LÍMITE MÁXIMO DE GASTO

In sum, this thesis is about how a major change in international relations – the rise of the People’s Republic of China as a great power – affects the international legal order. This question goes to the heart of the mixed nature of international law, which has both served as a set of rules that govern the relationships between states, but has also become an instrument of change used by different actors attempting to effect change on a global level.

It also serves to illustrate an apparent contradiction between the role of international law as the expression of international relations or diplomacy, which lives by obfuscation, and its aspiration to provide certainty, and aims for clarity. As such, it is situated in the middle of various overlapping discussions in scholarship, addressing the ‘crisis’ of international law, the fragmentation of international law, the proliferation of actors, the rise of the individual, the end of sovereignty, and even whether international law still exists.

It aims to enable better mutual understanding between international lawyers from diverse backgrounds and contribute to a better understanding of the system. It also aims to strengthen certain features of the system, i.e. its underpinnings (values, human rights) and its universality. The reality-check provided by an analysis of China’s interaction with the system allows us both to understand the system better and to imagine where it may be going. Ultimately, it aims to make the process of international legal change more understandable.

If after reading this thesis, both non-Chinese scholars and practitioners of international law have a better sense of how international law is viewed in China, and Chinese scholars and practitioners of international law have a better sense of how international law is seen outside of China, it will have fulfilled its purpose.

114 Sonya Sceats with Shaun Breslin, China and the International Human Rights System (London: Chatham House 2012)

History

2.1 Introduction

History is central to any discussion on China’s relationship to international law. It is also the starting point for any discussion on international law by Chinese scholars themselves.¹¹⁵ Both China’s practice and rhetoric in international law are strongly informed by history, mainly through the official narrative of the People’s Republic. Chinese fondness for historical parallels in general must also be noted.¹¹⁶ In addition, as set out in the introduction, for an understanding of China’s approach to international law it is crucial to pay attention to the historical role of international law as a legitimising device for Western imperialism during the time that it was introduced to China, as well as its role as a vehicle for ideological controversies during the Cold War. The changing international political context in which China’s approach to international law took shape is historically and socially contingent, and a satisfactory analysis must therefore take history into account.¹¹⁷ As noted, recent years have seen renewed attention for the historical analysis of international law, challenging dominant narratives of progress and idealism with a more sober assessment of the actual role that international law has played, including the issues raised by TWAIL scholarship.¹¹⁸

This chapter describes how the initial nineteenth-century encounter between China and the current international legal order was the encounter between two clashing world

115 Wang Tieya, ‘International Law in China: Historical and Contemporary Perspectives’, Recueil des Cours 221 (1990) 195-369; Xue Hanqin, ‘Chinese Contemporary Perspectives on International Law — History, Culture and International Law’, Recueil des Cours 355 (2012); Li Zhaojie, ‘Legacy of Modern Chinese History: Its Relevance to the Chinese Perspective of the Contemporary International Legal Order’, Singapore Journal of International & Comparative Law 5 (2001) 314-326. Chen Tiqiang, ‘The People’s Republic of China and Public International Law’, Dalhousie Law Journal 8 (1984) 3-31, at 3. In the other publications by Chinese scholars cited in this thesis and more specifically in this chapter, history almost always has a very prominent role.

116 Jacques deLisle, ‘China’s Approach to International Law: A Historical Perspective’, Proceedings of the Annual Meeting (American Society of International Law) 94 (2000) 267-275, at 267.

117 Cf Christian Reus-Smit, ‘Politics and International Legal Obligation’, European Journal of International Relations 9 (2003) 591-625, at 594.

118 See chapter 1.3.3 and 1.4.1.

orders, both of which considered themselves universal. The encounter led to the collapse of the Chinese world order in a way that was particularly traumatic to China. While the international legal order which originated in Europe became the global order, China went through one and a half century of upheaval, described by Xue Hanqin as “a most turbulent, humiliating and miserable period for the nation.”¹¹⁹ International law also underwent changes in this period, as did China’s approach to and use of it.

