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Vita Spivak

Russia in Asia-Pacific Program Coordinator, Carnegie Moscow Center, RIAC Expert

In March 2017, Chatham House published a report about China’s changing approach to intergovernmental disagreements. Harriet Moynihan, the author of the report, is an experienced lawyer and expert on international law. This report was based on the author’s experience with Chinese colleagues, not deep analysis, so it raises more questions than it answers. Nevertheless, the study discusses the important issue of Beijing’s changing role in the world system of conflict resolution over the last 15-17 years. Global interest in China’s role grew all the more after an international tribunal in The Hague ruled against China regarding South China Sea territorial claims in July 2016. China did not accept the decision, but tried to keep consequences for its reputation to a minimum.

China did not participate in the structuring of modern international law after World War II, and now the world’s second-largest economy must fit itself into the rule system made by other countries. Moynihan relates this to Beijing’s distrust of international law in general, writing that China sees the current world order as “an instrument of Western Imperialism”. Imperialism was heavily discussed during the Great Leap Forward and Cultural Revolution, while in the 1980s China began its “Reform and Openness” plan and simultaneously tried to be internationally active and defend its “Five Principles of Peaceful Coexistence”.

The concept of China’s rise in the world order without desire to lead has faded since the 21st century began. China is more and more active in diplomacy and international law, showing decisive and assertive actions regarding the South China Sea and territorial disagreements with Japan. Increased emphasis on rule of law within China is encouraging this change, as the government tries to improve rule of law in its own country, sending Chinese law students to study in Western universities. However, legal expertise in China still cannot compete with the West, according to Moynihan’s colleagues in Beijing.

The main part of Moynihan’s report compares Beijing’s behavior regarding the South China Sea in the Hague and in the WTO courts. The state’s behavior, according to her, is decided on a case-by-case basis.

At the moment, China uses only the WTO courts to resolve its international disputes. China joined the organization in 2001 and adapted organically to its rules, because joining was an economically beneficial move for the country. Now China actively uses these courts to solve economic problems. However, delicate territorial disagreements are harder to solve, as they involve more of China’s “face” and “vital interests”. China’s claims on the South China Sea have caused tension with Washington as well as close neighbors. This sea, rich with both fish and oil, is an enticing morsel for local governments, and China claims a large part of it. The Philippines brought the case to the Permanent Court of Arbitration in The Hauge, but China refused to accept the tribunal’s verdict that Chinese claims are illegitimate, and the construction of artificial islands to justify them is illegal.

But Moynihan does not believe that this action shows disregard for international law: China did try to defend its position, accusing Manilla of breaking the UN Convention on the Law of the Sea (UNCLOS). Moynihan suggests that China’s new investment in legal expertise is because of this. Moynihan calls China’s behavior here “non-participatory participation”, and thinks the court case was a “hygiene test” for China, which, lacking experience in such courts, decided not to risk its reputation. The author presents this as a step on the way to integration into the international legal system.

As China was until recently a purely economic power, focused on questions of trade and investment, use of WTO courts was always in China’s own interests. Moynihan believes that China must take a more active role in international law soon, as it is now dealing with new issues, like ecology, global warming, and globalization. China is now more assertive in the UN, makes its own international initiatives (like the Silk Road Initiative and Regional Comprehensive Economic Partnership), and creates international development institutions (like the Asian Infrastructure Investment Bank).

Moynihan’s study emphasizes that China is integrating into the international system as nationalism rises in the West. Beijing could become an important player in international law given the unpredictable policy and isolationist rhetoric of new US president Donald Trump, the author believes.

The one thing Moynihan does not consider is the challenges China itself faces: lagging GDP growth, economic imbalances, and the need for a new growth model, party and government liberalization and so on. China’s political and economic systems remain fairly closed to the outside world, and the legal system still needs to develop. China’s current status is unsure, and it is hard to predict the trajectory of its development.

One large question remains: will China, trying onGreat Power” status, uphold the current Western model of international law, or change the system to suit itself? Now one can only hope that, as Moynihan says, Beijing’s practicality and the needs of Chinese business will win over “vital interests” in the South China Sea and lead to calm, flexible resolution of the issue. It seems China may benefit from joining the existing international law system and working with Western partners and local neighbors to solve shared problems. Moynihan rightly argues that developed Western governments should help China carry out this process.

Russia ought to observe the development of this new international leader more carefully. China is Moscow’s biggest trade partner, and Russia is now considering the question of its status vis-à-vis China. Since Russia and China have already solved their border issues, they could work together on trans-border trade and investment, which are currently developing with great difficulty.


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Poll conducted

  1. Korean Peninsula Crisis Has no Military Solution. How Can It Be Solved?
    Demilitarization of the region based on Russia-China "Dual Freeze" proposal  
     36 (35%)
    Restoring multilateral negotiation process without any preliminary conditions  
     27 (26%)
    While the situation benefits Kim Jong-un's and Trump's domestic agenda, there will be no solution  
     22 (21%)
    Armed conflict still cannot be avoided  
     12 (12%)
    Stonger deterrence on behalf of the U.S. through modernization of military infrastructure in the region  
     4 (4%)
    Toughening economic sanctions against North Korea  
     2 (2%)
 
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