CYIL vol. 13 (2022)
Volume 13 (2022) presents a variety of studies and articles covering many issues of contemporary international and European law.
Czech Yearbook of Public & Private International Law
Czech Yearbook of Public & Private International Law Č eská ro č enka mezinárodního práva ve ř ejného a soukromého
Č eská spole č nost pro mezinárodní právo Czech Society of International Law
Editor-in-Chief: Professor PAVEL ŠTURMA This Yearbook is included in the SCOPUS international database.
KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA Č R
Czech yearbook of public & private international law = Č eská ro č enka mezinárodního práva ve ř ejného a soukromého. Vol. 13.– Praha : Č eská spole č nost pro mezinárodní právo, 2022. – xv, 436 stran. Č eská a anglická resumé Vydáno v nakladatelství Eva Rozkotová. – Obsahuje bibliogra fi i a bibliogra fi cké odkazy
ISBN 978-80-87488-50-8 (Eva Rozkotová ; brožováno)
* 341.1/.8 * 341.9 * (048.8:082) * (058) – mezinárodní právo ve ř ejné – mezinárodní právo soukromé – kolektivní monogra fi e – ro č enky
341 – Mezinárodní právo 
Tato Ročenka je vydávána s ϐinanční podporou Rady vědeckých společností při Akademii věd ČR. This Yearbook is published with a ϐinancial support of the Council of Scientiϐic Societies of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodního práva veřejného a soukromého advokátní kanceláři Skils, s.r.o. © Česká společnost pro mezinárodní právo, 2022 © Czech Society of International Law, 2022 Vydala Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, v rámci mezinárodního publikačního projektu Passau-Berlin-Praha ISSN 1805-0565 ISBN 978-80-87488-50-8
BOARDS AND EDITORS
EDITORIAL BOARD Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Palacký University in Olomouc Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member and former chair of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague
ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA † Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law
Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg, Masaryk University in Brno, Faculty of Law Professor PAUL TAVERNIER † University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague
EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, member of the ILC
EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague
REVIEWERS The Editors and authors are grateful to the following reviewers of articles of this volume: Josef Bejček, Ondřej Dostál, Monika Forejtová, Mahulena Hofmann, Ján Klučka, Milan Lipovský, Jan Ondřej, Monika Pauknerová, Harald Scheu, Pavel Šturma, Alla Tymofeyeva and Kristýna Urbanová.
PREFACE Pavel Šturma
I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS
The Attitude of the People’s Republic of China Toward International Law
Max Hilaire Animus Aggressionis: The Role of Intent in the Analysis of Armed Attack in Cyberspace 49 Jakub Spáčil Development and Current Perspectives of the Israeli Palestinian Conflict 62 Veronika D’Evereux Holes in the Hull. Legal Obstacles to Celestial Body Mining 73 Charles Bird Migration from Belarus to Lithuania, Poland, Latvia in 2021–2022 as Hybrid Threat and International Legal Aspects 82 Violeta Vasiliauskienė Dalibor Jílek and Jana Bališová Article 18 of the ECHR as an Early Warning Instrument for Threats to the Democracy and the Rule of Law Law (Latest Developments) Armen Harutyunyan The Impartiality of Judge and the Principle of Presumpion of Innocence in the Light of Recent ECtHR Case Law Monika Forejtová Reparations to Corporations: Just Satisfaction Awarded by the European Court of Human Rights to Business Entities 126 144 159 II. HUMAN RIGHTS AND INTERNATIONAL REFUGEE LAW IRO: Unaccompanied Children and Their Interests 101
Alla Tymofeyeva The Exceptions of Right to Appeal in Criminal Matters under Article 2 of Protocol No. 7 to the ECHR
III. INTERNATIONAL CRIMINAL LAW
Is it Possible to Prosecute the Head of State?
