Resultados de la prueba

This dissertation examines the causes of the changes and continuities in China’s approaches to state sovereignty in a high-cost setting of legalization. Legalization, especially the case of international treaties with mandatory DSMs, is important for studying the relations between China and the international society for the following two reasons.

First, international treaties with high sovereignty costs are better settings than soft institutions for researchers to evaluate the relative weights of different mechanisms in driving

Table 1.4: China’s Approaches towards Legalized Treaties

Cases Material

Benefits Reservations Legitimacy Sovereignty

Costs Ratification

BITs Yes Yes Yes Low Yes

UNCLOS Yes Yes Yes Low Yes

ICC No No No High No

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China’s changes and to understand the dialectic relations between changes and continuities during China’s integration with the international society. Prior literature on China and the world usually identifies the combination effects of both material and normative factors in driving changes in China’s policies, yet pays less attention to differentiating the relative weights of various factors (for example, Kent 1999; Foot 2000; Carlson 2005). Alternatively, it tends to give normative forces more importance in contributing to the changes (for example, Johnston 2008). One reason is that many studies focus on China’s policies and behaviors in soft institutions, which do not require too much delegation and thus prevent scholars from studying how China behaves if it has to cede significant portions of control rights or if its core sovereignty is at stake. As states are usually willing to cooperate if participation is low-cost in nature, soft institutions and law tend to “bias” our findings toward changes rather than continuities. In that sense, China’s discourses, behaviors, and policies as observed in soft institutions are truncated data, and do not allow enough observations for us to discover the limits and the relative weights of different mechanisms in driving changes.

The purpose of using hard laws as settings in this dissertation is not to invalidate, but to enrich previous studies on China and the world and provide a more complete picture of China’s changes and continuities during its integration with the world. As the empirical chapters show, many findings of this dissertation do not conflict with previous discoveries by China experts, but emphasize more the dialectic relations between changes and continuities and the relative weights of material and normative forces in determining them. Although material incentives play a more important role than the essential social legitimacy for China to accept boundary-trespassing treaty provisions, the normative factor of the sovereignty belief, especially in core issue areas, determines the continuities of China’s approaches to sovereignty and legalization. It is exactly

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because Chinese leaders internalize and accept the normative legitimacy of state sovereignty that boundary-trespassing norms and trends can only incrementally weaken the sovereignty belief and can lower the normative premiums of sovereignty costs to limited degrees. Moreover, in many circumstances, continuities are no less important than changes and may be the causes of those changes. As the BITs and UNCLOS cases show, only when China can use reservations to lower sovereignty costs or exempt territorial disputes from the mandatory DSM (continuities) will it sign and ratify the treaties (changes). In contrast, since the ICC does not allow any flexible arrangements for China to opt out its core sovereignty (no continuity), China refused to sign it (no change).

Second, hard laws with high sovereignty costs are especially important for examining the socialization effects of boundary-trespassing norms and differentiating the mechanisms of social and normative legitimacy in driving changes in states’ policies. As the theory developed in this chapter shows, states would like to accept binding legal obligations. This is not only because the material benefits are necessarily higher than the material costs, but also because they accept either the social or the normative legitimacy of boundary-trespassing norms, and thus the normative premiums of ceding control rights can be reduced in the socialization process. The more a state is socialized by boundary-trespassing norms, the higher the substantive sovereignty costs (C) it can bear to conform to the new norm, and the more likely it supports legalized DSMs in relevant issue areas. If a state only bears low sovereignty costs and does not want to take on any substantive binding legal obligations, it is unlikely to enter into the stage of strong socialization and truly internalize or accept the normative legitimacy of a boundary-trespassing norm. Therefore, a hard law with high substantive sovereignty costs is the hardest socialization test for a potential “socializee” to pass.

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Prior literature on China’s integration with the world has shown that China’s interests, behaviors, and policies have changed significantly in almost every issue area (see, for example, Kim 1994; Kent 1998, 2007; Economy and Oksenberg eds., 1999; Foot 2000; Lardy 2002;

Carlson 2004, 2005; Pearson 2004, 2006; Johnston 2003, 2008). Nevertheless, the benchmarks scholars use to gauge those changes are China’s behaviors at the very beginning of economic reform in the early 1980s or its policies in the brief isolation period immediately after the Tiananmen incident. Indeed, if using China’s own past as a reference, China’s discourses and behaviors in soft institutions are enough to demonstrate the unprecedented degree to which today’s China is socialized by international norms and institutions. However, as the institutional and normative environments of the international society have constantly evolved, to understand how deeply China integrates with the world requires us to examine whether China’s changes are in accordance with the development of new social trends, what the nature of the changes are, and how far China’s positions are from the “majority will” of the international society. Because the ongoing trend of legalization in today’s world indicates that the international society has reached new institutional and normative equilibriums in many issue areas, and because China is by no means an outsider in the world anymore, it is time to adopt the higher benchmark of legalization to gauge the depth of its integration and the limits of its deviation from the Westphalian norm.

