Compliance v cooperation: China and international law.

AuthorKent, Ann

Abstract

While questions of State compliance with international law are the proper subject of their research, international lawyers need to make a clearer distinction between compliance and cooperation, and to pay greater attention to the concept of cooperation than they have to date. This is because the identification of cooperation as a necessary explanatory variable, sometimes running counter to compliance but more often than not a complement to it, helps to satisfy theoretical questions revolving around international law's lacunae, as well as to bring greater depth to compliance studies. Thus, compliance research shows that China has turned from a rebel with a cause in the 1960s into a reasonably good international citizen in the 21st century that, for the most part, complies with its international obligations: but it does not say anything about the international legal black hole into which the Chinese medium range ballistic missile disappeared in January 2007, or about China's position on Darfur and related questions. The concept which fills that hole is cooperation. It is from a deficit of the latter, rather than from failings in compliance as such, that international disputes and threats to the peace have often arisen.

Introduction

International lawyers are necessarily concerned with the theories, questions and facts relating to State compliance with international law. As former United Nations ('UN') Secretary Kofi Annan pointed out, 'we enjoy a set of international rules of everything from trade to the law of the sea, from terrorism to the environment and from small arms to weapons of mass destruction ... but, without implementation, our declarations ring hollow'. (1) Beyond the force of mere necessity, the study of compliance is compelled by intense intellectual curiosity. Lacking the complex machinery of enforcement underpinning municipal law, international law nevertheless projects legitimacy and authority and elicits an impressive degree of compliance from States. Why and how is this so? A whole literature has been built up on the subject, beginning with the work of J.L. Brierly, but most clearly associated with Louis Henkin, and carrying through to the present in the writings of Abram and Antonia Chayes, Harold Koh, Anne-Marie Slaughter, Benedict Kingsbury, Jose Alvaez, and others. (2)

Given the ongoing search for answers to such thorny questions, a further question, 'Is that all there is?' may appear as a tactic of avoidance, or distraction. But if we find that most States, including States conceived as 'renegade' or 'rogue', do indeed comply with most of their obligations under international law for most of the time, how do scholars account for ongoing international conflict, and where do they intellectually situate problems in the international political realm in a way which is intelligible to international law? (3) What other concepts pick up the lacunae, the silences left even when the requirements of compliance have been satisfied? (4) One potential avenue of research is the concept of cooperation, a topic of increasing interest to international relations scholars but which, because of its more political connotations, has rarely attracted the attention of international lawyers, with the significant exception of Richard Bilder. (5)

In distinguishing between the concepts of compliance and cooperation, it is necessary to pare down the meaning of both so that they (a) fit within a compatible dualism; and (b) remain relevant to questions of international law. I conceive compliance as a legal concept defined as a State's implementation and enforcement of the specific norms, principles and rules imbedded in the international treaty to which it is a party or in the constitutive rules of the international organisation of which it is a member. On the other hand, cooperation with international norms, principles and rules is a broader, more political concept. While it is normally understood by international lawyers as signifying reciprocal relations between states, between states and international organisations, or between interstate agencies to promote mutual interests or values, (6) here its meaning is broadened to include not only cooperation between states but the cooperation of an individual State or group of States with both consensual and emerging international norms. It is understood as action by a State or group of States that (1) promotes the object and purpose of an international treaty or regime, by, for instance, ratifying treaties without excessive reservations, assuming non-mandatory obligations and promoting the object and purpose of an organisation and its associated treaties; or that (2) indicates respect for international norms which are evolving but which have not yet been recognised as customary international law or entrenched in formal international legal instruments. (7) Like compliance, cooperation implies the voluntary acceptance by the State of constraints upon its freedom of action for the common good. However, while compliance may be seen as obedience to the letter of the law, cooperation in the sense described may be understood as State action reflecting respect for the spirit of the law or the spirit of evolving international norms. It relates to matters for which States arguably have a moral, rather than legal, obligation.

To demonstrate the value of making this broad distinction between compliance and cooperation, I have compared China's pre-1971 attitude to international organisations and international treaties with its participation since the 1970s in key international organisations in the areas of international security, political economy, environment and human rights. (8) I have assessed the degree of its compliance and cooperation with the norms, principles and rules of these international organisations and their associated treaties. The organisations include the Conference on Disarmament, the World Bank and International Monetary Fund ('IMF'), the World Trade Organisation ('WTO'), the World Health Organisation ('WHO'),the United Nations Environment Programme, the International Labour Organisation ('ILO'), and the UN Committee Against Torture.

In this article I present my principal findings; analyse the evidence for China's compliance and cooperation; provide negative examples of cases where China's compliance and cooperation have been brought into question; and conclude with an assessment of the value of treating cooperation as an analytical variable to be studied both separately from, and in conjunction with, questions of compliance.

  1. Principal Findings

    For a State which has long been deemed least-likely to comply with international rules, China has made enormous progress since 1971, and particularly after the onset of economic modernisation in 1978. In the period prior to 1971, the year it finally replaced Taiwan as the official representative of China in the UN, China was seen as a 'rogue' State. In 1965, it was even calling for the abolition of the UN, and promoting the idea of the developing States of the world encircling the developed. (9) To make matters worse, it became absorbed from 1966 in the Cultural Revolution and began attacking its own legal and foreign policy institutions.

    After 1971, following its progressive entry into the UN and other key international organisations, and its deeper integration into the international community, and for all its continuing sensitivity about its sovereignty, China began to comply with the rules of international organisations and treaties to which it became a party. In most cases its compliance improved over time. The initial impetus for its entry into an international organisation or its ratification of a treaty was primarily an instrumentalist desire to increase its international status and promote its interests, and indicated little sympathy with the norms and rules involved. This position altered with the process of China's participation, shifting from procedural into a deeper, more meaningful, compliance. The feedback effect of such processes led to its gradual reconception of its domestic interests to align more closely with the norms of the international institution. Its compliance was deepest when international pressures and its domestic interests converged. However, like most States, China's pattern of compliance has not been linear and has been sensitive to the changing international and domestic environment.

    Like other States, China complies differently across, and within, issue areas. For international relations scholars this uneven pattern of compliance may be thought unusual, whereas international lawyers would anticipate such an outcome. (10)

    International organisations and their associated treaties are themselves active players in the compliance process, not only because of their role in integrating States into the international community, but also because of the variability in their purposes, functions, and enforcement mechanisms and their incentives and disincentives for compliance.

    While China has normally 'complied' with international norms and rules, it has often not 'cooperated' with them. This conclusion may appear paradoxical, but the evidence for it is persuasive, and the implications for international law significant.

  2. The Evidence: China's Compliance and Cooperation Record

    In the international security regime as a whole, starting from a very low baseline, China has shown the greatest preparedness to change. In 1980, when it entered the Conference on Disarmament, it supported continued nuclear testing and the right of all States to acquire nuclear capability. Now, however, it embraces the principles of nuclear non-proliferation and disarmament and recognises the integrity of international security organisations and their associated treaties. Over a period of 27 years, it has thus altered its perception of its self-interest to accord with the norms, principles, and rules of...

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