Katarína Šmigová Command Responsibility for Crimes Committed by Private Military and Security Companies
IV. INTERNATIONAL NUCLEAR LAW
A New Transnational Regime for Nuclear Liability and Compensation in Europe Jakub Handrlica The JCPoA and its Legal Status: If it Walks Like a Treaty, Does it Quack Like a Treaty? Lyubomir L. Sakaliyski Charting a Course Towards a Universal Regime of Liability for Nuclear Ships
V. INTERFERENCE WITH A MINOR’S PHYSICAL INTEGRITY: CZECH CASES IN THE INTERNATIONAL CONTEXT
“Interference with a Minor’s Physical Integrity: Czech Cases in International Context”. Minors’ Right to Healthcare in the Perspective of Freedom of Thought, Conscience and Religion
Helena Van Beersel Krejčíková Jehovah’s Witnesses and the Best Interests of the Child Petr Šustek Futile Medical Care: Children, Parents and Courts Tomáš Holčapek Compulsory Vaccination of Minors in the Czech Republic
VI. INTERNATIONAL ECONOMIC LAW
Integrating Climate Change Elements into International Investment Treaties: Definition of ‘Green’ Investment
Monika Feigerlová Impact of COVID-19 on Competition Law and Policy
Michal Petr Current Issues of Carousel International Trade in the EU, Including Criminal Law Incidence
VII. CZECH PRACTICE OF INTERNATIONAL LAW
The Work of the International Law Commission at the Final Year of its Quinquennium Pavel Šturma Activities of the Sixth Committee of the UN General Assembly during its 76th Session Marek Zukal – Jan Mais List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2021 till 31st December 2021
VIII. SHORTER ARTICLES AND NOTES
Professor Čestmír Čepelka Passed Away at the Age of 95
Pavel Šturma Professor Paul Tavernier Passed Away
Pavel Šturma Moot Courts on Issues of Public International Law in 2021/2022
IX. BOOK REVIEWS
Environmentalizácia medzinárodného práva verejného a jej vplyv na právo Európskej únie a právny poriadok Slovenskej republiky [The Influence of Environmentalization on Public International Law and its Impact on the Law of the European Union and the National Law of Slovakia]
Jan Ondřej Vers la pénalisation du droit international des droits de l’homme? Katarína Šmigová 70th Anniversary of the European Convention on Human Rights
X. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY
Dear Readers, I have great pleasure to introduce the thirteenth issue of the Czech Yearbook of Public & Private International Law (CYIL). Volume 13 appears, as usual, at the end of autumn, which is the typical time for the readers of this Yearbook who are interested in the developments in international law. We did our best to meet this expectation even in 2022, which is the year affected by the war in Ukraine and the following energy crisis and the rising inflation. The Czech Yearbook was established by the Czech Society of International Law in 2010. It was done thanks to the Board and the members of this association of Czech international lawyers, both academics and practitioners, who felt a lacuna of such a specialized journal or yearbook. Since 2014, the Czech Yearbook has been published by the international publishers, RW&W, Science & New Media, Passau-Berlin-Praha, which, in cooperation with Süd Ost Service, ensures its distribution in Germany and Western Europe. As you know, the CSIL publishes the Yearbook in both printed and electronic versions (www.cyil.eu). Since 2015, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. This growth of the Czech Yearbook ranks it among the larger publications of its kind in an international comparison. However, in spite of the significant rise of publishing costs, we are proud to announce that this publication is still available for free for members of the Czech Society of International Law (included in the membership fee) and on sale for a very reasonable price. The Czech Yearbook, in spite of its difficult beginnings, has succeeded in attracting a sufficient number of authors and readers in the Czech Republic and abroad. It has found its place among other similar publications on international law. As usual, Volume 13 (2022) presents a variety of studies and articles covering many issues of contemporary international and European law. The Yearbook begins with the studies related to various aspects of conflicts and use of force, including new and hybrid threats. The first part also includes studies on the attitude of China toward international law and legal problems of celestial body mining. The readers will also find many other traditional sections here, including human rights law. This section includes, in addition to the study on unaccompanied refugee children, four articles focused on various important but not yet much covered aspects of the case law of the European Court of Human Rights. A section of international criminal law presents, inter alia , articles focused on salient issues, such as the possibility to prosecute the head of State, or command responsibility for international crimes committed by private military and security companies. As in the previous years, the CYIL also presents special sections on international nuclear law and on problems of the interference with minor’s physical integrity in health law. According to its tradition, Volume 13 of the CYIL also covers some aspects of international economic law, such as integrating climate change elements into international investment treaties.
The Yearbook also covers the Czech practice of international law, in particular, a list of treaties ratified by the Czech Republic, reports on the recent works of the International Law Commission and activities of the Sixth (legal) Committee of the UN General Assembly, book reviews, and a survey of the Czech international law bibliography. This volume also pays tribute to two great professors and members of the Advisory Board of the CYIL, Prof. Čestmír Čepelka and Prof. Paul Tavernier, who passed away this year. As usual, the authors of this publication, who are from academia and legal practice, come from both Czech and foreign institutions. This volume includes several contributions from foreign professors and researchers, coming from or teaching in Armenia, Bulgaria, Lithuania, Slovakia, Ukraine, the United Kingdom, and the United States. As to the Czech institutions involved, these include Charles University in Prague, Palacký University in Olomouc, the Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the University of South Bohemia in České Budějovice, the University of West Bohemia in Pilsen, the Ministry of Foreign Affairs, as well as some private law firms. This publication appears thanks to a continuing financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for the generous financial support from the law firm Skils (Prague). We also wish that this volume of the Czech Yearbook will find many readers and we are already looking forward to new authors and new contributions for our next volume in 2023. We are also grateful for any comments or suggestions on how to improve the quality of this journal. Prof. Pavel Šturma Editor-in-Chief
