I. Policy-Oriented Approach

Congyan Cai, professor of international law at Fudan University, Shanghai, has produced an excellent, timely, and quite comprehensive account of the rise of China, charting the course of China's engagement with regimes and institutions of international law since 1949—but especially since about 2010, when China emerged as a great economic power. The book is enriched by a parallel examination of China's internal reforms of national institutions and laws. On the whole, the book pivots to an interface between international relations and international law. Indeed, legal strategy or politics are key areas for exploration. On account of that trait, the book is not so much a monograph of law as one of “Chinese international legal policies” (p. 9). Its central proposition seems to be that an ever-changing international law of today's world will both legitimate and constrain China's actions, thus being more relevant to China's rise than the older version of the law to the rise of such old great powers as the United Kingdom or the United States (pp. 36–39). On that proposition, however, it may be said that, as a matter of fact, in all cases of the rise of great powers, there is the inevitability of historical circumstances at play such that every rise is limited by the legal order in which it takes place. The author's approach is two-fold: setting forth the current state of international law in select areas, and then analyzing the level of China's engagement therewith. Several chapters of this book particularly arouse interest, with the others covering content more commonly known.

Chapter 3 looks at several changes in the identity of China since 1949 (pp. 46–69), and follows up with an examination of policies associated with such changes (pp. 75–98). Cai's focus is more on the policy side than the legal side. Such changes in identity are chiefly derived from studying China's responses to the outside world's conditions, but the influence of those changes on international law is not clearly discernible, apart from the surmise that the international legal order may need to accommodate China's rise as a non-Western power with a distinct culture (pp. 98–99). But the reason for that may need further explanation, unless the answer is simply that the rise of great powers always gives rise to that need, as each may find exceptionalism irresistible as a policy.

Chapter 4 is concerned with the change of China's legal strategy from law compliance to norm entrepreneurship. The latter strategy is noteworthy for what the author calls as the four methods to achieve it: advocation of broadly principled arguments; reliance on legal interpretation; building of the coalition of the willing; and consolidating domestic practice to influence the formation of international law (pp. 107–11). The typology itself is not commonly used in international legal scholarship. Usually, all four methodologies could have been considered in terms of state practice under Article 38(1)(b) of the Statute of the International Court of Justice.Footnote ¹ The chapter then discusses in detail China's participation in the operation of certain emerging or current international regimes (for instance, pp. 119–26, on China's interaction with the regime of international sanctions), by way of “selective adaptation” (p. 152). What remains to know is whether China's policies in relation to those and future regimes will change and how, which depends on the trajectory of China's rise.

Chapter 5 looks at China's engagement with international institutions and the efforts of its domestic institutions to project influence internationally. As the book observes, great powers enjoy privileges even within international institutions built on the principle of sovereign equality, and “[a]rguably, international organization serves as a new instrument for great powers to practice hegemonic international law” (p. 160). China's status since 1949 has shifted from that of an outsider to one of a sponsor (pp. 164–93). The discussion then turns into, essentially, one of foreign relations law (pp. 194–208), and covers the interesting issue of state-owned enterprises in the context of World Trade Organization (WTO) law (pp. 215–26) and investment law (pp. 226–28). One interesting question arises from the discussion as to what privileges China as a great power actually enjoys and if not satisfied, whether its engagement with the institutions will reverse course. Another interesting question is the extent to which its current level of engagement has any impact on the institutions.

Chapter 7, on lawfare (pp. 270–71, where the term is taken by some writers to mean “law as a weapon of war,” with however an undefined scope) in relation to dispute settlement, focuses on China's legal strategy (p. 269). It singles out China's participation in the Dispute Settlement Body of the WTO as a prime example for showing China's approach to international adjudication (pp. 288–92). It also discusses the lawfare issue against the background of the South China Sea arbitration between the Philippines and China from 2013 to 2016 and the Sino-U.S. trade war ignited in early 2018. Here, a somewhat less robust concept of lawfare may beg questions (pp. 270–73). For instance, China's publication of a position paper (arguing issues of jurisdiction and admissibility) in 2014 during the South China Sea arbitration could just be seen as a common act by non-appearing states in international litigation, rather than an act of lawfare. It may not be necessary to argue that the position paper should instead be construed as a “weapon” in terms of the doctrine of lawfare, if the position paper, not in contravention of any procedural rule, merely set out the legal position of a non-appearing state.

