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Article

Abstract

Since the end of the Cultural Revolution in the 1970s and the conclusion of Mao Zedong’s reign, the People’s Republic of China (PRC or China) has made progress in its understanding of both domestic and international law. In the domestic context, China has initiated improvements to its statutes and regulations, its law enforcement agencies, and its judicial system. These steps forward have been offset by periodic missteps that have resulted in criticism from external organizations, including international human rights groups and foreign government entities, about continuing or lingering deficiencies in China’s approach to the law. Regardless, in comparison to the Mao-era legal concepts of “rule by law” and “rule of man,” China’s authoritarian regime has recently made some positive strides toward what outside observers hope could someday reflect a true rule-of-law system. Nevertheless, concerns remain and the proverbial jury is still out on whether China’s leaders will tolerate domestic legal reforms that would bring China’s legal system closer to the liberal model. Over the course of the past three decades, China has also made some progress in its understanding of international law and acceptance of the existing international legal order. Observers no longer read or hear mainstream Chinese legal experts use phrases such as the pejorative, Marxist-laden “bourgeois international law.” Instead, modern Chinese legal scholars recognize the importance of all nations, including China, “understand[ing] and abid[ing] by the rules of the international community.” Perhaps even more importantly, Chinese officials have begun to make more progressive statements about international law. In October 2006, the legal committee of the United Nations General Assembly discussed the subject of the rule of law. At that meeting of legal experts, Mr. Duan Jielong, the Director-General of the Treaty and Law Department of China’s Ministry of Foreign Affairs, gave a speech regarding China’s perspective on international law, during which he made several significant representations on the subject. First, Mr. Duan said that China’s Government “attaches great importance to the rule of international law and puts it into actual practice.” Then, he assured the international audience that China’s Government “faithfully fulfills all its obligations under international treaties.” Next, he said that China’s Government “strictly abides by the provisions and principles of international law,” and that “relevant international treaties and principles of international customary law, as well as the binding decisions adopted by the Security Council should all be strictly adhered to,” presumably by all nations. With regard to interpreting international treaties, Mr. Duan said that “uniform application of international law should be ensured” and that such uniform application is “essential for the rule of law at the international level.” Such representations suggested that China has turned a corner in terms of understanding international law and accepting the existing international legal order. A question that the world must consider, however, is whether these positive assurances by Chinese officials like Mr. Duan reflect a genuine acceptance of international law and the existing international legal order or whether such assurances are merely rhetoric. That question will be the focus of this Article, as viewed through the prism of a particular subspecialty of international law. By its nature, international law can create challenges in any effort to assess whether a particular nation accepts the existing international legal order. One complication stems from the multiple sources of law that comprise international law. There is no single source of international law, rather it is composed of conventional law, customary law, judicial decisions, and learned treatise. Moreover, international law covers a wide range of activities between nations and organizations, including, but not limited to, international trade, international armed conflict, human rights, and environmental protection. Thus, any assessment of a nation’s acceptance of international law cannot be accomplished with a single, broad-brush stroke or general characterization. An additional complication derives from the fact that a particular nation, such as China, might make a deliberate decision to adhere to certain existing rule-sets of international law while simultaneously taking a different approach to other rule-sets. In general, China has indicated its intent to work within existing international systems. For example, in a 2007 report, President Hu Jintao stated that China will “work to make the international order fairer and more equitable,” implicitly affirming that China will work within the existing international legal order. Similarly, the Assistant Minister of Foreign Affairs Shen Guofang stated in a 2007 speech that China should enhance its ability to determine the agenda and its ability to make use of the rules by playing a substantive role in all kinds of consultations and the writing of international rules. It should show even more initiative in participating in international affairs and in building the multilateral system. Thus, the world sees China operating within some specific rule-sets of the international legal order, such as rule-sets governing international trade. This does not necessarily mean that China has accepted all of the rule-sets within the greater body of international law. In his insightful 2009 study, China’s International Behavior, China-expert and current- White House official Dr. Evan S. Medeiros assessed that “[t]here are more instances of China gradually accepting international rules than objecting to and then trying to revise them (and succeeding).” Looking ahead, he further concluded that China is “focused far more on working within the current rules and institutions to accumulate power and influence than on opposing and revising them.” Ultimately, however, Medeiros recognized that China does not necessarily accept every ruleset of international law and, additionally, that its actual intent with respect to some rule-sets is unclear. Medeiros concisely framed the bottom-line question as follows: “does China accept the prevailing rules or does it seek to rewrite them?” This Article considers the Medeiros question for a particular rule-set of international law—namely, the international law of the sea. Specifically, it examines China’s rhetoric on law of the sea matters in recent years, along with its official actions and the realities of the law of the sea, and assesses whether China accepts the prevailing rules or seeks to rewrite them. Part II of this Article identifies some fundamental realities of the law of the sea, which helps frame the remainder of the discussion. Part III considers whether China’s policy preferences are met by those realities, and identifies China’s options for ameliorating any disconnects between those preferences and realities. Part IV examines some specific uses of rhetoric by China on law of the sea matters and evaluates the validity of that rhetoric. Part V discusses some potential concerns about China’s use of this rhetoric and Part VI provides some specific recommendations on how China could reassure the world of its intentions on matters governed by the law of the sea. In the end, this Article will answer the Medeiros question and conclude whether or not China accepts this body of international law.

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