2017), https://bit.ly/3pROoFj.

497 https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

498

Ignacio de la Rasilla and Yayezi Hao

China’s deepening engagement with other international adjudicative systems, namely in the areas of international trade law, and international commercial and investment law, paying attention to how the dispute prevention and settlement system of the Belt and Road Initiative (BRI) is currently taking shape. Section 24.4 looks at China’s exploratory accommodation of international settlement mechanisms in the law of the sea and newer areas. Section 24.5 then examines an array of concomitant cultural, historical, political and contemporary strategic factors weighing both for and against China moving beyond its current ‘comfort zone’ regarding international adjudication, while Section 24.6 recaps the main findings of the chapter. 24.2 CHINA’S STRATEGIC DETACHMENT FROM THE INTERNATIONAL COURT OF JUSTICE, INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS, AND SEMI-ADJUDICATIVE HUMAN RIGHTS MECHANISMS

24.2.1 China and the International Court of Justice (ICJ) With the exception of a single case when China was the subject of an order for measures for interim protection by the Permanent Court of International Justice (PCIJ) in 1927,5 neither the Republic of China (ROC) nor the People’s Republic of China (PRC), which replaced the ROC in the UN membership as the ‘sole and legitimate representative Government of China’ in 1971,6 has ever participated in any contentious proceedings before the PCJI or the ICJ. This inexistent record is in stark contrast with numerous cases involving the other permanent members of the UN Security Council (UNSC) since 1971 and even more so with the altogether ‘one hundred and three different countries [which] have appeared in 133 contentious proceedings before the ICJ’7 over time. Accounting for this meagre record is the fact that the PRC has never accepted the compulsory jurisdiction over all disputes of the ICJ within the limits of each state’s declaration in accordance with Article 36(2) of the ICJ’s Statute8 and it has never entered into a special agreement with any state to submit disputes by compromis to the ICJ regarding any treaty. In fact, soon after taking over the ROC’s UN membership, the PRC denounced the ROC’s previous declaration under Article 36(2) in 1946,9 which had followed in the footsteps of its earlier acceptance of the compulsory jurisdiction of the PCIJ for certain disputes under the Optional Protocol to the League of Nations in 1920. Likewise, the PRC has made reservations to most provisions referring

5

6

7

8 9

After China had unilaterally terminated an ‘unequal treaty’ with Belgium dating from 1865 on, inter alia, the basis of the doctrine of rebus sic stantibus. The procedure was subsequently discontinued following a political agreement. See Denunciation of Treaty of November 2nd, 1865, between China and Belgium (Belgium v. China), 1927 PCIJ (ser. A) No. 8. See, e.g., C. Tang, ‘China–Europe’ in B. Fassbender and A. Peters (eds.), The Oxford Handbook of the History of International Law, 701–23 (Oxford: Oxford University Press, 2012), 706–11. See UNGA, Restoration of the Lawful Rights of the People’s Republic of China in the United Nations, 25 October 1971, A/RES/2758 (XXVI), GAOR 26th Sess., Supp. No. 29. Yet, the PRC avoided nominating any Chinese judge in the next four consecutive elections to the ICJ until 1984. Since 1985, three Chinese judges have sat on the ICJ’s bench: Zhengyu Ni (1985–94), Jiuyong Shi (1994–2010) and Hanqin Xue (2010–). See, e.g., S. Sucharitkul, ‘Rebirth of Chinese Legal Scholarship, with Regard to International Law’ (1990) 3 Leiden Journal of International Law, 3. As of 31 July 2019, according to M. A. Young, E. Nyhan and H. Charlesworth, ‘Studying Country-Specific Engagements with the International Court of Justice’ (2019) 10 Journal of International Dispute Settlement, 582. See ICJ, ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory’, www.icj-cij.org/en/declarations. UNGA, Report of the International Court of Justice (August 1972–July 1973), A/9005, GAOR 28th Sess., Supp. No. 5, 1.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

499

disputes on the interpretation or application of international treaties to the ICJ.10 Besides some early exceptions involving technical matters,11 the PRC’s practice of invariably making reservations to dispute settlement provisions according jurisdiction to the ICJ began to alter slightly in the early 1990s.12 This followed a political declaration to that effect, affecting international conventions ‘related to the economy, trade, science, technology, aviation, the environment, transportation, culture and other technical fields’.13 In 1993, China also accepted the conventional jurisdiction of the ICJ under Article 64 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID). However, since then, and despite China being a party to dozens of conventions with dispute settlement mechanisms, the ICJ has fallen squarely within the adjudicative domain where China has almost invariably reserved not to use it. In fact, all in all, according to one study, ‘the PRC is only party to nine conventions or agreements (other than bilateral investment treaties) that require it to submit to compulsory dispute settlement, where the PRC cannot block jurisdiction after a dispute arises’.14 In 2014, the Marshall Islands became the only state that has brought a case against China before the ICJ as part of its multi-submission against the nine nuclear armed states on grounds of these being in breach of Article 6 of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT).15 Several rationales may account for the Chinese reluctance to relinquish its sovereign discretion over international adjudication to the principal judicial organ of the UN of which Charter China was the first signatory country ‘in recognition of its long-standing fight against aggression’ in the aftermath of World War II.16 The first and often cited reason is that the ICJ partakes in historical concerns that have hindered China’s engagement with international adjudicative bodies in general. These include a historical legacy of deep-seated mistrust, as Moynihan notes, of ‘international law as a Western construct, used in the past as a tool of Western imperialism, including in the imposition on China of unequal treaties in the 19th century’.17 Indeed, in the past the PRC often voiced its mistrust of the ICJ – including when it rejected India’s offer to submit the 1962 Sino–Indian border conflicts to the ICJ18 – as an instrument in the hands of Western imperialist states and their so-called bourgeois international law and, in particular after the controversial resolution of the South West Africa cases in 1966, as a symbol of an international legal system biased against the developing world. However, this line of historical/ideological argument has largely receded into the background in the wake of China’s now 10

11

12

13 14 15

16

17 18

See, e.g., reservation to Art. 22 of the International Convention on the Elimination of all forms of Racial Discrimination (1981). See Ku, supra note 1, referring to a series of conventions on technical matters such as the International Convention for Safe Containers, opened for signature 2 December 1972, 1064 UNTS 26 (PRC Accession, 23 December 1980). In 1993, China ratified the Convention on Biological Diversity, the UN Framework Convention on Climate Change and the Convention on the Settlement of Investment Disputes between States and Nations of Other States (Washington Convention). In 1997, China also ratified the Chemical Weapons Convention. See Ku, supra note 1. D. Zhu, China and the International Criminal Court (Singapore: Springer, 2018), 25. Ku, supra note 1. The application filed against the PRC did not enter the Court’s General List since China did not accept the invitation of the Marshall Islands (Art. 38(5) of the Rules of Court). See Obligations Concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, [2016] ICJ Rep. 833, 845, para. 22. United Nations Department of Public Information, ‘Yearbook of the United Nations 1946–47’ (November 1947), www.unmultimedia.org/searchers/yearbook/page.jsp?volume=1946–47&page=1, para. 15. Moynihan, supra note 4, at 2. N. Tao, ‘China’s Attitude towards International Adjudication: Past, Present and Future’ in A. Kent, N. Skoutaris and J. Trinidad (eds.), The Future of International Courts: Regional, Institutional and Procedural Challenges, 55–75 (New York: Routledge, 2019), 59.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

500

Ignacio de la Rasilla and Yayezi Hao

far greater integration into the global system of international law and institutions, the less-Westcentric evolution in the direction of the ICJ case law and the increasingly diverse multinational composition of the Court.19 All these factors have largely contributed to assuaging Chinese negative perceptions of the ICJ as a Western-biased institution and their substitution, instead, by numerous recent declarations by China in support of the ICJ in diplomatic fora.20 Today, one should instead look into a different set of underlying reasons inspired by strategic considerations in areas of core national interest to account for China’s continuous detachment from the ICJ’s contentious proceedings. Among them figure prominently the Chinese ‘red lines’ regarding pending territorial disputes,21 one of the issues that more often occupies the ICJ docket. To the fact that China’s territorial claims over the Diaoyu/Senkaku Islands22 and the South China Sea have the potential to create serious territorial conflicts with neighbouring states one should add that China still has ‘disputes with nearly all neighbouring countries over territorial and maritime demarcations and many of them remain unsettled’.23 To these factors, one should add China’s consistent opposition, under the ‘One-China policy’, to secessionist claims from Taiwan as well as to secessionist risks from Tibet, Xinjiang province or, even, Hong Kong.24 In fact, the unease felt by China regarding both the risks posed by secessionist threats and the territorial disputes goes a long way towards explaining the PRC’s first-ever two recent participations in advisory proceedings,25 both involving the principle of the selfdetermination of peoples, before the ICJ. The first time was on the occasion of the advisory opinion on the Kosovo case in 2009 where China expressed both in written and, for the first and, so far, only time, oral proceedings before the ICJ its consideration that the principle of self-determination of peoples is limited to colonial cases and its opposition to any right to secession under international law.26 Other than in order to contribute its views as an important member of the international community on significant international legal issues, it is generally understood that the rationale behind China’s seizing the opportunity afforded by the Kosovo case to reaffirm the principle of state sovereignty and territorial integrity lies with underlying threats of secessionist claims regarding Taiwan, Tibet and Xinjiang province.27 More recently, in 2018 on the occasion of the General Assembly’s request for an advisory opinion on the ‘Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965’, China highlighted its long-standing support for the principle of self-determination of peoples in colonial cases and its own experience as ‘once 19

20

21 22

23 24

25

26

27

L. Obregon, ‘The Third World Judges: Neutrality, Bias or Activism at the Permanent Court of International Justice and International Court of Justice?’ in W. Schabas and S. Murphy (eds.), The Research Handbook on International Courts and Tribunals, 181–200 (Cheltenham: Edward Elgar, 2017). ‘Statement by Mr Hong Xu, Chinese Delegate, Director General of the Ministry of Foreign Affairs of China at the 71st Session of the UN General Assembly on Agenda Item 70, Report of the International Court of Justice (27 October 2016), cited in Cai, supra note 2, at 284. On the settlement of territorial disputes, see further in this volume Chapter 25. See M. H. Loja, ‘Status Quo Post Bellum and the Legal Resolution of the Territorial Dispute between China and Japan over Senkaku/Diaoyu Islands’ (2016) 27 European Journal of International Law, 979. Cai, supra note 2, at 283. C. Cai, ‘China and the International Court of Justice’ in A. Skordas and L. Mardikian (eds.), Research Handbook on the International Court of Justice (Cheltenham: Edward Elgar, in press), p. 17 of 30 pp. This is in contrast with the ROC, which submitted several written statements to the ICJ in advisory proceedings See, further, P. L. Hsieh, ‘The Discipline of International Law in Republican China and Contemporary Taiwan’ (2015) 14 Washington University Global Studies Law Review, 89–90. Written Statement of the People’s Republic of China, ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’ (16 April 2009), www.icj-cij.org/files/case-related/141/15611.pdf. ICJ Verbatim Record, CR 2009/29 (7 December 2009), www.icj-cij.org/public/files/case-related/141/141–20091207ORA-01–00-BI.pdf, para. 16. Cai, supra note 24.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

501

a victim of aggression and oppression under imperialism and colonialism’.28 Moreover, in its written statement it also reminded the Court that it ‘should uphold and respect the principle of consent when a purely bilateral dispute is involved, thus to ensure that its opinion should not have the effect of circumventing or prejudicing this principle’,29 even in the course of advisory proceedings. According to Cai, the specific rationale behind China’s seizing the opportunity afforded by the Chagos case to reaffirm its staunch attachment to the principle of consent to jurisdiction lies in the fact that China was at the time ‘highly alert to the means used to resolve territorial disputes in the wake of the South China Sea arbitration’,30 which it had consistently opposed, in 2016. In conclusion, it is worth noting the minor, yet remarkable softening of China’s hitherto principled absolute detachment from the ICJ from the times of its outright rejection of the Court before, and even for almost two decades after, it joined the UN in 1971. Indeed, there are signs, as we have seen, of a certain Chinese opening to participation in advisory proceedings and there are also certain technical areas where China could potentially be brought as a respondent before the Court. Moreover, China could indicate its willingness to have recourse to a compromis by which it would keep its power to negotiate the scope of an ongoing dispute with another state party at any time. On the other hand, following a well-established Chinese practice at the World Trade Organization’s dispute settlement system (WTO DSS), where China is with 181 participations the third most active third party,31 one should not discard a future recourse by China to the procedure of third-party intervention before the ICJ provided for by Articles 62 and 63 of the ICJ’s Statute.32 However, China’s strategic pattern of resistance to third party adjudication at the ICJ is, for the reasons aforementioned, overall entrenched. This is why, despite China’s comparative greater participation including, indirectly, through the appointment of Chinese judges who have become ‘more and more active’ in their issuing of individual opinions,33 and remarkable change of diplomatic attitude towards the ICJ over recent decades, a dramatic shift in its policy towards the ICJ remains hard to foresee in the near future. 24.2.2 The International Criminal Court and Other International Criminal Tribunals (ICTs) China remains among the approximately one-third of countries in the world, most of which are Asian states,34 that do not belong to the 123 states that have ratified the Statute of the International Criminal Court (ICC). However, although China was one of the seven countries present at the Rome Conference in 1998 that voted against the ICC Statute because of its concerns regarding 28

29

30 31

32

33 34

Written Statement of the People’s Republic of China, ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’ (1 March 2018), www.icj-cij.org/files/case-related/169/169–20180301-WRI-03–00EN.pdf, para. 12. Ibid., para. 18. See also S. Yee, ‘Notes on the International Court of Justice (Part 7) – The Upcoming Separation of the Chagos Archipelago Advisory Opinion: Between the Court’s Participation in the UN’s Work on Decolonization and the Consent Principle in International Dispute Settlement’ (2017) 16 Chinese Journal of International Law, 623. Cai, supra note 24, at 19. World Trade Organization, ‘Disputes by Member’, www.wto.org/english/tratop_e/dispu_e/dispu_by_ country_e .htm. M. Papadaki, ‘Intervention: International Court of Justice (ICJ)’ in Max Planck Encyclopaedia of International Procedural Law (2019), https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3025.013.3025/law-mpeipro-e3025? prd=MPIL. Cai, supra note 24, at 20–4. H. Takemura, ‘The Asian Region and the International Criminal Court’ in Y. Nakanishi (ed.), Contemporary Issues in Human Rights Law: Europe and Asia, 107–25 (Singapore: Springer, 2017).

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

502

Ignacio de la Rasilla and Yayezi Hao

‘complementarity, state consent, prosecutorial discretion, the core crimes and the role of the Security Council’,35 it had supported the ICC project from the outset and had actively participated in the negotiation of the ICC Statute.36 Moreover, in contrast to the shifting attitudes of various US administrations, which since the withdrawal of the United States’ signature from the ICC Statute have included phases of extreme diplomatic pressure and open active hostility towards the ICC,37 up to the most recent presidential executive order setting sanctions against ICC officials in relation to ICC investigations of US personnel in June 2020,38 China has arguably followed a ‘more consistent and constructive’39 pattern regarding it. Indeed, according to Zhu, China has ‘constantly followed closely the development of the ICC’ through ‘different forms of engagement’, including, for instance, as an active observer during the review conference in Kampala in 2010.40 China has also directly contributed to the ICC’s operations as a member of the UNSC by voting or abstaining in several cases of referral to the ICC’s Prosecutor, including both the 2005 Darfur case41 and the 2011 Libya case,42 while nonetheless opposing them on other occasions such as the referral of the situation in Syria in 2014.43 This non-confrontational attitude towards the ICC has historical roots dating back to China’s participation in the International Military Tribunal for the Far East in the aftermath of World War II. While only a few individuals were indicted and punished, and China admittedly ‘remained disappointed by the lack of prosecution of the Emperor Hirohito and other members of the imperial family’,44 other trials of war crimes were held in domestic military tribunals in China in 1946–8 and 1956. This mixed historical background partly accounts for how China’s support for the development of international adjudication in international criminal matters has extended to the backing it has lent to the creation of ad hoc ICTs at the UNSC, whether through a positive vote, as in the case of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993,45 or by abstaining, as on the International Criminal Tribunal for Rwanda (ICTR) in 1994.46 Furthermore, China has contributed several Chinese judges to their benches47 and backed up the establishment of the International Residual Mechanism for

35 36 37

38

39 40 41

42

43 44

45

46

47

Zhu, supra note 13. Ibid. See, e.g., L. N. Sadat and M. A. Drumbl, The United States and the International Criminal Court: A Complicated, Uneasy, Yet at Times Engaging Relationship, Washington University in St. Louis Legal Studies Research Paper Series (2016), https://scholarlycommons.law.wlu.edu/wlufac/504/. Human Rights Watch, ‘US Sets Sanctions Against International Criminal Court Trump Executive Order Seeks to Thwart Justice for Victims’ (11 June 2020), www.hrw.org/news/2020/06/11/us-sets-sanctions-against-internationalcriminal-court. Zhu, supra note 13, at 13. Ibid. Abstention in reference to the situation in Darfur. See UNSC, Resolution 1593 (2005), adopted by the Security Council at its 5158th meeting, on 31 March 2005, S/RES/1593 (2005). Voted in favour. See UNSC, Resolution 1970 (2011), adopted by the Security Council at its 6491st meeting, on 26 February 2011, S/RES/1970 (2011). See UNSC, Security Council, 69th year: 7180th meeting, Thursday 22 May 2014, New York, S/PV.7180 (2014), 4. D. Zhu, ‘From Tokyo to Rome: A Chinese Perspective’ in D. Liu and B. Zhang (eds.), Historical War Crimes Trials in Asia, 31–57 (Brussels: Torkel Opsahl Academic EPublisher (TOAEP), 2016). See UNSC, Resolution 827 (1993), adopted by the Security Council at its 3217th meeting, 25 May 1993, S/RES/827 (1993). See UNSC, Resolution 955 (1994), adopted by the Security Council at its 3453rd meeting, 8 November 1994, S/RES/ 955 (1994). Haopei Li (1993–7) at the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), Tieya Wang (1997–2000) at the ICTY, Daqun Liu (2000–) at the ICTY and the ICTR, and so on.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

503

Criminal Tribunals (UNMICT) in 2010.48 On the other hand, China has also supported the establishment of hybrid criminal tribunals. This support has included voting in favour of the establishment of the Special Court for Sierra Leone (2000) at the UNSC,49 voting in favour of the Extraordinary Chambers in the Courts of Cambodia (2002) at the General Assembly,50 and voting in favour and/or abstaining in different UNSC resolutions related to the establishment of the Special Tribunal for Lebanon (2007).51 However, China’s non-obstructive attitude to the establishment of ICTs by the UNSC has been accompanied by certain important caveats. These included the literal statement that ‘in principle, China is not in favour of invoking at will Chapter VII of the Charter to establish an international tribunal’52 and, therefore, the Chinese stress is on the ‘ad-hoc arrangement’ character and the non-precedential value of the UNSC’s establishment of the ICTY53 and the ICTR.54 Regarding Chinese support for hybrid tribunals with the agreement of the host state, this has been accompanied by the statement that ‘the principle of national sovereignty (particularly judicial sovereignty) and non-interference in internal affairs must be respected in light of the independence of sovereign states’.55 In conclusion, China is not a signatory of the ICC Statute and, despite recent calls for the ‘Chinese authorities to reassess its objections towards the Rome Statute’s complementarity regime’,56 it is extremely unlikely to become one in the near future.57 China’s commitment to the principles of sovereignty and of non-interference in domestic affairs remains obvious in that it is not willing to risk the indictment of any Chinese citizen by such international courts, or by the same token by any foreign domestic court under the doctrine of universal jurisdiction, which it has strongly opposed in cases brought in the past, for instance, before Spanish domestic courts regarding Tibet.58 However, China’s overall attitude to international criminal law matters has been non-obstructive and, therefore, facilitative overall of the great rise in international adjudication in this area since the end of the Cold War. Accounting for China’s attitude are an array of historical reasons regarding the memory of the atrocities committed against Chinese nationals during World War II, the particular functions played by international criminal courts and tribunals, including their punitive and deterrent functions, and the role they perform in regard to the maintenance of international peace and security for which China has special responsibilities as a permanent member of the UNSC. This attitude has, inter alia, been reflected in how China has even voiced its support, as we shall later see, for the establishment by the UNSC of an international piracy tribunal in recent years.59 48

49

50 51

52

53

54

55 56

57 58 59

UNSC, Resolution 1966 (2010), adopted by the Security Council at its 6463rd meeting, on 22 December 2010, S/RES/ 1966 (2010) establishing the International Residual Mechanism for Criminal Tribunals 2010 for the performance of the remaining functions of the ICTY and the ICTR following the completion of the tribunals’ trials and appeals. UNSC, Resolution 1315 (2000), adopted by the Security Council at its 4186th meeting, on 14 August 2000, S/RES/ 1315(2000). UNGA, Resolution 57/228, adopted by the General Assembly, 18 December 2002, ARES/57/228(2002). Its vote in favour of Resolution 1664 (2006), its abstention in Resolution 1757 (2007) by the UNSC, and UNSC, Security Council, 62nd year: 5685th meeting, Wednesday 30 May 2007, New York, S/PV.5685, at 4–5. See UNSC, Resolution 955 (1994), adopted by the Security Council at its 3453rd meeting, on 8 November 1994, S/ RES/955 (1994). See UNSC, Resolution 827 (1993), adopted by the Security Council at its 3217th meeting, 25 May 1993, S/RES/827 (1993). See UNSC, Resolution 955 (1994), adopted by the Security Council at its 3453rd meeting, 8 November 1994, S/RES/955 (1994). Zhu, supra note 13, at 28. D. Zhu, ‘The Complementarity Regime of the International Criminal Court: Concerns of China’ (2019) 41 University of Pennsylvania Journal of International Law, 177. On international criminal law, see further Chapter 12 in this volume. I. de la Rasilla, ‘The Swan Song of Universal Jurisdiction in Spain’ (2009) 9 International Criminal Law Review, 777. UNSC, Resolution 1976 (2011), adopted by the Security Council at its 6512th meeting, 11 April 2011, S/RES/1976 (2011).

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

504

Ignacio de la Rasilla and Yayezi Hao

24.2.3 Semi-adjudicative Mechanisms in International Human Rights Treaties The Chinese government actively contributed to the drafting of the Universal Declaration of Human Rights (UDHR),60 and also to early discussions about adjudicative mechanisms to implement the nascent international legal regime, showing an ambivalently positive attitude towards the idea of an International Court of Human Rights.61 Today, more than seventy years since Chiang Kai-shek’s government voted in favour of GA Resolution 217 to adopt the UDHR in 1948, the PRC is currently party to twenty-six international human rights treaties,62 including six of the core multilateral human rights conventions which it has ratified.63 However, China has made reservations to the compromissory clause, whereby a dispute between state parties can be referred to the ICJ, contained in all of these treaties. Moreover, China does not consent to the individual or interstate communication procedures of any of the UN human rights treaty bodies.64 In the absence of any regional judicial system of human rights protection in Asia, Chinese citizens must rely on the human rights protection afforded by the Chinese domestic judiciary. In 2004, an amendment to the PRC’s Constitution stating that ‘[t]he State respects and protects human rights’ (Art. 33.3) was introduced to provide a ‘constitutional guarantee of the protection of human rights and of the implementation of human rights treaties in Chinese domestic law’.65 However, human treaties do not have direct legal force in domestic law but are, instead, applied, including in judicial proceedings, through amended or revised Chinese national legislation. The Chinese dualist system, which provides China with considerable latitude in transposing international human rights treaty obligations into domestic legislation, is at the heart of many of the criticisms addressed to China’s implementation of its international human rights obligations in domestic law.66 It also forms the basis for the suggestion made by Cai that China has sought ‘to insulate its executive authority from international pressure by neutralizing the application of human rights treaties in the judiciary’.67 However, despite China’s detachment from the international adjudicate mechanism in the international human rights arena, China regularly fulfils its obligations under the international human rights regime by submitting reports and making regular statements at the General Assembly on its implementation of these treaties.68 This trend to be seen as better integrated in the international legal order is often traced back to international reactions to the Tiananmen Square incident and its repercussions, which, according to Ahl, led China to gradually adopt a ‘more proactive approach to international human rights in order to eliminate

60

61

62

63

64

65

66

67 68

P.-E´. Will, ‘The Chinese Contribution to the Universal Declaration of Human Rights’ in M. Delmas-Marty and P. Will (eds.), China, Democracy, and Law: A Historical and Contemporary Approach, 299–374 (Leiden: Brill, 2012). Ibid., at 335, 338, 355. See also S. Katzenstein, ‘In the Shadow of Crisis: The Creation of International Courts in the Twentieth Century’ (2015) 55 Harvard International Law Journal, 152, 194–5. UN Office of the High Commissioner for Human Rights, ‘Ratification Status for China’, tbinternet.ohchr.org /_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=36&Lang=EN. These are the ICESCR, CERD, CEDAW, the CRC, the ICRPD and CAT. China also signed the ICCPR in 1998 but has yet to ratify it. UN Office of the High Commissioner for Human Rights, ‘Acceptance of Individual Complaints Procedures for China’, tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=36&Lang=EN. H. Xue and Q. Jin, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8 Chinese Journal of International Law, 299. L. Song, ‘China and the International Refugee Protection Regime: Past, Present, and Potentials’ (2018) 37 Refugee Survey Quarterly, 139, 148, noting gaps in the domestic implementation of the Refugee Convention, including in Art. 4, which concerns the settlement of disputes and its Protocol (acceded to by China in 1982). Cai, supra note 2, at 261. On China and international human rights law, see further Chapter 13 in this volume.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

505

country-specific resolutions’, ‘confrontation’ and ‘naming and shaming’.69 As part of its more proactive diplomatic investment in expanding its influence on international law since 2013, China has also become the most active global power in the UN General Assembly (UNGA),70 having sponsored 351 resolutions (many of which include human rights–related declarations through Chinese ‘official’ diplomatic terminology such as the ‘community of shared future for mankind’ and ‘win–win cooperation’) between 2013 and 2018.71 China is also a member of the Human Rights Council, where it has submitted its performance to the Universal Periodic Review (UPR),72 and participates with statements on the human rights performance of other countries in accordance with, according to Ahl, a ‘norm-oriented behaviour that follows a soft approach on recommendations and emphasizes economic and social rights’.73 Despite its greater engagement and, increasingly, partly because of it, China’s relationship with international human rights institutions continues to be regularly criticized in Western circles.74 Recently, the accent has been put on Chinese ‘rhetorical adaptation’ tactics, understood by Fung as ‘a strategy and set of tactics that simultaneously modifies norm content, while reducing critiques of obstructionism’.75 This type of analysis is consistent with criticisms made by non-governmental organizations such as Human Rights Watch, which notes that ‘because of China’s growing international influence, the stakes of such interventions go beyond how China’s own human rights record is addressed at the UN and pose a longerterm challenge to the integrity of the system as a whole’.76 In conclusion, there has been considerable progress in China with regard to (local and regional-level) democracy and ‘human rights with Chinese characteristics’, including, over recent decades, in the areas of worker’s rights, privacy and women’s rights.77 However, according to Ahl, in practice this is understood in China as involving a ‘subordination of civil and political rights to socio-economic development’ and their consideration as noninherent and non-inalienable, but ‘as being derived from and granted by the state as well as restricted by the level of economic development’.78 In view of this, to overstate the prospects of China submitting its performance in this area to international adjudicative or semiadjudicative mechanisms would be, as Fung highlights, to underestimate China’s staunch commitment to ‘resist co-option into an evolving ontological order that challenges traditional sovereignty’.79

69 70

71

72 73 74

75

76

77

78 79

B. Ahl, ‘The Rise of China and International Human Rights Law’ (2015) 37 Human Rights Quarterly, 637, 638. M. Taskinen, ‘On Building a Community of Shared Future for the United Nations Analysis on China’s Performance in the United Nations General Assembly 2013–2018’, Master’s thesis, University of Helsinki (2020). The number includes both the resolutions China as a state has sponsored and the resolutions China sponsored in collaboration with Group 77 Group 77 is also known as ‘Group 77 and China’ (G77). Ahl, supra note 69, at 653. Ibid., 658. Y. Chen, ‘China’s Challenge to the International Human Rights Regime’ (2019) 51 New York Journal of International Law and Politics, 1179. C. J. Fung, ‘Rhetorical Adaptation, Normative Resistance and International Order-Making: China’s Advancement of the Responsibility to Protect’ (2019) 54 Cooperation and Conflict, 445. Human Rights Watch, ‘The Costs of International Advocacy: China’s Interference in United Nations Human Rights Mechanisms’ (5 September 2017), www.hrw.org/report/2017/09/05/costs-international-advocacy/chinas-interferenceunited-nations-human-rights#. Phil C. W. Chan, ‘Human Rights and Democracy with Chinese Characteristics?’ (2013) 13 Human Rights Law Review, 645. Ahl, supra note 69, at 643. Fung, supra note 75, at 445.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

506

Ignacio de la Rasilla and Yayezi Hao

24.3 DEEPENING ENGAGEMENT WITH ADJUDICATIVE MECHANISMS IN INTERNATIONAL TRADE LAW AND INTERNATIONAL INVESTMENT LAW

China’s opening up to foreign trade and foreign investment, and also its increasingly important position as investment exporter which, together with domestic economic and legal reforms, have produced, according to the World Bank, ‘the fastest sustained expansion by a major economy in history’,80 is intrinsically connected with the regime’s paramount goal of boosting its domestic economic development including by particularly targeting the ‘eradication of extreme poverty’ in the country’s rural areas.81 By contrast to China’s minor softening of its strategic detachment from international adjudication in the areas previously examined, China’s relationship with international dispute settlement mechanisms in international trade, commercial and investment law has followed a pattern of deepening engagement over the past two decades. 24.3.1 China and the WTO’s Dispute Settlement Body (DSB) In 2001, after a multi-year process of application and negotiation, China joined the WTO. In doing so, it became bound by compulsory and binding dispute settlement obligations under the WTO DSB which is, as Ku notes, the ‘most intrusive form of international dispute settlement to which the PRC has ever agreed’.82 While ‘in the first several years after accession, China showed a clear preference for handling trade conflicts through negotiation rather than WTO adjudication’,83 a change in its ‘litigation avoidance strategy’ is usually retraced to the China– Auto Parts case in 2006.84 The China–Auto Parts case had, according to Ji and Huang, ‘a particular significance – it was the first time China went through the panel and the appellate processes at the WTO in a defensive position, did not prevail in those processes, and finally had to implement an adverse WTO ruling’.85 The year 2009 went on to be also considered ‘the year of the rise of China as one of the major players of the WTO dispute settlement since it alone accounted for half of the fourteen new WTO disputes initiated’86 that year. By the tenth anniversary of its accession to the WTO in 2011, China was already ranked ‘among the top three parties in WTO dispute settlements’.87 Since then, its position as a very active participant in the system has further consolidated, whether it is a complainant (21 cases), a respondent (44 cases) or a third party (181 cases).88 Over the last 20 years, according to Moynihan, China has also ‘revised over 3,000 laws at central government level, and many more at local level, in order to bring its legal system into compliance with WTO standards’89 and Article 21.5 proceedings.90 China also, arguably, presents a very good record of compliance, as is evidenced by the fact that 80 81

82 83

84

85 86 87 88 89 90

The World Bank, ‘China Review’ (28 March 2017), www.worldbank.org/en/country/china/overview. P. Alston, ‘End-of-Mission Statement on China, United Nations Special Rapporteur on Extreme Poverty and Human Rights’ (2016), www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20402&hx0026;LangID=E. Ku, supra note 1, at 167. W. Ji and C. Huang, ‘China’s Experience in Dealing with WTO Dispute Settlement: A Chinese Perspective’ (2011) 45 Journal of World Trade, 1, 33. WTO Appellate Body Reports, ‘China – Measures Affecting Imports of Automobile Parts’, WT/DS339/AB/R, WT/ DS340/AB/R, WT/DS342/AB/R, adopted on 12 January 2009. Ji and Huang, supra note 83, at 16. Ibid., 1. M. Kennedy, ‘China’s Role in WTO Dispute Settlement’ (2012) 11 World Trade Review, 555, 557. World Trade Organization, supra note 31. Moynihan, supra note 4, at 6. M. Wu, ‘The “China, Inc.” Challenge to Global Trade Governance’ (2016) 57 Harvard International Law Journal, 261, 267.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

507

‘there have not been any complaints of non-compliance following a WTO ruling’ against it.91 Underlying this sustained engagement with the WTO’s adjudicative system is the fact that China has risen to the position of ‘the world’s largest economy (on a purchasing power parity basis), manufacturer, merchandize trader and holder of foreign exchange reserves’.92 Favouring China’s engagement is, furthermore, according to Vidigal, that to a ‘greater extent than with other forms of international adjudication’ there is a ‘perception that in the WTO noncompliance is part of the rules, rather than a violation of the rules’.93 While it is argued that for all states this ‘creates an atmosphere in which states, even great powers, are happy to accept losing some battles and to continue to play the game’,94 the technical character of the topic area contributes in China’s case to further easing the particularly risk-averse attitude of Chinese elites regarding risking any foreign third-party rebuff of its policies on the basis of international law. China’s determined engagement with the WTO DSS can be illustrated by two major recent sources of tension with the two other major actors in the system as well as by China’s position on WTO reform. The cases just mentioned involved the question of the United States’ and the EU’s denial of China’s automatic ‘market economy’ status as foreseen in China’s Accession Protocol after fifteen years of membership of the WTO and the ongoing trade war between the United States and China. In the first case, after China was refused market economy status, which effectively meant that it would have to continue to accept EU and US high ‘anti-dumping’ levies, it rapidly struck back with a complaint at the WTO against the EU. Although given the prospect of a clear forthcoming defeat, China eventually halted proceedings, which was accepted by the panel in June 2019; this nonetheless shows China’s continuous readiness to make use of WTO dispute settlement mechanisms. The second recent case took place in the context of the ‘trade war’ between the United States and China, which is premised, inter alia, on a large bilateral trade deficit for the United States and concerns over China’s ‘policies governing intellectual property (IP), subsidies, technology and innovation’.95 During the Trump presidency, the United States repeatedly threatened to withdraw from the WTO and, moreover, effectively paralyzed its Appellate Body (WTO AB) by not renewing its members since December 2019,96 a move that the Biden administration has not reverted as of yet. By contrast, China has actively portrayed itself as a defender of the WTO trade regime in the name of global free trade and of its dispute settlement mechanisms against the protectionist policies implemented by the Trump administration. Moreover, and in view of the complete deadlock of the WTO’s appellate system, it has continued showing its commitment to deepening its engagement with the WTO DSS by joining the EU-proposed multi-party interim appeal arbitration arrangement (MPIA) based on Article 25 of the WTO Dispute Settlement Understanding,97 which entered into effect in May 2020.

