I. Traditional Chinese philosophy and international law

Some three thousand years ago, two philosophical concepts were developed and established in China. One is Li (Confucianism) and the other is Fa (Legalism). Some scholars compare Li and Fa to Natural Law and Positive Law respectively.Footnote 1 Nonetheless, no proper English equivalent covers all the features of Li and Fa. Li and Fa are the two basic concepts the Chinese have created to understand the binary legal phenomena in Chinese society.

Li refers to the use of moral rules to regulate individual behaviour in accordance with natural law. As far as an individual in a society is concerned, Li includes all aspects of behaviour and social position ranging from politeness and propriety to social status. Li establishes rank (or unequal status) between people. Based on Li, the hierarchy between master and servant, elder and younger, guest and host is made clear and those in the respective roles would know how to behave accordingly. Li tries to encourage people to exercise proper social behaviour such that a harmonious society can be cultivated.

Fa, on the other hand, is often comparable to “legalism” or “law”. It is, however, different from the Western concept of law. We may refer ancient Chinese “law” exclusively to criminal law because it deemed that any lawbreaker should be punished severely as a criminal. So law, to some extent, equalled punishment, and the citizenry accordingly feared the law and legal institutions. The only thing people knew was that if they violated the imperial law they would be punished; they never had a sense that they might use the law to protect their civil interests. This is the way in which “law”, without any attendant civil rights protections, was perceived by the Chinese commoners for more than two thousand years. Anything related to law, such as the courts, was assumed only to deter potential evildoers instead of aiming at the good, as described in the well-known proverb: “Law is meant for a base person but not for a gentleman.”Footnote 2 Law in the Chinese traditional mindset is thus an instrument for dominance and not for the protection of natural rights.

With respect to the law, Confucius stated that people do not display antisocial behaviour simply out of fear of sanctions, since authorities administer punishment for illegal actions. Hence, people behave well but do not understand the reasons for maintaining good behaviour. Conversely, under Li, patterns of behaviour are supposed to be internalized and exert their influence before actions are taken. People behave properly because they fear shame and want to avoid losing face. As the Analects of Confucius, one of the core texts of Confucianism, states:

In sum, Li is persuasive, preventive, and enforced by social sanction, while Fa is compulsive, punitive, and enforced by legal sanction. Both normative concepts have helped maintain social order and stability. But as far as the traditional relationship between Li and Fa is concerned, the conclusion drawn from the Chinese past legal practice is that Li was believed to be more effective and positive in function than Fa and that Li ranked above Fa in importance. As a result, in ancient China, many criminal and civil cases were decided in accordance with Li rather than Fa. For example, a civil case in ancient China can illustrate this practice. In the Qing Dynasty, a widow had a dispute with her deceased husband’s cousin, Sun, over the ownership of a piece of land. After a lawsuit had been brought to the county magistrate, six relatives and friends volunteered to serve as conciliators. The conciliators and disputing parties examined the deeds of the land. They concluded that the widow’s late husband had mortgaged the disputed land to Sun. The late husband had never been able to repay the loan. As a result, Sun took over the land. The conciliators decided that Sun had the title to the property, but stated that, as uncle of his deceased cousin’s children, Sun had a moral duty to look after the widow and her children. In the end, Sun agreed to transfer the title of the land to the widow. The conciliators reported the result to the county magistrate and requested the suspension of the lawsuit. The magistrate immediately approved the request.Footnote 4Li was upheld as creating and maintaining a harmonious relationship while Fa was criticized as disrupting peaceful relations—Fa which is not grown out of Li can never be a real law; Fa just functions as a supplement to Li.

