Sovereignty is dear to the People’s Republic of China. We international lawyers all know that. But we may have only a vague sense of why; that is, why Chinese jurists hold close to the concept of sovereignty. Nor are we likely to know what China thinks about other aspects of international law. I’ve just come across a few essays which provide some answers.
Each was published in the Chinese Journal of International Law by Dr. Xue Hanqin (right), on whose American Society of International Law intervention (video now available here) I recently posted. Xue wrote the articles while she was China’s ambassador to the Netherlands and, in 2 cases, a member of the International Law Commission. Today, she’s a judge on the International Court of Justice. Her status makes her take on China and international law well worth a read.
In “China’s Open Policy and International Law” (2005), and again in “Chinese Observations on International Law” (2007), Xue posited as the structural foundation the Five Principles of Peaceful Coexistence, agreed upon in 1954 by Burma/Myanmar, China, India, and Indonesia. As she described them, the 5 are:
- “mutual respect of sovereignty and territorial integrity”;
- “mutual non-aggression”;
- “non-intervention in international affairs”;
- “equality and mutual benefit”; and
Xue wrote that China values sovereignty from the perspective of its history – a history marked by decades of invasion and occupation, which came to an end only in the mid-20th C. “I must say frankly,” she wrote in 2005:
‘[T]he first introduction of international law into China from the western world in the late 19th century left the Chinese people with little fond memories, as it was done through cannons and warships.’
(Regarding this history, she referred to the 1990 Hague Academy lectures by the Professor Wang Tieya.) In her 2007 article, Xue situated China within the “viewpoint of the developing countries,” that “international law is based on a foreign legacy.” By this view, the U.N. Charter won acceptance because it enshrined “certain values” that postcolonial states “had been fighting for: sovereignty, equality, democracy, and self-determination.” She argued that the international legal system depends on “diversity of autonomous political communities,” and would falter if all members were forced to adhere to “one single social model.” She expressed concern lest the concept of responsibility to protect become a vehicle for usurping “multilateral mechanisms” for determining whether states may intervene against another. And even as she repeated China’s statements in support of “a just, impartial and effective” International Criminal Court, Xue argued, in the name of sovereignty, against ICC exercise of its Article 12(2) nonconsensual jurisdiction. (My own exploration of that provision is here.)
The 2 essays, along with “International Treaties in the Chinese Domestic Legal System” (2009), which Xue coauthored with Jin Qian, demonstrate the extent to which China has embraced such cooperation. (No doubt this theme is further developed in Xue’s own Hague Academy lecture, published here in 2012.) The country has entered more than 300 multilateral treaties, the vast majority since 1979. And through a complex process that is neither entirely monist nor entirely dualist, it has implemented treaty obligations domestically – with respect to its World Trade Organization accession alone, China altered nearly 3,000 domestic laws and regulations.
China’s human rights record is, of course, an easy target for outside criticism. Yet Xue’s articles indicate that the framework for compliance is there: China has ratified thematic human rights treaties, such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as comprehensive treaties like the International Covenant on Economic, Social, and Cultural Rights – none of which the United States has ratified. (The countries switched sides on the International Covenant on Civil and Political Rights, with the United States a party and China a nonparty.) Xue further emphasized a 2005 amendment to China’s Constitution, by which Article 33 now provides:
‘The state respects and guarantees human rights.’
Xue acknowledged the growing participation of nongovernmental organizations and other nonstate actors. Indeed, she pointed out that she herself once introduced delegates at a U.N. conference on desertification “our peasants,” whom she’d brought as “grass-roots representatives” of the problem. Yet Xue questioned whether their presence had “changed the basis of decision-making”; in her view, “national interests remain a determining factor for international cooperation.”
On these and other critical topics – law in the South China Sea, for instance, or climate change – reading these 3 essays will help the Westerner contemplate the international legal system from the standpoint of the world’s most populous state.