Contemporary International Law and China’s Peaceful Development [1 ed.] 9789811586552, 9789811586576

Table of contents :
Series Editor’s Preface: A Wisdom Was Passed, While His Academic Big Fruits Are Still Alive
序言: 哲人其萎 硕果长存 (A Wisdom Was Passed, While His Academic Big Fruits Are Still Alive)
Foreword I: Commentary on Prof. Lingliang Zeng’s Academic Thought of International Law
Academic Life of Prof. Lingliang Zeng
Professor Lingliang Zeng’s Theoretical Contributions to International Law Studies in China
Actively Advocated the Construction of International Law from a Chinese Perspective
Strong Support to Promote the Innovation in International Law Ideas and Principles Based on the Belief of a Community of Common Destiny
Demonstrated Dialectics of Sovereignty in a Scientific Manner
Precisely Elaborated the Humanizing Tendency of Contemporary International Law
Clarified the Interactions Between China’s Peaceful Development and Contemporary International Law
Advocated Building China’s Discourse System of International Law
Called for Attention to Value the Role of International Law in China’s Rule of Law and National Governance
Professor Lingliang Zeng’s Pioneering Research on EU Law
Professor Lingliang Zeng’s Original Research on WTO Law
Foreword II: Prof. Lingliang Zeng and EU Law Teaching & Studies in China
Always Respected Professors, and Built on the Past Achievements of His Predecessors
Started Studying EU Law Abroad by Chance, and Remained True to His Original Aspiration in the Changing Times
Followed the Steps of His Predecessors, and Deeply Connected with Luojia Hills
Built on the Past Achievements of His Predecessors, Laid Solid Foundation for the EU Law Discipline, and Promoted the Discipline Development
Profound Insights and Originality
Filled in Gaps in Domestic Studies, and Proposed New Ideas and Insights
Theoretical Researches Closely Connected with China’s Diplomatic Practice
Updated Research Materials from Time to Time, and Closely Kept Up with the Trends of International Research
Rigorous, Modest, and Innocent
Considered Studying as the Love for His Whole Life
Respected Students’ Intellectual Work, and Kept Learning While Teaching
Broad-Minded, and Indefatigable in Teaching
Conclusion
Acknowledgements
Contents
Abbreviations
Part IHarmonious World, International Law and China’s Peaceful Development
1 State Sovereignty in the Post-Cold War Era
1.1 Introduction
1.2 Self-determination of Peoples and State Sovereignty
1.2.1 Who Has the Right to Assert “Self-determination”?
1.2.2 Is the Right of Self-determination Contradictory with State Sovereignty?
1.3 International Organizations and State Sovereignty
1.3.1 The “Hard Collision” of International Organization with State Sovereignty
1.3.2 The “Soft Erosion” of International Organizations over State Sovereignty
1.4 New Development of International Law and the State Sovereignty
1.4.1 The Shrinking of Territorial Supremacy
1.4.2 The Shrinking of Personal Supremacy
1.5 Conclusion: Dialectics
References
2 Humanizing Tendency of Contemporary International Law
2.1 Introduction
2.2 The Individuals-Oriented Development of International Law
2.2.1 International Humanitarian Law: The Earliest Manifestation of Humanization
2.2.2 International Law of Human Rights: The Most Systematic Representation of Humanization
2.2.3 Extradition: New Humanizing Measurements
2.2.4 Protection of Intellectual Property Rights and Public Health: A Recent New Humanizing Tendency
2.2.5 The Linkage Between Core Labor Standards and Trade Liberalization: A New Humanizing Challenge
2.3 The Humankind-Oriented Development of International Law
2.3.1 Expansion of State Universal Jurisdiction and Affirmation and Punishment of the Most Severe International Crimes
2.3.2 The Human Common Interests of the Areas Beyond the Sovereign Jurisdictions of States
2.3.3 The Common Interests of the Humankind Embodied in International Environmental Law
2.4 Conclusion
References
3 Harmonious World and Development of International Law
3.1 Introduction
3.2 International Political Order with Peaceful Coexistence: The First Insurance Pursued in a Harmonious World
3.3 Sustainable Economic and Social Development: The Hard Tasks Endowed with International Law in a Harmonious World
3.4 Global Democracy, Rule of Law, and Good Governance: The Higher Values Sought by International Law in Harmonious World
3.5 Diversity of World Civilization: The Sustained Expectation of International Law in a Harmonious World
3.6 Coordination of International Norms and Mechanisms: The Necessity of International Law in a Harmonious World
3.7 Conclusion
References
4 Status and Application of Good Faith in International Law
4.1 Introduction
4.2 Status of Good Faith in International Legal System
4.2.1 Good Faith is a General Legal Principle
4.2.2 Good Faith is a Rule of Customary International Law
4.2.3 Good Faith is the Basic Principle of International Law
4.3 Application of Good Faith in Negotiation, Interpretation and Implementation of Treaties
4.3.1 The Application of Good Faith in Treaty Negotiation
4.3.2 The Application of Good Faith in Treaty Interpretation
4.3.3 The Application of Good Faith in Treaty Implementation
4.4 Conclusion
References
5 Characteristics of International Governance, Global Governance and International Law in Times
5.1 Conceptual Evolution of International Governance and Global Governance
5.2 International Governance and International Law in the Era of State Monopoly
5.3 International Governance and International Law in the Era of International Organizations
5.4 Global Governance and International Law in the Post-Cold War Era
5.4.1 International Regime Highlights the Value Orientation of the Interests of the Global Human Community
5.4.2 The Diversity of Actors of Global Governance and the Silent Transformation of Roles of Different Actors
5.4.3 An Emerging Legal Pluralism in International Regulatory Instruments and the Strengthening of Self-discipline Rules and Soft Norms
5.4.4 Compliance Mechanism of International Regulations Becomes More Flexible
5.5 Conclusion
References
6 Role of the United Nations in Promoting the International Rule of Law
6.1 Evolution of the Rule of Law in the United Nations
6.2 Activities and Achievements of the United Nations in Promoting the International Rule of Law
6.3 General Knowledge
References
Part IIFrontier Issues of Contemporary International Law
7 Denouncing the Barbarians of NATO’s Bombing of Chinese Embassy in Former Yugoslavia
7.1 Personal Inviolability of Diplomatic Representative: A Customary International Law with Long History
7.1.1 Inviolability of Premises of Embassy Mission: An Old International Customary Rule
7.2 Respect for State Sovereignty: The First and Foremost Principle in Customary International Law
7.3 Prohibition of Armed Forces or Threat of Armed Forces: A Jus Cogens Established in Contemporary International Law
7.4 Principle of Differentiation or Prohibition of Indiscriminate Attack
References
8 Historical Breakthrough of International Law: Comments of the Statute of the International Criminal Court
8.1 Background on Establishment of ICC
8.2 Focus on Debates at Rome Diplomatic Conference
8.3 Main Contents of the Statute
8.4 Significance of the ICC
Reference
9 Legality Issues of the Third Iraq War and the Dilemma of International Law
9.1 Introduction
9.2 Legality of the Third Iraq War: A Sustained Debate Topic in International Law
9.2.1 Opinion for Lawful Use of Armed Force in Iraq
9.2.2 Opinion for Unlawful Use of Armed Force in Iraq
9.2.3 Partial Legitimacy
9.2.4 “Illegal, Yet Not Illegitimate”
9.2.5 “Flexibility Benefits”
9.3 Dilemma and Defects of Existing International Law: Completely Unmasked Again
9.3.1 Confusion
9.3.2 Two Sides of a Coin
9.4 Necessity of Reforming Existing International Law
References
10 A Review of the DPRK Nuclear Test from the Perspective of International Law
10.1 Multilateral Treaties on Prohibition of Nuclear Test Under International Law
10.2 Treaty on Non-proliferation of Nuclear Arms and the DPRK Nuclear Test
10.3 Joint Statement of the Six Parties and the DPRK Nuclear Test
10.4 The UN Charter and the DPRK Nuclear Test
10.5 Conclusion
References
11 Issues of International Law Concerning Crimea’s Secession from Ukraine and Merging with Russia
11.1 Introduction
11.2 Scope of Application of the Principle of Self-determination
11.3 Relationship Between Territorial Integrity of State and Self-determination
11.4 Issues of International Supervision on Referendum
11.5 Cases of Self-determination Under Supervision of International Organizations
11.5.1 The League of Nations Intervened in Cases Involving Self-determination
11.5.2 Cases Involved by the United Nations in Self-determination
11.5.3 Cases in Which the International Court of Justice Has Decided (or Issued an Advisory Opinion) on Self-determination
11.6 Conclusion
References
12 Implementation Mechanism of the UN Core Human Rights Treaties: Current Situation, Issues and Enhancement
12.1 Introduction
12.2 Characteristics of the Implementation Mechanism of UN Human Rights Treaties
12.2.1 Types of UN Human Rights Organs
12.2.2 Basic Characteristics of UN Human Rights Treaty Bodies
12.3 Defects and Improvement of Implementation Mechanisms of UN Human Rights Treaties
12.3.1 Main Problems
12.3.2 The Failure of the Early Reform Plans
12.3.3 The Strengthening Process Initiated by the OHCHR
12.3.4 The Intergovernmental Process Initiated by States Parties
12.4 Practical Ways to Effectively Implement Human Rights Treaties
12.5 Conclusion
References
Part IIIInternational Law and China’s Peaceful Development
13 Mutual Influence and Interactions Between China’s Peaceful Development and International Law
13.1 Foundations of China’s Peaceful Development: Harmonious World and International Law
13.2 The Impacts of International Law upon China’s Peaceful Development: Promotion and Restriction
13.2.1 Promotion of International Law to China’s Peaceful Development
13.2.2 Restriction of International Law to China’s Peaceful Development
13.3 The Far-Reaching Significance of China’s Peaceful Rising to Development of International Law
13.3.1 Significance of China’s Peaceful Rising to Development—The Subject Matter of International Law
13.3.2 Significance of China’s Peaceful Rising to Peace and security—The Primary Task of International Law
13.3.3 Significance of China’s Peaceful Rising to Human Rights, Rule of Law and democracy—The New Values of International Law
13.4 Conclusion
References
14 Contemporary Construction of Chinese International Law Discourse
14.1 The Guiding Rational and Basic Dimensions of the CILD
14.1.1 One Guiding Rational
14.1.2 Four Fundamental Dimensions
14.2 Fundamental Principles of Contemporary Construction of the CILD
14.2.1 According to Basic Norms of International Relations
14.2.2 Conforming to Globalization and Persisting on Multilateralism
14.2.3 Actively Participating in Regional Integration
14.2.4 Fully Manifesting the International Community Obligations (or Rights)
14.2.5 Adapting to the Needs of China’s Peaceful Development
14.3 The Functional Orientation of Contemporary CILD
14.3.1 Promoting the Continuous Development and Broad Application of Contemporary International Law
14.3.2 Promoting the Teaching, Research and Dissemination of Contemporary International Law
14.3.3 Promoting the Progress of the Rule of Law in China
14.3.4 Maintaining China’s Interest, Especially Its Core Interest
14.3.5 Improving the International Image and Status of China as a Responsible Big Power
14.4 Conclusion
References
15 International Legal Personality of Macao Special Administrative Region
15.1 Introduction
15.2 Disagreed Negativism
15.3 International Legal Personality of Macao and Its Characteristics
15.3.1 The Treaty or International Law Basis for the International Legal Personality of Macao
15.3.2 The Most Fundamental Domestic Legal Basis for Macao’s International Legal Personality
15.3.3 The Basic Law of Macao Implies the International Legal Personality of Macao
15.3.4 Characteristics of International Legal Personality of Macao
15.4 Conclusion
References
16 Chinese Practice of International Rule of Law: Great Progress in the Past Thirty Years and Growing Challenges Ahead
16.1 Introduction
16.2 Outstanding Contributions Made by China in Its Practice of International Rule of Law
16.2.1 Initiation of New Concept and Principles Reflecting the Core Values of International Rule of Law
16.2.2 Full Participation in International Law-Making and Decision-Making
16.2.3 Active Taking Part in International Peace-Keeping and Peace-Building Actions as Well as Regional Security Mechanism
16.2.4 Active Assistance to the Middle and Small Developing Countries in Their Capacity Building for Rule of Law
16.2.5 Active Access to and Implementation of Multilateral Treaties
16.2.6 Creative Settlement of Hong Kong and Macao Issues as Well as Other Disputes
16.3 Some Issues to be Coped with by China in Its Practicing International Rule of Law
16.3.1 Challenges of Adaptation to Humanizing Tendency of International Law
16.3.2 Issues to Enhance China’s Status and Influence in International Legislation and Decision-Making
16.3.3 Issues to Accept Jurisdictions of International Judicial Organs
16.3.4 Necessity of Further Perfection of Normative System in Its External Relations
16.3.5 Transformation of the Mass-Scale Model to the Elite-Oriented Model in Training Chinese International Legal Professionals
References
17 Conceptual Analysis of China’s Belt and Road Initiative: A Road Towards a Regional Community of Common Destiny
17.1 Introduction
17.2 The Belt and Road in the Perspective of Regional Economic Integration
17.2.1 Legal Definition and Hierarchy of Regional Integration
17.2.2 Debates on Advantages and Disadvantages of Regional Integration
17.2.3 Tendency of Regional Integration in Recent Years
17.2.4 Comparative Analysis of Belt and Road with Regional Integration
17.3 The Belt and Road in Terms of Partnership
17.4 The Belt and Road Towards a Regional Community of Common Destiny
17.4.1 Evolution of Concept Pursued by Chinese Government
17.4.2 Connotation of Community of Common Destiny
17.4.3 The Belt and Road Initiative as Part of Community of Common Destiny
17.5 Conclusion
References
Part IVChina and WTO Rule of Law
18 Position of the WTO Law in International Legal Order
18.1 Introduction
18.2 Common Features of WTO Law and General International Law: A Holistic Review
18.2.1 The Same Social Foundation
18.2.2 The Same Legal Attributes
18.2.3 The Same Origin of Validity Basis
18.3 Uniqueness of WTO Law: Some Concrete Explorations
18.3.1 The Characteristics of Source of Law, Its Formation and Validity
18.3.2 New Breakthroughs in the Institutional Law
18.3.3 New Attempts at Treaty Law
18.3.4 New Developments in International Liability
18.3.5 Uniqueness of Dispute Settlement
References
19 WTO’s Self-contained Rule of Law Model and Its Challenges
19.1 Introduction
19.2 The Balance Between the WTO Competence and the Sovereign Power of Its Members
19.3 The Substantial Integration of Developing Country Members into the WTO
19.4 The Erosion of the Proliferation of Regional Trade Agreements to the Principle of Non-discrimination
19.5 The Enhancement of Democracy, Transparency and Efficiency of WTO Decision-Making Process
19.6 Further Improvements of Dispute Settlement Mechanism
References
20 Dilemma and Outlet of Doha Development Agenda After Cancún Ministerial Conference
20.1 Cancún Ministerial Conference: A Symbol of Severe Setback of Doha Development Agenda
20.1.1 Divergences on Some Major Issues
20.1.2 Divergencies on Conference Documents and Decision-Making Methods
20.2 Anxiety and the Light of Hope After the Cancún Conference
20.2.1 Signs of Concern
20.2.2 The Beacon of Hope Slowly Lighting Up
20.3 Outlet of Doha Round: Idea, Belief and Principle
20.3.1 The Gist of Development Must Not be Deviated
20.3.2 The Belief in Multilateralism Is Unshakable
20.3.3 The Non-transparent, Non-democratic and Non-inclusive Way of Working Must be Changed
20.4 Conclusion
References
21 Brilliant Multilateral Trade System with Hardship: Achievements, Issues and Improvement
21.1 Concentration: Remarkable Achievements of Multilateral Trade System
21.1.1 The Unprecedented Recognition and Participation to the Multilateral Trading System
21.1.2 The Ever-Increasing Rule-Oriented Philosophy of the Multilateral Trading System
21.1.3 The Initial Formation of the Legal System of the Multilateral Trading System
21.2 Focus: Outstanding Issues of Multilateral Trade System
21.2.1 The Self-Orientation of the WTO
21.2.2 The Erosion of the Non-discrimination Principle
21.2.3 The Ineffectiveness of the Preferential Treatment
21.2.4 The Choice of Decision-Making Methods
21.2.5 Democratic Governance
21.3 Expectation: Self-perfection of Multilateral Trading System
21.3.1 Adhere to the Principle of Dos and Don’ts
21.3.2 Strengthen the Review Mechanism of RTAs
21.3.3 Safeguard the Rights and Interests of Developing Members
21.3.4 Improve the Decision-Making Mode of the WTO
21.3.5 Adhere to the Principle of “Members-Driven” and Promote the Democratic Governance
21.4 Conclusion
References
22 Application of WTO Agreements in China and Revolution of Chinese Legal System
22.1 Recalling: Theory and Practice of Domestic Application on General International Law
22.1.1 General Theory and its Development
22.1.2 General Practice and Its Complexity
22.2 Application of the Treaties in China
22.3 Issues on Application of WTO Agreements in China
22.3.1 Problems Concerning the Ratification of WTO Agreements
22.3.2 Issues on Application (Implementation) of WTO Agreements in China
22.3.3 The Issue of Which Prevails When the WTO Agreements Conflicts with China’s Domestic Laws
22.4 Looking Ahead: A Revolution of Chinese Legal System to Adapt to Economic Globalization
References
23 Illegality and Negative Impacts of the US Special Safeguard Against Chinese Exported Tires
23.1 Introduction
23.2 US Special Safeguards Against Chinese Exported Tires Violates G20 Summit Document
23.3 US Special Safeguards Against Chinese Exported Tires Violates WTO Provisions on Safeguards and Protocol on China’s Accession to WTO
23.4 Conclusion
References
24 Tendency of Treaty Interpretation from the Perspective of WTO Appellate Body’s Ruling on the “China-US Publication Market Access Case”
24.1 Introduction
24.2 AB’s Interpretation of “Sound Recording Distribution Services”
24.3 Similar Interpretative Method by the International Court of Justice
24.4 Conclusion
References
Part VChina and Tendency of Regional Trade Agreements
25 New Tendency of the Regional Trade Agreements and Its Negative Impacts on the Doha Round
25.1 Strong Momentum of Development of RTAs
25.2 Incentives of RTAs Development
25.2.1 Economic Interests
25.3 Negative Impacts of RTAs on Doha Development Agenda
25.3.1 Impacts on the Doha Round Negotiation Process
25.3.2 Impacts on the Doha Development Agenda
25.3.3 Impacts on the Multilateral Trading System
25.4 Conclusion
References
26 Features of China’s RTAs: Definition, Classification and Implication
26.1 Introduction
26.1.1 Conceptual Definition of China’s RTAs: A Comparative Approach
26.1.2 Classification of China’s RTAs: A Further Exploration
26.1.3 RTAs Between China and Its Special Constituents
26.1.4 RTAs Between China and the Regional Organizations
26.1.5 FTAs Between China and Other Sovereign States
26.1.6 Regional Integration and Mechanism Between China and Other Entities in Asia-Pacific Region
26.2 Implication of China’s RTAs: An Even Further Analysis
26.3 Conclusion
References
27 Legal Status and Tendency of Regional Trading Arrangements in the WTO and Some Legal Issues in Establishing Free Trade Area Between the Mainland China, Hong Kong and Macao
27.1 Trends of RTAs
27.2 Legal Status of RTAs in the WTO
27.2.1 Article XXIV of the GATT 1994 and the Understanding on the Interpretation of Article XXIV of the GATT 1994
27.2.2 The “Enabling Clause” of the 1979 Tokyo Round
27.2.3 Article V of the GATS
27.2.4 WTO’s Supervision over RTAs
27.3 Some Legal Issues Related to the Establishment of FTA Between Mainland China, Taiwan, Hong Kong and Macao
27.3.1 The Legal Significance of Establishing the Free Trade Area
27.3.2 The Legislative Issues of Establishing Free Trade Area Among Cross-Straits Four Regions of China
27.3.3 The Issues Concerning the Name of the Free Trade Area Established in Cross-Straits Four Regions of China
27.3.4 The Dispute Settlement of the Free Trade Area Established in Cross-Straits Four Regions of China
27.4 Conclusion
References
28 Impacts of the Transatlantic Trade and Investment Partnership Under the New Tendency of Regional Trade Agreements
28.1 Recent Trend of RTAs
28.2 Incentives of TTIP Negotiations
28.3 Objectives of TTIP Negotiations
28.3.1 The Built-In Objective of TTIP
28.3.2 Spillover Objectives of the TTIP
28.4 Impacts of the TTIP
28.5 Conclusion
References
29 Features of Cross-Border Economic Cooperation Zone and Its Legal Framework and Mechanism Construction
29.1 Parallel Development of Regional Economic Integration and Economic Globalization
29.2 Definition and Characteristics of Cross-Border Economic Zones
29.3 Legal and Mechanism Construction of Cross-Border Economic Zones
29.3.1 Legal Construction of Cross-Border Economic Cooperation Zones
29.3.2 Institutional Guarantee of Cross-Border Economic Cooperation Zones
29.4 Legal Issues of China-Vietnam, China-Myanmar and China-Laos Cross-Border Economic Zones
29.5 Conclusion
References
Part VILegal Issues in China-EU Relations
30 Dual Legal Positions of the EU and Its Member States in WTO and Their Influence on China
30.1 Introduction: Why One of the Bilateral Negotiators of China’s Accession to the WTO is the European Communities Other Than Its Member States?
30.2 Special Relationship Between the European Communities and the GATT
30.3 Dual Positions of the EC and Its Member States in the WTO
30.3.1 OPINION 1/94 and the Competence of the EC and Its Member States to Conclude the WTO Agreement
30.3.2 The EC and Its Member States and the Organization Structure of the WTO
30.4 Effects of EU’s Double Membership in WTO on China
References
31 Changes of EU External Competences After Lisbon Treaty and Their Impacts on Its Partners
31.1 Introduction: Definition and Evolution of EU External Competence
31.2 Changes of EU External Competences Under Lisbon Treaty
31.2.1 Legal Personality: From Ambiguous to Clear
31.2.2 The Framework of External Actions: From the “Three Pillars” to the Unified Framework
31.2.3 Enhancement and Improvement of Institutional Structure in the External Dimension
31.2.4 A Single Set of Rules and Procedures Concerning Negotiation and Conclusion of International Agreements
31.2.5 A Separate Heading and Provision on the Cooperative Relations with International Organizations and the EU Delegations in the Third Countries
31.3 Effects of Changes of EU External Competence on Third States and Other International Organizations
References
32 Reform of the EU GSP in Context of European Sovereign Debt Crisis and Its Impacts on China
32.1 GSP: A Special Trade Preferential Policy
32.2 Characteristics of EU GSP Scheme (2006–2015)
32.2.1 The Arrangement of the General GSP
32.2.2 The “GSP+ ” Arrangement
32.2.3 The “Everything But Arms” (EBA) Arrangement
32.2.4 GSP Graduation Mechanism
32.2.5 Temporary Withdrawal of GSP
32.2.6 Reform of Rules of Origin
32.3 Recent Reform of EU GSP Scheme
32.4 Impacts of EU GSP Reform on China
32.5 Conclusion
References
33 Non-market Economy Issues in Sino-EU Relations: A Purely Technical Matter or Beyond?
33.1 Introduction
33.2 Strong Political Implication in the Conceptual Origins of Non-market Economy
33.3 Non-technical Incentives of EU Non-recognition of China’s Full Market Economy Status
33.3.1 The EU’s Granting China a Special Market Economy Status, It Seems to these Authors, Is Not a Progressive Step on Its Roadmap of Recognizing China’s Full Market Economy Status, But as a Matter of Fact an Enhanced Discriminatory Treatment of China as a Non-market Economy in Antidumping Investigation
33.3.2 Anxiety of Threats by The Chinese Ever-Increasing Exports to the EU is One of the Very Factors Behind Pushing It not to Give Its Recognition of China’s Full Market Economy Status
33.3.3 The Suspicion Cannot be Easily Excluded that the EU Intends to Use Its Recognition of China’s Full Market Economy Status as a Bargaining Chip to Force China Even to Meet Its Other Requests Beyond Trade and Economic Areas
33.3.4 The Different Attitudes Towards China and Russia and Ukraine Adopted by the EU in Terms of Recognition of Their Market Economy Status Reveal Strong Political and Ideological Prejudice
33.4 Non-technical Connotations of Divided Positions Among WTO Members on China’s Full Market Economy Status
33.5 Conclusion
References
34 Significance of China-EU Investment Agreements in the Construction of China-EU Comprehensive Strategic Partnership
34.1 Introduction
34.2 Core Indicators in Construction of China-EU Comprehensive Strategic Partnership
34.3 Three Treaty Pillars of China-EU Comprehensive Strategic Partnership
34.3.1 Treaty Pillar I: China-EU Trade and Economic Cooperation Agreement
34.3.2 Treaty Pillar II: China-EU Partnership and Cooperation Agreement
34.3.3 Treaty Pillar III: China-EU Investment Treaty
34.4 Significance of the China-EU Investment Agreement
34.4.1 Providing China-EU Trade Development with New Driven Mode
34.4.2 Unifying and Upgrading Current Standards and Levels of Investment Treaties Between China and EU Member States
34.4.3 Influencing the Formation of Multilateral Investment Rules
34.5 Conclusion
References
Appendix
Main Publications of Professor Zeng Lingliang

Citation preview

Modern China and International Economic Law Editor-in-Chief: An Chen

Lingliang Zeng

Contemporary International Law and China’s Peaceful Development

Modern China and International Economic Law Editor-in-Chief An Chen, Pearl Bay Garden Community, Xiamen City, China Series Editors Huaqun Zeng, School of Law, Xiamen University, Xiamen, China Lingliang Zeng, School of Law, Wuhan University, Wuhan, China Pizhao Che, School of Law, Tsinghua University, Beijing, China Yuejiao Zhang, School of Law, Shantou University, Shantou, China

This book series offers an essential forum for Chinese economic law scholars, as well as international scholars interested in China’s practice in the context of international economic law. It is thus the aim of this book series to publish essential monographs/compilations in the field of international economic law that focus on China, or on uniquely Chinese characteristics. This book series above all focuses on research that closely relates current practices with past history, and future policies with current circumstances, pursuing a philosophy of understanding legal practices by combining the past and present. Accordingly, top scholars in China and beyond its borders will be invited to contribute to this project from their respective areas of focus, which can cover broad topics related to international law in the current context of China’s peaceful rise, such as China’s economic policy with various countries, its participation in the WTO legal system and bilateral investment treaty practices, etc.; as well as more specific topics such as China’s domestic legislation regarding foreign business, its unique “one country, two systems” policy and its implications on external economic interactions between different “systems” within China.