AEC – Atomic Energy Commission AIIB – Asian Infrastructure and Investment Bank ARSIWA – Articles on Responsibility of States for Internationally Wrongful Acts BRI – Belt and Road Initiative BRICS – Brazil, Russia, India, China and South Africa BSC – Convention of 31 January 1963 Supplementary to the Paris Convention of 29 July 1960 as amended by the additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (Brussels Supplementary Convention) CAI – China-EU Comprehensive Agreement CAT – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CCCTB – Common Consolidated Corporate Tax Base CCIT – Comprehensive Convention on International Terrorism CCP – Chinese Communist Party CEDAW – Convention on the Elimination of All Forms of Discrimination against Women CERCLA – Comprehensive Environmental Response, Compensation, and Liability Act CERD – International Convention on the Elimination of all Forms of Racial Discrimination CIRO – Constitution of the International Refugee Organization CJEU – Court of Justice of the EU CLC – International Convention on Civil Liability for Oil Pollution Damage CPTPP – Comprehensive and Progressive Trans-Pacific Partnership CROC – Convention on the Rights of the Child CRPD – Convention on the Rights of Persons with Disabilities CSC – Convention on Supplementary Compensation for Nuclear Damage DARIO – Draft Articles on the Responsibility of International Organizations DSB – WTO Dispute Settlement Body EC – European Community ECB – European Central Bank ECJ – European Court of Justice ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms ECN – European Competition Network ECOSOC – United Nations Economic and Social Council ECT – Energy Charter Treaty ECtHR – European Court of Human Rights ENMOD – Convention on the Prohibition of Milatary and Any Other Hostile Use of
Environmental Modification Technique ENO – extraordinary nuclear occurrence
EU – European Union FAO – Food and Agriculture Organization
FDI – Foreign Direct Investment GDP – gross domestic product GHG – greenhouse gas HICOG – High Commission for Occupied Germany IAEA – International Atomic Energy Agency 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 ICL – International Criminal Law ICN – International Competition Network ICSID – International Centre for Settlement of Investment Disputes ICTR – International Criminal Tribunal for Rwanda ICTY – International Criminal Tribunal for the former Yugoslavia IIAs – international investment agreements ILC – United Nations International Law Commission ILO – International Labor Organization IMF – International Monetary Fund IMO – International Maritime Organization IOCP – International Convention on the Establishment of an International Fund for Compensation for Oil Pollution IPCC – Intergovernmental Panel on Climate Change
IRO – International Refugee Organization ISDS – Investor-state dispute settlement ITLOS – International Tribunal of the Law of the Sea
JAXA – Japanese Aerospace Exploration Agency JCPoA – Joint Comprehensive Plan of Action MFN – most-favoured-nation treatment NATO – North Atlantic Treaty Organization NEA – Nuclear Energy Agency NGO – non-governmental organization NPC – National People’s Congress NPCSC – National People’s Congress Standing Committee OECD – Organisation for Economic Co-Operation and Development
OPA – Oil Pollution Act OST – Outer Space Treaty
PC – Convention on Th¬ird Party Liability in the Field of Nuclear Energy, as amended by the Additional Protocol of 1964 and by the Protocol of 1982 (Paris Convention) PLA – People’s Liberation Army PMC – Private Military Companies PMSC – private military and security companies PRC – People’s Republic of China RBSC – Protocol amending Convention of 31 January 1963 Supplementary to the Paris Convention of 29 July 1960 as amended by the additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 (Revised Brussels Supplementary Convention) RCEP – Regional Comprehensive Economic Partnership RPC – Protocol to Convention on Third Party Liability in the Field of Nuclear Energy, as amended by the Additional Protocol of 1964 and by the Protocol of 1982 (Revised Paris Convention) RVC – Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage SDGs – sustainable development goals SOLAS – International Convention for the Safety of Life at Sea TFEU – Treaty on the Functioning of the European Union UK – United Kingdom UN – United Nations UNCITRAL – United Nations Commission on International Trade 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 UNGA – UN General Assembly UNHRC – United Nations Human Rights Council UNIDO – United Nations Industrial Development Organization SDR – Special Drawing Rights SOEs – state-owned enterprises
UNMIK – United Nations Mission in Kosovo UNSC – United Nations Security Council U.S. – United States VAT – value added tax VC – Vienna Convention on Civil Liability for Nuclear Damage VCLT – Vienna Convention on the Law of Treaties
WHO – World Health Organization WTO – World Trade Organization
IN INTERNATIONAL LAW AND ORGANIZATIONS
CYIL 13 ȍ2022Ȏ THE ATTITUDE OF THE PEOPLE’S REPUBLIC OF CHINA TOWARD INTERNATIONAL LAW THE ATTITUDE OF THE PEOPLE’S REPUBLIC OF CHINA TOWARD INTERNATIONAL LAW Max Hilaire* Abstract: China’s attitude toward international law has been shaped by its Confucius conception of law and its experience with Europe and Japan, which imposed a series of unequal treaties on it and forced it to cede some of its national territories to them. The era of these so-called unequal treaties has been seen by China as a period of humiliation. During the Cultural Revolution, China’s attitude toward international hardened, as it viewed international law as “bourgeois” law. Communist China embraced the Soviet doctrine of international law but never quite developed an international tradition of its own. Chairman Mao’s disdain for international law was intended to shield his brutal policies from international scrutiny and condemnation. Second, Mao used international law as propaganda against western governments who were still colonizing African countries. The post-Mao era led to a change in China’s attitude toward international law, as China looked to develop its economy and emerge from isolation. China signed several human rights treaties, regained its seat at the United Nations, and joined the World Trade Organization. China recognized the following international norms as guiding principles: sovereign equality, non-intervention, territorial integrity, diplomatic immunity, and peaceful coexistence. As a major power, China became more assertive and has taken a different attitude toward international law. China has not quite implemented all human rights treaties into its domestic legal system; Chinese courts cannot rule on international law disputes; China has not accepted the compulsory jurisdiction of the International Court of Justice or other international tribunals; China has not been in full compliance with its WTO obligations. China has consistently vetoed Security Council resolutions to condemn violations of human rights and international humanitarian law, and it has blocked attempts by the Security Council to intervene in regional conflicts for fear it may set a dangerous precedent. China has also lobbied developing countries on the United National Human Rights Council to vote against condemnation of its human rights policies. Resumé: Postoj Číny k mezinárodnímu právu byl formován jejím Konfuciánským pojetím práva a jejími zkušenostmi s Evropou a Japonskem, které jí vnutily řadu nerovných smluv a donutily ji postoupit jim některá svá národní území. Éru těchto takzvaných nerovných smluv Čína vnímala jako období ponížení. Během kulturní revoluce se čínský postoj k me zinárodnímu přitvrdil, protože na mezinárodní právo nahlížela jako na „buržoazní“ prá vo. Komunistická Čína přijala sovětskou doktrínu mezinárodního práva, ale nikdy si zcela nevyvinula vlastní mezinárodní tradici. Opovržení předsedy Maa mezinárodním právem mělo chránit jeho brutální politiku před mezinárodní kontrolou a odsouzením. Za druhé, Mao použil mezinárodní právo jako propagandu proti západním vládám, které stále koloni zovaly africké země. Post-Mao éra vedla ke změně v postoji Číny k mezinárodnímu právu, protože Čína se snažila rozvíjet svou ekonomiku a vymanit se z izolace. Čína podepsala několik smluv o lidských právech, znovu získala své místo v Organizaci spojených národů
* Special thank you to Valeria Torres Ruiz for her valuable insight and research assistance in making this project possible. The thoughts expressed here are solely mine and I take full responsibility for the content of this project.