In conclusion, Cai's book sees China's vision of a “Community of Shared Future for Mankind” as a major effort in clarifying Chinese exceptionalism, which differs significantly from American exceptionalism, in that the vision consists of partnership, common security, and inclusionism, and openly favors cooperation and peaceful development more than hegemony (pp. 324–26). This is an interesting point, and the reader may wonder in which way this vision, also a major policy, will be implemented, so that it may turn into part of the international law of the future. In the book's conclusion, there appears to be no general theory or a definitive answer with regard to China's perspectives on international law, since the whole book analyzes Chinese practice largely through a policy prism.

Here, I digress to a thought. It makes interesting reading to compare Cai's book with Judge Xue Hanqin's Hague Academy lectures published in 2012.Footnote ² Essentially, both authors hit upon the political and economic sides of the topic of China's perspectives, and present complementary assessments on the basis of available evidence, including national legislation, official statements made in international fora, and literature from both within and without China. In the few years separating the two publications, the world has been convinced of the rise of China, with the goal of that rise and the ramifications during and after the rise still to be fully worked out. Cai's conclusion may partly answer those questions, but, like Judge Xue's conclusion to her lectures, it is largely an open-ended one.

The comparison suggested above points to a tentative answer with regard to China's perspective on international law. It is commonly accepted that, among fundamentals of international relations, China highly values the concept of sovereignty, because sovereignty can be pinpointed as the cause for many Chinese practices in the international arena. An explanation for this can be gleaned from the historical experience of China between 1949 and 1971. For a newly independent country, faced with isolation from the UN and associated organizations, sovereignty was the guarantee for meaningful independence. While advocating openly for the cause of developing countries wherever possible, China had successfully preserved its independence during those tough years. It is no wonder that respect for sovereignty defined China's approach to the international law of the era, as it is now.

Since 1971, when the government of the People's Republic of China was restored to its legitimate seat in the UN organization, a shift has gradually materialized in China's approach from one of norm-taker, to one of consciously aiming to influence the formation of international law (including legal regimes) and the function of intergovernmental institutions. Notable examples of this shift include China's involvement in the work of the UN Security Council since 1971 and of the WTO since 2001, the policy of a community with a shared future for mankind of 2012, and the Belt and Road Initiative of 2013. All this suggests a kind of policy-oriented approach to international law, as has been shown by China's policies on major issues, formulated in the prevalent circumstances in which it finds itself. The basis for that approach is the supremacy it attaches to sovereignty, and such supremacy has been reaffirmed in the twenty-first century by China's vow to protect core national interests which are unmistakably expressive of sovereignty.

The policy-oriented theory originates in the United States, but similar approaches to international law need not necessarily be borne out of that theory or necessarily follow the original design of the “New Haven School.” Footnote ³ In a world of coexisting sovereign states—which may think likewise at the international level with regard to matters of peace, security, governance, and order—policies may be more important for them than other factors at any given time, and are more accurate for defining a national approach to international law. As shown above, China's perspective on international law was wrought chiefly in a reality of virtual isolation in which it found itself between 1949 and 1971, by way of a succession of policies designed to deal with specific situations. The policy-oriented paradigm sees international law as a process in which rules are continuously made and remade, thus recognizing changes in policies and law as something inevitable. But Chinese practice has not been in a constant state of flux. Its adherence to the principle of territorial sovereignty and status as a developing country, for example, have revealed a remarkable degree of consistency, even though both may have started off as policies. They may be seen as belonging to the category of Chinese characteristics.

Jurisprudentially, the policy-oriented approach is not necessarily divorced from the classical doctrine of customary international law. The general practice underpinning a customary rule is evidenced by the examples of the collective practice by states members of the international community. Each state member may follow a national policy in a situation of international importance, and the convergence of sovereign wills may manifest the opinio juris in support of a communal policy that entails a pattern of common practice—a customary rule. Between the initial national policy and the ultimate international customary norm lies the complicated process of formation of custom by way of practice. With support of general practice, however, a national policy may just manage to garner enough international support to become part of customary law. Accordingly, the policy-oriented approach, intended to achieve international recognition for policy-based practice, still operates within the four corners of the doctrine of customary law. The Chinese version of the approach is well illustrated by Cai's book and Judge Xue's lectures.