More information about this series at http://www.springer.com/series/13773

Lingliang Zeng

Contemporary International Law and China’s Peaceful Development

Lingliang Zeng School of Law Research Institute of International Law Wuhan University Wuhan, Hubei, China

ISSN 2364-8317 ISSN 2364-8325 (electronic) Modern China and International Economic Law ISBN 978-981-15-8655-2 ISBN 978-981-15-8657-6 (eBook) https://doi.org/10.1007/978-981-15-8657-6 © Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Series Editor’s Preface: A Wisdom Was Passed, While His Academic Big Fruits Are Still Alive

The work presented before readers is the English version which gathered the quintessence of Chinese posthumous works of Lingliang Zeng, the youngest “Senior Professor of Humanities and Social Sciences,” Wuhan University. At my invitation, he led the pack in writing this work, which is the first monograph in monographic series of the Modern China and International Economic Law. The Chinese name of the work is “当代国际法和中国的和平发展”, with the English name being Contemporary International Law and China’s Peaceful Development. As far back as I can remember, I got to know Prof. Lingliang Zeng earlier: In the autumn of 2000, at the annual conference of the “Chinese Society of International Economic Law,” I was “questioned” by a Ph.D. who had graduated from Wuhan University and was then teaching at Sun Yat-sen University. The Ph.D. believed that the connotation and denotation of international economic law that I had always insisted on1 seemed to “infringe” the “field” of private international law that he specialized in. Upholding the principle of academic democracy, I made a patient answer to the “question.” Then, Prof. Lingliang Zeng, who was the dean of the Law 1 Refer

to my book on the marginality, comprehensiveness and independence of the discipline of international economic law. The basic contents of this paper are originally contained in the Introduction to International Economic Law (1991 Edition) co-written and edited by the author. It has been revised and amended twice successively. It was published in the 1995 edition of Chinese Yearbook of International Law (1996 edition of China Translation and Publishing Corporation, about 18,000 words) and Volume 1 of Journal of International Economic Law (1998 edition of Law Press China, about 44,000 words). Since then, it has been revised and edited for many times and has been included in International Economic Law (edition 1–8, 1994–2020, Peking University Press), Basic Theory of International Economic Law (edition 1–5, 1994–2020, Higher Education Press), and Problems of International Economic Law (a two-volume edition, edition 1 and 2, 2002–2007, Higher Education Press); Chen’s Papers on International Economic Law, Jurisprudence of International Economic Law (single authored English monograph, a two-volume edition, 2005 edition, Peking University Press), An Chen on International Economic Law (single authored monograph, five volumes 2008 edition, FuDan University Press);The voice from China: An Chen on international economic law, English monograph, Springer Press 2013-2014 edition, The Discourse with Chinese Characteristics, An Chen on International Economic Law (single authored monograph, four volumes, 2018 edition, Peking University Press).

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School of Wuhan University at that time and was invited to attend the conference, stood up and agreed with my academic views. He spoke eloquently and refuted the “doubts,” raised by that Ph.D. who had graduated from the same Wuhan University. With that, we, the participants, had a heated discussion and debate on the connotation and denotation of international economic law at the conference, which benefited all of us a lot. I was so deeply impressed by Prof. Lingliang Zeng for his character and academic literacy of abandoning parochial disciplinary prejudice (“门户之见” 和 “领地观 念”), his courage and his ability to “speak out for justice” (“仗义执言”) that I admired him very much. Since then, with the passage of time, I got to know more and more about his personality, quality, character, and academic literacy and I felt that he was indeed outstanding among the young talents of his generation. More importantly, I have found that his values and academic pursuits are basically the same and fairly consistent with mine. For example, both of us believe that since the end of the World War II in 1945, the principal contradiction in the economic and political fields of the modern world has always been the North-South contradiction, that is, the contradiction between a small number of powerful developed countries and a majority of developing countries; Whatever point of views Chinese scholars of international law, international economic law and private international law may hold, they should embark and start from the objective fact of the above-mentioned principal contradiction in the world economic and political fields, that is, the North–South contradiction. Based on the reality of China’s national conditions and the global situation, scholars should demonstrate and elaborate all kinds of current legal principles and norms from the perspective of safeguarding the legitimate rights and interests of billions of people in China and many developing countries, practice the struggle for establishing the new international economic order and reforming the old international economic order, and unswervingly persist in the struggle against international hegemony and power politics. And, we certainly ought to be open to various theoretical propositions, writings and insights of authoritative scholars from western developed countries. We need to learn with an open mind and absorb the fresh knowledge and innovative ideas put forward by them, so as to avoid being out of touch with reality like a frog in a well-bottom (井底之蛙), or being a fly on the wheel. On the other hand, from the perspective and standard of safeguarding the legitimate rights and interests of billions of people in China and many developing countries, we should think independently and identify those theories, separate the chaff from the wheat, discard the false and retain the true, reject the dross and assimilate the essence, so as to avoid belittling ourselves, worshiping blindly, learning without thinking and swallowing the dross, that is, the ideological toxin of advocating colonialism, hegemonism and power politics, which finally causes poisoning. For another example, both of us believe that in the face of the long-term monopoly of international law forums by scholars from powerful western developed countries, the publication of distorted facts, and the slander of China, Chinese international

Series Editor’s Preface: A Wisdom Was Passed, While His Academic …

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law scholars should make “tit for tat” responses. Based on objective facts, Chinese scholars should strive to refute them in theory, clear the fog, and write monographs in foreign languages, so that we can carry forward Chinese academic to foreign countries and enhance the influence of discourse with Chinese characteristics in international law forums by using the popular languages in the western world. Since the values and academic pursuits of both of us are basically the same and highly consistent, for more than a decade, our academic discussions and exchanges, as the China’s Book of Songs 《诗经》 ( ) said, “a bird sings to call forth a mate’s response” (“嘤其鸣矣, 求其友声”), often seem like “the same voice inducting each other.” (“同声相应, 同气相投”). In 2012, I applied to undertake the “Translation Project of the Chinese Humanities and Social Sciences Academic Boutique.” I selected 24 of my academic papers published over the years, rewrote, integrated and translated them into an English monograph entitled “The Voice from China: An Chen on International Economic Law.” According to the review and comment of experts, this English monograph “is of great significance for overseas readers to fully understand the representative academic views and mainstream ideas of Chinese scholars of international economic law. This monograph with Chinese style and Chinese manner (具有中国风格和中 国气派) has its own content structure and novel views. It interprets the innovative academic ideas and pursuits which are different from those of scholars in western developed countries and is committed to initially establishing a theoretical system of international economic law with Chinese characteristics under the guidance of Marxism, and has forged a theoretical weapon of jurisprudence for the disadvantaged groups in the international community to strive for fair rights and interests.” Therefore, my application for undertaking the above project was approved. In the following year, I completed the task of rewriting, integration, and translating. The whole manuscript was handed over to the world-famous German Springer Publishing Company (Springer) and was published in 2013–2014, thus bringing the book into the mainstream international publishing and distribution channel. Taking advantage of the 2014 annual conference of the Chinese Society of International Economic Law held at Wuhan University, the English monograph was launched. At this “new book launch,” Prof. Lingliang Zeng from Wuhan University and Prof. Pizhao Che from Tsinghua University reviewed and introduced the monograph. Mr. Channing Chai and Ms. Lydia Wang, two editors of Springer in Germany, who were invited to attend the conference, met the scholars of the Chinese Society of International Economic Law at the conference. The atmosphere of democratic discussions at the conference was lively and warm where plenty of talents gathered and expressed their own ideas. The two editors of Springer got deep impression at site. In addition, the academic effects and economic benefits of the monograph were quite good after it was released to the world. In view of this, the two editors took the initiative to invite me to sign a new contract with Springer, that is, a contract for the publication of the monographic series of Modern China and International Economic Law. The contract came into effect on January 30, 2015.

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Naturally, I immediately invited Prof. Lingliang Zeng in leading the pack to write the first monograph in the Modern China and International Economic Law series. Out of the sense of common mission to promote Chinese academic culture to the outside world, he readily and willingly accepted this heavy burden. In early 2015, in spite of his busy schedule, Prof. Lingliang Zeng took the time to complete the Chinese collection of “Contemporary International Law and China’s Peaceful Development,” with about 500,000 Chinese characters, and began the English translation of the work. Both Springer and I were eagerly looking forward to the successful birth of the first work of monographic series and meeting readers all over the world. However, it is regrettable and deplorable that Prof. Lingliang Zeng suffered a relapse of old brain disease due to too much academic work2 and died suddenly in July 2016! This is indeed a great loss for Chinese and international academic circles! As Fu Du (杜甫), an outstanding Chinese poet in the Tang Dynasty, once said in mourning for Liang Zhuge (诸葛亮),3 “Died before victory was won, how could heroes not wet their sleeves with tear on tear!” (“出师未捷身先死, 长使英雄泪满 襟”!). Fortunately, after four years of collective efforts, Dr. Zhang Jiao and others, who were cultivated and educated by Prof. Lingliang Zeng, finally realized Prof. Lingliang Zeng’s unfulfilled wish in June and July 2020. They delivered the English translation of Contemporary International Law and China’s Peaceful Development to Springer in Germany for editing and processing, and it will be published soon. In my opinion, the above process embodies three important aspects: First, the Chinese version of the legacy of Prof. Lingliang Zeng, who wrote a great deal of works during his lifetime, is the last comprehensive fruit of his self-selected collection, but he died too young to translate it into English himself. Second, although the wise man has passed away, his personal charm and academic style still live on in the world and continue to influence his students so much that they are willing to do some voluntary work to repay their supervisor. Third, in particular, the students headed by Dr. Jiao Zhang took the initiative to translate Prof. Lingliang Zeng’s Chinese essence with 500,000 characters into English, and finally realized his unfulfilled wish through collective hard work, which highlighted their Chinese virtue of “showing gratitude and repaying kindness” (知恩图报).

2 For

example, during his lifetime, he held various academic positions in China: an expert in the National Social Science Discipline Planning Evaluation Group; Vice-chairman of the Steering Committee of Legal Education, Ministry of Education; a member of International Law Advisory Committee of the Ministry of Foreign Affairs, member of the Indicative List of Panels of WTO Dispute Settlement Body, President of European Legal Studies Association of Chinese European Studies Association, Vice President of Chinese Society of International Law, Vice President of WTO Law Studies Association of China Law Society, Vice President of Chinese Society of International Economic Law, the Managing Director of Legal Education Association, China Law Society, etc. It can be said that “able person does more work”! 3 Translator’s note: Liang Zhuge (181–234) was one of the greatest strategists of post-Han China. Zhuge is an uncommon two-character compound family name.

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I am deeply convinced that this monograph in English will make the latest contribution to promoting Chinese academic culture and enhancing the influence of discourse with Chinese characteristics in international law forums. Professor Lingliang Zeng would be very touched and feel gratified if he knew it in the heaven. He would turn grief into joy and break tears into smile! By An Chen from Xiamen University, an over 90-year-old professor and tireless campaigner, on June 21, 2020, the Summer Solstice in the year of Mouse

序言: 哲人其萎 硕果长存 (A Wisdom Was Passed, While His Academic Big Fruits Are Still Alive)

呈现在读者面前的, 是武汉大学最年轻的 “人文社科资深教授” 曾令良中文遗 著精华荟萃的英文译本, 也是应我邀请, 他引领群伦, 为 《当代中国与国际经济 法学》(Modern China and International Economic Law) 系列专著撰写的第一 , 相应地, 其英文名称是 部专著. 其中文名称是 《当代国际法和中国的和平发展》 Contemporary International Law and China’s Peaceful Development. 往事依稀, 我记得, 我与曾令良教授 “结缘” 较早: 大约是 2000 年秋, 在一次 “ 中国国际经济法学会” (Chinese Society of International Economic Law) 的年会暨 学术研讨会上, 我受到毕业于武汉大学、当时在中山大学执教的某博士的 “质 疑”, 后者认为我所一贯坚持的国际经济法学的内涵和外延,4 有 “侵犯” 他所专 攻的国际私法 “领地” 之嫌. 秉持学术民主原则, 我对这位博士的 “质疑” 做了耐 心的解答. 紧接着, 应邀参会、当时担任武汉大学法学院院长的曾令良教授, 挺 身而出, 赞同我的学术见解, 侃侃而谈, 反驳同样毕业于武汉大学、当时在中山 大学执教的那位博士的 “质疑”. 随即大家在该研讨会上就国际经济法学的内 涵和外延问题展开热烈的讨论和争鸣, 让大家都受益不浅. 我对曾令良教授摈除狭隘的 “门户之见” 和 “领地观念”, 敢于和善于 “仗义 执言” 的性格和学养, 留下了深刻印象, 很是钦佩. 此后, 随着岁月的推移, 我越 来越深入地了解曾令良教授的人品、素质、性格和学术素养, 觉得他确实是 他同辈青年才俊中的佼佼者. 更重要的是, 我发现, 他的价值理念和学术追求, 与我基本相同和高度一致, 例如, 我们都认为, 1945 年第二次世界大战结束以来, 当代世界经济和政治领 域的主要矛盾, 始终是南北矛盾, 即一小撮强权发达国家与广大发展中国家的 矛盾; 中国国际法学人、国际经济法学学人、国际私法学人, 不论你持何种观 4 参看拙作《论国际经济法学科的边缘性、综合性和独立性》 . 本文的基本内容,

原载于笔者 参撰和主编的《国际经济法总论》(法律出版社 1991 年版), 先后经两度修订和增补, 分别发 表于《中国国际法年刊》1995 年本 (中国对外翻译出版公司 1996 年版, 约 1.8 万字) 和《国际 经济法论丛》第 1 卷 (法律出版社 1998 年版, 约 4.4 万字). 此后, 又经多次修订或剪裁, 分别辑 入笔者参撰和主编的《国际经济法学》(北京大学出版社 1994–2020 年第 1–8 版);《国际经济 法学新论》(高等教育出版社 1994–2020 年第 1–5 版); 《国际经济法学专论》(两卷本, 高等教育 出版社 2002~2007 年第 1、2 版);《国际经济法学刍言, Jurisprudence of International Economic Law》(独撰专著, 两卷本, 北京大学出版社 2005 年版),《陈安论国际经济法学》(独撰专著, 五 卷本, 复旦大学出版社 2008 年版); The Voice from China: An Chen on International Economic Law, 英文专著, 德国 Springer 出版社 2013–2014 年版,《中国特色话语: 陈安论国际经济法学 》(独撰专著, 四卷本, 北京大学出版社 2018 年版). xi

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序言: 哲人其萎 硕果长存 (A Wisdom Was Passed, While His …

点, 都理应从上述世界经济和政治领域的主要矛盾即南北矛盾的客观事实出 发, 立足于中国国情和全球世情的实际, 从维护中国和众多发展中国家数十亿 人民合理权益的视角, 论证和阐释当代现有的各种法理和法律规范, 践行建立 国际经济新秩序、变革国际经济旧秩序的斗争, 不渝不懈地坚持反对国际霸 凌主义和强权政治的斗争. 又如, 对于来自西方发达国家权威学者的种种理论主张和著述见解, 我们都 应当抱开放的态度, 既要虚心学习和吸收他们提出的新鲜知识和创新见解, 避 免闭目塞听, 如井底之蛙, 妄自尊大; 又要以维护中国和众多发展中国家数十亿 人民合理权益作为圭臬, 独立思考, 加以鉴别, 去粗存精, 去伪存真, 取其精华, 弃 其糟粕, 避免妄自菲薄, 盲目崇拜, 囫囵吞枣, 把其中糟粕, 即鼓吹殖民主义、霸 权主义和强权政治的思想毒素, 一起吞下, 导致中毒. 再如, 我们都认为, 面对西方强霸发达国家学者长期垄断国际法学论坛、时 时发表歪曲事实、诋毁中国的谰言, 中国的国际法学者都要针锋相对, 根据客 观事实, 努力从理论上予以反驳, 廓清迷雾, 并通过撰写外文专论, 以西方世界 流行的语言, 对外弘扬中华学术、增强中国特色话语在国际法学论坛上的发 声量和影响力. 由于我们的价值理念和学术追求, 基本相同和高度一致, 因此, 此后十多年 《诗经》 所说, “嘤其鸣矣, 求其友 来, 我们之间的学术探讨和学术交流, 就如中国 声”, 常常显得 “同声相应, 同气相投”. 2012 年, 我向中国国家社科基金申请 “中华学术外译项目” 立项, 把我历年 发表的学术论文精选 24 篇, 改写、融汇和翻译成为一部英文专著, 命题为 《中 国的呐喊: 陈安论国际经济法学》(The Voice from China: An Chen on International Economic Law), 经专家评审, 认为这部英文专著 “对海外读者全面了解中国国 际经济法学者较有代表性的学术观点和主流思想具有重要意义. 内容结构自 成一体, 观点新颖, 具有中国风格和中国气派, 阐释了不同于西方发达国家学者 的创新学术理念和创新学术追求, 致力于初步创立起以马克思主义为指导的 具有中国特色的国际经济法理论体系, 为国际社会弱势群体争取公平权益锻 造了法学理论武器.” 因此, 我的上述立项申请获得批准. 翌年, 我完成了改写、融汇和翻译任务, 全稿交由在全球享有盛誉的德国 Springer 出版社, 于 2013–2014 年间推出问世, 从而使此书进入了国际主流出版 和发行传播的渠道. 紧接着, 借中国国际经济法学会在武汉大学召开 2014 年年 会之便, 举行了这本英文专著的 “新书发布会”. 在这场 “新书发布会” 上, 由参 会的曾令良教授和清华大学的车丕照教授担任 “新书评论介绍”. 应邀前来武汉大学参会的德国 Springer 出版社两位编辑柴宁先生和王磊女 士 (Mr. Channing Chai and Ms. Lydia Wang), 在现场见到 “中国国际经济法学会” 的学者们, 人才济济, 会场民主讨论、各抒己见的争鸣气氛十分热烈, 加以向全 球推出此书后的学术效应和经济效益都相当不错, 有鉴于此, 遂主动邀约我和 该社签订新的合同, 即 《当代中国与国际经济法学》(Modern China and International Economic Law) 系列专著出版合同, 并于当年年底正式签约生效.

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上图是 2014 年陈安教授英文版专著 “The Voice from China: An Chen on International Economic Law” 《中国的呐喊: ( 陈安论国际经济法学》 ) 新书发布会现场照片之一, 发布会全景图

上图是 2014 年陈安教授英文版专著 “The Voice from China: An Chen on International Economic Law”《中国的呐喊: ( 陈安论国际经济法学》 ) 新书发布会现场照片之二: 左起第一人是武汉大

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序言: 哲人其萎 硕果长存 (A Wisdom Was Passed, While His …

学曾令良教授, 第二人是新书作者陈安教授, 第三人是德国 Springer出版社编辑柴宁先生, 第 四人是德国 Springer 出版社编辑王磊女士, 第五人是清华大学车丕照教授

上图是 2014 年陈安教授英文版专著 “The Voice from China: An Chen on International Economic Law”《中国的呐喊: ( 陈安论国际经济法学》 ) 新书发布会现场照片之三, 陈安教授与曾令良教 授的近照合影

顺理成章, 我随即邀请曾令良教授引领群伦, 为 《当代中国与国际经济法学 》(Modern China and International Economic Law) 系列专著撰写第一部专 著. 出于共同对外弘扬中华学术文化的使命感, 他很爽快、很乐意地接受了这 个分量不轻的担子. 《当代国际法和 2015 年初, 承他在百忙之中, 专门拨冗安排时间, 优先完成了 中国的和平发展》 的中文荟萃工作, 约 50 万字中文, 并开始着手英译本 Contemporary International Law and China’s Peaceful Development 的翻译工作. 我和德 国 Springer 出版社都殷切期待这个系列专著的 “头胎婴儿” 能顺利地呱呱坠地, 与全球读者见面. 但是, 令人遗憾和痛惜的是, 天不假年, 曾令良教授却因学术兼职过多5 而脑 部旧疾复发, 于 2016 年 7 月间遽然辞世! 这的确是中国学界和国际学界的重大 5 例如,

他生前曾在中国同时担任以下多种学术兼职: 国家社会科学学科规划评审组专家, 教 育部法学学科教学指导委员会副主任委员, 外交部国际法咨询委员会委员, WTO 争端解决机 构专家指示名单成员 (Member of Indicative List of Panelists of WTO Dispute Settlement Body), 中国欧洲学会欧洲法律研究会会长, 中国国际法学会副会长, 中国法学会 WTO 法研究会副

序言: 哲人其萎 硕果长存 (A Wisdom Was Passed, While His …

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损失! 正如中国唐代诗人杜甫悼念诸葛亮的名句所说: “出师未捷身先死, 长使 英雄泪满襟”! 所幸者, 曾令良教授培养和教育出来的张皎博士等人, 不辞辛劳, 经过四年的 集体努力, 终于在 2020 年 6–7 月间, 即曾令良教授去世四周年之际, 实现了曾 令良教授的遗愿, 把 Contemporary International Law and China’s Peaceful Development 这本遗著的英译全稿, 交付德国 Springer 出版社编辑加工, 即将出版问 世. 我认为, 上述这个过程体现了三个重要方面: 第一, 曾令良教授一生著述甚 多, 可谓硕果累累, 而这部遗著的中文版, 乃是其自选精华荟萃的最后一颗综 合性大硕果, 可惜他英年早逝, 未能亲自把它译为英文. 第二, 曾令良教授虽 然已经 “哲人其萎”, 但他的人格魅力和学术风范仍然长存世间, 并且继续深 深地影响着他的弟子们, 以致他的弟子们都乐意做些义务劳动以报答恩师. 第 三, 特别是, 以张皎为首的弟子们主动承当相当繁重的曾令良教授中文精华荟 萃成果 50 万字的英译工作, 通过集体的辛苦努力, 终于实现了曾令良教授的遗 愿, 凸显了他们 “知恩图报”的中华美德. 我深信, 这部英文专著, 必将为对外弘扬中华学术文化、增强中国特色话语 在国际法学论坛上的影响力, 做出最新的贡献. 对此, 曾令良教授如果天上有知, 谅必倍感欣慰, 转悲为喜, 破涕为笑了! 厦门大学耄耋一兵 陈安 撰于 2020 年 6 月 21 日, 庚子年夏至.

会长, 中国国际经济法学会副会长, 中国法学会法学教育研究会常务理事, 等等. 真可谓 “能 者多劳”!

Foreword I: Commentary on Prof. Lingliang Zeng’s Academic Thought of International Law

Professor Lingliang Zeng had long been engaged in the teaching and research of international law. He was a great pioneer of WTO law and EU law studies in China. He was rigorous in his studies, broad in vision, quick in thinking and profound in thought, and enjoyed a high reputation in jurisprudential circles at home and abroad. As a Ph.D. under Prof. Lingliang Zeng in the early years, the authors sincerely appreciate his guidance and admire his efforts and contributions. This article is intended to review and summarize Prof. Zeng’s academic life and academic thoughts and seek comments from peers in the international legal community.

Academic Life of Prof. Lingliang Zeng Professor Lingliang Zeng was born in March 1956 in Macheng, Hubei. Like most of his peers, Prof. Zeng had a rough experience in study when he was young. He was selected to be an undergraduate student at the Foreign Studies School of Wuhan University and stayed as a teacher after graduation in 1978. In view of the surge in demand for talents with language and legal expertise in China since the reform and opening-up, he then devoted himself to international law. In 1984, when he was 28 years old, Mr. Zeng seized the major opportunity in his life. He was successfully enrolled as a graduate student majoring in public international law at Wuhan University under the guidance of Prof. Xi Liang, a renowned international jurist in China. While Prof. Zeng was pursuing his master’s degree, after strict selection, he got the opportunity to go to the prestigious University of Michigan Law School for another master’s degree in EU Law and GATT Law, learning from Prof. Jackson, an authority of GATT Law. He obtained the master’s degree in law at the University of Michigan in 1986. In 1987, one year after returning home, he got his master’s degree in law at Wuhan University and continued to study for a doctor’s degree in public international law under the guidance of Prof. Liang Xi. He then obtained a juris doctor degree in international law at Wuhan University in 1992. During this period, Prof. Zeng also engaged in the academic training program for Ph.D. holders at the European University Institute in Italy from 1989 to 1990. After his graduation, xvii

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he was promoted twice for his outstanding teaching and research capabilities and became a professor in 1994. Professor Xi Liang spoke highly of Prof. Zeng and commented that he had outstanding language skills and concise writing skills with rigorous thinking and clear reasoning. “He is not only a dedicated scholar with great language skills in both English and Chinese, but also a very decent man.”6 Indeed, in the eyes of his colleagues and peers, he was a serious and prolific scholar and also an honest and sensible leader with good command of unity and cooperation; in his students’ minds, he was a good supervisor proficient in teaching with extensive knowledge in Chinese and Western learning, and he was also a good example of diligence and responsibilities. As a Chinese scholar at the forefront of “internationalization,” Prof. Zeng worked as Fulbright senior research scholar at the University of Denver (1996–1997), outstanding visiting professor at the University of Birmingham (July to August 1998), distinguished visiting professor at Chicago Kent Law School (January to May 2004), adjunct professor at City University of Hong Kong (2001), and professor at University of Macao (September 2007 to August 2010). He also concurrently served as the editorial board member of Macao Law Journal and honorary editorial board member of European Law Journal and Chinese Journal of International Law. His academic level had been highly recognized at home and abroad. As one of the pioneers of EU law and WTO law studies in China, Prof. Zeng was awarded “Jean Monnet Chair on European Union Law” by the European Commission (2001) and was approved by the WTO Dispute Settlement Body to be one of the three members of the first batch of Chinese penal (2004). It is his outstanding achievements and good reputation in the field of international law that won him wide recognition from peers and experts in other disciplines. Professor Zeng was selected as a Distinguished Professor of “Yangtze River Scholar Program” of the Ministry of Education in 2005. After his term as the dean of Faculty of Law of the University of Macao expired in 2010, he still decided to return to Wuhan University Institute of International Law despite of the kind invitations and generous offers from law schools of Tsinghua University, Shanghai Jiaotong University, and other famous colleges and universities. In October 2014, he was elected as a Senior Professor in Humanities and Social Sciences at Wuhan University with high votes. Although he was 58 years old then, he was still the youngest Senior Professor in Humanities and Social Sciences at Wuhan University. Professor Zeng was devoted to his work and published more than 80 papers in Social Sciences in China, Xinhua Digest, China Social Sciences Digest, Chinese Journal of Law, China Legal Science, World Economics and Politics, People’s Daily, Guangming Daily, European Law Journal, European Law Journal, Frontiers of Law in China, and other domestic and foreign journals. He was an independent author or editor of a number of important works, includingEuropean Community and Modern International Law (1992), World Trade Organization Law (1996), An Overview of 6 Bo

Ye and Lingliang Zeng (2014, March 31). Distinguished Professor of Yangtze River Scholars: A Rigorous Scholar of International Law. Hubei Daily, p. 10.