For the analysis in this chapter, four periods are distinguished. The first starts in the nineteenth century, in which China witnessed the decline and fall of the last imperial dynasty, the Qing (1644-1911). Before and throughout most of the the nineteenth century, China was still at the centre of its own world order, and certainly remained there in its own perception, even when this order clashed with that of the Western powers, resulting in the collapse of the Chinese order. It is during this period, foreign encroachment and ‘gunboat diplomacy’ and the, in Chinese eyes, resulting ‘century of humiliation’, that China first became acquainted with international law.

The second period begins with the Xinhai Revolution of 1911, which signalled the end of the Chinese empire and the establishment of the Republic of China (ROC). From 1911 to 1949, the ROC struggled to establish control over all of China, when first China broke apart in the period of warlords, followed by challenges to the ruling Nationalist party (KMT) by the Communist Party of China (CCP).¹²⁰ This period is therefore marked by internal upheaval, civil war and ultimately foreign invasion, when China was invaded by Japan, a conflict which eventually became part of the Second World War. In these decades, China also deepened its engagement with western conceptions of law, and the Nationalist government actively engaged and tried to be part of the international legal order. Under a temporary truce between the KMT and the CCP, the ROC emerged as one of the victorious powers in the Second World War and was one of the founding members of the United

119 Xue, ‘Chinese Contemporary Perpectives’, supra note 115, 51.

120 As noted above, supra note 1, in conformity with PRC usage, Chinese words are usually transcribed using the pinyin method of transcription. However, historically other transcription methods have been used, notably the Wade-Giles method which is still common in Taiwan and among overseas Chinese. In this chapter, when for historical or other reasons names are more familiar in other variants (e.g., Chiang Kai-shek rather than Jiang Jieshi), including contemporary acronyms, those more familiar variants are used. In this case, the Nationalist Party (中國國民黨 in traditional Chinese; 中国国民党 in simplified characters) would in pinyin be the Guomindang and thus the GMD, but it is generally known as KMT. The CCP (also abbreviated as CPC) is known in Chinese as Zhongguo Gongchandang (中国共产党).

Nations.

The Chinese Civil War restarted after World War II. Following the Communist victory, the People’s Republic of China (PRC) was established in 1949. This is the starting point of the third period. Revolutionary fervour and social upheaval went hand in hand in the decades after, in which the PRC was relatively isolated from the outside world but supported revolution in its foreign policy. An initial socialist legal system set up in the 1950s collapsed during the Cultural Revolution (1966-1976). For most of this period, the PRC was excluded from the United Nations, as the question of the representation of China in the organisation was only resolved in its favour in 1971, when it replaced the ROC, which had continued to exist on Taiwan. For a long time, the PRC was preaching revolution in international relations, although it was less active in pursuing this aim.

This period of turmoil ended with the beginning of the ‘reform and opening up’

period from 1978 onwards, which marks the beginning of the fourth period, which lasts into the present day. Although some of the main developments from that point are also discussed in this chapter, this year is the starting point of China’s contemporary approach to international law. The remainder of this thesis will therefore explore this period in more depth.

The 150 years under discussion here have been nothing if not eventful for both the world and China, summarised succinctly by Li Zhaojie.

In the space of one and a half century, China was reduced from a ‘Middle Kingdom’ at the center of the universe to a semi-colonial society at the hands of foreign imperialism; then it emerged as an independent republic and eventually becomes a major world power.¹²¹

Parallel to the episodes described above, Li notes the Self-Strengthening Movement of 1861-1895, political reform and revolution from 1898 to 1912, intellectual revolution around 1917-1923 and the rise of the PRC in 1949 as the climactic events which shaped China’s transformation from sinocentrism to the embrace of sovereign equality and independence.¹²²

Given the focus of this thesis on the role of the individual in international law, the

121 Li, ‘Legacy of Modern Chinese History’, supra note 115, 314.

122 Ibid, 314-315.

discussion will at times pay specific attention to human rights. Their importance to China’s position in international law has grown especially since 1989.