To date, the genre of writing under the rubric of “Chinese perspectives on international law” has concentrated on China's practice of international law since 1949, and tends to examine multiple domestic factors that contribute to the formulation of China's policies on international law. Consequently, there is a sense to view this genre as mainly reflective of China's policy-oriented approach to international law.

II. Impact of Positivism as an Intellectual Force on Chinese Scholarship

As a matter of fact, since the late 1970s, the mainstream Chinese international legal scholarship has been influenced by positivism intellectually. Alternative academic theories may have punctuated the mainstream, but they have done so with little impact. Two reasons may account for that sustained influence.

First, China engaged in forging and practicing a realist policy of peaceful coexistence in the early 1950s. The policy soon became defined by the “Five Principles of Coexistence,” the first of which was mutual respect for sovereignty and territorial integrity. China's practice in that period quickly coalesced around those principles, which in turn became entrenched and remain unchanged today. Chinese textbooks on international law, past and present, duly reflect that national approach built from Chinese practice, which frames Chinese scholars’ perspectives.

Secondly, it is difficult to be oblivious to the outsized influence of Oppenheim's textbook in the early days of the post-1978 revival of the science of international law in Chinese universities. Zhou Gengsheng's treatise, published in 1976 but widely available only in the early 1980s,Footnote ⁴ is thought to have been primarily based on Oppenheim's textbook in terms of organization.Footnote ⁵ His treatment of evidence of state practice also displays a positivist's touch. The last international law textbook edited by Wang Tieya, which was published in 1995, drew on the ninth edition of Oppenheim's International Law,Footnote ⁶ and had been reprinted nineteen times since 2004.Footnote ⁷ These pace-setters for Chinese international legal scholarship, with a clearly positivistic approach to the discipline, have greatly influenced later Chinese textbooks in terms of structure, main reference sources, and substance. Indeed, both textbooks are among the standard sources of reference for later textbooks.

The textbook edited by Cheng Xiaoxia and Yu Mincai is in its sixth edition, published by Renmin University of China Press in 2021. The four contributors are all senior professors of international law of that university. It is representative in over fifty textbooks of public international law published in China between 2009–2021,Footnote ⁸ in that its design, structure, and content, updated through 2021, are fairly typical of those textbooks; that, based on periodical national surveys, Renmin University's Law School regularly ranks in top two among Chinese law schools; that in 2002, the first edition of this textbook, published in 1999, was awarded first prize as a textbook for universities by the Chinese Ministry of Education; and that, in 2017, its fifth edition was designated by Renmin University as the standard textbook for its law undergraduates during the thirteenth five-year plan (2016–2020). The foreword by the editors of the first edition stated that the textbook was written for undergraduates and for a course of fifty-four hours’ teaching (p. 3), which would normally mean a course for an eighteen-week semester.

In terms of structure, Cheng and Yu's textbook largely resembles Wang's textbook, including the interesting arrangement, long adopted by Oppenheim and Zhou Gengsheng, to have the basic rights of a state, including independence, equality, self-preservation/defense, jurisdiction, and state immunity, assembled in the chapter that deals with the notion of statehood. The book's contents are up-to-date, and cover topics common to other Chinese textbooks published between 2009–2021. The textbook opens with an introduction to the concept, sources, and typology of subjects of international law, including a section on the relations between municipal and international law. It then examines fundamental principles of international law; statehood and basic rights of states, state immunity, recognition, and succession; the individual's status and rights, covering topics of nationality, treatment of aliens, refugees, diplomatic protection, extradition, and asylum; international human rights; territorial sovereignty and typology, boundaries, and a section on the polar regions; the law of the sea; air and space law; diplomatic and consular relations; treaties; international organizations; state responsibility; pacific settlement of disputes; and the law of armed conflict, including a section on international criminal law. There are many references in the main text to both Chinese legislations and policy statements, and international judicial and arbitral decisions.

The way in which the textbook is written may, however, need fine-tuning in some aspects. First, by way of preface, the editor of this new edition provides a nice sketch of the main aspects of the book (p. 1). However, important new developments, ideas, and initiatives, such as the Belt and Road Initiative, a community of a shared future for mankind, common but differentiated responsibilities, parallel jurisdictions, criteria of effective occupation, and others, that supposedly distinguish this book from others are not fully reflected in the section headings. As the book does not include a general index, it might have helped to have a more detailed table of contents.

