China and Sovereignty Under International Law

by Julian Ku

As regular readers of this blog might have noticed, I have become more and more interested China and its engagement with international law issues.   Last year, I proposed to the ASIL Planning Committee that we put together a panel of leading U.S. China law scholars.  But the ASIL organizers pushed back and put together a much more diverse group than I had suggested, which included a U.S. China scholar like Jacques Delisle from Penn, but also Chinese international law scholars like Bingbing Jia of Tsinghua and then added a nice dose of on-the-ground policy analysis from Stephanie Kleine-Ahlbrandt of the International Crisis Group.  It ended up being a terrific mix of style, topics, and expertise.  We didn’t rate a “livestream”, but I wanted to share a few thoughts for our readers on what I think is an important topic. I am not going to attempt to summarize their comments, but simply offer some of my reactions to their key points.

The idea of the panel (at least to me) was to consider whether the “rise of China” in global affairs has changed much about how China interacts with international law. In my crude formulation, the question is now less about what “international law does to China” but more what “China will do to international law.”

Both of the lawyer-panelists (Jia and Delisle) focused on “sovereignty” as the most important principle guiding China’s understanding and engagement with international law.   Indeed, Professor Jia went so far as to suggest that sovereignty’s importance as a fundamental principle of international law is underappreciated outside of China.  To most Chinese scholars, he hinted, state sovereignty (which necessarily includes the concept of sovereign equality and independence) is perhaps the pre-eminent principle of international law.  Indeed, he maintained that this understanding is fully consistent with the language and structure of the U.N. Charter.

Professor Delisle did not contest this pre-eminence of sovereignty in Chinese thinking, and suggested that China’s concept of territorial sovereignty remains hard and uncompromising.  This rigid adherence to an absolutist conception of state sovereignty in territorial matters makes it difficult for China to compromise in its many territorial and maritime disputes.  But he did suggest that China has been far less rigid in non-territorial conceptions of sovereignty, and hence, it has joined several international human rights conventions that (at least in theory) limit its absolute sovereignty over the treatment of its citizens.  Of course, the actual adherence to these treaty regimes remains highly doubtful, but the point is that, as a conceptual matter, China does not reject the notion that a nation’s sovereignty precludes adhering to human rights treaties.

A realist scholar would find little value in this analysis, since such a scholar would argue that China’s conception of sovereignty is largely instrumental and is not even consistent in its treatment of other nations.  Some flavor of this appeared in Stephanie Kleine-Ahlbrandt’s policy analysis of what she described as China’s newly assertive and even aggressive foreign policy.  In her description, China’s foreign policy in recent years is characterized (in her view) by hard-eyed realism with barely any lip service to international law, and certainly no willingness to accept international adjudication.

Indeed, her comments on this point sparked a nice little interchange with Professor Jia, who noted that in the East China Sea Dispute, Japan is the party which refuses to admit there is even a dispute that might be arbitrated.  Kleine-Ahlbrandt shot back that Japan had already privately conveyed to China an offer to recognize the dispute in return for China’s agreement to arbitration.  If true, this would be a remarkable development, although China’s rejection is not exactly surprising.  As Professor Jia separately noted, most policymakers in China do not believe or trust the fairness of international institutions like the ICJ. And this is reflected in China’s rejection of ITLOS arbitration with the Philippines.

All in all, I think the panel agreed that China is going to be assertive of its national interests in ways that are similar to a great power, or superpower, and which could lead to  serious territorial conflicts with its neighbors.  As lawyers, Professors Jia and Delisle take comfort that China has made its assertions, for the most part, well within the framework of international law.  China has not tried to directly challenge the framework of the international legal system, even though it may emphasize certain elements (like state sovereignty and equality) much more than the U.S. or Europe.   It is not openly avowing realism and pure power politics, at least not publicly.

I agree, but I think that China’s trajectory means that there is little room for movement toward a more liberal international legal system, as long as China’s influence or power continues to grow.  China may be adhering to international law, but its conception of international law will have more in common with a traditional sovereign focused mechanism than recent more liberal proposals.  This may be a regrettable, but it does seem almost inevitable as well.

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