As recalled above, the meaning of sovereignty is a matter of continuing controversy. What is clear, is that sovereignty is not a fact, but an idea, or concept.453 It is not possible to tell what sovereignty is, but it is possible to describe what it means.454 While the ‘end of sovereignty’
has been proclaimed many times, especially since the end of the Cold War, it has proved to be an enduring concept in international legal discourse from the seventeenth century onwards.455 Various authors have offered non-exhaustive enumerations of the different meanings in which sovereignty has been used.456 For example, Krasner lists four:
international legal sovereignty, Westphalian sovereignty, domestic sovereignty, and interdepence sovereignty.457 It could however be said that some of these four forms overlap:
in Krasner’s definition, ‘international legal sovereignty’ only refers to “the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence”, whereas ‘Westphalian sovereignty’ refers to “political organization based on the exclusion of external actors from authority structures within a given territory”.458 Most international lawyers would probably equate international legal sovereignty with Westphalian sovereignty.
Current writers on sovereignty usually identify the beginning of modern conceptions of sovereignty with the birth of the modern Westphalian state and political
Tieya (eds.), International Law in the Post-Cold War World: Essays in memory of Li Haopei (London and New York: Routledge, 2001) 224-239, at 227.
453 Ulrich Haltern, Was bedeutet Souveränität? (Tübingen: Mohr Siebeck, 2007), VII.
454 Ibid. See also Wouter G. Werner, ‘State sovereignty and international legal discourse’ in: Ige F. Dekker and Wouter G. Werner (eds.), Governance and International Legal Theory (Leiden/Boston: Martinus Nijhoff, 2004), 125-157, at 155.
455 Ibid., 126.
456 For example Oscar Schachter, ‘Sovereignty – Then and Now’ in: Ronald St. John Macdonald (ed.), Essays in Honour of Wang Tieya (Dordrecht etc.; Martinus Nijhoff, 1994) 681-688.
457 Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999) 3.
He repeats the same usages later, mentioning that these are the “at least” four ways in which it has been ‘commonly used’, at 9.
458 Ibid., 3-4.
thinkers like Jean Bodin, John Locke and Thomas Hobbes. However, there are earlier antecedents for thinking about sovereignty, even if it is not called by that name, and clearcut accounts which start with a seventeenth-century narrative discount the transformations that have taken place since Westphalia, the fact that the nation-state did not arrive until the nineteenth century, and that some of the political ideas have been read anachronistically or did not have the influence that is sometimes attributed to them.459 Given the European origins of the international legal framework, it is also not surprising that non-European conceptions of state power and authority have not yet been written into contemporary conceptions of sovereignty, even though there is a clear need to do this.460 This would be particularly desirable in the case of China, which after all, still carries the name that indicates its central place in the world order that it inhabited for millennia before its encounter with the rest of the world.461 The preoccupation of Chinese international legal scholars with traditional Chinese conceptions of world order indicates that this topic is not only of historical interest.462 It is relevant in tangible and intangible ways in the present and crucial to an understanding of the self-image of China.
For the purposes of this thesis, an exhaustive historical account of the different guises of sovereignty throughout the ages is unnecessary. What is relevant, is the division between the domestic use of sovereignty and the meaning in which it is used in the relations between states, to at least understand the context in which Chinese legal discourse on sovereignty has to be seen.
4.4.1 Politics and popular sovereignty
Between politics and international law and international relations, one source of tension between different meanings of sovereignty comes from the distinction between popular sovereignty and state sovereignty based on the effective control of territory.463
459 For a useful historical problematisation of narratives on sovereignty, see Wayne Hudson, ‘Fables of Sovereignty’ in: Trudy Jacobsen, Charles Sampford and Ramesh Thakur, Re-envisioning Sovereignty: The End of Westphalia? (Aldershot: Ashgate, 2008) 19-31.
460 See, inter alia, ibid., 31; Lewis, Sampford and Thakur, ‘Introduction’, supra note 423.
461 Zhongguo or ‘Middle Kingdom’. See infra, 2.2.
462 See, for example, Wang, ‘International Law in China’, supra note 448, 205-225; Li Zhaojie, ‘Traditional Chinese World Order’, CJIL 1 (2002) 20-58. See also the accounts in studies on China’s diplomacy, e.g.
Kim, China, the UN, supra note 438, 19-48 and infra, chapter 2 and 3.3.5.
463 Lewis, Sampford and Thakur, ‘Introduction’, supra note 423, 1.
In contemporary usage in democracies, domestic discourse on sovereignty tends to focus on popular sovereignty, raising questions of legitimacy, representation, and participation of the governed. In the case of China, an immediately arising issue is the fact that China is not a (liberal) democracy. Rather, popular sovereignty is identified with the state, and effectively with the Chinese Communist Party, as reflected in the numerous statements which recall how only in 1949 the “Chinese people” achieved “national liberation”. Article 2 of the Constitution of the PRC asserts that “All power in the People’s Republic of China belongs to the people” and defines the organs through which “the people exercise state power”.