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EU Law—From the New Perspective of the European Constitutional Treaty (2007), International Law and China at the Dawn of the 21st Century (2005), A Study of the Major Forefront International Legal Issues in China’s Peaceful Development (2011), Public International Law (2016), Encyclopedia of China (Vol. Public International Law), etc. Professor Zeng also won many honors and awards, such as the first prize of the National Outstanding Teaching Achievement Award (cooperating with others) (1993), the Special Government Allowance Award (1996) issued by the State Council, the second prize in the Second National College Humanities and Social Sciences Outstanding Scientific Research Achievement Award (1998), the title of the Second National Top Ten Yong and Middle-aged Jurists (1999), the Crosscentury Talent Award of the Ministry of Education (2000), the second and third prizes of Hubei Humanities and Social Sciences Outstanding Scientific Research Achievement Award (1995, 2002), the title of Hubei Young- and Middle-aged Experts with Outstanding Contributions (2005), the title of Distinguished Professors of Changjiang Scholars Program of the Ministry of Education (2005), the first prize of National College Scientific Research Achievement Award (in Humanities and Social Sciences) (2009), and the second prize of Qian Duansheng Law Research Achievement Award (2012). As a professor of law with excellent management and organizational skills, Prof. Zeng served as the dean of School of Law of Wuhan University (April 1999 to September 2007), the director of Center for European Studies of Wuhan University (1997–2001), the dean of Faculty of Law of the University of Macao (September 2007 to August 2010), the director of Wuhan University Institute of International Law (Key Research Center for Humanities and Social Sciences under the Ministry of Education) (November 2010 to January 2016), the executive president of the Council of National High-end Think Tank under Wuhan University Institute of International Law (January to July 2016). He also held important positions in relevant departments and academic groups, including member of the International Law Advisory Committee under the Ministry of Foreign Affairs, deputy director of the Steering Committee of Law Discipline Teaching under the Ministry of Education, and expert in the Appraisal Team of National Social Science Fund, president of European Law Research Society under Chinese Association for European Studies, vice president of the Chinese Society of International Law, vice president of Chinese Society of International Economic Law, vice president of WTO Law Research Society under China Law Society, president of International Law Research Society under Hubei Law Society, president of the Institute of European Studies of Macao, external reviewer of Social Sciences in China, editorial board member of Chinese Journal of European Studies. Prof. Zeng made great contributions to the development of law education in China and the construction of national think-tanks and academic groups. Professor Zeng valued the connection between theory and practice, and made important contributions to the improvement of China’s foreign-related legal system and participation in international legal affairs. In the late period of negotiations on China’s accession to WTO, he was appointed as a legal adviser to WTO law by the former Ministry of Foreign Trade and Economic Cooperation. Professor Zeng was invited to participate in several seminars on WTO legal issues, where he submitted

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written consultation reports or made keynote speeches and provided important opinions on the amendment to the Foreign Trade Law of the PRC and the enactment of regulations on the import and export of goods, anti-dumping, and countervailing. His research results were highly valued by relevant leaders and members of China’s negotiating delegation. As a member of the International Law Advisory Committee of the Ministry of Foreign Affairs, he also presented a series of consultation reports on major practical issues such as improving the Law of the PRC on the Procedure of the Conclusion of Treaties, the modernizing international rule of law and national governance, advancing the innovations in the concepts and principles of international law, and promoting the reform of the global governance system, which made significant influences and were highly recognized and commended by relevant authorities. Professor Zeng was diligent, thoughtful, and practical in studies. He was openminded and indifferent to fame and fortune. At the beginning of 2016, in consideration of the long-term development of law discipline and society, he insisted resigning from the director of Wuhan University Institute of International Law and planned to step down from important positions such as the President of the Society for European Law Studies, taking the initiative to give more opportunities to younger experts and scholars. He was such a broad-minded and inspiring man. Just when Prof. Zeng was prepared to continue to dedicate his life to China’s international law career with greater efforts, on 24 June 2016, due to a sudden cerebral hemorrhage, his extraordinary academic life suddenly stopped. On 8 July, bad news came that Prof. Lingliang Zeng passed away and left us forever. It is a great loss in the field of international law in China!

Professor Lingliang Zeng’s Theoretical Contributions to International Law Studies in China Professor Lingliang Zeng was an important advocate international law studies in China. Comparing Prof. Zeng’s academic achievements in international law to a magnificent river, then there are three important sources of this river. First, following the steps of his predecessors in the field of international law at Wuhan University, including his mentor Prof. Xi Liang, he studied basic theories and practice of international law and international organization law and other areas of law. Second, as a pioneer of EU law studies in China, he devoted his life to the research of EC law and EU law. Last but not least, as one of the earliest experts in China taking interest in and studying the multilateral trading system, he made significant achievements in WTO law studies. Professor Zeng’s academic thoughts are in-depth, inspiring and influential, covering various fields of international law, which have made abundant contributions to theoretical development of international law. The core is that Prof. Zeng strove to advocate the construction of international law from a Chinese perspective, put forward and elaborated a series of innovative academic viewpoints, and improved

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the theoretical and practical value of international law in contemporary China. Here is a brief introduction:

Actively Advocated the Construction of International Law from a Chinese Perspective Professor Zeng has a profound understanding of the value goal and functional positioning of international law in contemporary China. He pointed out that international law was an essential part of the philosophy and social sciences with Chinese characteristics and that the research level was directly related to China’s international soft power and its competitiveness and influence in the real world. Although China has made great achievements in international law studies, there is still a certain gap between China and developed countries and even some developing countries. Chinese studies on international law should aim to influence contemporary international law and play a substantial role in the reform of the global governance system. To this end, Chinese scholars of international law should not only uphold and inherit traditional international law theories and ideas that meet China’s fundamental interests and the requirements of the new era, but also adhere to the national character, so as to strive for innovation in the development of ideas, concepts and theories of international law.7

Strong Support to Promote the Innovation in International Law Ideas and Principles Based on the Belief of a Community of Common Destiny Professor Zeng had a deep insight into the theoretical development path of international law in contemporary China. He believed that the global governance system needed new rules and that China held an important and significant position in the reform of global governance system. In order to establish the image of great power with strong rule of law, China should not only strengthen rule of law in the country, but also embody its ideas in the progress of international rule of law and innovation of concepts and principles of international law. The consciousness of a community of common destiny actively advocated by China should become a new concept in the

7 See

Lingliang Zeng (2016, June 29). Building International Law under Socialism with Chinese Characteristics. Guangming Daily, p. 16. Professor Zeng also summarized existing theories of international law with Chinese characteristics. See Lingliang Zeng (ed.) (2016). International Public Law (Key Textbook for Research and Development Program of Marxist Theory). Beijing: Higher Education Press. pp. 20–24.

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reform of global governance system and is the latest development of concepts of international law following the ideas of peaceful coexistence and building a harmonious world. To actively create new principles of international law, Prof. Zeng proposed that China should uphold the democratization of international relations, rule of law in international relations, the rationalization of international relations, win-win cooperation, and for the greater good and shared interests.8 These views have played an important role as theoretical guidance in enabling China’s ideas to become new principles, new rules, and new systems of global governance.

Demonstrated Dialectics of Sovereignty in a Scientific Manner Professor Zeng made an incisive analysis on the serious challenges posed by the wave of self-determination of peoples, the expansion of competences of international organizations and the new development of international law after the Cold War on traditional concept of national sovereignty. He believed that the above challenges did not fundamentally shake the sacred role of national sovereignty in constituting the foundation of international relations and the core of international law. At the same time, national sovereignty cannot be pushed to an extreme position as it should be limited to an appropriate extent in light of the interdependence among nations and for the needs of common interests of mankind. However, such restrictions should be permitted by generally accepted principles of international law. The one that imposes such limit on sovereignty is precisely the nation itself. As long as the world is an “international” society and the regulating law is still an “international” law, sovereignty will always be associated with the nation, and those who control the destiny of sovereignty will always be the nation.9 The above dialectical thinking on national sovereignty is thorough and convincing, which has a wide academic influence.

Precisely Elaborated the Humanizing Tendency of Contemporary International Law On the basis of international human rights law and international humanitarian law in the twentieth century, the humanizing tendency of international law in the twenty-first century is particularly prominent. Professor Zeng was acutely aware of this tendency and made an in-depth and systematic elaboration on it. The so-called humanization 8 See Lingliang Zeng, (2016, March 28). Embracing the Trend of Global Governance System Reform

and Promoting the Innovation in Ideas and Principles of International Law. People’s Daily, p. 16. Lingliang Zeng (1998). On National Sovereignty in the Post-Cold War Era. China Legal Science, (1), pp. 109–120. 9 See

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of international law mainly refers to that the ideas, values, principles, rules, and systems of international law lay more emphasis on the legal status of individuals and the entire humankind and the establishment, maintenance, and realization of various rights and interests in respect thereof. Humanization is not only a new concept and value-oriented, but also an ever-increasing positive phenomenon in international law. Contemporary international law has been contributing to the establishment and improvement of global peace and development order for the coexistence among States on the one hand and making endeavors to the formation and maintenance of humanizing order, which is both “individual-oriented” and “humankind-oriented.” Such a humanizing phenomenon undoubtedly represents the advanced trend of international law, enriches its contents, updates some of its classic branches, and impacts on the basic principle of reciprocity on which it is created and developed. Prof. Zeng also emphasized that the humanization of international law does not change the “inter-State” nature of international law, but on the contrary, it is established and realized through agreements and recognitions among States.10

Clarified the Interactions Between China’s Peaceful Development and Contemporary International Law The study of international law from a Chinese perspective needs to be consistent with China’s peaceful development strategy. The theoretical premise of this is to clarify the interactions between China’s peaceful development and contemporary international law. In this regard, Prof. Zeng believed that contemporary international law plays an active role in China’s peaceful development in three aspects: creating a peaceful and secure external environment; building a fair and equal competition order; and providing legal certainty for international cooperation. In addition, China’s peaceful development deems to make an important contribution to the development of contemporary international law. First of all, as China is the largest developing country in the world, its peaceful development is of great significance to global development, which is the subject that contemporary international law dedicates to achieve. Secondly, as a responsible political power, China with improving national strength will certainly play an important role in the cause of peace and security in international law. Last but not least, the development of human rights, rule of law, and democracy are the core values of contemporary international law, and promoting the realization of these new core values at the domestic and international levels is one of the basic goals of China’s peaceful development; China’s peaceful development path is not only the only way to achieve China’s prosperity, but also an inevitable choice to realize the values of human rights, rule of law and democracy.11 10 See

Lingliang Zeng (2007). Humanizing Tendency of Contemporary International Law. Social Sciences in China, (1), pp. 89–103. 11 See Lingliang Zeng (2006). On the Interactive Effects and Roles of Peaceful Development and International Law. China Legal Science, (4), pp. 110–119.

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Advocated Building China’s Discourse System of International Law Professor Zeng had long been concerned about and devoted himself to building China’s discourse system of international law, which he believed that should not only inherent the basic elements of the discourse system of international law, but also to fully embody Chinese characteristics, Chinese style and Chinese spirits in contemporary international law and international jurisprudence. In the construction of China’s discourse system of international law in contemporary world, four basic levels in current and future international rule of law and China’s external relations, namely the domestic level, the international level, the regional level, and the bilateral level, should be taken into account. Meanwhile, China should strictly abide by and follow the basic principles of international relations, and principles embracing globalization, consistent with multilateralism, advocating active participation in regional integration, fully embodying the obligations (rights) of the international community and meeting the needs of China’s peaceful development. Professor Zeng also made several constructive suggestions on main paths of promoting teaching, studies, and dissemination of contemporary international law in China and around the world.12

Called for Attention to Value the Role of International Law in China’s Rule of Law and National Governance Professor Zeng, in various forums and platforms, spared no effort to call on relevant authorities to value the role of international law in China’s rule of law and national governance and had repeatedly called for strengthening the influence of international law in China’s rule of law. First, in terms of the concept of rule of law, to establish an accurate and complete view of rule of law, China should recognize that the “law” in “law-based governance” and “law-based administration” not only refers to “Chinese law” but also includes “international law”; second, China’s legislative, administrative, and judicial systems shall accurately understand the nature and characteristics of relevant principles and rules of international law, properly handle and use the relations between relevant domestic laws and principles and rules of international law; finally, the market economy and civil society should strengthen their understanding of international law and learn to use the rules and procedures of international law to protect their own rights and interests.13 Professor Zeng was averse to the practice of neglecting the role of international law in national governance. He once pointed out that China’s legislature and relevant government departments should never underestimate international law. He also 12 See Lingliang Zeng (2011). Contemporary Construction of China’s Discourse System of International Law. Social Sciences in China, (2), pp. 35–41. 13 Ibid.

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repeatedly called on China to expressly state in the Constitution of the PRC the status of international law or international treaties and customary international law in China’s legal system; that it is necessary to amend the Law of the PRC on the Procedure of the Conclusion of Treaties as soon as possible; in order to ensure the modernization of China’s national governance in line with international rule of law and change the negative impression of China in the world that it does not trust international judicial institutions.14 This is an unfinished wish of a sincere scholar of international law, and also, the goal that fellow scholars in the Chinese law community have been striving for.

Professor Lingliang Zeng’s Pioneering Research on EU Law Professor Lingliang Zeng was well known in the field of EU law. He was elected as the president of the EU Legal Studies Association of the Chinese Association for European Studies and was awarded “Jean Monnet Chair on European Union Law” for his outstanding achievements in the research of EU law.15 In addition to historical factors, his achievements were mainly attributable to his forward-looking vision and hardworking spirit in academic studies. It is known that, although Europe has been at a prominent position in world history and international relations, and the EC/EU is the most outstanding representative of regional integration system, for the Chinese academic community in the 1980s, the European Community and its legal system was still a “cold filed” that only few people study. However, under the guidance of Mr. Xi Liang, Prof. Zeng acutely observed that the EC/EU, through its unique legal system and governance structure, had been playing an increasing role in affairs and cooperation in a wide range of areas, including politics, economics, and law. He also accurately foresaw that the EU and its unique governance structure would have significant impacts on China’s peaceful development. Due to this forward-looking judgment, EC/EU law, the emerging legal system, had been one of Prof. Zeng’s two main research directions since 1984. Professor Zeng’s topics of his dissertations for master’s and doctor’s degrees at home were both in the field of EU law. During the time when he pursued his degrees, or did researches and studies, or gave lectures in the USA or Europe, Prof. Zeng continuously focused on EU law. Those who study EU law know that the EU legal system is quite complicated, and the dynamics and evolution of its integration are particularly apparent. Without years of tracking, accumulation, and research, it is difficult to generate systemic and original results. Moreover, as EU law is a “niche” and “foreign-related” field in jurisprudence, its literature and information sources are basically in foreign languages. It takes a lot 14 Ibid. 15 After the establishment of the Society for European Law Studies of Chinese Association for European Studies in 2007, Prof. Lingliang Zeng was elected as the first president. He organized and united scholars of EU law in China and actively promoted EU law academic research and talent training. So far, the Society has gone through 10 years and has become an important platform for academic exchange and inheritance of Chinese scholars of EU law.

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of time and energy to do researches of this area, and certainly tremendous efforts to achieve innovation and make it to the leading position therein. Although there was no Internet, no Google, and no database of foreign law journals more than 30 years ago, Prof. Zeng made a way out of no way, opening a door of the treasure house for his future academic career, exploring a replicable and generalizable path for Chinese scholars engaged in EU law studies. Professor Zeng’s experience may be summarized in these words: sitting on a cold bench and doing researches of your topic make it a hot one. Specifically, it requires both a macro-view and forward-looking perspective in selecting academic subjects, and a spirit of hardworking to overcome difficulties. For more than 30 years, except for a few references in Chinese, the vast majority of the “raw materials” he studied in EU law were in foreign languages, including original EU legal documents, EU official publications, cases of the European Court of Justice, EU official website and writings by European and American scholars. To accomplish his masterpiece in EU law studies, An Overview of EU Law, Prof. Zeng spent more than 20 years in collecting data, doing researches, and writing and revising the book. On the basis of the advanced research results in Europe and the USA, he proposed many unique insights from a perspective of a Chinese scholar of EU law in system and content construction and academic viewpoints. It is his academician spirit that supports him to make the academic achievements recognized by peers and become a true pathfinder of EU law studies in China. On the controversial issue of the essential characteristics of the European Union and its legal system, Prof. Zeng had been opposed to blindly following the “supranational theory.” He also did not fully agree with the “inter-State theory” or “intergovernment theory” that some domestic scholars insisted in. In fact, he consistently held the “theory of many supranational factors” that had been put forward in his doctoral dissertation.16 On the nature of the European Constitutional Treaty, Prof. Zeng proposed the viewpoint of “duality,” that is, this basic legal document of the EU, whether from the prospective of the procedure of its formulation or the specific analysis of its content, embodies the nature of both treaty and constitution. By analyzing the European Constitutional Treaty and the current practice of the European Union, Prof. Zeng divided the purposes of the EU into general and specific purposes, the latter of which then were divided into internal and external ones. Meanwhile, he sorted out six basic principles of the EU and distinguished them from the three principles of the excise of functions by the EU. When elaborating the sources of EU law, he made in-depth analysis with original insights of the underlying issues such as the “soft law,” general legal principles and the hierarchy of various sources of EU law, which were overlooked by domestic scholars. In respect of the governance structure of the EU and the formulation of EU law, by revealing the "hybrid" characteristics of the main EU institutions and their legislative bodies, he concluded that 16 Lingliang Zeng (1992). European Community and Modern International Law. Wuhan: Wuhan University Press. Lingliang Zeng (1994). European Union and Modern International Law. Taipei: Zhiyi Press (traditional Chinese revised edition); cited in Lingliang Zeng (2007). An Overview of EU Law—From the New Perspective of the European Constitutional Treaty. Wuhan: Wuhan University Press. p. 3.

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EU legislation was changing from the “orientation of national will” in the past to “the common orientation of national will and people’s will.”17 It is the dialectical philosophy based on rigorous research that makes his research not only in a leading position in the domestic academic community, but also original and inspiring in EU law studies among international peers. Professor Zeng had always adhered to the perspective of international law in his studies of EU law. In turn, he also taken EU law as a mirror to observe the development of international law. He pointed out that contemporary international political and economic order and the international legal order that are compatible with it have been changing, and that, in the progress of such reform, the status and role of multilateralism, regionalism and unilateralism, the relations among each other and their respective legitimacy, rationality and specific choices in practice have always been inevitable theoretical and practical issues shared by policy makers, the operators or executors of actual implementation, and scholars of related disciplines. The EU and its legal system with the style of its own, on the one hand, are leading the reform of international legal order in many fields; on the other hand, they have brought a series of challenges to the international legal order in dealing with issues concerning stability and reform.18 Taking EC law and EU law as the starting point, Prof. Zeng analyzed relevant subjects in international law, inheritance, recognition in international law, treaty negotiations and accession, modern diplomatic relations law, and basic principles of international law, and made several forward-looking arguments.19 It is precisely based on long-term hardwork in EU law and international law that Prof. Zeng could make an academic response in a timely manner when major events related to China-EU relations occurred. For instance, when China and the EU announced the start of negotiation of the EU-China Partnership and Cooperation Agreement (EU-China PCA), Prof. Zeng, by using his extensive knowledge of EU law and international law, thoroughly analyzed the content that should be in this PCA and the prospects of this negotiation, especially the procedural and substantive issues concerned, and published papers in Social Sciences in China and European Law Journal. He pointed out that, owing to the breadth, importance and complexity of EU-China relations, and the EU’s unique pluralistic governance structure, the negotiation and conclusion of the new PCA will certainly be a difficult and lengthy process. Within the EU, the new PCA involves several different types of treatymaking competences, functions, and procedures. In substantive terms, provisions on matters such as market access, transparency, intellectual property rights, China’s full market economy status, the lifting of the embargo on arms sales, high-tech

17 See

ibid, p. 4. p. 2. 19 Lingliang Zeng (1992). European Community and Modern International Law. Wuhan: Wuhan University Press. Lingliang Zeng (1994). European Union and Modern International Law. Taipei: Zhiyi Press (traditional Chinese revised edition); Lingliang Zeng (1988). European Community and Recognition in International Law. Law Review, (4), pp. 40–43. 18 Ibid,

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trade, democracy, human rights, rule of law, good governance, and dispute settlement will inevitably be hotly debated core issues in the negotiations.20 Professor Zeng’s pioneering research on EU law and the EU law system in his theories have an irreplaceable role in helping us understand and reflect the status and future of this “regional integration law with supranational factors.”

Professor Lingliang Zeng’s Original Research on WTO Law Professor Lingliang Zeng first crossed his path with the GATT/WTO law in1985 when he first went to study in the United States. By chance, he was taught by the two masters of the GATT/WTO law, Professor Hudec and Professor Jackson, and took a great academic interest in it. In July 1986, when Mr. Zeng returned from the USA, China formally applied for the due resumption of its GATT membership. There were rarely studies on GATT and international trade law in China’s international law community. Prof. Zeng not only took the lead in opening courses such as “International Economic Organization Law” and “GATT Law” (later renamed as “WTO Law”) at Wuhan University, but also published an article in Law Review, analyzing qualifications of GATT contracting parties and legal issues that China was faced with concerning the resumption of its GATT membership. This was the first paper in this field published by Chinese academics.21 Since then, GATT/WTO law has been one of Prof. Zeng’s main directions of research. In April 1994, at the end of the landmark Uruguay Round, Prof. Zeng obtained an English version of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (the Chinese/English version prepared by the Ministry of Foreign Trade and Economic cooperation of the PRC and Shanghai GATT Institute was published in September 1995). He spared no efforts to complete the translation and collation such an agreement over 450 pages containing more than 40 separate agreements or documents all by himself. Combining with his previous research and materials accumulated when he was studying in the USA, he took more than two years to write the World Trade Organization Law independently.22 This book is one of the earliest works in the field of WTO law in China, winning the second prize of the National College Humanities and Social Sciences Outstanding Scientific Research Achievement Award (Publications) in 1998 and laying the foundation of Prof. Zeng’s pioneering research in WTO law studies. Since then, Prof. Zeng has kept writing and published more than 40 papers on the theme of WTO Law and China’s accession to the WTO in domestic and foreign academic journals. 20 See Lingliang Zeng (2009). Negotiation of the EU-China Partnership and Cooperation Agreement (PCA): Issues, Suggestions and Prospects. Social Sciences in China, (2), pp. 121–135. Lingliang Zeng (2009). A Preliminary Perspective of Negotiations of EU-China PCA: A New Bottle Carrying Old Wine or New Wine or Both? European Law Journal, 15(l), pp. 121–141. 21 See Lingliang Zeng (1987). On the Qualifications of GATT Contracting Parties—On the Resumption of China’s Membership, Law Review, 1987(1), pp. 35–39. 22 See Lingliang Zeng (1996). World Trade Organization Law. Wuhan: Wuhan University Press.

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Professor Zeng’s pioneering research on WTO law is first manifested in the comprehensiveness of his method: His discussion was not limited to GATT/WTO law itself, but in the big picture of the general international legal order and global governance. He believed that in order to comprehensively and thoroughly study WTO law, in addition to legal methods, it is essential to combine research methods in disciplines such as international economics, international trade, international politics, and international relations. As for legal methods, it is also necessary to study international economic law, public international law and domestic law as a whole. Therefore, WTO law not only is the subject of international economic law studies, but also should fall within the scope of multidisciplinary crossover study.23 On the eve of China’s official accession to the WTO, WTO unprecedentedly became a hot topic in all sectors across the country. Professor Zeng thought through the practical legal issues following the accession to the WTO from a professional perspective and made an in-depth analysis on some of the major issues in the application of WTO agreements in China and the impact of the accession to the WTO on rule of law in China. He pointed out that China’s accession to the WTO would bring a legal revolution of “full adaptation to economic globalization” to China, and he accurately predicted future changes in China’s legislative work, legal service mechanism and self-protection mechanism, administrative law enforcement and judicial work, and the awareness of law in society as a whole. He also emphasized that the “law” referred to in “law-based governance, administration, trial, management, and operation” is not only China’s domestic law, but also international law including WTO law.24 These views, not as fleeting as many of the so-called WTO-related studies that blindly followed up at that time, had a long-term significance of guidance. Professor Zeng had provided many important opinions on relevant government decisions before and after China’s accession to the WTO. For example, in 1999, Prof. Zeng was engaged by the former Ministry of Foreign Trade and Economic Cooperation (now the Ministry of Commerce) as a legal adviser and provided written advisory opinions on the meaning and application of the “General Exceptions” set out in Article 20 of the GATT. Professor Zeng, with the assistance of Dr. Chen Weidong, using the GATT Analysis Index and other materials found in the Wuhan University Library, systematically sorted out the case law in respect of the general exception clauses, and proposed Chinese countermeasures on this basis, which eventually formed an advisory opinion of nearly 20,000 words and an appendix of more than 30,000 words. This report concluded that the exception provision of Article 20 of the GATT is stringent; moreover, the panel has always been strict in the application thereof when determining specific disputes, and the success rate of the parties to a dispute invoking these clauses is extremely low. Therefore, it was recommended that China should not expect to maintain national economic security through the use of 23 See Lingliang Zeng (2016). 30 Years of My Relationship with GATT/WTO. In Guohua Yang and Xiaoli Shi (ed.). WTO and I—From the Perspective of a Lawyer. Beijing: Intellectual Property Publishing House. In this article, Prof. Zeng also summarized his 30 years of experience and research in the field of WTO law and the academic views expressed and transmitted. 24 See Lingliang Zeng (2000). The Application of WTO Agreements in China and the Revolution of China’s Legal System. China Legal Science, (6), pp. 38–46.