91 92

93

94 95

96

97

Moynihan, supra note 4, at 6. US Congressional Research Service, ‘China’s Economic Rise: History, Trends, Challenges, and Implications for the United States’ (25 June 2019), fas.org/sgp/crs/row/RL33534.pdf. Moynihan, supra note 4, at 6; D. Akande, ‘China’s View of International Litigation: Is the WTO Special?’, EJIL: Talk! (13 November 2015), www.ejiltalk.org/chinas-view-of-international-litigation-is-the-wto-special. See Moynihan, supra note 4, at 6. A. B. Schwarzenberg, ‘Congressional Research Service in Focus: U.S.–China Trade and Economic Relations: Overview’ (12 September 2019), fas.org/sgp/crs/row/IF11284.pdf, 1. See, e.g., ‘US Refusal to Appoint Members Renders WTO Appellate Body Unable to Hear New Appeals’ (2020) 114 (3) American Journal of International Law, 518, https://doi.org/doi:10.1017/ajil.2020.43. Council of the European Union, ‘Multi-Party Interim Appeal Arbitration Arrangement pursuant to Article 25 of the DSU’ (2 April 2020), www.consilium.europa.eu/media/43334/st07112-en20.pdf.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

508

Ignacio de la Rasilla and Yayezi Hao

Finally, China’s sustained engagement with the WTO98 can be illustrated by the several proposals on WTO reform it has put forward in view of the ‘unprecedented existential crisis’99 the WTO faces. These proposals gravitate around three ‘basic principles’: first, that the reform should, first, preserve ‘such core values of the multilateral trading system as non-discrimination and openness’; second, that it should ‘safeguard the development interests of developing Members’; and third, that it should also ‘follow the practice of decision-making by consensus’.100 Premised on the upholding of these ‘basic principles’, China’s position on WTO reform extends across ‘four areas for concrete actions’. These span from ‘increasing WTO’s relevance in global economic governance’ to ‘improving the operational efficiency of the WTO’ and ‘enhancing the inclusiveness of the multilateral trading system’, each of which is accompanied by specific and detailed action points.101 However, China places before all of them the matter of ‘resolving the crucial and urgent issues threatening the existence of the WTO’, ranked first among which is reviving the WTO AB in a reformed manner.102 For this purpose, China has submitted joint proposals touching upon ‘the transitional rules for outgoing AB members, [the] 90-day timeframe for appellate proceedings, the status of municipal law, findings unnecessary for dispute resolution and the issue of precedent’, all while emphasizing ‘the need to preserve and reinforce the independence and impartiality’ of the AB.103 In conclusion, China’s pattern of deepening engagement with the WTO DSS is entrenched. Moreover, China’s experience with the WTO DSS, in particular from the time of its gradual shift of attitude towards WTO adjudication in the mid-late 2000s, has implied a breakthrough in China’s dispute settlement capacity-building. This, in turn, has triggered a ‘spillover effect’, as Section 24.3.2 examines, on China’s parallel and increasingly more expansive engagement with investor–state arbitration (ISA).104 24.3.2 International Commercial and Investment Disputes Compared to its general wariness regarding giving jurisdiction to most ICTs, China’s openness to international investment arbitration is nothing short of remarkable.105 China’s modern relationship as a foreign investment recipient with international arbitration dates back to the early 1990s when it became a party to the ICSID Convention,106 accepted both of the Hague Conventions for the peaceful settlement of international disputes107 and resumed its activities in the Permanent Court of Arbitration (PCA).108 Over time, giving it one of the largest networks in 98 99

100 101 102 103

104 105 106 107 108

On international trade law, see further in this volume Chapter 20. WTO, General Council, ‘China’s Proposal on WTO Reform: Communication from China’, 13 May 2019, WT/GC/ W/773, https://bit.ly/3PY8bgO. Ibid., 2. Ibid., 3–7. Ibid., 3. Ibid., 3. For specific details see ‘Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore, Mexico, Costa Rica and Montenegro to the General Council’, 12–13 December 2018, WT/GC/W/752/Rev.2 and ‘Communication from the European Union, China, India and Montenegro to the General Council’, 12–13 December 2018, WT/GC/W/753/Rev.1. See Tao, supra note 18, at 63. On international investment law, see further Chapter 21 in this volume. See Ku, supra note 1, at 63–5. Zhu, supra note 13, at 26. Historically, a founding member of the Permanent Court of Arbitration (PCA) in 1899, China had discontinued relations with the PCA and rejected a request by Portugal to refer Macau-related boundary disputes to the PCA in 1909. The first time in which the ROC defended a case before the PCA was Radio Corporation of America v. The National Government of the Republic of China case in 1935. See Moynihan, supra note 4.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

509

the world, China has signed 145 bilateral investment treaties (BITS),109 a large percentage of which provide for ISArb at the ICSID. While originally many of the first BITs China signed, starting with the first one with Sweden in 1982, did not allow for any ISArb, in subsequent practice some later BITs, beginning with the China–BLEU (Belgium–Luxembourg Economic Union) BIT in 1984, started to permit ISA, though only in cases involving compensation for expropriation and nationalization while ‘liability and any other disputes arising out of investments had to be resolved in local courts or local arbitration fora or through diplomatic negotiation between governments’.110 Since 2001, in order to provide foreign investors with further attractive conditions, China has permitted an expansion of ISArb to protection against other types of issue that may arise concerning investment, by including more investor-friendly provisions in its BITs and international investment agreements (IIAs).111 However, despite its large network of investment treaties, it was not until the Ekran Berhad v. People’s Republic of China case112 in 2011 that China appeared as a respondent before an ISArb tribunal.113 This case, although it was eventually settled through negotiation, is generally regarded as having marked the before and after in China’s engagement with investor–state dispute settlement (ISDS) mechanisms,114 in parallel in terms of timing, as highlighted before, with China’s more assertive attitude towards WTO adjudication. The subsequent Ansung Housing Co., Ltd. v. People’s Republic of China case continued until the award was finally rendered in China’s favour in 2017.115 China has again been actively engaged since 2017 in the course of proceedings of the third case filed against it, the Hela Schwarz GmbH v. People’s Republic of China case.116 In 2020, two new cases, Macro Trading Co., Ltd. v. People’s Republic of China (ICSID Case No. ARB/20/22) and Goh Chin Soon v. People’s Republic of China (ICSID Case No. ARB/20/34), were filed against China.117 Today, China’s large engagement with international investment arbitration extends to the ‘referral of state-to-state disputes to international arbitration in its multilateral investment treaties (MILs) and its most recent bilateral free trade agreements (FTAs)’118 such as the ones concluded with Switzerland in 2013119 and Australia in 2015.120 Of note is also the recent EU–China Comprehensive Agreement on Investment (EU–China CAI) which, after seven years and thirtyfive rounds of official negotiation, was concluded in late December 2020. Heralded as the ‘most 109

110 111 112 113

114 115 116 117

118

119

120

However, twenty of them have not entered into force, see UNCTAD, Investment Policy Hub, China: Bilateral Investment Treaties (BITs), https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/ china. Ibid. See Tao, supra note 18, at 64. Ekran Berhad v. People’s Republic of China, ICSID Case No. ARB/11/15, Settlement 24 May 2011. Although there were three previous cases filed by Chinese investors for their outbound investments, starting with Tza Yap Shum v. Peru in 2007. For a review of the very limited case files by Chinese investors for their outbound investments, see K. Fan, ‘Foreign Direct Investment and Investment Arbitration in China’ in C. Esplugues (ed.), Foreign Investment and Investment Arbitration in Asia, 25–54 (Cambridge: Intersentia, 2019), 43–54. Ibid., 40–3. Ansung Housing Co., Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25. Hela Schwarz GmbH v. People’s Republic of China, ICSID Case No. ARB/17/19. Macro Trading Co., Ltd. v. People’s Republic of China, ICSID Case No. ARB/20/22; Goh Chin Soon v. People’s Republic of China, ICSID Case No. ARB/20/34. Moynihan, supra note 4, at 8. UNCTAD Investment Policy Hub, China: Treaties with Investment Provisions (TIPs), https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china. See, e.g., Free Trade Agreement between the Swiss Confederation and the People’s Republic of China in force since 1 July 2014, https://investmentpolicy.unctad.org/international-investment-agreements/countries/42/china. See, e.g., Free Trade Agreement between the Government of Australia and the Government of the People’s Republic Of China in force 20 December 2015, https://investmentpolicy.unctad.org/international-investmentagreements/treaty-files/3454/download.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

510

Ignacio de la Rasilla and Yayezi Hao

ambitious agreement that China has ever concluded with a third country’,121 the negotiated ‘agreement in principle’ contains provisions on a ‘state-to-state dispute settlement mechanism’122 with an emphasis on arbitration ‘coupled with a monitoring mechanism at pre-litigation phase established at political level’.123 Beyond it being a mechanism oriented to attracting foreign investment, the reasons underlying China’s leaning towards international arbitration as a method of dispute settlement include the possibility of appointing an arbitrator, which makes the system closer to China’s preference for negotiation over third-party dispute settlement. Furthermore, the choice of international investment arbitration is in accordance with the advantages it offers in terms of confidentiality, simplicity, efficiency, cost-effectiveness and, also, flexibility in terms of forum iuris and choice of arbitrators as well as its larger ability to remain relatively well-insulated from local protectionism and lack of judicial independence.124 Against this background, it comes as no surprise that China amply relies on arbitration, which is also considered to be the ‘preferred forum for resolving international commercial disputes’125 when it comes to the BRI.126 With a large potential network encompassing, according to the World Bank, about ‘1/3 of world trade and GDP [gross domestic product] and over 60% of the world’s population’,127 the BRI is bound to generate a large number of complex international disputes. These disputes may be classified according to the actors involved: first, between contracting states; second, among governments and enterprises; and third, between enterprises themselves. If the ‘nature of the transaction involved’ is instead used as the classifying criterion, the types of international dispute in the BRI are likely to range from international trade to investment and commercial disputes.128 In turn, depending on the type of dispute, different mechanisms and applicable rules for their settlement would apply. For international trade disputes between states resulting from ‘Chinainvested BRI mega-projects’ often encompassing ‘State-to-State agreements and contracts between private actors and deals involving State-owned enterprises, the latter of which are very common in China-backed projects’,129 it is expected, according to J. Wang, that, like ‘traditional trade disputes’, they will be resolved ‘under the auspices of the World Trade Organisation’.130 However, although, China has been, as seen before, one of the first subscribers to the MPIA,131 there is currently speculation that ‘if the WTO dispute settlement system continues to be in a state of deadlock’, BRI countries may develop their own alternative trade dispute settlement mechanisms.132 Regarding other interstate disputes, it is worth-noting that, as remarked by Judge Crawford, the ICJ ‘has a proven track record in the settlement of certain types 121

122

123 124

125 126

127

128

129 130 131 132

See European Commission, ‘Key Elements of the EU–China Comprehensive Agreement on Investment’ (30 December 2020), https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2542. European Commission, ‘EU – China Comprehensive Agreement on Investment (CAI) (Agreement in Principle)’ (22 January 2021), https://trade.ec.europa.eu/doclib/press/index.cfm?id=2237. Ibid. W. Gu, ‘Belt and Road Dispute Resolution: New Development Trends’ (2018) 36 Chinese (Taiwan) Yearbook of International Law and Affairs, 151, 152. Ibid. On the BRI, see further Chapter 2 in this volume. See J. Wang, ‘Dispute Settlement in the Belt and Road Initiative: Progress, Issues, and Future Research Agenda’ (2020) 8 Chinese Journal of Comparative Law, 4. World Bank, ‘Belt and Road Initiative’, www.worldbank.org/en/topic/regional-integration/brief/belt-and-roadinitiative. G. Wang, Y. L. Lee and F. Li (eds.), Dispute Resolution Mechanism for the Belt and Road (Singapore: Springer, 2020), 3. Wang, supra note 126. Ibid. Council of the European Union, supra note 97. Wang, supra note 126, at 7.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

511

of disputes that are of particular relevance to the BRI, such as territorial disputes (including as they relate to maritime delimitation)’.133 However, while there areas of connection between the BRI and the adjudicative domain of public international law, it remains, nonetheless, unlikely that international adjudicative mechanisms such as the ICJ will turn out to be, for reasons seen earlier in this chapter, China’s preferred choice of forum to resolve such types of dispute in the foreseeable future. China’s approach to international commercial and investment disputes in the context of the BRI has transitioned from an early stage in which the matter of dispute resolution was altogether obviated in official documents to an institution-building proactive stage oriented at establishing a prevention and dispute resolution system.134 Since the launching of the Action Plan of the BRI in 2015, which outlines its principles, framework, cooperation priorities and cooperation mechanisms,135 the BRI has, moreover, had a remarkable impact on an already welldeveloped network of Chinese and, more broadly, Asian and other global arbitration poles,136 with several of them establishing dedicated BRI advisory committees137 and BRI commissions.138 Besides their adaptation to cater for international commercial disputes, arbitral institutions in mainland China (and also across the region, including in Hong Kong and Singapore) are also becoming further equipped in the settling of BRI-related investment disputes through the issuing of new investment arbitration rules deemed to reflect a ‘Chinese approach’ and oriented to expand their scope of activity.139 They have also been expanding their networks of agreements in Africa,140 Europe141 and across Asia, to ‘meet the demand for the upward trend of Chinarelated investor–state disputes and investment treaty arbitrations in the future’.142 These developments, although not constitutive of state practice, insofar as they are effectively backed up at the state level by China, are a further symptom of China’s more assertive attitude towards international investment dispute settlement mechanisms. However, despite its engagement with international arbitration, China also partakes in the growing global awareness of the pitfalls and limitations of, and related disenchantment with, arbitration for both international commercial and investment-related disputes.143 The traditional Chinese preference for negotiation, mediation and other means of alternative dispute resolution over both arbitration and litigation is being translated internationally at a time of rising interest in mediation in both international commercial and investment disputes,144 as shown by two recent examples. First, China has signed the United Nations Convention on 133

134 135

136 137 138 139

140 141 142 143

144

J. Crawford, ‘China and the Development of an International Dispute Resolution Mechanism for the Belt and Road Construction’ in W. Shan, S. Zhang and J. Su (eds.), China and International Dispute Resolution in the Context of the ‘Belt and Road Initiative’, 11–22 (Cambridge: Cambridge University Press, 2021), 20. Ibid. Action Plan on the Belt and Road Initiative (30 March 2015), http://english.www.gov.cn/archive/publications/2015/ 03/30/content_281475080249035.htm. Gu, supra note 124, at 158. At, for example, the Hong Kong International Arbitration Centre. At, for example, the Paris-based International Chamber of Commerce. In particular, China’s International Economic and Trade Arbitration Commission’s international investment arbitration rules (2017) and the Beijing International Arbitration Centre international investment arbitration rules (2019). Gu, supra note 124, at 158–9. Ibid., 162. Ibid., 158. See, e.g., T. Schultz and F. Ortino (eds.), The Oxford Handbook on International Arbitration (Oxford: Oxford University Press, 2020); L. Marceddu and P. Ortolani, ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’ (2020) 31 European Journal of International Law, 405. See, e.g., S. I. Strong, ‘Realizing Rationality: An Empirical Assessment of International Commercial Mediation’ (2016) 73 Washington & Lee Law Review, 1973.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

512

Ignacio de la Rasilla and Yayezi Hao

International Settlement Agreements Resulting from Mediation – also known as the Singapore Convention on Mediation – which is oriented towards facilitating the enforcement of settlements regarding international commercial disputes.145 Second, China’s favouring of the strengthening of ‘alternative dispute settlement measures’ and, in particular, of ‘investment conciliation’, as well its preference for the setting up of ‘pre-arbitration consultation procedures’, has been reaffirmed in the context of its submission on the question of the ‘Possible reform of investor–state dispute settlement (ISDS)’ to the UN Commission on International Trade Law (UNCITRAL) in 2019.146 However, China, in its position paper, also stressed its belief ‘that the ISDS mechanism is one that is generally worth maintaining’. It did so all while lending its support to the study of a ‘permanent appeal mechanism as a reform proposal’ inspired by the ‘relative high efficiency’ of the WTO AB and also to both an improvement of ‘the rules for selection and disqualification of arbitrators to increase transparency and reasonableness’ and the ‘stipulation of transparency discipline for third-party funding’.147 This noted, China’s preference for alternative means of dispute settlement is also becoming mirrored in its design of the prevention and dispute resolution system in the diplomatically sensitive context of the BRI.148 This can be summarily illustrated by two recent developments. First, the design of the China International Commercial Court’s (CICC)149 ‘one-stop’ diversified dispute commercial dispute resolution mechanism linking ‘mediation, arbitration, and litigation’150 is intended to foster recourse to mediation in the BRI’s commercial dispute resolution model. This is apparent in several of the design features of the CICC including in the mediation functions of its International Commercial Expert Committee (ICEC)151 and the coordination among the three dispute resolution methods. This revolves, on the one hand, the establishment of the ICEC and, on the other, the selection by the Supreme People’s Court of China of a limited number of ‘international commercial mediation institutions and international commercial arbitration institutions’ that ‘meet certain conditions to build up’ the ‘one-stop mechanism’ together with the CICC.152 Another recent illustration is the special value given to ‘the role of mediation in dispute settlement’153 in the recently launched International Commercial Dispute Prevention and 145

146

147

148

149

150 151

152 153

United Nations Convention on International Settlement Agreements Resulting from Mediation. See further C. S. Shang and Z. Huang, ‘The Singapore Convention in Light of China’s Changing Mediation Scene’ (2020) 2 Asian Pacific Mediation Journal, 63. United Nations Commission on International Trade Law Working Group III (Investor–State Dispute Settlement Reform), ‘Recommendations of China Regarding Investor–State Dispute Settlement Reform’, Thirty-Eighth Session, Vienna, 14–18 October 2019, A/CN.9/WG.III/WP.177, 5. Ibid., 4 and 5. See further I. de la Rasilla, ‘The Greatest Victory? Challenges and Opportunities for Mediation in Investor–State Dispute Settlement?’ (Winter 2023) 38(1) ICSID Review – Foreign Investment Law Journal, 169–200. See further, e.g., I. de la Rasilla, ‘Sharp Ears to Hear a Thunderclap? The Rise of Mediation in the Prevention and Dispute Settlement System of the Belt and Road Initiative’ (2021) 29 Asia Pacific Law Review, 167–88. Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court (27 June 2018), http://cicc.court.gov.cn/html/1/219/208/210/817.html. Generally, S. Zhang, ‘China’s International Commercial Court: Background, Obstacles and the Road Ahead’ (2020) 11 Journal of International Dispute Settlement, 150. Ibid. Several articles are devoted to it in the Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (For Trial Implementation), Supreme People’s Court (5 December 2018), http://cicc .court.gov.cn/html/1/219/208/210/1146.html?utm_source=dlvr.it&utm_medium=facebook. These are complemented by Chapter 4 Pretrial Mediation Arts. 17–26 of the Court’s ‘Procedural Rules’, Procedural Rules for the China International Commercial Court of the Supreme People’s Court (For Trial Implementation), http://cicc .court.gov.cn/html/1/219/208/210/1183.html. M. Feldman, ‘A Belt and Road Dispute Settlement Regime’ (13 June 2019), https://ssrn.com/abstract=3403846. J. Zhang, ‘International Commercial Dispute Prevention and Settlement Organization: A Quick Review’ (15 October 2020), https://bit.ly/3pSwbHG.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

513

Settlement Organisation (ICDPASO).154 This is a China-led non-governmental international organization initiative155 established in late 2020 and it aims at providing diversified ‘legal services including commercial arbitration, commercial mediation, investment arbitration and dispute prevention’, catering for, albeit not only limited to, the needs of the BRI.156 Further, ICDPASO’s innovative features include a set of proposed mediation rules for both international commercial and investment dispute settlement and the establishment of a ‘dispute prevention mechanism’157 in the form of a step-by-step ‘good offices/grievance system which is mainly directed at foreign investors’ disputes with the host state’.158 24.4 EXPLORATORY ACCOMMODATION OF ADJUDICATIVE MECHANISMS IN THE LAW OF THE SEA AND EMERGING AREAS OF INTERNATIONAL DISPUTE SETTLEMENT

China joined the United Nations Convention on the Law of the Sea (UNCLOS) and its complex four-tiered dispute settlement mechanism in 1996.159 This offers state parties in a dispute concerning matters covered by UNCLOS a set of different procedures:160 recourse to the International Tribunal for the Law of the Sea (ITLOS); third-party resolution by the ICJ; dispute settlement by an arbitral tribunal constituted in accordance with its Annex VII; and a special arbitral tribunal constituted in accordance with Annex VIII for a series of special disputes. With the exception of the compulsory and binding jurisdiction of the ITLOS Seabed Disputes Chamber, which the parties cannot evade when matters related to the ‘international seabed’ are involved, both parties to a dispute must agree on the same dispute settlement procedure. Without the agreement of the parties, the dispute is automatically subject to binding arbitration with the only exception of subject matters that Article 298 of UNCLOS authorizes coastal states to exclude by means of a declaration to that effect. In 2006, ten years after signing up to UNCLOS, China exercised this prerogative pursuant to Article 298 of the Convention by filing a declaration excluding it from compulsory and binding arbitration on sea boundary delimitations, or those involving historic bays or titles, certain military or law enforcement activities, or actions pursuant to a Security Council function.161 The Chinese declaration under Article 298 of UNCLOS, which was intended to fully shield China from compulsory and binding arbitration in the areas mentioned, has been at the heart of the controversial and widely debated South China Sea arbitral proceedings brought by the Philippines against the PRC under Annex VII of the Convention in 2013.162 The Chinese attitude to the South China Sea arbitration was widely perceived as being particularly 154

155

156 157 158 159 160 161

162

G. Wang and R. Sharma, ‘The International Commercial Dispute Prevention and Settlement Organization: A Global Laboratory of Dispute Resolution with an Asian Flavor’ (2021) 115 American Journal of International Law Unbound, 22. China Justice Observer, ICDPASO Announces Its Office Location (27 November 2020), www.chinajusticeobserver .com/a/icdpaso-announces-its-office-location. Zhang, supra note 153. Ibid. Wang and Sharma, supra note 154, at 25. On the law of the sea, see further, in this volume, Chapter 18. Ku, supra note 1, at 165–7. Chinese Society of International Law, ‘The South Sea China Arbitration Awards: A Critical Study’ (2018) 17 Chinese Journal of International Law, 207, 238, referring to ‘Declaration Made by China after Ratification (25 August 2006)’, www.un.org/depts/los/convention_agreements/convention_declarations.htm#China%20after%20ratification. Permanent Court of Arbitration, The Republic of Philippines v. The People’s Republic of China, ‘The South China Sea Arbitration’, PCA Case No. 2013–19.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

514

Ignacio de la Rasilla and Yayezi Hao

symptomatic of the PRC’s traditional aversion to third-party dispute settlement. The case involved the ‘role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea, and the lawfulness of certain actions by China in the South China Sea’.163 From the outset, China adopted a ‘nonacceptance and non-participation’ position with regard to the arbitral proceedings instituted by the Philippines. This position was based on China’s understanding that the Philippines had breached its obligation to settle the relevant dispute ‘through negotiations’ and that the subject matter of the arbitration ‘would constitute an integral part of maritime delimitation between the two countries, thus falling within the scope of the declaration filed by China in 2006’.164 After the rendering of the decisions first on admissibility and jurisdiction (2015) and then on the merits (2016), China utterly rejected them, considering them invalid, and it declared a firm decision not to comply. The South China Sea arbitration signalled, nonetheless, an inflection-point moment in China’s relationship with international adjudicative mechanisms for interstate dispute resolution leading to a larger attention in China to what Cai calls ‘lawfare in international dispute settlement’.165 The perception in the West that Chinese international law academics, whose academic output on this topic was massive both in Mandarin and in English, stood unanimously behind the ‘official’ Chinese position also contributed to fuel a set of reflections on the particularities of different national academic communities in terms of ‘comparative international law’.166 The multiple analyses of the case in Chinese academic circles led, furthermore, to the publication of a several hundred-page-long report prepared by the Chinese Society of International Law (CSIL) and published in the Chinese Journal of International Law in 2018. Closely aligned with China’s official policy in this detailed critical analysis, the CSIL considered that the award had ‘impaired the integrity and authority of the Convention, threatened to undermine the international maritime legal order, run counter to the basic requirements of the international rule of law, and also imperilled the interests of the whole international community’.167 This collective international legal analysis, while firm in its rejection of the arbitral proceedings, was intended to convey the idea (although less than convincingly in the appraisal some of its Western critics made of it)168 that China’s approach to the South China Sea case did not entail a renunciation of the language of international legality or was, in itself, a challenge to the integrity and authority of the Convention’s dispute settlement system on the part of China. In fact, showing China’s exploratory accommodation of dispute settlement mechanisms regarding the law of the sea, since its accession to UNCLOS China has contributed several Chinese judges to the ITLOS bench169 and, similarly to its participation in ICJ proceedings, it has also participated in advisory proceedings before ITLOS twice. In 2010, it appeared before 163 164

165

166 167 168

169

Ibid. Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014), cited in Chinese Society, supra note 161, at 237. See Cai, supra note 2, at 265–79. Lawfare is, otherwise, generally understood as the ‘use of law as a weapon of war’; see M. P. Scharf and S. Pagano, ‘Foreword: Lawfare!’(2010) 43 Case Western Reserve Journal of International Law, 1. A. Roberts, Is International Law International? (New York: Oxford University Press, 2017). Chinese Society, supra note 161, at 218. D. Guilfoyle, ‘A New Twist in the South China Sea Arbitration: The Chinese Society of International Law’s Critical Study’, EJIL: Talk! (25 May 2018), www.ejiltalk.org/a-new-twist-in-the-south-china-sea-arbitration-the-chinesesociety-of-international-laws-critical-study/; D. Guilfoyle, ‘Taking the Party Line on the South China Sea Arbitration’, EJIL: Talk! (28 May 2018), www.ejiltalk.org/taking-the-party-line-on-the-south-china-sea-arbitration/. These have included Judges Lihai Zhao (1996–2000), Guangjian Xu (2001–7) and Gao Zhiguo (2008–).

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

515

ITLOS to support the advisory jurisdiction of the Seabed Disputes Chamber170 and it again submitted a written statement to ITLOS on whether ITLOS had the competence to issue an advisory opinion in 2014.171 This engagement, which indicates a similar pattern regarding advisory proceedings to that previously examined for the ICJ, is together with other Chinese ‘practices and policies’ towards UNCLOS172 consonant with the Chinese government’s longterm goal to build China into a ‘strong maritime country’173 and the related Chinese interests in international maritime governance under UNCLOS. These include, according to Moynihan, the aim ‘to secure a large UNCLOS-sanctioned continental shelf in the East China Sea’, to gain commercial access to a ‘future International Seabed Authority-sanctioned mining bonanza under the high seas worldwide’ and to have a role ‘regarding Arctic governance issues’, all of which require China to maintain ‘its strategic choice to shape the system from within’174 rather than as an outsider. To these considerations one may also add the dispute settlement needs emerging from the maritime dimensions of the BRI regarding ‘ports, navigation and military activities’.175 In conclusion, as in other areas where core national interests are at stake for China, one may expect China’s exploratory accommodation to continue developing (including, for instance, through third-party participation in contentious proceedings under Articles 31 and 32 of the Statute of ITLOS) in the law of the sea as well as, increasingly, seeing an active effort to shape dispute settlement mechanisms on its part in certain developing areas within it in the future.176 Likewise, a similar attitude of exploratory accommodation combined with an active normshaping approach to the design of dispute settlement mechanisms may be expected from China in new areas of international legal normative expansion, such as the regimes governing international environmental law, transnational crime and fast-track new technology-driven areas like cyber space well as outer-space law. These are areas where, unlike other wellestablished international normative regimes, China feels it can directly shape future development through a strategy of international norm-entrepreneurship.177 While a common feature of all of the newer international regimes is that they are devoid of any formal international adjudicative system, mechanisms are being developed to foster implementation and there is discussion on projects for specialized international courts and tribunals to cater for the functions of ‘norm advancement and regime maintenance’178 of several of them. In the field

170

171

172 173

174 175

176 177 178

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Request for Advisory Opinion submitted to the Seabed Disputes Chamber (ITLOS Case No. 17), Written Statement of the PRC, 18 August 2010, www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/Statement_China.pdf. Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (ITLOS Case No. 21), Written Statement of the PRC, 26 November 2013, www.itlos.org/fileadmin/itlos/documents/cases/case_no .21/written_statements_round1/C21_Response_Round_1_China.pdf. X. Ma, ‘China and the UNCLOS: Practices and Policies’ (2019) 5 Chinese Journal of Global Governance, 1. J. Xi, ‘Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era’, delivered at the 19th National Congress of the Communist Party of China, 18 October 2017, www.chinadaily.com.cn/china/19thcpcnationalcongress/2017-11/04/ content_34115212.htm. Moynihan, supra note 4, at 2. N. Klein, ‘The Belt and Road Initiative and the Potential for Dispute Settlement under the UN Convention on the Law of the Sea’ in W. Shan, S. Zhang and J. Su (eds.), China and International Dispute Resolution in the Context of the ‘Belt and Road Initiative’, 209–32 (Cambridge: Cambridge University Press, 2021). Written Statement, supra note 170. Ibid., 9. Y. Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary’ (2009) 20 European Journal of International Law, 73.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

516

Ignacio de la Rasilla and Yayezi Hao

of international environmental law, for some time there have been discussions and proposals put forward for the establishment of an International Environmental Court.179 However, despite earlier efforts to provide a special chamber for environmental cases at the ICJ, it is mostly ‘compliance committees’,180 to which China is party, such as those established by the Paris Agreement within the United Nations Framework Convention on Climate Change (2016),181 to which China pledged new voluntary commitments in late 2020,182 that currently mitigate the absence of adjudicative settlement mechanisms in this field. Meanwhile, In the area of transnational crime, China provided an illustration of its exploratory attitude towards the establishment of dispute settlement mechanisms or even ad hoc international adjudicative systems in newer areas when it voted in favour of Resolution 1976 (2011) at the UNSC to urgently consider the establishment of a special Somali anti-piracy court to try suspected pirates both in Somalia and in the region, including an extraterritorial specialized Somali antipiracy court in Tanzania.183 Moreover, China’s increasingly global exposure to threats to its economic and security interests, including transnational organized crime, international terrorism and piracy, has opened a window for its domestic courts to exercise extraterritorial jurisdiction in these areas.184 Similarly, and consonant with its leading position in IT technology, China remains a particularly attentive observer of new-technology-driven legal developments in the field of cyber rule-making both in a multilateral sense, such as for the UN Group of Governmental Experts on cyber issues, and through bilateral dialogues.185 Likewise, regarding the development of outer-space law, to which the PCA contributed the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities in late 2011,186 China remains an active participant including as co-proponent of the draft Treaty on the Prevention of Placement of Weapons in Outer Space and the Threat or Use of Force against Outer Space Objects. This, which is currently being discussed in the conference of disarmament in an updated draft form that also reflects the views of Western states, contains provisions on a dispute resolution mechanism.187 In conclusion, although international dispute settlement mechanisms are still in their relative infancy in these summarily mentioned areas, their design and future development is bound to continue gravitating to a good extent around China’s perception of its exposure to global threats, fast-track technological development and strategyrelated concerns in the foreseeable future.

179

180

181

182

183

184 185

186

187

O. W. Pedersen, ‘An International Environmental Court and International Legalism’ (2012) 24 Journal of Environmental Law, 547. J. E. Vin˜uales, ‘The Protocol on Water and Health as a Strategy for Global Water Governance Integration’ (2019) 68 International & Comparative Law Quarterly, 175. Anthony H. F. Li, ‘Hopes of Limiting Global Warming? China and the Paris Agreement on Climate Change’ (2016) 1 China Perspectives, 49–54. J. Xi, ‘Building on Past Achievements and Launching a New Journey for Global Climate Actions’ (Statement by H. E. Xi Jinping President of the People’s Republic of China at the Climate Ambition Summit, 12 December 2020), Xinhua Net (12 December 2020), www.xinhuanet.com/english/2020–12/12/c_139584803.htm. UNSC, Resolution 1976, adopted by the Security Council at its 6512th meeting on 11 April 2011, S/RES/1976 (2011). See M. Y. Liu, ‘A Broader Trend of Engagement for China? On China’s Vote in Favour of an International Piracy Tribunal’, Communis Hostis Omnium (3 April 2012), piracy-law.com/author/ymichaelliu/. Cai, supra note 2, at 286. See, e.g., Z. Huang and K. Macak, ‘Towards the International Rule of Law in Cyberspace: Contrasting Chinese and Western Approaches’ (2017) 16 Chinese Journal of International Law, 271. See, e.g., F. Tronchetti, ‘The PCA Rules for Dispute Settlement in Outer Space: A Significant Step Forward’ (2013) 29 Space Policy, 181. See, e.g., F. Grimal and J. Sundaram, ‘The Incremental Militarization of Outer Space: A Threshold Analysis’ (2018) 17 Chinese Journal of International Law, 45.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

517

24.5 MOVING BEYOND CHINA’S COMFORT ZONE IN INTERNATIONAL ADJUDICATION?

China’s general approach to international adjudication still remains dominated by the principled defence of a sovereigntist consent-based conception of third-party adjudication,188 despite it having remarkably progressed, as we have seen, to different degrees across different international legal adjudicative regimes in recent years. China’s reluctance to engage in international adjudication, except when it fundamentally matches its national interests and overriding policy priorities to do so, and no opt-out clause is available, can be, as we have seen, explained in the light of a variety of strategic and ideological concerns. Besides them, three sets of fundamental interconnected reasons can further help to rationalize China’s deep-seated attitude towards third-party dispute resolution under contemporary international law. These are, first, the socalled Confucian litigation-unfriendly culture; second, the long shadow of the Chinese history of ‘subjugation’ to Western imperial policies; and, third, the place held by the principle of separation of powers in its socialist system ‘with Chinese characteristics’. The interconnected influence of these factors finds itself buttressed at a time when China’s rising economic, military and political power increasingly allows it to have the upper hand in international dispute settlement through recourse to non-judicial methods in most cases. First, China’s preference for negotiation and other alternative methods of dispute settlement over forms of adversarial legalism is often attributed to a feature of traditional Chinese culture, namely, that which is occasionally termed the ‘Confucian litigation-unfriendly culture’.189 Confucian philosophy, which has the notion of ‘harmony’ (和谐) at its core, has long contributed to a Chinese cultural mindset that appraises the fact of being sued, independently of the eventual outcome of the legal proceedings, as socially dishonourable by definition. This is generally identified as the basis for a legal-cultural system that, if given the choice, calls for conciliation of interests and ‘promotes the establishment of a relationship between the parties as a top priority’190 in the spirit of ‘yi he wei gui’ [以和为贵].191 This historical cultural tradition finds modern exemplification in China’s civil procedural law with its preference in judicial practice for what in Chinese phraseology is termed ‘judicial mediation priority, combining mediation with trial’,192 which is a system of compulsory pre-trial judicial mediation aimed to enable the parties to reach an agreement before entering the litigation phase.193 This cultural background is combined on the international plane with the argument that a negotiating approach to an international dispute provides far more room for flexibility and creativity in

188

189

190 191 192

193

See the Sino–Russian Joint Declaration on the Promotion of International Law (25 June 2016), which, while insisting on sovereign equality or non-intervention, emphasizes that ‘all dispute settlement means and mechanisms [should be] based on consent’, www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/ 2331698. Cai, supra note 2, at 285. This is often retraced to Confucius’s saying (‘In hearing lawsuits, I am no better than anyone else. What we need is to have no lawsuits’ [‘听讼, 吾犹人也, 必也使无讼’]). See The Analects of Confucius, Yan Yuan 《论语·颜渊》, translated by A. Charles Muller, Professor Emeritus, Faculty of Letters, University of Tokyo, 12–13. Zhu, supra note 13. ‘Harmony is to be prized.’ 2010年6月28日, 最高人民法院发布《关于进一步贯彻 “调解优先、调判结合” 工作原则的若干意见》 [On 28 June 2010, the Supreme People’s Court issued ‘Several Opinions on Further Implementing the Working Principles of Mediation Priority, Combining Mediation with Trial’]. 李华武, 刘彦:《反思与重构 : 民事诉讼调解规范论》, 载于《湖北社会科学》2017 年第5 期, 第151页 [H. Li and Y. Liu, ‘Reflection and Reconstruction: The Standardization of Civil Litigation Mediation’ (2017) 5 Hubei Social Science, 150, 151].

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

518

Ignacio de la Rasilla and Yayezi Hao

achieving conflict resolution than recourse to a third-party dispute settlement mechanism, an oft-cited example of which in China is Hong Kong and Macau’s ‘one country, two systems’. Second, the roots of China’s sovereigntist conception also lie deep in the Chinese history of ‘subjugation’ to Western imperial policies, and therefore in distrust of international law as a foreign-made construct unequally imposed on China through a network of ‘unequal treaties’ during the nineteenth and early twentieth centuries. This historical distrust of international law is, according to Judge Owada, also common in other nations in the East-Asian region.194 In the field of international dispute settlement, it finds a corollary in China’s long-standing attachment to the ‘Five Principles of Peaceful Coexistence’.195 Originated in the Chinese–Indian bilateral context in 1954 and included soon thereafter in the Preamble to China’s Constitution, the principles of ‘mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence’ remain a subtle yet pervading influence on Chinese foreign-policy’s preference for non-adjudicative means of dispute resolution.196 This background is, furthermore, relevant to fully grasp the political sensibility for the Chinese establishment of not risking ‘losing face’ as a result of a decision by a ‘foreign’ court on matters that may concern China’s ‘national interest’.197 Third, some of the special features of Chinese ‘socialism with Chinese characteristics’ also weight against international adjudication. Recent judicial reforms to ‘enhance the rule of law’ and thus to ensure that ‘the people’s courts supervise the exercise of executive powers in accordance with law’198 are well underway to further advance the establishment of what in official terminology is called a ‘judicial civilization’ (司法文明) in China. However, while great efforts are being made to promote greater satisfaction of the citizenry with the Chinese judicial system as a provider of fairness and justice to the people, the fact remains that under the Chinese Constitution the role of domestic courts in controlling executive action is subservient to the paramount position of China’s Communist Party. This particular constitutional equilibrium stands in contrast to the cornerstone role of the principle of separation of powers in Western-style rule-of-law-based systems, which in turn lies at the heart of Western public opinion’s reliance on the independence of the judiciary in fulfilling its checks-and-balances role. While the centrality of courts in Western liberal political systems becomes transposed into a generally favourable appraisal of the role that international courts and tribunals play in the international legal order, a similar degree of public pressure in such a direction is currently largely lacking within China. The combined effect of strategic and ideological concerns together with these three interconnected factors weigh in favour of a relatively static maintenance of China’s asymmetrical position in regard to international adjudicative methods described in previous sections and its related promotion of alternative dispute settlement mechanisms. Against this background, there are, however, other structural factors pointing to a likely enlargement of China’s current comfort zone with regard to international adjudication. These factors include an ongoing ‘upskilling’ of international law expertise in China, which may pave the way for a large Chinese embracement 194

195 196

197 198

H. Owada, ‘The Experience of Asia with International Adjudication’ (2005) 9 Singapore Yearbook of International Law, 9. R. H. Fifield, ‘The Five Principles of Peaceful Co-existence’ (1958) 52 American Journal of International Law, 504. S. Chesterman, ‘Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures’ (2016) 27 European Journal of International Law, 945. Tom Ginsburg, ‘Authoritarian International Law?’ (2020) 114 American Journal of International Law, 221. C. Cai, ‘International Law in Chinese Courts during the Rise of China’ (2016) 110 American Journal of International Law, 269, 272, with reference to Administrative Procedure Law [APL of 2014], Art. 1 (amended by the Standing Committee of the National People’s Congress, 11 November 2014, effective 1 May 2015) (China).

