Recomendaciones para la acción

To support the theoretical arguments of the dissertation, I rely on two major qualitative

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research methods. First, I conducted 41 in-depth interviews with Chinese government officials in Beijing, with Chinese delegates to the UN Mission, and with UN officials in New York, as well as with researchers in China’s major Beijing think tanks and universities. Because of the quasi-statist feature of China’s decision making regarding hard laws, interviews with Chinese government and UN officials are primary and direct evidence supporting the main arguments.

However, as China’s foreign policy decision making is usually opaque and government officials tend to withhold information during interviews, I also interviewed scholars and researchers to provide supplementary information.¹⁸

Second, I collected and analyzed a comprehensive set of documents regarding decision making on the three types of treaties, including statements and works by China’s top leaders;

documents of international organizations on the treaties and the UN conference records of the UNCLOS and the Rome Statute of the ICC; and books on those treaties written by Chinese scholars as well as articles published in China’s academic journals.

Because public statements and works of the highest leadership are important ideological documents—representing not only the personal beliefs and preferences of individual leaders but also the collective wisdom of the CCP as a whole—I systemically study former President Jiang Zemin’s discourses in the three volumes of The Selected Works of Jiang Zemin published in 2006 and use other leaders’ works and statements as complementary materials. The Selected Works collects all major speeches and articles of Jiang Zemin during his presidency from 1992 to

18 Chinese government organizations represented among my interviewees include the Ministry of Foreign Affairs (MOFA), the Ministry of Commerce (MOFCOM), and the Permanent Mission of the People’s Republic of China to the UN (UN Mission). Interviewees from the UN come from the Department of Economic and Social Affairs (DESA), Office of Legal Affairs (OLA), Office for the Coordination of Humanitarian Affairs (OCHA), Department of Political Affairs (DPA), Office of Disarmament Affairs (ODA), and the First Committee of Disarmament and International Security. Research institutes where my interviewees are affiliated include Peking University (Beida), Renmin University (Renda), Tsinghua University (Tsinghua), and Foreign Affairs College (FAC). Most interviewees from non-governmental institutes are leading and influential scholars in the fields of international

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2002—when critical decisions regarding the three types of hard laws were made—and exhibits systemic views of the highest leadership on almost all important issues of state sovereignty, economic development, human rights, regime security, foreign policy, and so on. From those ideological documents, I try to draw inferences on how Chinese ruling elites perceive and conceptualize China’s national interests, identity, and the legitimacy of sovereignty and other boundary-trespassing norms.

Although political leaders’ works can shed some light on China’s official line on sovereignty and other international norms in general, those materials do not directly address the three specific types of legalized treaties examined in this dissertation; therefore, I obtained relevant information from the UN conference records on the UNCLOS and the Rome Statute of the ICC. Both treaties were negotiated under the UN system; the UN conference records summarize debates and statements made by state delegates in each meeting. Those delegates made proposals, defended their governments’ positions, and explained the reasons for supporting or opposing certain treaty provisions. Analyzing the conference records helped to identify China’s official positions on the treaties and normative frames embedded in those positions during the periods of negotiation.

The final group of documents includes Chinese books and core academic journal articles directly addressing the three types of legalized treaties. The electronic database “China’s Academic Journal” includes full texts of all major journal articles in China. I used the keywords

“the BITs,” “the UNCLOS,” and “the ICC” to extract every article related to the three types of law published in China’s academic journals. Among those materials, books and articles written by government officials or those affiliated with government branches were treated as more

business and economy, international law and human rights, international relations and foreign policy, and political science in general.

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closely reflecting government positions than did other supplementary academic works.

In terms of scholars’ works, since both the BIT and ICC cases focus on policymaking in the late 1990s and early 2000s, and academic elites did not seem to have direct input at that time, those two empirical chapters do not use academic works as a primary source of evidence but only as supplements to other types of evidence. However, when discussing the recent developments of these two types of treaties in the conclusion chapter, I document academic research on these topics since the late 1990s and discuss their potential impacts on government policies in the future. The UNCLOS case is slightly different from the BITs and the ICC.

Scholars started to discuss the treaty also only after it was adopted in 1982; but since the focus of this chapter is China’s ratification decisions in the later stage, scholars’ voices might have had impact on government decision-making by that time. And because the Chinese government’s final decision to ratify the UNCLOS was in line with most scholars’ suggestions, the UNCLOS chapter gives academic works more weight than the BIT and the ICC chapters do.

Overall, given the quasi-statist feature of China’s foreign policymaking regarding legalized international treaties, the empirical studies rely more on official sources, such as Chinese leaders’ speeches and articles, interviews with and statements made by government officials, and UN documents, than on academic and other non-official sources as primary evidence to support the arguments of the thesis.

This dissertation is divided into five chapters that trace the behavioral patterns and causes of China’s policymaking on signing and ratifying legalized treaties. Chapter 2 examines China’s approaches to sovereignty and legalization in the non-core economic issue area and explores why China has been willing to make substantial changes in more than 40 new BITs since the late 1990s. It shows that the increased material benefits of protecting China’s overseas investment

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can offset some portions of the sovereignty costs and is the root cause of China’s choice to sign legalized BITs; meanwhile, Chinese leaders’ new historicist belief in the inevitability of economic globalization lowers the normative premiums of ceding control rights to a certain extent and plays a complementary role in driving the changes. Chapter 3 analyzes China’s stance toward humanitarian and human rights issues and the reasons why China rejected the Rome Statute of the ICC in 1998, when it had already deeply integrated with the international society.