Second, the last two pages of this volume of 322 pages contain a short bibliography of important reference sources, including books, articles, a set of Chinese laws, and a list of websites of international judicial and arbitration institutions, plus the UN. Among the fifteen books listed, there are two well-known foreign textbooks: Oppenheim's International Law (9th ed. 1992), and Ian Brownlie's Principles of Public International Law (4th ed. 1990). The former is listed in the bibliography in its Chinese translation, published in two parts in 1995 and 1998, respectively, under the direction of Wang Tieya. There are also included two collections of materials compiled by the Treaty and Law Department of the Foreign Ministry, which, published in 2011 and 2018 successively, are the main source of reference for Chinese practice in this textbook. The eight remaining textbooks or monographs, with one exception, were all published before 2010. This reliance on old literature, most of which are textbooks, certainly calls for improvement.

Third, although the use of case law marks this edition out among other Chinese textbooks, its omission of a table of cases diminishes the effect of the case law, which is further exacerbated by the book's lack of direct quotes of, or references to, relevant passages in judgments or awards. The reader would have to be well-versed in international case law to appreciate the author's view in this regard.

Fourth, given the conciseness of the textbook, it is understandable that, where practice is settled by treaties, the main text would be confined to a run-through of treaty provisions (for instance, pp. 68–69, on the Vienna Convention on Succession of States in respect of Treaties; pp. 178–80, on the treaty-based regime of the outer space). However, this brevity, characteristic of this textbook and the like, obviates any analysis of those provisions and renders the authors’ narrative rather anemic. This is also the case where no references are provided for an event, a statute, or a bilateral treaty discussed in the main text (pp. 184–92, on diplomatic law, which include interesting references to Chinese law in the main text without sources) and no explanation is given for a statement of the authors (among others, pp. 18–19, describing a theory of links between municipal and international law, which, apparently different from monism and dualism, is stated with no mention of its creator, supporter, or critic; or the statement on p. 119, that “international law recognizes that a State is the supreme authority in its own territory,” which is plausible but somewhat uncertain for its lack of a reference to an authority, since the reader cannot guess which international law is meant). One might suggest that, like many U.S. and Western international law textbooks, such a book should be supplemented by a book of cases and materials in order to help students navigate the book's numerous references to state practice and jurisprudence.

Last, the book, unlike Wang's textbook, omits chapters on environmental law and international economic law (including WTO law), even though China has particularly high stakes in these two dynamic branches of contemporary international law.

While this textbook is selected for being representative among peer publications and for regularly mentioning both international case law and Chinese practice, it may be challenging for undergraduates or even graduates to understand and absorb its content, especially those numerous treaty provisions or domestic statutory rules set out without comment. Preference for treaty or statutory provisions is natural for a positivist perspective on the discipline, but, based on experience, a textbook should not only teach positive rules, but be an interesting read by providing some context in which the rules are designed, accepted, and applied, even though it is admittedly difficult to maintain a high level of interest and freshness throughout multiple chapters that deal with disparate subject matters. But even dry provisions of a treaty usually grow out of a rich body of state practice as reflected in diplomatic incidents, international negotiations, and litigations. Besides, textbooks are supposed to be written under an overall design, and each chapter's introduction, analysis, and critique are formulated with a distinct purpose, in the service of which they unfold in turn and reinforce each other. That would give such a book fluency and force of persuasion, provided that the language of the book is also precise and carefully crafted. After all, the reader will only remember such contents of a textbook that capture imagination, make the mind work, share unusual insights or primary materials, or address real issues of practice. A textbook with those qualities could perhaps be seen as an embodiment of consummate scholarship.

III. Future Directions of Chinese Scholarship of International Law

The heading concerns topics likely to be explored by Chinese scholars in the near future, as shown by the 2019 volume of the flagship publication of the Chinese Society of International Law, the Chinese Yearbook of International Law. First published in 1982 under the direction of two chief editors, Wang Tieya and Chen Tiqiang, the Yearbook has been publishing in Chinese the best articles and notes from Chinese scholars and practitioners. Like Chinese textbooks, it is equally indicative of the current level of Chinese international legal scholarship.

The 2019 volume, published in late 2020 and running around six-hundred pages, contains seven articles (of some 210 pages in total), two comments (forty pages), three book reviews (forty pages or so), a large number of short reports on mainly intergovernmental conferences (160 pages or so), and documentary materials (chiefly official statements by Chinese delegates before international institutions, spanning over 120 pages).