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

519

of ‘lawfare in international dispute settlement’.199 They also include a new set of strategic and commercial imperatives that put international dispute settlement high on the Chinese government’s agenda. These are coupled with new responsibilities regarding international law–regime maintenance in the wake of China’s rise to great power status in the twenty-first century and China’s increasingly assertive drive for a leading role in global governance. First, forty years since the foundation of the CSIL in 1980, the comparative Sino–Western gap in expertise on, and experience with, international law has largely been bridged in China. It remains true, as Moynihan points out, that ‘China’s legal profession has only developed relatively recently, and there are linguistic and technical barriers to engagement in international litigation for domestic Chinese lawyers’.200 However, WTO litigation experience has been, other than an influential factor, as seen before, in reshaping Chinese attitudes towards investment arbitration, a key element in China’s own dispute settlement capacity-building progress over the last fifteen years. The combination of this expertise-building progress with the controversies surrounding the South China Sea, and ongoing tensions with the United States on international trade and tech matters, have galvanized the importance of international law research and training as strategic intangible assets to safeguard China’s national interests.201 As a more confident and experienced international law establishment develops in China, so does its ability to influence a more ‘forward-leaning’ engagement202 with existing and emerging international adjudicative systems. This development may, furthermore, combine fruitfully with China’s investment in further building its capabilities in what Cai calls ‘lawfare in international dispute settlement’,203 the strategic use of which has increased in significance for international relations over the last two decades. After the South China Sea case put China in the spotlight of international dispute settlement, the threats of being sued for Covid-19204 furthered spurred the perception that investing in strategic international dispute settlement capabilities is also in China’s foremost national interest. Second, whether as a frequent direct user (e.g. of the WTO) or as an indirect yet essential institution-making actor (e.g. in the ICTY, ICTR, etc.), China is progressing through different modes of engagement with international third-party adjudicative methods alongside its integration into the global governance system. In accordance with China’s long-term strategy, as signalled early on by Deng Xiaoping, of sustaining a peaceful ‘period of strategic opportunities’ (战略机遇期), this integration is set to develop further in the next two to three decades of the twenty-first century.205 The more assertive approach to shaping international law and global governance institutions across a broad variety of areas under Xi Jinping mirrors China’s new

199 200 201

202

203 204

205

See Cai, supra note 2, at 265–79. Moynihan, supra note 4, at 3. Ibid., 5. This has included the recent setting up of an international law advisory committee for the Chinese Ministry of Foreign Affairs, see 《外交部国际法咨询委员会再启中国国际法前沿》, mp.weixin.qq.com/s/ Q-W7MYPjwu7iHe5MFGkaRQ. T. Eder, ‘China Leans In on International Adjudication: Why Beijing’s Answer to Defeat Will Be More Forceful Engagement’, EJIL: Talk! (2 May 2018), www.ejiltalk.org/china-leans-in-on-international-adjudication-why-beijings -answer-to-defeat-will-be-more-forceful-engagement/. Cai, supra note 2, at 265–79. P. Tzeng, ‘Taking China to the International Court of Justice over COVID-19’, EJIL: Talk! (2 April 2020), www .ejiltalk.org/taking-china-to-the-international-court-of-justice-over-covid-19/. Also S. de Herdt, ‘A Reference to the ICJ for an Advisory Opinion over COVID-19 Pandemic’, EJIL: Talk! (20 May 2020), www.ejiltalk.org/a-reference-tothe-icj-for-an-advisory-opinion-over-covid-19-pandemic/. D. Zhang, ‘The Concept of “Community of Common Destiny” in China’s Diplomacy: Meaning, Motives and Implications’ (2018) 5 Asia & the Pacific Policy Studies, 196.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

520

Ignacio de la Rasilla and Yayezi Hao

great power status.206 China’s new status, which has found a breeding ground for larger quotas of legitimacy and leadership for China207 amid the nationalist protectionism and international legal revisionism exhibited by the Trump administration,208 comes, in turn, with an extension of its global geopolitical and economic strategic interests. Among them are included new imperatives, as echoed in the new Chinese policy of ‘protecting the legal rights and interests of Chinese nationals and corporations abroad in accordance with the law’,209 which can, in turn, provide room for China to engage more expansively with both existing and newer mechanisms of international adjudication in the future. Third, it remains uncertain whether a continuation of China’s regime-specific approach to cherry-picking among existing international adjudication systems, which stems from a utilitarian and self-protective perspective, will outweigh the long-term benefits for China of committing itself to a holistic vision of international adjudication as a ‘global public good’.210 This description is based on an understanding that, in addition to the peaceful settlement of disputes, international adjudication also serves ‘the development of international law, and the monitoring of compliance with, and enforcement of, international norms’211 and produces other positive externalities for the international legal system and also for those countries which, like China, have reiteratively professed to uphold it. The legal and political implications of China’s asymmetrical move to international courts and tribunals along the lines of the tripartite typology in this chapter have been different for each international legal regime surveyed. However, the overall impact has been that of providing stability to the international adjudicative system rather than challenging this central pillar of global governance. This is undeniable for those international adjudicative mechanisms marked by China’s ‘deepening engagement’ with them. But, in fact, even in those international adjudicative mechanisms where China remains reluctant to accept third-party adjudicative resolution methods, China has not claimed that its own culturally, historically, strategically and politically specific approach towards them should be universalized. Instead, China has remained committed, as shown before, to support the functioning of the ICJ, the ICC and other international criminal tribunals. Therefore, China’s evolution in and beyond its tripartite strategy can further boost its credibility by building trust as a leading-by-example central actor of global governance under the international rule of law. Moreover, a shift towards a greater normalization of China’s semi-exceptionalist relationship with the international adjudicative system may also contribute to boosting further China’s leading-by-example role in Asia. Regional systems of adjudication are in their infancy in Asia and, moreover, comparatively speaking, Asian countries remain less prone to opt for this means of international dispute settlement than those from any other region in the world. However, as Ulfstein notes, as Asian states become more ‘accustomed to ICs [international courts] at other geographical levels, they may become less

206

207

208

209

210 211

J. Xi, On Building a Human Community with a Shared Future (Beijing: Central Compilation & Translation Press, 2019). 何志鹏: 《论中国国际法心态的构成因素》, 载于《法学评论》2014 年第 1 期, 第 91 页 [ Z. He, ‘Components of China’s International Law Mentality’ (2014) 1 Law Review, 91]. See, e.g., O. Hathaway, ‘Reengaging on Treaties and Other International Agreements (I): Trump’s Rejection of International Law’, Just Security (2 October 2020), https://bit.ly/44KKb56. CCP Central Committee, Decision on Major Issues Concerning Promoting the Rule of Law, Part VII, Art. 7, adopted on its Fourth Plenary Session on 23 October 2014. J. Paine, ‘International Adjudication as a Global Public Good?’ (2018) 29 European Journal of International Law, 222. Ibid.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

24 China and International Dispute Settlement

521

sceptical to establishing regional ICs’.212 The possibility of China setting an example in this area may also help defuse some of the opposition that the BRI, which has become, as seen before, a ‘test tube’ for the development of dispute settlement mechanisms, has met with in the region. 24.6 CONCLUSION

The core consistency of China’s strategically sovereigntist and diversified relationship with different international adjudicative mechanisms for dispute resolution points, when seen holistically, to a likely maintenance on its part of a similarly asymmetrical regime-specific arrangement across the international adjudicative areas surveyed in this chapter in the foreseeable future. This pattern is one whereby China is likely to continue deepening its engagement with certain adjudicative mechanisms in economic international law while its position towards others appears bound to remain, despite some progress, mostly static. Moreover, this asymmetrical regime-specific pattern is likely to be combined with the promotion, alongside arbitration, on the part of China of the use of preventive or ‘cooling off’ mechanisms and alternative dispute settlement methods, in particular for international commercial and investor–state disputes within the BRI’s evolving dispute settlement system. Regarding newer areas of international dispute settlement, where China can now feel that it is truly ‘present at the creation’ for the first time, one may expect a similar promotion of preventive and alternative dispute settlement in China’s selective strategic adaptation to them to be combined with an increasingly assertive norm-shaping presence aimed at maximizing its influence over the ‘design choices’ involved in newer dispute resolution mechanisms. This realist assessment is, however, without detriment to the margin that currently exists for China to move beyond its current comfort zone and become more confident and assertive in its relationship with existing and newer adjudicative methods of international dispute settlement. One way or another, because of its rising world-power status and its related global influence and ambitions, including as the proponent of the Community of Shared Future for Mankind (CSFM),213 the global implementation of the principle of peaceful settlement of international disputes214 is likely to pivot to a non-negligible extent around China’s application of the ‘art of the dao’ (道术) to international adjudication in the twenty-first century.215

212

213 214 215

G. Ulfstein, ‘International Courts and Tribunals and the Rule of Law in Asia’ in T. Suami, A. Peters, D. Vanoverbeke and M. Kumm (eds.), Global Constitutionalism from European and East Asian Perspectives, 518–30 (Cambridge: Cambridge University Press, 2018). See further, in this volume, Chapter 3. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art. 2(3). ‘Dao’ being ‘the appropriate way in the world’, which is ‘inseparable’ in its attainment from ‘virtue’ (德) in Chinese traditional philosophy, see C. Li, ‘Chinese Philosophy’ in J. Garfield and W. Edelglass (eds.), Oxford Handbook of World Philosophy, 9–12 (Oxford: Oxford University Press, 2011), 11.

https://doi.org/10.1017/9781009041133.026 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes Xinjun Zhang and Xidi Chen

25.1 INTRODUCTION

China’s approach to settling territorial disputes illustrates the virtues and potentials – but also the limits – of its reliance on international law to address a chronic source of friction and instability in its foreign relations. China’s extensive land borders, numerous neighbours and long, complicated, sometimes crisis-prone history of relations with adjacent states have generated territorial and boundary disputes. These factors have sometimes brought crisis and violence, including several armed conflicts from the 1960s to the 1980s. However, since the 1990s, China and its continental neighbours have increased their efforts in reaching boundary agreements, and successfully settled most of their long-standing boundary disputes through formal treaties. By contrast, settling disputes over islands has only recently emerged in China’s foreign relations plan, and little progress has been made in most of them. As a result, many groups of islands in the South China Sea – scattered islands, rocks and other maritime features – are under dispute among the coastal states. In the East China Sea, the dispute over the Diaoyu (in Chinese) or Senkaku (in Japanese) Islands (hereafter Diaoyu/Senkaku Islands) is perhaps the most eyecatching one. This chapter aims to illustrate China’s practices in settling territorial and boundary disputes since 1949,1 shedding light on the approaches it has taken. Section 25.2 focusses on the settlement of China’s land-boundary disputes, presents both peak periods of successful practices and covers the influence of geopolitics on China’s border policy. Additionally, this section explores the past and the present of the territorial dispute between China and India. Section 25.3 introduces China’s island disputes in the South China Sea and the East China Sea. Beginning with the South China Sea dispute, it discusses the divergent perspectives between China and some Southeast Asian countries, such as Vietnam and the Philippines, and highlights the claims of each side and the corresponding bases. This section further delves into the substance of the dispute between China and Japan over the Diaoyu/Senkaku Islands in the East China Sea. Section 25.4 presents observations on China’s approach to the settlement of territorial issues in terms of both procedural and substantive aspects, summarizing the characteristics, including the preference for ‘bilateral negotiation’ and its emphasis on the significance of the ‘traditional line’ or ‘customary line’ [传统习惯线]. Finally, Section 25.5 concludes that China does not see 1

Territorial disputes occur when parties lay claims of entitlement to particular territory in dispute. Boundary disputes occur in the process of boundary making, involving both delimitation (boundaries are subject to competing claims of entitlements) and demarcation (the actual alignment of a boundary). Although questions of entitlements may no longer be relevant in the process of demarcation, China may be of the view that it is not practical to distinguish territorial disputes and boundary disputes since China’s boundary making more or less starts from delimitation.

522 https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

523

territorial issues as purely historical or legal matters. Although there are undoubtedly some fairly stable elements, its approach to territorial disputes can be flexible. 25.2 THE SETTLEMENT OF CHINA’S TERRITORIAL DISPUTES: KEY CHRONOLOGICAL EVENTS AND AGREEMENTS

The People’s Republic of China’s (PRC) land boundaries, which it shares with fourteen sovereign states, measure around 22,000 kilometres in total, making the country’s border one of the world’s longest.2 The PRC’s land-boundary issues are not only the result of nature but also rooted in the region’s unique historical tributary system and unfortunate past. Zhou Enlai, the PRC’s first prime minister, once admitted that it was almost impossible to determine the land boundary of China’s past dynasties.3 However, the First Opium War (1839–42) marks the starting point of a long process of grabbing parts of China’s territory through armed aggression, gunboat diplomacy and coercion by Western imperialist powers and Tsarist Russia. Imperial Japan joined this process later. It often resulted in ‘defining’ land boundaries of those who were colonizing China’s neighbours at the time.4 In April 1955, Zhou Enlai declared at the Bandung Conference that the Chinese government was willing to resolve all boundary issues with its neighbours by peaceful means, namely, negotiations.5 This policy aimed at maintaining a friendly international environment for the PRC.6 25.2.1 Successful Practices in the 1950s and 1960s From the late 1950s to the mid-1960s, China concluded boundary agreements with six of its neighbours: Myanmar, Nepal, Afghanistan, the Democratic People’s Republic of Korea (DPRK), Mongolia and Pakistan. It is widely accepted that the land boundaries with the first five listed countries have been determined once and for all. However, this is not the case with Pakistan. 2

3

4

5

6

In 1949, there were twelve neighbouring states. The number increased as a result of the break-up of the Soviet Union, which split into several new independent states, and Sikkim is no longer counted for the purpose of calculating the number as the India–Sikkim relationship changed. (From 18 April 2005, Sikkim was no longer marked on the map as a sovereign state, according to the Notice on the Change of the Method of Marking Sikkim on the Map issued by the Chinese government.) 中华人民共和国外交部、中共中央文献研究室 : 《周恩来外交文选》 (北京 : 中央文献出版社1990年版) 第237 页 [Ministry of Foreign Affairs of the PRC and Documentary Research Office of the Central Committee of the Communist Party of the PRC, Selected Diplomatic Writings of Zhou Enlai (Beijing: CCCPC Party Literature Publishing House, 1990) 237]. This situation has also been referred to by some Chinese scholars as ‘with border but no boundary [有疆无界]’. See 李大龙、铁颜颜 : 《“有疆无界”到“有疆有界” – 中国疆域话语体系建构》, 《思想 战线》2020年第46期, 第42页 [Dalong Li and Yanyan Tie, ‘From Country with Border but No Boundary to Country with Both Border and Boundary – The Construction of China’s Territorial Discourse System’ (2022) 26 Thinking, 42]. E.g., the 1842 Treaty of Nanjing (Peace Treaty between the Queen of Great Britain and the Emperor of China, China ‘cedes . . . the Island of Hongkong) and the 1895 Treaty of Shimonoseki between China and Japan (Treaty of Peace between the Emperor of Japan and the Emperor of China, ‘China cedes . . . [the] southern portion of the province of Feˆngtien . . . island of Formosa . . . Pescadores Group’). The Five Principles of Peaceful Coexistence advocated by the PRC are closely related to the settlement of territorial disputes. When the Chinese government and a delegation sent by the Indian government discussed the issue of the Tibetan region, Chinese Premier Zhou Enlai put forward the Five Principles of Peaceful Coexistence in full for the first time. See Ministry of Foreign Affairs of the People’s Republic of China, ‘China Advocates the Five Principles of Peaceful Coexistence’ (n.d.), http://switzerlandemb.fmprc.gov.cn/web/ziliao_674904/wjs_674919/2159_674923/ 200011/t20001107_7950050.shtml. In July 1957, at the First National People’s Congress of the PRC, Zhou Enlai comprehensively explained the basic policy of the Chinese government, namely, ‘to stabilize interstate relations’, ‘to ease the tension’ and ‘to keep the peace’. See Selected Diplomatic Writings of Zhou Enlai, supra note 3, at 144.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

524

Xinjun Zhang and Xidi Chen

The Republic of the Union of Myanmar was the first neighbour with whom PRC successfully resolved the territorial issue by concluding a land-boundary agreement. The PRC and Myanmar share a 2,186 kilometre-long land boundary, where the two sides had ostensible territorial disputes in three sectors. China proposed a two-step approach to deal with unsettled issues. It started, as the first step, by defining a general principle, including but not limited to dispute settlement methods and preliminary proposals for key issues, presenting Myanmar with a ‘package deal’ for the territorial arrangement in the three sectors. Both sides should maintain the status quo in the three sectors before moving on to the next step.7 In the second step, the parties discussed specific arrangements. Finally, in the boundary treaty concluded on 1 October 1960,8 the two parties agreed on the land boundary from the confluence of the Nam Hpa and the Nam Ting rivers to the intersection of the Nang Hka and the Nam Yung rivers according to ‘the exchange of letters on June 18, 1941’ between the then Chinese government and British India. Furthermore, China agreed to end the ‘perpetual lease’ to Burma (Myanmar) of the MengMao Triangular area and handed it over to Myanmar. Myanmar agreed to hand over ‘the areas under Banhung and Panlao tribes’ to China in exchange.9 Myanmar also agreed to return Hpimaw, Gawlum and Gangfang to China.10 This was the first case in which the PRC successfully resolved complicated historical issues by paying attention to geographic situations with mutually acceptable concessions achieved in exchanging lands under the control of the respective states. China and the Kingdom of Nepal concluded their boundary treaty on 5 October 1961, a significant move on the part of China to enhance ‘mutual understanding and accommodation’ to promote ‘Sino–Nepalese friendship’.11 The land boundary between the two countries was agreed to follow the Himalayas’ watershed.12 However, in doing this, China had compromised its position with that of the Nepalese concerning the status of Mount Everest.13 7

8

9

10 11

12

13

With Chinese troops pledging not to enter areas with unsolved issues and the Myanmar government deciding a reasonable time to withdraw from the Mangmao Area. See 廖心文 : 《二十纪五六十年代中共中央解决边界问 题的原则和办法 – 老一辈革命家与边界问题研究之二》, 《党的文献》2013年第5期, 第90页 [Xinwen Liao, ‘The Principles and Approaches of the Central Committee of the Communist Party of China in Resolving the Border Issue in the 1950s and 1960s – A Study of the Old Revolutionaries and the Border Issue II’ (2013) 5 Literature of Chinese Communist Party, 90]. Boundary Treaty between the People’s Republic of China and the Union of Burma (signature on 1 October 1960 and entry into force on 4 January 1961), Art. 1. The English version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/ 1531876399718.pdf. The Boundary Treaty is based on the Agreement between the Government of the People’s Republic of China and the Government of the Union of Burma on the Question of the Boundary between the Two Countries concluded a few months before, which determines the territorial exchange and agreed that the parties would form a joint committee to resolve the location and size of relevant areas in order to finalize the boundary. Boundary Treaty between China and Burma, supra note 8, Art. 2; Agreement between the Government of the People’s Republic of China and the Government of the Union of Burma on the Question of the Boundary between the Two Countries [中华人民共和国政府和缅甸邦政府关于两国边界问题的协定] (signature on 28 January 1960 and entry into force on 14 May 1960). The English version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/ 1531876399642.pdf. Boundary Treaty between China and Burma, supra note 8, Art. 1. ‘A New Page in the History of Friendly Relations between China and Nepal’ [中尼友好关系史的新的一页], People’s Daily [人民日报] (25 March 1960). Boundary Treaty on the Boundary between the People’s Republic of China and the Kingdom of Nepal [中华人民共 和国和尼泊尔王国边界条约] (signature and entry into force on 5 October 1961). The English version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/1531876402103.pdf. ‘On the Eve of His Departure from Nepal on 28 April, Premier Zhou Answered a Reporter’s Question in Kathmandu’ [在四月二十八日离开尼泊尔前夕, 周总理在加德满都答记者问], People’s Daily [人民日报] (1 May 1960). (‘The map of China is based on the history of China and shows the mountain on the Chinese territory; the map of Nepal is based on the history of Nepal and shows the mountain on the border line between the two countries . . . We accept the drawing of the map of Nepal regarding the location of Mount Everest.’)

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

525

In 1962, China and the DPRK launched a boundary negotiation on the initiative of Zhou Enlai, aiming at an early conclusion of a boundary agreement between the two allies. At that time, the boundary was non-existent except for the Yalu and Tumen rivers. The China–Korea boundary provisions concluded between the Qing Empire and Imperial Japan indicate that ‘the Tumen River is the national boundary between China and Korea’. ‘The area north of the Tumen River . . . is subject to Chinese legal authority and is under the jurisdiction of local Chinese officials’, according to the same provisions.14 However, both acknowledged and committed to respecting the customary line along the Yalu and Tumen rivers.15 The boundary agreement between China and DPRK was concluded through negotiations in the same year, but the text has never been publicized for political reasons.16 What can be inferred from Zhou Enlai’s comment on the agreement is that the boundary follows the customary line along the two rivers, and the problem of ‘a little bit of land boundary’17 – probably referring to Changbai Mountain/Mount Paektu18 – was resolved. Besides, in December 1962, the Mongolian People’s Republic, recognized as an independent state by the PRC, concluded its boundary treaty with China.19 The land boundary between the PRC and the Islamic Republic of Pakistan was partially determined on 2 March 1963, with the conclusion of a boundary agreement providing a provisional boundary line between China and Pakistan-controlled Kashmir (hereafter, 1963 China–Pakistan Boundary Agreement), and its protocol concluded in 1965.20 Following the boundary line established by Article 2 of this agreement,21 Karakorum Corridor is located on the Chinese side; this shows that Pakistan considered the Karakorum Corridor part of China. Nevertheless, in the agreement, ‘the two Parties have agreed that after the settlement of the Kashmir dispute between Pakistan and India, the sovereign authority concerned will reopen negotiations . . . to sign a formal boundary treaty to replace the present 14 15

16

17 18

19

20

21

Tumen River Sino–Korean Boundary Provisions [图们江中韩界务条款], Art. 1. 齐鹏飞 : 《社会主义国家之间的边界谈判 – 中朝、中蒙边界谈判与双边边界的划定 (上) 》, 《中国魂》2013年 第22期, 第19页 [Pengfei Qi, ‘Border Negotiations between Socialist Countries – Sino–DPRK and Sino–Mongolian Border Negotiations and the Delimitation of Boundary I’ (2013) 22 Chinese Soul, 19]. Zhou Enlai said at a diplomatic event: ‘[N]ot long ago, the border issue between us [China] and the DPRK was resolved . . . Since the DPRK has not yet been reunified, it has not been announced.’ Transcript of the conversation between Premier Zhou Enlai and President Zedenbal of Mongolia [周恩来总理同蒙古泽登巴尔主席的谈话记录] in 齐鹏飞 : 《大国疆域 – 当代中国陆地边界问题述论》 (北京 : 中共党史出版社2013年版) 第280页 [Pengfei Qi, The Frontier of China – A Study of Contemporary Chinese Land-Boundary Issues (Beijing: Chinese Communist Party History Press, 2013), 280]. Ibid. D. Goma, ‘The Chinese–Korean Border Issue: An Analysis of a Contested Frontier’ (2006) 46 Asian Survey, 867, 871–3; 沈志华 : 《事与愿违 : 冷战年代中国处理陆地边界纠纷的结果》, 《二十一纪》2014年第144期, 第55页 [Zhihua Shen, ‘Things Did Not Work Out as Planned: China’s Settlement of Land Boundary Disputes during the Cold War Era’ (2014) 144 21st Century, 55]. Boundary Treaty on the Boundary between the People’s Republic of China and the Mongolian People’s Republic [中华人民共和国和蒙古人民共和国边界条约] (signature on 26 December 1962 and entry into force on 25 March 1963). The Chinese version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/1531876993007.pdf. In November 1957, Mongolia made a formal proposal to the Chinese government to negotiate on land-boundary issues. See ‘Overview of the Sino–Mongolian Border’ [中蒙边境概况] in 外交部条法司 : 《中华人民共和国边界 事务条约集 (中蒙卷) 》 (北京 : 界知识出版社2004年版) 第1页 [Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China (eds.), Collection of Treaties on Border Affairs of the People’s Republic of China (China and Mongolia Volume) (Beijing: World Affairs Press, 2004), 1]. Agreement between the Government of the People’s Republic of China and the Government of Pakistan on the Boundary between China Sinkiang and the Contiguous Areas the Defence of Which Is under the Actual Control of Pakistan [中华人民共和国政府和巴基斯坦政府关于中国新疆和由巴基斯坦实际控制其防务的各个地区相接 壤的边界的协定] (signature and entry into force on 2 March 1963). The English version is available at http://treaty .mfa.gov.cn/tykfiles/20180718/1531876411689.pdf. The Chinese version of its Protocol is available at http://treaty .mfa.gov.cn/Treaty/web/detail1.jsp?objid=1531876411674. Ibid.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

526

Xinjun Zhang and Xidi Chen

Agreement’.22 According to the 1965 Protocol, the China–Pakistan provisional boundary extends from the Karakorum Pass (Art. 13) to the northwest highlands of 5,587 metres [5587米高地]. Additionally, with just 92 kilometres, the border between China and Afghanistan is the shortest among its neighbours. However, both sides recognized the ‘customary line’ running along the ‘watershed’ of the mountain range ‘starting from a peak with a height of 5630 metres’ to Peak Kokrash Kol.23 In November 1963, representatives of the PRC and Afghanistan concluded their first boundary treaty in Beijing.24 25.2.2 Successful Practices: 1980s to the Present Despite diplomatic efforts, border conflicts occurred in 1962 between China and India.25 It is now widely accepted that the China–Indian border conflict was a turning point in the development of Sino–Soviet relations, marking the beginning of the public breakdown of relations between the two countries.26 The deterioration of relations between China and the Soviet Union caused great geopolitical tension, marked by the two border skirmishes with the Soviet Union in 1969 and a border war in 1979 with Vietnam.27 In the meantime, China’s domestic turmoil, the ten-year-long Cultural Revolution (1966–76), also distracted China from focussing on settling more profound boundary issues with the rest of the neighbouring states, namely, the Soviet Union, Vietnam, Laos and India/Bhutan. China decided to attract foreign investment under the reform and opening-up policy in 1978. The promotion of this new strategy was impossible without a peaceful international environment. Moreover, the end of the war between the Soviet Union and Afghanistan (1979–87) also eased China–Soviet tensions and paved the way for peaceful negotiations. Historically, Tsarist Russia started to expand eastwards in the second half of the seventeenth century but met with resistance from the Qing Empire. The opposition finally led to the Treaty of Nerchinsk (1689, in the eastern part of the Sino–Russian boundary) and the Treaty of Bulensky (1727, in the central region of the Sino–Russian border). Since then, the two states formally became neighbouring states, but the boundary was redrawn in subsequent treaties.28 Soon after the Soviet Revolution in 1917, on 27 September 1920 Lenin pledged that everything the Tsarist government and the Russian bourgeoisie had brutally seized from China should be returned to China ‘unconditionally and in perpetuity’.29 Furthermore, in the Russian–Chinese 22 23 24

25

26

27

28

29

Ibid. Pengfei Qi, The Frontier of China, supra note 16, at 267. Boundary Treaty on the Boundary between the People’s Republic of China and the Kingdom of Afghanistan [中华人 民共和国和阿富汗王国边界条约] (signature and entry into force on 22 November 1963), Art. 5. The English version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/1531876411918.pdf. The border wars broke out in both the eastern and the western sectors of the China–India border. N. Maxwell, ‘Sino– Indian Border Dispute Reconsidered’ (1999) 15 Economic and Political Weekly 905, 905–18. M. Y. Prozumenschikov, ‘The Sino–Indian Conflict, the Cuban Missile Crisis, and the Sino–Soviet Split, October 1962: New Evidence from the Russian Archives’ (1997) 9 Cold War International History Project Bulletin, 258, 261–9. The Battle of Jumbo Island and the Battle of Terekity, which took place on the China–Soviet border in 1969 and the border war between China and Vietnam that began in February 1979. See 李丹慧 : 《1969年中苏边界冲突 : 缘起 和结果》, 《当代中国史研究》1996年第3期 [Danhui Li, ‘The 1969 Sino–Soviet Border Conflict: Origins and Outcomes’ (1996) 3 Studies in Contemporary Chinese History]; ‘All Our Border Troops Start to Withdraw to Our Territory – Xinhua News Agency Has Been Instructed by Chinese Government to Issue a Statement’ [我边防部队开 始全部撤回我国境内 新华社奉我政府之命发布声明], People’s Daily [人民日报] (6 March 1979). This was followed by the treaty of Aigun (1858), the treaty of Peking (1860) and the treaty of St. Petersburg (1881), which were considered by China to be unequal treaties. ‘Statement by the Government of the People’s Republic of China (24 May 1969)’, People’s Daily [人民日报] (25 May 1969). The Karakhan Manifestos of 25 July 1919 and 27 September 1920 made similar expressions. See A. S. Whiting, ‘The Soviet Offer to China of 1919’ (1951) 10(4) Far Eastern Quarterly, 355–64.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

527

Outline Agreement and Declaration on the Settlement of Unsolved Problems [中俄解决悬案 大纲协定及声明书] (31 May 1924), the two sides intended to ‘annul all conventions, treaties, agreements, protocols, and contracts concluded between the Chinese Government and the former Russian Imperial Government’ through the following negotiations.30 However, in the boundary negotiations in 1926, the Chinese government failed to agree with the Soviet Union on whether to redraw the boundary.31 The Soviet Union formally became an ally of the PRC on 14 February 1950,32 soon after the inauguration of the PRC’s central government in 1949. During the first decade of the PRC, peace and order over the 7,600 kilometre PRC–Soviet boundary were carefully maintained. However, when Sino–Soviet inter–Communist party and interstate relations deteriorated in the early 1960s, the two sides needed to re-tackle difficulties arising from their long boundary. In 1964, the PRC and the Soviet Union held negotiations on the boundary issue in Beijing. The Chinese believed that the boundary treaties imposed by the Tsar on the Qing Dynasty of China were ‘unequal treaties’ from the 1850s onwards.33 The Soviet Union did not accept such a view.34 The stalemate of the negotiations further worsened the border situation and resulted in two military skirmishes at the border in the late 1960s.35 After almost twenty years of diplomatic interruption, on 9 February 1987 the boundary talks between PRC and the Soviet Union resumed in Moscow. On 15 May 1989, Mikhail Gorbachev visited Beijing, which ‘marked the normalisation of relations between the two states on the following day’.36 In May 1991, the two sides concluded the agreement on the Soviet–Chinese boundary in the eastern sector (between Jilin, Heilongjiang, Inner Mongolia of China and the Soviet Union, about 4,070 kilometres long) mainly by using the median line of the main channel (i.e., thalweg) of the boundary rivers.37 In 2004, China and Russia concluded a supplementary agreement to resolve the issue of ownership of Abagaitu/Bolchoi Island and Heixiazi/Bolchoi Usuriski Island.38 Besides this, their 2004 agreement also stipulates that the sovereignty of any islands that surface in a river after the conclusion of the agreement shall be determined by 30

31 32

33

34 35

36

37

38

Russian–Chinese Outline Agreement and Declaration on the Settlement of Unsolved Problems [中俄解决悬案大 纲协定及声明书], Art. 3. Statement by the Government of the People’s Republic of China, supra note 29. Treaty of Friendship and Mutual Assistance between the People’s Republic of China and the Union of Soviet Socialist Republics [中华人民共和国与苏维埃社会主义共和国盟友好同盟互助条约] (signature on 14 February 1950 and entry into force on 11 April 1950). The Chinese version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/ 1531876373629.pdf. Statement by the Chinese Government issued on 24 May 1969 [中华人民共和国政府声明 一九六九年五月二十四 日], https://cn.govopendata.com/renminribao/1969/5/25/1/. Danhui Li, ‘The 1969 Sino–Soviet Border Conflict’, supra note 27, at 42. From 1966 to early 1968, the conflict escalated in the Zhenbao and Qilichin islands, resulting in violence and casualties. The Sino–Soviet border incident continued to expand, finally triggering the armed conflict at Jumbo Island in March 1969. Ibid., at 43. See Sino–Soviet Joint Communique´ [中苏合公报] of 18 May 1989, Gazette of the State Council of the People’s Republic of China [中华人民共和国国务院公报], No. 9 (1989). ‘China and the Soviet Union Signed an Agreement on the Eastern Section of the Border; Jiang Zemin and Gorbachev Attended the Signing Ceremony [中苏两国签署东段边界协定 江泽民戈尔巴乔夫出席签字仪式]’, People’s Daily [人民日报] (17 May 1991). Supplementary Agreement between the People’s Republic of China and the Russian Federation concerning the Eastern Sector of the Russian–Chinese Border [中华人民共和国和俄罗斯邦关于中俄国界东段的补充协定] (signature on 14 October 2004 and entry into force on 2 June 2005). The Chinese version is available at http://treaty.mfa.gov.cn/tykfiles/ 20180718/1531876873978.pdf; the Russian version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/1531876873993. pdf. According to the Chinese government, the total number of islands in the boundary rivers is 2,444, of which 1,281 belong to China and 1,163 to Russia, and the two sides have resolved the issue of ownership of most of the islands on the boundary through negotiations. See ‘Overview of the Sino–Russian Border’ [中俄边境概况] in 外交部条法司 : 《中华人民共和 国边界事务条约集 (中俄上) 》 (北京 : 界知识出版社2005年版) 第1页 [Department of Treaty and Law, Ministry of

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

528

Xinjun Zhang and Xidi Chen

established boundaries with the caveat that if they overlap in the boundary, both parties shall conduct further negotiations.39 Simultaneously, the two sides negotiated on the western sector (about 2,400 kilometres long, between Xinjiang and the Far East region of the Soviet Union). The most disputed part was the westernmost Pamir sector, about 420 kilometres long, where China claimed that more than 20,000 square kilometres had been illegally appropriated by Tsarist Russia.40 The break-up of the Soviet Union complicated the negotiations with the emergence of four new independent states, namely, Russia, Kazakhstan, Kyrgyzstan and Tajikistan. On 8 September 1992, the Commonwealth of Independent States (CIS) foreign ministers met in Minsk. They decided that the four countries would form a joint delegation to conduct collective negotiations with the PRC to resolve the land-boundary issues.41 Following treaty-making procedures in each country, China concluded boundary agreements with Russia in 1994,42 Kazakhstan in 1994, Kyrgyzstan in 1996 and Tajikistan in 1999.43 There is a similar border story between China and Vietnam. China supported the Vietnamese Communists in the war of independence against France and the battle for the nation’s unification against the United States. However, as the relationship deteriorated in the second half of the 1970s, the tension in border areas increased. After several rounds of unsuccessful boundary talks,44 a border war broke out on 17 February 1979, but lasted less than a month (ending on 5 March 1979).45 After the 1979 war, the two sides held ten negotiations, but none achieved any progress in settling the boundary disputes. In the meantime, skirmishes on the border continued.46 In 1991, the two sides agreed to normalize the relations between the Communist ruling parties and the interstate relations.47 On 19 October 1993, the two sides signed the Agreement on Basic Principles to Settle Boundary and Territorial Issues between the People’s Republic of China and the Socialist Republic of Vietnam.48 The two sides agreed to resolve the territorial issue by

39

40

41

42

43

44 45 46

47

48

Foreign Affairs of the People’s Republic of China (eds.), Collection of Treaties on Border Affairs of the People’s Republic of China (China and Russia Volume I) (Beijing: World Affairs Press, 2005), 1]. Supplementary Agreement between the People’s Republic of China and the Russian Federation concerning the Eastern Sector of the Russian–Chinese Border [中华人民共和国和俄罗斯邦关于中俄国界东段的补充协定]. The Chinese government stated: ‘[I]n the Pamirs, Tsarist Russia appropriated more than 20,000 square kilometres of Chinese territory in violation of the provisions of the Russian–Chinese Treaty on the Renewal of the Kashgar Boundary [中俄续勘喀什噶尔界约] in 1884.’ See ‘Statement by the Government of the People’s Republic of China [中华人民共和国政府声明] of 24 May 1969’, People’s Daily [人民日报] (25 May 1969). ‘Four CIS Countries in Border Talks with China’ [独体四国同我进行边界谈判], People’s Daily [人民日报] (10 September 1992). Agreement between the People’s Republic of China and the Russian Federation on the Western Sector of the Border [中华人民共和国和俄罗斯邦关于中俄国界西段的协定] (signature on 3 September 1994 and entry into force on 17 October 1995). The Chinese version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/1531876718902.pdf. Agreement between the People’s Republic of China and the Republic of Tajikistan on the Border [中华人民共和国 和塔吉克斯坦共和国关于中塔国界的协定] (signature on 13 August 1999 and entry into force on 4 July 2000). The Chinese version is available at http://treaty.mfa.gov.cn/Treaty/web/index.jsp. Pengfei Qi, The Frontier of China, supra note 16, at 345. ‘All Our Border Troops Start to Withdraw to Our Territory’, supra note 27. ‘Why Are the Sino–Vietnamese Negotiations at an Impasse?’ [中越谈判为什么陷于僵局?], People’s Daily [人民日 报] (7 March 1980). See Sino–Vietnamese Joint Communique´ [中越合公报] of 10 November 1991, Gazette of the State Council of the People’s Republic of China [中华人民共和国国务院公报], No. 40 (1991). Agreement on Basic Principles to Settle Boundary and Territorial Issues between the People’s Republic of China and the Socialist Republic of Vietnam [关于中华人民共和国和越南社会主义共和国边界领土问题的基本原则协议] (signature and entry into force on 19 October 1993). The Chinese version is available at http://treaty.mfa.gov.cn /tykfiles/20180718/1531876993981.pdf.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

529

the universally recognized rules of international law in the light of international practice. At the same time, they agreed to verify [核定] the whole course of the land boundary based on the Special Article on the Renewal of the Boundary [续议界务专条] signed by the Qing Dynasty of China and France on 26 June 1887, and its Annex dated 20 June 1895.49 China and Vietnam concluded their land-boundary treaty consistent with the principles mentioned above in the 1993 Agreement, in 1999.50 In October 1989, the President of the Council of Ministers of the Lao People’s Democratic Republic visited China, marking the normalization of relations between China and Laos. The fruit of this visit included the Provisional Agreement between the Government of the People’s Republic of China and the Government of the Lao People’s Democratic Republic on Handling Border Affairs.51 Article 1 of the Provisional Agreement provides: ‘[The] boundary between PRC and Lao People’s Democratic Republic has been demarcated by Special Article on the Renewal of the Boundary dated June 26, 1887, and its Annex dated June 20, 1895. Both Parties must respect the boundary line established by the Annex.’52 In October 1991, PRC and Laos concluded their boundary treaty.53 25.2.3 Unresolved Boundary Issues: The China–India Boundary Dispute The most problematic land-boundary issue among China’s fourteen neighbouring states is the one with India. The issue presents certain distinct aspects in the eastern, central and western sectors of the ‘traditional customary line’ between them, which was altered several times during the British colonial domination of India.54 As far as the eastern sector (from the Isolahi Pass on the Burmese boundary to the east of Bhutan) is concerned, India was of the view that the boundary in this sector had been delimited by the 1914 Simla Convention, with the so-called McMahon Line drawn in a map attached to the Convention as the land boundary.55 From China’s perspective, the 1914 Simla Convention was not signed by the properly authorized representative of China and had never been approved by the central government. Therefore, there was a manifestly ultra vires act of the local Tibetan authority in the treaty-making and the treaty was thus invalid.56 China claimed the customary 49 50

51

52 53

54

55

56

Ibid., Art. 2. Treaty on the Boundary between the People’s Republic of China and the Socialist Republic of Vietnam [中华人民 共和国和越南社会主义共和国陆地边界条约] (signature on 30 December 1999 and entry into force on 6 July 2000). The Chinese and Vietnamese versions are available at http://treaty.mfa.gov.cn/Treaty/web/detail1.jsp ?objid=1531876798045. Provisional Agreement between the Government of the People’s Republic of China and the Government of the Lao People’s Democratic Republic on Handling Border Affairs [中华人民共和国政府和老挝人民民主共和国政府关 于处理两国边境事务的临时协定] (signature on 8 October 1989 and entry into force on 21 August 1990). The Chinese version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/1531876637508.pdf. Ibid., Arts. 1–2. Boundary Treaty between the People’s Republic of China and the Lao People’s Democratic Republic [中华人民共 和国和老挝人民民主共和国边界条约] (signature on 24 October 1991 and entry into force on 21 January 1992). Available at http://treaty.mfa.gov.cn/Treaty/web/detail1.jsp?objid=1531876655439. Both China and India recognize the existence of a ‘customary line’, but disagree on the method of determining this line and its exact location. See generally 陈体强 : 《中印边界问题的法律方面》, 《国际 问题研究》1982年第1期, 第11-42页 [Tiqiang Chen, ‘Legal Aspects of the Sino–Indian Boundary Issue’ (1982) 1 International Studies, 11–42]. Ministry of External Affairs, Government of India, Notes, Memoranda and Letters Exchanged and Agreements Signed between the Governments of India and China 1954–1959, White Paper I. Note from the Chinese Ministry of Foreign Affairs to the Indian Embassy in China [中国外交部给印度驻华大使馆 的照会], 26 December 1959. The Chinese version is available at https://bit.ly/3rnnDJf.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

530

Xinjun Zhang and Xidi Chen

boundary far south of the McMahon Line to include the vast South Tibet region, including Chatsum, Motuo, Meilin, Lhuntse, Shona and Dawang (bringing the total disputed land in the eastern sector up to 90,000 square kilometres).57 Geographical factors also matter to India. The McMahon Line generally follows the watershed of prominent geographical features identified by the colonial Government of India’s cursory exploration. Given this, the Government of India insisted that the McMahon Line was not only a treaty-determined boundary with China but also a customary boundary line with a geographical and traditional basis,58 seeking to double guarantee its sovereignty claim. However, there is an apparent disagreement regarding the role of the watershed in establishing the customary boundary.59 The Chinese government neither considered the McMahon Line to have any legal force, based on its being produced by the invalid 1914 Simla Convention, nor accepted that the watershed had a decisive legal meaning in determining the traditional customary boundary.60 According to the Chinese government, the area subject to dispute in the central sector (between Nepal and Indian-controlled Kashmir) is approximately 2,000 square kilometres.61 The main dispute is over the nature of the 1954 Agreement on Trade and Intercourse between the Tibet Region of China and India. India believes that the six mountain passes used for pedestrian traffic, as stipulated in Article 4 of the 1954 Agreement, somehow indicate the location of the boundary.62 On the other hand, the Chinese government believes that the purpose of the 1954 Agreement was to establish trade and commerce passages but not a boundary agreement.63 In the western sector (between Indian-held Kashmir and China’s Tibet and Xinjiang), the core dispute, in India’s view, is about Aksai Chin, which covers an area of approximately 30,000 square kilometres and is now controlled by China. India relies on the 1684 treaty between Ladakh and Tibet64 and the 1842 treaty of Chushul,65 claiming that these two so-called treaties established the China–India boundary in the Ladakh region. The so-called Johnson Line was a line on the map unilaterally produced by the colonial Government of India in 1847; it enclosed Aksai Chin as part of eastern Ladakhi. India took this as evidence that ‘India has established historical rights of possession based upon centuries of exercise of that possession’66 in the northern area of Kashmir.67 China does not accept these arguments. From China’s perspective, 57

58

59

60

61

62

63 64 65 66 67

‘Overview of the Sino–Indian Border’ [中印边境概况] in 外交部条法司 : 《中华人民共和国边界事务条约集 (中 印·中不卷) 》 (北京 : 界知识出版社2004年版) 第1页 [Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China (eds.), Collection of Treaties on Border Affairs of the People’s Republic of China (China and India/Bhutan Volume) (Beijing: World Affairs Press, 2004), 1]. Letter from the Prime Minister of India to the Prime Minister of China of 22 March 1959; White Paper I, supra note 55; Note from the Indian Ministry of External Affairs to the Chinese Embassy in India of 12 February 1960. Surya P. Shaema, ‘The India–China Border Dispute: An Indian Perspective’ (1965) 59 American Journal of International Law, 16, 42–5. Note from the Chinese Ministry of Foreign Affairs, supra note 56. In addition, there is much scepticism not only among the Chinese but also among British and Australian scholars as to whether the McMahon line indicates the correct location of the watershed. See Tiqiang Chen, supra note 54, at 28. Letter from Premier Zhou Enlai to Asian and African Leaders on the Sino–Indian Border Issue [周恩来总理就中印 边界问题给亚非国家领导人的信], Collection of Documents on Foreign Relations of the People’s Republic of China, Vol. 9, at 138. ‘Its terms exhibited very clearly the understanding of the Chinese as to the location of the boundary.’ See Shaema, supra note 59, at 26. Note from the Chinese Ministry of Foreign Affairs, supra note 56. Peace Treaty between Ladakh and Tibet at Tingmosgang, 1684. Treaty of Chushul, 1842. See Shaema, supra note 59, at 35–6. Report of the Officials of the Governments of India and the People’s Republic of China on the Boundary Question (published by the Ministry of External Affairs in 1961), Parts 2–4. The English version is available at www .claudearpi.net/the-sino-indian-boundary-issue.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

531

these two treaties did not involve the determination of the land boundary and were not signed by the Central Government of China.68 Therefore, the Chinese government cannot recognize the Johnson Line or its amended version in 1897, as such unilateral determination on boundary does not have any legal significance.69 On the contrary, Aksai Chin falls on the Chinese side of the customary boundary and thus should not be subject to the China–India boundary dispute.70 Another dispute is over the Karakorum Corridor. Under the 1963 China–Pakistani Boundary Agreement, the Karakorum Corridor falls on the Chinese side of the boundary between China (Xinjiang) and Pakistani-controlled Kashmir.71 India has vehemently opposed this agreement because, from India’s perspective, the Karakorum Corridor is part of Kashmir, over which India claims sovereignty as a whole; Pakistan has no right to claim, let alone dispose of, any part of it.72 Therefore, from India’s perspective, the 1963 China–Pakistani Boundary Agreement is, at most, res inter alios acta – any rights acquired in the said agreement could not be opposable to India. However, in the 1963 China–Pakistani Boundary Agreement, China and Pakistan agreed that the primary legal basis of the boundary in the region remains the customary historical boundary between China and the foreign ruler in the Kashmir region in the past.73 Therefore, China will renegotiate the China–Pakistan boundary line of 1963 only if India becomes the sovereign authority over the Pakistani-controlled Kashmir after India and Pakistan settle their dispute over Kashmir.74 China and India launched formal boundary talks in late 1958. Letters and note verbales presenting respective positions went back and forth between prime ministers and the Ministries of Foreign Affairs.75 Prime ministers and negotiation teams met several times between April and December 1960, but none of these meetings was productive enough to achieve any agreement.76 Instead, the Chinese government blamed India for repeatedly denying that there is ‘a need for a final settlement of the China–India boundary issue’ and refusing to recognize the status quo while demanding that Chinese troops withdraw from its designated areas at its wish.77 Diplomatic impasse and the forward policy78 implemented by the Indian army led to smallscale armed conflicts in areas such as Langjiu [郎久] and Chedong [扯冬] in the eastern sector. Eventually, a border war took place in both the eastern and the western sectors on 20 October 1962. After the war, India was pushed back to the line defined by the Chinese as the Line of Actual Control (LAC) on 7 November 1959.79 68 69

70

71 72

73 74 75 76 77

78 79

Note from the Chinese Ministry of Foreign Affairs, supra note 56. ‘In the 1860s, British imperialism . . . had coveted . . . Aksai Chin and sent military intelligence officers to infiltrate the area to conduct illegal surveys . . . and devise various boundaries to cut off Xinjiang.’ See Premier Zhou Enlai’s Letter to the King of Afghanistan on the Sino–Indian Border Issue [周恩来总理就中印边界问题致函阿富汗国王] (24 October 1962). See also 康民军 : 《‘约翰逊线’及其在中印边界争端中的地位》, 《首都师范大学学报 (社会 科学版) 》2004年第4期, 第20–6页 [Minjun Kang, ‘The “Johnson Line” and Its Status in the India–China Border Dispute’ (2004) 4 Journal of Capital Normal University (Social Sciences Edition), 20–6]. ‘Ministry of Foreign Affairs Releases Briefing on Report by Chinese and Indian Officials on Border Issues’ [外交部公 布中印官员关于边界问题报告的内容简介], People’s Daily [人民日报] (29 April 1962). Agreement on the Boundary between China Sinkiang and the Contiguous Areas, supra note 20. Ministry of External Affairs, Government of India, Notes, Memoranda and Letters Exchanged and Agreements Signed between the Governments of India and China October 1962–January 1963, White Paper XIII. Agreement on the Boundary between China Sinkiang and the Contiguous Areas, supra note 20, Art. 1. Ibid., Art.6. White Paper I, supra note 55. Pengfei Qi, The Frontier of China, supra note 16, at 91–112. ‘Exchange of Notes between the Chinese and Indian Governments on the Sino–Indian Border Issue’ [中印两国政 府就中印边界问题交换照会], People’s Daily [人民日报] (14 April 1962). See A. G. Noorani, ‘India’s Forward Policy’ (1970) 43 China Quarterly, 136–41. 唐家璇 : 《中国外交辞典》 (北京 : 界知识出版社2000年版) 第740页 [Jiaxuan Tang (ed.), Dictionary of Chinese Diplomacy (Beijing: World Affairs Press, 2000), 740].