Either consciously or subconsciously, western observers will have associations with popular sovereignty on their minds even if strictly speaking this is not the use to which the concept is put in the context of legal discourse, in particular when China invokes its sovereignty in relation to human rights related issues. To the Chinese government, no domestic considerations of popular sovereignty are at play when it invokes its sovereignty at the international level. After all, it is the sole legitimate representative of all of China, including its ethnic minorities. Any criticism aimed at China, and any perceived attempt to address an issue related to its domestic order, are therefore treated by the Chinese government as an attack on China’s sovereignty and an unwarranted interference in its internal affairs. They can also be seen as an attack on the legitimacy of Communist Party rule. Since the Communist Party is equated with the liberty of the Chinese people, criticism of the Chinese government challenges not the legitimacy of its rulers, but the legitimacy of China itself.464
This type of reflex is not unique to China. In the history of European human rights protection, states have also seen criticism of their human rights record as an attack to themselves, and this reaction can also be used to nip any debate in the bud, thus giving rise to allegations of hypocrisy. The first way for the state to hide behind the veil of sovereignty is therefore to conflate considerations of political legitimacy with outside interference
464 For an example of this view, see Chen Min, ‘Why China Won’t Listen’, The New York Times, 15 November 2 0 1 1 , <http://www.nytimes.com/2011/11/16/opinion/why-china-wont-listen.html> [ 9 . 1 . 2 0 1 2 ] . According to the author, the Chinese government equates ‘sovereignty’ with “the absolute, non-negotiable right to rule over a billion subjects. When sovereignty is in play, there is no longer a right or wrong side of an issue, just winning or losing”.
against its sovereignty as such. However, this is not the only veiling technique. To understand other possible techniques, a closer look is necessary to the meanings of sovereignty in the international order.
A milder way of expressing these considerations of domestic sovereignty is to once again draw attention to China’s recent history of social upheaval and chaos, in particular of the Cultural Revolution. It is an axiom within the Chinese government that more political turmoil and instability has to be prevented at all cost, and that government authority and powers of control are therefore to be strengthened. Internal stability is also seen as an international responsibility by the government, and this is most evident in the Chinese government’s human rights rhetoric, as will be discussed in more detail in the next chapter.465
4.4.2 Sovereignty in the international order
One way to clarify the meaning of sovereignty in international legal discourse is to have it preceded by another word. Hence, the late Ian Brownlie discussed not sovereignty, but territorial sovereignty in his textbook on international law.466 Sovereignty is thus associated with the exercise of control over territory. It also evokes associations with ownership, which led international jurists to use modes analogous to ownership to describe the acquisition of territory.467 Various authors have expressed dissatisfaction with the use of the word
‘sovereignty’. Brownlie, when discussing sovereignty and also ‘jurisdiction’, points out that
“the student is faced with a terminology which is not employed very consistently in legal sources such as works of authority or the opinions of law officers, or by statesmen, who naturally place political meanings in the foreground.”468 To him, ‘sovereignty’ is the “normal complement of state rights, the typical case of legal competence”, whereas ‘jurisdiction’ is used for “particular rights”. “In brief, ‘sovereignty’ is legal shorthand for legal personality of a certain kind, that of statehood [...]”.469 Dugard also primarily associates sovereignty with
465 Li, ‘Legacy’, supra note 446, 323-324.
466 Ian Brownlie, Principles of Public International Law (6th Edition; Oxford: Oxford University Press, 2003), chapter 6 .
467 John Dugard, International Law: A South African Perspective (2nd Edition; Landsdowne: Juta, 2000) 113. See also Brownlie, Principles, 106.
468 Brownlie, Principles, supra note 466, 106.
469 Ibid.
exclusive control over territory and, quoting Max Huber in the Island of Palmas case,470 stresses the use of sovereignty in connection to the independence of states, and also states that he avoids the term ‘sovereignty’ “wherever possible as it has an elastic meaning which varies according to the discipline and context in which it is used.”471 Other authors distinguish sovereignty in international legal discourse by specifying that we are speaking of ‘state sovereignty’.472
The consensus among international legal scholars is therefore that sovereignty is associated with notions of independence. This implies that sovereignty is a relative notion, as independence presupposes that there are other entities to be independent from. In the view of Wang Tieya, when sovereignty is under attack, it is rather the doctrine of absolute sovereignty that is criticised: the notion of an absolute, uncontrolled state. In the international context, that would be an aggressive, expansionist state.473 It is clear that this is not the sovereignty which is current in international law, as it is based on the sovereign equality of states, with its corrolaries of non-interference in internal affairs and prohibition of aggression. The sovereignty of each state is therefore restricted by the sovereignty of other states, in the same way that the liberty of an individual in a liberal state is restricted by the liberty of others.474 It is also clear from the discussion here and above that China does not adhere to an absolute notion of sovereignty, although this is often attributed to it.475
From the above, it is clear that sovereignty is intimately connected with the existential aspects of the state. It is not merely recognition of the existence of the state, or
“a representation of a state of affairs”, but also “a claim to authority; a claim which has been institutionalized, defined and redefined within the framework of international law.”476 Reality departing from the legally institutionalised state of affairs is a major cause of
470 The Island of Palmas Case (or Miangas) (United States of America v. The Netherlands), PCA, 4 April 1928, arbitrator: M. Huber.