According to Li, the hierarchical structure in a civil society is built on five natural relationships: father and son; ruler and subject; husband and wife; elder and younger brother; and the relationship between friends. According to this theory, the subject should obey the ruler; the younger should obey the elder; the female should obey the male; the lower part should obey the higher part. Before China was forced by Western powers to open its doors in the 1840s,Footnote 5 the Chinese concept of an “international Li” (or international law) held China as the centre of the world. The basic assumption was that the international order should be based on China’s cultural superiority. Therefore, the relations between China and its neighbours were thought to be similar to the ones between father and son, husband and wife, and king and subject, which contained anything but the concept of sovereign equality and independence. The tribute system which China set up for its neighbouring countries typically expressed this hierarchical concept of relationships. Thus, when modern international law based on the sovereign equality and independence of all states was introduced to China, China was completely astonished.Footnote 6 In short, the international Li held by the Chinese was a hierarchical and anti-egalitarian Sino-centric world order that rested on moral virtue rather than military power.Footnote 7 Mankind should be governed by one ruler in accordance with a set of universally accepted principles. This concept is well expressed in the Chinese saying that “there is only one sun in the sky and one sovereign over mankind”.Footnote 8 In other words, the concept of the universal state ruled by the Chinese emperor with a cosmic virtue was richer in cultural symbolism than in actual political strength.

But since the 1840s, as the defeated party in a series of wars with the West, it was China that was treated as the “uncivilized state” by the Western powers and it gradually declined into a semi-colonized position. It was during this period that Western powers destroyed the then concept of China’s international Li.

In the new China, international law is also viewed through cultural lenses. The late Wang Tieya, one of China’s most distinguished international legal jurists, advocated an authoritative view of international law that has since dominated China’s theory and practice. According to Wang, international law should be treated as a unique legal system that should never be confused with domestic law, although a kind of interactive and supplementary relationship between these two different legal systems exists. International law and domestic law can supplement each other but cannot replace each other. Wang described the question of the relationship between international law and municipal law thus:

As seen earlier, Confucius noted that obedience to Li would improve public order and the social fabric. A subconscious belief therefore prevailed among the Chinese government and many Chinese international law experts that in a society, whether domestic or international, Li and Fa should function simultaneously for peace and order, otherwise there would be no real law. They propounded that a new kind of “international Li” should be established to serve as the foundation of international law. Searching for and establishing this international Li is of highest priority for building a harmonious society.

In the Chinese view, therefore, the priority is for international society to construct an “international Li”. In that context, China has been searching for the international Li ever since it began to interact with international law. What is international Li? Who is the “father” and who is the “son” in international society? When China realized that the international Li is still in the process of formation and that there is (technically) no hierarchical rank among the state actors on the global plane, it naturally regarded the world as being in a state of anarchy,Footnote 10 and thought that the international law that had not grown out of international Li was not “real law”.Footnote 11 Consequently, it wished to denounce all the international rules that are perceived to be biased against the Third World (to which China thinks it belongs) and to summon the other countries in this grouping to create new international rules.

These new rules thus have inherent connections with current Chinese ideology and policy. As a result, China’s foreign policy plays the role of international Li, at least as a temporary replacement. Nowadays, international law in China is also often modified by the words “Chinese characteristics”, because China doubts the existence of international Li in the international domain.Footnote 12

Another point regarding China and international law is that although China had established a judicial system very early in its history, the prevalence of Li encouraged the disputants to resolve their differences by dialogue rather than by adjudication. The Confucian concept of “minimum order” is characterized by the absence (or “disappearance”) of litigation.Footnote 13 According to Confucianism, the minimum social order should not be achieved by submitting disputes to an adjudicator such as a judge. It instead calls for the disappearance of litigation and promotes knowledge of virtue throughout society. Although Confucius felt confident that he could try lawsuits as well as anyone else, he still gave preference to the idea that “what is necessary is to cause the people to have no litigations”.Footnote 14 The traditional Chinese preference for consultation, mediation, and conciliation over formal methods of dispute resolution has its origins in Confucian philosophy, which views social conflicts as shameful aberrations from Li, that is, from the natural order of social life. In the ideal Confucian world, a person would know the difference between right and wrong. If his claim is spurious or questionable, he would feel too ashamed to raise it.Footnote 15