MAX HILAIRE CYIL 13 ȍ2022Ȏ a vstoupila do Světové obchodní organizace. Čína uznala následující mezinárodní normy jako hlavní zásady: svrchovaná rovnost, nezasahování, územní celistvost, diplomatická imu nita a mírové soužití. Jako hlavní mocnost se Čína stala asertivnější a zaujala odlišný postoj k mezinárodnímu právu. Čína neimplementovala do svého vnitrostátního právního systému zcela všechny smlouvy o lidských právech; čínské soudy nemohou rozhodovat o sporech mezinárodního práva; Čína nepřijala obligatorní jurisdikci Mezinárodního soudního dvora nebo jiných mezinárodních tribunálů; Čína plně nedodržuje své závazky vůči WTO. Čína důsledně vetovala rezoluce Rady bezpečnosti odsuzující porušování lidských práv a mezi národního humanitárního práva a blokovala pokusy Rady bezpečnosti zasahovat do regi onálních konfliktů z obavy, že by to mohl být nebezpečný precedens. Čína také lobovala u rozvojových zemích v Radě pro lidská práva OSN, aby hlasovaly proti odsouzení její politiky v oblasti lidských práv. Key words: Unequal treaties; Unfair trade practices; South China Sea disputes; History of international law in China; Treatment of Uighurs; US-China tariff war; Restricted market access; Xi Jinping leadership; Wolf Diplomacy; Opium Wars; Japanese occupation of Manchuria; China’s voting record in the Security Council About the Author: Professor Max Hilaire, Ph.D. , is president & CEO, Global Education, LLC; Former Professor & Chair, Department of Political Science, Morgan State University, Baltimore, MD, USA Introduction China’s attitude toward international law is shaped by its conception as a nation (civilization) and its early encounters with European states in which it was forced to sign unequal treaties by which it was subjugated to second-class status, humiliated for a century, and eventually forced to surrender some of its territories to European states. 1 China’s perception of international law has a lot to do with the way it was admitted into the international legal order and how it was treated from the unset. Under these so-called unequal treaties that were imposed on it, China was forced to make territorial concessions to various European powers: Britain took Hong Kong, Portugal took Macau, and Japan took Taiwan. 2 China, like much of the non-western world, was treated as an object instead of a subject of international law. 3 China initially rebuffed efforts by European states to establish diplomatic relations with them, and only signed such agreements under duress in the early twentieth century. 4 China always considered itself a superior nation to the rest of the world, and did not wish to extend diplomatic privileges to “barbarians.” The concept of the Westphalian states system as it emerged in Europe following the Thirty Years’ War was new and different from the Chinese conception of a nation (civilization). China never quite embraced the concept of the sovereign state as conceived by the Peace of Westphalia. Nor did it see the need to do so, as it saw itself as an advanced civilization and far superior to Europeans. China considered 1 SCHIAVENZA, M. “How Humiliation Drove Modern Chinese History,” The Atlantic (Oct. 25, 2013). 2 CHAN, M. “Rule of Law and China’s Unequal Treaties: Conceptions of the Rule of Law and Its Role in Chinese International Law and Diplomatic Relations in the Early Twentieth Century,” 25 Penn History Review , (2019), p. 10. 3 KISSINGER, H. On China , (2011), p. 12. 4 Ibid, p. 15.