The lead article, by Zhang Naigen, vice president of the Chinese Society, expounds the institutionalization of the vision of a Community with a Shared Future for Mankind and associated principles of international law. The premise of the article is that innovative Chinese theories of international law cannot be attained by overturning existing theories of the past four centuries; rather, they are built on the basis of the existing theories, adjusted by the needs of both the changing times and the new regime of global governance (p. 4). The central themes of the vision, as argued by the author, consist of a foundation of peace, a “core” of inclusionism, a function of mutual benefit, and a “highlight of greenness” (pp. 4–5). In other words, the vision is composed of the four elements of peace, multilateralism, cooperation, and a clean environment. To implement the vision requires its integration into existing fundamental principles of international law (p. 15). The way the vision is elaborated in this article echoes what has been said above regarding China's policy-oriented approach, in that the vision has been announced as an official policy, it effectively champions a set of values, and its integration into the existing fabric of international law is none other than a decision-making process.

In his article on the current state of the law of historic rights, Jia Bingbing examines the impact of China's territorial sovereignty claims in the South China Sea on the interpretation of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) and the implications of historic fishery rights—being private rights in nature—continually existing in a foreign territorial sea. His argument is that historic rights of sovereignty, even controversial ones, may divest the jurisdiction of UNCLOS-based tribunals (pp. 48–49), and that historic fishery rights, which, according to some circles, may survive in a foreign territorial sea, will find it hard to overcome the hurdle of the regime of innocent passage obtaining in that area of sea (pp. 56–57). Further, the rule of exhaustion of local remedies, as embodied in UNCLOS Article 295, may intervene where historic fishery rights encounter local enforcement powers in the territorial sea, before the matter could be brought in front of UNCLOS-based tribunals (pp. 58–61).

The next two articles are both concerned with the polar regions. Wu Hui and Shang Tao write on the special areas established on or near Antarctica, with an emphasis on environmental concerns associated with the implementation of the regimes for those areas (p. 65). They urge China to comply with rules of the regimes and to bring fresh ideas to the growth of, especially, the legal regime for the marine protection areas (pp. 94–95). Wang Zelin's article examines China's approach to the Agreement on Enhancing International Arctic Scientific Cooperation, adopted by the members of the Arctic Council in May 2017, and proposes two ways of engagement by China with that institution, namely, either by entering into bilateral treaties with individual Council members to pursue joint research initiatives in the Arctic, or by joining other non-states parties to persuade the states parties to open the treaty for accession (pp. 129–32).

The next pair of articles are surveys of China's practice in certain areas of international law. Liao Li's article surveys China's involvement in the settlement of boundaries (including maritime boundaries), the WTO, and investment disputes for the past seventy years, with the majority of the cases under survey taking place in the twenty-first century, and identifies three areas for improvement: new theories (for, as the author argues at p. 154, new theories signify the status of a powerful state in international law); willingness and capacity to participate in international litigation; and capacity building for Chinese litigators and arbitrators (pp. 154–57). Wang Qianhui's article compares the records of China and other counties in compliance with the reports adopted by the WTO's Dispute Settlement Body (DSB), and finds that China's compliance record for the past two decades (since 2001) is not only better than those of the United States and European Union (pp. 172–74),Footnote ⁹ but better than those of India and Brazil (pp. 175–76).Footnote ¹⁰

The last of the seven articles, by Zhang Xiangjun, examines the reform of existing investor-state dispute settlement mechanisms, and suggests that China's potential contribution may come from its domestic law, which provides for a procedure of coordinating and deciding foreign investment disputes, with a view to projecting this national practice internationally (pp. 206–08). The platform for implementing that practice is a China-led prevention and evaluation center.

The articles of the Yearbook mainly deal with new theories, dispute settlement, and international regimes of concern to China. From reading the articles as well as the reports on intergovernmental conferences, there appears to be a growing trend among Chinese scholars and practitioners to be proactive by making proposals in relation to the formation of international law or the operation of international regimes. While the articles all contain some discussion of China's potential input to international law, some have gone to greater length in that regard, blending Chinese policy considerations in legal discourse. This trend surely distinguishes the current Chinese scholarship from that of ten years ago, let alone the scholarship of the late twentieth century.

While the articles of the Yearbook maintain a preference for treaties, national legislation, official documents, and international case law, thus continuing the positivist streak in Chinese textbooks, they also suggest that future Chinese scholarship in this discipline will be increasingly influenced by China's policy-oriented approach to international law.