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

532

Xinjun Zhang and Xidi Chen

At the end of 1981, the two sides resumed boundary negotiation. Since then, although no substantive agreement was achieved in eight rounds of talks at the deputy minister level in the following six years, the talks generally eased border tensions. Despite the Sandolo Valley conflict of 1987, the two sides at the border talks agreed to establish a joint working group. In 1993, China and India concluded the Agreement on the Maintenance of Peace and Tranquility along the Line of Actual Control in the China–India Border Areas.80 In 1996, these two countries concluded the Agreement on Confidence-Building Measures in the Military Field along the Line of Actual Control in the China–India Border Areas.81 Both were designed to maintain the status quo while prescribing concrete measures to prevent friction.82 In the twenty-first century, the two countries reaffirmed that they should resolve territorial issues peacefully through negotiations.83 In 2003, China and India ‘agreed to appoint special representatives to explore a framework for resolving the boundary issue’.84 In 2005, China and India concluded the General Principle Agreement for the Boundary Question, although no substantive progress concerning the delimitation has been achieved thus far.85 The ‘Donglang (lies in the Sikkim sector) Incident’ in 2017 and the ‘Garhwan Valley (lies in the western part of Aksai Chin) Incident’ in 2020 raised tensions between the armies on site. However, the mechanism of commander-level talks on site continued to function.86 Last but not least, the boundary has not been finalized between the PRC and Bhutan owing to the unique India–Bhutan relationship.87 China and Bhutan have not established formal diplomatic ties to date. In 1981, Bhutan proposed that the two sides negotiate the delimitation and demarcation of the China–Bhutan boundary at an appropriate time. In 1984, the two sides formally launched ministerial negotiations.88 On 8 December 1998, the two parties concluded the Agreement on the Maintenance of Peace and Tranquility in China–Bhutan Border Areas, agreeing to ‘maintain status quo on the boundary as before March 1959’, pending a final

80

81

82

83

84

85

86

87

88

Signature and entry into force on 7 September 1993. The English version is available at http://treaty.mfa.gov.cn /tykfiles/20180718/1531876687358.pdf. Signature on 29 November 1996 and entry into force on 5 August 1997. The English version is available at http://treaty .mfa.gov.cn/tykfiles/20180718/1531876747136.pdf. Agreement between the Government of the People’s Republic of China and the Government of the Republic of India on the Maintenance of Peace and Tranquility along the Line of Actual Control in the China–India Border Areas, Art. 1; Agreement on Confidence-Building Measures in the Military Field along the Line of Actual Control in the China–India Border Areas, Arts. 1–3. Agreement between the Government of the People’s Republic of China and the Government of the Republic of India on the Political Parameters and Guiding Principles for the Settlement of the China–India Boundary Questions (signature and entry into force on 11 April 2005), Arts. 1–2. Available at http://treaty.mfa.gov.cn/tykfiles/20180718/ 1531876880917.pdf. Declaration on Principles for Relations and Comprehensive Cooperation between the Republic of India and the People’s Republic of China (signature and entry into force on 23 June 2003). Available at http://treaty.mfa.gov.cn /tykfiles/20180718/1531876852949.pdf. Agreement on the Political Parameters and Guiding Principles for the Settlement of the China–India Boundary Question, supra note 83. Ministry of National Defense of the People’s Republic of China, Joint Press Release of the 14th Round of China– India Corps Commander-Level Meeting, www.mod.gov.cn/topnews/2022-01/13/content_4902920.htm. For decades since 1949, Bhutan was ‘guided by the advice of the Government of India in regard to its external relations’. Until now, India has had a significant influence on Bhutan economically, politically and in terms of resources. See Treaty of Perpetual Peace and Friendship between the Government of India and the Government of Bhutan, Art. 2. ‘Overview of the Sino–Bhutan Border’ [中不边境概况] in 外交部条法司 : 《中华人民共和国边界事务条约集 (中印·中不卷) 》 (北京 : 界知识出版社2004年版) 第123页 [Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China (eds.), Collection of Treaties on Border Affairs of the People’s Republic of China (China and India/Bhutan Volume) (Beijing: World Affairs Press, 2004), 123].

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

533

settlement of the boundary issues.89 In 2021, China and Bhutan signed the Memorandum on the Three-Step Roadmap to Accelerate the China–Bhutan Boundary Negotiations.90 25.3 ISLAND DISPUTES IN THE SOUTH CHINA SEA AND THE EAST CHINA SEA

25.3.1 Island Disputes in the South China Sea In different ways, China, Vietnam, the Philippines, Malaysia and Brunei have all claimed sovereignty over the island groups in the South China Sea. However, China consistently argues that it is ‘the first to exercise sovereignty and jurisdiction over’ Nanhai Zhudao and has established territorial sovereignty over it.91 Nanhai Zhudao is a composite of four major island groups: Dongsha Qundao (Pratas Islands), Zhongsha Qundao92 (Macclesfield Bank), Xisha Qundao (Paracel Islands) and Nansha Qundao (Spratly Islands). However, when China declined as a regional power, the French colonialists ‘became emboldened’ and looked to some of the islands in the South China Sea, beginning in the early twentieth century.93 In 1931, France tried to seize the Xisha/Paracel Islands by taking advantage of Japanese aggression against China’s northeastern provinces.94 In 1933, France invaded and occupied nine of China’s Nansha/Spratly Islands . Finally, on 15 June 1938, France promulgated a decree to incorporate the Xisha/Paracel Islands into French Indochina. Since all these events occurred during China’s war against Japanese aggression, the Chinese believed that the French had calculated the most opportune time to take advantage of China’s difficulties. These activities elicited protest from the Chinese people and caused China to make ‘strong representations to the French authorities through diplomatic channels’.95 89

90

91

92

93

94

95

Agreement between the Government of the People’s Republic of China and the Government of the Kingdom of Bhutan on the Maintenance of Peace and Tranquility in China–Bhutan Border Areas (signature and entry into force on 8 December 1998), Art. 3. Ministry of Foreign Affairs of the PRC, ‘China and Bhutan Sign Memorandum of Understanding on Accelerating the “Three-Step” Roadmap for China–Bhutan Border Negotiations’ [中国与不丹签署《关于加快中不边界谈判’ 三步走’路线图的谅解备忘录》] (15 October 2021), https://bit.ly/43lERnz. Declaration of the Government of the People’s Republic of China on China’s Territorial Sea; ‘China’s Indisputable Sovereignty over the Xisha and Nansha Islands’ (Document of the Ministry of Foreign Affairs of the PRC of 30 January 1980); Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone; Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Law of the Sea by the Vietnamese National Assembly of the Socialist Republic of Vietnam (21 June 2012); ‘The Operation of the HYSY 981 Drilling Rig: Vietnam’s Provocation and China’s Position’ (8 June 2014), www.mfa.gov.cn/web/ziliao_674904/ 1179_674909/201406/t20140608_9868400.shtml; Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines (7 December 2014), www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1368895.htm; Statement of the Ministry of Foreign Affairs of the PRC on the Award on Jurisdiction and Admissibility by the Arbitral Tribunal in the South China Sea Arbitration Case Established at the Request of the Republic of the Philippines (30 October 2015); Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea (12 July 2016), www.fmprc.gov.cn/nanhai/ eng/snhwtlcwj_1/201607/t20160712_8527297.htm; China Adheres to the Position of Settling Through Negotiation the Relevant Disputes between China and the Philippines in the South China Sea (13 July 2016); ‘China Stays Committed to Peace, Stability and Order in the South China Sea’ (23 March 2022). The geographical scope of the Zhongsha Qundao, as claimed by the Chinese government, covers the latitude 13˚57´– 19˚33´ north latitude and 113˚02´–118˚45´ east longitude. See History Research Office of Hainan Provincial Committee of the Communist Party of China, Hainan History Website, https://hnszw.org.cn/xiangqing.php?ID=43639. A. Carty, ‘British and French Archives Relating to Ownership of the Parcel Islands 1900–1975’ (2019) 4 Jus Gentium: Journal of International Legal History, 301, 305. Declaration of the Government of the People’s Republic of China on China’s Territorial Sea: ‘China’s Indisputable Sovereignty over the Xisha and Nansha Islands’, supra note 91. In fact, as early as 12 April 1930, France had occupied Nanwei Island/Spratly Island, one of the Nansha/Spratly Islands. Ibid.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

534

Xinjun Zhang and Xidi Chen

Japan invaded and occupied the Xisha/Paracel Islands and the Nansha/Spratly Islands during World War II as part of the aggression against China. In 1946, after the surrender of Japan, senior Chinese officials held ceremonies for receiving the islands. In addition, tablets were erected on Yongxing Island (Woody Island, a major island of the Xisha/Paracel Islands) and Taiping Island (Itu Aba Island, of the Nansha/Spratly Islands) to commemorate the handover of these islands to the Chinese. The Chinese government subsequently stationed garrisons on these islands.96 Under Article 2(f) of the 1951 Peace Treaty with Japan, Japan renounced all rights, titles and claims to the Nansha/Spratly Islands and the Xisha/Paracel Islands. However, China was not invited to the 1951 San Francisco Conference with Japan. Regarding the draft of the Peace Treaty prepared by the USA and the UK, the then prime minister Zhou Enlai stated that the Dongsha/Pratas Islands, the Zhongsha Islands (Macclesfield Bank), the Xisha/Paracel Islands and the Nansha/Spratly Islands ‘have always been China’s territory’. He stressed that China’s sovereignty over these islands ‘will not be in any way affected’, whether or not the USA–UK draft contained provisions on this subject or how those provisions were worded.97 The ‘State of Vietnam’ representative started to assert its ‘right to the Spratly and Paracel Islands’.98 However, the representative did not clearly articulate the legal basis for the claim. Later, in 1975, the South Vietnam (the ‘Republic of Vietnam’) government asserted that Vietnam formally took possession of the Hoang Sa archipelago, otherwise known as the Xisha/Paracel Islands, in 1816 and that the French continued the routine exercise of sovereignty on behalf of Vietnam in the second half of the nineteenth century.99 Moreover, regarding Truong Sa Archipelago, otherwise known as the Nansha/Spratly Islands, South Vietnam stated: ‘In 1933, the Spratly Islands were incorporated into the French colony of Cochinchina (as terra nullius) . . . French jurisdiction was disrupted by the Japanese invasion of 1941 . . . [S]hortly after the Japanese defeat in 1945, France returned Cochinchina to Vietnam, which then recovered all the rights attached to the former French colony.’100 Today, the Socialist Republic of Vietnam repeats these arguments.101 China does not acknowledge any territorial dispute with Vietnam over the Xisha/Paracel Islands.102 In 1974, China expelled the USA-supported South Vietnamese garrisons from some of the Xisha/Paracel Islands where they were stationed.103 At the time, the Government of the Democratic Republic of Vietnam (the North 96

97

98

99

100 101

102

103

‘The Operation of the HYSY 981 Drilling Rig’, supra note 91, Annex 2. See also 张君然 : 《抗战胜利后我国海军进 驻南海诸岛纪实》, 《文史精华》1998年第2期, 第49-50页 [Junran Zhang, ‘Chronology of China’s Naval Presence on the South China Sea Islands after the Victory of the War’ (1998) 2 Literary and Historical Highlights, 49–50]. ‘The Statement on the USA–UK Draft of Peace Treaty with Japan and the San Francisco Conference’ [关于美英对 日和约草案及旧金山会议声明], People’s Daily [人民日报] (16 August 1951). Conference for the Conclusion and Signature of the Treaty of Peace with Japan, held in San Francisco, CA, 4– 8 September 1951; Record of Proceedings (1951), Department of State Publication 4392, at 263. Ministry of Foreign Affairs of Republic of Vietnam, White Paper on the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands. Ibid. E.g., Position Paper on VN’s Sovereignty over Hoang Sa, https://en.baochinhphu.vn/position-paper-on-vnssovereignty-over-hoang-sa-11120420.htm. Declaration of the Government of the People’s Republic of China on China’s Territorial Sea; ‘China’s Indisputable Sovereignty over the Xisha and Nansha Islands’, supra note 91; ‘The Operation of the HYSY 981 Drilling Rig’, supra note 91; ‘Chunying Hua Said, “That No (Territorial) Dispute Exists over the Xisha Islands Is a Fact”’, www.gov.cn /xinwen/2014-05/12/content_2678361.htm. ‘The Operation of the HYSY 981 Drilling Rig’, supra note 91. In order to support its stance, the Chinese government has published a fair amount of historical evidence including a diplomatic note from Premier Pham Van Dong of the Government of Vietnam stating that ‘the Government of the Democratic Republic of Vietnam recognizes and supports the declaration of the Government of the People’s Republic of China on its decision concerning China’s territorial sea made on September 4, 1958’ and that ‘the Government of the Democratic Republic of Vietnam respects this decision’.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

535

Vietnamese government) was at war for the nation’s reunification with South Vietnam. Before 1974, on various diplomatic occasions, the North Vietnamese government explicitly stated that it recognized China’s sovereignty over Nanhai Zhudao. One example of such explicit recognition is the famous ‘Note of Pham Van Dong’ from the North Vietnamese premier to Zhou Enlai in 1958.104 North Vietnam’s recognition of China’s sovereignty was firm, at least before it defeated the South and reunited the nation under the Socialist Republic of Vietnam in 1976. The story of disputes with the Philippines is slightly different. Although the Philippines participated fully in the 1951 San Francisco Peace Conference with Japan, the representative from the Philippines government said nothing about the Nansha/Spratly Islands or any other islands in the South China Sea.105 However, the Philippine Position on Bajo De Masinloc (Huangyan Island) and the Waters within Its Vicinity (7 May 2012) stated: The basis of Philippine sovereignty and jurisdiction over the rock features of Bajo de Masinloc is not premised on the cession by Spain of the Philippine archipelago to the United States under the Treaty of Paris . . . [T]he reason why the rock features of Bajo de Masinloc are Philippine territories is anchored on other principles of public international law . . . [T]he Philippines has exercised both effective occupation and effective jurisdiction over Bajo de Masinloc from the time of its independence.106

The Philippines also insisted that part of the Nansha/Spratly Islands – the Kalayaan Islands Group named by the Philippines – had become terra nullius after Japan renounced its title of the islands.107 Therefore, the act of a Filipino explorer (‘Proclamation to the Whole World’ by Mr Tomas Cloma) in the 1950s and President Ferdinand Marcos’s Decree in 1978 established the Philippines’ sovereignty over these islands by occupation.108 In the Zhongsha Islands (Macclesfield Bank), Huangyan Island (Scarborough Shoal) is the main subject of the sovereignty disagreement between China and the Philippines. On 10 April 2012, the Philippines sent its warships to enter Huangyan Island’s waters, blocking the lagoon’s entrance, and sent soldiers to forcibly board Chinese fishing boats operating in the lagoon. China quickly dispatched government vessels to protect its fishers, and a confrontation between the two sides ensued.109 Addressing the ongoing situation, the Chinese government stated that there was no dispute concerning the sovereignty of Huangyan Island.110 The situation is even more complicated in the Nansha/Spratly Islands. China and Vietnam claim sovereignty over all the scattered islands, rocks and maritime features of the Nansha/Spratly Islands.111 The Philippines claims features lying in the northeastern part of the Nansha/Spratly 104

105 106 107

108

109

110

111

Note dated 14 September 1958 from Pham Van Dong, Prime Minister of the Government of the Democratic Republic of Viet Nam, addressed to Zhou Enlai, Premier of the State Council of the People’s Republic of China [1958年9月14日越南民主共和国政府总理范文同致中华人民共和国国务院总理周恩来的照会], www.gov.cn /govweb/xinwen/2014-06/08/content_2696643.htm. Conference Record of Proceedings, supra note 98, at 224–34. Philippine Position on Bajo De Masinloc and the Waters within Its Vicinity (7 May 2012). Presidential Decree of Ferdinand Marcos, No. 1596, s. 1978. See also Aileen S. P. Baviera and Jay Batongbacal, The West Philippine Sea: The Territorial and Maritime Jurisdiction Disputes from a Filipino Perspective: A Primer (2013), 22–3, https://bit.ly/44Dz5iR. Presidential Decree of Ferdinand Marcos, No. 1596, s. 1978; Municipal Government of Kalayaan, Palawan, History of Kalayaan, www.kalayaanpalawan.gov.ph/about.html. Deng Zhonghua, Director General of the Department of Border and Maritime Affairs of the Ministry of Foreign Affairs, interviewed by Phoenix TV, www.fmprc.gov.cn/wjbxw_673019/201205/t20120510_373165.shtml. Chinese Government Premier Wen Jiabao said that Huangyan Island is an inherent territory of China and there is no dispute over sovereignty, see www.mfa.gov.cn/web/zyxw/201211/t20121122_321251.shtml. Statement . . . on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea, supra note 91; Vietnam’s Note Verbale on the South China Sea (unofficial translation, 30 March 2020), www.un.org /Depts/los/clcs_new/submissions_files/mys_12_12_2019/VN20200330_ENG.pdf.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

536

Xinjun Zhang and Xidi Chen

Islands, named the Kalayaan Island Group.112 Malaysia and Brunei claim only the southern part of the Nansha/Spratly Islands proximate to their coasts. In 2002, the PRC and the countries of the Association of Southeast Asian Nations (ASEAN) signed the Declaration on the Conduct of Parties in the South China Sea (DOC). They agreed to ‘undertake to exercise self-restraint . . . refraining from action of inhabiting on the presently uninhabited . . . features’ and to maintain constructive consultation and dialogue.113 On 22 January 2013, the Republic of the Philippines initiated arbitration under Annex VII of the United Nations Convention on the Law of the Sea ‘with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea’ (the Philippines’ term for part of the South China Sea; emphasis added).114 Regarding the tribunal’s jurisdiction, the Philippines maintained that it did not request a decision on sovereignty over the maritime features.115 China did not participate in the proceedings because ‘the request for arbitration by the Philippines was manifestly unfounded (emphasis added)’.116 In the Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, the Chinese government concluded: ‘The essence of the subject matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea, which is beyond the scope of the Convention and is consequently not concerned with the interpretation or application of the Convention.’117 This is one of the major objections to the tribunal’s jurisdiction. Nevertheless, the case proceeded despite China’s objection and its decision of non-participation. On the same day the tribunal rendered the award on the merits (award of 12 July 2016, largely in favour of the Philippines’ requests), the Chinese Foreign Ministry stated that it ‘solemnly declares that the award is null and void and has no binding force’.118 In any event, the sovereignty disputes over the Nansha/Spratly Islands falling into the geographic scope of the Philippines’ submissions remain unsettled. 25.3.2 The Dispute over the Diaoyu/Senkaku Islands The Diaoyu/Senkaku Islands, consisting of eight insular features permanently above sea level, are located approximately 170 kilometres northeast of China’s Taiwan Island and about the same distance north of Ishigaki Island of the Yaeyama Islands, the southernmost islands in the Ryukyu Islands. None of the islands has been inhabited permanently. 112

113

114

115 116

117 118

The Philippines’ Note Verbale on the South China Sea (unofficial translation, 6 March 2020); Wang Yi talks about the South China Sea at the ASEAN Regional Forum, www.mfa.gov.cn/web/wjbzhd/201508/t20150806_352360 .shtml. ASEAN, ‘Declaration on the Conduct of the Parties in the South China Sea’ (14 May 2012), https://asean.org /declaration-on-the-conduct-of-parties-in-the-south-china-sea-2/. Note Verbale No. 13–0211 and attached Notification (‘Notification and Statement of Claim of the Republic of the Philippines (22 January 2013)’), The Philippines’ Memorial, Vol. 3 (Annexes 1–60), https://bit.ly/3pObU66. Ibid., paras. 25–30. Foreign Ministry Spokesperson Hua Chunying’s Remarks on the Philippines’ Efforts in Pushing for the Establishment of the Arbitral Tribunal in Relation to the Disputes between China and the Philippines in the South China Sea (26 April 2013), www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2535_665405/t1035577 .shtml. Position Paper . . . on the Matter of Jurisdiction in the South China Sea Arbitration, supra note 91, at para. 86. See Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines (12 July 2016), www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

537

On 17 June 1971, the United States and Japan signed the Agreement Concerning the Ryukyu Islands and the Daito Islands (‘Okinawa Reversion Agreement’) by which Japan resumed its administration over the Ryukyu Islands. In the Agreement, the United States and Japan also agreed that the geographical scope of the territories ‘returned’ to Japan should include Diaoyu/ Senkaku Islands.119 The Chinese government quickly issued a statement protesting that Japan and the United States had infringed on China’s sovereignty over the said islands (1971 Chinese Declaration).120 Three months later, the Japanese Ministry of Foreign Affairs issued its first Basic View on sovereignty over the same islands (the 1972 Japanese Statement).121 There are two significant differences in law and fact concerning the territorial acquisition of the Diaoyu/Senkaku Islands. The first is the interpretation and application of occupation as a rule of territorial acquisition; the second is the applicability of international instruments and their interpretation to post-war territorial disposition, which China has presented as part of its understanding of the so-called post-war international order.122 China claims that before 1895 these islands were Chinese territory, first by discovery and naming, and then by the continuous display of sovereignty manifested by Chinese fishers’ production activities on these islands and neighbouring waters. China’s incorporation of these islands into its coastal defence system also illustrates the display of sovereignty.123 Furthermore, China presented historical records to support its claim of sovereignty over the islands.124 While denouncing the legal significance of these historical records as remote to the actual exercise of the Chinese sovereignty over the said islands in history, Japan claims that the islands were ‘terra nullius’ and, therefore, subject to its occupation in 1895.125 Immediately after Japan defeated China in the First Sino–Japanese War in 1894, the Japanese Cabinet decided on 14 January 1895 to incorporate the Diaoyu/Senkaku Islands into Japanese 119

120

121

122

123

124

125

Agreement between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands, 17 June 1971, https://treaties.un.org/doc/publication/unts/volume%20841/volume-841-i-12037-english.pdf; Japan’s Foreign Relations – Basic Documents, Vol. 3, 481–9, www.ioc.u-tokyo.ac.jp/~worldjpn/. Zhonghua Renmin Gongheguo Waijiaobu Shengming [中华人民共和国外交部声明 Declaration of Ministry of Foreign Affairs of the People’s Republic of China], Renmin Ri Bao [人民日报 People’s Daily] (31 December 1971). On 8 March 1972, the Japanese Foreign Ministry issued ‘The Foreign Ministry’s View Concerning the Rights to Ownership over the Senkaku Islands’ [尖閣諸島の領有権問題について (日本外務省) 外交青書16号], see pp. 507–8, www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/JPCH/19720308.O1J.html. Statement of the Ministry of Foreign Affairs of the People’s Republic of China (10 September 2012), www .fmprc.gov.cn/mfa_eng/topics_665678/diaodao_665718/t968188.shtml. Ibid. A number of articles publicized in People’s Daily refer to historical records: see Yan Zhong, ‘Lun Diaoyu Dao Zhuquan Guishu [论钓鱼岛主权归属 On Sovereignty of Diaoyu Islands]’, Renmin Ri Bao [人民日报 People’s Daily] (18 October 1996); Jiangyong Liu and Zaixin Miao, ‘Cong Lishi Shishi Kan Diaoyudao Zhuquan Guishu [从 历史事实看钓鱼岛主权归属 Sovereignty of Diaoyu Islands: From a History Perspective]’, Renmin Ri Bao [人民日 报 People’s Daily] (13 January 2011); Guoqiang Li and Yi Hou, ‘Lun Diaoyu Dao Jiqi Fujin Haiyu Zigu Yilai Jiushi Zhongguo Jiangyu Zucheng Bufen (Liqing Diaoyu Dao Wenti) [论钓鱼岛及其附近海域自古以来就是中国疆域 组成部分 (厘清钓鱼岛问题②) Diaoyu Islands Has Been an Inherent Territory of China Since Ancient Times]’, Renmin Ri Bao [人民日报 People’s Daily] (10 May 2013); Ming Wan, ‘Cong Mingqing Wenxian Kan Diaoyu Dao Wenti De Guishu [从明清文献看钓鱼岛的归属 Study of Sovereignty of Diaoyu Islands Based on Literature of Ming and Qing]’, Renmin Ri Bao [人民日报 People’s Daily] (16 May 2013). There are several reports on the presentation of the historical records: see ‘Guotu Guancang Wenxian Zhengming, Diaoyu Dao Zigu Yilai Jiu Shuyu Zhongguo [国图馆藏文献证明 钓鱼岛自古以来就属于中国 Literature in National Library Proves That Diaoyu Islands Has Been an Inherent Territory of China Since Ancient Times]’, Renmin Ri Bao [人民日报 People’s Daily] (18 September 2012); ‘Wenxian Weizheng – Diaoyu Dao Wenxian Tujilu Jiang Chuban [《文献为证 – 钓鱼岛文献图籍录》将出版 Evidence: Collection of Historical Documents and Maps on Diaoyu Islands Awaits Publication]’, Renmin Ri Bao [人民日报 People’s Daily] (4 June 2013). Shigeyoshi Ozaki, ‘Territorial Issues on the East China Sea: A Japanese Position’ (2010) 3 Journal of East Asia and International Law 151, 155–66 (claiming that the islands appear in the Chinese historical records merely ‘as a guide for navigation purposes’).

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

538

Xinjun Zhang and Xidi Chen

territory.126 However, this Cabinet decision of incorporation was not made public until 1952,127 and Japanese national markers were not established in the islands until 1969.128 The secretive nature of the Japanese incorporation of the said islands also raises a question about the Japanese animus ocupandi (actual intention to acquire the territory by ‘occupation’ of terra nullius). Such measures, in the Chinese view, formed part of the Japanese illegal use of force,129 and therefore may be considered symbolic of the Japanese act of conquest.130 Moreover, China and Japan differ profoundly on post-war territorial disposition regarding the Diaoyu/Senkaku Islands – a difference in which of a series of international instruments shall apply, and a difference in their interpretation or application. The starting point for considering post-war territorial disposition in connection with the Diaoyu/Senkaku Islands is the Cairo Declaration and the Potsdam Proclamation. In the Cairo Declaration, the United States, Great Britain and China declared their plan for post-war territorial disposition: [I]t is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.131

The Potsdam Proclamation incorporated the Cairo Declaration and further limited Japanese sovereignty in Article 8, which says: ‘[T]he terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.’132 On 2 September 1945, Japan signed the Instrument of Surrender, reaffirming that Japan accepted the provisions outlined in the Potsdam Declaration.133 This Surrender was accepted by the United States, China, the United Kingdom and the Union of Soviet Socialist Republics, and in the interests of the other United Nations at war with Japan.134 The Instrument of Surrender is not merely an agreement of armistice that ended hostility and permitted belligerent occupation; it is also an agreement upon which Japan accepted terms of territorial disposition mandated in the two wartime Declarations. However, these terms have unsettled interpretive issues. For example, what shall be included among ‘territories Japan has stolen from the Chinese’?135 Several questions regarding territorial disposition remain open in the Declarations: the exact content of some relinquishment has not been spoken about, and no

126 127

128 129

130

131

132

133

134 135

The first Sino–Japanese War clearly announced the Qing government’s obvious defeat in December 1894. 井上清, 「尖閣」列島——釣魚諸島の史的解明, 第三書館 [Kiyoshi Inoue, ‘Senkaku’ Islands: A Historical Explanation of the Diaoyu Islands (Tokyo: Daisan Shokan, 1996), 18]. Ibid. The 2012 Chinese Statement, supra note 122. (‘In 1895, at the end of the Sino–Japanese War, Japan took advantage of the defeat of the Qing government to illegally steal the Diaoyu Islands and their affiliated islands.’) Peter N. Upton, ‘International Law and the Sino–Japanese Controversy over Territorial Sovereignty of the Senkaku Islands’ (1972) 52 Boston University Law Review, 763, 776 (conquest stands as the most appropriate theory to establish Japanese acquisition of the Senkakus during the Sino–Japanese War). The Cairo Declaration, 27 November 1943, www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/docs/19431127 .D1E.html. The Potsdam Declaration, 26 July 1945, www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/docs/19450726 .D1E.html. The Instrument of Surrender, 2 September 1945, www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/docs/19450902 .O1E.html. Ibid. The Cairo Declaration, supra note 131.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

539

promise has been made as to which country shall receive them.136 Regardless, these relinquished territories have not become res nullius;137 they are subject to further determination. Moreover, relinquishing the minor islands other than ‘such minor islands as we determine’ remains indeterminate pro tem.138 It is hoped that the terms of territorial disposition in the wartime Declarations can be clarified and the open questions can be closed, preferably by making a multilateral treaty of peace with all the principal powers and parties with interests. Unfortunately, the great power politics after the onset of the Cold War all but extinguished that hope. The only practical option left for Japan was to conclude peace treaties separately with a group of states or individual states that had either a high political interest or legal claims in these territories. The first peace treaty with Japan (the Treaty of San Francisco) was signed on 8 September 1951 by the United States, Japan and fortyseven other nations, then allied in World War II. Oddly, China was not invited.139 In this treaty, two articles address territorial arrangements. Under Article II, Japan renounced all right, title and claim to several territories Japan deemed to relinquish on surrender. Formosa and the Pescadores are on the list of the renounced, but without express reference to China as assignee.140 Article III designs a unique arrangement with a proposal of a UN trusteeship system and a sole US administering authority for territories not listed in Article II other than the four principal islands that the Japanese sovereignty deems to remain.141 Japan maintained that the Treaty of San Francisco had ‘legally demarcated Japan’s territory after World War II’.142 It avoided mentioning the wartime Declarations and the Instrument of Surrender in claiming so. For Japan, the treaty must be the only law that is applicable to the Senkaku issue with China, even though China is a non-signatory state. In contrast, China denounced the Treaty of San Francisco as ‘illegal and invalid’ and stated that it would not recognize the treaty.143 Regarding post-war territorial disposition, China holds that the Diaoyu/ Senkaku Islands have been recovered under the Cairo Declaration and the Potsdam Proclamation.144 It is no surprise that Article 3 of the 1972 China–Japan Joint Communique´ reaffirms that Japan shall abide by Article 8 of the Potsdam Proclamation.145 The Chinese view is that the Cairo Declaration governs the Diaoyu/Senkaku Islands to the extent that they shall be

136

137

138 139

140

141 142

143

144 145

Ibid. (‘It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.’) Award of the Arbitral Tribunal in the First Stage – Territorial Sovereignty and Scope of the Dispute, Eritrea/Yemen, 9 October 1998, para. 165, www.pca-cpa.org/showfile.asp?fil_id=458. The Potsdam Declaration, supra note 132. It thus was admitted as unique in the modern history of diplomacy. See John M. Allison, ‘The Japanese Peace Treaty and Related Security Pacts’ (1952) 46 American Society of International Law Proceedings, 35, 37. Treaty of Peace with Japan, San Francisco, Art. II, 8 September 1951, www.ioc.u-tokyo.ac.jp/~worldjpn/documents/ texts/docs/19510908.T1E.html. Ibid., Art. III. The Basic View on the Sovereignty over the Senkaku Islands, www.mofa.go.jp/region/asia-paci/senkaku/basic_view .html. ‘Zhonghua Renmin Gonheguo Zhongyang Renmin Zhengfu Waijiaobu Buzhang Zhou Enlai Guanyu Meiguo Jiqi Pucong Guojia Qianding Jiujinshan Duiri Heyue De Shengming [中华人民共和国中央人民政府外交部部长周 恩来关于美国及其仆从国家签订旧金山对日和约的声明 The Declaration of Chinese Minister of Foreign Affairs Zhou Enlai on the United States and Its Vassal States Signing Treaty of Peace with Japan]’, Renmin Ri Bao [人民日报 People’s Daily] (19 September 1951). The 2012 Chinese Statement, supra note 122. Joint Communique´ of the Government of Japan and the Government of the People’s Republic of China, 29 September 1972, www.mofa.go.jp/region/asia-paci/china/joint72.html.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

540

Xinjun Zhang and Xidi Chen

included as ‘territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and the Pescadores’.146 In addition, Japan believes that ‘the Senkaku Islands are not included in the territory which Japan renounced under Article II of the San Francisco Peace’.147 It holds that ‘the Senkaku Islands were not part of Taiwan or the Pescadores Islands, which were ceded to Japan from China’s Qing Dynasty per Article 2 of the Treaty of Peace signed at Shimonoseki’.148 The immediate difference, no matter which instrument shall apply, is a reaffirmation of the difference in interpretations of Article 2 of the Treaty of Shimonoseki regarding those territories ‘appertaining or belonging to the said island of Formosa’.149 Moreover, concerning that part of history, the very expression ‘stolen from the Chinese’ mirrors the secretive nature of the Japanese act of ‘incorporation’ of the Diaoyu/Senkaku Islands.150 This creates space for the application and interpretation of the principle of reversion151 to the extent that it provides China with a political basis152 for restoring the Diaoyu/Senkaku Islands in the international procedure for territorial disposition.153 Each point of the difference discussed here may constitute ‘a disagreement on a point of law or fact, a conflict of legal views or interests’, a useful legal definition of dispute pronounced by the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case.154 In June 1979, the Chinese government proposed to the Japanese government through diplomatic channels that China was willing to jointly develop resources in the waters of the disputed Diaoyu/Senkaku Islands. It is the first time China formally articulated the policy of ‘setting aside disputes and pursuing joint development’ as its position on settling territorial/maritime disputes with coastal states.155 Japan kept a long silence on the 1979 Chinese proposal for joint development.156 During several bilateral talks, China referred to the 1979 proposal to manage fisheries and other natural resources in the East China Sea, but Japan was reluctant to accept it. On 10 September 2012, the Chinese Foreign Ministry issued a second statement on the Diaoyu/ Senkaku Islands157 in response to the Japanese government’s decision to ‘nationalize’ the islands. 146 147 148 149

150 151

152

153 154 155

156

157

The Cairo Declaration, supra note 131. The Basic View on the Sovereignty over the Senkaku Islands, supra note 142. Ibid. Notwithstanding the result of interpretation, the geographical expression in the Shimonoseki Treaty was treated as an interpretive issue that should be subject to the rule of treaty interpretation. See Erdem Denk, ‘Interpreting a Geographical Expression in a Nineteenth Century Cession Treaty and the Sekaku/Diaoyu Islands Dispute’ (2005) 20 International Journal of Marine and Coastal Law, 97, 101–16. Interestingly, the interpretative issue on the geographical expression of ‘Kurile Islands’ in the 1855 Treaty of Shimoda seems to be the core of the territorial ‘dispute’ over the Northern Territories presented by Japan. See Seokwoo Lee, ‘The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia’ (2002) 11 Pacific Rim Law & Policy Journal, 63, 77–8. See supra notes 126–128 and accompanying text. The difference between reversion and relinquishment, in Brownlie’s words, is: ‘Renunciation is to be distinguished from reversion, i.e., recognition by an aggressor that territory seized is rightfully under the sovereignty of the victim. Here, there is no title to renounce.’ See Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2003), 131–2. It is noted that the Cairo Declaration did not make legal appreciation of the acts of Japan in acquiring the said territories by use of force at the turn of the century, which normally was not a problem according to the law at the time. Brownlie, supra note 151, at 163. Political and legal bases in this international procedure are indivisible. The Mavrommatis Palestine Concessions (Greecev.G.B.), Judgment, 1924 PCIJ(ser.A), No. 2, p. 4. ‘Set aside dispute and pursue joint development’, www.fmprc.gov.cn/mfa_eng/ziliao_665539/3602_665543/ 3604_665547/200011/t20001117_697808.html. The Japanese Ministry of Foreign Affairs was of the view that negotiations for ‘joint development’ were only between private entities, not between the two governments. See Reinhard Drifte, Japanese–Chinese Territorial Disputes in the East China Sea – Between Military Confrontation and Economic Cooperation, Working Paper (London: Asia Research Centre and London School of Economics and Political Science, 2008), http://eprints.lse.ac.uk/20881/. The 2012 Chinese Statement, supra note 122.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

541

The Ministry restated that a consensus on shelving the dispute was achieved forty years ago and has been maintained.158 The Japanese Foreign Ministry responded by issuing an updated version of its 1972 Statement in May 2013.159 The updated version inserted this statement: ‘[T]here is no territorial sovereignty issue to be resolved concerning the Senkaku Islands.’160 25.4 OBSERVATIONS ON CHINA’S APPROACH TO THE SETTLEMENT OF TERRITORIAL DISPUTES

After more than seventy years of unremitting efforts, the PRC has resolved its territorial and landboundary issues with twelve of its fourteen neighbouring states. Nearly 20,000 kilometres of the land boundary have been jointly defined, representing approximately 90 per cent of the total.161 While most territorial issues have been resolved through peaceful negotiations, others have sparked long-lasting frictions or conflicts, and some have even evolved into armed conflicts. Although border war is still a phenomenon in post-war international relations, somewhat surprisingly, China has never had a border war with any of those less powerful neighbours.162 The challenges that the PRC must address in the future are the issues concerning sovereignty over islands and other features in the East China Sea and the South China Sea, together with the territorial and land-boundary dispute with India/Bhutan. In this light, what lessons can be drawn from the Chinese practice in the past seventy years (1949–present) in dealing with boundary issues? To begin with, the PRC’s preference for the means of settlement of territorial disputes is, with no exception, direct bilateral negotiation. The PRC believes that recourse to international adjudication is not the proper way to solve its territorial disputes. Therefore, how is it possible to explain its utmost reluctance to engage in third-party procedures? In understanding such reluctance, one cannot ignore the Chinese tradition of pragmatism when dealing with international affairs. China would not risk losing a good case when competent international lawyers are unavailable. Given the scarcity of international lawyers practising in China, the only way to promote international adjudication for the settlement of interstate disputes is perhaps to open the door to foreign legal minds – as China gradually did in the World Trade Organization (WTO) litigations.163 Nevertheless, for various reasons, the Chinese Foreign Ministry may be more cautious about relying on law firms in the United States and European countries to defend a territorial case. Preparing sufficient historical and archival evidence, which is critical in winning a territorial case, is equally problematic for the Chinese government. In studying the China–India boundary dispute, Chinese scholars are criticized for failing to study Chinese archives adequately.164 Perhaps the 158 159 160 161

162

163

164

Ibid. The Basic View on the Sovereignty over the Senkaku Islands, supra note 142. Ibid. 段洁龙 : 《中国国际法实践与案例》 (北京 : 法律出版社2011年) 第166页 [Jielong Duan (ed.), Chinese International Law Practice and Cases (Beijing: Law Press, 2011), 166]. 聂宏毅、李彬 : 《中国在领土争端中的政策选择》, 《国际政治科学》2008年第4期, 第32页 [Hongyi Nie and Bin Li, ‘China’s Policy Choices in Territorial Disputes’ (2008) 4 Quarterly Journal of International Politics, 34]. See Gregory C. Shaffer and Ricardo Mele´ndez-Ortiz, Dispute Settlement at the WTO: The Developing Country Experience (New York: Cambridge University Press, 2010), 148–51; Mihaela Papa, ‘Emerging Powers in International Dispute Settlement: From Legal Capacity Building to a Level Playing Field?’ (2012) 4 Journal of International Dispute Settlement, 83, 96–8, 107–8; ‘Where Are China’s WTO Lawyers?’, Forbes (27 April 2009), www.forbes.com /2009/04/27/china-wto-law-business-economy-trade.html?sh=205bcb606fa4. See Response by Parshotam Mehra, in H-Diplo Roundtable Reviews, Vol. 9, No. 9, https://issforum.org/roundtables/ PDF/EssaysInFrontierHistory-Roundtable.pdf. See also 戴超武 : 《中印边界问题学术史述评 (1965–2013) 》, 《史学月刊》2014年第10期, 第113-115页 [Chaowu Dai, ‘The Sino–Indian Boundary Questions: A Critical Historiography (1956–2013)’ (2014) 10 Journal of Historical Science, 113–15].