CYIL 13 ȍ2022Ȏ THE ATTITUDE OF THE PEOPLE’S REPUBLIC OF CHINA TOWARD INTERNATIONAL LAW itself the Middle Kingdom, which placed it between Heaven and Earth. 5 That idea made China believe it was a superior nation, and that all other nations were barbarians. China saw no need to establish diplomatic relations with the rest of the world that needed China. 6 That idea of Chinese superiority also influenced China’s worldview and its early understanding of European international law. Since modern international law has its roots in Europe, for China international law was inferior to the laws that existed in China during the Ming and Qing Dynasties and their successors. Today China sees international law solely as a defensive mechanism to protect its domestic and foreign policies from international scrutiny, or as an instrument to improve its image abroad and advance its economic and political agenda. China does not have a rule of law-based tradition and was slow to adapt to the western legal tradition. For China authorities, the law is functional and should be used to impose order or to advance Chinese foreign policy. 7 The Chinese conception of law has its roots in Confucianism and Chinese nationalism. China takes the Positivist approach to law, which defines law as power, or a directive from the state. 8 Similarly, China holds a different conception of sovereignty from the European conception. China has always viewed itself as the dominant state, with all other states as vassal states. Although China has relied heavily on the European conception of sovereignty and the rights and privileges that accompany that concept, China does not feel bound by the other international norms that comprise the Westphalian legal order. China’s attitude toward international law is that it should be able to pick and choose which norms benefit it and which do not. China embraces the principles of sovereign equality of states, non intervention in the internal and external affairs of states, and the principle of power politics, or might make right. 9 Because of its humiliating experience at the hands of western powers, China views any attempt by the west to expand the boundaries of international law to include issues such as human rights, humanitarian intervention, the right of ethnic minorities to self-determination, and relaxation of diplomatic immunity law with deep suspicion and rejects them categorically. China opposes the concept of universality of human rights norms. Finally, China relies on ambiguous legal norms that are subject to varying interpretations, and which give it the latitude to project its power and influence abroad without inhibitions or constraints. 10 The Status of International Law in the Chinese Legal System China is a communist state, with all decisions made by the Chinese Communist Party (CCP) and the National People’s Congress (NPC) or the National People’s Congress Standing Committee (NPCSC). The Chinese Constitution is the supreme law of the land and all international treaties and customary international law, or other international agreements must be incorporated into domestic law by Chinese authorities. The Supreme People’s Court 5 See POMFRET, J. The Beautiful Country, and the Middle Kingdom: America and China, 1776 To the Present. 6 Ibid, p. 16–20. 7 CHAN, Phil C. W. “China’s Approaches to International Law Since the Opium War,” 27 Leiden Journal of International Law (2014), p. 864. 8 See, ORTS, Eric W. “The Rule of Law in China,” Vand. J. Trans. Law , (2001). 9 HOFFHEIMER, Daniel J. “China and the International Legal order: An Historical Introduction,” 11 Case W. Res. J. Int’l L. (1979), p. 264. 10 Ruhlig, T. “How China Approaches International Law: Implications for Europe,” European Institute For Asian Studies, (May 2018).
MAX HILAIRE CYIL 13 ȍ2022Ȏ and regional courts in Chinese do not have the authority to determine the legal status of international law and whether it is binding on China. Such decisions are made solely by the NPC, NPCSC, or the President and the Executive Council. Decisions in China regarding international law are made in absolute secrecy with no accountability. There are no checks and balances in China’s political system. The status of international law in Chinese is therefore ambiguous and the decision as to whether it is binding on the Chinese state is an ad hoc decision made by political bodies, not the Chinese judiciary. Although China has signed several international human rights treaties, its status in domestic law is questionable. Neither Chinese nationals nor foreigners can invoke a human rights treaty before a Chinese court. Nor can one challenge China’s non-compliance with its human rights obligations before an international tribunal. China is not a party to the Compulsory Jurisdiction Clause of the Statute of the International Court of Justice and has never been a plaintiff or defendant before the ICJ. China has repeatedly blocked resolutions in the United Nations Human Rights Council to review allegations of human rights violations against Chinese minorities. China is also party to several international conventions such as the Geneva Conventions of 1949, the Vienna Convention on the Law of Treaties, the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, the Vienna Convention on the Law of Treaties, and the Geneva Convention Relating to the Status of Refugees. However, the legislation implementing these conventions into the Chinese legal system leaves them subordinate to China’s Constitution and subject to political interpretation by the Ministry of Foreign Affairs or the National People’s Congress. 11 China continues to treat international law suspiciously and is highly selective about which international norms to embrace and which ones to reject. Sino-European Relations in the 19 th Century European encounters with China in the 19 th century were violent and brutal. China initially refused to receive emissaries from Europe on an equal footing. China saw itself as superior to everyone else, and Europeans saw China as an uncivilized nation, unfit to be admitted into the community of European nations. 12 Notwithstanding China’s long history and great civilization, China was relegated to second-class status as a nation/civilization. Following China’s refusal to meet Britain’s emissary because the Chinese rulers would not grant him equal status, Britain launched a military expedition against China. This led to a series of military exchanges between Britain and the Qing Dynasty in which Britain was victorious. Britain later fought the first Opium War with China between 1839 and1842, to sell opium to Chinese citizens. 13 At the time the sale of opium was prohibited under Qing law. British victory led to the signing of two treaties, the Treaty of Nanjing, and the Treaty of Bogue, signed in 1843. Under the Treaty of Nanking, China was forced to cede Hong Kong to Britain under a lease agreement, which lasted one hundred and fifty years. 14 China was 11 LI, Jerry Z., GUO, S. China, in Dinah Shelton (ed.), International Law and Domestic Legal Systems. NY: OUP (2011), p. 179. 12 OGDEN, S. “Sovereignty and International Law: The Perspective of the Peoples Republic of China,” NYUJ. Int’l Law & Policy , (1974). 13 See HANES, W. Travis III & SANELLO, F. The Opium Wars: The Addiction of One Empire and the Coercion of Another , (2002). 14 CHESTERMAN, S. “Asia’s Ambivalence about International Law and Institutions: Past Present and Futures,” 27 European Journal of International Law (2016), p. 951.
