Zihang Liu How the Chinese view International Law

With the precarious situation unfolding in the South China Sea and the Diaoyu/Senkaku Islands over the past several months, the world’s attention has been drawn to China’s pivotal role of maintaining stability in the Asia-Pacific region. As China’s economic and political influence has grown in the past few decades, scholars have been analyzing and evaluating China’s approach to global politics, particularly international law. In light of these continuing international disputes, it is important to understand contemporary international relations, specifically in relation to China, a significant yet relatively new player in the existing American-led international order.

In the three decades immediately following the establishment of the state’s communist regime (the Peoples’ Republic of China or PRC) in 1949, the Chinese government adopted a policy of “starting anew” (“另起炉灶” and “打扫干净屋子再请客”). This strategy amounted to the elimination of all traces of imperial influence over China with an emphasis on the sovereignty of an independent China, and the concordant development of the Five Principles of Peaceful Coexistence, which were enacted in 1954.

The Five Principles were based, in large part, upon the core values of the United Nations Charter, which hold state sovereignty in the highest regard. Concurrent to their development, China became cautious about numerous international laws, which the PRC perceived as imperial weapons serving the agendas of Western powers. During the Cold War era, the Western Bloc was wary of the East, as evidenced by its initial reluctance to admit the PRC into the international community. It was not until 1971 that China regained its seat at the United Nations.

The PRC’s 1978 Reform and Open-Up Policy marked a new era of China’s active participation in international lawmaking processes, which continues to the present. Since 1978, China has become heavily involved in international affairs, gaining admittance to over three hundred international organizations, including the prominent WTO and UNCLOS.

Professor He Zhipeng provides an analysis of China’s approach to international law in his article, “The Chinese Notion of International Law” (“国际法的中国观念”). He considers China’s approach to enacting and developing international laws as demonstrative of China’s overall foreign policy. Drawing upon theories of international relations, he refutes liberalism, a theory which dismisses the power politics of international relations by emphasizing mutually beneficial state cooperation, devaluing the role of government, and affirming the influence of international NGOs.

Instead, he promotes realism as the most beneficial philosophy to guide China’s involvement in the international lawmaking process. In particular, he sees this policy as effectively complementing the current condition of the international community, which largely exists as an “anarchy state.” Under the policy of realism, nations should continuously play a zero-sum game to maximize their own state interests.

He bemoans the fragmentary nature of international jurisprudence—that is, he argues that (a) there exists no clear system of law under which a constitution is deemed absolute, and (b) complementary laws fail to form an accountable and efficient legal system. Furthermore, he finds the inefficiency of certain international institutions, which must constantly negotiate greater powers’ political considerations, another lamentable reality that renders international law incompetent and the global community anarchistic.

Thus, while lauding the achievements accomplished thus far within the field of international law, he simultaneously warns against a blind belief in its efficacy. He reminds readers of the realities of power politics and the significance of state sovereignty.

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He suggests that China should, as it has often done in the past, follow the tenets of realism, under which sovereignty is valued and states pursue their own interests as often as possible. Thus, when applying international laws or participating in the lawmaking process, he argues that the furtherance of national interests is the ultimate purpose for which China should strive. He additionally contends that international laws generally fail to function as consistent rules according to which states must adjust their behavior or accept punishment for transgressions. He asserts that international law has instead become the constantly evolving product of state interactions. Essentially, international law has a rather dynamic nature that constantly alters as state’s practices change.

Therefore, international law does not offer a system of rule that governs nations but rather a system of compromises, agreements, and treaties that constantly adapt to national demands and interests. The legality of the nine-dash line demarcating sovereignty in the South China Sea, for instance, is not legitimized by existing international law; rather, it is empowered via state recognition and practices. As a result, he asserts that the nine-dash line will likely become a new norm of international law as long as it continues to be customarily accepted by states in the region.

This method of interpreting international law renders it flexible enough to be utilized as a tool forwarding Chinese state interests on the international stage. It is furthermore able to accommodate China’s evolving state interests, such as the state’s sovereign claim over the South China Sea.

Many in the West strive to enshrine the theory of liberalism and construct an international system wherein democratic states choose to avoid military aggression, while instead interacting, cooperating, and peacefully competing according to set principles, adopting a Lockean approach.

However, as China’s past practices have shown, and as Professor He has demonstrated, China continues to hold state sovereignty and state interests in esteem. In contrast to the West, China essentially considers the international community in a manner more similar to Thomas Hobbes’ concept of the Leviathan, whereby one must act for oneself and by oneself. For China, therefore, national interests and sovereignty are supreme, while international law can be manipulated in order to serve the state’s needs.

This conflict in values thus creates a dilemma between two distinct sets of ambitions. While China and the West have generally worked concomitantly to develop international laws, their agendas occasionally diverge on critical issues. For instance, while the United States, Japan, and other states adhered to customary international law by upholding Freedom of Navigation Operations (FONOPS) with regard to the South China Sea, China, as a party to UNCLOS, they fiercely fought for its sovereignty over the territory.

Alternatively, China’s support of the “Responsibility to Protect” (R2P) has led to great success in terms of cooperation and reconciliation between China and the West. R2P provides a framework under which the UN Security Council can sanction the use of force in order to prevent atrocities and human rights violations in independent states. Thus far, such unanimity has already significantly supported stabilization efforts in, for example, Côte d’Ivoire.

As China’s history has shown, however, its leadership often values state sovereignty and national interests above all else. Therefore, rather than maintaining universal values, China remains more concerned with its own interests. Nevertheless, by understanding the approach that China takes in international relations and global lawmaking, it is feasible to work with the nation to develop a more cooperative international community. Thus, in the future, we may see more coordinated achievements resembling the enactment of R2P if Western states take note of China’s international relations philosophy.