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

542

Xinjun Zhang and Xidi Chen

Chinese archives regulations should be blamed for not being friendly to scholars.165 Furthermore, it is noted that a significant number of archives remained in the hands of the Nationalist Government of the Republic of China, which the Chinese Communists defeated in the civil war undertaken in mainland China in 1945–9 and which took refuge in Taiwan afterwards. Not until recent years did the Taiwan authorities release some of the internal documents of the Nationalist Government relating to its handling of territorial and boundary issues before 1949.166 In promoting the settlement of territorial and boundary disputes through negotiation, China proposes multiple-step negotiation by first agreeing on principles before entering into negotiations on intricate details. This approach is illustrated by the China–Myanmar negotiation from 1960 to 1961 and the China–Vietnam boundary talk from 1992 to 1999.167 The China–India negotiations follow a similar path.168 Sometimes measures for crisis management and confidence-building are incorporated into the process.169 Finally, the Chinese initiative on ‘setting aside disputes and pursuing joint development’ is a unique illustration of using peaceful means to resolve territorial disputes in complex cases. Although this policy is often heard in relation to handling unsettled maritime boundaries, it was first developed regarding outstanding island disputes. Through diplomatic channels, the Chinese government proposed to its Japanese counterpart that it was willing to jointly develop resources in the waters of the disputed Diaoyu/Senkaku Islands. It was the first time China formally articulated the policy of ‘setting aside disputes and pursuing joint development’ as its position on settling territorial/maritime disputes with coastal states.170 Since then, the PRC has maintained this policy consistently, not only towards Japan on the East China Sea disputes171 but also in formulating policy regarding those in the South China Sea.172 From the substantive aspects, China believes that historical injustices and suffering should be rectified; historical factors and international law are indispensable in settling territorial issues. This view is reflected by its lukewarm support of the theory of unequal treaties – accusing the legal documents formed in the unjust past. The PRC’s policy regarding predating treaties and agreements, in general, is ‘sweeping the house clean before inviting guests over [打扫干净屋子再请 客]’. Accordingly, the government will review all the previous treaties and agreements to ensure that they create no unequal or unfair benefits for foreign states.173 The Chinese had a strong sentiment towards treaties concluded with foreign imperialist powers after the First Opium War, seeing them as ‘unequal treaties’.174 Nevertheless, the PRC’s approach to land-boundary treaties 165

166

167 168

169 170 171

172

173

174

See 沈志华 : 《历史研究与档案的开放和利用 – 冷战国际史研究中的案例种种》, 《冷战国际史研究》2008 年第1期 [Zhihua Shen, ‘Historical Research and the Opening and Use of Archives’ (2008) 5 Cold War International History Studies]. ‘Taiwan’s First Government-Run Exhibition of South China Sea Historical Materials’, China News (1 September 2014), www.chinanews.com.cn/tw/2014/09-01/6551679.shtml. See Xinwen Liao, supra note 7. Declaration on Principles for Relations and Comprehensive Cooperation Between the Republic of India and the People’s Republic of China (signature and entry into force on 23 June 2003). Available at http://treaty.mfa.gov.cn /tykfiles/20180718/1531876852949.pdf. For instance, China–India land-boundary negotiation. See Xinwen Liao, supra note 7. See supra note 155. Foreign Ministry Spokesman Kong Quan’s press conference answering reporters’ questions (7 September 2004), www.fmprc.gov.cn/mfa_chn/fyrbt_602243/jzhsl_602247/t156240.shtml. China’s basic position on the South China Sea and policy proposals for the South China Sea dispute resolution (25 August 2011), www.mfa.gov.cn/chn//pds/ziliao/tytj/t10650.htm. ‘Sweeping the house clean before inviting guests over’; see 韩念龙主编 : 《当代中国外交》 (北京 : 中国社会科学 出版社1999年版) 第3-4页 [Nianlong Han et al. (eds.), Contemporary Chinese Diplomacy (Beijing: China Social Sciences Press, 1999), 3–4]. Jielong Duan, supra note 161, at 222.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

543

and agreements is still orthodoxy – ‘the boundary between China and other countries that previous treaties have determined should be dealt with under the general principles of international law’.175 The first test of such a position is the ‘1941 line’ between China and Myanmar. The Chinese government believes that the British imposed the line ‘on the Nationalist Government of China when the Japanese invasion had weakened it, so it was difficult for the Chinese Government to accept the 1941 line’.176 Nevertheless, ‘the southern delimited sector of the boundary’ between China and Myanmar was ultimately ‘delimited as defined in the notes exchanged between the Chinese and the British Governments on June 18, 1941’, in 1960.177 Another example is the 1887 Special Article on the Boundary between France and China’s Qing Dynasty (the China–France Boundary Treaty).178 The treaty set up the boundary of French Indochina (Vietnam/Laos) with the Qing Dynasty, which was concluded on the basis of the unequal Sino–French Treaty of Tianjin [中法天津条约], a product of the 1885 China– France War.179 Concerning the part with Vietnam, in 1958 the Chinese government agreed with Vietnam that the two sides should respect the boundary line established by the China–France Boundary Treaty.180 Concerning the part with Laos, China and Laos have given due respect to the boundary formed in history since the founding of the PRC.181 Therefore, the 1887 Treaty constituted the basis of their final boundary by compromise in 1991 with Laos and in 1999 with Vietnam.182 China only on one occasion – the discussion of boundary issues with the Soviet Union during the border talks in 1962–3 – formally raised the question of unequal treaties in an attempt to redefine the boundaries.183 China believed that the Treaty of Nerchinsk (1689) and the Treaty of 175

176

177 178

179

180

181

182

183

Instructions from the Central Committee of the Communist Party of China on the Sino–Burma border issue [中共 中央关于中缅边界问题的指示] of 31 October 1956. See 廖心文 : 《二十纪五六十年代中共中央解决边界问题 的原则和办法 – 老一辈革命家与边界问题研究之一》, 《党的文献》2013年第4期, 第76-83页 [Xinwen Liao, ‘The Principles and Approaches of the Central Committee of the Communist Party of China in Resolving the Border Issue in the 1950s and 1960s – A Study of the Old Revolutionaries and the Border Issue I’ (2013) 4 Literature of Chinese Communist Party, 76–83]. Myanmar Prime Minister U Nu reports on the Sino–Myanmar border negotiations, 20 May 1960. File contained in the collection of FMPRC (File No. 105-01428-03). Contents of this file have previously been used publicly by Chinese scholars such as QI Pengfei, CHENG Ruisheng and DAI Chaowu. Agreement on the Question of the Boundary between the Two Countries [China and Burma], supra note 9, Art. 2. Provisional Agreement between . . . China and . . . the Lao People’s Democratic Republic on Handling Border Affairs, supra note 51, Arts. 1–2. ‘The Truth about the China–Vietnam Border Issue’ [中越边界问题真相], Renmin Ri Bao [人民日报 People’s Daily] (14 April 1979). (In 1885, although China did not lose the war against the French invasion, the Qing government conceded to France and signed the unequal Sino–French Treaty of Tianjin. Under this treaty, a series of border treaties were signed between the two sides from 1886 to 1897.) ‘Head of My [PRC’s] Delegation Sets Out the Truth about the Disputed Territorial Issue on the China–Vietnam Border at the Fourth Plenary Session of the Talks’ [我代表团长在中越谈判第四次全体会议上 阐明中越边界领 土争议问题的真相], Renmin Ri Bao [人民日报 People’s Daily] (13 May 1979), https://www.govopendata.com /renminribao/1979/5/13/4/. (‘Both sides respect the boundary line as decided by the Sino–French Boundary Treaty, and until the two governments negotiate a solution to the boundary issue, both sides should strictly maintain the status quo [关于中越边界问题, 中越两党中央曾于一九五七年、一九五八年交换了信件, 双方表示尊重中法 界约划定的边界线, 在两国政府谈判解决边界问题之前, 严格维持边界现状].’) ‘Overview of the Sino–Lao Border’ [中老边境概况] in 外交部条法司 : 《中华人民共和国边界事务条约集 (中老 卷) 》 (北京 : 界知识出版社2004年版) 第1页 [Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China (eds.), Collection of Treaties on Border Affairs of the People’s Republic of China (China and Laos Volume) (Beijing: World Affairs Press, 2004), 1]. Provisional Agreement between . . . China and . . . the Lao People’s Democratic Republic on Handling Border Affairs, supra note 51, Arts. 1–2; Agreement on Basic Principles for the Settlement of Territorial Problems on the Border between the People’s Republic of China and the Socialist Republic of Vietnam [中华人民共和国和越南社 会主义共和国陆地边界条约] (signature and entry into force on 19 October 1993), Art. 2. The Chinese version is available at http://treaty.mfa.gov.cn/tykfiles/20180718/1531876993981.pdf. Danhui Li, ‘The 1969 Sino–Soviet Border Conflict’, supra note 27, at 42–3.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

544

Xinjun Zhang and Xidi Chen

Bulensky (1727) were legally concluded and should be respected.184 However, the Treaty of Aigun (1858), the Treaty of Peking (1860) and the Treaty of St Petersburg (1881) were considered unequal. Notwithstanding the episode, the lines established by the said treaties coincide with the boundary lines that the PRC and the Soviet Union agreed upon in 1991.185 The PRC’s theory of unequal treaties has led to some comments. It was submitted that the theory reflected a ‘naturalist’ perspective on territorial sovereignty – the predating boundary treaties (positive law) that removed any part of the land from the Chinese sovereignty are doomed to be ‘illegitimate’. Accordingly, these treaties are ‘not to be accepted in the first place, and may be rejected later as a legal nullity or, at least, not binding’.186 While the theory of ‘unequal treaties’ is considered to be ‘arguably stable, coherent and, to a degree, principled’, it can be used, as warned, as ‘disingenuous posturing or bargaining tactics’.187 Nonetheless, it is observed that the Chinese government recognizes that the issue of the equality/inequality of a treaty is distinct from whether or not a ‘treaty’ was legally concluded. The former legal adviser to India’s Ministry of External Affairs Krishna Rao criticized China’s ‘unequal treaties’ theory, saying that it is ‘untenable under international law’.188 But the Chinese government believes that the China–India boundary ‘has never been formally determined by treaty or agreement . . .[. A] customary line between the two countries has been naturally developed due to their respective administrative jurisdictions.’189 In other words, the Chinese government rejected India’s ‘treaties-based boundary’ because the ‘treaty’ was either invalid or non-existent instead of being unequal.190 To be noted is that the Chinese government appeared to emphasize the ‘customary line’ [传统 习惯线] in many cases.191 As Chen Tiqiang points out, the position of the PRC is that wherever there is a customary line in the absence of a land-boundary treaty, the customary line may be taken as a boundary line.192 Although the exact legal meaning has not been sufficiently elucidated, a customary line ‘is the boundary based on the historical jurisdiction of the parties’.193 The invocation of ‘historical jurisdiction’ appears to involve recognizing the legal significance of ‘the actual, continuous and peaceful display of State function’.194 Therefore, each side presented evidence in the China–India boundary dispute, such as the exercise of administrative acts and maps. However, they debated on their probative value.195 Indeed, as Arthur Stahnke puts it, in 184 185 186

187 188

189 190 191 192

193 194 195

Xinwen Liao, supra note 175, at 76–7. J. Bakshi, ‘Russia–China Boundary Agreement: Relevance for India’ (2001) 24 Strategic Analysis, 1833, 1833–59. Jacques deLisle, ‘Sovereignty Resumed: China’s Conception of Law for Hong Kong, and Its Implications for SAR and US-PRC Relations’ (1998) 2 Harvard Asia Quarterly, 21. Ibid., at 27. K. K. Rao, ‘The Sino–Indian Boundary Question and International Law’ (1962) 11 International & Comparative Law Quarterly, 375, 376. ‘Overview of the Sino–Indian Border’, supra note 57, at 1. Note from the Chinese Ministry of Foreign Affairs, supra note 56. Pengfei Qi, The Frontier of China, supra note 16, at 91–112. Tiqiang Chen, ‘Legal Aspects of the Sino–Indian Boundary Issue’, supra note 54, at 11. (China’s position is that the China–India boundary has never been delimited, although a traditional customary line exists. In the absence of a landboundary treaty, the traditional customary line can act as a boundary line [中国的立场是,中印边界全线虽然存在着 一条传统习惯线, 但从未经过划定。在没有划定边界条约的情况下, 传统习惯线是可以充当边界线的].) Note from the Chinese Ministry of Foreign Affairs, supra note 56. PCA, Island of Palmas (or Miangas) (Netherlands / United States), Award of 4 May 1928, p. 10. The evidence presented by China includes acts of administration such as the imposition of taxes and registration of households. See Note from the Chinese Ministry of Foreign Affairs, supra note 56. The main evidence presented by the Indian government includes the origin of the inhabitants, namely that for a period of time in history the main inhabitants of the area were not Tibetans but Sikkimese and Bhutanese, though it may be doubtful whether such evidence has any legal probative value. See Ministry of External Affairs, Government of India, Report of the Officials of the Government of India and the People’s Republic of China on the Boundary Question, February 1961, p. 199.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

545

the China–India territorial dispute, the PRC was asserting its position within the framework of international law, willing to rely on international law as an essential means of establishing its claims.196 A ‘customary line’ [传统习惯线] constitutes the legal basis for the establishment of boundaries with Myanmar,197 Nepal198 and Pakistan.199 Many predating boundary agreements, notwithstanding their perceived nature of ‘unequal treaty’, or even those not legally concluded (not concluded by the central government and without its endorsement), de facto influenced the outcome of the boundary negotiations as the ‘customary line’. One example is the Chinese government’s stance on the sector of the boundary with Myanmar which is coincident with the McMahon Line. China maintained its consistent position of not recognizing the validity or the binding force of the McMahon Line but considered that this line overlies the customary line.200 The customary line but not the McMahon Line constitutes a basis for boundary negotiations.201 Ultimately, the parties concluded a boundary treaty under which the customary line is observed in establishing the boundary.202 China’s practice in such cases is believed to ‘reward friendly nations . . . and exert pressure . . . by giving or withholding boundary agreements’. In doing so, the Chinese government is understood to ‘correlate concepts of international law to the particular political situation’ and see relevant international law rules as instruments to use only when advantageous.203 China has thus been criticized for having ‘double standards’.204 But this argument is somehow unfair. Boundary negotiation, like any other negotiation, is political by nature. It is a decision-making process where balancing interests and compromises is essential. Like other international law doctrines or theories, China’s ‘unequal treaty’ theory may be used to persuade others to make political compromises. Therefore, the accusation of applying ‘double standards’ or an instrumentalist approach to international law in boundary negotiation is void of substance. Finally, the political process of boundary negotiation requires flexibility and pragmatism. In many cases, China proposed a package deal for a settlement. For instance, in the China– Myanmar boundary talks, Zhou Enlai proposed to U Nu that the two sides exchange disputed areas in order to solve all problems.205 During the early China–Indian diplomatic process, 196

197

198

199 200

201

202

203

204 205

Arthur A. Stahnke, ‘The Place of International Law in Chinese Strategy and Tactics: The Case of the Sino–Indian Boundary Dispute’ (1970) 30 Journal of Asian Studies 95, 112–13, 119. Agreement on the Question of the Boundary between the Two Countries [China and Burma], supra note 9, Art. 2. This 1960 Agreement refers to the traditional customary line several times when describing the course of the boundary between China and Myanmar. Article 1 of the China–Nepal Boundary Treaty explicitly says that both parties are ‘basing themselves on the traditional customary boundary line’ and ‘hereby agree on . . . the entire boundary line’. See Boundary Treaty between China and Nepal, supra note 12, Art.1. Agreement on the Boundary between China Sinkiang and the Contiguous Areas, supra note 20, Art. 1. 金冲及 : 《周恩来传1949-1976 (第一册) 》 (北京 : 中央文献出版社1998年版) 361–363 [Chongji Jin (ed.), A Biography of Zhou Enlai 1949–1976 (Volume 1) (Beijing: Central Literature Publishing House, 1998), 361–3]. (‘In the northern section of the . . . “customary line”, we are reluctant to use the name “McMahon Line” because . . . it was established by the local Government and not approved by the Chinese (central) Government and . . . it is not fair.’) 齐鹏飞 : 《关于中缅边界谈判中的‘麦克马洪线’问题之再认识》, 《南亚研究》2014年第1期, 第31-56页 [Pengfei Qi, ‘A New Understanding of the “McMahon Line” in Border Discussions of China and Myanmar Negotiations’ (2014) 1 South Asian Studies, 31–56]. Boundary Treaty between China and Burma, supra note 8, Art. 5; Agreement on the Question of the Boundary between the Two Countries [China and Burma], supra note 9, Art. 2. L. R. Schreiter, ‘China’s Use of International Law in Border Disputes: The Cases of India and the Soviet Union’ (1974) 2 Iustitia, 28, 30–1. Ibid., at 30. Letter from Zhou Enlai to U Nu [周恩来致吴努的信] of 26 July 1957, see Chongji Jin, supra note 200, at 357–8. (‘ The Chinese Government believes that that the above specific recommendations [exchange of different border areas] should be considered as a whole.’)

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

546

Xinjun Zhang and Xidi Chen

China proposed a lump-sum solution to include all sectors of disputed areas in one settlement. However, the Indian government did not accept it.206 Sumit Ganguly considers such package proposals to ‘have had little substance, but they have created the impression that the Chinese are far more flexible and willing to settle the boundary dispute’.207 The 2005 China–India Political Parameters and Guiding Principles also say that ‘both sides should . . . arrive at a package settlement to the boundary question’.208 Overall, China highly prioritizes maintaining or improving bilateral relations with its neighbouring countries. Chinese Foreign Minister Wang Yi repeatedly stressed that ‘neighbouring countries are at the forefront of China’s overall diplomacy’.209 A good neighbourhood is more significant in terms of China’s boundary policy than calculating gains or losses in those boundary/territorial disputes. No evidence shows that China has enriched itself in the boundary settlement with its neighbours, whether large or small, strong or weak. On occasions, the chief negotiator of China’s counterpart could not help expressing their satisfaction with the result of the negotiation.210 Instead, critics arise from inside Chinese society. For instance, a prominent historian, Shen Zhihua, complained that China has excessively sacrificed its share of territorial title or entitlement for a meaningless and untenable appearance of political harmony with its neighbours.211 Even in cases where unsettled issues evolved into border conflict, China appeared to accommodate the status quo to maintain a good neighbourhood. This can be seen in the aftermath of the land border conflict and the management of the potential island conflict.212 In short, China is believed to pursue a ‘defensive approach’ to ‘securing its land boundaries and maintaining territorial integrity’ in practice.213 25.5 CONCLUSION

China sees boundary stability as vital for creating a harmonious international (specifically, regional) environment that is essential for China’s peaceful rise (and peaceful development) 206

207

208

209

210

211 212

213

中央文献研究室编 : 《周恩来年谱1949-1976 (第二卷) 》 (北京 : 中央文献出版社1997年版) 310–311 [Documentary Research Office of the Central Committee of the Communist Party of the PRC, The Chronology of Zhou Enlai (1949– 1976) (Vol. II) (Beijing: Central Literature Publishing House, 1997), 310–11]. (If we want to talk about resolving the boundary issue, then the eastern and western sections should be talked about together, both as undetermined or undefined boundaries, and in doing so we can agree [如果要谈到解决边界问题, 那么东段和西段要一起谈, 都作 为未划定的或者未确定的边界来谈, 这样做我们是可以同意的].) S. Ganguly, ‘The Sino–Indian Border Talks, 1981–1989: A View from New Delhi’ (1989) 29 Asian Survey, 1123, 1123–35. Agreement on the Political Parameters and Guiding Principles for the Settlement of the China–India Boundary Questions, supra note 83, Art. 3. He also said that relevant states should recognize that land-boundary disagreements are only one spectrum of their relationship, and that cooperative development should be seen as a more essential common interest. Wang Yi’s interview with media (28 March 2022), www.mfa.gov.cn/web/wjbzhd/202203/t20220328_10656752.shtml. See also http://kh.China-embassy.gov.cn/chn/zgyw/201401/t20140116_1374115.htm. N. H. Thao, ‘The China–Vietnam Border Delimitation Treaty of 30 December 1999’ (2000) 8 Boundary and Security Bulletin, 87, 87–90. Nguyen Hong Thao, Deputy Director of the Marine Affairs Department, Continental Shelf Committee of the Government of Vietnam, commented that the settlement of land-boundary territorial issues showed ‘the determination of the two Parties, two Governments and peoples to settle all remaining territorial and border issues through peaceful negotiations’ and contributed to ‘the maintenance of peace and security in the region’. Zhihua Shen, ‘Things Did Not Work Out as Planned’, supra note 18, at 52–61. Point 5, The Declaration on the Conduct of Parties in the South China Sea (DOC). N. H. Thao, ‘The 2002 Declaration on the Conduct of Parties in the South China Sea: A Note’ (2003) 34 Ocean Development & International Law, 279, 281. M. Taylor Fravel, ‘Securing Borders: China’s Doctrine and Force Structure for Frontier Defence’ (2007) 30 Journal of Strategic Studies, 705, 732–5.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

25 China and the Settlement of Territorial Disputes

547

agenda. In Chinese diplomatic and foreign policymaking circles, references to ‘Weiwen’ [维 稳] – maintaining stability – are common. China discarded the ‘naturalist’ position in handling territorial issues, which holds that territory is divine and that sovereignty issues (including boundary issues) are non-negotiable.214 Most strikingly, China moved beyond two centuries of intermittent bloodshed over competing claims to territorial sovereignty on the Sino–Russian border to a conventional international legal agreement delimiting the two states’ territories. The ‘peaceful rise’ policy requires China to develop a more comprehensive global perspective for defining its national interests. Therefore, it is unsurprising that China increasingly turns to international law as a policy instrument in addressing territorial issues. Amid significant uncertainty about the future trajectory of the world order, China believes that international law still promises to provide a means to protect and advance China’s national interests. Using international law to address disputed boundaries serves China’s high-priority goal of maintaining domestic stability. China’s modern history – including the May 4 Movement that reacted against the Versailles Treaty’s acceptance of Japanese colonial encroachment on China and that gave birth to modern Chinese nationalism and, in turn, the Chinese Revolution – teaches the danger of domestic turmoil and threats to the regime that can come from failed diplomatic efforts to address highly sensitive territorial issues in China. Moreover, giving territorial settlements a clear basis in international law makes them more acceptable in Chinese public opinion (which is expressed today in newly strident nationalist tones via the Internet). Thus, this foreign policy helps prevent such agreements from triggering political crisis. A firm international legal basis also facilitates other parties’ acceptance and implementation of territorial accords with China, smoothing ratification by their legislatures and other steps required by other states’ constitutional structures. This, in turn, promotes regional stability, which is in China’s interest.

214

Lisle, ‘Sovereignty Resumed’, supra note 186, at 23.

https://doi.org/10.1017/9781009041133.027 Published online by Cambridge University Press

Index

Academy of Military Science, 318 Action Plan against Human Trafficking, 278 Additional Protocols to Geneva Conventions, 308, 309 Ad Hoc Committee on the Prevention of an Arms Race in Outer Space (PAROS), 385 Adjudication jurisdiction, 197 Administrative Litigation Law, 229, 464 Administrative Procedure Law, 115 Advertising Act, 185 Afghanistan Boundary Treaty with, 523, 526 BRI and, 222 counterterrorism and, 222–3 Soviet Union, war with, 526 state immunity in, 169 Taliban, 222–3 UN General Assembly and, 57 Afghanistan War, 222, 379–80 Aggression. See Crime of aggression Agreement of Maritime Boundary Delimitation of Beibu Gulf, 376 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) generally, 450 accession of China, 454, 458–9 Covid-19 vaccines and, 459–60 dispute settlement under, 469–70, 472–3 domestic legislation implementing, 462 judicial review and, 410 WHO and, 299 Agricultural Development Bank of China, 350 Ahl, Bjo¨rn, 5, 504–5 AIIB. See Asian Infrastructure Investment Bank (AIIB) Algeria scientific cooperation agreements with, 387 self-defence and, 210 Alliance of Civilizations (UNAOC), 66 al-Qaeda, 209 Alter, Karen, 4–5, 103 Alternative dispute resolution international investment arbitration (See Investor–state dispute settlement (ISDS)) treaty practice regarding, 149–51 AML. See Anti-Monopoly Law Amsberg, Joachim von, 493

Annan, Kofi, 272 Antarctica, research stations in, 331 Anti-Foreign Sanctions Law generally, 6 extraterritoriality and, 182 Anti-Monopoly Law generally, 191 adjudication jurisdiction and, 197 bundling and, 193 civil liability under, 197 effect doctrine and, 183, 195 extraterritoriality and, 181 implementation doctrine, 192–3 patents and, 193, 195–7 price fixing and, 192–3 private enforcement actions, 195–8 public enforcement actions anti-competitive conduct, 191–3 merger control, 193–5 single economic entity test, 191–2 transnational competition and, 195–8 tying and, 193 Anti-Personnel Mine Ban Convention, 59, 308, 311, 312 Anti-satellite (ASAT) weapons China and, 380, 389–91 IHL and, 316 non-weaponization of space, effect on, 389–91, 394 PPWT, effect on, 394 Anti-Unfair Competition Law, 452, 455, 464, 466 APEC. See Asia–Pacific Economic Cooperation (APEC) Arbitration international investment arbitration (See Investor–state dispute settlement (ISDS)) South China Sea arbitration (See South China Sea (SCS) arbitration) state immunity and, 173–4 Arbitration Law, 430, 431 Argentina scientific cooperation agreements with, 387 tariffs in, 407 Arha, Kaush, 39 Arinori, Mori, 363 Arms Trade Treaty (ATT) norm-making and, 312, 313–14, 318, 319 ratification by China, 59, 308

548 https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Artificial intelligence (AI), 315, 318 ASAT weapons. See Anti-satellite (ASAT) weapons ASEAN–China FTA (ACFTA), 417, 419, 425 ASEAN Plus China, 42 Asian Development Bank (ADB), 19, 24–5, 489 Asian Infrastructure Investment Bank (AIIB) Amundi Climate Change Investment Framework, 487 Board of Directors, 484 Board of Governors, 484 BRI and, 47, 446, 491, 492–3 Chinese multilateralism and, 478 CSFM and, 67 environmental, social and governance (ESG) approach, 486–8 Environmental and Social Framework (ESF), 486–8 establishment of, 24–5, 155 expanded participation in international relations and, 87 ‘extensive consultation, joint contribution, and shared benefits’ and, 484 FDI and, 155 global climate change law and, 350, 355 ‘high and feasible standards’ generally, 485–6 alternative procurement arrangements (APAs), 488–9 debt sustainability and, 489–90 environmental and social safeguards (ESS), 486–8 joint co-financing, 488–9 open and transparent procurement, 488–9 parallel co-financing, 488–9 use of country system (UCS), 486 implied powers doctrine and, 491, 492–3 international financial law and, 11, 476, 494 international investment law and, 11 membership of China in, 16 members of, 24 Multilateral Cooperation Centre for Development Finance and, 491 Paris Agreement and, 487 Policy on Prohibited Practices (PPP), 488 Project-affected People’s Mechanism (PPM), 488 Rules of Procedure of the Board of Governors, 484 Sustainable Capital Markets Initiative (SCMI), 487 teleological perspective, 491, 492–3 Asia–Pacific Economic Cooperation (APEC) multilateral diplomacy and, 139 participation of China in, 16, 20, 27 Asia–Pacific Space Cooperation Organization (APSCO), 387 al-Assad, Bashar, 212 Association of Southeast Asian Nations (ASEAN) generally, 23 ASEAN–China FTA, 417, 419, 425 Declaration on Conduct for the South China Sea (DOC), 376 multilateral diplomacy and, 139 Regional Comprehensive Economic Partnership (RCEP) and, 67 Astley, John III, 368 Asylum, Chinese Constitution and, 81

549

Atlantic Council, 324 ATT. See Arms Trade Treaty (ATT) Australia Blue Dot Network and, 38 on cyberwarfare, 213, 216 Free Trade Agreement with, 419, 425, 445, 509 merger control in, 194 state immunity in, 166, 172 WTO and, 411, 412, 413, 415 Austria, state immunity in, 166 Austria–Hungary, prisoners of war from, 303–4 Autonomous weapons. See Lethal autonomous weapons systems (LAWS) Baetens, Freya, 10–11 Bajo De Masinloc, 535 Bali Action Plan, 343, 345–6 Bandung Conference of Asian and African Countries, 20, 52, 81, 137, 523 Bangkok Declaration, 85 Bangladesh New Development Bank and, 485 state immunity in, 169 BBNJ. See Biodiversity beyond national jurisdiction (BBNJ) Beijing Consensus, 87 Beijing International Studies University, 91 Beijing Pioneer Hi-Tech Development Corporation, 334–5 Beijing Treaty on Audiovisual Performances, 459 Belarus, PPWT and, 385 Belgium scientific cooperation agreements with, 387 state immunity in, 164, 166 Belgium–Luxembourg Economic Union, BIT with, 437–9, 508–9 Belt and Road Forum for International Cooperation (BRFIC), 16, 484 Belt and Road Initiative (BRI) generally, 3–4, 31–2, 47–8 Asian Infrastructure Investment Bank and, 47, 446, 491, 492–3 China International Commercial Court and, 47, 512 Chinese multilateralism and, 478 conduct of, 33 counterterrorism and, 222 CSFM and, 31, 35, 49, 61–2 debt problem, 34–5 Debt Sustainability Framework for Participating Countries of the Belt and Road Initiative, 489–90 dispute settlement and, 58, 444 domestic courts, international law in, 117–18, 127, 129–30 economic corridors, 32 expanded participation in international relations and, 87 ‘extensive consultation, joint contribution, and shared benefits’ and, 33, 483 FDI and, 155, 446 financial support for, 34 Five Principles of Peaceful Coexistence and, 33

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

550

Index

Belt and Road Initiative (BRI) (cont.) geographical coverage, 33 global climate change law and, 350, 354, 356 global ocean governance and, 331 Green Investment Principles for the Belt and Road Initiative, 350 IMF and, 40 implied powers doctrine and, 491, 492–3 infrastructure and, 32–3 Initiative for Belt and Road Partnership on Covid-19 Vaccines Cooperation, 297 international financial law and, 476, 483 International Green Development Coalition, 350 international human rights law, legal implications for, 45 international investment law and, 448 investor–state dispute settlement and, 510–11 joint contribution, 33 Leading Group for Deepening Overall Reform, 444 legal framework generally, 40 BRI-related domestic framework, 42 BRI-related international framework, 41–2 BRI-specific domestic framework, 41 BRI-specific international framework, 41 consistency and coherence, doubts regarding, 43–4 dynamic nature of, 42 existing regimes and mechanisms, use of, 42 flexibility of, 42, 43 legal protection, lack of, 44 memorandums of understanding (MOUs), 41, 42, 62 Primary Agreements, 41 Secondary Agreements, 41, 42 soft-law approach, 43 undue influence, problem of, 44–5 legal implications of generally, 45 in Chinese legal order, 47 human rights and, 45 in international legal order, 45–7 right to development and, 45–6 Maritime Silk Road, 31, 62 market-based principles, 33 member countries, 33 Multilateral Cooperation Centre for Development Finance and, 491, 493 non-economic issues, 33–4 non-weaponization of outer space and, 387 opposition to, 521 priority fields, 32 Shanghai Cooperation Organisation and, 42 shared benefits, 33 Silk Road Economic Belt, 31, 62 Silk Road Fund, 34 SOEs and, 156 teleological perspective, 491, 492–3 VCLT and, 41, 44 Vision for Maritime Cooperation under the Belt and Road Initiative, 33–4, 331 Visions and Actions, 32, 33, 35, 42, 43

Western perspective, 35–6 Western response discrediting, 37 rejection, 36–7 win–win approach, 33 World Bank and, 40 WTO and, 510 Bennoune, Karima, 266 Berne Convention generally, 451 accession of China, 452, 458 dispute settlement under, 469 domestic courts, application in, 121, 127 instrumental approach and, 452 WTO cases brought against China and, 472 Bhala, Raj, 405 Bhutan Agreement on the Maintenance of Peace and Tranquility in China–Bhutan Border Areas, 532–3 India, influence of, 532 territorial disputes with, 375, 532–3, 541 Biden, Joe, 393 Bilateral investment treaties (BITs). See also specific country generally, 152 consent theories and, 134 dispute settlement and, 508–9 in early PRC period, 399 FDI and, 152 free trade zones and, 158 model BIT, 425–6 prevalence of, 423 VCLT and, 435, 440–1 bin Laden, Osama, 222 Biodiversity beyond national jurisdiction (BBNJ) generally, 8–9, 325 balancing in, 332–3 common heritage of mankind and, 333, 334 fish stocks and, 332 general principles proposed by China, 332 key themes, 332 marine genetic resources, 333–4 negotiations, 359, 371 UNCLOS and, 331–2, 333, 334 Biodiversity conservation generally, 325 biodiversity in China generally, 325 common but differentiated principle (CBDR), 329 Convention on Biodiversity (See Convention on Biological Diversity (CBD)) CSFM and, 329 domestic legislation, 337 threats to biodiversity, 328 Biological weapons, 307 Blinken, Anthony, 36 Blue Dot Network (BDN), 38, 39 Boao Forum, 28 Bolton, John, 36 Bosnia–Herzegovina, humanitarian intervention in, 211

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Boundary disputes. See Territorial disputes Boxer Rebellion, 303 Brazil New Development Bank and, 485 scientific cooperation agreements with, 387 tariffs in, 403, 407 WTO and, 413 Bretton Woods system, 397–8 BRI. See Belt and Road Initiative (BRI) Broches, Aron, 491–2 Brownlie, Ian, 90, 540 Brunei as maritime neighbour of China, 375 South China Sea islands, claims to, 536 Build Back Better (B3W), 38–9 Bulgaria, state immunity in, 167 Bundling, 193 Bureau of Market Regulatory Administration (Shanghai), 185 Bush, George W., 208 Bush Doctrine, 208 CAI. See European Union Cai, Congyan, 3–4, 7, 501, 504, 519 Cairo Declaration, 365, 538, 539–40 Cambodia former tensions with, 138 free trade agreement with, 419 Mayaguez Incident, 210 Multilateral Cooperation Centre for Development Finance and, 484 Canada BIT with, 443 merger control in, 194 model BIT, 443 normalization of relations with, 400 state immunity in, 166 WTO and, 412, 415 Canada–US–Mexico Agreement (CUSMA), 442 Canc¸ado Trindade, Augusto, 88 Caroline doctrine, 208–9 Carr, Edward Hallett, 105 Cassese, A., 161 Cassin, Rene´, 263 CBD. See Convention on Biological Diversity (CBD) CCP. See Chinese Communist Party (CCP) CD. See Conference on Disarmament (CD) CEDAW. See Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Central Military Commission, 379–80 Central Military Committee, 309 Chagos Archipelago, 500–1 Chang Peng Chun, 90 Chatham House, 324 Chen, Chelsea Zhaoxi, 335–6 Chen, Xidi, 12 Chen Chu, 207 Chen Tiqiang, 544 Chiang Kai-shek, 304, 305, 366

551

Chiang Mai Initiative (CMI), 478 Chile, free trade agreement with, 419 Chimni, B.S., 103 China–Arab States Cooperation Forum (CASCF), 19–20, 42 China–Caribbean Economic and Trade Cooperation Forum, 20 China Coast Guard (CCG), 310–11 China Committee for the United Nations Ocean Decade, 375 China Communications Construction Co. Ltd. (CCCC), 44 China Construction Bank, 350 China Development Bank BRI and, 34, 43 global climate change law and, 350 China–France War, 543 China International Capital Corporation, 350 China International Chamber of Commerce, 444 China International Commercial Court (CICC) BRI and, 47, 512 dispute settlement and, 58–9 international investment law and, 445, 446 norm-making and, 129 China International Economic and Trade Arbitration Commission (CIETAC), 444–5 China Merchant Port Holdings (CMPort), 34, 39–40 China Minmetals Corporation, 334–5 China National Cereals, Oils, and Foodstuffs Import and Export Corporation, 400 China National Chemicals Import and Export Corporation, 400 China National Machinery Import Corporation, 173–4 China Ocean Mineral Resources Research and Development Association (COMRA), 334–5 China–Pacific Island Countries Economic Development and Cooperation Forum, 20 China–US Economic and Trade Agreement (2020) Bilateral Evaluation and Dispute Resolution Arrangement, 473–4 consultation approach, 473 Daily Work, 473 dispute settlement under, 469, 473–4 domestic legislation implementing, 462 High-level Engagement, 473 intellectual property protection and, 462–3 signing of, 457, 458 China–US Trade Agreement (1979) generally, 457 domestic legislation implementing, 462 intellectual property protection and, 454–5 investigation of China under, 457 signing of, 451, 457 trade secret protection and, 454–5 Chinese Communist Party (CCP) Chinese Constitution and, 78–9, 85 Civil War and, 306 counterterrorism and, 221, 237 CSFM and, 53, 54 on development, 270