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Article 20 of the GATT. This opinion had attracted the attention of representatives from more than 30 ministries and commissions of the Central Committee and the State Council and China’s delegation for negotiations of its accession to the WTO. This advisory opinion was then revised and published and had become the article with the highest citation rate in the studies of the general exception clauses in China.25 The pre-judgment made by Mr. Zeng before China’s accession to the WTO turned out to be true thereafter as China has repeatedly failed to invoke Article 20 of the GATT as defense in cases involving China. Professor Zeng also put forward many unique viewpoints in the field of WTO law, including the following aspects: overall, WTO law is a self-contained legal system in the international legal order; WTO rule of law is a unique model in the international rule of law; WTO system is a special governance system in the global governance system.26 WTO’s achievements in global governance and international regime are mainly manifested in its wide international recognition and participation, improving rule-oriented approach, and a large legal system that has taken shape and is to be perfected. The main challenges facing the WTO are its own positioning in global governance, the non-discrimination principle that is constantly being eroded, the preferential treatment principle that is like illusions for developing countries, inefficient decision-making, and lack of democratic governance, etc. As a fundamental way for WTO’s development: multilateralism is the best choice; rule-oriented approach is the foundation and guarantee; democratic governance is the direction; member-driven is the most direct and powerful force; and the concept of sovereignty that advances with the times is the essence and premise.27 Professor Zeng had been concerned about the parallel development of the multilateral trading system and regional trade agreements for a long time. He had consistently emphasized his support for multilateralism and pragmatically suggested that China should adopt both multilateral and regional strategies. Based on a “typical perspective” on the legal relations between the EC and the GATT/WTO, he proposed that, no matter how rough the path of global trade liberalization in the twenty-first century is, the multilateral trading system should be built as the “main road” to achieve global trade liberalization, while various regional integrations should be guided and supported as accompanying “branches.”28 In his subsequent research, he was deeply 25 See Lingliang Zeng and Weidong Chen (2001). On General Exception Clauses of WTO (Article 20 of the GATT) and China’s Countermeasures. Law Forum, (4), pp. 32–49. 26 See Lingliang Zeng (2005). The Commonality and Individuality of WTO Law in the International Legal Order. In Lingliang Zeng. International Law and China at the Dawn of the 21st Century. Wuhan: Wuhan University Press. p. 116; Lingliang Zeng (2010). WTO: A Systematic Model of International Rule of Law. Journal of International Economic Law, (4). 27 See Lingliang Zeng (2006). Controversial and Brilliant Multilateral Trading System: Accomplishments, Problems and Improvements—Commemorating the 10th Anniversary of the WTO. In Jin Huang (ed.). International Law Review of Wuhan University (Vol. 5) (pp. 94–95). Wuhan: Wuhan University Press. 28 See Lingliang Zeng and Weidong Chen (2000). The Impact of Regional Integration in the twentyfirst century on the Multilateral Trading System from the Perspective of the European Community. Journal of Wuhan University (Humanities and Social Sciences Edition), (3), pp. 337–343.

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concerned about the phenomenon that regional trade agreements directly threatened the process and prospects of negotiations on the multilateral trading system, and increasingly eroded the cornerstone, spirit, and purpose of the WTO. He also paid special attention to negative impacts of the TTIP and other large regional trade agreements as they further eroded the principle of Most-Favored-Nation treatment and made it more difficult for the already deadlocked Doha round to get out of the predicament. He suggested that China should catch up with the development trend of globalism and regionalism, that is, on the one hand, it should promote the multilateral trading system; on the other hand, it should accelerate and expand negotiations with other countries to establish free trade areas, so as to achieve “win-win” on both two basic development tracks.29 These expositions have significant reference value for China to effectively respond to challenges brought by multilateralism and regionalism and to make a difference in global economic governance. The authors are lucky to be students of Prof. Zeng, witnessing his contributions to the advocacy and development of international law with Chinese characteristics, as well as his devotion and hard work on the road of academic exploration. Although the authors have graduated for many years, and have made some academic achievements, we are still clearly aware of the gap in academic abilities between us and Prof. Zeng after reading his works. The authors appreciate and value Prof. Zeng’s legacy and are really grieving for losing him. Given 10 years or more, Prof. Zeng will certainly offer more long-lasting perspectives and insights. “Sacrifice before achieving triumph when setting off always makes heroes sorrowful with tears afterward since antiquity.” We believe that peers of international law who know Prof. Zeng also share the same grief. Professor Zeng’s academic thoughts and contributions to international law are much more than the above, which is just a part of his work summarized by the authors as his students. The commemoration is for inheritance, innovation, and development. After 30 years of development, China’s international law studies have been formed with Chinese characteristics and will undertake a greater mission and responsibilities in the process of China’s peaceful development and great revival. We should learn Prof. Zeng’s spirit of rigorous research, innovation, and courage to be the first mover. In China’s participation in the rules of international law and even in promoting the historical transformation of rules of international law, Chinese scholars should make their due contributions. This is exactly what Prof. Zeng would expect in his lifetime. May Prof. Zeng rest in peace! Beijing, China

Shouping Li Weidong Chen

29 See Lingliang Zeng (2004). The Latest Tendency of Regional Trade Agreements and its Negative Impact on the Doha Development Agenda. Cass Journal of Law, (5), pp. 117–128; Lingliang Zeng (2015). The Negative Impact of the Transatlantic Trade and Investment Partnership under the New Tendency of Regional Trade Agreements and China’s Reponses. Journal of Wuhan University (Humanities and Social Sciences Edition), 68(2), pp. 59–67.

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Shouping Li the Dean and a professor of School of Law, Beijing Institute of Technology. Weidong Chen a professor of School of Law, University of International Business and Economics. The authors both are Doctors in International Public Law (1998 and 1999) at Wuhan University Institute of International Law under the guidance of Prof. Lingliang Zeng. Special thanks go to the Deputy Director Prof. Zhixiong Huang at Wuhan University Institute of International Law, and Prof. Xiangqian Gong at School of Law of Beijing Institute of Technology for their help with the writing of this article.

Foreword II: Prof. Lingliang Zeng and EU Law Teaching & Studies in China

Paper submitted by Dr. Zhang Jiao to the 10th Annual Conference of EU Legal Studies Association of Chinese Association for European Studies, November 2016 I once thought of writing an article to spread Prof. Lingliang Zeng’s passion and persistence in the teaching and studies of EU law when working with him on the revision of EU law textbooks. But, I had never expected that Prof. Zeng had left us when I am doing so. The 10th anniversary of the EU Legal Studies Association of Chinese Association for European Studies, which Prof. Zeng looked forward to, is underway at this moment, but we can only recall his warm smile in our mind. In this article, I would like to commemorate Prof. Zeng for his achievements in and contributions to promoting the establishment and development of EU legal studies in China.

Always Respected Professors, and Built on the Past Achievements of His Predecessors Started Studying EU Law Abroad by Chance, and Remained True to His Original Aspiration in the Changing Times Professor Zeng was a student of Prof. Xi Liang, a pioneer of international organization law studies in China. When studying international law at the School of Law of Wuhan University, Prof. Zeng officially started his journey of EU legal study as he was recommended by Prof. Xi Liang and Prof. Maorong Zhou, the first Dean of the Business School of Wuhan University, to go to the prestigious European University Institute in Italy for further study. Until today, each issue of EUI Working Paper Series regularly sent by European University Institute was found orderly lying on the first floor of Prof. Zeng’s bookcase. xxxiii

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On the basis of his solid theoretical training of international organization law and what he learned in Europe, in 1992, Prof. Zeng completed a monograph entitled European Community and Modern International Law, one of the earliest works of EU legal studies in China. At that time when the research on the EC/EU was still in the “wilderness,” or in the ascendant, Prof. Zeng had completed and published a series of papers, including European Community and Recognition of International Law,30 and Analysis of the Judicial Review System of the European Community31 in the 1980s, and then On the Common Commercial Policy of the European Community,32 European Community and External Missions,33 European Community’s External Relations and the Integration of Western Europe,34 Dual Status of the European Community and its Member States in WTO and its Influence on China,35 and On the Principle of Subsidiarity in EU Law36 in the 1990s. Whether in terms of topic or exposition, these works are still important subjects in EU legal studies in China even today.

Followed the Steps of His Predecessors, and Deeply Connected with Luojia Hills In 1997, with the support of the EU-China Higher Education Cooperation Program (EU-China HECP), the Center for European Studies of Wuhan University was established. Professor Zeng took the heavy responsibility as the first director to lead the scientific development of this Center. He undertook research projects of EU studies, promoted the exchange of Chinese and European scholars, and cultivated masters and doctors in the field of EU studies. Since then, based on the discipline of international organizational law pioneered by Prof. Xi Liang, Prof. Zeng gradually established and developed EU law research as a discipline in light of his own learning and the needs of the times. In 2001, given his outstanding contributions to the teaching and studies of EU law in China and the international influence of his research results, Prof. Zeng was 30 Lingliang Zeng (1988). European Community and Recognition of International Law. Law Review, (4), pp. 40–56. 31 Lingliang Zeng (1988). Analysis of the Judicial Review System of the European Community. Wuhan University Journal (Philosophy & Social Sciences), (2), pp. 63–67. 32 Lingliang Zeng (1991). On the Common Commercial Policy of the European Community,Law Review, (2), pp. 18–22. 33 Lingliang Zeng (1992). European Community and External Missions.Law Review, (4), pp. 48– 52. 34 Lingliang Zeng (1992). European Community’s External Relations and the Integration of Western Europe. Wuhan University Journal (Philosophy & Social Sciences), (5), pp. 64–68. 35 Lingliang Zeng (1999). Dual Status of the European Community and Its Member States in WTO and Its Influence on China. Law Review, (2), pp. 38–45. 36 Lingliang Zeng (1999). On the Principle of Subsidiarity in EU Law. Wuhan University Journal (Philosophy & Social Sciences), (2), pp. 40–44.

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awarded the first Jean Monnet Chair Professor from China by the European Commission, which may be called the highest honor awarded to scholars of EU law studies in the world. In 2005, Prof. Zeng won the European Commission Jean Monet Project funding to further develop and strengthen the discipline of EU studies at Wuhan University. During the five-year project implementation period, the annual report sent by Prof. Zeng to the European Commission was highly recognized thereby. The operation of this project has greatly diversified and improved the quality of EU law courses and facilitated the cultivation of a group of top talents in the field of EU law. Three doctoral students were engaged in the research of EU law under this project for their doctoral thesis, and one of them was assigned to the European University Institute to conduct this research and complete her doctoral thesis. In 2006, Prof. Zeng was elected as the first President of the EU Legal Studies Association of the Chinese Association for European Studies at the annual meeting held by the Institute of European Studies of Chinese Academy of Social Sciences. Today, at its tenth anniversary, the Association has nearly 200 members, including Prof. Zeng’s students, as well as scholars who have been trained in EU law courses at Wuhan University and then engaged in EU law studies. Driven by the openness principle advocated by Prof. Zeng, the Society has attracted a group of scholars who returned from studying in Europe. Professor Zeng started preparing for the 10th anniversary celebration one or two years ago. He said, “I have witnessed the growth of the Association for ten years. After the smooth handover at this annual meeting, I can say that my mission is basically completed.” I sincerely wish Prof. Zeng could be able to be here today to make a speech and exchange his thoughts with scholars presented… From 2007 to 2009, Prof. Zeng took the office as the Dean of Faculty of Law of the University of Macao through global competition. With European professors among its faculties, as well as Jean Monnet Chairs and the EU Documentation Center, the University of Macao has natural advantages in the development of EU law discipline. The joining of Prof. Zeng is like an icing on the cake. As the Dean, while making efforts to balance the development of various disciplines of law, Prof. Zeng also supported the further development of the EU law discipline led by Prof. Paulo Canelas de Castro, the coordinator of EU law program. Renowned professors in the world were invited as guest professors, and Jean-Monnet Lectures were held every two weeks (sometimes even every week if many European scholars were visiting). There were also high-level international academic seminars, recommendations of students to study in Europe, and close cooperation with the Institute of European Studies of Macao. Professor Zeng himself also taught students and offered guidance for several master and doctoral thesis both in Chinese and English in the field of EU law. The three years in which Prof. Zeng served have been the golden time of the development of the EU law discipline at the Faculty of Law of the University of Macao. The achievements made by Prof. Zeng on the development of the Faculty of Law of the University of Macao were highly appreciated by professors and students there as well as the University. Though the University would like to have Prof. Zeng serve for another term, he missed Wuhan University who educated and trained him, his family

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in Wuhan, and Prof. Xi Liang who was still waiting for his return at Luojia Hills. Neither the University of Macao with attractive pay, nor the prestigious Tsinghua University or Shanghai Jiaotong University, succeeded in persuading him to join. These universities were surely appealing, but for Prof. Zeng, what is more important is “family,” “root,” and inheritance.

Built on the Past Achievements of His Predecessors, Laid Solid Foundation for the EU Law Discipline, and Promoted the Discipline Development In the mid-1980s, Prof. Zeng took the lead in opening EC/EU law courses. He published a total of 3 monographs in this emerging field of law, as well as more than 20 papers in authoritative or key journals including Social Sciences in China, Chinese Journal of European Studies, European Law Journal, and TEMAS DE INTEGRACAO. As an emerging discipline, there was no existing textbook of the EU law. However, direct use of European textbooks may not be necessarily suitable for teaching in China. Professor Zeng thus started reading a large amount of foreign research literature on EU law, and gradually developed teaching plans, syllabus, and selected cases suitable for Chinese students to study EU law. He had kept updating these materials year by year for two or three decades. Professor Zeng arranged different teaching plans for different teaching objects in various forms such as seminars, case analysis, research report, and case translation. The courses mainly covered: the definition of the EU (law) and the EC (law) and the significance and methods of EU law studies and research, the process, characteristics and problems of the EU integration, the purposes and principles of the EU, the EU legal system, sources of EU law, the relationship between EU law and the laws of its Member States, the governance structure of the EU and its reform, the formulation of EU law, the implementation and understanding of EU law, the judicial review of the actions of EU institutions by the European Court of Justice, the preliminary ruling of the European Court of Justice, and the EU’s right on external relations and its influence on international law. The contents of these courses with clear logic basically cover all areas of EU law. It was thanks to Prof. Zeng’s dedicated research and design of EU law courses that students of our generation are able to learn and understand the mystery of the special legal system of EU law. The syllabus designed by Prof. Zeng was attached with selected Chinese and English references and materials, including documents, books, essays, and textbooks, papers, journals, and websites, which were updated and supplemented on a yearly basis. In addition, Prof. Zeng also collected and developed corresponding cases of different topics as teaching aid, which then formed theSelected Cases of European Union Law. It was because of Prof. Zeng’s devotion, persistence, and continuous research and update that there had been systematic and complete teaching materials

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(including knowledge points, cases, references) at the early stage of the construction of the emerging EU law discipline. In 2007, with the financial support of the EU-China Center for European Studies, Prof. Zeng completed the Research on the Constitution, Administration and Judicial System of the European Union, and published a monograph entitled An Overview of EU Law—From the New Perspective of the European Union Constitutional Treaty. This monograph, written by Prof. Zeng based on his accumulation of more than 20 years of teaching and research, is a systematic general review of a series of basic laws of the EU from the perspective of the Constitutional Treaty, the latest supreme legal document of the EU at that time. Since its publication, this work has been selected as a textbook or postgraduate-targeted book by some universities offering EU law courses. With theoretical innovation, new ideas in this book, such as the EU being a regional integration organization with many supranational factors, EU law being a regional integration law, and the duality of the constitution and treaty of the EU’s basic documents, have been widely quoted by the jurisprudence circle in the EU. This monograph has also been recognized as “a masterpiece promoting and developing EU law studies in China.”37 In 2002, Prof. Zeng published a paper entitled EU Law Studies in China: Past, Present, and Future.38 He also gave a speech on the history of Chinese EU law studies from a neglected branch of science in the 1980s to the emerging development that had been seen since the 1980s. In his speech, Prof. Zeng analyzed the development trend of EU law studies in China, pointed out the deficiencies, and proposed suggestions strengthening Chinese EU law studies from several perspectives such as the Chinese government, the EU, research institutions, and researchers. With full of hope for EU law studies in China, he added at the end of this paper, “looking forward, with the continuous strong support of the Chinese government and the EU, EU law studies will have broader prospects of development in China, and it will surely become a sustainable emerging discipline of law.” On 18 June 2016, after the seminar on Global Economic Governance System Reform and China’s Voice, held by the high-end think tank of Wuhan University, I had a walk with Prof. Zeng at his beloved Luojia Hills. He still had a lot of reflections on the development of the discipline and the Association, the revision of EU law textbooks, the quality of proceedings of this annual conference, the popularization of EU law education in China, EU law studies in consistent with the needs of China’s diplomacy, etc. It had been only one week before he was admitted to the hospital.

37 Hua

Zhang (2007). A Masterpiece Promoting and Developing Chinese EU Law Studies— Commentary on Prof. Lingliang Zeng’s New Monograph Entitled an Overview of EU Law. Law review, (5), pp. 157–160. 38 Lingliang Zeng and Yanxia Yao (2002). EU Law Studies in China: Past, Present, and Future. Law review, (4), pp. 76–82.

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Profound Insights and Originality Filled in Gaps in Domestic Studies, and Proposed New Ideas and Insights In his early writings in the field of EU law, Prof. Zeng mainly focused on the special system of EU law and the challenges it brought to international law, including analysis of the legal system of the European Union under the framework of international law, especially the international organization law, from the perspective of the European Community’s common commercial policy and the principle of subsidiarity. With the development of EU-China relations, Prof. Zeng’s research turned to the perspective of legal issues in EU-China relations, such as practical issues existing when China signed agreements with the EU to develop bilateral relations. In case of new changes in EU law related to external relations, Prof. Zeng always pondered on the possible impacts on EU-China relations, for instance, the reform of the EU’s Generalized System of Preferences (GSP) and its impacts on China in the context of the European sovereign debt crisis, the pluralistic EU governance structure and its impacts on China ‘s peaceful development, and the negative effects of the Transatlantic Trade and Investment Partnership under the new trend of regional trade agreements and China’s responses. Prof. Zeng was dedicated to academic research for decades, and he proposed more than ten original perspectives and insights in his writings just in the area of EU law, which laid the foundation for EU law studies in China and provided guidance and inspiration for later generations. The following are some important views selected from Prof. Zeng’s extensive academic contributions: (1)

(2)

(3)

(4)

(5)

The EU is not supranational, but an intergovernmental organization with many supranational factors. (An Overview of European Union Law—From the New Perspective of the European Constitutional Treaty, Wuhan University Press, 2007) EU law is not a supranational law, but an emerging regional integration law. (An Overview of European Union Law—From the New Perspective of the European Constitutional Treaty, Wuhan University Press, 2007) The basic treaties of the European Union have the duality of constitution and treaty. (An Overview of European Union Law—From the New Perspective of the European Constitutional Treaty, Wuhan University Press, 2007) Democracy, rule of law, and human rights are not only the core values and principles of the EU itself, but also the basic principles and goals of its external relations. (The Rule of Law Imposed by the European Union and its Relevance to China, Proceedings of 2009 Annual Meeting of the Society for European Law Studies of the Chinese Association for European Studies). Soft law is an important source of law in the European Union. (An Overview of European Union Law—From the New Perspective of the European Constitutional Treaty, Wuhan University Press, 2007)

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(6)

Judgments made by the European Court of Justice, though without the nature of precedent, actually have the effects of precedent. (An Overview of European Union Law—rom the New Perspective of the European Constitutional Treaty, Wuhan University Press, 2007) (7) Mixed agreement is an important form of agreements concluded by the European Union with the external, which has a series of special effects on the law of treaties, the law of international responsibility, and the law of dispute settlement, as well as third countries. (An Overview of European Union Law—From the New Perspective of the European Constitutional Treaty, Wuhan University Press, 2007) (8) The dual status of the EU and its Member States in international organizations have brought changes and challenges to international organizational laws and third countries. (Dual Status of the European Community and its Member States in WTO and its Influence on China, Law Review, 1999(2)) (9) The mixed missions and dual representation of the EU and its Member States have brought impacts on contemporary diplomatic law. (European Community and External Missions, Law Review, 1992(4)) (10) The non-market economic issues in EU-China relations are by no means “purely technical” as declared by the EU, but rather have legal effects with strong political overtones and timing. (Non-Market Economic Issues in EUChina Relations—Purely Technical or Far Beyond? Proceedings of 2008 Annual Meeting of the Society for European Law Studies of the Chinese Association for European Studies).

Theoretical Researches Closely Connected with China’s Diplomatic Practice One of the distinguishing features of Prof. Zeng’s research results is the close connection with China’s diplomatic practice. There were studies about problems that need to be solved urgently in China’s diplomatic practice, and even theoretical research in advance therefor. Just as Prof. Zeng taught us, we should keep following up with the websites of the Ministry of Foreign Affairs and the Ministry of Commerce and select frontier topics with both theoretical and practical value. As early as 2007, in an in-depth analysis of the impacts of the pluralistic EU governance structure on China’s peaceful development on the basis of his years of research on the EU governance structure, Prof. Zeng put forward, “China should attach great importance to the trend of pluralistic EU governance structure and take positive responses, especially to support the development of various primary-level organizations to play their irreplaceable potential role in relations with Europe.”39 39 Professor

Zeng was invited to the Seminar on the European Constitutional Treaty and EU Supernational Governance and the First Annual Meeting of the Society for European Law Studies of the

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At the annual conference of the EU Legal Studies Association of the Chinese Association for European Studies in 2008, Prof. Zeng delivered a report entitled “Non-Market Economic Issues in EU-China Relations—Purely Technical or Far Beyond?”40 and he pointed out: “the concept of a non-market economy originating from the Cold War still cannot get rid of the political attributes of its ideology in the current EU legislation”; “the different positions taken by WTO members have shown that this issue is far beyond a purely technical matter in international economic and trade relations.” At 2009 annual conference, Prof. Zeng delivered a keynote speech on The Rule of Law Imposed by the European Union and its Relevance to China.41 Over the years, the reports made by Prof. Zeng at each annual conference had aroused extensive discussions in the academic circles, and even led to studies of his research. Prof. Zeng closely followed the development of EU-China relations, conducted in-depth theoretical analysis of relevant practical issues, and put forward corresponding policy proposals. At the 16th EU-China Summit held on 21 November 2013 both sides announced the launch of negotiations of the EU-China Investment Agreement. At the annual conference of EU Legal Studies Association of the Chinese Association for European Studies in 2014, Prof. Zeng delivered a special report on the Significance of the EU-China Investment Agreement from the Perspective of the Construction of a Comprehensive Strategic Partnership between China and Europe,42 which explored and recognized the significance of the EU-China Investment Agreement from the perspective of building a comprehensive strategic partnership between China and Europe, and the strategic perspective of strengthening China’s voice in international rules. Prof. Zeng believed that “from the perspective of the international rule of law, the EU-China Investment Agreement and the EU-China Trade and Economic Cooperation Agreement, or the future EU-China Free Trade Area Agreement and EU-China Partnership and Cooperation Agreement, which are complementary to each other while operating independently, will constitute the three legal pillars of the EU-China comprehensive strategic partnership.” After the USA and the EU began negotiating the Transatlantic Trade and Investment Partnership (TTIP), Prof. Zeng made a comprehensive analysis of the possible Chinese Association for European Studies, held at Harbin Institute of Technology from 13 to 15 April 2007, and presented a paper entitled “The Pluralistic EU Governance Structure and its Impact on China’s Peaceful Development.” 40 Lingliang Zeng and Ying Zhang (2008). Non-Market Economic Issues in EU-China Relations— —Purely Technical or Far Beyond? Proceedings of 2008 Annual Meeting of the Society for European Law Studies of the Chinese Association for European Studies. 41 Lingliang Zeng (2010). The Rule of Law Imposed by the European Union and its Relevance to China. In Li Shouping (ed.). EU Law and EU-China Relations at the time of Lisbon Treaty (1st edition) (pp. 3–13). Beijing: Beijing Institute of Technology Press. 42 Lingliang Zeng (2008). The Significance of the EU-China Investment Agreement from the Perspective of the Construction of a Comprehensive Strategic Partnership between China and Europe. Proceedings of 2008 Annual Meeting of the Society for European Law Studies of the Chinese Association for European Studies, pp. 2–10.

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negative impacts of the TTIP based on the exposition of recent trends in regional trade agreements. He pointed out that “the TTIP will result in trade diversion rather than trade growth; it will further erode the most-favoured-nation treatment principle of the multilateral trading system, complicate preferential rules of origin, challenge the definition of regional trade agreements under the multilateral trading system, and make it harder for the deadlocked Doha Round to get out of predicament.”43 He further proposed that “under the encirclement of transatlantic and transpacific free trade areas and various bilateral free trade areas led by Europe and the USA, China should actively push the Doha Round to move forward, and accelerate and expand negotiations with other countries to establish free trade areas at the same time.”44

Updated Research Materials from Time to Time, and Closely Kept Up with the Trends of International Research Professor Zeng’s research on EU law itself was based on his sound and solid knowledge of international organization law and WTO law. At the beginning of his research, he went to study under Prof. Francis Snyder in the European University Institute. Even after returning to China, Prof. Zeng always kept track of the trends of EU law studies in the world. He collected the latest works of EU law studies, regularly read authoritative journals such as European Law Journal, and kept in touch with Prof. Francis Snyder and Prof. Joseph H. H. Weiler. During his time at the University of Macao, he had a good opportunity to connect with the world in the field of EU law studies. Prof. Zeng almost directly participated in all activities related to curriculum construction and research of EU law program. He also built profound friendship with the coordinator of this program, Prof. Paulo Canelas de Castro. In addition, many of the results that Prof. Zeng made in his research in the field of EU-China relations were pioneering and had great influence in the world. In May 2008, Prof. Zeng was invited to the Jean-Monnet International Conference on the theme “the European Community at 50: Past and Future.” This conference gathered more than 50 judges and advocates-general of the European Court of Justice, senior diplomats and well-known experts on EU issues from Europe, America, and Asia. The English paper and speech presented by Prof. Zeng at this conference (especially the views that non-market economic issues in EU-China relations are by no means purely technical issues as declared by the EU)45 attracted high attention

43 Lingliang Zeng (2015). The Negative Impacts of the TTIP under the Trend of Regional Trade Agreements and China’s Responses. Wuhan University Journal (Philosophy & Social Sciences), 68(2), pp. 59–67. 44 Ibid. 45 In fact, in the past two years, the academic community still has discussions on this issue. By contrast, Prof. Zeng had paid attention to this issue many years ago and had published his research results at home and abroad.

