Historical Roots of the Chinese Approach to International Law

Layne Smith Vol. 39 Associate Editor

Throughout most of the 19th century and into the first decades of the 20th, China’s interactions with the outside world were less than favorable to China’s interests. Western imperialist powers used, among other things, international law as an instrument to secure territory and legal rights in China, often to China’s detriment.[1] These experiences have helped to shape the modern Chinese approach to international law. The unequal treaties that China signed with Western Powers, such as the treaties that allowed Western Powers to sell opium in China and indemnified them for any harm done, gave rise to an impression in China that international law was a tool used by powerful nations to maintain power. It was with this idea in mind, and the goal of recovering its sovereignty after a long period of humiliation and subjugation at the hands of Western Powers, that China began to take seriously the development of international law. Of particular importance in modern China’s approach to international law is sovereignty. Sovereignty has become a core concept in modern China’s approach to international law. Former Premier Zhou Enlai summed this up succinctly, stating that “a basic position in the conduct of China’s foreign affairs … is to maintain China’s independence. No country is permitted to intervene in China’s internal affairs.”[2] Set against the backdrop of more than a century of foreign powers taking advantage of China, this sentiment, and the importance in China’s approach to international law, is hardly surprising. [3] Sovereignty as a means to safeguard national pride has its roots in the Sinocentric view of the world common to much of Chinese history. The Middle Kingdom was just that, the kingdom in the very center of everything. After that view was no longer sustainable – that is to say, after imperialism made it clear that China was not a singular entity gifted with the mandate of heaven – the Confucian culturalism that had defined Pre-Republican China shifted into an emphasis on Chinese nationalism, with the ideal of sovereignty as the path to achieving that national pride and strength.[4] There are two key elements to the Chinese approach to sovereignty: territorial integrity and non-interference. With regard to territorial integrity, China has long regarded many borders in Asia to be illegally made and invalid due to their genesis at the hands of Western Powers. The McMahon line between India and China is a classic and longstanding example of this. The McMahon line currently serves as the border between Tibet and the Indian state of Arunachal Pradesh, but has been a subject of tension between India and China since the border was established in the 1924 Simla Convention between British and Tibetan authorities. India maintains that the line is the national border between China and India, but China contends that the line is invalid, claiming that Tibet was not a sovereign state and therefore unable to sign the Simla Convention. More recent examples of China’s emphasis on territorial integrity are the handovers of Macao and Hong Kong in the 1990s. Both were cessions from the Qing government to Western Powers (Macao to Portugal and Hong Kong to the United Kingdom) that China had long considered unlawful, stating that “Hong Kong has been Chinese territory since ancient times … the whole of Hong Kong must revert to domain of the motherland”[5] and “the Chinese people have not forgotten Macao, nor have they forgotten that they have the right to demand the recovery of this territory from Portugal.”[6] The issue of territorial integrity also helps to explain China’s attitude toward the South China Sea. While it’s certainly motivated in part by the natural resources and strategic advantages offered by maintaining a strong position, the South China Sea is also part of what was once an Asian world under China’s control. [7] China’s strong emphasis on non-intervention similarly is rooted in the experiences of Sino-European relations in the 19th and early 20th centuries. Foreign intervention in China has led to many situations that have been adverse to China’s sovereignty, the Opium Wars being a particularly salient example. Because of that, China has been very staunch in its stance opposing foreign intervention by any country in the domestic affairs of another. When NATO intervened in Kosovo in 1999, for example, China was strongly critical, arguing that NATO “violated the principle of non-interference in the internal affairs of a sovereign country.”[8] Considering China’s stance on the inviolability of sovereignty, and the instrumental approach to international law stemming from Chinese experiences with the West, the way China approaches treaties and international organizations, and the obligations it has pursuant to them, is a logical one. Indeed, the requirement that any and all treaty obligations must be translated into law by the National People’s Congress is a direct expression of this emphasis on sovereignty and political independence. Although China may have joined an international organization, or signed onto a treaty, the state still has final say with regard to the implementation of the treaty obligations. To allow otherwise would be to cede authority to dictate to China what it can or cannot do, which would directly violate the Chinese theory of sovereignty. Similarly, China strongly prefers bilateral negotiation for dispute settlement, rather than appeal to international bodies.[9] Again, to cede authority to an international body would be to forfeit sovereignty, even over a single issue. That international bodies in the latter half of the 20th century began to expand into areas such as human rights, environmental protection, and territorial waters has exacerbated this concern. Not only do international bodies seek to make decisions by which China would be bound, they are now encroaching on areas that China considers domestic.[10] Further exacerbating this tension is China’s lingering distrust of the international order, a remnant of China’s fraught history with ostensibly impartial international organs that nevertheless favored the West. International law is, at its core, a creation of the West. Nevertheless, China has taken steps since the end of the 19th century to adapt it to radically different norms and a distinct history. This has led to an approach to international law that is substantially different than the traditionally Western understanding. The Chinese approach is, as discussed above, heavily tied into and subsequently strongly influenced by Chinese history, specifically China’s experiences with the West.

[1] Zhaojie Li, International Law in China: A Legal Aspect of The Chinese Perspective of World Order 480 (1996) (Unpublished S.J.D. thesis, Graduate Department of Law, University of Toronto) (On file with author). [2] Id. at 481. [3] Jerome Alan Cohen & Hungdah Chiu, People’s China and International Law 11 (1974). [4] Cohen & Chiu, supra Note 3, at 12. [5] Keyuan Zou, Chinese Approaches to International Law, in  China’s International Relations in the 21st Century 176 (Weixing Hu, Gerald Chan, Daojiong Zha eds., 2000). [6] Id. [7] Zou, supra Note 5, at 175-177. [8] Id. at 176. [9] Id. at 185. [10] Id. at 181-187.