CYIL vol. 13 (2022)

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other states had to accept China’s superiority. 39 The Eurocentric world order saw China’s legal system as inferior and outdated.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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