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

552

Index

Chinese Communist Party (CCP) (cont.) ecological civilization and, 325 global climate change law and, 343 IHL and, 305–6 international human rights law and, 283 international law and, 1–2, 50 international trade law and, 398, 402 lawfare and, 379–80 legitimacy theories and, 135 repudiation of Maoism, 82 rule of law and, 99, 102 Chinese Constitution Article 67, 75, 76 Article 81, 75, 76 Article 89, 75, 76 CCP and, 78–9, 85 Confucianism and, 90 CSFM and, 54, 79, 87–8, 89, 93 Cultural Revolution and, 82, 84 domestic courts, international law in, 119–20, 124 ecological civilization and, 326 economic pragmatism and, 79 environmental law in, 62 Five Principles of Peaceful Coexistence and, 80–1, 88 foreign constitutionalism and, 91 intellectual property protection and, 453–4, 462 interdependence in, 55 international criminal law and, 244 international law and generally, 4, 74 asylum, 81 comparative analysis, 73–4 complexity of status, 75 contracting capacity article, 75–6 cosmopolitanism, 92–3 customary international law, 77–8 evolution of, 78–9 general policy article, 75 general principles of international law, 77–8 human rights, 84–5, 283, 504 human security, 88–91 legal standing article, lack of, 75–6, 77 non-intervention, 79–82 normative consensus versus exporting virtue, 85–6 peaceful coexistence, 79–82 rule of law, 83–4 selective adaptation of, 74, 78, 79 subject theory, 76–7 textual analysis, 74–8 Law on the Procedure of the Conclusion of Treaty and, 76, 77 Marxism–Leninism and, 79–80 1954 Chinese Constitution, 79–80, 81 1975 Chinese Constitution, 82 1978 Chinese Constitution, 82 1982 Chinese Constitution, 78–9, 82–5 1999 Amendment, 84, 100–1 reform and opening-up policy and, 78–9 rule of law and, 83–4, 100–1, 102

Standing Committee of National People’s Congress and, 75, 76–7 State Council and, 76–7 treaty ratification process and, 136, 137 2018 Amendment, 85–6, 102 UN Charter and, 82 Universal Declaration of Human Rights and, 85, 90 WTO and, 79 Chinese Red Cross Society, 303, 310 Chinese Revolution, 547 Chinese Society of International Law (CSIL), 514, 519 CHM. See Common heritage of mankind (CHM) Chow, Daniel, 273 CISG. See Convention on Contracts for the International Sale of Goods (CISG) Civil Aviation Administration of China (CAAC), 186–7, 198 Civil Aviation Law, 124 Civil Code, 115, 125, 278 Civil Procedure Law, 115, 151, 431 Civil War generally, 171 CCP and, 306 IHL in, 306 Nationalists and, 306 Climate change. See Global climate change law Closer Economic Partnership Arrangement (CEPA), 419 Code of Civil Law, 455, 462 Code of Safe Practice for Solid Bulk Cargoes, 125 Commission on Human Rights counterterrorism and, 234 HRC, replacement by, 272 political and economic rights, 266 role of China in, 272 Commission on International Trade Law (UNCITRAL), 443, 445–6, 512 Commission on the Limits of the Continental Shelf (CLCS), 371 Committee of Naming for Water and Land Territory, 365 Common heritage of mankind (CHM) biodiversity beyond national jurisdiction and, 333, 334 deep seabed mining and, 336–7 global ocean governance and, 330 Common Program of the Chinese People’s Political Consultative Conference, 79–80 Commonwealth of Independent States (CIS), boundary agreement with, 528 Communist Party. See Chinese Communist Party (CCP) Community of shared future for mankind (CSFM) generally, 1, 4, 49–52, 68–9 Asian Infrastructure Investment Bank and, 67 biodiversity conservation and, 329 BRI and, 31, 35, 49, 61–2 Chinese Constitution and, 54, 79, 87–8, 89, 93 common security as pillar of, 60–1 Covid-19 pandemic and, 60 cultural dialogue and, 65–6 dispute settlement and, 521 ecological approach, 62–4 ecological civilization and, 326

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Five Principles of Peaceful Coexistence and, 52 global climate change law and, 339, 347, 355–6, 357 global development as pillar of, 61–2 health and, 297, 301 historical background, 52–4 Human Rights Council and, 61 interdependence as pillar of, 55–6 jus ad bellum and, 212 multilateralism and, 66–7 non-weaponization of outer space and, 387 sovereign equality and, 64–5 terminology, 53 tianxia and, 56 translation of, 49 win–win approach, 67–8 world peace as pillar of, 56–9 Comprehensive and Progressive Trans-Pacific Partnership Agreement (CPTPP), 442, 447, 448, 461 Conference on Dialogue of Asian Civilizations, 65–6 Conference on Disarmament (CD) non-weaponization of outer space and, 9, 379, 385, 388 norm-making and, 311–12 Conference on the Human Environment (Stockholm Conference), 323 Conference on Trade and Development (UNCTAD), 16 Confucianism Chinese Constitution and, 90 dispute settlement, impact on, 517–18 intellectual property protection and, 451, 453 international human rights law and, 263 Confucius, 478 Consent theories, 134 Constitution. See Chinese Constitution Constructivism, rule of law and, 94–5 Continental shelf generally, 358 median line principle, 369–70 in PRC period, 369–70 state practice and, 358–9 UNCLOS and, 369–70 Contingency Reserve Arrangement (CRA), 478 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 122, 269 Convention on Biological Diversity (CBD) generally, 325 Aichi Targets, 328 domestic courts, international law in, 127 15th Conference of the Parties (COP 15), 325, 329–30 as framework convention, 327 implementation of, 328 National Biodiversity Conservation Strategy and Action Plans, 328 National Reports, 328 objectives of, 327–8 ratification by China, 327 target-based approach, 328 Convention on Cluster Munitions (CCM), 308, 311, 312–13 Convention on Contracts for the International Sale of Goods (CISG), 76–7, 120, 129

553

Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR), 359, 366 Convention on International Civil Aviation, 173 Convention on International Liability for Damage Caused by Space Objects, 391 Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention), 149, 150–1, 511–12 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 327 Convention on Jurisdictional Immunities, 162, 166–7, 174–5 Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 149–50, 430, 440 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), 372 Convention on the Conservation of Migratory Species of Wild Animals, 327 Convention on the Continental Shelf (CCS), 358–9, 366 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 264 Committee, dialogue with, 278 internal legal reform and, 280–1 ratification of, 280 role of China in, 269 Convention on the High Seas (CHS), 359, 366 Convention on the Law of the Sea (UNCLOS) generally, 9, 358 biodiversity beyond national jurisdiction and, 331–2, 333, 334 Chinese participation in, 366–7, 378 continental shelf and, 369–70 declaration of exclusion from arbitration, 513 deep seabed mining, conformity with, 335, 336, 337 dispute settlement and, 513–15 domestic laws implementing generally, 371–2 late 1990s–present, 374–5 1949–1970s, 373 1980s–1990s, 373–4 dynamic nature of, 372 exclusive economic zones and, 369 global ocean governance and, 330 ICJ and, 513 Implementation Agreement, 370 international seabed area and, 370 interpretation of, 359 Marine Environment Protection Act and extraterritoriality and, 188, 190 interpretation in conjunction with, 188 oil spills and, 190 territorial jurisdiction and, 188 vessel-source pollution, 189 maritime casualties under, 190 South China Sea arbitration and (See South China Sea (SCS) arbitration) territorial sea and, 368–9 unresolved issues, 372 Convention on the Prohibition of Biological Weapons, 308, 385

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

554

Index

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), 264, 269 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 120 Convention on the Rights of Persons with Disabilities (CRPD), 264, 269, 280, 281 Convention on the Rights of the Child (CRC) domestic courts, international law in, 122–3, 127, 281 international human rights law and, 264 Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography (OPSCC), 270 role of China in, 269, 270 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) generally, 58 acceptance of jurisdiction by China, 499 Constitution, 508 implied powers doctrine and, 491–2 international investment arbitration (See Investor–state dispute settlement (ISDS)) Convention on the Territorial Sea and the Contiguous Zone (CTS), 359, 366, 368 Convention on Wetlands (Ramsar Convention), 327 Convention Prohibiting Certain Conventional Weapons (CCW), 308, 311–12, 314, 318 Convention Prohibiting Chemical Weapons, 308 Copenhagen Accord, 343, 346 Copyright Law administrative enforcement, 464 burden of proof under, 466 damages under, 466 enforcement of, 455 instrumental approach, 452, 462, 465 Marrakesh Treaty and, 281 WTO dispute settlement and, 472 Costa Rica, free trade agreement with, 419 Coˆte d’Ivoire, ICC referral, 246 Council of Europe international rule of law and, 104 state immunity and, 166 Council on Foreign Relations, 60 Counterterrorism generally, 7 authoritarian rule as goal of, 224 BRI and, 222 CCP and, 221, 237 Counter-Terrorism Law (See Counter-Terrorism Law (CTL)) Criminal Code and, 219, 224–5, 237 domestic law and, 220, 224–9 double standards regarding, 220, 223 elements of policy, 223 human rights and generally, 220, 237 derogation of, 234–5 preventive approach to terrorism, effect of, 235 risk of violating, 224, 225–6, 233–5

rule of law, effect of underdevelopment of, 235–6 ICCPR and, 234–5 ICESCR and, 234–5 international law and, 220, 229–31 narratives of, 220, 223–4 National Anti-Terrorism Leading Group, 228–9 sectoral approach, 229–30 security as goal of, 223 Shanghai Cooperation Organisation and generally, 7, 222 Convention of the Shanghai Cooperation Organisation against Terrorism, 228, 230, 231 Convention on Combating Extremism, 230, 231 Convention on Combating Terrorism, Separatism and Extremism (Three Forces Convention), 230–1 significance of, 220–3 Universal Declaration of Human Rights and, 228 UN Security Council and generally, 7, 219, 223, 237 enforcement of resolutions, 220 how resolutions are enforced, 233 human rights concerns, 234 Resolution 1373, 219, 225, 230, 232, 233 Resolution 2178, 235 status of resolutions, 232 who enforces resolutions, 232–3 in Xinjiang Uyghur Autonomous Region (See Xinjiang Uyghur Autonomous Region (XUAR)) Counter-Terrorism Law (CTL) generally, 219 adoption of, 226 clarification of, 227 criticism of, 228–9 Draft, 226, 228 extremism under, 226–7, 228–9 human rights and, 234 measures under, 227 National Anti-Terrorism Leading Group, 228–9 terrorism defined, 226 terrorist activities defined, 226 Covid-19 pandemic generally, 8, 284, 288 behaviour of China during, 293 contribution of China to fight against, 293 Covid-19 Vaccines Global Access (COVAX), 296–7 CSFM and, 60 debt sustainability and, 489 herd immunity and, 291 initial Chinese response to generally, 289 causality with spread of pandemic, 290–2 ICJ jurisdiction and, 292 obligation of notification, 289–90 Initiative for Belt and Road Partnership on Covid-19 Vaccines Cooperation, 297 international human rights law and, 271 Omicron variant, 293 origins of, 291–2 prevalence of, 284

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index as public health emergency of international concern (PHEIC), 297 slow response by other countries, 291 special drawing rights and, 482–3 state immunity and, 176–7, 178–9 TRIPS Agreement and, 459–60 UN Security Council and, 295–6 vaccines, 459–60 WHO, inability of to address, 294–6 zero-Covid-19 strategy, 293 Crawford, James, 510–11 CRC. See Convention on the Rights of the Child (CRC) Crime of aggression in international criminal law generally, 242–3, 257 Korean War and, 251–2 law of the sea and, 250–1 normative concerns regarding, 250–2 self-defence and, 251–2 Ukraine War and, 251, 254 UN Security Council and, 250, 254 Crimes against humanity in customary international law, 249–50 in international criminal law generally, 242–3, 246, 249 normative concerns regarding, 249 Ukraine War and, 253–4 Xinjiang Uyghur Autonomous Region, counterterrorism in, 247 Criminal Code counterterrorism and, 219, 224–5, 237 effect doctrine and, 183 extraterritoriality and, 181 IHL and, 309 UN Security Council Resolution 1373, incorporation of, 219, 225, 233 Criminal law. See International criminal law Criminal Law (2020), 467 Crystal, Caroline, 40 CSFM. See Community of shared future for mankind (CSFM) CTL. See Counter-Terrorism Law (CTL) Cultural Revolution Chinese Constitution and, 82, 84 intellectual property protection in, 451 international trade law and, 400 rule of law and, 99–100, 107 territorial disputes, impact on, 526 Customary international law Chinese Constitution and, 77–8 crimes against humanity in, 249–50 domestic courts, international law in, 124–5 war crimes in, 249–50 Customs Law, 364 Cyber Security Act, 183–4 Cyberwarfare generally, 6–7, 204, 212–13, 218 current Chinese position on, 213–16 ICJ and, 217 IHL in cyberspace, 316, 318–19 potential future Chinese position on, 216–18 restrictivist approach to, 203–4

555

self-defence and, 213–14, 215–16, 217 sovereignty and, 215–16 UN Charter and, 214, 215, 216 UN Security Council and, 217, 218 use of force and, 214 Czech Republic, state immunity in, 167 Dagu Port case, 361–2 Dai, Ruijun, 7–8 Dante, 55 Darfur ICC referral, 242, 246, 502 non-intervention and, 26 De la Rasilla, Ignacio, 4, 11–12 Debt Services Suppression Initiative, 296 Debt Sustainability Framework for Low Income Countries (LIC-DSF), 489 Debt Sustainability Framework for Participating Countries of the Belt and Road Initiative (BRIDSF), 489–90 Decent Work Agenda, 425 Declaration on Conduct for the South China Sea (DOC), 376 Declaration on Measures to Eliminate International Terrorism, 228 Declaration on the Conduct of Parties in the South China Sea (DOC), 536 Declaration on the Right to Development, 45–6, 264 Declaration on the Territorial Sea, 367, 373 Decree on Territorial Sea with Three Nautical Miles, 364 Deep Seabed Law generally, 334, 335 immunity from liability under, 335, 337 limitations of, 336 purposes, 335 UNCLOS, conformity with, 335, 337 Deep seabed mining generally, 325, 333 Common heritage of mankind and, 336–7 immunity from liability, 335, 337 UNCLOS, conformity with, 335, 336, 337 Democratic People’s Republic of Korea (DPRK). See North Korea Deng Xiaoping generally, 1 Chinese Constitution and, 82–3 CSFM and, 52, 54, 56–7 economic primacy strategy, 87 global ocean governance and, 331 on Hong Kong, 135 on human rights, 265 on integration into global governance, 519 international trade law and, 402 on Japan, 494 reform and opening-up policy and, 17, 137 rule of law and, 99–100, 107 Denmark, Dagu Port case and, 361–2 Department for Climate Change, 343 Deudney, Daniel, 55

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

556

Index

Developing countries Chinese multilateralism and, 477–8 global climate change law, cooperation with China, 354–5, 357 IMF and, 478–9 international institutions, focus on in, 22–3 non-weaponization of outer space, Chinese approach towards, 385–6 generally, 380, 381 Theory on the Relational Normativity of International Law and, 385, 387–8 PPWT and, 385–6 state immunity in, 168–9 Development BRI, right to development and, 45–6 CCP on, 270 CSFM, global development as pillar of, 61–2 international human rights law and, 270–1 non-weaponization of outer space, relation to, 385, 386, 392 norm-making and, 27–8 PPWT, relation to, 386–8 Development Plan on the New Generation of Artificial Intelligence, 315 Diaoyu/Senkaku Islands generally, 12, 522 dispute settlement and, 500 historical claim of China to, 537 international instruments, applicability of, 537 Japanese incorporation of, 537–8 joint development and, 540, 542 Line of Actual Control (LAC), 538 occupation and, 537 reversion versus relinquishment, 540 surrender of Japan, effect of, 538–9 Treaty of San Francisco and, 539–40 Treaty of Shimonoseki and, 540 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 309 Disarmament Non-Aligned Movement and, 386 non-weaponization of outer space (See Nonweaponization of outer space) Dispute settlement. See also specific agreement or entity generally, 11–12, 497, 521 alternative dispute resolution, treaty practice regarding, 149–51 BITs and, 508–9 BRI and, 58, 444 China International Commercial Court and, 58–9 ‘comfort zone’, China moving beyond generally, 498 Confucianism, impact of, 517–18 holistic approach, 520 integration into global governance, 519–20 international law expertise and, 518–19 socialism, impact of, 518 sovereignty concerns and, 518 CSFM and, 521

deepening engagement of China generally, 497–8, 506 investor–state dispute settlement, 508–13 WTO and, 506–8 exploratory accommodation of China, 513–16 generally, 498 International Tribunal of the Sea and, 513, 514–15 UNCLOS and, 513–15 Five Principles of Peaceful Coexistence and, 518 free trade agreements and, 469, 470, 471, 509 holistic approach of China, 497 ICC and, 501–2, 503 ICJ and, 510–11 (See also International Court of Justice (ICJ)) in international intellectual property law generally, 451, 468–9 criminal penalties and, 472 shift from political to judicial approach, 468–9 state practice of China, 471–3 international investment arbitration (See Investor–state dispute settlement (ISDS)) International Tribunal of the Sea and, 376–7, 513, 514–15 investor–state dispute settlement (See Investor–state dispute settlement (ISDS)) lawfare and, 518–19 law of the sea, 375–7 multilateral investment treaties (MILs), 509 PPWT and, 516 strategic detachment of China generally, 497 human rights and, 504–5 ICC and, 501–2, 503 ICJ and, 498–501 (See also International Court of Justice (ICJ)) sovereignty concerns, 501–3 suspicion of, 517 territorial disputes (See Territorial disputes) UNCLOS and, 513–15 WTO and (See World Trade Organization (WTO)) Doctrine of contradictions, 453 Dokdo, 375 Domestic courts, international law in. See also specific instrument generally, 5, 113 application of international law generally, 130 adoption mechanism, 118–19 attenuated dualism and, 118 automatic coordination and, 118 Chinese Constitution and, 119–20, 124 customary international law, 124–5 dialectical model, 118 general rule, lack of, 119–20 hybrid mechanism, 119 increase in, 113 international court and tribunal (ICT) rulings, 125 legal relationships, relevance of, 120 transformation mechanism, 119 treaties, 121–4 UN Security Council sanctions, 125

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index BRI and, 117–18, 127, 129–30 conservative attitude towards, 120–1 diplomatic and consular treaties, application of international law, 124 double taxation avoidance treaties, application of international law, 123 human rights treaties, application of international law, 121–3, 281–2 intellectual property treaties, application of international law, 121 interpretation of law generally, 126, 130 domestic law, interpretation in conformity with international obligations, 126–7 treaties, 126 judicial structure, effect of, 113–14 legislation and, 115–16, 120, 130 norm-making generally, 114, 127–8 formal norm-making, 128 informal norm-making, 128–30 Supreme People’s Court and, 128, 129–30 scholarship on, 118–21 Standing Committee of National People’s Congress and, 114 State Council and, 114 Supreme People’s Court and generally, 115, 120, 130 guiding cases, 117 interpretation of law, 126–7 judicial documents, 116–17 judicial interpretations, 116 norm-making, 128, 129–30 typical cases, 117–18 treaties application of international law, 121–4 interpretation of, 126 VCLT and, 117, 126 Vienna Convention on Diplomatic Relations, 124 WTO and, 116, 118–19, 125, 126–7 Dongsha Islands, 365, 366, 367, 533, 534 DPRK. See North Korea Droit commun, 494 Drones. See Lethal autonomous weapons systems (LAWS) Dunlap, Charles J., 379–80 Ecological civilization generally, 324–5 CCP and, 325 Chinese Constitution and, 326 core principles, 326 CSFM and, 326 Ecological Conservation Redline, 327, 328 global climate change law and, 339, 344, 355–6 harmonious society, 325–6 National Park System and, 326–7 Ecological Conservation Redline, 327, 328 E-Commerce Law, 464 Economic base and superstructure, 454

557

Economic law financial law (See International financial law) intellectual property (See International intellectual property law) investment law (See International investment law) trade law (See International trade law) Educational, Scientific and Cultural Organization (UNESCO), 16 EEZs. See Exclusive economic zones (EEZs) Effect doctrine generally, 6, 182, 184 Anti-Monopoly Law and, 183, 195 (See also AntiMonopoly Law) complexity of, 199 expansion of, 183–4 identification of location of conduct and effect, 198 justifications for, 182 Marine Environment Protection Act and, 183, 198 (See also Marine Environment Protection Act) ‘offensive’ maps and (See Regulation on the Administration of Maps) preconditions, 182–3 worldwide acceptance of, 198 Egypt Multilateral Cooperation Centre for Development Finance and, 484 New Development Bank and, 485 state immunity in, 166, 168 Eichengreen, Barry, 397 11th Five-Year Plan (2006–10), 348 Emblem Regulations, 309 Energy Charter Treaty, 447, 448 Enforcement jurisdiction, 189 English School, 60 Enjoyment, right to, 269 Entebbe Incident, 210 Environmental law. See International environmental law Environmental Protection Law, 127, 327 Equatorial Guinea, state immunity in, 167 Equator Principles, 38 Equity Joint Venture (EJV) Law, 153 Erga omnes obligations, 55 Estonia on cyberwarfare, 213 European Convention on Human Rights, 129 European Convention on State Immunity, 166 European Court of Human Rights, 129, 168 European Development Bank (EDB), 38 European Economic Community (EEC), 417 European Space Agency, 387 European Union BIT with, 157–8, 419 BRI and, 36–8 China–EU Joint Statement on Climate Change, 344 EU–Asian Connectivity, 37–8 EU–China 2020 Strategic Agenda for Cooperation, 352–3 EU–China Comprehensive Agreement on Investment (CAI) dispute settlement and, 509–10

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

558

Index

European Union (cont.) international investment law and, 424–5, 433, 445 international trade law and, 419 multilateralism and, 67 EU–China Leaders’ Joint Statement on Climate Change and Clean Energy, 352–3 extraterritoriality and, 188 free trade agreements and, 417 global climate change law, cooperation with China, 352–3 IMF and, 476 international intellectual property law, criticism of China, 450 international rule of law and, 104 international trade law and, 422 marine genetic resources and, 333 merger control in, 194 Practical Guidance for Cooperation on Reviewing Merger Cases between EU and China, 194 protectionist measures in, 412 WTO and actions brought against China, 472–3 actions brought by China against others, 411 Mini-Ministerial Conference, 413 multi-party interim appeal arbitration arrangement, 412 non-market economy, China treated as, 507 relations with China regarding, 416–17 Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU), 415 Exclusive economic zones (EEZs) generally, 359 extraterritoriality and, 190 ICJ and, 370 interpretation of UNCLOS and, 359 median line principle, 369–70 in PRC period, 369 UNCLOS and, 369 Exhibition of International Fisheries, 363 Export Control Act, 182 Export Import Bank (EXIM) BRI and, 34, 39–40 global climate change law and, 346–7 Expression, right to, 269 Extraordinary Chamber in the Courts of Cambodia, 243, 503 Extraterritoriality generally, 6 Anti-Monopoly Law and, 181 (See also Anti-Monopoly Law) effect doctrine (See Effect doctrine) exclusive economic zones and, 190 Five Principles of Peaceful Coexistence and, 181 historical background, 181 Hong Kong National Security Law and, 141 Marine Environment Protection Act and, 181, 188, 190 (See also Marine Environment Protection Act) Regulation on the Administration of Maps and, 186 (See also Regulation on the Administration of Maps)

Falun Gong, 277 FDI. See Foreign direct investment (FDI) Final Declaration of the Regional Meeting for Asia of the World Conference on Human Rights (Bangkok Declaration), 85 Financial law. See International financial law Finland on cyberwarfare, 213 First Opium War, 360, 378, 523, 542 First Sino–Japanese War, 537–8 Fishing zones, 359, 363, 364–5 Five Principles of Peaceful Coexistence BRI and, 33 Chinese Constitution and, 80–1, 88 CSFM and, 52 dispute settlement and, 518 extraterritoriality and, 181 international criminal law and, 244 international institutions, participation in based on, 20 Sino–Indian War and, 80–1 state immunity and, 173 territorial disputes and, 523 Food and Agriculture Organization (FAO), 16 Foreign constitutionalism, 91 Foreign direct investment (FDI) generally, 159 Asian Infrastructure Investment Bank and, 155 BITs and, 152 BRI and, 155, 446 complexity of, 154 consent theories and, 134 expansion of, 154 historical evolution of, 152–3 international investment agreements and, 152 outward flow of, 154–5, 156 reform and opening-up policy and, 152–3 SOEs and, 155–6 state-centred model, 153–4 US criticism of, 158–9 WTO membership, impact of, 153 Foreign-invested enterprises (FIEs), 426–7 Foreign Investment Law (FIL), 158, 423, 426–7, 444 Foreign Investment Restriction Index, 158 Foreign Sovereign Immunity Law (draft), 6, 162, 175–6, 177 Foreign Trade Law extraterritoriality and, 181 most favoured nation status and, 404 national treatment and, 404 Fortis Group, 437–8 Forum on China–Africa Cooperation (FOCAC), 15, 19 ‘Four modernizations’, 451 14th Five-Year Plan (2021–5), 331, 348–9 Framework Convention on Climate Change (UNFCCC) generally, 29 China and, 63 common but differentiated principle (CBDR), 330 engagement of China with, 340, 342, 345, 346, 356 France China–France Joint Statement on Climate Change, 344 on cyberwarfare, 216

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index HRC and, 274 Nine Islets and, 365 non-weaponization of outer space and, 389, 392 Qing dynasty, territorial disputes with, 543 scientific cooperation agreements with, 387 South China Sea islands, claims to, 533 state immunity in, 166, 169 Franck, Thomas, 134 Free trade agreements (FTAs) generally, 152 ASEAN–China FTA, 417, 419, 425 characteristics of, 418–19 dispute settlement and, 469, 470, 471, 509 diversity of, 419 flexibility of, 419 intellectual property protection and, 460–1 international investment agreements and, 425 NAFTA, 417 Regional Comprehensive Economic Partnership (See Regional Comprehensive Economic Partnership (RCEP)) regionalism and, 417 strategic planning and, 419 Trans-Pacific Partnership, 91, 157, 417–18 Free trade zones (FTZs) generally, 156 BITs and, 158 Negative List, 157 French Indochina, territorial disputes with Qing dynasty, 543 Friedman, Wolfgang, 89 FTAs. See Free trade agreements (FTAs) FTZs. See Free trade zones (FTZs) Fudan University, Shanghai, 91 Fuller, Lon, 96 Fung, C.J., 505 G7 Build Back Better (B3W), 38–9 Charlevoix Commitment on Innovative Financing for Development, 38 G20 generally, 15, 20 Blue Dot Network and, 38 Guiding Principles for Global Investment Policymaking, 446 Principles for Quality Infrastructure Investment, 489 WHO and, 300 Gaddafi, Muammar, 212 Ganguly, Sumit, 545–6 Gao, Zhiguo, 330 General Administration of Customs, 232 General Agreement on Tariffs and Trade (GATT) generally, 397–8 China and, 17 increasing alignment of China with, 402–4 negotiations, 401–2 observer status in, 19, 405 Republic of China and, 402 resumption request, 405

559

Taiwan and, 402 Tokyo Round, 401–2 Working Party on China’s Accession, 403 WTO replacing, 405 General Agreement on Trade in Services (GATS), 407–8, 410 General Principle Agreement for the Boundary Question, 532 General Principles of Civil Law, 115, 124, 125 General principles of international law, Chinese Constitution and, 77–8 General Provisions of Civil Law of China, 452 General Reform Plan on Achieving Ecological Civilization, 326 Geneva Convention of 1864, 303 Geneva Conventions of 1949, 308–9 Geng Shuang, 208 Genocide, 242–3 Georgia, free trade agreement with, 425 Germany BIT with, 423, 428 on cyberwarfare, 213 exports from, 397 ICSID arbitration and, 428 prisoners of war from, 303–4 scientific cooperation agreements with, 387 state immunity in, 166, 169 Ghebreyesus, Tedros Adhanom, 287 Ginsburg, Tom, 73, 88, 92–3, 110, 231, 380 Glasgow Joint Declaration on Intensified Climate Action, 353–4 Global Assessment Report on Biodiversity and Ecosystem Services, 323 Global climate change law generally, 9, 339–40 Asian Infrastructure Investment Bank and, 350, 355 BRI and, 350, 354, 356 carbon intensity reductions, 343 CCP and, 343 common but differentiated responsibilities (CBDR), 28–9, 343–4 CSFM and, 339, 347, 355–6, 357 ecological civilization and, 339, 344, 355–6 emission reductions, 343 emissions trading system (ETS), 348, 356 engagement of China with generally, 339, 340 evolving role, 342–4 international concerns regarding, 351 multi-stakeholder approach, 341–2, 356 reasons for participation, 344–5 state-centric approach, 340–1 fragmentation of, 341 greenhouse gases, China as largest emitter of, 339, 351, 356 measures taken by China generally, 339–40, 345 in domestic policy, 347–9 green aid, 347 green investment, 346–7

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

560

Index

Global climate change law (cont.) lawmaking, 345–6 private actors, role of, 349–51 nationally determined contributions (NDCs), 29, 344 New Development Bank and, 355 Paris Agreement on Climate Change generally, 9 Asian Infrastructure Investment Bank and, 487 China and, 63, 516 engagement of China with, 340, 342, 343–4, 346, 356 multi-stakeholder approach, 341, 349 recommendations for future action generally, 340, 351–2, 357 developing countries, cooperation with, 354–5, 357 EU, cooperation with, 352–3 multi-stakeholder approach, 355–6 United States, cooperation with, 353–4 SOEs and, 349–50 sustainable development and, 343 UNFCCC generally, 29 China and, 63 common but differentiated principle (CBDR), 330 engagement of China with, 340, 342, 345, 346, 356 WTO and, 353 Global financial crisis (2008) international institutions, effect on participation in, 18 rule of law and, 101 Global health law generally, 8, 284, 301 Covid-19 pandemic (See Covid-19 pandemic) CSFM and, 297, 301 fulfil, obligation to, 287 global health governance, 296–7 human rights and, 286–7 International Health Regulations (See International Health Regulations (IHR)) protect, obligation to, 287 respect, obligation to, 287 WHO (See World Health Organization (WHO)) Global ocean governance BRI and, 331 Common heritage of mankind and, 330 evolution of Chinese power regarding, 330–1 jurisdiction and, 330 UNCLOS and, 330 Global South–South Cooperation on Climate Change, 354 Gorbachev, Mikhail, 527 Gostin, Lawrence, 297 Great Leap Forward, 399–400 Green Belt and Road Initiative, 346–7 Green Investment Principles for the Belt and Road Initiative, 350 Grenada, use of force by United States in, 210 Gross domestic product (GDP), 324 Group of 77 (G77), 15, 20, 333–4 Group of Eight Industrialized Nations (G8), 20 Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, 392, 393

Gu, Bin, 11 Guidelines for Establishing the Green Financial System, 350 Guidelines Relating to Building Up a Powerful Country with IPRs, 454 Guo, Shuai, 8 Guomingdang (GMD), 304, 306, 402 Gurry, Francis, 459 Habitat and global commons climate change (See Global climate change law) environmental law (See International environmental law) non-weaponization of outer space (See Nonweaponization of outer space) UNCLOS (See Convention on the Law of the Sea (UNCLOS)) Hague Conference (1899) generally, 303 Hague Convention (I) for the Pacific Settlement of International Disputes, 303 Hague Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, 303 Hague Convention (II) with respect to the Laws and Customs of War on Land, 303 Hague Conference (1907) generally, 303 Hague Convention (IV) on War on Land, 304 Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 304 Hague Conference on Private International Law, 148 Hague Convention on Choice of Court Agreements, 148, 149 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, 148, 151 Hague Service Convention, 116 Hainan Island, 366 Hainan Special Zone, 366 Haiti humanitarian intervention in, 211 non-weaponization of outer space and, 389 Haiyang Shiyou-981 oil rig, 311 Hamilton, Alexander, 491 Hao, Yayezi, 4 ‘Health for all, and all for health’, 288 Health law. See Global health law Healthy China 2030, 288 Hegemonic view of international law, 133 Henkin, Louis, 104–5, 134 Hirohito, 240, 502 Hisao, Tani, 304–5 Hoang Sa Archipelago, 534 Hobbes, Thomas, 98 Hoekman, Bernald, 415 Hogan, Phil, 412 Hong Kong applicability of BITs to, 434–5, 437

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Basic Law, 145, 146, 147, 434 BIT with, 419 dispute settlement and, 517–18 Law on Safeguarding National Security of Hong Kong Special Administrative Region (See Law on Safeguarding National Security of Hong Kong Special Administrative Region (Hong Kong National Security Law)) legitimacy theories and, 135 Office for Safeguarding National Security, 146–7, 148 ‘One China’ policy and, 500 police force, 146 Safeguarding National Security Committee, 146 Sino–UK Joint Declaration (See Sino–UK Joint Declaration) state immunity in, 170, 175, 176 trade with, 400 World War II reparations and, 177–8 Hongzhang Li, 363 Horton, Richard, 291 HRC. See Human Rights Council (HRC) Hsiao, Gene T., 399 Huang, Zhixiong, 6–7 Huang, Huikang, 214 Huangyan Island, 535 Huawei, 319, 415–16 Huber, Max, 141 Hu Jintao CSFM and, 52–3 ecological civilization and, 325–6 Human-centred law health law (See Global health law) IHL (See International humanitarian law (IHL)) international human rights law (See International human rights law) Humanitarian intervention generally, 57, 204–5 Chinese position on, 210–11, 212, 245 Human Rights Council (HRC) BRI and, 45, 46 Commission on Human Rights, replacement of, 272 counterterrorism and, 234 CSFM and, 61 development and, 270–1 establishment of, 267 role of China in, 272–3 special procedures, 273–5 Universal Periodic Review, 275–7 generally, 7–8, 283, 505 acceptance of recommendations, 276 autonomy and, 276 religious persecution and, 277 sovereignty and, 276–7 Uyghurs and, 277 working methods of human rights mechanisms, 271 Working Principles, 273 Human Rights Institute, 140–1

561

Human Rights Watch, 505 Hungary, Multilateral Cooperation Centre for Development Finance and, 484 ICC. See International Criminal Court (ICC) ICCPR. See International Covenant on Civil and Political Rights (ICCPR) Iceland extraterritoriality and, 188 free trade agreement with, 419 ICESCR. See International Covenant on Economic, Social and Cultural Rights (ICESCR) ICJ. See International Court of Justice (ICJ) ICSID. See Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID) ICTs. See International courts and tribunals (ICTs) IHL. See International humanitarian law (IHL) IHR. See International Health Regulations (IHR) IIAs. See International investment agreements (IIAs) Ikenberry, G. John, 55, 110 ILC. See International Law Commission (ILC) IMF. See International Monetary Fund (IMF) Implied powers doctrine Asian Infrastructure Investment Bank and, 491, 492–3 BRI and, 491, 492–3 ICJ and, 492 ICSID and, 491–2 Multilateral Cooperation Centre for Development Finance and, 491, 493 US Constitution and, 491 VCLT and, 492 Income Tax Law for Enterprises with Foreign Investment and Foreign Enterprise, 123 India Agreement on Confidence Building Measures in the Military Field along the Line of Actual Control in the China–India Border Areas, 532 Agreement on the Maintenance of Peace and Tranquility along the Line of Actual Control in the China–India Border Areas, 532 Agreement on Trade and Intercourse between the Tibet Region of China and India, 530 anti-satellite weapons and, 316, 394 China–India Political Parameters and Guiding Principles, 545–6 Code of Civil Procedure, 169 New Development Bank and, 485 scientific cooperation agreements with, 387 state immunity in, 167, 169–70 tariffs in, 403, 407 territorial disputes with (See also Sino–Indian War) generally, 375, 541 Agreement on Trade and Intercourse between the Tibet Region of China and India and, 530 Aksai Chin, 530–1 China–Pakistani Boundary Agreement and, 531 ‘customary line’ and, 544–5 flexibility and pragmatism in, 545–6

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

562

Index

India (cont.) geographical factors, 530 historical and archival evidence, problems involving, 541 Johnson Line, 530–1 Karakorum Corridor, 531 McMahon Line, 529–30 multiple step negotiation, 542 negotiations, 531, 532 traditional customary line, 529 ‘unequal treaties’ and, 544 WTO and, 412, 413, 415 Indonesia Foreign Investment Restriction Index in, 158 maritime dispute settlement and, 376 as maritime neighbour of China, 375 National Fish Warehouse, 376 PPWT and, 385 scientific cooperation agreements with, 387 tariffs in, 407 Initiative for Belt and Road Partnership on Covid-19 Vaccines Cooperation, 297 Instruction on the Handling of Certain Problems in Foreign-Related Cases, 124 Intellectual property (IP). See International intellectual property law Interdependence in Chinese Constitution, 55 CSFM and, 55–6 Intergovernmental Panel on Climate Change (IPCC), 341 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), 323 Intermediate-Range Nuclear Forces (INF) Treaty, 140 International Atomic Energy Agency (IAEA), 189 International Bar Association, 140–1 International Bill of Rights, 262–3, 268 International Centre for Settlement of Investment Disputes (ICSID) Arbitration Rules, 429, 445–6 claimant, China as generally, 431–2 Beijing Shougang v. Mongolia, 433 Broches test, 433 BUCG v. Yemen, 432–3 Hong Kong, applicability of BITs to, 434–5, 437 Macau, applicability of BITs to, 434 Ping An v. Belgium, 437–9 SOEs and, 432–4 temporal application of treaties, 437–9 Tza Yap Shum v. Peru, 441 Zhongshan Fucheng v. Nigeria, 441 conciliation and, 444 Convention, 430–1, 435 domestic courts, international law in, 125 recognition and enforcement of awards, 448 respondent, China as generally, 427–8 Ansung Housing v. China, 428–30, 431 future proceedings, 448 Hela Schwartz v. China, 428, 430

most favoured nation status and, 429–30 parallel proceedings and, 428 rarity of, 430–1 temporal limitations and, 428–30 International Civil Aviation Organization, 16 International Code of Conduct for Information Security (proposed), 214, 316 International Code of Conduct for Outer Space Activities (ICoC) (draft), 380, 391, 392–3 International Commercial Dispute Prevention and Settlement Organization (ICDPASO), 58–9, 444, 512–13 International Commercial Expert Committee (ICEC), 512 International Committee of the Red Cross (ICRC), 303, 308–9, 310 International Conference on the Relationship between Disarmament and Development, 386 International Convention for the Suppression of Acts of Nuclear Terrorism, 229–30 International Convention for the Suppression of Terrorist Bombing, 228–30 International Convention for the Suppression of the Financing of Terrorism, 229–30 International Convention on Civil Liability for Oil Pollution Damage, 190 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 264 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 190 International Court of Human Rights, 504 International Court of Justice (ICJ) Chagos Archipelago and, 500–1 Chinese judges on, 16–17 Covid-19 pandemic and, 292 criticism of, 111 cyberwarfare and, 217 dispute settlement and, 510–11 exclusive economic zones and, 370 implied powers doctrine and, 492 International Health Regulations and, 292 international law and, 103 jurisdiction of, 142 permanent members of Security Council and, 498 on self-defence, 209 Sino–Indian War and, 499 Sino–UK Joint Declaration and, 142–3 sovereignty and, 64 on state immunity, 167, 170 strategic detachment of China compromis, 498, 501 compulsory jurisdiction, 498 mistrust of, 499–500 reservations, 498–9 territorial disputes and, 500 WTO compared, 501 territorial disputes and, 500 on treaties, 142 UNCLOS and, 513

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index International courts and tribunals (ICTs) domestic courts, international law in, 125 engagement of China with, 245–6 Extraordinary Chamber in the Courts of Cambodia, 243, 503 ICC and, 249–50 International Criminal Tribunal for Rwanda (ICTR), 241, 502, 503 International Criminal Tribunal for the former Yugoslavia (ICTY), 241–2, 249, 502, 503 International Residual Mechanism for Criminal Tribunals, 243, 502–3 Special Court for Sierra Leone, 243, 503 Special Tribunal for Lebanon, 243, 503 International Covenant on Civil and Political Rights (ICCPR) generally, 262–3 counterterrorism and, 234–5 failure of China to ratify, 235, 276, 279 Hong Kong National Security Law and, 141 National Human Rights Action Plan and, 282 systemic nature of human rights, 264 International Covenant on Economic, Social and Cultural Rights (ICESCR) generally, 262–3 counterterrorism and, 234–5 domestic courts, international law in, 282 enjoyment, right to, 269 health and, 286–7 National Human Rights Action Plan and, 282 ratification of, 280 Sino–UK Joint Declaration and, 147 systemic nature of human rights, 264 International Criminal Court (ICC) Ad Hoc Committee, 242 ad hoc tribunals and, 249–50 Africa and, 253, 255 Asia and, 255 Assembly of State Parties, 243 core crimes, 242–3, 257 Coˆte d’Ivoire referral, 246 crime of aggression generally, 242–3, 257 Ukraine War and, 254 UN Security Council and, 254 crimes against humanity generally, 242–3, 246, 249 in customary international law, 249–50 Ukraine War and, 253–4 Xinjiang Uyghur Autonomous Region, counterterrorism in, 247 Darfur referral, 242, 246, 502 dispute settlement and, 501–2, 503 engagement of China with, 238, 242–4, 245–6, 257 genocide, 242–3 jurisdiction of, 243 Kampala Review Conference, 252 legitimacy concerns regarding, 253 Libya referral, 242, 246, 502 Preparatory Committee, 242