471 Dugard, supra note 467, 112 fn 3.
472 Kim, ‘Sovereignty’, supra note 431; Werner, ‘State sovereignty’, supra note 454.
473 Wang, ‘International Law in China’, supra note 448, 291-292.
474 A parallel noted by Martii Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (Reissue with a new epilogue; Cambridge: Cambridge University Press, 2005) 224 and Werner,
‘State sovereignty’ supra note 454, 126, and earlier by Henkin, ‘Mythology’, supra note 426, 353-355.
475 See above, 4.3. See also Gao Feng, ‘sovereign equality’, supra note 452, 226.
476 Werner, ‘State sovereignty’, supra note 454, 133 (emphasis in original). See also Kim, ‘Sovereignty’, supra note 431.
difficulty regarding sovereignty, as is clear from the existence of the notion of ‘failed states’, as well as recognition issues regarding governments following civil wars, with which China has first hand experience.
It is also the reality of existential inequality between states which is often mentioned by critics of sovereignty to challenge the concept. After all, isn’t sovereign equality a mere fiction if the world consists of states as diverse as Liechtenstein and the United States, which enormous differences in population, territory, natural resources, economies, military capabilities, and so forth?
However, both small, militarily weak states and big, powerful states will refer, in their international relations to their sovereign rights. Small states may actually invoke their sovereignty to object to undue interference by larger, more powerful states. Large and powerful states may assert their sovereign right to take certain types of action. Disputes between states are often expressed in terms of opposing sovereign rights. Just like in a liberal society, where individuals are not equal either but enjoy equality before the law, sovereign equality of states does not mean that all states are actually equal in international law.
In the international legal order, however, there are legal consequences to this existential inequality between states. A better understanding of the way in which sovereignty works may yield a better understanding of the impact China’s changing position in international relations may have on its definition of its own sovereignty.
4.4.3 Sovereign equality and existential inequalities
In the above, a parallel has been drawn between the sovereignty of states and individual liberty in a liberal society. One major difference between a liberal society and the international legal order, is that in a liberal society citizens can compensate for their relative powerlessness vis-à-vis other citizens by having recourse to institutions of the state. International society, as is commonly known and often discussed, lacks similar mechanisms. They are not completely absent, but the ones which exist are incomplete, often leaving states to rely on self-help. The international legal order has therefore been compared to primitive societies, and this situation is a reason for many lawyers to argue
that “international law is not law”. Constitutionalist international lawyers in particular try to promote the strengthening of international institutions.477
As a result, in spite of all proclamations of sovereign equality, inequalities between states are part and parcel of the international legal order. This is recognised by most. What is recognised less often, is that the inequality between states and the dominance of certain more powerful states is, in many ways, legally accepted and has been embedded in the international legal order for centuries.478 The discussion in the previous chapters shows that Chinese observers cannot be more aware of this. In the analysis of Gerry Simpson, the interplay between sovereign equality and existential inequality can be seen in the opposing uses to which sovereignty has been put. Identifying the language of ‘rogue’, ‘criminal’ or
‘outlaw’ states in writings as early as those of Grotius, he argues that the hegemony of the great powers, and the exclusion of certain states as ‘rogue’ states, has been “legalised” in international law since 1815. He identifies three “separable elements” of sovereign equality:
formal equality, legislative equality and existential equality, and argues that the latter two have, in practice, been heavily qualified, by “exercises of legalised hegemony” and an “anti-pluralist conception of international community”, both originating in the early nineteenth century.479 In international law-making, for example, great powers have a relatively larger influence both in the formation of customary international law and in securing a special position for themselves in treaty negotiations, even if formally speaking all states are equal.
On the point of existential equality, it has been most clear that this equality was restricted when states were excluded from ‘the club’ of the international community because they were not ‘civilised’, ‘peace-loving’, or for other reasons undesirable in the view of the dominant states in the ‘international community’. The ‘anti-pluralism’ identified by Simpson is a specifically liberal form of anti-pluralism. In his view, since the late 1990s it is predominantly states which were perceived to be anti-liberal that were excluded: ‘criminal states’, that sponsored terrorism, or non-democratic, authoritarian states.480
The interesting position that China finds itself in now, is that it has properties which,
477 See infra, 1.3.5.
478 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004).
479 Ibid., 56.
480 Ibid., 278-316.
in the current analysis of how sovereignty works, point both at great power status, signifying a higher position on the legal hierarchy, but also still remaining elements of
‘outlawry’, as China remains a nondemocratic state, with a non-western tradition as well.
Although time and again the Chinese government has stated that China does not “seek hegemony” (although it is obsessed with returning to its “rightful place”), it is currently the only state which is a serious contender to supplant the hegemony of the United States, and could maybe afford itself the unilateral instincts which the US has permitted itself in international relations, including certain readings of international law.481 At the same time, pluralism is strongly promoted by China in international law and international relations.482