China adds valid voice to shaping international order
Phil C.W. Chan says China's assertion of its sovereignty should not be automatically seen as a sign of its aggression, or as acting outside international law and threatening global order
Following China's vetoes of United Nations Security Council action over Syria, Susan Rice, the now former US ambassador to the UN, expressed disgust about China impeding protection of civilians and enabling mass killings.
On whistle-blower Edward Snowden managing to travel from Hong Kong to Moscow, US Secretary of State John Kerry accused China of meddling.
Through its territorial claims in the East China Sea and the South China Sea, China also stands accused of aggression towards its neighbours.
Central to these accusations is the principle of state sovereignty. In Western academic and policy circles, sovereignty has become a word almost dirtier than war. The reality is that sovereignty is as important as it ever has been.
The United States invariably justifies its domestic and foreign conduct on the basis of its interests and its laws. In its messy relationship with the European Union, the United Kingdom emphasises British interests, British laws, and British sovereignty. And as China lays claims to islets in the East China Sea and the South China Sea, Japan, the Philippines and Vietnam assert their territorial sovereignty.
But many assume that, in exercising sovereignty, China will ignore international law and even threaten international order. Such an assumption overlooks how international law moderates China's exercise of sovereignty.
In caricaturing China's approaches to international law as signifying its aggressive strategies, the assumption also deprives the development of international law of important input.
In appraising China's approaches to international law and the international order, one must be cognisant of China's historical experience. China's approaches have been heavily influenced by the military events and international agreements since its defeat in the opium war in 1842.
There is a real and enduring mentality on the part of China, its politicians and people, that China has been a victim of international law. Having been reduced almost to a colony, China regards state sovereignty to be the bulwark against foreign invasions and interference.
China (and many non-Western countries) and Western powers disagree over the many facets of human rights, democracy, self-determination, and international peace and security. Western powers, often without due regard for their own domestic action, assert that international human rights law possesses a universal character, on the basis of the (non-legal, non-binding) Universal Declaration of Human Rights, customary international law, international human rights treaties, and the normative and moral values of human rights.
The views, interests and concerns of Asian and African states and their peoples are relegated to secondary or little importance. Worse, they are regarded as hindrances or threats to the stability of the international order. When Western powers disregard international law, their non-compliance is taken as random or justified by necessity or political realities, or as reiteration of the legitimacy of Western systems, values and norms.
The people of Hong Kong ought to remember that our struggle for universal suffrage has its roots not in Chinese communism, but in British denial of this most basic right for a century and a half. When the United Kingdom changed its law to deny us British citizenship, there was little international outcry.
Every state has its characteristics, traditions, and pretensions. Wholesale dismissal of China's historical-cultural orientation does not help one understand China's approaches to the international order. It also perpetuates international law's Western-centric nature.
Of course, identities, behaviour and norms evolve over time.
China's potential to influence, shape and benefit the content of international law is often disregarded or misunderstood. In the process, China is reduced to the role of a passive object of international law. Non-compliance is taken as evidence that China is a threat, a non-status-quo power, or a power intent on revising the international order. The potential of China's non-compliance as positive change to those norms and rules, if not also to the international system itself, is discounted.
The assumption that Western systems, values and norms are superior serves to deny the "outsider" legitimacy in transnational discourses. Any criticism by the "outsider" of the flaws or failings of the "insider" is automatically dismissed. Both compliance and non-compliance with a Western system, value or norm are then taken as reflecting and reaffirming the legitimacy of the Western system.
The roles China plays in international affairs exemplify the potential and limits of its interactions with the current order as it acquires greater recognition and influence as a rising power. Between 1945 and August 2012, the veto was exercised 269 times. The Soviet Union/Russia cast its veto 127 times, the United States 83 times, the United Kingdom 32 times, France 18 times, and China eight times.
The fact that China vetoed an otherwise widely supported draft Security Council resolution, over the internal conflict in Syria, at the expense of its popularity, speaks volumes about China, the Security Council, and the current international order governed under the framework of international law.
Instead of weakening the Security Council, China has prevented it from being what scholar Richard Falk calls a "law-laundering service" to legitimise the unilateral will of powerful states.
Phil C.W. Chan is senior research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and at PluriCourts, University of Oslo