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and positive comments from the participants. Later, he was also invited by Journal of European Studies, to be an anonymous reviewer for a paper. In light of his outstanding achievements in the area of EU-China relations studies, Prof. Zeng was invited by Prof. Francis Snyder to write a book review for his new work, The European Union and China 1949–2008: Basic Documents and Commentary.46 The Chinese version of this book review was published in Chinese Journal of European Studies (2009(4)), a core journal in the field of European studies in China,47 and the English version was published in Frontiers of Law in China.48 Professor Zeng was also invited to publish the English version of his article on the EU-China Partnership and Cooperation Agreement in the European Law Journal.49 His latest research results, expositions of the regional community of common destiny advocated by the Belt and Road Initiative, were published by me on behalf of him at the European Union Studies Association (EUSA) Asia-Pacific Annual Conference 2016, attracting extensive attention from the participating experts.50

Rigorous, Modest, and Innocent Considered Studying as the Love for His Whole Life On the morning of June 19, 2016, the last time I received his guidance in his office, Prof. Zeng said, “the study of social sciences is a long process of accumulation. When you have an abundant accumulation, you surely will have more forward-looking and comprehensive views from higher standpoints.” He hoped that in the next 5–10 years, he can devote himself to researching and have more valuable results. Whenever the students tried to persuade him to have more rest and enjoy life, Prof. Zeng always said that reading books and writing papers every day was the enjoyment for him. 46 Snyder

F. (ed.) (2009). The European Union and China, 1949–2008: Basic Documents and Commentary. Oregon: Hart Publishing. 47 Lingliang Zeng (2009). A Masterpiece in the Field of EU-China Relations—The European Union and China 1949-2008: Basic Documents and Commentary Edited by Francis Snyder. Chinese Journal of European Studies, (4), pp. 137–141. 48 Lingliang Zeng (2011). A Masterpiece in the Field of EU-China Relations and Beyond—A Preliminary Appreciation of the European Union and China 1949-2008: Basic Documents and Commentary Edited by Francis Snyder. Frontiers of Law in China, 6(1), pp. 161–164. 49 Lingliang Zeng (2009). Preliminary Perspective of Negotiations of EU-China PCA: A New Bottle Carrying Old Wine or New Wine or Both. European Law Journal, 15(1), pp. 121–141. 50 The Conference was held on June 29, 2016, and Prof. Zeng was in a coma at the time. Lingliang Zeng and Jiao Zhang (2016). A Comparative Study on the European Neighborhood Policy and China’s Belt and Road Initiative: Regional Cooperation and A Community of Common Destiny. Delivered on the EUSA Asia-Pacific Annual Conference 2016, Hong Kong, 29 June 2016. Also, see Lingliang Zeng (2016). Conceptual Analysis of China’s Belt and Road Initiative: A Road towards a Regional Community of Common Destiny.Chinese Journal of International law, 15(3), pp. 517– 541.

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He was really a scholar who can feel joy and happiness from academic research. With true love of teaching and studying, he regarded it as a lifelong career. When he heard that I chose to work at a university, Prof. Zeng said, “after working for so many years, I thought I was very satisfied with my career choice. As a professor, I may not become rich because of this job, but I can feel at ease inward. I am respected by students and colleagues and live in stride. I can use what I have learned to make some contributions.”

Respected Students’ Intellectual Work, and Kept Learning While Teaching I once had a research topic that was similar to Prof. Zeng’s. He gave me guidance on some materials and the overall background, and said, “I have written a paper on this issue, which is going to be published soon. I suggest that you should not read this paper first, so that you will not be affected by my views. You should write according to your own perspectives and ideas. And then in the revision stage, if you think that my points are worth learning, you may add appropriate supplements then.” His words have left a deep impression on me. It is because of his teaching that I kept and persisted in my independent thinking. In 2015, I chose the topic, comparative study of the European Neighborhood Policy and the Belt and Road Initiative, for my postdoctoral research. I asked Prof. Zeng to review my thesis proposal to see if he could write a recommendation letter for me.51 Surprisingly, the next morning, I received a full-page reply with detailed opinions of recommendation with “strongly recommended” at the end. I was inspired that he asked me whether I would like to develop it to a policy recommendation based on his opinions. He said that he would like to integrate some of his views and suggested that he would finalize the policy recommendation and we submit it to the relevant authority jointly. At the end of his message, he wrote, “please consider and determine if it’s feasible.” Over the years, when people expressed admiration for Prof. Zeng’s mien as a professor, he always waved his hand and said that he still had a long way to go compared with Prof. Liang Xi. Whenever he was complimented because of his new work, he always sincerely pointed out that there may still be deficiencies in his research. When something nice was said about his paper, he always asked, “is this okay? I wonder if it can meet the requirements of journal editors and reviewers.” It was Prof. Zeng, always modest and humble.

51 Since

I was used to relying on Prof. Zeng, even after I graduated with a Ph.D., I often solicited the opinion of Prof. Zeng when writing a thesis or topic. And he always read my work carefully, and made a lot of comments. He also exchanged his ideas with me when we got the chance to meet. Even short conversations were always enlightening for me.

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If Prof. Zeng was asked how to maintain a balance between teaching and researching under the current pressure of scientific research in colleges and universities, he would definitely answer: I always think that these two can facilitate each other. When preparing for and teaching classes, or in the process of answering questions from students, you often come up with new ideas, based on which good papers may be written; while doing research, you can constantly supplement and update teaching materials and content, so as to gradually systematize your lectures and form a complete system.

Broad-Minded, and Indefatigable in Teaching Professor Zeng was indefatigable in teaching, and his guidance covered not only academic research, but also how to discipline oneself in the society. In this respect, Prof. Zeng set himself an example to influence his students. He often said that emotional intelligence is as important as intelligence and that scholars need to be open-minded. Most of scholars who were engaged in EU law studies in China in the early days were Prof. Zeng’s students, and Prof. Zeng always reminded them that there is no faction in studies; scholars should draw collective wisdom from peers and should not limit themselves to small groups. The commemorative articles published in the past few months have detailed descriptions of Prof. Zeng’s outstanding characters, and I will not repeat descriptions. In short, needless to say, we all students of Prof. Zeng respected his teachings to us, and we are following and will follow the example of him.

Conclusion The contributions Prof. Zeng had made to the teaching and studies of EU law in China is beyond the reach of our generation. His accomplishments include innovating theories and practice of modern international law, developing studies of the WTO law and regional trade law, promoting the construction of international law courses, and calling for the establishment of China’s discourse system of international law. Prof. Zeng’s untimely death is a great loss for the academic community. It is also unfortunate for our young scholars as we can no longer listen to Prof. Zeng’s reflections on what he learned and get inspiration and encouragement from him. Today, we may only follow Prof. Zeng’s legacy, and keep his words in our minds while living, working, studying, and teaching. May him rest in peace.

Acknowledgements

This monograph is based upon the quintessence of posthumous works of Prof. Lingliang Zeng. It was initiated by Prof. Zeng upon receiving the invitation from Prof. Chen An, editor of monographic series of “Modern China & International Economic Law”, to contribute the first monograph in the series. Unfortunately, it is regrettable and deplorable that Prof. Zeng suffered relapse of a chronic brain disease and passed away in July 2016. At that time, it was found that Prof. Zeng had decided the structure of the monograph and selected several articles for it. The left works were to translate some articles written by Prof. Zeng from Chinese into English. Considering the significance of this work to present a Chinese scholar’s observation, thinking, and study of international law to the world, we determined to edit and publish the last comprehensive fruit of self-selected collection of Prof. Zeng’s works. Under this circumstance, the difficulties to complete the work are obvious. Without the devotion of time and energy of the translators, proofreaders, and editors, it would not have been possible for us to finish the work. We are indebted to many people who have offered help in different ways. We own special gratitude to Prof. An Chen for his continuous stimulating, encouraging and awakening our persistence in completing the work. He provided strong support to our sincere wish and willingness to complete the last work of our respected supervisor. He helped to coordinate with the editors of Springer which facilitated the final publication of this book. As an over 90-year-old professor, he always concerned the progress of this monograph and gave prompt guidance. His attitudes towards life and study set us a model of active, optimistic, and academic rigor. We are also deeply grateful to Ms. Xiaohong Zhong and Mr. Yan Zeng, the wife and the son of Prof. Zeng for allowing and supporting us to complete this meaningful work. Their encouragement and inspiration throughout the preparation of the monograph were invaluable to us. We would also like to thank the support provided by the Wuhan University Institute of International Law, where Prof. Zeng worked for during his lifetime, especially thanks to Ms. Zhaohui Deng, the vice director of the Institute. Apart from the efforts made by the translators, who were all once supervised by Prof. Zeng, including Associate Prof. Yanxia Yao, Associate Prof. Yayun Chen, xlv

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Associate Prof. Hua Lan, Associate Prof. Yanni Wu, Prof. Weidong Chen, Dr. Zhihua Xue and Dr. Fan Yang, the great efforts made by a group of proofreaders and editors are essentially important for completing the monograph. We would like to highlight and graciously thank Prof. Qiaofang Wu of School of Foreign Studies at the East China University of Political Science and Law, and her research group members: Ms. Xingxing Ye, Mr. Tianchun Mo, Ms. Yuxin Che, Ms. Jin Shi, Mr. Songnian Chen, Ms. Tiantian Jiang, for their efficient and competent translation and proofreading. Special thanks also go to Ms. Qian Zhang, a postgraduate student of International Law School at the East China University of Political Science and Law for her efficient and competent editing. We also wish to express our special gratitude to editors of Springer: Ms. Sivananth S. Siva Chandran, Mr. Umamagesh A. Perumal, Mr. Channing Chai and Ms. Lydia Wang, for their continuous support and assistance in producing this book. Students supervised by Prof. Zeng all greatly concerned about the preparation of the monograph and provided support from different ways. Special thanks go to Prof. Shouping Li, Prof. Zhixiong Huang, and Prof. Xueping Li for their participation, support and encouragement throughout the preparation of the book. We are extremely grateful to them all. May our highly-respected supervisor, Prof. Lingliang Zeng, rest in peace! October, 2020

Dr. Jiao Zhang Shanghai, China

Contents

Part I 1

2

Harmonious World, International Law and China’s Peaceful Development

State Sovereignty in the Post-Cold War Era . . . . . . . . . . . . . . . . . . . . . . 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Self-determination of Peoples and State Sovereignty . . . . . . . . . . 1.2.1 Who Has the Right to Assert “Self-determination”? . . . . 1.2.2 Is the Right of Self-determination Contradictory with State Sovereignty? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 International Organizations and State Sovereignty . . . . . . . . . . . . . 1.3.1 The “Hard Collision” of International Organization with State Sovereignty . . . . . . . . . . . . . . . . . 1.3.2 The “Soft Erosion” of International Organizations over State Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 New Development of International Law and the State Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 The Shrinking of Territorial Supremacy . . . . . . . . . . . . . . 1.4.2 The Shrinking of Personal Supremacy . . . . . . . . . . . . . . . 1.5 Conclusion: Dialectics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Humanizing Tendency of Contemporary International Law . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Individuals-Oriented Development of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 International Humanitarian Law: The Earliest Manifestation of Humanization . . . . . . . . . . . . . . . . . . . . . 2.2.2 International Law of Human Rights: The Most Systematic Representation of Humanization . . . . . . . . . . 2.2.3 Extradition: New Humanizing Measurements . . . . . . . . . 2.2.4 Protection of Intellectual Property Rights and Public Health: A Recent New Humanizing Tendency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 3 4 5 8 11 12 14 15 16 17 19 21 23 23 24 24 26 30

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2.2.5

The Linkage Between Core Labor Standards and Trade Liberalization: A New Humanizing Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Humankind-Oriented Development of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Expansion of State Universal Jurisdiction and Affirmation and Punishment of the Most Severe International Crimes . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 The Human Common Interests of the Areas Beyond the Sovereign Jurisdictions of States . . . . . . . . . . 2.3.3 The Common Interests of the Humankind Embodied in International Environmental Law . . . . . . . . 2.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4

34 36

37 39 42 43 46

Harmonious World and Development of International Law . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 International Political Order with Peaceful Coexistence: The First Insurance Pursued in a Harmonious World . . . . . . . . . . . 3.3 Sustainable Economic and Social Development: The Hard Tasks Endowed with International Law in a Harmonious World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Global Democracy, Rule of Law, and Good Governance: The Higher Values Sought by International Law in Harmonious World . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Diversity of World Civilization: The Sustained Expectation of International Law in a Harmonious World . . . . . . . . . . . . . . . . . 3.6 Coordination of International Norms and Mechanisms: The Necessity of International Law in a Harmonious World . . . . 3.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49 49

Status and Application of Good Faith in International Law . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Status of Good Faith in International Legal System . . . . . . . . . . . . 4.2.1 Good Faith is a General Legal Principle . . . . . . . . . . . . . . 4.2.2 Good Faith is a Rule of Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 Good Faith is the Basic Principle of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Application of Good Faith in Negotiation, Interpretation and Implementation of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 The Application of Good Faith in Treaty Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 The Application of Good Faith in Treaty Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65 65 67 67

50

52

54 57 60 63 63

68 70 74 74 76

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4.3.3

The Application of Good Faith in Treaty Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

77 78 79

5

Characteristics of International Governance, Global Governance and International Law in Times . . . . . . . . . . . . . . . . . . . . . 81 5.1 Conceptual Evolution of International Governance and Global Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 5.2 International Governance and International Law in the Era of State Monopoly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 5.3 International Governance and International Law in the Era of International Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 5.4 Global Governance and International Law in the Post-Cold War Era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 5.4.1 International Regime Highlights the Value Orientation of the Interests of the Global Human Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 5.4.2 The Diversity of Actors of Global Governance and the Silent Transformation of Roles of Different Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 5.4.3 An Emerging Legal Pluralism in International Regulatory Instruments and the Strengthening of Self-discipline Rules and Soft Norms . . . . . . . . . . . . . . 97 5.4.4 Compliance Mechanism of International Regulations Becomes More Flexible . . . . . . . . . . . . . . . . . 98 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

6

Role of the United Nations in Promoting the International Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Evolution of the Rule of Law in the United Nations . . . . . . . . . . . 6.2 Activities and Achievements of the United Nations in Promoting the International Rule of Law . . . . . . . . . . . . . . . . . . 6.3 General Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II 7

109 109 111 121 121

Frontier Issues of Contemporary International Law

Denouncing the Barbarians of NATO’s Bombing of Chinese Embassy in Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 7.1 Personal Inviolability of Diplomatic Representative: A Customary International Law with Long History . . . . . . . . . . . . 125 7.1.1 Inviolability of Premises of Embassy Mission: An Old International Customary Rule . . . . . . . . . . . . . . . . 126

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Contents

7.2

8

9

Respect for State Sovereignty: The First and Foremost Principle in Customary International Law . . . . . . . . . . . . . . . . . . . . 7.3 Prohibition of Armed Forces or Threat of Armed Forces: A Jus Cogens Established in Contemporary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Principle of Differentiation or Prohibition of Indiscriminate Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

130 132

Historical Breakthrough of International Law: Comments of the Statute of the International Criminal Court . . . . . . . . . . . . . . . . 8.1 Background on Establishment of ICC . . . . . . . . . . . . . . . . . . . . . . . 8.2 Focus on Debates at Rome Diplomatic Conference . . . . . . . . . . . . 8.3 Main Contents of the Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Significance of the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

133 134 135 137 149 153

Legality Issues of the Third Iraq War and the Dilemma of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Legality of the Third Iraq War: A Sustained Debate Topic in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.1 Opinion for Lawful Use of Armed Force in Iraq . . . . . . . 9.2.2 Opinion for Unlawful Use of Armed Force in Iraq . . . . . 9.2.3 Partial Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.4 “Illegal, Yet Not Illegitimate” . . . . . . . . . . . . . . . . . . . . . . . 9.2.5 “Flexibility Benefits” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Dilemma and Defects of Existing International Law: Completely Unmasked Again . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.1 Confusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.2 Two Sides of a Coin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Necessity of Reforming Existing International Law . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10 A Review of the DPRK Nuclear Test from the Perspective of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1 Multilateral Treaties on Prohibition of Nuclear Test Under International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Treaty on Non-proliferation of Nuclear Arms and the DPRK Nuclear Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 Joint Statement of the Six Parties and the DPRK Nuclear Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4 The UN Charter and the DPRK Nuclear Test . . . . . . . . . . . . . . . . . 10.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

127

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155 155 156 157 163 168 170 171 172 172 174 178 179 181 182 184 186 189 192 193

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11 Issues of International Law Concerning Crimea’s Secession from Ukraine and Merging with Russia . . . . . . . . . . . . . . . . . . . . . . . . . 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Scope of Application of the Principle of Self-determination . . . . 11.3 Relationship Between Territorial Integrity of State and Self-determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Issues of International Supervision on Referendum . . . . . . . . . . . . 11.5 Cases of Self-determination Under Supervision of International Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.1 The League of Nations Intervened in Cases Involving Self-determination . . . . . . . . . . . . . . . . . . . . . . . 11.5.2 Cases Involved by the United Nations in Self-determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.3 Cases in Which the International Court of Justice Has Decided (or Issued an Advisory Opinion) on Self-determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Implementation Mechanism of the UN Core Human Rights Treaties: Current Situation, Issues and Enhancement . . . . . . . . . . . . . 12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2 Characteristics of the Implementation Mechanism of UN Human Rights Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2.1 Types of UN Human Rights Organs . . . . . . . . . . . . . . . . . 12.2.2 Basic Characteristics of UN Human Rights Treaty Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3 Defects and Improvement of Implementation Mechanisms of UN Human Rights Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.1 Main Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.2 The Failure of the Early Reform Plans . . . . . . . . . . . . . . . 12.3.3 The Strengthening Process Initiated by the OHCHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.4 The Intergovernmental Process Initiated by States Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4 Practical Ways to Effectively Implement Human Rights Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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195 195 196 200 203 205 205 206

207 209 211 213 213 216 216 218 220 220 221 222 225 227 230 231

Part III International Law and China’s Peaceful Development 13 Mutual Influence and Interactions Between China’s Peaceful Development and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 13.1 Foundations of China’s Peaceful Development: Harmonious World and International Law . . . . . . . . . . . . . . . . . . . . 235

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13.2 The Impacts of International Law upon China’s Peaceful Development: Promotion and Restriction . . . . . . . . . . . . . . . . . . . . 13.2.1 Promotion of International Law to China’s Peaceful Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2.2 Restriction of International Law to China’s Peaceful Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3 The Far-Reaching Significance of China’s Peaceful Rising to Development of International Law . . . . . . . . . . . . . . . . . . . . . . . . 13.3.1 Significance of China’s Peaceful Rising to Development—The Subject Matter of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.2 Significance of China’s Peaceful Rising to Peace and security—The Primary Task of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.3 Significance of China’s Peaceful Rising to Human Rights, Rule of Law and democracy—The New Values of International Law . . . . . . . . . . . . . . . . . . . . . . . . 13.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Contemporary Construction of Chinese International Law Discourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1 The Guiding Rational and Basic Dimensions of the CILD . . . . . . 14.1.1 One Guiding Rational . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1.2 Four Fundamental Dimensions . . . . . . . . . . . . . . . . . . . . . . 14.2 Fundamental Principles of Contemporary Construction of the CILD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2.1 According to Basic Norms of International Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2.2 Conforming to Globalization and Persisting on Multilateralism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2.3 Actively Participating in Regional Integration . . . . . . . . . 14.2.4 Fully Manifesting the International Community Obligations (or Rights) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2.5 Adapting to the Needs of China’s Peaceful Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3 The Functional Orientation of Contemporary CILD . . . . . . . . . . . 14.3.1 Promoting the Continuous Development and Broad Application of Contemporary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.2 Promoting the Teaching, Research and Dissemination of Contemporary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.3 Promoting the Progress of the Rule of Law in China . . .

237 238 241 244

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248 251 252 253 254 254 255 257 257 258 259 260 260 261

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14.3.4 Maintaining China’s Interest, Especially Its Core Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.5 Improving the International Image and Status of China as a Responsible Big Power . . . . . . . . . . . . . . . . 14.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 International Legal Personality of Macao Special Administrative Region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2 Disagreed Negativism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.3 International Legal Personality of Macao and Its Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.3.1 The Treaty or International Law Basis for the International Legal Personality of Macao . . . . . . 15.3.2 The Most Fundamental Domestic Legal Basis for Macao’s International Legal Personality . . . . . . . . . . . 15.3.3 The Basic Law of Macao Implies the International Legal Personality of Macao . . . . . . . . . . . . . . . . . . . . . . . . 15.3.4 Characteristics of International Legal Personality of Macao . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Chinese Practice of International Rule of Law: Great Progress in the Past Thirty Years and Growing Challenges Ahead . . . . . . . . . . 16.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2 Outstanding Contributions Made by China in Its Practice of International Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2.1 Initiation of New Concept and Principles Reflecting the Core Values of International Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2.2 Full Participation in International Law-Making and Decision-Making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2.3 Active Taking Part in International Peace-Keeping and Peace-Building Actions as Well as Regional Security Mechanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2.4 Active Assistance to the Middle and Small Developing Countries in Their Capacity Building for Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2.5 Active Access to and Implementation of Multilateral Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2.6 Creative Settlement of Hong Kong and Macao Issues as Well as Other Disputes . . . . . . . . . . . . . . . . . . . . 16.3 Some Issues to be Coped with by China in Its Practicing International Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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281 282

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286 288 290 297

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16.3.1 Challenges of Adaptation to Humanizing Tendency of International Law . . . . . . . . . . . . . . . . . . . . . . 16.3.2 Issues to Enhance China’s Status and Influence in International Legislation and Decision-Making . . . . . 16.3.3 Issues to Accept Jurisdictions of International Judicial Organs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.3.4 Necessity of Further Perfection of Normative System in Its External Relations . . . . . . . . . . . . . . . . . . . . 16.3.5 Transformation of the Mass-Scale Model to the Elite-Oriented Model in Training Chinese International Legal Professionals . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Conceptual Analysis of China’s Belt and Road Initiative: A Road Towards a Regional Community of Common Destiny . . . . . 17.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2 The Belt and Road in the Perspective of Regional Economic Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2.1 Legal Definition and Hierarchy of Regional Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2.2 Debates on Advantages and Disadvantages of Regional Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2.3 Tendency of Regional Integration in Recent Years . . . . . 17.2.4 Comparative Analysis of Belt and Road with Regional Integration . . . . . . . . . . . . . . . . . . . . . . . . . . 17.3 The Belt and Road in Terms of Partnership . . . . . . . . . . . . . . . . . . . 17.4 The Belt and Road Towards a Regional Community of Common Destiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.4.1 Evolution of Concept Pursued by Chinese Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.4.2 Connotation of Community of Common Destiny . . . . . . 17.4.3 The Belt and Road Initiative as Part of Community of Common Destiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

297 298 299 301

302 304 305 305 307 307 309 313 313 318 321 321 322 326 328 330

Part IV China and WTO Rule of Law 18 Position of the WTO Law in International Legal Order . . . . . . . . . . . 18.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.2 Common Features of WTO Law and General International Law: A Holistic Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.2.1 The Same Social Foundation . . . . . . . . . . . . . . . . . . . . . . . 18.2.2 The Same Legal Attributes . . . . . . . . . . . . . . . . . . . . . . . . . 18.2.3 The Same Origin of Validity Basis . . . . . . . . . . . . . . . . . . 18.3 Uniqueness of WTO Law: Some Concrete Explorations . . . . . . . .

