The Rise of China and International Law: Taking Chinese Exceptionalism Seriously

366 Pages·2019·3.296 MB·English

by  Congyan Cai

The Rise of China and International Law
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The Rise of China
and International Law
Taking Chinese Exceptionalism Seriously
CONGYAN CAI
1
The Rise of China and International Law. Congyan Cai.
© Oxford University Press 2019. Published 2019 by Oxford University Press.
3
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Library of Congress Cataloging-i n- Publication Data
Names: Cai, Congyan., author.
Title: The rise of China and international law : taking Chinese exceptionalism seriously / Congyan Cai.
Description: New York : Oxford University Press, 2019. | Series: Law and Global Governance Series |
Includes bibliographical references and index.
Identifiers: LCCN 2019011169 | ISBN 9780190073602 ((hardback) : alk. paper)
Subjects: LCSH: International law—C hina. | International and municipal law—C hina. |
China— Foreign relations— 1976– | Exceptionalism— China.
Classification: LCC KZ4376 .C35 2019 | DDC 341.0951—d c23
LC record available at https://l ccn.loc.gov/ 2019011169
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Foreword
The present book deals with two sides of a major question: the role of the
People’s Republic of China for the development of international law, and the
role of international law for the development of China. Professor Congyan
Cai of Xiamen University is well qualified to meet this formidable challenge.
Widely traveled academically, he ably integrates perspectives from inside and
from outside China.
Much has been written on different aspects of the role of the People’s Republic
of China for the international legal order. Apart from Judge Hanqin Xue’s mag-
isterial Hague Lectures,1 however, the general question of the relationship be-
tween China and international law has, to my knowledge, not been addressed
as comprehensively as in this book. Professor Cai, author, proceeds from a clas-
sical international relations perspective on rising and declining powers. The au-
thor pursues the question of what effect current international law has, or can
have, on the way in which China acts, how China exists in the international
community, and how China can shape international law.
The principal virtue of the book lies in the combination of current theoret-
ical approaches and typologies with practical developments in specific areas.
The author prepares the ground by identifying characteristic elements of
present- day international law (Chapter Two) and of China (Chapter Three),
combining self- understanding and external observation. The core part of the
book consists of four chapters in which the author analyzes crucial elements
of the relationship between China and international law. In Chapter Four he
analyzes four regimes (Peace and Security; WTO and Investment Law; Human
Rights; and Cybersecurity) from the perspective of a move from “norm compli-
ance to norm entrepreneurship” (Chapter Four). Chapter Five reviews China’s
roles with respect to international institutions, ranging, as the author puts it,
from China as an “outsider,” to that of a “partner,” a “member,” and a “sponsor.”
Chapter Six deals, in an insightful way, with the changing role of Chinese
courts regarding the application of international law. And Chapter Seven,
entitled “Lawfare in Dispute Settlement,” addresses the way in which China
has approached formal international dispute settlement procedures, comparing
particularly the South China Sea arbitration and procedures under the WTO
1 Hanqin Xue, Chinese Contemporary Perspectives on International Law: History, Culture and
International Law (Leiden: Martinus Nijhoff Publishers, 2012).
The Rise of China and International Law. Congyan Cai.
© Oxford University Press 2019. Published 2019 by Oxford University Press.
xii Foreword
dispute settlement system. The book concludes with a short Chapter Eight,
entitled “Taking Chinese Exceptionalism Seriously.” On this basis, Professor
Cai suggests that the situation of China is characteristically different from that
of previously rising powers in that, today, China is integrated into a more devel-
oped international legal order.
The book is a valuable attempt to conceive the relevance of international
law for what Professor Cai describes as the “rise of China.” To achieve this aim,
he neither remains at high levels of abstraction nor does he confine himself to
describing specific developments in certain fields. He rather identifies crucial
points by applying pertinent typologies to relevant sets of facts. One need, of
course, not agree with his general assessment and his specific analyses, but they
offer important points of departure for an informed global scientific debate.