This dissertation uses a small-N case study approach to examine China’s decision making on signing and ratifying international treaties with mandatory DSMs. There are currently four types of legalized treaties with mandatory DSMs at the global level: the WTO, the BITs, the UNCLOS, and the Rome Statute of the ICC.⁷ China rejects the Rome Statute, but has ratified the

7 There are other legalized treaties and institutions at the regional or sub-regional levels, such as the European Court of Justice and the European Convention on Human Rights. But as those institutions do not have direct impact on China, they are excluded from this study.

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other three types of treaties.⁸ The three cases of the BITs, the UNCLOS, and the Rome Statute of the ICC cover a nearly universal sample of legalized treaties at the global level, and allow enough variation in both time and issue dimensions. Moreover, China’s different stances and policies towards the three treaties also enable the case selection to avoid the problem of selecting on the dependent variable, as the UNCLOS and the BITs are two positive cases, and the ICC is a negative case.

The BITs are bilateral international agreements establishing the terms and conditions for private investment by nationals and companies of one country in the jurisdiction of another.

Those treaties have become the most important international mechanisms governing foreign direct investment (FDI) among states (Elkins et al. 2006: 811).⁹ Sovereignty costs of BITs signed between different countries in different time periods vary greatly.¹⁰ High-cost treaties usually grant foreign investors national treatment and involve the International Centre for Settlement of Investment Disputes (ICSID), an independent arbitration tribunal affiliated with the World Bank, as the last resort to solve investment-related disputes between states and private foreign investors. Yet if both contracting parties agree, states can lower sovereignty costs to a certain degree through certain flexible arrangements, such as requiring private investors to use up domestic legal or administrative DSMs before going to the ICSID and using a “standstill” clause to exclude preexisting discrepancies between treaty obligations and state practices from a treaty’s jurisdiction.

8 The main reason that this dissertation does not treat the WTO as a separate case is that major driving forces for China to participate in the WTO are similar to those that lead it to sign legalized BITs. To a certain extent, China’s acceptance of hard BITs is associated with its decision making on the WTO. Therefore, the BIT chapter will also address the common underlying forces for China to join the two types of economic treaties as well as the relations between the WTO and China’s decision making on legalized BITs.

9 Although the BITs are bilateral agreements between two parties, they can be treated as global-level international law, as most states have belonged to the network of the treaties.

10 All BITs China has signed can be downloaded from the website of the Ministry of Commerce of China:

http://tfs.mofcom.gov.cn/aarticle/Nocategory/201111/20111107819474.html. Accessed: 05/31/2013.

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The UNCLOS is a comprehensive international treaty covering ocean-related economic, environmental, and territorial issues.¹¹ It provides four possible dispute resolution venues: (a) the International Tribunal for the Law of Sea (ITLOS), (b) the International Court of Justice (ICJ), (c) an arbitration tribunal constituted in accordance with the Annex VII, and (d) a special arbitral tribunal constituted in accordance with the Annex VIII. States can choose any of them as preferred DSMs. Even if states do not make choices, once they ratify the treaty, they automatically consent to delegating disputes to arbitration as required by the Annex VII.

Nevertheless, the hard law nature of the Convention was diluted to a certain extent by its exclusion clause, which allows states to exclude the most sensitive territorial and security issues from the treaty’s jurisdiction. States that apply the exclusion clause to opt out of certain treaty obligations will bear less sovereignty costs than states that do not.

The Rome Statute of the ICC is a hard law in international humanitarian and human rights issue areas; it imposes high sovereignty costs on party states for three reasons.¹² First, the ICC is a strong and independent court holding automatic and compulsory jurisdiction over the core crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Second, the Prosecutor of the ICC can initiate an investigation not only when a situation is referred to him/her by state parties or by the Security Council (SC), but also with the consent of the Pre-Trial Chamber, on the basis of information received from other sources such as individuals or NGOs. Third, the Rome Statute lacks an exclusion clause and does not allow any substantial reservations for states to opt out of treaty obligations.¹³ Therefore, states cannot selectively

11 The full text of the treaty can be found at the UN website:

http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf. Accessed: 05/31/2013.

12 The full text of the treaty can be found at the UN website:

http://untreaty.un.org/cod/icc/statute/english/rome_statute(e).pdf. Accessed: 05/31/2013.

13 Under article 124, on becoming a party to the Statute, a state can declare that it does not accept the jurisdiction of Court with respect to war crimes for a period of seven years after the Statute enters into force for that particular state.

However, seven years is a short period, and the exemption is limited to war crimes.

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accept the Court’s jurisdiction to lower the sovereignty costs of the Rome Statute.