The original Chinese meaning of a court of law (fayuan) is a place to conduct a severe punishment instead of place to seek justice. In ancient China the word “court” was closely associated with punishing criminals in a harsh way. In addition, this painful experience was strengthened by the principle of collective responsibility, under which the criminal’s family was also subject to punishment by exile, enslavement, or castration.Footnote 16

Based on such a legal culture, it was common to regard adjudication as a kind of humiliation. Many vivid Chinese proverbs related to the general aversion to adjudication illustrate this point, such as: “in death avoid hell, in life avoid the law courts”; “to enter a court of law is to enter a tiger’s mouth”; and “it is better to die of starvation than to be a thief, it is better to be vexed to death than to bring a lawsuit”.Footnote 17 Hence, even if modern Chinese now have some trust in courts and judges, they still give preference to more informal methods of dispute resolution. This partially explains why the Chinese government remains reluctant to use the International Court of Justice (ICJ) to settle its international disputes.

Although China is now undergoing massive legal modernization, vestiges of the traditional culture still persist. Aversion to law, especially a law that lacks the support of so-called Li, such as international law, continues to operate at a subconscious level. Therefore, promoting Fa to be raised to a position higher than Li in the people’s eyes is comparable to an ideological revolution for the Chinese.

II. Modern Chinese philosophy and international law

III. Some positive changes

With its increasing interaction with the international community, China has changed its pragmatism to some extent in the past thirty years. Some changes that have happened in its attitude to the international legal system, such as international courts and tribunals, are fairly positive.

From 1949 to the early 1980s, the Chinese government adhered to diplomatic negotiations for settlement of whatever disputes it was embroiled in and rejected the jurisdiction of any international court or tribunal. Although some early Sino-Soviet trading agreements contained the provision that the two parties might bring their future disputes to arbitral tribunals for settlement, these provisions became completely meaningless with the deterioration of Sino-Soviet relations in the late 1950s. All the Sino-Soviet disputes, including economic and trading disputes, were actually dealt with through negotiations and consultations.Footnote 56

Accordingly, China openly and strongly rejected the jurisdiction of the ICJ. In September 1972, the PRC informed the Secretary-General of the United Nations that China did not recognize the declaration made by the Kuomintang (KMT) government (the former Chinese government) on 26 October 1946 about the acceptance of the compulsory jurisdiction of the ICJ and considered it defunct. In addition, the Chinese government had never made any special agreement (compromis) with other states to submit disputes to the ICJ.Footnote 57 When signing, ratifying, or acceding to international conventions, China made reservations on the provisions for the jurisdiction of the ICJ. For example, China reserved Article 22 when it acceded to the International Convention on the Elimination of All Forms of Racial Discrimination in 1981.Footnote 58 The Chinese government made the statement that “the People’s Republic of China has reservations on the provisions of Article 22 of the Convention and will not be bound by it”.Footnote 59 China expressly rejected the Optional Clause in the ICJ Statute and practically ruled out any compromis or provisions of submitting disputes to the ICJ.

From the late 1980s, China began to change its general attitude to international courts and tribunals. In the economic and trading fields, China has accepted third-party settlement of its international disputes. On 1 July 1992, the Chinese government ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. That meant that China accepted the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID). On 15 July 1993, the then Chinese Foreign Minister Qian Qichen sent an official letter to the Secretary-General of the Permanent Court of Arbitration (PCA) informing him of the Chinese decision to resume all its activities in the PCA, and subsequently nominated four renowned Chinese law experts as arbitrators of the PCA. Later in the same year, he sent another letter to the Foreign Minister of the Netherlands declaring that China accepts all the Hague Conventions for peaceful settlement of international disputes.Footnote 60 Today, four Chinese law experts are still on the list of members of the PCA.Footnote 61

This tendency has become even more noticeable since China’s entry into the World Trade Organization (WTO) in 2001. On its entry, China without reservation accepted the WTO’s dispute resolution mechanisms, which include various compulsory jurisdictions. Such practice made a sharp contrast with China’s traditional practice of making reservations to provisions related to submitting disputes to a third party for settlement. The recent cases concerning the disputes between China and some other WTO members over the measures affecting imports of automobile parts exemplify China’s willingness to settle disputes under the WTO dispute settlement system.