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18.3.1 The Characteristics of Source of Law, Its Formation and Validity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.3.2 New Breakthroughs in the Institutional Law . . . . . . . . . . 18.3.3 New Attempts at Treaty Law . . . . . . . . . . . . . . . . . . . . . . . 18.3.4 New Developments in International Liability . . . . . . . . . 18.3.5 Uniqueness of Dispute Settlement . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 WTO’s Self-contained Rule of Law Model and Its Challenges . . . . . 19.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.2 The Balance Between the WTO Competence and the Sovereign Power of Its Members . . . . . . . . . . . . . . . . . . . . 19.3 The Substantial Integration of Developing Country Members into the WTO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.4 The Erosion of the Proliferation of Regional Trade Agreements to the Principle of Non-discrimination . . . . . . . . . . . . 19.5 The Enhancement of Democracy, Transparency and Efficiency of WTO Decision-Making Process . . . . . . . . . . . . . 19.6 Further Improvements of Dispute Settlement Mechanism . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Dilemma and Outlet of Doha Development Agenda After Cancún Ministerial Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.1 Cancún Ministerial Conference: A Symbol of Severe Setback of Doha Development Agenda . . . . . . . . . . . . . . . . . . . . . . 20.1.1 Divergences on Some Major Issues . . . . . . . . . . . . . . . . . . 20.1.2 Divergencies on Conference Documents and Decision-Making Methods . . . . . . . . . . . . . . . . . . . . . 20.2 Anxiety and the Light of Hope After the Cancún Conference . . . 20.2.1 Signs of Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.2.2 The Beacon of Hope Slowly Lighting Up . . . . . . . . . . . . . 20.3 Outlet of Doha Round: Idea, Belief and Principle . . . . . . . . . . . . . 20.3.1 The Gist of Development Must Not be Deviated . . . . . . . 20.3.2 The Belief in Multilateralism Is Unshakable . . . . . . . . . . 20.3.3 The Non-transparent, Non-democratic and Non-inclusive Way of Working Must be Changed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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339 341 342 345 347 349 351 351 352 354 357 360 363 370 373 373 374 378 379 379 382 383 384 386

387 390 391

21 Brilliant Multilateral Trade System with Hardship: Achievements, Issues and Improvement . . . . . . . . . . . . . . . . . . . . . . . . . 393 21.1 Concentration: Remarkable Achievements of Multilateral Trade System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 21.1.1 The Unprecedented Recognition and Participation to the Multilateral Trading System . . . . . . . . . . . . . . . . . . 394

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21.1.2 The Ever-Increasing Rule-Oriented Philosophy of the Multilateral Trading System . . . . . . . . . . . . . . . . . . 21.1.3 The Initial Formation of the Legal System of the Multilateral Trading System . . . . . . . . . . . . . . . . . . 21.2 Focus: Outstanding Issues of Multilateral Trade System . . . . . . . . 21.2.1 The Self-Orientation of the WTO . . . . . . . . . . . . . . . . . . . 21.2.2 The Erosion of the Non-discrimination Principle . . . . . . 21.2.3 The Ineffectiveness of the Preferential Treatment . . . . . . 21.2.4 The Choice of Decision-Making Methods . . . . . . . . . . . . 21.2.5 Democratic Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.3 Expectation: Self-perfection of Multilateral Trading System . . . . 21.3.1 Adhere to the Principle of Dos and Don’ts . . . . . . . . . . . . 21.3.2 Strengthen the Review Mechanism of RTAs . . . . . . . . . . 21.3.3 Safeguard the Rights and Interests of Developing Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.3.4 Improve the Decision-Making Mode of the WTO . . . . . . 21.3.5 Adhere to the Principle of “Members-Driven” and Promote the Democratic Governance . . . . . . . . . . . . . 21.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Application of WTO Agreements in China and Revolution of Chinese Legal System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.1 Recalling: Theory and Practice of Domestic Application on General International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.1.1 General Theory and its Development . . . . . . . . . . . . . . . . 22.1.2 General Practice and Its Complexity . . . . . . . . . . . . . . . . . 22.2 Application of the Treaties in China . . . . . . . . . . . . . . . . . . . . . . . . . 22.3 Issues on Application of WTO Agreements in China . . . . . . . . . . 22.3.1 Problems Concerning the Ratification of WTO Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.3.2 Issues on Application (Implementation) of WTO Agreements in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.3.3 The Issue of Which Prevails When the WTO Agreements Conflicts with China’s Domestic Laws . . . . 22.4 Looking Ahead: A Revolution of Chinese Legal System to Adapt to Economic Globalization . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

396 398 399 400 401 403 406 407 410 410 411 412 413 414 415 417 419 420 420 422 424 425 426 426 429 430 432

23 Illegality and Negative Impacts of the US Special Safeguard Against Chinese Exported Tires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433 23.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433 23.2 US Special Safeguards Against Chinese Exported Tires Violates G20 Summit Document . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

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23.3 US Special Safeguards Against Chinese Exported Tires Violates WTO Provisions on Safeguards and Protocol on China’s Accession to WTO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 437 23.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 24 Tendency of Treaty Interpretation from the Perspective of WTO Appellate Body’s Ruling on the “China-US Publication Market Access Case” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.2 AB’s Interpretation of “Sound Recording Distribution Services” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.3 Similar Interpretative Method by the International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part V

443 443 444 446 449 451

China and Tendency of Regional Trade Agreements

25 New Tendency of the Regional Trade Agreements and Its Negative Impacts on the Doha Round . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.1 Strong Momentum of Development of RTAs . . . . . . . . . . . . . . . . . 25.2 Incentives of RTAs Development . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.2.1 Economic Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25.3 Negative Impacts of RTAs on Doha Development Agenda . . . . . . 25.3.1 Impacts on the Doha Round Negotiation Process . . . . . . 25.3.2 Impacts on the Doha Development Agenda . . . . . . . . . . . 25.3.3 Impacts on the Multilateral Trading System . . . . . . . . . . . 25.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Features of China’s RTAs: Definition, Classification and Implication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.1.1 Conceptual Definition of China’s RTAs: A Comparative Approach . . . . . . . . . . . . . . . . . . . . . . . . . . 26.1.2 Classification of China’s RTAs: A Further Exploration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.1.3 RTAs Between China and Its Special Constituents . . . . . 26.1.4 RTAs Between China and the Regional Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26.1.5 FTAs Between China and Other Sovereign States . . . . . . 26.1.6 Regional Integration and Mechanism Between China and Other Entities in Asia-Pacific Region . . . . . . . 26.2 Implication of China’s RTAs: An Even Further Analysis . . . . . . . 26.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

455 455 457 457 463 463 465 467 471 472 475 475 476 478 479 482 484 486 488 490

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References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492 27 Legal Status and Tendency of Regional Trading Arrangements in the WTO and Some Legal Issues in Establishing Free Trade Area Between the Mainland China, Hong Kong and Macao . . . . . . . 27.1 Trends of RTAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27.2 Legal Status of RTAs in the WTO . . . . . . . . . . . . . . . . . . . . . . . . . . . 27.2.1 Article XXIV of the GATT 1994 and the Understanding on the Interpretation of Article XXIV of the GATT 1994 . . . . . . . . . . . . . . . . . . 27.2.2 The “Enabling Clause” of the 1979 Tokyo Round . . . . . . 27.2.3 Article V of the GATS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27.2.4 WTO’s Supervision over RTAs . . . . . . . . . . . . . . . . . . . . . 27.3 Some Legal Issues Related to the Establishment of FTA Between Mainland China, Taiwan, Hong Kong and Macao . . . . . 27.3.1 The Legal Significance of Establishing the Free Trade Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27.3.2 The Legislative Issues of Establishing Free Trade Area Among Cross-Straits Four Regions of China . . . . . 27.3.3 The Issues Concerning the Name of the Free Trade Area Established in Cross-Straits Four Regions of China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27.3.4 The Dispute Settlement of the Free Trade Area Established in Cross-Straits Four Regions of China . . . . 27.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Impacts of the Transatlantic Trade and Investment Partnership Under the New Tendency of Regional Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28.1 Recent Trend of RTAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28.2 Incentives of TTIP Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28.3 Objectives of TTIP Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28.3.1 The Built-In Objective of TTIP . . . . . . . . . . . . . . . . . . . . . 28.3.2 Spillover Objectives of the TTIP . . . . . . . . . . . . . . . . . . . . 28.4 Impacts of the TTIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

493 493 496

496 497 497 498 500 500 502

503 504 505 505

507 507 508 512 512 515 516 519 520

29 Features of Cross-Border Economic Cooperation Zone and Its Legal Framework and Mechanism Construction . . . . . . . . . . . . . . . . . 521 29.1 Parallel Development of Regional Economic Integration and Economic Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521 29.2 Definition and Characteristics of Cross-Border Economic Zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522

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29.3 Legal and Mechanism Construction of Cross-Border Economic Zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29.3.1 Legal Construction of Cross-Border Economic Cooperation Zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29.3.2 Institutional Guarantee of Cross-Border Economic Cooperation Zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29.4 Legal Issues of China-Vietnam, China-Myanmar and China-Laos Cross-Border Economic Zones . . . . . . . . . . . . . . . 29.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part VI

525 525 526 529 531 531

Legal Issues in China-EU Relations

30 Dual Legal Positions of the EU and Its Member States in WTO and Their Influence on China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30.1 Introduction: Why One of the Bilateral Negotiators of China’s Accession to the WTO is the European Communities Other Than Its Member States? . . . . . . . . . . . . . . . . 30.2 Special Relationship Between the European Communities and the GATT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30.3 Dual Positions of the EC and Its Member States in the WTO . . . 30.3.1 OPINION 1/94 and the Competence of the EC and Its Member States to Conclude the WTO Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30.3.2 The EC and Its Member States and the Organization Structure of the WTO . . . . . . . . . . . 30.4 Effects of EU’s Double Membership in WTO on China . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Changes of EU External Competences After Lisbon Treaty and Their Impacts on Its Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31.1 Introduction: Definition and Evolution of EU External Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31.2 Changes of EU External Competences Under Lisbon Treaty . . . . 31.2.1 Legal Personality: From Ambiguous to Clear . . . . . . . . . 31.2.2 The Framework of External Actions: From the “Three Pillars” to the Unified Framework . . . . . . . . . 31.2.3 Enhancement and Improvement of Institutional Structure in the External Dimension . . . . . . . . . . . . . . . . . 31.2.4 A Single Set of Rules and Procedures Concerning Negotiation and Conclusion of International Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31.2.5 A Separate Heading and Provision on the Cooperative Relations with International Organizations and the EU Delegations in the Third Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

535

535 536 538

538 542 543 546 549 549 551 551 553 556

557

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31.3 Effects of Changes of EU External Competence on Third States and Other International Organizations . . . . . . . . . . . . . . . . . 559 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 32 Reform of the EU GSP in Context of European Sovereign Debt Crisis and Its Impacts on China . . . . . . . . . . . . . . . . . . . . . . . . . . . 32.1 GSP: A Special Trade Preferential Policy . . . . . . . . . . . . . . . . . . . . 32.2 Characteristics of EU GSP Scheme (2006–2015) . . . . . . . . . . . . . . 32.2.1 The Arrangement of the General GSP . . . . . . . . . . . . . . . . 32.2.2 The “GSP+ ” Arrangement . . . . . . . . . . . . . . . . . . . . . . . . . 32.2.3 The “Everything But Arms” (EBA) Arrangement . . . . . . 32.2.4 GSP Graduation Mechanism . . . . . . . . . . . . . . . . . . . . . . . 32.2.5 Temporary Withdrawal of GSP . . . . . . . . . . . . . . . . . . . . . 32.2.6 Reform of Rules of Origin . . . . . . . . . . . . . . . . . . . . . . . . . 32.3 Recent Reform of EU GSP Scheme . . . . . . . . . . . . . . . . . . . . . . . . . 32.4 Impacts of EU GSP Reform on China . . . . . . . . . . . . . . . . . . . . . . . 32.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Non-market Economy Issues in Sino-EU Relations: A Purely Technical Matter or Beyond? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.2 Strong Political Implication in the Conceptual Origins of Non-market Economy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.3 Non-technical Incentives of EU Non-recognition of China’s Full Market Economy Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.3.1 The EU’s Granting China a Special Market Economy Status, It Seems to these Authors, Is Not a Progressive Step on Its Roadmap of Recognizing China’s Full Market Economy Status, But as a Matter of Fact an Enhanced Discriminatory Treatment of China as a Non-market Economy in Antidumping Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.3.2 Anxiety of Threats by The Chinese Ever-Increasing Exports to the EU is One of the Very Factors Behind Pushing It not to Give Its Recognition of China’s Full Market Economy Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33.3.3 The Suspicion Cannot be Easily Excluded that the EU Intends to Use Its Recognition of China’s Full Market Economy Status as a Bargaining Chip to Force China Even to Meet Its Other Requests Beyond Trade and Economic Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

563 563 565 566 566 567 568 568 569 570 572 574 575 577 577 579 582

584

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33.3.4 The Different Attitudes Towards China and Russia and Ukraine Adopted by the EU in Terms of Recognition of Their Market Economy Status Reveal Strong Political and Ideological Prejudice . . . . . . 33.4 Non-technical Connotations of Divided Positions Among WTO Members on China’s Full Market Economy Status . . . . . . . 33.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Significance of China-EU Investment Agreements in the Construction of China-EU Comprehensive Strategic Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34.2 Core Indicators in Construction of China-EU Comprehensive Strategic Partnership . . . . . . . . . . . . . . . . . . . . . . . . 34.3 Three Treaty Pillars of China-EU Comprehensive Strategic Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34.3.1 Treaty Pillar I: China-EU Trade and Economic Cooperation Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 34.3.2 Treaty Pillar II: China-EU Partnership and Cooperation Agreement . . . . . . . . . . . . . . . . . . . . . . . . 34.3.3 Treaty Pillar III: China-EU Investment Treaty . . . . . . . . . 34.4 Significance of the China-EU Investment Agreement . . . . . . . . . . 34.4.1 Providing China-EU Trade Development with New Driven Mode . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34.4.2 Unifying and Upgrading Current Standards and Levels of Investment Treaties Between China and EU Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34.4.3 Influencing the Formation of Multilateral Investment Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

lxi

589 592 595 596

599 599 600 602 602 604 606 609 609

611 612 613 614

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617

Abbreviations

AB ACD ACFTA APEC ASEAN ASEM AU BIT BRICS CACM CAREC CARICOM CASCF CAT CBO CCP CED CEDAW CEMAC CEPA CFSP CICA CILD CIS CMW CRC CRPD

Appellate Body Asia Cooperation Dialogue ASEAN-China Free Trade Area Asia-Pacific Economic Cooperation Association of Southeast Asian Nations Asia-Europe Meeting African Union Bilateral Investment Treaty Brazil, Russia, India, China, South Africa Central American Common Market Central Asia Regional Economic Cooperation Caribbean Community China-Arab States Cooperation Forum Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Congressional Budget Office Communist Party of China International Convention for the Protection of All Persons from Enforced Disappearance Convention on the Elimination of All Forms of Discrimination Against Women Economic and Monetary Community of Central Africa Closer Economic Partnership Arrangement European Union Common Foreign and Security Policy Conference on Interaction and Confidence-Building Measures in Asia Chinese International Law Discourse Commonwealth of Independent States International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities lxiii

lxiv

CRTA CTBT CTD DDA DPRK DSB DSU EAC EBA EC ECCAS ECFA ECJ ECOSOC ECOWAS ECSC EEA EEAS EEC EFTA EPA EPC EU EUPM EURATOM FDI FSB FTA FYRM GATS GATT GCC GDP GMS GSP GTI HLWG IAEA ICANN ICC ICCPR ICERD ICESCR

Abbreviations

Committee on Regional Trade Agreement Comprehensive Nuclear-Test-Ban Treaty Committee on Trade and Development Doha Development Agenda Democratic People’s Republic of Korea Dispute Settlement Body Understanding on Rules and Procedures Governing the Settlement of Disputes East African Community Everything But Arms Arrangement European Communities Economic Community of Central African States Economic Cooperation Framework Agreement European Court of Justice Economic and Social Council Economic Community of West African States European Coal and Steel Community European Economic Area European External Action Service European Economic Community European Free Trade Association Economic Partnership Agreement European Political Cooperation European Union European Union Police Mission European Atomic Energy Community Foreign Direct Investment Financial Stability Board Free Trade Area Former Yugoslav Republic of Macedonia General Agreement on Trade in Services General Agreement on Tariffs and Trade Gulf Cooperation Council Gross Domestic Product Greater Mekong Sub-Region Generalized System of Preferences Greater Tumen Initiative High-Level Working Group International Atomic Energy Agency Internet Corporation for Assigned Names and Numbers International Criminal Court International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights

Abbreviations

ICJ ICTR ICTY ILC ILO IMF ITC JCCT LTBT MAI MDGs MERCOSUR MFN MIP NAFTA NATO NPC NPT OECD OEEC OHCHR OSCE PCA PCIJ PFL PJCC PRC PTA ROK RTA SACU SADC SAR SCO SNRCM SOE SRP TADP TECA TEU TFEU TNC TPP TPRM TRIMs

lxv

International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Law Commission International Labor Organization International Monetary Fund International Trade Commission China-US Joint Committee on Commerce and Trade Limited Test Ban Treaty Multilateral Agreement on Investment Millennium Development Goals South Common Market Most-Favored-Nation European Union-China Multiannual Indicative Program North American Free Trade Area North Atlantic Treaty Organization National People’s Congress Treaty on the Non-Proliferation of Nuclear Weapons Organization for Economic Cooperation and Development Organization for European Economic Cooperation Office of the High Commissioner for Human Rights Organization for Security and Co-operation in Europe Partnership and Cooperation Agreement Permanent Court of International Justice Western Sahara People’s Liberation Front Police and Judicial Cooperation in Criminal Affairs People’s Republic of China Preferential Trade Agreement Republic of Korea Regional Trade Agreement Southern African Customs Union Southern African Development Community Special Administrative Region Shanghai Cooperation Organization Standing National Reporting and Coordination Mechanisms State-owned Enterprises Simplified Reporting Process Tumen River Area Development Program Trade and Economic Cooperation Agreement Treaty on the European Union Treaty on the Functioning of the European Union Trade Negotiations Committee Trans-Pacific Partnership Trade Policy Review Mechanism Agreement on Trade-related Investment Measures

lxvi

TRIPs TTIP UEMOA UK UN UNASUR UNCITRAL UNCLOS UNCTAD UNDP UNESCO UNSCOM US USW WGIP WHO WTO

Abbreviations

Agreement on Trade-related Aspects of Intellectual Property Rights Transatlantic Trade and Investment Partnership Agreement West African Economic and Monetary Union United Kingdom United Nations Union of South American Nations United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development United Nations Development Program United Nations Educational, Scientific and Cultural Organization United Nations Special Commission United States United Steelworkers Working Group on Indigenous Populations World Health Organization World Trade Organization

Part I

Harmonious World, International Law and China’s Peaceful Development

Chapter 1

State Sovereignty in the Post-Cold War Era

1.1 Introduction In recent years, more and more social science scholars have regarded the end of the Cold War as the third turning point of this century. Although international law scholars have not yet made such distinctions within fields of scholarship, a series of new international phenomena after the Cold War have indeed given rise to many related new areas for research. Some European and American scholars even believe that due to the severe challenges to state sovereignty after the Cold War “the concept of sovereignty has never before needed to be so carefully reconsidered,”1 namely, the traditional concept of sovereignty urgently needs to be reformed. Why was the deep-rooted concept of state sovereignty in international law affected by the end of the Cold War? As illustrated below, some of the new features of postCold War international relations and international law appear to be the cause or source of these “shocks”. The dissolution and reformation of Eastern European countries after the Cold War brought many challenges to state sovereignty. The reunification of Germany, dissolution of the former Soviet Union, the split of the former Czechoslovakia and the disintegration of the former Yugoslavia led some European and American scholars to realize that state sovereignty was seriously affected by nationalism after the Cold War; in this new era, the traditional concept of sovereignty was no longer fitting. The concept of sovereignty belonging solely to the state was no longer the prevailing ideology. Instead, it should belong to the nation.

1 Frank

(1995), p. 3.

The Article was originally written by Prof. Zeng in Chinese, and published in China Legal Science, (1), 1998. It was then translated by Zedi Zhang, and proofread by Assoc. Prof. Yanxia Yao and Dr. Jiao Zhang.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_1

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The apparent strengthening of international cohesion after the Cold War has challenged state sovereignty. Since the end of the Cold War, international organizations, especially the United Nations, have been able to quickly form consensus and resolutions, and take decisive actions or measures to maintain international peace and security, as well as mediate other areas of international cooperation. These actions or measures were often difficult to achieve during the past Cold War. Thus, today’s international organizations are more frequently eroding state sovereignty, and even exercise sovereign power in some aspects. Thus, the concept of sovereignty in the post-Cold War era should at least include international organizations. The vertical development of international law after the Cold War was particularly impactful on the concept of sovereignty. The post-Cold War era created unprecedented opportunities for international cooperation, which have accelerated the development of international law. On one hand, these developments continue to extend in the horizontal domain and, on the other, simultaneously extend vertically into areas that have previously been subject to state sovereignty. As a result, some scholars have asserted that international law would develop from the “inter-state law” into the “law of the world people”.2 The so-called “challenge” or “strike”, in general terms, involves three groups of relations: state sovereignty and self-determination of peoples, state sovereignty and international organizations, and state sovereignty and international law. It is important to note that these three groups are major subjects in fundamental theories of international law. Therefore, this Article may only breach the surface of issues related to sovereignty, and may fall short in addressing the deeper problems at hand.

1.2 Self-determination of Peoples and State Sovereignty In the second half of the twentieth century, the most basic member of the international community—the state, has undergone two great changes. The first change started from the 1960s. A large number of newly independent countries emerged in Asia, Africa, and Latin America in less than two decades, leading to the complete collapse of the remnants of global colonial empires. The second change began in the late 1980s; within several years a series of new sovereign states divided from their original political territories. Although the nature, characteristics, and duration of these two waves are very different, they both closely relate to the principle of self-determination of peoples under international law, and have a profound impact on the theory and practice of international law. The great changes after the Cold War caused disruption to prevailing theories and trends in the field of international law, which set off a wave of academic study to reexamine state sovereignty and self-determination of peoples.3 2 Bedjaoui

(ed.) (1991), pp. 11–12. the thesis on relevant publication, there are two influential international seminars. One is the seminar discussing the topic “Self-determination of peoples in the Post-Colonial Era” held on August 27–29, 1992 in Bonn. The other is the 88th annual meeting with the primary topic of “the

3 Besides

1.2 Self-determination of Peoples and State Sovereignty

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Despite the collapse of the colonial system during the Cold War, the post-Cold War nationalism tendency was still evident. Though the factors involved in the differentiation of sovereign states after the Cold War are complex, many of them are inextricably linked to international law and require us to study and come to a scientific understanding. For example, does the principle of “self-determination of peoples,” as asserted by the UN Charter, apply to national, ethnic minority, indigenous or tribal peoples of existing sovereign states? Or: can national, ethnic minority, indigenous or tribal peoples of existing sovereign states invoke the right to self-determination in order to break away from the sovereign state and establish a new independent state? Also, is the principle of self-determination of peoples, in particular the right to secession, contradictory to state sovereignty?

1.2.1 Who Has the Right to Assert “Self-determination”? The United Nations enabled “self-determination of peoples” to change from a political concept into a legal one. From this, the concept of “self-determination of peoples” then rose to a basic principle of international law. Article 1 (2) of the UN Charter expressly lists “self-determination of peoples” as one of its principles. Since 1960s the United Nations passed a series of international law documents and gradually stabilized the status of “self-determination of peoples” within international law. On 14 December 1960, the General Assembly adopted Resolution 1514 (XV),4 declaring in straightforward language “the right of all peoples to self-determination.” However, because the resolutions of the General Assembly were not legally binding, and because the refusal of Western countries at the time to abide by this resolution, “self-determination of peoples” was still controversial as a legal principle. In 1966, the General Assembly also adopted two human rights conventions,5 one of which also included “self-determination of peoples”. It is worth emphasizing that these two documents are not only expressed in the legal form of the treaty, but also are almost unanimously adopted. More importantly, in 1970, General Assembly Resolution 2625 (XXV)6 included “self-determination of peoples” as a principle of international law and was adopted unanimously. Moreover, the United Nations International Court of Justice clearly concluded in advisory opinions regarding issues in Namibia and Western Sahara that: self-determination of peoples is not only a guiding

Conversion of Sovereignty” held by American International Law Committee on April 6–9, 1994 in Washington. 4 Namely, the Declaration on the Granting of Independence of Colonial Countries and Peoples. 5 Simma (ed.) (1994), p. 62. 6 Namely, the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation.

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principle advocated and promoted by the United Nations, but also it is a secured right enabling the establishment of an independent sovereign state.7 So far, although self-determination of peoples as a principle of international law is no longer the focus of controversy, in various countries and international law academic circles there have been different understandings of the application of that principle or the question of who has the right to assert “self-determination.” One view was that, though the relevant General Assembly resolutions proclaimed that “all peoples” had the right of “self-determination”, from the context of those documents the right of “self-determination” was limited to three categories: (1) Colonial peoples; (2) colonial and foreign-dominated peoples; (3) colonial-exploited peoples, including up to the newly colonized peoples suffering from racial discrimination. In sum, the right of peoples to self-determination established by the United Nations applies only to peoples under colonial and alien domination and to peoples under new colonial rule (as in the case of South Africa in the past), but not to peoples of the present non-colonial states, because these United Nations documents all condemn any attempt to divide part or all of a unified nation and the territorial integrity of a state.8 From the historical background of the evolution of self-determination of peoples becoming a principle of international law, the opinions mentioned above seem logical and confirmed by the United Nations’ relevant practice. For example, the Declaration on Decolonization states that “any attempt to divide part or all of the national unity and territorial integrity of a state is incompatible with the purposes and principles of the UN Charter”. The Declaration of Principles of International Law also expressly states that “the provisions of the preceding paragraphs (the provisions of self-determination—the author’s note) shall not be construed as authorizing or encouraging the division or derogation of the sovereignty and territorial integrity or political integrity of an independent State”. The former Secretary-General of the United Nations has also asserted: “The United Nations is clear on the issue concerning the separation of certain parts of a member state. As an international organization, United Nations has never accepted or accepts, and I firmly believe it will never accept the principle of partial separation of Member States.” Another view insisted that the meaning of self-determination of peoples has extended beyond the scope of colonized peoples since the date of its inclusion in the United Nations documents. In ratifying the two human rights conventions, the Government of India had determined that self-determination would be understood only as a right of “nations under the domination of foreign states.” At the time, the Federal Republic of Germany, France, and the Netherlands all clearly expressed different views on this matter.9 It is important to note that the views of these three countries have ultimately become the mainstream, and gained the support from the United Nations Commission on Human Rights. The latter, in reference to relevant 7 International

Court of Justice (1971), pp. 16, 31; International Court of Justice (1975), pp. 12, 31–33. 8 Pomerance (1982), pp. 14–15. 9 Tomuschat (ed.) (1993), pp. 2–3.

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human rights conventions concerning self-determination of peoples, makes it clear that self-determination is the right of all peoples.10 Although the broad interpretation of the right of peoples to self-determination has been widely accepted, in recent years, the applicability of self-determination to indigenous peoples within a state is a new focus arousing controversy within and outside the United Nations. The United Nations Working Group on Indigenous Populations (WGIP) has been drafting the Declaration on the Rights of Indigenous Peoples but has not yet provided texts acceptable to representatives of each Member State. The root of disagreement is whether the right to self-determination of Indigenous Peoples should be explicitly enshrined in the Declaration and, if so, what are the specific criteria or guidelines for the right to self-determination of indigenous peoples? The Working Group included the right to self-determination in its draft declaration presented at its 10th Meeting in 1992, which reads: “Indigenous peoples have the right to self-determination in accordance with international law and are free to determine their political status and organizational structure, as well as to pursue their economic, social and cultural development. The comprising parts of this right are the right of decision making and the right of autonomy.”11 According to the explanation of the Chairperson who was also the Rapporteur of the Working Group, the right to self-determination mentioned above refers to a state’s internal aspects and does not contain any intention to encourage the establishment of an independent state. Nevertheless, many European and American scholars and relevant institutions do not consider the above explanation to be justified, since from the textual meaning of the draft, indigenous peoples’ right to self-determination includes both internal self-determination and external self-determination.12 When it comes to the positions of governments, it is generally agreed that indigenous peoples have certain rights to self-determination, though none of them has officially accepted indigenous peoples’ right to external self-determination. Therefore, some states hold that “the right to self-determination” in the Declaration on the Rights of Indigenous Peoples still needs careful consideration; others are strongly opposed to the inclusion of the “right to self-determination” clause. Additionally, there are also states advocating the inclusion of a self-determination clause being written into the Declaration, but these states maintain that indigenous peoples’ rights should be strictly limited to the internal aspects.13 In conclusion, it will take time for the international community to reach a consensus on the scope the right to self-determination. Nevertheless, the basic principle of self-determination can be summarized in the followings: First, it is certain that the United Nations advocates the right of self-determination in order to promote 10 Human

Rights Committee (1994), p. 142. Nations Economic and Social Council (1992). 12 Many European and American scholars believe that self-determination of peoples should be composed of two parts, namely, internal and external self-determination. The former mainly refers to the self-decision making, autonomy and the development of self-economy, culture, religion, custom and other rights; the latter mainly refers to the right of independence or secession, that is, the right to form a new independent state from the original sovereign state. 13 Tomuschat (ed.) (1993), pp. 42–45. 11 United

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the collapse of the post-war colonial system. The main subject entitled to “selfdetermination” is, first and foremost, the people of colonial and semi-colonial countries, as well as nations ruled, enslaved, and/or exploited by foreign colonial powers. Although the wording of the relevant United Nations documents is “all peoples”, by the end of the 1980s, the actual application of self-determination of peoples was primarily people and peoples belonging to colonial or semi-colonial countries. Second, the international setup is changing, and norms of international law are developing. After the end of the Cold War, states who were still insisting on the traditional application of the right of self-determination were not conforming to the literal meaning of the relevant UN documents, but also were unable to reasonably explain the differentiation and combination of sovereign states after the Cold War, or why the United Nations is still devoting to the formulation of the documents for the right of ethnic minority and indigenous peoples to self-determination. Thirdly, the recognition of broader interpretation of peoples to self-determination does not suggest that international law has established or encouraged the right of secession of minorities, indigenous peoples or tribes within existing sovereign states. It is vitally important that one does not conflate the right of self-determination of peoples with the right of secession, which is only one of the specific criteria belonging to the former. Contemporary and future international law should encourage and assist states to fully recognize indigenous peoples’ right to internal self-determination within their territories, rather than simply advocating for the right of external self-determination (right of secession). Only in this way can the principle of selfdetermination of peoples in international law safeguard the sovereignty, territorial integrity, and stability of states, as well as promote global peace and security. It is for this reason that the United Nations and other international organizations have always taken a cautious stance in dealing with the issue of secession in existing sovereign states. Nevertheless, in dealing with the situation of the former Yugoslavia, the action of international organizations has inevitably been arbitrary, resulting in an increasing amount of censure and criticism.