Professor Cai has prepared parts of this book during his nine-m onth visit in
2016 as a fellow at the Berlin-P otsdam Research Group “The International Rule
of Law— Rise or Decline?” His project was particularly pertinent and fruitful in
this context. Since 2015, the aim of the Research Group is to determine: Can we
“under the current significantly changing conditions, still observe an increasing
juridification of international relations based on a universal understanding
of values, or are we, to the contrary, rather facing a tendency towards an
informalization or a reformalization of international law, or even an erosion of
international legal norms?” Observers may detect a Western perspective in this
formulation. Be this as it may, the way in which this question is addressed by
Professor Cai helpfully both integrates and transcends a Western perspective.
Georg Nolte
Humboldt University Berlin,
Member of the International Law Commission
Acknowledgments
This book builds on and purports to deepen a previous article titled “New Great
Powers and International Law in the 21st Century,” which I published in the
European Journal of International Law (Vol. 24, No. 3, 2013). I am deeply in-
debted to Professor Benedict Kingsbury and Professor José E. Alvarez, who
hosted me as a Fulbright Scholar and a Global Research Fellow (2011–2 012)
at the New York University (NYU) School of Law, where I started my new re-
search plan of “New Great Powers and International Law” and completed the
draft of the aforesaid article.
Special appreciation should be forwarded to Professor Anthea Roberts
from the Australian National University School of Regulation and Global
Governance. Anthea and I share many academic interests. I am thankful that
Anthea, during her working for Columbia University School of Law (CLS),
invited me as a short-t erm visiting professor (December 2014) at the CLS. For
the first time I talked with Anthea about my plan to write a book about China
and international law while in New York. I highly appreciate the encourage-
ment and support from her during my production of this book.
I must forward my gratitude to Professor Georg Nolte from Humboldt
University School of Law, who in 2016 kindly invited me as a Senior Fellow to
join the Research Group (KFG) engaging “The International Rule of Law—R ise
or Fall?,” which Professor Nolte co- chairs with Professor Heike Krieger from
the Free University of Berlin School of Law. Given that the rise of China has
obviously raised a great concern for international rule of law toward which dif-
ferent observers and policymakers have different and competing views, I do
benefit much from the involvement in the Research Group. As a matter of fact,
the draft of Chapter Three of this book was completed and reported to the KFG
during my stay in Berlin. I offer thanks to all members of the KFG for their very
helpful comments.
Many colleagues, friends, and students have given much help for my pro-
duction of this book. I should mention Professor Mingxin Zhu, Professor
Huachun Guo, Dr. Yujia Wei, Dr. Yue Zhang, Ph.D. students Jie Liu, Yifei
Wang, and Eric Klemm. In particular, Professor Nolte read my manuscript and
wrote a very kind foreword; Professors Andrew Hurrell, Benedict Kingsbury,
and Richard B. Stewart agreed to include my book in the Law and Global
Governance Series. I am also grateful from my heart to many people for their
encouragement and support during my academic career. In particular, they
xiv Acknowledgments
include Professor Huaqun Zeng, Professor Shujie Qi, Professor Wenhua Shan,
Professor Chongli Xu, Professor Fangqin Song, Professor Fei Yu, Professor Jin
Huang, Professor Naigeng Zhang, Professor Yanping Lin, Professor Yao Huang,
Professor Huawen Liu, Professor Jiangyu Wang, Ambassador Xinmin Ma, and
Ambassador Ang Sun.
Lastly and most importantly, I thank my parents, my wife, and my sons for
their understanding, patience, and support.
Chapter Six is based on my paper titled “International Law in Chinese
Court during the Rise of China,” which was published at the American Journal
of International Law (Vol. 110, No. 2, 2016). The Chinese version of Chapter
Seven was recently published with some revisions in the Chinese Yearbook of
International Law (2019).