Some changes have also occurred in China’s attitude to the ICJ, although it has not accepted the compulsory jurisdiction of the ICJ. In November 1986, the Chinese International Law Association sponsored a conference in Shanghai, discussing what attitude China should hold toward the jurisdiction of the ICJ. More than a hundred and thirty participants from universities, institutes, foreign administrations, and judicial authorities gave many positive opinions about the ICJ.Footnote 62 In 1989, the Chinese government declared that it would abandon the practice of making blanket reservations on all the provisions concerning the jurisdiction of the ICJ. In the same year, China began to participate in the discussions between the five permanent members of the Security Council on how to strengthen the ICJ.

Earlier, the Cold War had paralysed the effective operation of the United Nations machinery, including the ICJ.Footnote 63 In the 1970s and the early 1980s, one of the main reasons for China’s negative attitude to the ICJ was its dissatisfaction with the composition of judges in the ICJ. With the end of the Cold War and the developing countries’ active participation in international affairs, the ICJ has changed profoundly. Now, out of the fifteen judges that make up the Court, seven are nationals of developing countries. The cultures and civilizations represented by the judges today are much more various. In 1994, the year Shi Jiuyong, a renowned Chinese international law expert, was elected to be a judge of the ICJ, the Chinese government made another political declaration that, except for cases concerning the essential national interests where negotiation and consultation are adhered to for settlement, China, in general, shall not make any reservation when it signs, ratifies, or accedes to international conventions related to economy, trade, science, technology, aviation, environment, transportation, culture, and other technical fields. After Shi Jiuyong’s retirement, Xue Hanqin, another famous Chinese international law expert, was elected a judge of the ICJ in July 2010.

Nowadays, many Chinese international law scholars have realized the important role of the ICJ in helping China to settle its international disputes. They argue that China should be open-minded about the international judicial system.Footnote 64 Gao Fengjun pointed out that China’s negative attitude to the ICJ is in contradiction to its promise to respect international law.Footnote 65 Huang Deming articulated that China should not exclude other peaceful methods when it tries to resolve its territorial and boundary disputes through negotiations and consultations.Footnote 66 One scholar explained that states need peace, peace needs law, and law needs the courts.Footnote 67 Zhu Fenglan even suggested that China should use the ICJ or the International Tribunal on the Law of the Sea (ITLOS) to settle its maritime boundary dispute with Japan if diplomatic negotiations fail.Footnote 68 It is quite obvious that Chinese scholars pay much attention to the decisions of the ICJ, and those decisions are taught in Chinese law schools. A number of Chinese law school teams go to Washington, DC, to participate in the Jessup Moot Court each year. In the new era, China has abandoned its earlier practice of rejecting the jurisdiction of any international court or tribunal and is ready to move further.

No one denies the fact that states try to justify their actions by international law while implementing their foreign policy, but it is unacceptable to degrade international law to a state’s foreign policy. Actually, international law provides a framework within which international politics works.Footnote 69 Even though international law has many uncertainties, nations generally agree upon a basic set of rules that provides a basis for the practice of international relations. As Philip Jessup said: “the function of international law is to provide a legal basis for the orderly management of international relations.”Footnote 70

A pragmatic approach in a legal sense does not mean that one should do and say whatever seems expedient in the short term. On the contrary, it should work for the future. It should be a kind of rule-based pragmatism that progressively challenges legal solutions while maintaining the advantages the latter provides.Footnote 71 An appropriate legal pragmatism helps us to resist dogmatism in all its forms. It allows international law to mediate among states and their interests, but it never means the complete replacement of international law by a state’s policy of expedience.