1.2.2 Is the Right of Self-determination Contradictory with State Sovereignty? Before the end of the 1980s, the right of self-determination of peoples was mainly applied to people and peoples of the colonies. Thus, the issue of self-determination of peoples contradicting state sovereignty was seldom raised in theory or in practice. The reason for this is that people and peoples of the colonies are not nationals of the suzerain state. International law gives these peoples the right to self-determination and establishment of an independent state, which ensures such peoples’ full autonomy and self-determination without affecting the sovereignty of the suzerain state. Let alone that it also conforms to the historical development of self-determination. However, in cases where the colonies no longer exist, the right

1.2 Self-determination of Peoples and State Sovereignty

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of peoples to self-determination in existing sovereign states is likely to be at odds with the sovereignty of that state. It is precisely because of this possibility that international law scholars have long asserted: “sovereignty principle logically excludes the right to self-determination. If international law is to ensure the sovereignty of the existing state, it cannot at the same time allow sovereignty to be intruded in the name of the right to self-determination”.14 In fact, the right of self-determination of peoples has abundant specific content. Minority, indigenous peoples or tribes within a state are less likely to endanger their state’s sovereignty if they exercise only internal self-determination, since such rights (i.e. political participation, autonomy, self-decision making, etc.) are achieved and overseen under the jurisdiction of their state (by constitutional process). Conventional wisdom dictates that the more fully a state and its government can guarantee the right of self-determination within the nation, the more complete its sovereignty will be. Therefore, in order for a state composed of multi-ethnic groups to safeguard its internal national unity and external sovereignty, it must ensure that its ethnic minorities enjoy full self-determination in legislative, administrative, judicial, religious, cultural, customary and other aspects. Without doubt, if a nation in an existing state persists in exercising its right to self-determination by establishing a new independent state (the right to external self-determination), its outcome will inevitably affect the sovereignty of its state, especially in terms of territorial sovereignty. It is important to note that not all of the contents of the right of self-determination are at odds with state sovereignty. What really affects sovereignty is the external side of the right to self-determination (the right to secession). The right to secession (or separation) conflicts with state sovereignty since both are inextricably linked with territory. Safeguarding the integrity of existing territory is the primary element of state sovereignty and the right to secession means a definite change to the territory of the original state. In this sense, it’s reasonable to say that the self-determination of peoples and state sovereignty are contradictory. However, we cannot regard part of the right of self-determination contradicting with state sovereignty as the entire right of self-determination conflicting with the concept of state sovereignty; nor can we necessarily draw the conclusion that the right of self-determination and sovereignty are mutually exclusive. The relationship between state sovereignty and the right to self-determination should first be a co-existent relationship. State sovereignty is a primary concept and basic principle of international law. As long as the basic elements of the international community are still states, and international law is still inter-state law, then it follows that the principle of state sovereignty will always be the core of society and its legal order. The central status of state sovereignty is not shaken by the formation and development of self-determination of peoples. The right of peoples to selfdetermination also does not lose its significance by upholding the principle of state sovereignty or the fact that the colonial system has collapsed. As long as there are ethnic minorities or tribal people within the state’s jurisdiction (in other words, as

14 Tomuschat

(ed.) (1993), p. 23.

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long as state is constituted by plural nationalities) the right to self-determination retains its legitimacy. State sovereignty and self-determination of peoples should also be a relationship with mutual restraints; they can serve to check and balance each other. While the principle of sovereignty is the most basic principle of international law, it is at the same time restricted by other principles of international law, and imposed by the sovereign itself. The right of peoples to self-determination is one of the many other principles of international law that restrict state sovereignty. For example, the state has exclusive jurisdiction over all persons within its territory on the basis of the principle of sovereignty. However, if it violates basic human rights in the rule of its minorities (such as genocide), the victimized peoples can exercise their right to self-determination and separate from the state. When it comes to self-determination of peoples restricted by state sovereignty, it is even more obvious. In a sense, the right to self-determination is based on the premise of national sovereignty. In the absence of a sovereign state, there can be no discussion of self-determination of peoples, especially after the collapse of the colonial system. Moreover, the realization of the right to self-determination (particularly with regard to internal self-determination) also depends on the consent of the concerned sovereign state. Even if the peoples concerned do not necessarily have the consent of the original state when exercising their right of secession, it is only of real significance in the case of recognition and support by the overwhelming majority of the sovereign states of the international community. After the collapse of the global colonial system, self-determination of peoples should be the norm of the periphery of the national sovereignty principle. It is of vital importance to have a correct understand of the relationship between the principle of sovereignty and the principle of self-determination, especially in the content of the rise of post-Cold War ethnic separatism. According to research recently conducted by an American scholar, “the goal of the world community should be to prevent the division of the state; if this is not possible, it should also be dealt with in a way that minimizes the damage to public order.”15 Only in this way can the international community assist the state to restrain extreme nationalism and thereby ensure the long-term stability of domestic society, thus winning the long-lasting security and peace of international community. Lessons from recent years have shown that the United Nations and other important intergovernmental organizations deal with the primary and secondary relations of these two principles, and how this has a huge impact on the fate of the countries and peoples as well as the whole global community.

15 Ratner

(1994), p. 43.

1.3 International Organizations and State Sovereignty

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1.3 International Organizations and State Sovereignty Many European and American scholars believe that since the 1990s, state sovereignty has been faced with two pressures: First, the above mentioned extreme nationalism led to the breakdown of sovereign states; second, the new international organization “empire” constantly problematizes and poaches the state sovereignty.16 When it comes to the current relationship between international organizations and state sovereignty, some people have likened sovereignty to Swiss Cheese,17 which has various holes punctured by international organizations. Some compare state sovereignty and international relations to a white paper with different sizes of holes. The paper is like state sovereignty which was originally complete; large and small holes are like parts of the sovereignty that have been annexed by global and regional international organizations.18 According to relevant statistics, nearly 2,000 international organizations have been established by states or governments. On average, each sovereign state has established more than 10 intergovernmental organizations. Moreover, in addition to intergovernmental and non-governmental organizations, a new type of third-generation international organization—inter-organizational organizations—has emerged. Above all, the authority and activities of international organizations have involved every aspect of human life; in this way, these organizations are almost pervasive. Therefore, from the perspective of the development, influence, and function of international organizations, it is no exaggeration to refer to this century as “the century of international organization explosion”, or “the emergence of international organizations as a new empire of this century”. However, the sharp increase in the number of modern international organizations does not, of course, constitute a threat to national sovereignty. Likewise, the expanding authority and sphere of activities of various international organizations do not, of course, constitute damage to state sovereignty. The reason is simple: it is impossible for states to reach an agreement to establish an international organization that threatens or undermines its sovereignty. The point is that if an international organization, in particular an important intergovernmental organization like the United Nations, exercises its authority beyond its statute, this will not only violate international law which includes the organization of law, but also will damage and threaten state sovereignty. Post-Cold War practices of international organizations have confirmed the existence of this effect.

16 Kahn

(1994), pp. 53–54. cheese is a kind of hard cheese, which has different shapes of holes in different directions. 18 Lee (1994), p. 52. 17 Swiss

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1.3.1 The “Hard Collision” of International Organization with State Sovereignty Unlike the dissolution of the former Soviet Union and the former Czechoslovakia and the collapse of the former Yugoslavia as a sovereign state, has not only been accompanied by armed conflicts and even wars, but also has had involvement of important international organizations of varying degrees, such as the United Nations, the World Bank, the International Monetary Fund (IMF), the European Community (EC), and so on. Among them, the measures and actions taken by the IMF and the EC in dealing with the former Yugoslavia are indeed thought-provoking in terms of the focus of this Article. In December 1992, the IMF discussed the question of the Socialist Federal Republic of Yugoslavia’s status in the organization at the time. The executive board of the organization determined that the Socialist Federal Republic of Yugoslavia had no longer existed and decided to cease its membership in the IMF. It also decided that the Republic of Bosnia and Herzegovina, the Republic of Croatia, the Republic of Macedonia of former Yugoslavia, the Republic of Slovenia, the Federal Republic of Yugoslavia, and others, would be the successor to the property and the debt of the former Socialist Federal Republic of Yugoslavia in this organization. The Board also determined the respective shares for the five republics and requested each successor to inform the organization within one month of its acceptance of the assigned percentage. The above-mentioned decisions of the IMF were more about determining and declaring the existence of a sovereign state than the membership of a sovereign state in the organization. Before the end of the Cold War, in the situation of civil unrest or armed conflict involving the minority or several nationalities in the territory of the state asking for independence, to have intergovernmental international organization making decisions for the original state and recognize the new state by examining the status of its Member States. Perhaps whether the decision of the IMF went beyond its charter is a topic of academic inquiry that remains for further study, but it is undeniable that it actually affects the fate of the current sovereign state, not to mention that at that time Yugoslavia had not declared its dissolution and was still working to preserve national unity and territorial integrity. Even if the collapse of the former Yugoslavia is a reality and there are no doubts in international law, it is up to the five newly established sovereign states to actively inherit the property and debt of the former Yugoslavia in the IMF through negotiation or other peaceful means. It must be recognized that by the summer of 1991, the position of the European Community was to make every effort to maintain the unity of the former Yugoslavia. However, since November 1991, the policy of the European Community has changed markedly, with the deteriorating internal situation in the former Yugoslavia and the hasty recognition of the newly independent republic by certain third states. In handling Yugoslavia, an arbitration committee of the “European Community Conference on the Former Yugoslavia” (which was later replaced by the “International

1.3 International Organizations and State Sovereignty

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Conference on the Former Yugoslavia”) played an extremely important role as a “military adviser”. In hindsight, despite the non-binding nature of the advisory opinion of the committee, these advisory opinions were directly influential on the policies of the EC on the former Yugoslavia, and also exerted a non-negligible impact on international society’s formulation and adjustment of its positions and actions on the former Yugoslavia. On 16 December 1991, the Council of Ministers of the European Communities issued two Declarations on the recognition of a new state, one of which was directed to the recognition of the newly independent states of the former Soviet Union and Eastern Europe, and the other specifically to Yugoslavia. The Council of Ministers also requested that all republics of the former Yugoslavia wishing to be recognized should submit an application to the Arbitration Board for an advisory opinion on whether the applicant concerned met the criteria established in the Declaration. To this end, the Arbitration Commission also produced the “Application Form” and sent them to each Republic, asking them to submit the completed “Application Form” with a copy of their respective Constitution and the transcripts of relevant commitments. Shortly thereafter, Bosnia and Herzegovina, Croatia, Macedonia, and Slovenia all submitted their applications on time. The Arbitration Committee only took two weeks to issue its assessment, namely, Opinion 4–7. The Committee determined that Slovenia and Macedonia were in full compliance with the national standards of the Declaration, except that the name of the latter, “Macedonia”, could not contain any claim of territory to any other state (Greece—author’s note). As for Bosnia and Herzegovina, the committee said: “Bosnia and Herzegovina’s intention to form the Socialist Republic of Bosnia and Herzegovina as a sovereign and independent state cannot yet be determined to be fully formed”, and proposed a referendum solution. As a legal adviser of ICTY pointed out, the committee’s proposal is a “devastating” motion because there is no referendum in the Bosnian Constitution.19 As a result, when the referendum was held, the Serbs boycotted. The Serbian people were firmly opposed to the establishment of an independent state under the pretext of violating the Constitution by the referendum in Bosnia and Herzegovina, which led to a complex situation of the unceasing war in Bosnia and Herzegovina. For Croatia, the Committee concluded that it was largely in line with the elements of the state, but that its constitutional provisions had yet to be perfected. Regarding Socialist Federal Republic of Yugoslavia, the committee ruled on 18 March 1992 that it no longer existed. Finally, in the case of the new Federal Republic of Yugoslavia, the Commission ruled that it was not the only successor to the former Yugoslavia, but actually was one of the five successors. If the above-mentioned IMF actions uses the indirect means (by examining the qualifications of its Member States) to intervene in the fate of the former Yugoslavia, the EC and its Arbitration Committee establish standards for recognizing a “state”, and then examine and decide the future of sovereignty for each of the political entities in the former Yugoslavia. If IMF’s actions still have some basis from the organization of law, the behavior of the EC is not convincing from the perspective 19 Szsasz

(1994), p. 36.

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of law. First of all, although the former Yugoslavia and its republics are inextricably linked to the EC and its Member States in terms of geography, politics, economy, religion and culture, they are not members of the EC. Therefore, EC’s out-of-line intervention doesn’t have an organizational excuse like IMF. Secondly, as a regional organization, it establishes an arbitration body to examine and determine disputes between a third state and its associated republics, particularly with regard to the major issue of sovereignty without prior consent from the parties to the dispute, which makes it difficult to escape the accusation of the violation of sovereignty, and find any basis in international law. Although the opinion of the Arbitration Committee is nominally related only to the EC and functions mostly as an “advisory”, the impact is far beyond the power and role of an advisory opinion. The reaction of the EC and the international community as a whole to the question of Yugoslavia was, to a certain extent, closely related to the Committee’s decision. In addition to the obvious effects of the aforementioned IMF’s decisions, the immediate recognition by the UN General Assembly on the independence of most of the former Yugoslavia, as well as the postponed recognition of individual republics, are hardly made without the influence of “advisory opinion.” Besides the typical events in the former Yugoslavia, some European and American scholars have also included peace-keeping operations and sanctions of international organizations, especially United Nations, “hard-collided” with state sovereignty. Of course, apart from the international legitimacy of such actions and measures, they, themselves, as coercive actions directed at concerned states, would definitely impinge upon and constrain their sovereignty. In addition, the establishment of a “safe zone” in a state without the prior consent of the state concerned is undoubtedly a coercive measure that directly limits national sovereignty after the Cold War.

1.3.2 The “Soft Erosion” of International Organizations over State Sovereignty The above-mentioned “hard collision” is characterized by international organizations’ actions and measures limiting national sovereignty being carried out without prior consent of the host nation. Such flagrant violations of state sovereignty by international organizations are, after all, few and far between. In contrast, the “soft erosion” of international organizations over state sovereignty is commonplace, and it is showing increasing momentum. “Soft erosion” is characterized by the actions and measures of international organizations being generally subject to the prior consent of the state or the parties. The main manifestations are: the relevant countries will permanently transfer part of sovereign rights to international organizations, or will be willing to allow international organizations to temporarily exercise the sovereign rights of the state. The European Union is the most prominent example of the permanent transfer of sovereign rights to international organizations. This “empire”, fostered by Western

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European countries, not only has its internal organizational structure as sovereign but also exercises sovereign rights that belong to the state in many areas. From duty and trade to business policy; from labor employment and population floating to social welfare policies; from transport, agriculture, fisheries and competition to environmental and technological development policies; from judicial assistance to domestic cooperation policies; from political cooperation to common diplomacy and Security policy. In sum, from the internal to the diplomatic, the legislative, executive, and judicial powers of the European Union are either exclusive, coexisting, or mixed with the Member States. Since the transfer of sovereign rights is permanent and has been fixed by international treaties, the authority exercised by international organizations within the limits of their jurisdiction is as stable as the sovereignty exercised by the state. The United Nations is the most prominent representative of the temporary exercise of sovereign rights by international organizations in its Member States. For example, since 1988, with regards to the national reconstruction of Member States, the United Nations has been organizing and implementing democratic elections under international supervision in Namibia, Cambodia, Somalia, El Salvador, Angola, Mozambique, Rwanda, South Africa and the former Yugoslavia. In these countries, the United Nations is actually exercising the sovereign right of the state, because it is always the subject of state sovereignty that determines what form of government, and how it generates a new government. However, once the election is over, and the new state or the new government is established, the United Nations returns the rights to the corresponding state and withdraws its representative agencies or personnel. Therefore, the exercise by the United Nations of the sovereign rights of the Member States concerned is only temporary. In addition, some scholars have also considered the request that Member States regularly report and respond to the relevant situation and problems by some institutions of United Nations, such as the Commission on Human Rights, the Committee on the Prevention of Racial Discrimination and the Committee on the Rights of Women, as a manifestation of the “soft erosion” of national sovereignty. These situations and problems relating to human rights have always been matters of national sovereignty, however, it is bit far-fetched since some scholars also see the UN Secretary-General’s good offices as “soft erosion”20 to national sovereignty.

1.4 New Development of International Law and the State Sovereignty Since the Treaty of Westphalia, the international community has been a horizontal inter-state society. This kind of planar social structure determines that international law is mainly to adjust the horizontal relationship between sovereign states. Despite 20 Szsasz

(1994), p. 38.

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1 State Sovereignty in the Post-cold War Era

the dramatic changes in international relations after the end of the Cold War, international law will continue to be primarily an inter-state law, as the basic structure of the international community remains. At the same time, we should also take note of a new development in international law, namely, that it is moving more and more in a vertical direction. International law continues to infiltrate into areas of state jurisdiction, and the space for that of state sovereignty continues to shrink.

1.4.1 The Shrinking of Territorial Supremacy Territorial supremacy is one of the three main elements of state sovereignty, which manifests itself as an independent right within a state. Its principal meaning is: the state in its territory has the autonomy to independently handle all issues, such as legislating and passing the Constitution in response to its national conditions, establishing corresponding government agencies, enacting necessary laws, implementing orderly domestic social policies, and so on. However, this internal autonomy of the state has ultimately been weakened by international law. Although the constitutional legislation and governmental composition of a state are not constrained by international law, post-Cold War practices show that if a newly independent state is to gain international recognition and gain a seat in the international community, its constitution must also meet certain conditions. Although the conditions attached to the independence of the republics of the former Yugoslavia by the European Community and the practice of examining the Constitution are neither general international law nor customary international law, it pioneered a precedent that not been reproached or challenged. In fact, it gained the recognition of parties concerned, in particular the acquiescence of the United Nations and its Member States. This is indeed puzzling. We may have many reasons to argue that the case of former Yugoslavia is an exception, but in any case, the establishment of new national standards by international bodies and the assessment and examination of the constitution of the new state constitute a serious interference in the “matters essentially belonging to domestic jurisdiction”. If the above-mentioned case is special, there are numerous examples of international law intervening and restricting a state’s economic sovereignty. Looking at the newly established World Trade Organization and its legal system as an example, we are able to have a sense of the extent to which international law reduces the territorial rights of the state. Large numbers of policy areas that have been considered in the past “as an exclusive territory for domestic policy are touched upon by the agreements contained in the Final Act of the Uruguay Round.”21 In the area of trade, members are not only subject to tariff formulation restrictions, but also have to be “careful” in implementing any non-tariff measures. Even some “gray area” measures (such as voluntary export restrictions, orderly sales arrangements, etc.) have also been

21 van

Dijck and Faber (eds.) (1996), p. 16.

1.4 New Development of International Law and the State Sovereignty

17

scrapped and banned for a limited period of time. More importantly, the implementation of agricultural policies and subsidies in members cannot disregard provisions of relevant WTO Agreements. Even the necessary technical standards and measures, such as product quality inspection, origin standards, health quarantine, pre-shipment inspection, etc., not only must be transparent, but also must comply with the relevant international standards. It is particularly worth mentioning that trade-related investment policies and the protection of intellectual property rights of members must comply with the principles and rules contained in the corresponding agreements. It is also a matter of concern that service industries such as finance, insurance and basic telecommunications, which have always been under domestic jurisdiction, will also be subject to the General Agreement on Trade in Services and other special agreements in the future. Finally, it should not be overlooked that the WTO has just established these policies and it immediately carried out actions in other areas domestically dominated. Competition policy, environmental policy, and social standards have been listed by the WTO as “new trade agenda”. It can be concluded that, in trade areas where interdependence among countries is the most prominent, sectors and matters governed exclusively by the territorial supremacy have shrunk considerably.

1.4.2 The Shrinking of Personal Supremacy Personal supremacy is the supreme jurisdiction of the state over its nationals. However, this jurisdiction of the state is to a great extent challenged by the conception of the whole human interest, international human rights and international humanitarian law. International human rights issues are one of the fastest-growing issues of international politics and international law since the World War II. Under the influence of the United Nations, international human rights have entered into stage of the third generation of the concept of human rights, which is marked by the right to peace, the right to environment, the right to development and the common right of mankind, following the first generation of human rights (the fundamental rights of individuals) and the second generation of human rights (collective human rights in the economic and social fields). Some experts assert that, with the emergence of the concept of third-generation human rights, a new subject—the human itself—will emerge in international law.22 It can be predicted that if the human being as the subject of international law is established and internationally recognized, then state personal supremacy will no longer be considered as “superior”, since the individual becomes not only a citizen of a nation, but also a global individual existing with others to collectively constitute the whole of mankind and become the subject of international law. In contemporary and future international law, when the sovereign interests of the state conflict with the overall interests of mankind, the former will undoubtedly 22 Bedjaoui

(ed.) (1991), p. 13.

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1 State Sovereignty in the Post-cold War Era

obey the latter. Therefore, besides that civil rights, national policies, social security policies, gender policies and the rights of the weak must respect the relevant international human rights conventions, national security and defense policies, technology and development policies, and environmental policies should also take into account the human right to peace, the right to development, the right to environment, and the right to common heritage. The state cannot disregard the interests of whole mankind for the integrity of its own sovereignty, as such “disregard” may lead to the endangering of the security of the region and of the international community as a whole. The state cannot disregard or even destroy the environment for its own economic development, because a state’s ecological imbalance and environmental pollution will bring disaster to neighboring countries and the world. The state also cannot rely on its technical and economic advantages to advocate sovereignty in polar territories, international seabed, and outer space, because these areas or regions are the common heritage of mankind. As with international human rights law, international humanitarian law has developed considerably since the Nuremberg and Tokyo military tribunals, particularly after the end of the Cold War. In order to protect the homeless and implement humanitarian aid in wartime, the UN Security Council has successfully adopted the relevant resolutions to establish safe zones in Iraq and the former Yugoslavia. The establishment of a safe zone in a conflict zone is a new concept that has given rise to an extremely sensitive question of international law: should the consent of the host nation be obtained in advance for the establishment of a safe zone or providing humanitarian assistance? The answer is undoubtedly yes in accordance with the principles of state sovereignty and non-interference in internal affairs because: (1) the spot of the establishment of safe zones and the implementation of humanitarian assistance were both within the territory of the host nation; (2) safe zones and humanitarian assistance aimed at the protection and relief of the homeless who belong to the nationals of the host nation. However, Resolution 688 adopted by the Security Council (on the establishment of a safe zones for the protection of the Kurds in Iraq) did not seek the consent of Iraq. Although this resolution caused a lot of controversy in the international law scholarship,23 it ultimately has been adopted and implemented. A series of international humanitarian assistance measures after the Cold War seem to indicate that international humanitarian measures are not necessarily subject to the consent of the host state in emergencies (such as war, large-scale armed conflict, genocide). It is thus clear that the measures taken under international humanitarian law in the post-Cold War era place restrictions on the sovereignty of the concerned states.

23 There

is a view that the Security Council’s resolution is an act beyond its authority because the safe zone is established for humanitarian purposes and that the Council’s mandate is to maintain international peace and security and not to have a humanitarian intervention. See also Al-Naruimi and Meese (eds.) (1995), pp. 829–831.

1.5 Conclusion: Dialectics

19

1.5 Conclusion: Dialectics After the end of the Cold War, nations within some states have led to the creation of new independent states, and international organizations and international law increasingly penetrate (and sometimes even “violently intrude on”) the sovereignty of the traditional jurisdictional domain. They are both new phenomena of the international community during this period. While these phenomena have different impacts and influence on national sovereignty, they have not fundamentally shaken the sacred status of state sovereignty, which forms the basis of international relations is at the core of international law. The relationship between national independence, the division of the state, and the expansion of international organizations’ authority and the sovereignty of the state, is the relationship between phenomena and nature in international law. On the one hand, we should see the “cornerstone” of sovereignty even if we are blinded by sudden events and numerous phenomena in a specific period, and on the other hand, we cannot ignore the “climate change” around the “cornerstone” and its influence. In today’s international condition with emerging confusion of the concept of sovereignty, the use of dialectics to understand some of the basic issues of sovereignty is particularly important. First of all, the definition and nature of sovereignty cannot be vague. Historically, international law documents, textbooks and jurisprudence have closely linked, and sometimes even paralleled, the concepts of sovereignty and state, sovereignty and independence, sovereignty and territorial integrity, and sovereignty as supreme power. As early as 1928, Judge Huber pointed out that sovereignty “means independence in inter-state relations. The independence of a part of the earth is the exercise of state function right in this part, which excludes any other state.”24 The recently published Oppenheimer International Law (Ninth Edition) defines sovereignty as the supreme authority of the state, which on an international plane means a legal authority not legally attached to by any other authority on earth.”25 This is by far the most updated authoritative expression of the concept of sovereignty to date. Therefore, sovereignty is state, and vice versa. To correctly understand the concept of sovereignty, the subject of international law, the right to self-determination, organizations’ authority, and other related concepts must be distinguished from each other. Although modern international law recognizes international organizations and nationalities struggling for independence as subjects of international law; those entities or groups do not enjoy sovereignty. Because of this, their subjects’ qualification of international law cannot be considered in the same way as the sovereign state. Similarly, while international law affirms the right of peoples to self-determination with characteristics of religion, culture, geography, language and customs, such rights are by no means sovereign, and the realization of such rights depends to a large extent on the recognition and cooperation of sovereigns. Similarly, while a number of important international organizations enjoy a wide range of powers, and these powers occasionally collide with state sovereignty, and 24 United 25 See

Nations (1928), p. 838. also Jennings and Watts (eds.) (2008), p. 92.

