Leveraging International Law: Is China Positioning Itself for Hegemony?
By Aristyo Rizka Darmawan
In the last few decades, scholars have debated whether China will replace the United States as the global hegemon. In his book, The Future is Asian, Parag Khanna, argues that Asia will be the leading region in the 21st century. Out of approximately 4.7 billion people in Asia, 1.4 billion are Chinese. Therefore, what happens in China will have a significant impact on the rest of Asia and will determine the trajectory of the so-called “Asian century”. Aligned with Khanna, Kishore Mahbubani, a veteran diplomat and professor at the National University of Singapore, also argues that after the European-dominated 19th century and American-led 20th century, the 21st century will belong to Asia.
The overarching theme for those who study the Asian century should focus on the use of international law. As Ian Hurd argues in his book How to Do Things with International Law, states tend to use international law as justification for their foreign policy decisions to advance their national interest.
In the 19th century, Europe successfully shaped international law to advance its interests, often using it as a tool to justify colonization. The concept of freedom of the sea, introduced by Hugo Grotius, has become the foundation of modern law of the sea that allowed European imperialism and colonialism to flourish. In this, it is evident how international law was tailored to serve the interest of European states.
Though Europe did not establish a global, multilateral institution, it did set up several institutions that created and interpreted international law. One of the most important of these was the first Hague Peace conference in the late 19th century. The conference created the Convention for the Pacific Settlement of International Disputes, setting up the Permanent Court of Arbitration (PCA), which remains in effect today. The PCA is regarded as a significant institution because it is the first to offer a peaceful settlement of disputes among states.
During the American century, additional international institutions were established. The United Nations, for example, has created a new chapter for modern state relations in the post-World War II period. The Bretton Woods institutions, the International Monetary Fund and the World Bank, have become similarly focal in creating the world economic order.
The United States similarly has shaped the doctrine and practice of international law as a superpower. One example is the US-introduced concept of pre-emptive strikes. The unilateral concept has become a legal basis for the United States to “attack against an enemy in response to an obvious threat of attack by that enemy.” Despite some criticism, the doctrine has been used by the US, including in the invasion of Iraq in 2003.
The United States has not only shaped the development of international law to benefit its interests, but more importantly has created multilateral institutions based on international law that shape global governance.
This begs the question, what will the Asian century’s contribution be to the shaping of international law? Indeed, in the last several years, China has introduced the concept of international law with Chinese characteristics. As Robert Williams points out, China wants to use international law as a “tool for accomplishing objectives, a source of legitimation or delegitimation, and a constitutive element of China’s interests… China is actively pushing to shape legal norms across a range of issues.” Therefore, by having the capacity to shape international law, China can pick and choose to comply with international law, which serves China’s interest and deflects from the international rules that will not advance its interests.
Like Europe and the United States in their respective centuries as leading global powers, China wants to shape international law to its benefit. With its growing economy and military capacity, China is positioning itself as a leading global power.
However, China’s aim to create a new international legal order with Chinese characteristics is not as straightforward as it seems. Unlike the European century, the American century has left more settled and comprehensive international law and institutions. This makes it more difficult for China to recreate or establish a new international legal order that serves its own interest.
Within the Law of the Sea for example, there is the United Nations Convention on the Law Of the Sea (UNCLOS), which is regarded as the constitution for the ocean with most of its provisions regarded as customary international law. Therefore, all state activities in the ocean should be based on UNCLOS. Indeed, China is a party to UNCLOS. However, it seems that China does not comply with provisions in the conventions when such compliance interferes with their national interest. Instead, China sought to create a new norm by introducing the nine-dash line in the South China Sea, which is based on a historical claim absent of any legitimacy in UNCLOS.
China’s unilateral acts to enforce its territorial claim within the nine-dash line has shown that the government intends to create an international law based on state practice. Under Article 38 of the Statute of the International Court of Justice (ICJ), if accepted by the international community, state practice can help formulate customary international law. Many states have protested China’s actions through diplomatic notes to China or verbal notes to the United Nations, showing that the international community does not accept China’s unilateral claim as customary international law.
Moreover, with the existing UNCLOS already well established, it is unlikely that China will strengthen its claims under international law. Instead of creating a new norm, China has been perceived by the international community as a violator of UNCLOS.
Of course it is in the interest of China, like other states, to shape international law to support its national interests and security. However, China should assure the international community that it is not breaching existing international laws through its unilateral actions. China should use legal means to ensure that international law aligns with its interests.
President Xi Jinping once said that it is important for China to have a peaceful rise and a lovable image of China from the international community. Therefore, China should focus its energies on the negotiation of new international treaties, or on shaping existing laws by pushing for favorable interpretations in the ICJ instead of having a unilateral interpretation of international law and disregarding the current international legal order.
The fact that China disregarded the 2016 Permanent Court of Arbitration ruling brought by the Philippines creates an image that China does not play by the rules of international law. Because in international law, reciprocity is fundamentally important, trust by other countries is necessary to show that China will behave according to international law. Without reciprocity, the international community will feel both skeptical and threatened by China’s rise.
Aristyo Rizka Darmawan is Lecturer in International Law at the Universitas Indonesia and a Young Leader at the Honolulu-based Pacific Forum Foreign Policy Research Institute. His research focuses on the intersection between law of the sea and foreign policy in Southeast Asia. He holds a master’s in international law from The Fletcher School of Law and Diplomacy at Tufts University.
Photo is by Joe and Margy and is licensed under CC BY 2.0.