This chapter shows that the ideational factor of Chinese leaders’ strong Westphalian belief regarding core sovereignty means that they tended to pay more attention to the negative impacts of the human rights norm and the legalized Rome Statute on China’s national and territorial unification than to the universal values of the norm and the widespread legitimacy of the treaty in the international society. As the Rome Statute does not allow any flexible arrangements for China to opt out its core sovereignty, China resolutely voted against it at the Rome Conference.

Chapter 4 discusses the evolution of China’s policies toward the UNCLOS from its early participation in the Third UN Convention on the Law of Sea in the 1970s to the final ratification of the treaty in 1996. Similarly to the BIT case, the material benefits of exploiting deep-seabed resources allowed China to change its position on the deep-seabed mining regime and partially offset the sovereignty costs of delegation; meanwhile, acceptance of the social legitimacy of UNCLOS after most developed countries had shown their support incrementally lowered the normative premiums of ceding non-core control rights and supplemented the material incentives in driving changes. However, as in the ICC case, the UNCLOS chapter demonstrates that Chinese leaders’ belief in core sovereignty issue areas have rarely softened. Yet, differently from the highly boundary-trespassing and legalized Rome Statute, the UNCLOS incorporated an exclusion clause for states to exempt all territorial and military disputes from the treaty’s

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jurisdiction—significantly lowering the sovereignty costs of the treaty and removing the biggest obstacle for China to sign and ratify it. Based on the theoretical discussion on sovereignty and empirical studies on China’s approaches to legalized dispute resolution, Chapter 5 provides a conclusion that places the findings within a broader analytical context.

77 Chapter Two

Overseas Investment and Economic Globalization: China’s Changing Policies on Legalized Bilateral Investment Treaties

The last two decades have seen a surge in Bilateral Investment Treaties (BITs) around the world; BITs have become the most important international legal mechanism governing foreign direct investment (FDI). These treaties represent new trends in the liberalization of FDI and the legalization of dispute resolution in international politics: treaty provisions have become more precise, binding, and enforceable, and states have been willing to delegate investment disputes to international arbitration authorities, especially the International Centre for the Settlement of Investment Disputes (ICSID), a permanent legal institution for solving disputes between host states and private investors (Allee and Peinhardt 2011; 2012).

Since its first treaty with Sweden in 1982, China has signed BITs with more than 110 countries, second only to Germany.¹⁹ Yet, most BITs signed in the 1980s and the 1990s granted foreign investors solely most-favored-nation (MFN) treatment, and delegated only one type of disputes to the ICSID or ad hoc arbitration. The contents of China’s BITs have changed notably since the late 1990s, offering foreign investors more substantial protection than did earlier treaties. China has become ever more willing to provide national in addition to MFN treatment to foreign investors, and to delegate all types of investment disputes between state and private actors to the ICSID.

Two main forces contribute to the evolution of China’s BIT practices in the most recent decade. One is the initiation of China’s new state-led developmental strategy of “going out” [zou

19 China has renegotiated nearly a dozen BITs since 2003. The total number of 110 refers to the countries that signed BITs with China, not the total number of China’s BITs.

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chuqu]: the government has actively promoted China’s overseas investment in order to strengthen the competitiveness of its firms and sustain its long-term economic growth. The other force is the formation of a new boundary-trespassing belief among Chinese leaders that economic globalization is an inevitable trend independent of men’s view, and that China should

“keep up with the times” so as to thrive in fierce international competition. The increased material benefits of protecting China’s own overseas investment partially offset the high sovereignty costs of more liberal and legalized BITs; the historicist belief in the inevitability of globalization increases the social legitimacy of the new treaties and gradually lowers the normative premiums for China to deviate from the Westphalian norm in economic issue areas.

Nevertheless, these factors cannot completely replace the traditional sovereignty norm in shaping China’s BIT policies. In order to lower the sovereignty costs associated with more liberal and legalized BITs, China has made reservations to several boundary-trespassing treaty provisions. It does not grant foreign investors unconditional national treatment, and it maintains the right to require investors to use domestic administrative reviews before submitting disputes to international arbitration. Therefore, although China has closely followed the international trend of liberalizing FDI, it has been cautious about loosening state control even in non-core sovereignty issue areas and tried to maintain a delicate balance between its dual roles as a capital exporting and importing state.

This chapter is organized as follows. The first section describes the trends of liberalization of FDI and the legalization of BITs at the global level. The second part provides an overview of the evolution of China’s BIT practices from the early 1980s to the current stage. It then discusses in the third section how the changes in China’s material interests and the initiation of the “going out” strategy influence decision makers’ benefit-cost calculation of the new BITs. The fourth

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section focuses on how Chinese leaders’ new boundary-trespassing belief in the inevitability of economic globalization changes their perceptions on state sovereignty and influences their decision making on major foreign economic policies. Section Five analyzes the impacts of the Westphalian norm in economic issue areas and examines China’s reservations to the major boundary-trespassing treaty provisions of its new BITs. The chapter then concludes with the sixth section.