CYIL 13 ȍ2022Ȏ THE ATTITUDE OF THE PEOPLE’S REPUBLIC OF CHINA TOWARD INTERNATIONAL LAW subsequently forced to sign over one thousand such treaties, which gave foreign nationals special privileges and protection under Chinese law. 15 These treaties dealt with the rights of foreign nationals to trade in China; they extended the Most Favored Nation treatment to Britain, requiring China to make similar concessions to Britain that China gave to other foreign nations. The treaties also obliged China to grant privileges and immunities to British nationals. More importantly, the treaties recognized the principle of extraterritoriality. Under this principle, China was forced to abdicate its legal authority over foreign nationals by allowing their governments to exercise legal control over them for acts committed in China in violation of Chinese law. 16 The United States also requested similar preferential treatment for its nationals in China, which was later incorporated into the Treaty of Wanghia. 17 In 1858, Britain, the United States, and Japan fought the Second Opium War with China to secure greater concessions. The war led to the burning of the Summer Palace and the establishment of permanent diplomatic missions in China under the Treaty of Tientsin of 1858. 18 The treaty extended the extraterritoriality rights granted to citizens of Britain and the United States under the Treaties of Nanking and Bogue. They also gave American citizens who were owed a debt by Chinese nationals the right to sue in both Chinese courts and at the American consulate. However, Americans who owe a debt to Chinese nationals could also be pursued at the American consulate. The United States later restricted Chinese immigration to the U.S. under the Chines Exclusion Act of 1882. The U.S. Supreme Court later upheld the authority of the federal government to do so as part of its sovereign prerogative. 19 Chinese workers in the United States were mistreated at the hands of mobs, and their businesses and homes were destroyed and burned. These incidents forced the government of China to call on the United States to stop systematic discrimination against Chinese nationals and to treat them fairly. 20 The unequal treaties also forced China to cede some of its territorial possessions to Japan. Following a declaration of war on Germany by allied forces, Japan breached China’s neutrality during World War I by invading the German concession in Shandong. 21 After Germany and Austria surrendered to Japanese troops in Shandong, China sought to reclaim the province by reaffirming its neutrality in the war. However, Japan forced the Chinese President, Yuan Shikai, to sign the Twenty-One Demands Treaty, which forced China to recognize Japan’s rights over Shandong. This was yet another example of an unfair treaty that granted another foreign power rights and privileges in China. In the years following the end of World War I, Japan colonized Taiwan, and in 1939 occupied Manchuria. Japanese troops raped and murdered hundreds of thousands of Chinese citizens. 22 The Chinese people have 17 CHAN, M. “Rule of Law and China’s Unequal Treaties: Conceptions of the Rule of Law and Its Role in Chinese International Law and Diplomatic Relations in the Early Twentieth Century,” 25 Penn History Review (2019), p. 20. 18 WONG, D. Ibid. 19 Chinese Exclusion Case, U.S. Supreme Court, 1885. 20 WU TINGFANG, America, Through the Spectacles of an Oriental Diplomat (1914), p. 64. 21 CHOI, S. “Nationalism and Martyrdom: Shinto-Shrine Controversy during the Japanese Colonial Regime in Korea,” at https://core.ac.uk/download. 22 For a comprehensive study of Japanese atrocities in Manchuria, see IRIS CHANG, The Rape of Nanking: The Forgotten Holocaust of World War II (2012). 15 WONG, D. China Unequal Treaties: Narrating National History , (2005), p. 1. 16 Ibid.
MAX HILAIRE CYIL 13 ȍ2022Ȏ never forgiven Japan for the atrocities its forces committed in Nanjing. 23 Japan has also not acknowledged that its forces committed such atrocities, and it has never apologized or paid reparation to Chinese victims. Diplomatic relations between Japan and China are cordial but the issue of Nanjing remains a contentious issue between the two countries. The relationship between China and Japan is based on the mutual economic interests of both sides. Memories of Japanese atrocities at Nanjing continue to arouse strong passion in China and remain one of the single most unifying issues among the Chinese people. The humiliation China experienced at the hands of Europe and Japan would continue well into the 20 th century. 24 European Hegemony Beyond China The humiliation China suffered at the hands of European states and Japan was not unique. In many respects, European mistreatment of non-Europeans was the norm in international law in the 19 th century. Africa had a far worse experience with European states than China. Europeans enslaved Africans for centuries, and in 1885 the Berlin Conference divided Africa among various European powers. 25 African kingdoms were demolished, and their rulers were forced to sign unfair treaties with European states which gave European powers sovereign control over the territories they were allotted at the Berlin Conference or acquired by force. Some African leaders were banished from their lands and forced into exile while European powers exploited their mineral resources, enslaved the natives, and committed what would be considered today “crimes against humanity” against the native population. 26 The indigenous peoples of Asia, the Middle East, India, Latin America, and the Caribbean were all mistreated by European powers up until the end of World War II. The indigenous peoples of the Americas and the Caribbean were exterminated by Europeans, particularly during the Spanish Inquisition. 27 European nations forced local leaders to grant their nationals preferential treatment, and they reserved the right to use military force if their citizens were treated unfairly in violation of the doctrine of “Minimum Standard of Human Dignity,” or their property confiscated without just, prompt and adequate compensation, as stipulated under European international law. 28 European nations sought special treatment for their nationals irrespective of the treatment the national laws of these states provided to their citizens. European states intervened repeatedly against Latin American nations to collect the debt owed to their nationals. In protest, the Latin American nations adopted the Calvo Clause, which called for the prohibition of such practice in international relations. 29 A similar measure subsequently enunciated by the Foreign 23 For a detailed account of Japanese atrocities committed in Nanjing, see, The Rape of Nanking: The Forgotten Holocaust of World War II (1997). 24 LI Chen, “Universalism and Equal Sovereignty as Contested Myths of International Law in the Sino-Western Encounter,” 13 Journal of History of International Law (2011), p. 77. 25 See, BROOKE-SMITH, R. The Scramble for Africa (1987). 26 King Leopold is alleged to have killed or committed serious atrocity crimes against three million people in the Congo; See, EWANS, M. European Atrocity, African Catastrophe: Leopold II, The Congo Free State and its Aftermath (2017). 27 FITZMAURICE, A. “Discovery, Conquest, and Occupation of Territory,” in FASSBENDER B., PETERS A. (eds), The Oxford Handbook of the History of International Law (2012), p. 841. 28 NEFF, S. “A Short History of International Law,” in EVANS, M. D. (ed), International Law : NY: Oxford Univ. Press (2018), p.3. 29 FREEMAN, A. V. “Recent Aspects of the Calvo Doctrine and the Challenge to International Law,” 40 AJIL (1946), p. 111.
