Chinese Contemporary Perspectives on International Law: History, Culture and International Law.

Author:deLisle, Jacques
Position:Book review
 
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Chinese Contemporary Perspectives on International Law: History, Culture and International Law. By Xue Hanqin. Leiden, Boston: Martinus Nijhoff Publishers, 2012. Pp. 282. $21, 15 [euro].

Xue Hanqin's Chinese Contemporary Perspectives on International Law: History, Culture and International Law opens, tellingly and appropriately, with a reference to Wang Tieya's International Law in China: Historical and Contemporary Perspectives. (1) The two works are based on lectures at the Hague Academy of International Law by these leading Chinese authorities some two decades apart. Wang's writing reflected and assessed China's return to engagement with international law, while Xue's recent book marks, and assumes, China's arrival as a full-fledged, much more confident, and, indeed, increasingly assertive participant in engaging and potentially shaping international law. Wang and Xue address many similar doctrinal, institutional, and practical issues, indicating much continuity in Chinese views. But the differences between the two writings--and their authors--are significant and revealing. They say a great deal about how much China's approach to, and place in, international law have changed during the one-third of a century since Deng Xiaoping and the post-Mao Zedong Chinese leadership launched policies of "reform and opening up" to the outside world at the end of the 1970s.

An eminent legal academic trained in the United Kingdom before World War II and a key figure in Chinese thinking on international law starting in the early days of the People's Republic of China (PRC), Wang looked back over the then short period following China's resumption of intensive interaction with international law and legal institutions. Wang offered a Western Anglophone audience a systematic introduction to China's views of a system that China sought to rejoin after three decades during which Mao's regime had variously rejected that system, been excluded from it, or issued sharp attacks on its core principles. Addressing a presumptively skeptical and not well-informed foreign audience, Wang detailed Chinese sources' much earlier reception (in the nineteenth century) of Western-created international law. He sought to explain what surely would have seemed to be exotic and eccentric Chinese ideas about international law (the doctrine of unequal treaties, Beijing's views on sovereignty, and the legal significance of the "Five Principles of Peaceful Coexistence" (2)) in terms that would be intelligible--and not seem fundamentally revisionist--to those listening from the perspective of conventional international legal discourse. Surely haunted by the ghosts of China's then-still-recent denunciation of "Western" or "bourgeois" international law, Wang ended his work by arguing that "modern" international law's origins in Western civilization did not preclude its acceptance by, and application in, a wider world that included China. (3) Although erudite and subtle, Wang's tone was precatory--that of an emissary from a China seeking to secure reacceptance in the international legal order, largely (but not completely) on the latter's terms, and to reassure the established members of the club about China's understanding, attitude, and intentions.

A generation later, Xue appeared in the same forum as another partly foreign-trained (in her case, in the United States) Chinese international legal scholar--one who is also a member of the International Court of Justice (ICJ) and a former senior official in the Treaty and Law Department of China's Ministry of Foreign Affairs. Xue recounts the impact of thirty years during which China had joined every major international institution that matters for international law, entered into to hundreds of multilateral treaties, taken leading roles in regional institutions and agreements that create international legal obligations and international law, allowed international law to enter much more deeply into domestic law (through many thousands of legislative and regulatory changes and more diffuse shifts in attitudes toward the reception of international law), and seen its growing cadre of international lawyers staff key international law-related posts at home (including the Foreign Ministry's Treaty and Law Department) and abroad (including the ICJ, the dispute resolution institutions of the World Trade Organization (WTO), and other international tribunals such as the International Criminal Tribunal for the Former Yugoslavia, where Xue's Hague predecessor Wang served late in his career).

Xue rightly assumes that her audience both accepts China as a major player in the international legal system and is interested in China's approach to international law. The era of Maoist China's voluntary or forced exclusion from the international legal order that still loomed large for Wang has receded for Xue. For her, the crucial three decades of history are the post-1978 Reform Era during which China has achieved staggering economic gains, integrated deeply with the world, and engaged extensively with the international legal system. Addressing Chinese positions on international law that are discomfiting to adherents of establishment or Western or U.S. views, Xue's mode is one of asserting and defending the legitimacy of China's stances (many of which still resemble those that Wang articulated more than twenty years earlier). A theme of reassurance runs through Xue's work, but...

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