Guest Post: China As a Shaper of International Law?

[Sonya Sceats is Associate Fellow in the International Law Programme at Chatham House where she leads a project on the implications of China’s rise for the international human rights system. Follow @SonyaSceats and @CHIntLaw]

China punches below its weight in the development of international law, despite its growing international power and the participation of Chinese representatives and experts in various international law-making bodies. Judging by recent statements of intent from the Chinese government, this might be about to change.

As Julian Ku indicated in a recent post, China is ramping up portrayal of itself as a staunch defender of international law. China has long presented itself as an upholder of the UN Charter, especially on questions related to use of force, but in the signed article cited by Julian, Chinese Foreign Minister Wang Yi sought to broaden the point.

It is right to view this rhetoric as an attempt by China, as an ascending but conservative power, to harness law to its longstanding political agenda to constrain (US) hegemonic power and promote state equality. But the Foreign Minister’s article should also be seen as one of the opening moves in China’s new play to expand its influence on international law.

The key lies in a directive buried deeply in the outcome document from the 4th Plenary Session of the 18th Central Committee of the Chinese Communist Party, known colloquially as the Rule of Law plenum. The plenum concluded on 23 October 2014, the day before the Foreign Minister released his article. According to the document, China must:

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, use legal methods to safeguard our country’s sovereignty, security and development interests.

China, therefore, wishes to transform itself from a norm-taker to a norm-shaper internationally.

Elsewhere I have argued that China’s concerted push to mould global norms on the internet should be understood as a vanguard expression of these ambitions. This analysis drew on discussions within a global expert network we launched last year as a means of engaging with the growing community of Chinese international lawyers writing, thinking and teaching about international human rights and related areas of international law.

To date, we have held two roundtable meetings for this network, the first in London and the second in Beijing. Both meetings were held in collaboration with China University of  Political Science and Law (CUPL), one of China’s leading law schools and probably the only university in the world with an entire faculty of international law.

Chatham House’s work on these issues dates back to 2012 when we launched a project on China and the international human rights system. This work culminated in a research report which has become a key resource for diplomats, human rights advocates and others (including inside China) seeking to understand China’s behaviour in the international human rights system and engage with and influence China on these issues.

In the course of this research, we visited China to see if Chinese experts would be willing to share views on these matters. We learned that there were lively debates on these issues in China and that international lawyers working in this area were eager for more structured opportunities to engage with their peers outside China. Our network aims to help meet this need.

Professor Sarah Cleveland, Columbia Law School, and Professor Ling Yan, China University of Political Science and Law, at the first meeting of the International Law Programme’s global experts network at Chatham House in April 2014. Photo used with permission from Chatham House.

At our first meeting at Chatham House in London, Chinese experts spoke of the need for their country to strengthen its contribution to the field of international law. It is clear from the Rule of Law plenum outcome document that the Chinese government now shares this aspiration. The government also pledged in the document to:

Establish foreign-oriented rule of law talent teams who thoroughly understand international legal rules and are good at dealing with foreign-oriented legal affairs.

Of course, China’s desire to exert more influence on international law will not automatically lead to greater influence, but an investment in home-grown capabilities is a first step. It will be interesting to see how these ‘talent teams’ develop, how active they will be in international legal forums, and whether there will be two-way traffic between these experts and their government in relation to China’s positions on international rules and participation in international institutions and dispute resolution mechanisms.

Our second meeting at CUPL, just three weeks after the plenum, was an early opportunity to explore the potential implications of China’s plans, now explicit, to increase its impact on international law. Our discussions traversed a range of public international law areas relating to individual rights, including international human rights, criminal and humanitarian law, and we were pleased to have OJ’s Kevin Jon Heller among our participants.

Some of the insights generated from these discussions to date include:

• While most commentary of the Rule of Law plenum outside China was highly sceptical, many Chinese legal academics regard it as a progressive development – strong statements about the authority of the constitution are seen as particularly significant;
• Chinese experts report signs that China may be moving beyond the human rights hierarchy it has traditionally promoted in which socio-economic rights are favoured over civil and political rights;
• Most Chinese international law scholars we have engaged with consider that, despite the delays, China is sincere in its stated commitment to ratifying the International Covenant on Civil and Political Rights;
• Even Chinese members of the network with strong internationalist leanings object to the confrontational attitude towards China in bodies like the UN Human Rights Council;
• China’s commitment in principle to the concept of the Responsibility to Protect seems to have survived the experience of Libya and some Chinese experts consider that this is an area where China’s arch-sovereigntist approach could shift in the future; and
• Many Chinese international lawyers were deeply disappointed by China’s decision not to sign the Rome Statute of the International Criminal Court and international criminal law is a fast developing sub-discipline of international law in China.

To find out more, read the summaries of our roundtable meetings prepared in accordance with the Chatham House Rule:

Chinese Approaches to Public International Law and the Rights of Individuals

Chinese Approaches to Public International Law and the Rights of Individuals – Part Two