CYIL 13 ȍ2022Ȏ THE ATTITUDE OF THE PEOPLE’S REPUBLIC OF CHINA TOWARD INTERNATIONAL LAW Minister of Argentina, Luis Drago, prohibited military intervention against Latin American nations by European states to collect debt on behalf of their nationals. 30 The United States also announced the Monroe Doctrine to stop European states from recolonizing Latin American nations. That was later followed by the Roosevelt Corollary, by which the United States threatened to use military force to prevent European nations from intervening in Latin America. 31 The Era of International Law in China With the establishment of the Republic of China in 1912, the Chinese government made international law and diplomacy a top priority. Westlake’s book on international law was the first western international law text to be translated into Chinese and circulated widely among Chinese scholars who were curious about European international law. China created a professional diplomatic service to help it navigate the complex web of international law. China also established a new Foreign Ministry, which was staffed by western-educated lawyers and academics who were fluent in multiple foreign languages and were experienced in foreign affairs. These new Chinese diplomats sought to renegotiate the unequal treaties that were imposed on China in the 19 th century. These individuals brought a certain level of professionalism to the Foreign Ministry and made sure China’s place in the international legal order was assured. 32 In the immediate aftermath of the establishment of the People’s Republic, international law flourished in China. Several law schools were created, and all law faculties offered courses in international law. Several legal scholars from the Soviet Union were invited to teach in China, and they influenced China’s perspective on international law. The Chinese view of international law became closely aligned with that of the Soviet Union. 33 The Soviet perspective was very dogmatic and ideologically driven. The Soviets advocated two systems of international law, one governing relations among the Communist states, and the other governing relations between the Communist bloc and the Capitalist states. 34 China itself never quite developed its version of international law except for what it borrowed from the USSR, or what it learned from its encounters with European states. Its perspective on international law was slow to develop and it remained extremely limited. China’s Attitude Toward International Law During the Cultural Revolution China’s experience with international law ended abruptly following the Cultural Revolution. Mao abolished all international law programs and closed all universities. China was in the dark in terms of new developments in international law. The Communist regime was deeply suspicious of international law and treated it as an expansion of “European Imperialism.” 35 The Communist regime was only interested in the international law that would help it undo the unequal treaties and the issue of extraterritoriality in China. Mao took a very hostile attitude toward international law. Given China’s historical legacy, Mao placed special emphasis only on the legal principles that were of relevance to China’s 30 HERSHEY, A. “The Calvo and Drago Doctrines, 1 American Journal of International Law (1907), p. 29. 31 MEIERTONS, H. The Doctrines of US Security Policy: An Evaluation under International Law (2010).
32 China created its first professional diplomatic corps in early 1900s. 33 The Soviet Union shaped China’s perspective on international law. 34 TUNKIN, G., BUTLER, W. Theory of International Law (2003). 35 China’s suspicion of international law.
