CYIL vol. 13 (2022)

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.

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