This book is one of the outcomes of several research projects funded by China’s
National Social Science Planning Office (NSSPO) and Xiamen University. They
include “Improve Chinese Discourse in International Economic Legal Rules-
Making” (15AZD081), “Improve Chinese Legal Discourse in the Sea-r elated
International Affairs” (18VHQ007), and “The Rise of China and International
Legal Order” (20720140000) and “China’s Comprehensive Participation in
Global Governance and International Rule of Law” (17@ZH014). This book is
also a part of the aforesaid project of “The International Rule of Law—Rise or
Fall?” of the KFG.
Congyan Cai
Xiamen, China
Abbreviations
AB Appellate Body
ADB Asian Development Bank
AIIB Asian Infrastructure Investment Bank
APEC Asia- Pacific Economic Cooperation
APL Administrative Procedural Law
ASEAN Association of Southeast Asian Nations
BIT Bilateral Investment Treaty
BRI One Belt and One Road Initiative
BRICS Brazil, Russia, India, China, and South Africa
CAT International Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
CBRC China Banking Regulatory Commission
CCP Chinese Communist Party
CESCR Committee on Economic, Social and Cultural Rights
CFIUS Committee on Foreign Investment in the United States
CISG United Nations Convention on Contracts for the International Sale
of Goods
COC Code of Conduct
COMECON Council for Mutual Economic Assistance
DOC Declaration on Conduct
DSB Dispute Settlement Body
DSU Dispute Settlement Understanding
EU European Union
FDI Foreign Direct Investment
FIFD Friends of Investment Facilitation for Development
FTA Free Trade Agreement
G- 7 Group of 7
GATT General Agreement on Tariffs and Trade
GDP Gross Domestic Product
GPCL General Principles of Civil Law
HIL Hegemonic International Law
IBRD International Bank for Reconstruction and Development
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICSID International Centre for Settlement of Investment Disputes
ICT Information and Communication Technology
ILC United Nations International Law Commission
IMF International Monetary Fund
ISDS Investor- State Dispute Settlement
ITLOS International Tribunal for the Law of the Sea
The Rise of China and International Law. Congyan Cai.
© Oxford University Press 2019. Published 2019 by Oxford University Press.
xvi Abbreviations
MFA Ministry of Foreign Affairs
NAFTA North American Free Trade Agreement
MFN Most- Favored- Nation Treatment
NATO North Atlantic Treaty Organization
NDB New Development Bank
NGO Nongovernmental Organization
NIEO New International Economic Order
NPC National People’s Congress
NPCSC National People’s Congress Standing Committee
NRMs Nonregional Members
NT National Treatment
PCIJ Permanent Court of International Justice
PFM Preliminary Founding Member
PPP Public- Private Partnership
PRC People’s Republic of China
R2P Responsibility to Protect
RMs Regional Members
ROC Republic of China
SCM Agreement Agreement on Subsidies and Countervailing Measures
SCO Shanghai Cooperation Organization
SCS South China Sea
S&D Special and Differential Treatment
SOEs State- Owned Enterprises
SPC Supreme People’s Court
TAC Treaty of Amity and Cooperation in Southeast Asia
TPA Trade Promotion Authority
TPNW Treaty on the Prohibition of Nuclear Weapons
TPP Trans- Pacific Partnership
TPR Trade Policy Review
TRIPS Agreement on Trade- Related Aspects of Intellectual Property Rights
TTIP Transatlantic Trade and Investment Partnership
UDHR Universal Declaration of Human Rights
UN United Nations
UNCITRAL United Nations Commission on International Trade and Law
UNCLOS United Nations Convention on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
UNESCO United Nations Educational, Scientific and Cultural Organization
UNFCCC United Nations Framework Convention on Climate Change
UNGA United Nations General Assembly
UNGGE United Nations Group of Governmental Experts
UNSC United Nations Security Council
UPR Universal Periodical Review
USDOC United States Department of Commerce
USSR Union of Soviet Socialist Republics
USTR United States Trade Representative
VCLT Vienna Convention on the Law of Treaties
WB World Bank
WTO World Trade Organization