MAX HILAIRE CYIL 13 ȍ2022Ȏ experience: mutual respect for each state’s sovereign, territorial integrity, non-intervention in the internal and external affairs of states, non-aggression, equality, and mutual benefit, peaceful coexistence, and anti-hegemonism/anti-colonialism. 36 These principles which were adopted at the Bandung Conference of Non-Aligned Nations in 1955 formed the core of these principles. Chairman Mao withdrew China from participation in the international legal order so he could consolidate his political power and make China a communist state. Millions of Chinese citizens were starved to death, murdered, or perished. Mao conducted a policy of ethnic cleansing by sending millions of intellectuals and ordinary citizens to rural villages to be “re-educated.” The Cultural Revolution left China in isolation and poverty. For Mao, international law was considered “Bourgeois Law,” and a direct contradiction to the goals of the Cultural Revolution. 37 However, it would be a mistake to assume China did not comply with international norms. Under Mao, China complied with the international law that advanced the communist ideology of the regime or sustained the Chinese Communist Party (CCP) in power. But China also refrained from taking drastic measures to reverse its existing international legal obligations which it deemed unfair. China honored many of the commitments the Kuomintang government signed with foreign governments. At the same time, China continued its opposition to certain international norms that it saw as unfair, or favorable to European states. China honored the treaties that ceded parts of its territory to Britain and Portugal. After the U.S. officially recognized the People’s Republic of China in 1978, the Chinese Communist regime replaced the Government of Taiwan in the Security Council as the legitimate representative of China. China insisted on a “One China” policy and conducted extensive diplomacy to get states to sever diplomatic relations with Taiwan, and for international organizations to terminate Taiwan’s membership. China remained ambivalent about some international laws but saw the benefits of working from within. China knew if it wanted to be fully integrated into the European states’ system, it had to play by the rules of that system. China also realized it had certain legal obligations to the international community as a Permanent Member of the Security Council. As a Permanent Member of the Security Council China was granted veto power, which it could invoke to block decisions of the Security Council it did not agree with. To be clear, China has had its version of law based on Confucian teachings. 38 But it was vastly different from the European concept of the rule of law. Confucian legal philosophy advocated obedience and submission to authority. The European version of the law, which was incorporated in the Peace of Westphalia, was based on the principles of sovereignty, sovereign equality of states, and non-intervention in the internal and external affairs of states. Westphalia excluded China and other non-western nations from participation in the European-based legal order and did not recognize non-western nations as equals. The Chinese conception of the rule of law placed China at the center of the universe, with all other 36 CHEN TIQIANG, “The People’s Republic of China and Public International Law,” 8 Dalhousie Law Journal (1984), p. 8. 37 YUEH, T. “Preliminary Criticisms of Bourgeois International Law,” 3 Journal of International Studies (1959), p. 1. 38 CHAN, M. “Rule of Law and China’s Unequal Treaties: Conceptions of the Rule of Law and Its Role in Chinese International Law and Diplomatic Relations in the Early Twentieth Century,” 25 Penn History Review (2019), p. 15.
CYIL 13 ȍ2022Ȏ THE ATTITUDE OF THE PEOPLE’S REPUBLIC OF CHINA TOWARD INTERNATIONAL LAW nations subordinate to the will of Chinese rulers. Non-Chinese were seen as “barbarians.” To establish diplomatic relations with China, other states had to accept China’s superiority. 39 The Eurocentric world order saw China’s legal system as inferior and outdated. To conduct business with China, European states sought to change China’s legal system and align it with theirs. China was forced to accept European international law if it wanted to be part of this new system. Given its weakness vis-à-vis European states, China was forced to accept the unequal and unfair treaties European states imposed on it. 40 The Cultural Revolution was a time of reflection for Chinese authority, who looked inward at its society to confront the centuries of domination at the hands of the West. Some of China’s domestic policies were clearly in violation of emerging human rights norms and global legal standards at the time. The Cultural Revolution was in part responsible for the death of millions of Chinese at the hands of their government. Mao imposed a repressive authoritarian regime on the country and silenced all opposition forces. Mao’s disdain for international law may have been designed to prevent his critics from accusing him of violating a law that did not exist in China, and that China did not recognize. Under Mao, China championed the dismantling of European colonial empires and called for a more just international legal order. However, China’s quest for international justice did not correspond with its domestic policies, as millions of Chinese nationals perished at the hands of their government, either through starvation, or were murdered at the hands of Chinese authority. From this perspective, China was simply using international law either rhetorically or as communist propaganda. 41 China’s constitution does not mention international law, in part due to the perception the communist leaders had of international law, as European in origin and the humiliation China experienced at the hands of Europeans, which was justified under international law. In China, all decisions about international law are made by the Chinese Communist Party (CCP) and implemented by the National People’s Congress and President. International law is subordinate to Chinese Constitutional law and must be incorporated into Chinese domestic law to be recognized as binding on the state. Implementation of international law in China is ad hoc. 42 China’s courts play a limited role in the implementation and enforcement of international law. Since most international conventions and customary international law are not translated into the official Chinese language, Chinese judges have a difficult time understanding the correct meaning of international texts. Chinese judges are also not trained lawyers and have no international experience. Their limited knowledge of international law leaves them in an awkward position to rule on international law disputes. China’s courts, hence, defer to the executive branch to make decisions regarding international law. 43 As a founding member of the United Nations, China endorsed the Dumbarton Oaks proposals for the creation of an international organization and was a full participant at the 39 YIN, H. “Heavenly Principles? The Translation of International Law in 19 th –century China and the Constitution of Universality,” 27 European Journal of International Law (2016), p. 1011. 40 CHEN, Li. “Universalism and Equal Sovereignty as Contested Myths of International Law in Sino-Western Encounter,” 13 Journal of the History of International Law (2011), p. 77. 41 CHIU, H. “Communist China’s Attitude Toward International Law,” 60 AJIL (1966), p. 247. 42 LI, Jerry Z., GUO, S. China, in Dinah SHELTON (ed), International Law and Domestic Legal Systems , OUP (2011), p. 159. 43 CAI, C. “International Law in Chinese Courts,” in. BRADLEY, C. A. (ed), The Oxford Handbook of Comparative Foreign Relations Law , NY: OUP (2019), p. 551.
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