CYIL vol. 13 (2022)

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).

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