563

Rome Diplomatic Conference, 242, 243, 253 Rome Statute adoption of, 312 IHL and, 310 jurisdiction and, 243 legitimacy concerns regarding, 253 normative concerns regarding, 249, 250, 252, 257 objections by China, 257 participation by China, 312–13 sovereignty concerns regarding, 246, 247 Special Working Group on the Crime of Aggression, 243 strategic detachment of China, 501–2, 503 Syria referral, 246, 502 war crimes generally, 242–3, 249, 253 in customary international law, 249–50 IHL and, 310 Ukraine War and, 253–4 Xinjiang Uyghur Autonomous Region, and counterterrorism in, 247–8 International criminal law generally, 7 overview, 239–40 Chinese concerns regarding, 244, 256–7 Chinese Constitution and, 244 crime of aggression generally, 242–3, 257 Korean War and, 251–2 law of the sea and, 250–1 normative concerns regarding, 250–2 self-defence and, 251–2 Ukraine War and, 251, 254 UN Security Council and, 250, 254 crimes against humanity generally, 242–3, 246, 249 in customary international law, 249–50 normative concerns regarding, 249 Ukraine War and, 253–4 Xinjiang Uyghur Autonomous Region, counterterrorism in, 247 dual-identity dilemma, 239, 255–6 evolution of Chinese engagement with, 238, 240–4 Five Principles of Peaceful Coexistence and, 244 genocide, 242–3 human rights and, 244–8, 257 ICC (See International Criminal Court (ICC)) legitimacy concerns regarding, 252–4 normative concerns regarding, 248–52, 257 sovereignty concerns regarding, 244–8, 257 transnational criminal law distinguished, 239 UN Security Council and, 239 war crimes generally, 242–3, 249, 253 in customary international law, 249–50 IHL and, 310 normative concerns regarding, 249 Ukraine War and, 253–4 World War II and, 240–1

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

564

Index

International Criminal Tribunal for Rwanda (ICTR), 241, 502, 503 International Criminal Tribunal for the former Yugoslavia (ICTY), 241–2, 249, 502, 503 International Energy Charter Declaration, 447 International Environmental Agreements Database, 323–4 International Environmental Court (proposed), 515–16 International environmental law generally, 8–9, 324–5 biodiversity beyond national jurisdiction (See Biodiversity beyond national jurisdiction (BBNJ)) biodiversity conservation generally, 325 biodiversity in China generally, 325 common but differentiated principle (CBDR), 329 Convention on Biodiversity (See Convention on Biological Diversity (CBD)) CSFM and, 329 domestic legislation, 337 threats to biodiversity, 328 CSFM, ecological approach, 62–4 deep seabed mining generally, 325, 333 common heritage of mankind and, 336–7 immunity from liability, 335, 337 UNCLOS, conformity with, 335, 336, 337 ecological civilization (See Ecological civilization) global climate change law (See Global climate change law) global ocean governance BRI and, 331 common heritage of mankind and, 330 evolution of Chinese power regarding, 330–1 jurisdiction and, 330 UNCLOS and, 330 global pact for environment, 63–4 long-term threats, contemporary decisions addressing, 338 mass extinction, danger of, 323 norm-making in, 28–9 ‘sageliness within and kingliness without’ and, 323, 338 tensions with United States, impact of, 337 International Finance Corporation (IFC), 38, 487 International financial law generally, 11, 477 Asian Infrastructure Investment Bank and, 11, 476, 494 BRI and, 476, 483 Chinese multilateralism in generally, 477, 493 American multilateralism compared, 477, 483–4 cultural perspective, 478 developing countries and, 477–8 historical perspective, 478 ‘extensive consultation, joint contribution, and shared benefits’ generally, 477, 483, 494 Asian Infrastructure Investment Bank and, 484 BRI and, 33, 483 consensus-oriented decision-making, 483–4 Multilateral Cooperation Centre for Development Finance and, 484–5

New Development Bank and, 485 ‘high and feasible standards’ generally, 477, 485–6, 494 debt sustainability, 489–90 environmental and social safeguards (ESS), 486–8 open and transparent procurement, 488–9 IMF and, 11 (See also International Monetary Fund (IMF)) teleological perspective, 477, 490–1 International Health Regulations (IHR) generally, 284 adoption of, 285 collaboration and, 295 ICJ and, 292 innovations in, 286 obligation of notification, 289–90 public health emergencies of international concern (PHEIC), 289–90, 297, 298 purpose, 286 International humanitarian law (IHL) generally, 8, 320 in ancient China, 302 CCP and, 305–6 changing role of China in, 302 in Civil War, 306 contemporary practice generally, 302, 307–8 domestic legislation, 309 education and training, 309–10 naval activities and, 310–11 treaty practice, 308–9 cyberwarfare (See Cyberwarfare) humanitarian intervention generally, 57, 204–5 Chinese position on, 210–11, 212, 245 internees and, 305–6 jus ad bellum (See Jus ad bellum) jus ad bellum as inseparable from jus in bello, 302 in Korean War, 306–7 Nationalists and, 304–5 new technologies and generally, 302, 314 ambition versus reality, 317–20 anti-satellite weapons, 316 artificial intelligence, 315, 318 civil society, role of, 318, 319–20 in cyberspace, 316, 318–19 lethal autonomous weapons systems, 314, 316, 317, 318 national strategies, 315–17 norm-making, 315 in outer space, 317 participation in processes, 315–17 private actors, role of, 319–20 soft power, gap in, 318 non-weaponization of outer space and, 317 norm-making in generally, 311, 317–18 Arms Trade Treaty and, 313–14 consensus-based approach, 311–13 new technologies and, 315

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index prisoners of war and, 303–4, 305, 307 in Qing dynasty, 302, 303–4 Responsibility to Protect (R2P) generally, 57, 204–5 Chinese position on, 210, 211–12, 245 UN Security Council and, 211–12, 245 self-defence (See Self-defence) in Sino–Indian War, 307 in Sino–Vietnamese War, 307 use of force (See Use of force) in World War II, 304–6 International human rights law. See also specific Convention or organization generally, 7–8, 262, 283 BRI, legal implications of, 45 CCP and, 283 Chinese Constitution and, 84–5, 283, 504 Chinese perspective on, 265–8 as alternative to Western centralist perspective, 262, 267–8 collective rights and, 265–6 different methods of achieving, 266–7 oppression, in context of, 265 political and economic rights, 266 sovereignty and, 267 Co-Facilitation Process, 278–9 colonialism and, 271 Confucianism and, 263 counterterrorism and generally, 220, 237 derogation of, 234–5 preventive approach to terrorism, effect of, 235 risk of violating, 224, 225–6, 233–5 rule of law, effect of underdevelopment of, 235–6 Covid-19 pandemic and, 271 development and, 270–1 dialogue with treaty bodies, 278–9 dispute settlement and, 504–5 domestic courts, international law in, 121–3, 281–2 enjoyment, right to, 269 expression, right to, 269 health and, 286–7 HRC (See Human Rights Council (HRC)) internal legal reform and, 280–1 international consensus on, 263–5 brotherhood, 263 collective rights and, 264 obligations and, 264 social justice, equality, and non-discrimination, 264 systemic nature of, 264 international criminal law and, 244–8, 257 life, right to, 266, 268 norm-making in, 26, 268 sovereignty and, 26, 267, 276–7 special procedures, 273–5 Strengthening Process, 278–9 UN Economic and Social Council and, 273 Universal Periodic Review, 275–7 generally, 7–8, 283 acceptance of recommendations, 276

565

autonomy and, 276 religious persecution and, 277 sovereignty and, 276–7 Uyghurs and, 277 Uyghurs and, 235–6, 277 Western criticism of China, 261–2 working methods of human rights mechanisms, 271 International institutions. See also specific institution generally, 3, 15–16, 29–30 developing countries, focus on, 22–3 diversified forms of participation in, 18–20 observer status, 19 economic-led move into, 17–18 development aid, 18 economic aid, 18 evolution of Chinese engagement with, 238–9 historical background on China’s move into, 16–17 norm-making (See Norm-making) peaceful coexistence, participation based on, 20–2 Five Principles of Peaceful Coexistence, 20 he and, 20–1 shi and, 21 recent initiatives by China, 23–5 sovereign equality, participation based on, 20–2 International intellectual property law. See also specific agreement or entity generally, 11, 450, 474–5 Chinese Constitution and, 453–4, 462 Confucianism and, 451, 453 Cultural Revolution, intellectual property protection in, 451 dispute settlement in generally, 451, 468–9 criminal penalties and, 472 shift from political to judicial approach, 468–9 state practice of China, 471–3 doctrine of contradictions and, 453 domestic courts, international law in, 121 domestic legislation and, 452 economic base and superstructure and, 454 historical background, 450 implementation of treaties generally, 451, 461 administrative enforcement, 463–4 ‘appropriate method’, 461–2 ‘conflict-prevailing’ position, 462 criminal enforcement, 466–7 domestic legislation, 461–3 ‘give effect to’, 461 judicial enforcement, 465–8 transformation approach, 462 instrumental approach, intellectual property protection as, 450, 451–3 normative justification for intellectual property protection, 450, 453–5 norm-making in generally, 450–1, 455 free trade agreements, 460–1 multilateral negotiations, 458–9 norm-entrepreneur, China as, 459–61

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

566

Index

International intellectual property law (cont.) norm-taker, China as, 455–7 United States, negotiations with, 457–8 socialism and, 456 socialist market economy and, 452, 454 International investment agreements (IIAs) generally, 136, 152, 423 domestic factors, 426 FDI and, 152 free trade agreements and, 425 global factors, 426 historical evolution of, 423–6 investor–state dispute settlement and, 424 national treatment and, 424 negative list approach, 424 ‘race to the bottom’, 152 sustainable development and, 424 International investment arbitration. See Investor–state dispute settlement (ISDS) International investment law generally, 10–11, 423, 447–9 Asian Infrastructure Investment Bank and, 11 BITs (See Bilateral investment treaties (BITs)) BRI and, 448 China International Commercial Court and, 445, 446 domestic laws and, 426–7 FDI (See Foreign direct investment (FDI)) foreign-invested enterprises, 426–7 historical evolution of, 423–6 International Centre for Settlement of Investment Disputes (See International Centre for Settlement of Investment Disputes (ICSID)) international investment agreements (See International investment agreements (IIAs)) international investment arbitration (See Investor–state dispute settlement (ISDS)) investor–state dispute settlement (See Investor–state dispute settlement (ISDS)) multilateral investment treaties (MILs), 509 national treatment and, 424, 426 Negative List approach, 424, 426 pilot free trade zones, 426 reform of overview, 448 alternative dispute resolution, 443–5 appeal mechanism, 445 conciliation, 443–5 mediation, 443–5 multilateralism, 446–7 procedural reforms, 443–6 substantive reforms, 442–3 transparency, 445–6 WTO and, 447, 448 International Labour Organization Declaration on Social Justice for a Fair Globalization, 425 Forced Labour Convention (No. 29), 279, 425 International Law Commission (ILC) Draft Articles on Responsibility of States for Intentionally Wrongful Acts, 290, 291

on fragmentation of international law, 44 international human rights law and, 267 international rule of law and, 106 International Maritime Organization (IMO), 125, 372 International Military Tribunal for the Far East (IMTFE) (Tokyo Tribunal), 238, 240–1, 252–3, 502 International Monetary Fund (IMF) generally, 27 Articles of Agreement, 480 BRI and, 40 China and, 17, 476 criticism of, 476–7 Debt Sustainability Framework for Low Income Countries, 489 developing countries and, 478–9 engagement of China with, 239 international financial law and, 11 reform measures generally, 477 overview, 479 developing countries and, 478–9 difficulties in, 480 Executive Board, 480 G20 and, 479 linkage of, 480 quotas, 479, 480–1 significance of, 479 relationship with China, 24–5 revolutionary approach to reform in, 479 special drawing rights and, 482–3 WHO and, 300 International Plant Protection Convention, 327 International Platform on Sustainable Finance (IPSF), 352 International Regulations for Preventing Collisions at Sea, 117 International relations, international rule of law and, 104–5, 111 International Residual Mechanism for Criminal Tribunals, 243, 502–3 International Scientific Commission, 306–7 International Seabed Authority (ISA) generally, 333 assistance from state parties, 335 contracts awarded by, 334 Draft Regulations on Exploitation of Mineral Resources in the Area, 336–7, 371 International Strategy of Cooperation on Cyberspace, 214 International Telecommunication Union, 16 International terrorism law. See Counterterrorism International trade law. See also specific agreement or entity generally, 10, 421–2 CCP and, 398, 402 China–US Economic and Trade Agreement (2020) (See China–US Economic and Trade Agreement (2020)) China–US Trade Agreement (1979) (See China–US Trade Agreement (1979)) cooperation, need for, 422

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Cultural Revolution and, 400 evolution of China in, 397–8 free trade agreements (See Free trade agreements (FTAs)) free trade zones generally, 156 BITs and, 158 Negative List, 157 GATT (See General Agreement on Tariffs and Trade (GATT)) instrumentalist approach, 398 norm-making in, 27–8, 412–14 in post-war period BITs and, 399 diversification of trade, 400 exchange rate, disconnection from trade, 401 import substitution, 400–1 industrialization and, 401 isolationist stance, 399 state control, 400 traditional international law and, 399 in pre-WTO period increasing alignment with GATT, 402–4 liberalization of trade, 402–3 most favoured nation status and, 404 non-tariff measures, 403–4 tariffs and, 403 trading rights, expansion of, 403 reform and opening-up policy and, 10, 398, 402 statistics, 397 status quo power, China as, 417 tariffs, 403, 407, 419–21 trade war with United States, 419–21, 422, 507 WTO (See World Trade Organization (WTO)) International Treaty on Plant Genetic Resources for Food and Agriculture, 327 International Tribunal of the Sea (ITLOS) Chinese participation in, 514–15 dispute settlement and, 376–7, 513, 514–15 immunity from liability and, 335, 337 on jurisdiction, 189 Seabed Disputes Chamber, 513, 514–15 Internet Corporation for Assigned Names and Numbers (ICANN), 197 Investment Court System (ICS), 445 Investment law. See International investment law Investor–state dispute settlement (ISDS) generally, 152 advantages of, 510 appeal mechanism, 446, 448 Beijing Shougang v. Mongolia, 440–1 BRI and, 510–11 claimant, China as generally, 431–2 Beijing Shougang v. Mongolia, 433, 440–1 Broches test, 433 BUCG v. Yemen, 432–3 Hong Kong, applicability of BITs to, 434–5, 437 indirect expropriation clauses, interpretation of, 441 Macau, applicability of BITs to, 434

567

narrow scope of arbitration clauses, 439–41 Ping An v. Belgium, 437–9 Sanum v. Laos, 435–7 SOEs and, 432–4 temporal application of treaties, 437–9 Tza Yap Shum v. Peru, 434–5, 439–41 Zhongshan Fucheng v. Nigeria, 441 critical date doctrine, 436 indirect expropriation clauses, interpretation of, 441 international investment agreements and, 424 limitations of, 511–12 moving treaty frontier rule, 436 narrow scope of arbitration clauses, 439–41 reform of, 443 respondent, China as generally, 427–8, 509 Ansung Housing v. China, 428–30, 431 future proceedings, 448 Hela Schwartz v. China, 428, 430 most favoured nation status and, 429–30 parallel proceedings and, 428 rarity of, 430–1 temporal limitations and, 428–30 Sanum v. Laos, 435–7 Tza Yap Shum v. Peru, 434–5, 439–41 IP. See International intellectual property law Iran counterterrorism and, 233 on cyberwarfare, 213 hostage rescue attempt in, 210 military satellites, 394 state immunity in, 167 WTO and, 405 Iraq, state immunity in, 167 ISA. See International Seabed Authority (ISA) ISDS. See Investor–state dispute settlement (ISDS) Israel on cyberwarfare, 216 Prevention of an Arms Race in Outer Space (PAROS) and, 388–9 self-defence and, 208–10 war crimes and, 253 Italy BRI and, 36–7 Chinese–Italian Double Taxation Agreement, 123 state immunity in, 165, 166, 169 ITLOS. See International Tribunal of the Sea (ITLOS) Itu Aba Island, 365, 534 Ius cogens, 55 Jackson, John H., 159, 410 Japan Blue Dot Network and, 38 comparison of economy with China, 18 Diaoyu/Senkaku Islands (See Diaoyu/Senkaku Islands) Guandongjun army, 305 infrastructure investment and, 494 international trade law and, 422 internees from, 305–6

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

568

Index

Japan (cont.) Japanese Unit 731, 306–7 Kempeitai, 305 Korean War and, 138 marine genetic resources and, 333 as maritime neighbour of China, 375 Ministry of Foreign Affairs, 537, 540, 541 normalization of relations with, 400 occupation of islands by, 365 Peace Treaty, 534 prisoners of war from, 305 South China Sea arbitration and (See South China Sea (SCS) arbitration) South China Sea islands, claims to, 534 state immunity in, 167, 169, 172 surrender of, 538–9 trade with, 400 World War II reparations and, 177–8 WTO and, 411, 412, 413, 414, 416–17 Japanese War of Aggression. See World War II Jessup, Philip, 135 Jesuits, 90 Jiang Zemin CSFM and, 52, 54 FDI and, 154 reform and opening-up policy and, 52 territorial disputes and, 527 Jiao Long (submersible technology), 330–1 Joint Declaration of China and Portugal on the Question of Macau, 434 Joint Statement on Further Strengthening and Deepening the China–Vietnam Comprehensive Strategic Cooperative Partnership, 376 Judicial Immunity Law, 162 Jurisdiction adjudication jurisdiction, 189, 197 biodiversity beyond national jurisdiction (See Biodiversity beyond national jurisdiction (BBNJ)) effect doctrine (See Effect doctrine) enforcement jurisdiction, 189 extraterritoriality (See Extraterritoriality) global ocean governance and, 330 prescription jurisdiction, 189 treaty practice regarding, 149 universal jurisdiction, 503 Jus ad bellum generally, 6–7, 204, 218 CSFM and, 212 cyberwarfare (See Cyberwarfare) humanitarian intervention generally, 57, 204–5 Chinese position on, 210–11, 212, 245 jus in bello as inseparable from, 302 PPWT and, 391–2 Responsibility to Protect (R2P) generally, 57, 204–5 Chinese position on, 210, 211–12, 245 UN Security Council and, 245 self-defence (See Self-defence)

Jus cogens, prohibition on use of force as, 203 Jus in bello. See International humanitarian law (IHL) Kalayaan Islands, 535–6 Kaya, Ayse, 481 Kazakhstan boundary agreement with, 528 diplomatic agreements with, 138–9 scientific cooperation agreements with, 387 state immunity in, 167 Keitner, Chime`ne I., 178 Kennedy, D., 394 Kent, A., 380 ‘Killer robots’, 314 Kim Il-sung, 138 Kittrie, O. F., 380 Koh, Harold, 135 Kong, Qingjiang, 8 Korean War biological weapons in, 307 crime of aggression and, 251–2 IHL in, 306–7 prisoners of war in, 307 self-defence and, 251–2 territorial sea and, 367 treaty practice and, 138 UN Security Council and, 206–7 use of force in, 206–7 Koskenniemi, Martti, 55 Kosovo humanitarian intervention in, 210 ICJ and, 500 NATO intervention in, 210, 241 Ku, J. G., 506 Kunming Biodiversity Fund, 330 Kunming Declaration, 329, 337 Kunming–Montreal Global Biodiversity Framework (GBF), 325, 329–30 Kyoto Protocol, 28–9, 342, 345 Kyrgyzstan boundary agreement with, 528 diplomatic agreements with, 138–9 Lagarde, Christine, 483 Laos BIT with, 435–7 boundary agreement with, 529 Boundary Treaty, 529 ICSID arbitration and, 435–7 Ministry of Foreign Affairs, 436 Multilateral Cooperation Centre for Development Finance and, 484 Provisional Agreement between the Government of the People’s Republic of China and the Government of the Lao People’s Democratic Republic on Handling Border Affairs, 529 Lardy, Nicholas, 403–4 Latvia, China–Latvia MOU, 42 Lauterpacht, H., 166

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Lawfare dispute settlement and, 518–19 non-weaponization of outer space and, 379–80 treaty practice and, 135–6, 160 Law Governing the Trial of War Criminals, 304–5 Law of armed conflict. See International humanitarian law (IHL) Law of nations, 102 Law of Nations (Wheaton), 361 Law of Red Cross Society, 309 Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties, 136 Law of the sea generally, 359–60, 377 biodiversity beyond national jurisdiction (See Biodiversity beyond national jurisdiction (BBNJ)) continental shelf generally, 358 median line principle, 369–70 in PRC period, 369–70 state practice and, 358–9 UNCLOS and, 369–70 crime of aggression and, 250–1 deep seabed mining generally, 325, 333 common heritage of mankind and, 336–7 immunity from liability, 335, 337 UNCLOS, conformity with, 335, 336, 337 dispute settlement, 375–7 domestic laws implementing generally, 360, 371–2 late 1990s–present, 374–5 1949–1970s, 373 1980s–1990s, 373–4 exclusive economic zones generally, 359 extraterritoriality and, 190 ICJ and, 370 interpretation of UNCLOS and, 359 median line principle, 369–70 in PRC period, 369 UNCLOS and, 369 fishing zones, 359, 363, 364–5 global ocean governance BRI and, 331 common heritage of mankind and, 330 evolution of Chinese power regarding, 330–1 jurisdiction and, 330 UNCLOS and, 330 in PRC period generally, 359–60 continental shelf, 369–70 exclusive economic zones, 369 international seabed area, 370 median line principle, 369–70 negotiations, 370–1 territorial sea, 367–9 UNCLOS and, 366–7 in Qing dynasty

569

generally, 359, 378 ambivalence towards international law, 360–1 Dagu Port case, 361–2 fishing zones, 363 territorial sea, 362–3 in Republic of China generally, 359, 364, 378 fishing zones, 364–5 sovereignty and, 365–6 territorial sea, 364 science and technology, impact of, 359 state practice and, 358–9 territorial sea Korean War and, 367 in PRC period, 367–9 in Qing dynasty, 362–3 in Republic of China, 364 Taiwan and, 367 UNCLOS and, 368–9 Vietnam and, 373 UNCLOS (See Convention on the Law of the Sea (UNCLOS)) Westernization of, 360 Law on Administrative Penalty, 464 Law on Coast Guard, 375 Law on Exclusive Economic Zone and Continental Shelf, 374 Law on Exploration and Development of Deep-Sea Seabed Resources, 375 Law on Maritime Environmental Protection, 374 Law on Protection of Islands, 374 Law on Safeguarding National Security of Hong Kong Special Administrative Region (Hong Kong National Security Law) crimes under, 147–8 emergency powers under, 147 executive power under, 146–7 extraterritoriality and, 141 human rights obligations and, 141 judicial power under, 146–7 legislative power under, 146 rights under, 147 Sino–UK Joint Declaration and, 141, 145–8 treaty obligations and, 141 Law on Territorial Sea and Contiguous Zone, 374 Law on the Application of Law in Foreign-Related Civil Relations, 115 Law on the Procedure of the Conclusion of Treaty (LPCT), 76, 77 Law on the Protection of Minors of China, 281 Law on the Protection of Women’s Rights and Interests, 278 Law on Utilization and Management of Sea Areas, 374 LAWS. See Lethal autonomous weapons systems (LAWS) League of Nations international law and, 102 Optional Protocol, 498 Lebanon, state immunity in, 167 Legislation Law BRI and, 41, 42 domestic courts, international law in, 114

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

570 Legitimacy theories, 134–5 Lenin, V. I., 526, Lesotho, state immunity in, 168 Lethal autonomous weapons systems (LAWS), 314, 316, 317, 318 Li, Ji, 4–5 Liang, Zhou, 302 Li Baodong, 256 Libya ICC referral, 242, 246, 502 NATO intervention in, 212 Responsibility to Protect (R2P) and, 211–12 Li Chenggang, 460 Life, right to, 266, 268 Lin, Biao, 306 Li, Peng, 452 Listner, M., 393 Lithuania, BRI and, 37 Liu, Bingyu, 9 Liu, Nengye, 8–9 Liu, Jianchao, 178 Lo Chung-Shu, 268–9 Locke, John, 106 London Dumping Convention, 372 Macau applicability of BITs to, 434 Basic Law, 434 dispute settlement and, 517–18 Macclesfield Bank, 365, 367, 533, 534, 535 Madagascar, state immunity in, 167, 168 Madison, James, 491, 492 Madrid Agreement Concerning the International Registration of Marks, 127, 451 Malaysia BRI and, 44 East Coast Rail Link (ECRL) project, 44 as maritime neighbour of China, 375 South China Sea islands, claims to, 536 Maldives, free trade agreement with, 419 Mao Zedong Chinese Constitution and, 4, 74, 78, 80 Cultural Revolution and, 84 IHL and, 306 international trade law and, 398, 399–400 rule of law and, 99–100, 108 state immunity and, 172–3 Map of Administrative District of the Republic of China, 366 Marine Environment Protection Act generally, 187–8 effect doctrine and, 183, 198 exclusive economic zones and, 190 extraterritoriality and, 181, 188, 190 literal reading of, 188 UNCLOS and extraterritoriality and, 188, 190 interpretation in conjunction with, 188

Index oil spills and, 190 territorial jurisdiction and, 188 vessel-source pollution, 189 marine genetic resources (MGRs), 333–4 Maritime Boundary Commission, 364 Maritime Law, 124 Maritime Silk Road (MSR), 31, 62 Marrakesh Treaty, 279, 281 Marshall, John, 163–4, 171 Marxism–Leninism Chinese Constitution and, 79–80 international trade law and, 398 rule of law and, 99, 107, 108 Mass extinction, danger of, 323 Mauritius BIT with, 442 Chagos Archipelago, 500–1 free trade agreement with, 419, 425, 445 Ma Xinmin, 214, 319 May 4 Movement, 547 Mayaguez Incident, 210 MCDF. See Multilateral Cooperation Centre for Development Finance (MCDF) Mei, Ru-ao, 240 Meier, Benjamin Mason, 298 Memorandum on the Three-Step Roadmap to Accelerate the China–Bhutan Boundary Negotiations, 533 MEPA. See Marine Environment Protection Act Merger control, 193–5 Merryman, John, 165 Mexico IMF and, 476 state immunity in, 167 tariffs in, 403 territorial sea and, 362–3 trade deals with, 405 Millennium Development Goals (MDGs), 61 Mine Ban Convention. See Anti-Personnel Mine Ban Convention Mining Code, 8–9, 325 Ministry of Agriculture, 400 Ministry of Agriculture and Commerce, 364–5 Ministry of Chemical Industry, 400 Ministry of Commerce counterterrorism and, 233 global climate change law and, 346–7 international investment law and, 444 merger control and, 194 treaty practice and, 109 Ministry of Communications, 364 Ministry of Ecology and Environment, 326, 329, 348–9 Ministry of Environmental Protection, 326 Ministry of Finance, counterterrorism and, 232 Ministry of Foreign Affairs on artificial intelligence, 318 counterterrorism and, 221, 232 on Diaoyu/Senkaku Islands, 540–1

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index global climate change law and, 343, 346–7 rule of law and, 109 Sino–UK Joint Declaration and, 144 on state immunity, 175 Ministry of Foreign Trade, 400, 403 Ministry of Interior Affairs, 366 Ministry of National Defence, 232 Ministry of Natural Resources, 375 Ministry of Public Security, 228–9, 232 Ministry of State Security, 232 Mirabeau (Comte de), 2–3 Model BIT, 425–6 Mongolia BIT with, 433 boundary treaty with, 523, 525 ICSID arbitration and, 433, 440–1 Morgenthau, Hans, 104, 111 Morocco, state immunity in, 167 Most favoured nation (MFN) status, 404, 429–30 Moynihan, Harriet, 58, 497, 499, 506, 515, 519 Multilateral Cooperation Centre for Development Finance (MCDF) Asian Development Bank and, 491, 493 BRI and, 490, 491, 493 Chinese multilateralism and, 478 Coordination Committee, 484–5 ‘extensive consultation, joint contribution, and shared benefits’ and, 484–5 Finance Facility, 484 Governing Committee, 484 implied powers doctrine and, 491, 493 international financial law and, 11, 476, 494 teleological perspective, 491, 493 Multilateral investment treaties (MILs), 509 Multilateralism CSFM and, 66–7 in international investment law, 446–7 international law and, 102–3 Mungello, David, 90 Munich Olympic Games terrorist attack, 220, 229 Murphy, Colleen, 96 Myanmar boundary agreement with, 545 boundary treaty with, 80–1, 523–4, 542, 545 McMahon Line and, 545 territorial disputes with, 543, 545 Nanjing Massacre, 304–5 Nanjing War Crimes Tribunal, 304–5 Nansha Islands, 365, 367, 533–4, 535–6 National Anti-Terrorism Leading Group, 228–9 National Biodiversity Conservation Strategy and Action Plan, 325, 328 National Committee on IHL, 309–10 National Complaint Mechanism, 444 National Coordination Group on Climate Change, 342 National Defence Law, 314, 315 National Defence White Paper, 204, 315

571

National Development and Reform Commission (NDRC), 192, 331, 343, 346–7 National Expert Committee on Climate Change, 342 National Human Rights Action Plan (NHRAP), 8, 261, 278, 282, 283 National Intellectual Property Strategy Program, 454, 459 National Intelligence Act, 183–4 Nationalists Civil War and, 306 IHL and, 304–5 National Leading Group on Climate Change, Energy Conservation, and Emission Reductions, 343 National Park System, 326–7 National Plan for Addressing Climate Change, 343 National Security Act, 183–4 National treatment, 404, 406, 424, 426 NATO. See North Atlantic Treaty Organization (NATO) NDB. See New Development Bank (NDB) Negotiable Instruments Law, 124 Nepal, boundary agreement with, 523, 524, 545 Netherlands on cyberwarfare, 213 scientific cooperation agreements with, 387 state immunity in, 166 New Development Bank (NDB) Chinese multilateralism and, 478 classes of voting, 485 ‘extensive consultation, joint contribution, and shared benefits’ and, 485 global climate change law and, 355 international financial law and, 11, 476, 494 Rules of Procedure of the Board of Governors, 485 New 4th Army Incident, 305–6 New International Legal Process School, 383 New York Convention, 149–50, 430, 440 New Zealand, free trade agreement with, 419, 425 Nie, Jiangqiang, 11 Nigeria BIT with, 441 ICSID arbitration and, 441 9/11 attacks, 208, 221, 222 Nine Islets, 365 Nixon, Richard, 400 Non-Aligned Movement, disarmament and, 386 Non-intervention Chinese Constitution and, 79–82 norm-making and, 26–7 Non-weaponization of outer space generally, 9–10 anti-satellite weapons, effect of, 389–91, 394 BRI and, 387 CSFM and, 387 developed countries, Chinese approach towards, 389–93 generally, 380, 381 anti-satellite weapons and, 389–91 space debris and, 391 Theory on the Relational Normativity of International Law and, 389–90, 392 developing countries, Chinese approach towards, 385–6

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

572

Index

Non-weaponization of outer space (cont.) generally, 380, 381 Theory on the Relational Normativity of International Law and, 385, 387–8 development, relation to, 385, 386, 392 difficulty of reaching consensus regarding, 379 hegemonic concerns regarding, 379 IHL and, 317 illiberalism of China, impact of, 380 lawfare and, 379–80 normative agenda of China, 379–80 PPWT (See Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT) (draft)) space debris and, 391 Sustainable Development Goals and, 385 Theory on the Relational Normativity of International Law and generally, 380–1, 384–5, 394 developed countries and, 389–90, 392 developing countries and, 385, 387–8 Ukraine War, potential effect of, 381, 394 Norm-making generally, 25–6 China International Commercial Court and, 129 development and, 27–8 domestic courts, international law in generally, 114, 127–8 formal norm-making, 128 informal norm-making, 128–30 Supreme People’s Court and, 128, 129–30 in IHL generally, 311, 317–18 Arms Trade Treaty and, 313–14 consensus-based approach, 311–13 new technologies and, 315 in international environmental law, 28–9 in international human rights law, 26, 268 in international intellectual property law generally, 450–1, 455 free trade agreements, 460–1 multilateral negotiations, 458–9 norm-entrepreneur, China as, 459–61 norm-taker, China as, 455–7 United States, negotiations with, 457–8 in international trade law, 27–8, 412–14 non-intervention and, 26–7 peacekeeping and, 27 sovereignty and, 26–7 sustainable development and, 28–9 Theory on the Relational Normativity of International Law and, 393–4 trade development and, 27–8 WTO and, 412–14 North American Free Trade Agreement (NAFTA), 417, 443 North Atlantic Treaty Organization (NATO) generally, 137 Afghanistan War and, 222

humanitarian intervention and, 210 Kosovo intervention, 210, 241 Libya, military operations in, 212 Responsibility to Protect (R2P) and, 212 North Korea boundary agreement with, 523, 525 as maritime neighbour of China, 375 mutual defence treaty with, 138 nuclear capability of, 138 state immunity in, 169 Nuclear weapons, 59, 204 Ocean governance. See Global ocean governance ‘Offensive’ maps. See Regulation on the Administration of Maps Office of the High Commissioner for Human Rights (OHCHR), 271, 274, 277, 279 Office of the High Commissioner for Refugees (UNCHR), 16 Okinawa Reversion Agreement, 536–7 Okonjo-Iweala, Ngozi, 413–14, 484 ‘One Belt and One Road’, 155 ‘One China Policy’, 500 Opium War. See First Opium War Oppenheim’s International Law, 368 Optional Protocol on the Involvement of Children in Armed Conflict, 308 Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, 516 Organisation for Economic Co-operation and Development (OECD) Foreign Investment Restriction Index, 158 Oslo Process, 311, 312, 318 Ottawa Treaty, 59, 311, 312, 318 Ottoman Empire, prisoners of war from, 304 Outer space. See Non-weaponization of outer space Outer Space Treaty (1967), 393 Owada, H., 518 Pakistan BIT with, 423 China–Pakistani Boundary Agreement, 523, 525–6, 531, 545 free trade agreement with, 419 Paracel Islands, 365, 366, 367, 533–5 Paraguay, state immunity in, 167 Pardo, Arvid, 330 Paris Agreement on Climate Change generally, 9 Asian Infrastructure Investment Bank and, 487 China and, 63, 516 engagement of China with, 340, 342, 343–4, 346, 356 multi-stakeholder approach, 341, 349 Paris Convention on the Protection of Industrial Property generally, 451 accession of China, 451 dispute settlement under, 469 domestic courts, application in, 126–7, 465–6 instrumental approach and, 452 Patapan, Haig, 92

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Patent Cooperation Treaty (PCT), 452, 458, 469 Patent Law administrative enforcement, 463 damages under, 466 domestic courts, international law in, 115 enforcement of, 455 instrumental approach, 452, 462 Patents, Anti-Monopoly Law and, 193, 195–7 Peace and security Chinese Constitution, human security and, 88–91 Counterterrorism (See Counterterrorism) criminal law (See International criminal law) CSFM and common security as pillar of, 60–1 world peace as pillar of, 56–9 cyberwarfare (See Cyberwarfare) humanitarian intervention (See Humanitarian intervention) IHL (See International humanitarian law (IHL)) jus ad bellum (See Jus ad bellum) Responsibility to Protect (See Responsibility to Protect (R2P)) self-defence (See Self-defence) use of force (See Use of force) Peaceful coexistence Chinese Constitution and, 79–82 international institutions, participation in based on, 20–2 Five Principles of Peaceful Coexistence, 20 he and, 20–1 shi and, 21 Peacekeeping China and, 59 norm-making and, 27 Peerenboom, Randall, 84 Pelosi, Nancy, 310 Pengchun Chung, 90, 263, 264, 268 Penghu Islands, 365, 367 People’s Armed Forces Maritime Militia (PAFMM), 310–11 People’s Armed Police, 309 People’s Bank of China, 232–3, 350 People’s Liberation Army (PLA), 306, 307, 309–10, 318 Performances and Phonograms Treaty, 459 Permanent Court of Arbitration (PCA), 168, 508 Permanent Court of International Justice (PCIJ), 498, 540 Personal Data Protection Act, 182 Personal Information Protection Act, 183–4 Peru BIT with, 434–5, 437, 441 free trade agreement with, 419, 425 ICSID arbitration and, 434–5, 437, 439–41 Philippines Foreign Investment Restriction Index in, 158 as maritime neighbour of China, 375 Multilateral Cooperation Centre for Development Finance and, 484 South China Sea arbitration and (See South China Sea (SCS) arbitration) South China Sea islands, claims to, 535–6

573

Whitsun Reef and, 311 WTO and, 411 Phonograms Convention, 452 Pilot free trade zones, 426 Piracy, 516 Poland, Chinese Polish Agreement on Judicial Assistance in Civil and Criminal Matters, 116 Poland, state immunity in, 167 Portugal, state immunity in, 169 Position Paper of the People’s Republic of China on the United Nations Reforms, 204, 209, 211, 217–18, 245 Position Paper on Cyber Sovereignty submitted by China to the UN Open-Ended Working Group on Security of and in the Use of Information and Communications Technologies, 216 Potsdam Proclamation, 365, 538, 539–40 Potter, Pitman B., 87 Powell, Colin, 223 PPWT. See Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT) (draft) Practical Guidance for Cooperation on Reviewing Merger Cases between EU and China, 194 Pratas Islands, 365, 366, 367, 533, 534 Pre-emptive self-defence, 208–9 Prescription jurisdiction, 189 Prevention of an Arms Race in Outer Space (PAROS), 385, 388–9 Price Act, 192 Price fixing and, 192–3 Prisoners of war (POWs), 303–4, 305, 307 Private international law treaties generally, 136, 148 alternative dispute resolution, 149–51 jurisdiction, 149 recognition of foreign judgments, 151 Provisions on Promoting the Coordination between Administrative Law Enforcement and Criminal Justice, 468 Provisions on the Implementation of the International Copyright Treaties, 452 Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs, 467–8 Prussia, Dagu Port case and, 361–2 Qi, Jiangang, 229 Qin, Julia Ya, 406–7, 409, 420 Qin, Tianbao, 9, 328 Qin, Yaqing, 382–3 Qing dynasty France, territorial disputes with, 543 IHL in, 302, 303–4 intellectual property protection in, 450 law of the sea in generally, 359, 378 ambivalence towards international law, 360–1 Dagu Port case, 361–2 fishing zones, 363

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

574

Index

Qing dynasty (cont.) territorial sea, 362–3 ‘unequal treaties’ and, 455–6 Rajagopalan, R. P., 393 Ramsar Convention, 327 Rao, Krishna, 544 Raz, Joseph, 96 RCEP. See Regional Comprehensive Economic Partnership (RCEP) Realism international rule of law and, 105 treaty practice and, 135–6 Recognition of foreign judgments, treaty practice regarding, 151 Reform and opening-up policy. See also International institutions generally, 3 Chinese Constitution and, 78–9 environmental issues following, 325 FDI and, 152–3 ‘four modernizations’, 451 intellectual property protection and, 451 international trade law and, 10, 398, 402 Regional Comprehensive Economic Partnership (RCEP) ASEAN and, 67 intellectual property protection and, 460, 470–1 international investment law and, 442, 447, 448 international trade law and, 417–18, 419 Regulation on Counteracting the Unjustified Extraterritorial Application of Foreign Laws and Measures, 182 Regulation on Protecting the Security of Critical Information Infrastructure, 183–4 Regulation on Protection of New Varieties of Plants, 464 Regulation on the Administration of Maps generally, 184 airlines and, 186–7, 198 criminal offences, 186 direct versus indirect actions, 186 disputed territories and, 184–5 extraterritoriality and, 186 multinational companies and, 186 Taiwan and, 185, 186 territorial jurisdiction and, 185, 198 Regulation on the Customs Protection of Intellectual Property Rights, 464, 472 Regulation on Unreliable Entity List, 182 Regulations for Computer Software Protection, 452 Regulations for the Inspection of Fishing Vessels on the High Seas, 364–5 Regulations on Diplomatic Privileges and Immunities, 124 Regulations on High Seas Fisheries, 364 Regulations on Management of Vessels with Foreign Nationality, 373 Regulations on Some Questions of the Trial of Administrative Cases Relating to International Trade, 126–7

