Beyond History and Sovereignty PDF
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Beyond History and Sovereignty China and the Future of International Law Wim Muller Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, September 2013 (defence) European University Institute Department of Law Beyond History and Sovereignty China and the Future of International Law Wim Muller Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Martin Scheinin, EUI Supervisor Professor (emeritus) Francesco Francioni, EUI Professor Wenqi Zhu, Renmin University, China Dr. Jonas Grimheden, EU Fundamental Rights Agency, Vienna © Wim Muller, 2013 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author European University Institute Department of Law Beyond History and Sovereignty China and the Future of International Law Wim Muller Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Martin Scheinin, EUI Supervisor Professor (emeritus) Francesco Francioni, EUI Professor Wenqi Zhu, Renmin University, China Dr. Jonas Grimheden, EU Fundamental Rights Agency, Vienna © Wim Muller, 2013 i No part of this thesis may be copied, reproduced or transmitted without prior permission of the author ii Summary Since the beginning of its ‘reform and opening up’ policy in 1978, the People’s Republic of China has grown into a major power in international relations. This thesis explores the implications of this development for public international law, which itself has grown and undergone structural changes since the end of the Second World War. The number of actors has grown, the place of the individual has been enhanced and efforts have been made towards the development of normative hierarchy and in the views of some even constitutionalisation. Yet the PRC has retained an outlook firmly rooted in the concept of state sovereignty, emphasising non-interference and equality of states. This approach stems from the history of China’s encounter with the international legal order in the nineteenth century, when its own sinocentric world order fell victim to its violent encounter with western international law. The current international legal order still retains traces of the legacy of imperialism, although international law has also served as a vehicle for the realisation of the humanitarian ideals of its practitioners and participants. In China’s sovereigntist approach to international law, the rhetoric and the interests of the developing world play a major role, as China tries to combine the sometimes contradictory roles of a ‘responsible great power’ on the one hand, and leading developing nation on the other. This thesis analyses its practice in international human rights law, the law of armed conflict, international criminal law, and various areas related to international peace and security, at normative levels from general political and diplomatic discourse to the acceptance and interpretation of positive law. This analysis demonstrates that China brings a welcome alternative voice to a still western-centric international legal system. Its defensive adherence to sovereignty, however, creates the risk of normative erosion or dilution in various areas in which it claims to have accepted existing international norms. China is not yet a creator of new norms, but has grown very adept at modifying and reshaping existing norms, both legal and societal, to bring them more in line with its preferences. This presents both challenges and opportunities. iii iv To my parents 袁以慧 Franciscus Clemens Antonius Muller In memory of Christopher Kevin Boyle (1943 – 2010) v vi
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