Regulations on the Exploitation of Offshore Oil Resources in Cooperation with Foreign Countries, 374 Regulations on the Organization of the Office of the Chief Executive of the Hainan Special Zone, 366 Regulations on the Passage of Non-Military Vessels with Foreign Nationality through Qiongzhou Strait, 373 Regulations Required to be Observed by Merchant Vessels Passing Through the Lao Tie Shan Channel, 373 Reid, Bill, 89 Renminbi in SDR basket, 477, 482–3 Republic of China GATT and, 402 law of the sea in generally, 359, 364, 378 fishing zones, 364–5 sovereignty and, 365–6 territorial sea, 364 Permanent Court of International Justice and, 498 state immunity in, 171–2 ‘unequal treaties’ and, 455–6 Republic of Korea (ROK). See South Korea Responsibility to Protect (R2P) generally, 57, 204–5 Chinese position on, 210, 211–12, 245 UN Security Council and, 211–12, 245 Rio Declaration, 372 Roberts, Anthea, 68, 73–4 Roberts, Sean, 224 ROL. See Rule of law (ROL) Romania, state immunity in, 167 Rome Statute. See International Criminal Court (ICC) Rule of law (ROL) generally, 4–5, 94 administrative law and, 97 bifurcation between economic and political, 95–7 CCP and, 99, 102 as check on state behaviour, 110–11 Chinese Constitution and, 83–4, 100–1, 102 Chinese discourses economic development and stability and, 99–102 historical evolution of, 99–102 international rule of law, 107–10, 111 ‘Three Supremes’ doctrine, 101 commercial and private variant, 95, 96, 110 constitutional and institutional variant, 95, 110 constructivism and, 94–5 counterterrorism and human rights, effect of underdevelopment of on, 235–6 Cultural Revolution and, 99–100, 107 defining, 97 differences regarding, 110 Global financial crisis, effect of, 101 international rule of law generally, 103–4 Chinese discourses, 107–10, 111 criticism of, 111 differences regarding, 112 goal of, 111–12

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index harmony of interests and, 105 instrumentalist approach, 108–9 international relations (IR) and, 104–5, 111 liberalism and, 111 as means to an end, 107–8 normative approach, 106 realist approach, 105 tianxia and, 105 Western discourses, 104–6, 111 Marxism–Leninism and, 99, 107, 108 political science perspective on, 94–5 republican forms of, 95–6 social contract and, 98–9 socialist rule of law, 83–4, 102, 110 top-down control of, 94–5 Western discourses accountability and, 95, 96 international rule of law, 104–6, 111 social contract and, 98–9 WTO and generally, 409 contributions to, 410 judicial review, 409–10 transparency, 409 uniformity, 409 Rules-based international order, 324 Rules on Carbon Emission Registration and Management (Trial), 348–9 Rules on Carbon Emission Settlement Management (Trial), 348–9 Rules on Carbon Emission Trading Management (Trial), 348–9 Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures, 6 Rules on Handling Complaints of Foreign-Invested Enterprises, 444 Russia. See also Soviet Union anti-satellite weapons and, 316, 394 BIT with boundary agreement with, 528 crime of aggression and, 251 on cyberwarfare, 214 diplomatic agreements with, 138–9 HRC and, 274 ICC and, 253 Intermediate-Range Nuclear Forces Treaty and, 140 New Development Bank and, 485 non-weaponization of outer space and, 379, 385–6, 387–9, 391, 393, 394 on norm-making in IHL, 318 PPWT and, 317, 391 Responsibility to Protect (R2P) and, 212 Russian–Chinese Outline Agreement and Declaration on the Settlement of Unsolved Problems, 526 Russian Empire, territorial disputes with, 526 on self-defence, 251 state immunity in, 166, 167, 168 on UN Security Council, 253–4 WTO and, 405

575

Russo–Japanese War, 303 Ryukyu Islands, 536–7 ‘Sageliness within and kingliness without’, 323, 338 Salamatin, Mikkaela, 46 San Francisco Peace Making Conference, 534, 535 Saudi Arabia Foreign Investment Restriction Index in, 158 Multilateral Cooperation Centre for Development Finance and, 484 state immunity in, 167 WTO and, 405 Sa Zhenbing, 363 Scarborough Shoal, 311, 535 Schmitt, Michael N., 368 School of Salamanca, 55 Schwartz, J.I., 92 SCO. See Shanghai Cooperation Organisation (SCO) Scott, James, 411–12 Scott, Joanne, 187 SCS arbitration. See South China Sea (SCS) arbitration SDR. See Special drawing rights (SDR) Second Sino–Japanese War. See World War II Securities Act, 182, 183–4 Self-defence generally, 205 Caroline doctrine, 208–9 crime of aggression and, 251–2 cyberwarfare and, 213–14, 215–16, 217 ICJ on, 209 Korean War and, 251–2 non-state actors and, 209 preconditions, 208–10 pre-emptive self-defence, 208–9 protection of nationals abroad, 209–10 restrictivist approach to, 203, 205, 208–10, 218 target requirement, 209 time requirement, 208–9 Ukraine War and, 251 under UN Charter, 57, 205, 213, 218 use of force by China in, 206–8 Senegal, state immunity in, 167 Serbia, humanitarian intervention in, 210 Shang, Carrie Shu, 5 Shanghai Cooperation Organisation (SCO) generally, 60 Agreement among the Governments of the SCO Member States on Cooperation in the Field of International Information Security, 316 BRI and, 42 counterterrorism and generally, 7, 222 Convention of the Shanghai Cooperation Organisation against Terrorism, 228, 230, 231 Convention on Combating Extremism, 230, 231 Convention on Combating Terrorism, Separatism and Extremism (Three Forces Convention), 230–1 establishment of, 25 IHL in cyberspace and, 316 members of, 25

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

576

Index

Shanghai Cooperation Organisation (SCO) (cont.) multilateral diplomacy and, 139 Shanghai Five, 25 Shanghai Free Trade Zone, 157 Shanghai International Red Cross Society, 303 Shen, Wei, 5 Shen Zhihua, 546 Sierra Leone, state immunity in, 167 Sikkim, loss of nationhood, 523 Silk Road, 31 Silk Road Economic Belt (SREB), 31, 62 Simla Convention, 529–30 Singapore free trade agreement with, 419, 425 state immunity in, 172 trade with, 400 WTO and, 412 Singapore Convention, 149, 150–1, 511–12 Sino–Denmark Treaty, 361 Sino–Foreign Cooperative Joint Venture Law, 426–7 Sino–Foreign Joint Venture Enterprise Law, 426–7, 452 Sino–French Treaty of Tianjin, 543 Sino–Indian War generally, 12 effects of, 531 Five Principles of Peaceful Coexistence and, 80–1 ICJ and, 499 Soviet Union, effect on relations with, 526 use of force in, 206, 207–8 Sino–Prussia Treaty, 361 Sino–UK Joint Declaration applicability of BITs and, 434 as binding treaty, 141–2, 143–4 fulfilment of obligations as basis for claim of termination, 145 Hong Kong National Security Law and, 140, 141, 145–8 ICJ and, 142–3 obligations under, 141, 142, 145 rights under, 147 signing of, 141 suspension not found, 144–5 termination not found, 145 withdrawal not found, 145 Sino–Vietnamese War, 206, 207, 307 Sirisena, Maithripala, 34 Social contract, rule of law and, 98–9 Socialist market economy, 452, 454 Socialist rule of law, 83–4, 102, 110 SOEs. See State-owned enterprises (SOEs) Soft power, 318 Somalia humanitarian intervention in, 211 piracy and, 516 South Africa New Development Bank and, 485 state immunity in, 168 South Asian Association for Regional Cooperation, 19

South China Sea islands, 522, 541. See also specific island(s) South China Sea (SCS) arbitration generally, 9, 58, 377 declaration of exclusion from arbitration and, 513–14 lawfare and, 514 objections to award, 536 UNCLOS and, 513–14 South Korea BIT with, 428–30 free trade agreement with, 419, 425, 468 ICSID arbitration and, 428–30 Korean War and, 138 as maritime neighbour of China, 375 state immunity in, 169 World War II reparations and, 177–8 WTO and, 411, 412 South–South Cooperation Framework, 354 South–South Cooperation Fund, 61, 347, 354 South Vietnam, claims to South China Sea islands, 534 Sovereignty CSFM, sovereign equality and, 64–5 cyberwarfare and, 215–16 dispute settlement, sovereignty concerns regarding, 518 human rights and, 26 ICC, sovereignty concerns regarding, 246, 247 ICJ and, 64 international criminal law, concerns regarding sovereignty in, 244–8, 257 international human rights law and, 26, 267, 276–7 international institutions, participation in based on sovereign equality, 20–2 law of the sea and, 365–6 norm-making and, 26–7 Soviet Union. See also Russia Afghanistan, war with, 526 Agreement on the Soviet–Chinese Boundary in the Eastern Sector, 527–8 border conflict with, 137–8, 206, 207–8, 526, 527 boundary agreement with, 527–8 break with, 399 Chinese Constitution, 79–80 disarmament and, 393 dissolution of, 523 Intermediate-Range Nuclear Forces Treaty and, 140 Pamir region and, 528 rule of law in, 99 Sino–Indian War, effect of on relations with, 526 state immunity in, 173 territorial disputes with, 543–4 trade, relationship with regarding, 398–9 Space debris, 391 Spain Alliance of Civilizations and, 66 state immunity in, 169 SPC. See Supreme People’s Court (SPC) Special Court for Sierra Leone, 243, 503 Special drawing rights (SDR) generally, 477, 481–2 basket of currencies, 482

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Covid-19 pandemic and, 482–3 export criterion, 482 ‘freely usable currency’ criterion, 482, 483 IMF and, 482–3 renminbi in basket, 482–3 Special Rules on the Labor Protection of Female Employees, 278 Special Sessions on Disarmament, 386 Special Tribunal for Lebanon, 243, 503 Spratly Islands, 365, 367, 533–4, 535–6 Spring and Autumn Period, 302 Sri Lanka BRI and, 34–5, 39–40 Hambantota port development project, 34–5, 39–40 Stahnke, Arthur, 544–5 Stalin, Josef, 79–80 Standing Committee of National People’s Congress Chinese Constitution and, 75, 76–7 domestic courts, international law in, 114 extraterritoriality and, 182 human rights treaties and, 280–1 on state immunity, 176 treaty ratification process and, 136, 137 State Copyright Authority, 464 State Council Chinese Constitution and, 76–7 domestic courts, international law in, 114 treaty ratification process and, 136 White Paper on China–US Trade Friction, 181 State immunity generally, 5–6, 162–3 absolute immunity Chinese approach, 161–2, 171, 173, 174, 176–7, 180 in common law systems, 163–4 as default rule, 170 in developing countries, 168–9 in former communist states, 167–8 historical background, 163–4 in liberal democracies, 169 persistence of, 170 restrictive immunity versus, 161–2 shift to restrictive immunity, 166–7 Chinese approach generally, 170–1, 179–80 absolute immunity, 161–2, 171, 173, 174, 176–7, 180 arbitration and, 173–4 Covid-19 pandemic and, 176–7, 178–9 early PRC period, during, 172–4 expropriation of property and, 173 reciprocity and, 177 reformist PRC period, during, 174–7 in Republic of China, 171–2 restrictive immunity, 174–6 World War II reparations and, 177–8 citizen suits against governments and, 165 colonialism and, 169 commercial activity and, 165–6 consent and, 163 courts, role of, 165, 168 dualism of state and, 165

577

economic considerations, 168 Five Principles of Peaceful Coexistence and, 173 Foreign Sovereign Immunity Law (draft), 162, 175–6, 177 geographical considerations, 163, 169 historical background generally, 163 absolute immunity, 163–4 restrictive immunity, 164–6 ICJ on, 167, 170 military and, 163–4 nature of activity and, 164 reciprocity and, 177 restrictive immunity generally, 161 absolute immunity versus, 161–2 Chinese approach, 174–6 in civil law systems, 164–6 historical background, 164–6 incremental adoption of, 167 political/economic dichotomy and, 167 shift from absolute immunity to, 166–7 UN Charter and, 173 State Oceanic Administration (SOA), 331 State-owned enterprises (SOEs) BRI and, 156 FDI and, 155–6 global climate change law and, 349–50 ICSID arbitration and, 432–4 State Planning Commission, 400–1 Stiglitz, Joseph E., 483–4 Stockholm Conference, 323 Stockholm Declaration, 64 Strauss-Kahn, Dominique, 479 Sundararaman, Shankari, 39 Supplementary Agreement between the People’s Republic of China and the Russian Federation concerning the Eastern Sector of the Russian–Chinese Border, 527–8 Supreme People’s Court (SPC) Adjudication Committee, 118 BRI and, 42, 47 dispute settlement and, 512 domestic courts, international law in generally, 115, 120, 130 guiding cases, 117 interpretation of law, 126–7 judicial documents, 116–17 judicial interpretations, 116 norm-making, 128, 129–30 typical cases, 117–18 Hong Kong and, 146–7 Intellectual Property Tribunal, 467 Interpretation (III) of Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Involving Infringements of IPRs, 467 Several Provisions on Evidence Related to IPRs Civil Cases, 466 on state immunity, 176

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

578

Index

Supreme People’s Procuratorate (SPP), 147 Sustainable development global climate change law and, 343 international investment agreements and, 424 norm-making and, 28–9 Sustainable Development Goals (SDGs), 57, 62–3, 375, 385 Sustainable Finance Working Group, 352 Sweden, BIT with, 423, 508–9 Switzerland, free trade agreement with, 419, 509 Syria ICC referral, 246, 502 Responsibility to Protect (R2P) and, 211–12 Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects and, 385 UN and, 243–4 Taiping Island, 365, 534 Taiwan GATT and, 402 ‘One China’ policy and, 500 Regulation on the Administration of Maps and, 185, 186 relationship with China, 26 secessionist threat in, 500 territorial sea and, 367 use of force and, 205 WHO and, 288 World War II reparations and, 177–8 Tajikistan boundary agreement with, 528 diplomatic agreements with, 138–9 Takeshima, 375 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 217, 318–19 Tamanaha, Brian, 96, 98 Tanzania, BIT with, 442 Tariffs, 403, 407, 419–21 Tate, Jack, 166 Territorial disputes. See also specific country or agreement generally, 12, 522–3, 546–7 bilateral negotiation, preference for, 541 boundary disputes distinguished, 522 Cultural Revolution, impact of, 526 ‘customary line’ and, 544–5 double standard, China accused of, 545 Five Principles of Peaceful Coexistence and, 523 flexibility in, 545–6 historical and archival evidence, problems involving, 541–2 IJC and, 500 joint development and, 542 multiple step negotiation, 542 ‘peaceful rise’ policy and, 547 political harmony and, 546 pragmatism in, 545–6 South China Sea arbitration (See South China Sea (SCS) arbitration)

South China Sea islands, 522, 541 (See also specific island(s)) third-party processes, reluctance regarding, 541 ‘unequal treaties’ and, 542–4 weiwen (stability) and, 547 Territorial sea Korean War and, 367 in PRC period, 367–9 in Qing dynasty, 362–3 in Republic of China, 364 Taiwan and, 367 UNCLOS and, 368–9 Vietnam and, 373 Terrorism. See Counterterrorism Thailand IMF and, 477 self-defence and, 210 Thatcher, Margaret, 141 Theory on the Relational Normativity of International Law (TORNIL) Asian epistemological framework and, 381–2, 383 individual versus relational thought processes, 382 negotiation and, 382 non-weaponization of outer space and generally, 380–1, 384–5, 394 developed countries and, 389–90, 392 developing countries and, 385, 387–8 norm-making and, 393–4 PPWT and, 385 relational governance and, 383 strengths of, 384 trust, importance of, 382–4 Western epistemological framework and, 381–2, 383 Third Generation Partnership Project (3GPP), 319 13th Five-Year Plan (2016–20), 348 Three Rules of Discipline and Eight Points for Attention, 306 Tiananmen Square Incident, 504–5 Tianxia (all-under-heaven) CSFM and, 56 international rule of law and, 105 Tibet ‘One China’ policy and, 500 secessionist threat in, 500 universal jurisdiction and, 503 Timor-Leste humanitarian intervention in, 211 state immunity in, 167 Togo, state immunity in, 168 Tokyo Tribunal. See International Military Tribunal for the Far East (IMTFE) (Tokyo Tribunal) Tong, Hui, 397 Tong Zhiguang, 403 TORNIL. See Theory on the Relational Normativity of International Law (TORNIL) Torture Convention, 122, 269 Trade law. See International trade law Trademark Law administrative enforcement, 463–4

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index damages under, 466 domestic courts, international law in, 126–7 enforcement of, 455 instrumental approach, 452, 462 Trademark Office, 127 Trade war with United States, 419–21, 422, 507 Transnational legal ordering (TLO), 135 Trans-Pacific Partnership (TPP), 91, 157, 417–18 Treaty of Aigun, 526, 543–4 Treaty of Bulensky, 526, 543–4 Treaty of Chushul, 530 Treaty of Nanjing, 170, 360, 523 Treaty of Nerchinsk, 526, 543–4 Treaty of Peking, 526, 543–4 Treaty of St Petersburg, 526, 543–4 Treaty of San Francisco, 539–40 Treaty of Shimonoseki, 523, 540 Treaty of Spitzbergen, 364 Treaty of Svalbard, 364 Treaty of Versailles, 547 Treaty of Westphalia, 82 Treaty on Open Skies, 59 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), 499 Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT) (draft) generally, 317, 380 anti-satellite weapons, effect of, 394 developing countries and, 385–6 development, relation to, 386–8 dispute settlement and, 516 jus ad bellum and, 391–2 lack of verification mechanism, 391 opposition to, 393 space debris and, 391 Theory on the Relational Normativity of International Law and, 385 use of force and, 391 Treaty on the Prohibition of Nuclear Weapons, 59 Treaty practice. See also specific Treaty generally, 5, 133, 136, 159–60 BITs (See Bilateral investment treaties (BITs)) consent theories and, 134 domestic courts, international law in application of international law, 121–4 interpretation of, 126 dual-track strategy and, 133 economic security and, 139 FDI and (See Foreign direct investment (FDI)) free trade zones generally, 156 BITs and, 158 Negative List, 157 IHL and, 308–9 international intellectual property law, implementation of treaties (See International intellectual property law) international investment agreements (See International investment agreements (IIAs))

579

invalidity of treaties, 144 lawfare, 135–6, 160 legitimacy theories and, 134–5 military alliances, rejection of, 139 multilateral diplomacy in, 137–9 multilateral investment treaties (MILs), 509 private international law treaties generally, 136, 148 alternative dispute resolution, 149–51 jurisdiction, 149 recognition of foreign judgments, 151 ratification process, 136–7 realist approach, 135–6 Sino–UK Joint Declaration (See Sino–UK Joint Declaration) suspension of treaties, 144 termination of treaties, 144 transnational legal ordering and, 135 ‘unequal treaties’ (See ‘Unequal treaties’) Triepel, H., 75 TRIPS Agreement. See Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) Truman, Harry, 206, 358–9, 369 Trump, Donald generally, 91 Arms Trade Treaty and, 313 Covid-19 pandemic and, 294, 297 extraterritoriality and, 181 Paris Agreement and, 63 protectionism and, 520 tariffs and, 419 trade and, 454, 458 trade war with China and, 419 withdrawal from international order and, 49–50 WTO and, 67, 415–16, 507 Truong Sa Archipelago, 534 Tuansha Islands, 365 Tully, James, 89 Turkey, Alliance of Civilizations and, 66 12th Five-Year Plan (2011–15), 348 2030 Agenda for Sustainable Development, 61, 62–3, 345 UDHR. See Universal Declaration of Human Rights (UDHR) Uganda, Entebbe Incident, 210 Ukraine ICC and, 253 state immunity in, 167 Ukraine War crime of aggression and, 251, 254 crimes against humanity and, 253–4 international rule of law and, 106 non-weaponization of outer space, potential effect on, 381, 394 UN Security Council and, 251 war crimes and, 253–4 Ulfstein, G., 520–1

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

580

Index

UN Charter generally, 33 Chinese Constitution and, 82 collective security under, 57 cyberwarfare and, 214, 215, 216 international courts and tribunals and, 503 peaceful settlement of disputes under, 58 self-defence under, 57, 205, 213, 218 state immunity and, 173 use of force under, 203, 205, 218, 391 UNCLOS. See Convention on the Law of the Sea (UNCLOS) ‘Unequal treaties’ extraterritoriality and, 181 intellectual property protection and, 455–6 international investment law and, 423 law of the sea and, 360, 361, 362, 378 sovereignty and, 64 state immunity and, 170 territorial disputes and, 542–4 trade and, 399 unilateral termination of, 498 UNFCCC. See Framework Convention on Climate Change (UNFCCC) Union of International Associations, 16 United Arab Emirates, New Development Bank and, 485 United Kingdom BIT with, 424 China–UK Joint Statement on Climate Change, 344 China–UK Renewed Treaty on Commerce, 455–6 counterterrorism in, 229 on cyberwarfare, 213 Diplomatic Privileges Act 1708, 163 HRC and, 273, 274 ICJ and, 142 non-weaponization of outer space and, 389, 392 scientific cooperation agreements with, 387 self-defence and, 208–10 Semi-Annual Reports on Hong Kong, 140 Sino–UK Joint Declaration (See Sino–UK Joint Declaration) State Immunity Act, 175 state immunity in, 164, 166, 169, 175 war crimes and, 253 WTO and, 412 United Nations. See also specific Convention or organization Alliance of Civilizations, 66 Charter (See UN Charter) Climate Action Summit, 342 Climate Ambitions Summit, 342 Commission for Social Development, 61 Commission on International Trade Law (UNCITRAL), 443, 445–6, 512 Conference on the Human Environment (Stockholm Conference), 323 Convention on Contracts for the International Sale of Goods (CISG), 76–7, 120, 129 counterterrorism and, 229, 230, 231, 233–5, 236, 237 crime of aggression and, 250–1

criticism of, 111 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, 52, 205 Declaration on the Right to Development, 45–6 Development Programme (UNDP), 17, 88 Economic and Social Council (ECOSOC), 273, 286–7 Educational, Scientific, and Cultural Organization (UNESCO), 66, 268 Environmental Programme (UNEP), 64 First Committee on Disarmament, 379 Food and Agriculture Organization (FAO), 332 Framework Convention on Climate Change (See Framework Convention on Climate Change (UNFCCC)) General Assembly, China in, 50, 57 Global Counter-Terrorism Strategy, 231, 233–5, 236, 237 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (GGE), 212–13, 316, 317, 516 High-level Political Forum on Sustainable Development, 16 Human Rights Council (See Human Rights Council (HRC)) Industrial Development Organization (UNIDO), 41–2 Informal Consultation Process on Ocean Affairs and the Law of the Sea, 370–1 international law and, 102–3 International Law Commission (ILC) Draft Articles on Responsibility of States for Intentionally Wrongful Acts, 290, 291 on fragmentation of international law, 44 international human rights law and, 267 international rule of law and, 106 International Law Committee, 242 International Maritime Organization (IMO), 125, 372 international rule of law and, 104, 106, 110 membership of China in, 15, 16, 17, 18–19, 29, 137, 366, 402 Millennium Development Goals (MDGs), 61 ‘No First Placement of Weapons in Space’ Resolution, 388–9, 393 non-weaponization of outer space and, 386–7 Ocean Decade, 375 Office for Outer Space Affairs (UNOOSA), 387 Open-Ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security (OEWG), 214, 316 Plan of Action to Prevent Violent Extremism, 233–4, 235, 237 Prevention of an Arms Race in Outer Space (PAROS) and, 385, 388–9 Seabed Commission, 366–7, 370 Security Council (See UN Security Council) Space Debris Mitigation Guidelines, 391 Special Rapporteur on Freedom of Religion and Belief, 235

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms, 228, 234, 235 Sustainable Development Goals (SDGs), 57, 62–3, 375, 385 Universal Declaration of Human Rights (See Universal Declaration of Human Rights (UDHR)) War Crimes Commission, 240 Working Group on Arbitrary Detention, 235 United States Antarctica, research stations in, 331 anti-satellite weapons and, 316, 389–91 Arms Trade Treaty and, 313 Asian Infrastructure Investment Bank and, 476, 480 biological weapons and, 307 BIT with, 157, 419, 425 Blue Dot Network and, 38 Central Intelligence Agency, 223 China–US Economic and Trade Agreement (2020) (See China–US Economic and Trade Agreement (2020)) China–US IPRs Agreement, 457, 458, 462 China–US IPRs Memorandum of Understanding, 457, 458, 462 China–US Joint Statement on Climate Change, 344 China–US Memorandum of Understanding on the Protection of Intellectual Property, 121, 452 China–US Renewed Treaty on Commerce and Navigation, 455–6 China–US Trade Agreement (1979) (See China–US Trade Agreement (1979)) Chinese Exclusion Act of 1882, 171 on Chinese naval activities, 310–11 Chinese–US Double Taxation Agreement, 123 Constitution, 491 continental shelf and, 358–9 counterterrorism and, 229 Covid-19 pandemic and, 294, 297 crime of aggression and, 253 criticism of Chinese counterterrorism policy, 219–20 on cyberwarfare, 213 Declaration on the Right to Development and, 46 Diaoyu/Senkaku Islands and, 537 diplomatic relations with China, 457 disarmament and, 393 extraterritoriality and, 181, 188 FDI, criticism of, 158–9 Foreign Investment Restriction Index in, 158 Foreign Sovereign Immunities Act, 166, 176–7 global climate change law, cooperation with China, 353–4 HRC and, 273, 274 on human rights, 266, 267–8 ICC and, 255–6, 502 IMF and, 480, 484 implied powers doctrine and, 491 Intermediate-Range Nuclear Forces Treaty and, 140 international intellectual property law and criticism of China regarding, 450 negotiations with China, 457–8 international rule of law and, 104–5

581

international trade law and, 422 Korean War and, 138, 367 marine genetic resources and, 333 merger control in, 194 National Intelligence Council, 291–2 National Space Policy, 392, 393 neo-liberalism in, 104 9/11 attacks, 208, 221, 222 non-weaponization of outer space and, 385, 389, 392–3 normalization of relations with, 400 Paris Agreement and, 63 PPWT and, 317, 390, 391 Prevention of an Arms Race in Outer Space (PAROS) and, 388–9 Priority Foreign Countries (PFC), 457–8 protectionist measures in, 412 rules-based international order and, 324 Section 301, 421 self-defence and, 208–10 Space Force, 393 state immunity in generally, 171–2 absolute immunity, 166 China, actions involving, 174, 176–7, 178–9 Covid-19 and, 176–7, 178–9 historical evolution of, 163–4 restrictive immunity, 166, 167 Tate Letter, 166 Trade Act of 1974, 457–8 Trade Representative, 158, 421, 457–8, 473–4 trade war with China, 419–21, 422, 507 trade with, 400 Trans-Pacific Partnership and, 157, 417–18 US–China Joint Statement Addressing the Climate Crisis, 353 vaccines and, 299 Wassenaar Arrangement and, 313–14 withdrawal from international order by, 49–50 World Bank and, 484 WTO and actions brought against China, 471–2 actions brought by China against others, 411 Appellate Body, 412, 422 Mini-Ministerial Conference, 413 non-market economy, China treated as, 507 relations with China regarding, 414–17 threat to withdraw from, 507 Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU), 415 Universal Copyright Convention, 452 Universal Declaration of Human Rights (UDHR) generally, 262–3, 268 China and, 504 Chinese Constitution and, 85, 90 counterterrorism and, 228 domestic courts, international law in, 122 health and, 286 Hong Kong National Security Law and, 141 National Human Rights Action Plan and, 282 systemic nature of human rights, 264

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

582

Index

Universal jurisdiction, 503 UN Security Council generally, 6, 203 China as permanent member, 19, 256 counterterrorism and (See Counterterrorism) Covid-19 pandemic and, 295–6 crime of aggression and, 250, 254 cyberwarfare and, 217, 218 domestic courts, international law in, 125 humanitarian intervention and, 211 ICJ, permanent members and, 498 international criminal law and, 239 International Criminal Tribunal for Rwanda (ICTR), 241, 502, 503 International Criminal Tribunal for the former Yugoslavia (ICTY), 241–2, 249, 502, 503 Korean War and, 206–7 piracy and, 516 Responsibility to Protect (R2P) and, 211–12, 245 Ukraine War and, 251 use of force and, 218 U Nu, 545 Uruguay, New Development Bank and, 485 Use of force cyberwarfare (See Cyberwarfare) defensive posture of China regarding, 204 humanitarian intervention generally, 57, 204–5 Chinese position on, 210–11, 212, 245 jus ad bellum (See Jus ad bellum) jus cogens, prohibition on as, 203 PPWT and, 391 Responsibility to Protect (R2P) generally, 57, 204–5 Chinese position on, 210, 211–12, 245 UN Security Council and, 211–12, 245 self-defence (See Self-defence) Taiwan and, 205 under UN Charter, 203, 205, 218, 391 UN Security Council and, 218 USNS Impeccable, 311 USSR. See Soviet Union Uyghurs human rights and, 235–6, 277 religious extremism and, 236 terrorist violence by, 220–2, 224–5 Uyghur Tribunal, 248 Uzbekistan, BIT with, 442 Vandevelde, Kenneth, 425 Vanhullebusch, Matthias, 9–10 VCLT. See Vienna Convention on the Law of Treaties (VCLT) Verdier, P.-H., 73 Versteeg, Mila, 73 Vestergaard, Jakob, 481 Vienna Convention on Diplomatic Relations, 124, 173 Vienna Convention on Succession of States in Respect of Treaties (VCST), 435–6 Vienna Convention on the Law of Treaties (VCLT)

generally, 55 BITs and, 435, 440–1 BRI and, 41, 44 domestic courts, international law in, 117, 126 implied powers doctrine and, 492 treaty defined, 141 Vienna Declaration and Programme of Action, 85, 265, 282 Vietnam Agreement of Maritime Boundary Delimitation of Beibu Gulf, 376 Agreement on Basic Principles to Settle Boundary and Territorial Issues between the People’s Republic of China and the Socialist Republic of Vietnam, 528 border conflict with, 526, 528 boundary agreement with, 528, 542 Joint Statement on Further Strengthening and Deepening the China–Vietnam Comprehensive Strategic Cooperative Partnership, 376 maritime dispute settlement and, 376 as maritime neighbour of China, 375 PPWT and, 385 South China Sea islands, claims to, 534–5 state immunity in, 169 territorial sea and, 373 Treaty on Land Boundary, 529 WTO and, 407 Vitoria, Francisco de, 55 Voltaire, 90 von Rehfues, Guido, 361–2 Wade, Robert H., 481 Waldheim, Kurt, 229 Wang, Chao, 4 Wang, Heng, 43 Wang, Jiangyu, 10, 410 Wang, Yifei, 7 Wang Yi, 222–3, 476, 546 War crimes in customary international law, 249–50 IHL and, 310 in international criminal law generally, 242–3, 249, 253 normative concerns regarding, 249 Ukraine War and, 253–4 Warring States Period, 302 Warsaw Convention, 126 Warsaw Pact, 137 Washington, George, 491 Washington Consensus, 98–9, 485 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (WA), 313–14 Weber, Max, 53 Webster, Daniel, 208–9 Webster, Timothy, 5–6, 411 Weeramantry, C. G., 492 Wendt, Alexander, 94 Wen Jiabao, 390, 418 Western Europe and Others Group (WEOG), 389

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index West Germany, normalization of relations with, 400 Wheaton, Henry, 361 White Paper on China’s Policies and Actions on Climate Change, 346 White Paper on the WTO, 411 Whitsun Reef, 311 WHO. See World Health Organization (WHO) Wholly Foreign-Owned Enterprises Law, 426–7 Wilkerson, Lawrence, 223 Wilkinson, Rorden, 411–12 Wolfe, Robert, 415 Wolff, Lutz-Christian, 41 Woody Island, 365, 534 Working Group on Enhanced Climate Action for the 2020s, 353–4 Working Paper on General Principles in International Maritime Areas, 370 Working Paper on Sea Areas Under State Jurisdiction, 367 World Bank generally, 27 BRI and, 40 China and, 17, 476 criticism of, 477 Debt Sustainability Framework for Low Income Countries, 489 engagement of China with, 239 environmental, social and governance (ESG) approach, lack of, 487 international financial law and, 11, 494 reform measures, 479 revolutionary approach to reform in, 479 WHO and, 300 World Economic Forum, 28 World Health Organization (WHO) generally, 8, 284 China and, 287, 288, 297 Constitution, 284, 285, 287, 292, 294–5, 300 cooperation and, 294–5 Covid-19 pandemic, inability to address, 294–6 Director General, 297 establishment of, 285 Executive Board, 285 G20 and, 300 human rights and, 287 IMF and, 300 Intergovernmental Negotiating Body (INB), 300 International Classification of Diseases and Related Health Problems 11th Revision, 288 international financial institutions and, 300 International Health Regulations generally, 284 adoption of, 285 collaboration and, 295 ICJ and, 292 innovations in, 286 obligation of notification, 289–90 public health emergencies of international concern (PHEIC), 289–90, 297, 298 purpose, 286

583

leadership of, 297 pandemic prevention, preparedness, and response, 284 reform of generally, 294 Covid-19 pandemic, inability to address, 294–6 intellectual property (IP) issues, 299 lead role of, 298 treaty on pandemics, 300 vaccines and, 298–9 Secretariat, 285 TRIPS Agreement and, 299 WIPO and, 299 World Bank and, 300 World Health Assembly, 285, 292 WTO and, 299 World Heritage Convention, 327 World Intellectual Property Organization (WIPO) accession of China, 451, 458 Beijing Treaty on Audiovisual Performances, 459 Copyright Treaty, 459 Performances and Phonograms Treaty, 459 Phonograms Convention, 452 WHO and, 299 World Internet Conference (WIC), 316 World Trade Organization (WTO) generally, 397–8 accession of China, 404–6, 421, 454, 458–9 Aggregate Measurement of Support (AMS), 416 Agreement of Government Procurement (GPA), 92 Agreement on Agriculture, 416 Agreement on Safeguards, 408 Agreement on Subsidies and Countervailing Measures (SCM Agreement), 408, 414 Appellate Body (AB), 28, 67, 412, 415, 422, 507, 508 BRI and, 510 China Protocol, 406–7, 408, 409–10 Chinese Constitution and, 79 discriminatory rules generally, 408 anti-dumping, 408 countervailing measures, 408 safeguards, 408 subsidies, 408 Dispute Settlement Body (DSB), 28, 410, 411, 420–1, 458, 506 dispute settlement mechanism, China and generally, 27, 410–12 cases brought against China, 458, 471–3 CSFM and, 58 domestic legislation and, 506 EU, cases brought by, 472–3 historical evolution of, 27, 28, 29 ICJ compared, 501 negotiation, 506 rising status of China, 506 rule of law and, 110 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), 469–70 United States, cases brought by, 471–2 Doha Round, 412–14, 421–2

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

584

Index

World Trade Organization (WTO) (cont.) domestic courts, international law in, 116, 118–19, 125, 126–7 engagement of China with, 239 EU–China Comprehensive Agreement on Investment and, 424–5 FDI, impact of membership on, 153 GATT, replacing, 405 global climate change law and, 353 Information Technology Agreement (ITA), 407, 413 international investment law and, 447, 448 Joint Statement on Investment Facilitation for Development (IFD), 447 market access commitments goods, 407 services, 407–8 Marrakesh Agreement, 458–9 membership of China in, 17, 19, 100, 107, 152 Mini-Ministerial Conference, 413 multi-party interim appeal arrangement (MPIA), 28, 67, 412, 507, 510 national treatment and, 406 as negotiating forum, 27–8 new issues, 416–17 non-market economy, China treated as, 406, 408, 507 norm-making and, 412–14 reform of, 414–16, 508 rule of law and generally, 409 judicial review, 409–10 transparency, 409 uniformity, 409 tariffs and, 407, 420–1 TRIPS Agreement (See Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)) Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU), 415, 420–1, 469–70 WHO and, 299 ‘WTO-plus’ obligations, 406–7 World War I, prisoners of war in, 303–4 World War II generally, 171, 265 IHL in, 304–6 international criminal law and, 240–1 Japanese occupation of islands during, 365 reparations, state immunity and, 177–8 Tokyo Tribunal, 238, 240–1, 252–3, 502 Wu Nan-Ju, 308 Wu Xueqian, 142 Xiang, Xin, 4 Xiang, Zhejun, 240 Xiao, Yongping, 6 Xi Jinping generally, 1 Asian Infrastructure Investment Bank and, 87 on biodiversity conservation, 329 BRI and, 3, 31, 35, 49, 87, 155, 331

Chinese Constitution and, 4, 74, 86 counterterrorism and, 222 CSFM and generally, 4, 31, 35, 49, 51, 53, 54 common security and, 60 cultural dialogue and, 65–6 ecological approach, 62–3 interdependence and, 55, 56 multilateralism and, 66 sovereign equality and, 64 win–win approach, 68 world peace and, 57, 59 ecological civilization and, 326 expanded participation in international relations and, 87 extraterritoriality and, 6, 182 on free trade agreements, 418 global climate change law and, 347 on global health governance, 296–7 global ocean governance and, 331 on human rights, 269, 270 on IHL, 315, 319 on integration into global governance, 519–20 international investment law and, 444 on Korean War, 207 New Era, 87 on non-weaponization of outer space, 387 on nuclear weapons, 59 ‘One Belt and One Road’ and, 155 Paris Agreement and, 63 rule of law and, 101 Xinjiang Uyghur Autonomous Region (XUAR) counterterrorism in generally, 219–20 crimes against humanity and, 247 criticism of, 228 human rights and, 246–8 ICC and, 247–8 Implementing Measures for the Counter-Terrorism Law, 227, 235, 236 international criminal law and, 246–8 Regulation on De-Radicalisation, 227, 236 Vocational Education and Training (VET) programme, 235–6, 246–8 ‘One China’ policy and, 500 religious extremism in, 236 secessionist threat in, 500 terrorist violence in, 220–2, 224–5 US exploitation of situation, 223 Xisha Islands, 365, 366, 367, 533–5 XUAR. See Xinjiang Uyghur Autonomous Region (XUAR) Xue Hanqin, 76 Xu Hong, 54, 143–4 Xu Jixiang, 365 Xu Xiaodi, 390 Yasuaki, Onuma, 66 Yee, Sienho, 89 Yemen

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

Index BIT with, 432–3 ICSID arbitration and, 432–3 Ying, Yaohui, 6–7 Yi Xin, 361–2 Yongxing Island, 365, 534 Zhang, Binxin, 8 Zhang, Haiwen, 9 Zhang, Sheng, 10–11 Zhang, Xinjun, 12 Zhang Jizhi, 363 Zhang Jun, 313 Zhao, Yun, 3 Zhao Lijian, 179 Zhao Ziyang, 141 Zhenbao (Damanskii) Island Incident, 206, 207–8 Zhongsha Islands, 365, 367, 533, 534, 535

Zhou, Weihuan, 411 Zhou Enlai Chinese Constitution and, 81 GATT and, 402 international trade law and, 400 on Korean War, 206–7 Nepal and, 524 North Korea and, 138, 525 on South China Sea islands, 534, 535 state immunity and, 172–3 on territorial disputes, 523, 545 Zhou Gengsheng, 118 Zhu, Dan, 7, 502 Zhu, Lei, 6 Zhuang Zi, 323 Zimbabwe, PPWT and, 385 Zoellick, Robert, 476 ZTE, 415–16

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press

585

https://doi.org/10.1017/9781009041133.028 Published online by Cambridge University Press