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1 State Sovereignty in the Post-cold War Era

even some powers have clear supranational factors, they are, after all, the powers conferred by the state, not sovereignty. At most, they represent some of the specific rights contained within the concept of sovereignty. Therefore, it is not only theoretically incompetent to put forward the theory of outmoded sovereignty, sovereignty pluralism, or sovereignty dispersion, but also does not fit in accordance with the status quo of the international community. Instead, these theories are specific to the special phenomenon after the Cold War. Second, state sovereignty is sacred, but not absolute. The sanctity of state sovereignty is determined by the basic structure of the domestic society and the international community. As vividly depicted by Mr. Liang Xi, the domestic society is a “pagoda-style” society in which the sovereignty of the state is manifested as the highest legislative, judicial, and administrative authority in the state. Without the supreme authority of these countries, the domestic society will fall into anarchy. Therefore, maintaining the sacred status of state sovereignty is the premise of domestic social stability and development. The international community is a multitude of “pagodas”. Since there is no uniform or highest legislative, administrative, and judicial authority in this planar society, it is even more necessary to uphold and maintain independent and equal state sovereignty and respect each other’s sovereignty. Only in this way can the international community have fewer wars and conflicts, more peace and security, less power and hostility, and more equality and cooperation. Our emphasis on the sanctity of state sovereignty does not mean pushing it to the extreme. Just as any person in a domestic society cannot have absolute rights and freedom, no state in the international community can enjoy absolute sovereignty. As an Indian international law scholar asserts, “real life gives the state absolutely no more independence than is given to individuals”.26 Moreover, just as the individual’s independence in society must be bound by law, the sovereign independence of states also must be within the international legal framework. The first principle of this framework is the equality of all sovereign countries, and that all should be bound by international law on equal footing. The fundamental reason why state sovereignty cannot be absolute is due to the interdependence of states within the international community. Modern technology and the rapid development and exchange of information make the world become smaller and smaller. In this small “global village”, a state’s survival and development also depend on the global sustainable development. In order to seek these two aspects of development, it is necessary in some areas appropriately restrict national sovereignty. Such restrictions must, however, be necessary for the common good of the world and be recognized as permissible under the principles of international law. Finally, the restraints on sovereignty are precisely the sovereign itself. In a complicated modern international society, there are indeed many factors that constrain national sovereignty or erode state sovereignty. Interestingly, the real “manipulator behind the scenes” that restricts sovereignty is the state itself. In this Article, the phenomena of restricting sovereignty are mostly out of state’s “self-assertion” or “willingness”. The collapse of the present state, for example, is, in effect, the result 26 Anand

(1987), pp. 86–87.

1.5 Conclusion: Dialectics

21

of the state’s efforts to establish self-determination of peoples as a principle of international law. If the state does not subjugate the self-determination of peoples into a binding legal norm, then the people concerned wanting to establish an independent state cannot derive the basis from international law. Even if they establish an independent state in an unauthorized way, its international legitimacy will remain doubtful. This is also the case with international organizations and international law. It is states that have created international organizations and given them the authority they need to carry out their purposes; it is states that constantly develop and perfect international law to bind themselves. On the other hand, once the state finds that its sovereignty is overly constrained, it will adjust the relevant constraints by exercising its sovereignty. It is generally accepted that the European Community is an international organization that limits states’ sovereignty most. However, a new principle—the principle of subsidiarity—was introduced by the Member States through the conclusion of the Treaty on the Union,27 with the aim of restraining the constant expanding power of the European Community. In conclusion, we cannot overstate state sovereignty crisis because of some special international phenomena after the Cold War. In fact, “state sovereignty has not changed”. As long as the world is still an “international” society, as long as the law adjusting this society is still an “international” law, sovereignty will always be linked with the state, and the master of sovereignty’s destiny will always be the state!

References Al-Naruimi N, Meese R (eds) (1995) International legal issues arising under the united nations decade of international law. Springer, Berlin Anand RR (1987) International law and the developing countries. Martinus Nijhoff Publishers, Leiden Bedjaoui M (ed) (1991) International law: achievement and prospects. Martinus Nijhoff Publishers, Leiden Frank TM (1995) Fairness in international law and institutions. Clarendon Press, Gloucestershire Human Rights Committee (1994) Annual report to the UN general assembly (U.N. Doc. A/39 /40) International Court of Justice (1971) Advisory opinions, legal consequences for states of the continued presence of South Africa in Namibia (South West Africa) notwithstanding security council resolution 276 (1970) International Court of Justice (1975) Advisory opinions, Western Sahara Jennings R, Watts A (eds) (2008) Oppenheim’s international law (ninth edn, Chinese version). Encyclopedia of China Publishing House, Beijing Kahn PW (1994) Remarks on “multiple tiers of sovereignty: the future of international governance.” Proc ASIL Ann Meet 88:53–55 Lee RS (1994) Remarks on “multiple tiers of sovereignty: the future of international governance.” Proc ASIL Ann Meet 88:52–53 Pomerance M (1982) Self-determination in law and practice. Martinus Nijhoff Publishers, Leiden Ratner SR (1994) Controlling the breakup of states: toward a united nations role. Proc ASIL Ann Meet 88:42–46 Simma B (ed) (1994) The UN charter: a commentary. Oxford University Press, London 27 Treaty

Establishing the European Union, Preamble, Articles A (2), B (2) and 3b (2).

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Szsasz PC (1994) The fragmentation of yugoslavia. Proc ASIL Ann Meet 88:33–39 Tomuschat C (ed) (1993) Modern law of self-determination. Martinus Mijhoff Publishers, Leiden United Nations (1928) Awards on Island of palmas case (Netherlands, USA). Rep Int Arbitr Awards 2:829–871 United Nations Economic and Social Council (1992) Report of the working group on indigenous populations on its 10th session (U.N. Doc. E/CN. 4/Sub. 2/1992/33) van Dijck P, Faber G (eds) (1996) Challenges to the new world trade organization. Kluwer Law International, Leiden

Chapter 2

Humanizing Tendency of Contemporary International Law

2.1 Introduction The “inter-state” nature of international law has never been doubted, though it has been described differently as “the law of coexistence”, “the law of cooperation” or more recently as “the law of co-progressiveness”.1 Politicians and academics always believe that states make, obey and implement international law primarily for the maintenance of their interests. However, while persisting in and emphasizing on its nature, the humanization of international law as a matter of fact could not be neglected. Human factors of international law might be traced back to modern ages, even back to old times or the middle age. But humanizing processes of international law started mainly after the World War II. Since the ending-up of “cold war”, the notion of humanizing globalization2 has been pointed out and hotly discussed with the ever-increasing impacts on human beings brought by economic globalization. It could be reasonably prospected that humanizing globalization will speed up the humanizing process of international law in the twenty-first century. However, so far there has been no uniform definition of humanizing international law in international legal academics. According to a recent impressive observation made by a well-known western international lawyer, humanization of international law mainly refers to the influences and changes resulted from the formation and development of international humanitarian law and human rights law.3 In the author’s opinion, the humanizing international law could be defined as the rationale, values, principles, rules, regulations and system of international law has been increasingly 1 See

Yee (2001).

2 See Lamy (2006); Martin (2002); Burack (2000); Kourula (1997); Okafor and Aginam (ed.) (2003). 3 See

Theodor Moeron (2006).

The Article was originally written by Prof. Zeng in English, and published in Frontiers of Law in China, 4(1), 2009, pp. 1–30. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_2

23

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stressed on the establishment, maintenance and realization of both individuals’ and humankind’ legal positions, rights or interests and obligations. At least, two basic features might be presumed from the definition above. Firstly, humanization shows not only the present state of international law, but also its dynamic evolution tendency. In other words, there have emerged a large number of international legal principles, rules and even operational mechanisms related to individuals’ and mankind’s rights or interests and obligations in one picture, and some new humanizing rationale, conception and values in international law are in the other picture. Secondly, judging from subjects and addressees of the humanization, it refers individuals and the whole mankind as well, the latter of which has so far, it seems to this author, not drawn proper attention from international lawyers in the context of humanizing international law. As for the former, they include both natural persons and legal persons as well. Therefore, this author will display humanizing international process in two layers. The first part will concentrate on the individual aspects of the humanizing international law, which will do mainly a macro-survey (micro-views might use occasionally) in selected fields such as humanitarian law, the law of human rights, extradition, international protection of intellectual property rights and public health, and core labor standards and trade liberalization. Then, the second part will turn to how the humanization has been taking place in those new areas of international law related to the whole mankind interests, such as international criminal law, outer space law, international environmental law and legal system of international seabed. In the final part, as conclusion, this author will try to figure out certain summary points on the key internal and external factors resulted in the humanization, and the far-reaching significances of humanization towards development of international law.

2.2 The Individuals-Oriented Development of International Law 2.2.1 International Humanitarian Law: The Earliest Manifestation of Humanization Humanitarian law is undoubtedly the origin of humanization of modern international law.4 In traditional international law, humanitarian law had long been part of the law of war and even described as its supplementary rules, and had not formed a relatively independent branch. Even many international lawyers take the view that the situation of humanitarian law is still the same as before, for it is closely linked to the law of war

4 As

for the humanization issues in international humanitarian law, please see the most recent impressing Article by Meron (2000).

2.2 The Individuals-Oriented Development of International Law

25

or of armed conflict.5 What is more, traditional humanitarian norms were enacted to restrain the means used in international wars, which had developed as so-called “The Hague Conventions System”, or “The Hague Humanitarian Law”, or simply “The Hague Law”. On the basis of “The Hague Law”, modern humanitarian law has gradually been extended to protect the “victims” of hostilities, that is, the wounded and sick in the field; the wounded and sick, and shipwrecked at sea; prisoners of war; civilians; and nonmilitary properties, which are generally called” the Geneva Conventions System”, or simply “the Geneva Law”. As this time, humanitarian law as a relatively separate branch from the law of wars seemed to take the shape. And from then on, its application has no longer been limited to international war, but expanded to international armed conflict and even to domestic war or armed conflict. As a result, the most constant circumstances in which the humanitarian law is applied nowadays are internal wars or internal armed conflicts the world-wide since international wars or armed conflicts have been happening much less and less than internal ones largely because of the prohibition of use or threat to use armed forces as a preemptory principle in modern international law. It is worthy of mentioning that humanitarian law as “the Geneva Conventions System” as its core has been continuing its extension in the direction of concluding treaties regulating specific matters. To name a few examples: the 1954 Hague Convention on Cultural Property, which is updated by the 1999s Hague Protocol on the same matter; the 1996 Amended Protocol II to the 1980 UN Convention on Certain Conventional Weapons, which prohibits or restricts the use on land of mines, boobytraps and other devices; the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines, etc. However, as Cassese observed, these treaties agreed upon after 1949 applicable to both external and internal armed conflicts, unlike the four Geneva Conventions of 1949, “have not turned into customary law, or in some instances, only some of their most fundamental provisions have ripened into general law, while the bulk of each treaty exclusively governs the conduct of the contracting parties”.6 Therefore, humanitarian law once had long been the only symbol of humanizing factor in traditional international law, and has been turning into one of the most outstanding branches of modern international law in its humanizing process. It is further worthy of observing that the increasing humanization of humanitarian law has been making itself “become less geared to military necessity and increasingly impregnated with human rights values”.7 Some international legal scholars even expect that the rules which ought to be complied with in armed conflicts have the tendency to be integrated into those of human rights.8 Such a new trend was emphasized recently by the ICTY, whose Appeal Chamber observed that “the impetuous development and propagation in the international community of human 5 It seems to this author that All present textbooks of international law both at home and abroad still

put the law of war or of armed conflict and humanitarian law together in one chapter. Cassese (2001), pp. 346–347. 7 Ibid, p. 330. 8 See Shearer (1994). 6 See

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rights doctrines … has brought about significant changes in international law, notably in the approach to problems besetting the world community”. Thus, “[a] Satesovereignty-oriented approach has been gradually supplanted by a human-beingoriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human being) has gained a firm foothold in the international community as well.”9 The reason for humanitarian law as the pioneer of humanizing international law lies in its own characteristics. Unlike other branches of international law, humanitarian law has direct binding force not only on states and their governments and armies, but also on battle fighters evolved in the wars or armed conflicts concern, although it is also formed and developed with treaties among and international customary rules recognized by states. And more importantly, those treaties setting up humanitarian rules, at least those core rules embodies therein, are legally binding on contracting parties as well as non-contracting parties involved in the related armed conflicts,10 the feature of which could not be shared by other treaties in general, with individual exceptions (such as the obligations upon non-Member States in the UN Charter).

2.2.2 International Law of Human Rights: The Most Systematic Representation of Humanization The rising and flourishing of legal protection of human rights has been one of the most important achievements as well as the broadest and systematic manifestation bearing on modern international law. Why has international law of human rights been developing so fast since the past over 60 years? The main reason was the deep and bitter lesson drawn from the World War II by international community, more directly by the victorious powers. In the World War II, the Nazi and Japanese fascists not only aggressed against the foreign states’ sovereignties and their territorial integrity both in Europe and in Asia, but also seriously violated human rights on large scale which had been unprecedented in history. As a result, during the ending period of the War and soon after, the Victors adopted a “two-pronged strategy”.11 On the one hand, they engaged in setting up international tribunals together with national courts concerned to bring justice and punish those war crimes who had committed inhuman conducts (which will be discussed further in the next part of this paper). On the other hand, they worked out to create a set of basic principle and mechanism on human rights in the UN Charter which is universally recognized as the turning point of international protection of human rights.

9 International

Criminal Tribunal for the Former Yugoslavia (1995); quoted from Cassese (2001), p. 330. 10 See the 1949 Geneva Convention, Common Provisions, Article 2. 11 See Cassese (2001), p. 351.

2.2 The Individuals-Oriented Development of International Law

27

Since then, the law of human rights, as the chief symbol of humanizing international law, has been speeding up its development and become a new branch in international legal regime. Its main achievements might be outlined as follows: (1) There has been a great success in the codification of international law on human rights and the “conventional system of human rights” has been well-established with various general and specialized treaties at both universal and regional levels12 ; (2) Numerous intergovernmental and non-governmental organizations on human rights have been set up and each has been paying its own roles in the protection of human rights at domestic, regional and universal level13 ; (3) The monitoring of compliance mechanisms have been enacted and gradually reinforced, although there exist sharp differences between the universal and the regional and between each level itself.14 An applauding new and more advanced consensus seems to have been reached on international protection of human rights in recent years, that is, combining respect for fundamental human rights and democracy with rule of law and good governance as the core value of international law. For instance, the heads of the UN Member States at the 2000 World Summit expressly declared that they “will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development”.15 They re-gathered at the 2005 World Summit and further “acknowledge that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being” and “recognize that development, peace and security and human rights are interlinked and mutually reinforcing”; “acknowledge that good governance and the rule of law at the national and international levels are essential for sustained economic growth, 12 As for general treaties of human rights at both levels, one has no reason not to mention the1966 UN Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights; the 1950 European Convention on Human Rights; the 1969 Inter-American Convention on Human Rights; the 1981 African Charter on Human and People’s Rights. As for specialized human rights treaties, there have been numerous, covering all specific matters in the field. 13 The most recent development in this aspect is that the UN General Assembly on 15 March 1996 adopted the Resolution (A/RES/60/251) which “Decides to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly”, available at: https://www.ohchr.org/english/bodies/hrcouncil/docs/A.RES.60. 251_En.pdf. On 30 June 2006, The Human Rights Council has concluded its first session, which began on 19 June, adopting eight resolutions, three decisions and two statements by the President. https://www. ohchr.org/english/bodies/hrcouncil. 14 Naturally monitoring mechanisms at regional level is more advanced than those at universal level. The principal mechanisms at universal level are of two kinds established by international treaties (particularly the two UN Covenants on Human Rights) and UN resolutions, which consist of three basic supervisory procedures: (1) examination of periodic reports by States; (2) inter-State complaints; (3) request of individuals or groups of individuals. The advanced mechanisms at the regional level are featured with their judicial bodies which are considered in general the best means of ensuring respect for human rights. The well-known regional judicial bodies are the European Court of Human Rights, the Inter-American Commission and the Inter-American Court of Human Rights. See generally Cassese (2001), pp. 363–368. 15 See United Nations General Assembly (2000), para. 24.

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sustainable development and the eradication of poverty and hunger”; recommit themselves “to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.”16 Most recently, the UN General Assembly at its 60th Session adopted two new resolutions concerning the specific matters on fundamental human rights and freedom: one is the Declaration on the Rights and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,17 the other is the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.18 Though the two resolutions do not formally have legal binding force, they still show the following two deepening trends in international protection of fundamental human rights and freedoms: (1) not only rights, but also responsibilities of non-States actors (individuals, groups and other social bodies) are increasingly specified and emphasized; (2) the victims’ right to remedy and reparation related to basic human rights violations is affirmed and even the basic standards for such a remedy is established. At regional level, the newly concluding Treaty for Establishing a Constitution for Europe has left deep impression on international community, especially for its provisions of human rights protection. It enacts the first time in the EU constitutional treaties the “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights” (Article I-2). Based on these values, the Constitution, in addition to scattered provisions related to human rights, in other parts, systematically provides the Charter of Fundamental Rights of the Union in its Part II with seven titles, up to fifty-three Articles. Such a lengthy and systematic provision of fundamental rights and freedoms could hardly be found out in constitutional treaties of other intergovernmental organizations. The broadening and deepening of international protection of human rights has been promoting humanizing evolutions to many other fields or aspects of international law, such as subjects of international law, international recognition, customary law, law of treaties, international monitoring of compliance for international law, enforcement of international law, international criminal justice and humanitarian law or law of war discussed above, etc.19 This author just selects two examples for further illustration as follows: First, the rules of human rights have become new factors in the theory and practice of new States or governments recognition, particularly in the post-Cold War era. For example, the UN Security Council in November 1965 adopted two resolutions 16 See

United Nations General Assembly (2005a), paras. 9, 11 and 119. Nations General Assembly (2005b). In fact, this resolution does not raise new issues, instead just reaffirmed the so-called “Declaration on Human Rights Defenders” adopted by the UN General Assembly Resolution 53/144 of 9 December 1998. 18 See United Nations General Assembly (2005c). 19 See Cassese (2001), p. 372. 17 United

2.2 The Individuals-Oriented Development of International Law

29

(Resolution 216 and Resolution 217) calling upon all States not to recognize Southern Rhodesia for its unilateral declaration of independence because of its violation of the majority rule (or the rule of people’s self-determination). The more recent example happened just following the break-up of the Soviet Union and radical changes in Eastern Europe. On 16 December 1991, the foreign ministers of the EC Member States adopted a Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Unionwhich set up especially the respect for “the rule of law, democracy and human rights” as one of the standards for the formal recognition. As for the recognition of those new States resulting from the collapse of the former Yugoslavia, the EC even established a special Arbitration Commission to evaluate and decide whether the proposed new States had met the necessary standards mention above.20 Therefore, respect for human rights, especially the fundamental human rights and freedoms, has been inserted as a new requirement into the recognition of new States and new governments. Second, the core rules of human rights law (those concerning the fundamental human rights and freedoms) have become integral parts of peremptory rules (jus cogens), thus reinforcing the effect of international law and extending its application. The most important contribution of the 1969 Vienna Convention on the Law of Treaties seemed to be its new concept of jus cogens, which affirmed the existence of hierarchy relationship among norms of international law, at least within norms of treaties. Though it is so far not clear what norms of international law belong to jus cogens and what norms do not, which is a matter of affirmation by international community as a whole,21 those core rules of human rights such as selfdetermination, and prohibition of genocide, racial discrimination, etc. have been undoubtedly affirmed as peremptory norms because of their absolute values and nature. As a result of the peremptory nature of human right rules, the applicant or defendant or sometimes even the third parties in concrete cases might request the court involved to declare null and void a treaty or its specific provision which is contrary to jus cogens. Recently the judicial practice of the ICTY even shows that “peremptory norms may produce legal effect at the domestic law level: they de-legitimize any legislative or administrative act authorizing the prohibited conduct”.22 The same tribunal in the same case further gave the ruling that the potential victims of conduct contrary to jus cogens who had locus standi before a competent judicial body (either international or national) could ask it to hold the national conduct internationally unlawful, or the victims could bring a civil suit for damage in a foreign court.23 20 See

Türk (1993). Also see Cassese (2001), pp. 50–51. practice, such an affirmation largely lies in the conducts of States by forming customary rules, concluding treaties and adopting resolutions under the name of international organizations. In addition, international judicial and arbitral bodies have been playing increasing role in this aspect with their judgments and decision. 22 See International Criminal Tribunal for the Former Yugoslavia (1998), paras. 154–157; Cassese (2001), p. 145. 23 Ibid, para. 155. 21 In

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According to Cassese’s investigation, the ICTY’s rulings above have been shared by governments or courts of certain States, such as Switzerland, Spain and Italy, etc.24

2.2.3 Extradition: New Humanizing Measurements In recent years, the affirmation of peremptory human right rules has been resulting in humanizing measurements in legislation, treaties and practices of extradition. First of all, there have been certain treaties explicitly providing the new principle that potential torture victims are not extraditable. For instance, Article 3(1) of the UN 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the UN Convention Against Torture)25 provides that “no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. And according to its Article 3(2), the human right records or image of a State are the key factors for the competent authority to determine whether there exist such grounds for non-extraditability. In December of 1990, the UN General Assembly adopted the Model Treaty on Extradition26 and its Article 3(b) and (f) affirm the following circumstances as part of grounds for the mandatory refusal: (1) “The requested States has substantial grounds for believing that the request for extradition has been made for the purpose prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin, political opinions, sex or status, or that that person’s position may be prejudiced for any of those reasons”; (2) The person whose extradition is requested has been would be subjected in the requesting State to torture, or cruel or inhuman degrading treatment or punishment or if that person has not received or would not receive the minimum guarantees in criminal proceedings”. The judgments made by some national and international courts or tribunals have further crystallized that non-refoulment of potential torture victims or persons with potential inhuman treatment or punishment is not only the rule in treaties, but also a broadly accepted customary rule,27 or the concrete implementation of prohibition of torture or inhuman or degrading treatment or punishment which has obtained the status of general principle in international law. Therefore, even if a specific extradition treaty does not contain the rule just mentioned above, or the requesting State is the Contracting Party of a treaty which contains the general principle of international

24 Cassese

(2001), p. 145.

25 It was adopted and opened for signature, ratification and accession by General Assembly resolution

39/46 of 10 December 1984 entered into force 26 June 1987, in accordance with Article 27 (1). 26 United Nations General Assembly (1990). 27 See International Criminal Tribunal for the Former Yugoslavia (1996), paras.455–474; International Criminal Tribunal for the Former Yugoslavia (1998), para. 257 and International Criminal Tribunal for the Former Yugoslavia (2001), paras. 483–497.

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law also just mentioned above, the requested State may still refuse the extradition request.28 Even further, the Institute of International Law once proposed the extension of grounds for refusal of extradition to the violation of fundamental human rights as a whole. In September 1983, the Institute adopted a resolution on “New Problems of Extradition which stated that “In cases where there is a well-founded fear of the violation of the fundamental human rights of an accused in the territory of the requesting State, extradition may be refuses, whosoever the individual whose extradition is requested and whatever the nature of the offence of which he is accused”.29 The UN 1990 Model Treaty on Extradition (Article 3(b)) discussed above seemed to be largely influenced by this resolution, if not the direct result of it. Another practical trend of humanizing extradition might not be neglected, e.g. non-extraditability of individuals facing death penalty. Though it is debatable among international lawyers whether this has been qualified as an established principle of international law, yet as matter of fact, non-extraditability of persons with potential death penalty is no longer only an ought-to-be rule, but also a positive rule of international law, at least in certain states and regions. For example, in the wellknown case Soreing v. UK, the European Court of Human Rights pointed out that if the UK extradited Soreing to the US at request of the latter, the former would violate its obligations under the European Convention on Human Rights, because the prohibition of death penalty in the Convention not only bound the UK as its Contracting Party, but also extended its jurisdiction to actions (e.g. implementation of death penalty) of the US as non-Contracting Party to it.30 In some States, such as Switzerland, Germany, Italy, the Netherlands, Ireland etc., which have abolished the death penalty, non-extraditability of criminals with potential death penalty is one of the mandatory ground for refusal. Even some other States which do not abolish the death penalty themselves have turned to do the same in practice of extradition, such as the US, Thailand, etc. The UN 1990 Model Treaty on Extradition mentioned above also in its Article (4) includes the non-extraditability of potential criminals with death penalty as one of those optional grounds for refusal. If principles of non-extradition of political criminals and criminals with the requested nationality are enacted mainly in consideration of respect for State sovereignty and national interests, the affirmation of principle of non-extradition of persons with potential death penalty seems to be aimed at linkage to protection of human rights. When those States set up and apply for this principle, they usually invoke as legal basis Conventions on Human Rights which contain the provision of

28 See

Swiss Supreme Court (1982), pp. 408–413. Quoted from Cassese (2001), pp. 144–147. Cassese (2001), Notes, Chap. 6, note 88, p. 429. 30 See European Court of Human Rights (1989); also in Martin and McCorquodale (eds.) (2003), p. 288. 29 See

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“no one shall be subjected to torture or to inhuman or degrading treatment or punishment” or the alike.31 What is more, the UN General Assembly in 1989 adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights which calls for all States to restrict or abolish death penalty.The Council of Europe has been even more active in this aspect. It firstly in 1983 adopted the Additional Protocol No.6 to European Convention on Human Rights requiring all Contracting Parties to abolish death penalty, then in 2002 adopted Additional Protocol No. 13 (entering into force in 2003) which inserted the general prohibition of death penalty in all circumstances. The Treaty Establishing a Constitution for Europe signed by all Member States of the European Union in 2004 (approval to be desired) definitely prohibits the death penalty in all circumstance (Article II-62). It could be therefore predicted that with the affirmation and acceptance of abolishing or prohibiting death penalty by increasing States and international organizations, the date for nonextradition of death penalty to become totally a positive or mandatory international principle seem to be not far away.

2.2.4 Protection of Intellectual Property Rights and Public Health: A Recent New Humanizing Tendency In the past decade or so, another new tendency of humanizing international law is concerning the connections of intellectual property rights with protection of human rights. With the speeding-up of globalization and increasing convenience of transnational transportation, the gravity of the public health problems has been afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.32 Therefore, it is a new challenge in the process of humanizing international law to effectively carry out international cooperation for controlling cross-border epidemics and preventing or overriding the public health crisis in the vast developing countries especially the least developed countries. There have been multiple factors resulting in crisis of public health, such war or armed conflict, poverty, bad governance, medical backward, lack of rule of law, etc. However, that people of the developing countries could not afford to buy the highly priced necessary pharmaceutical products has been one 31 See International Covenant on Civil and Political Rights, Article 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3; European Convention on Human Rights and Freedoms, Article 3; American Convention on Human Rights, Article 5. 32 A recent research on the public health situation in Sub-Saharan African shows that though SubSaharan African is home to a total of less than 10% of the global population, it is home to more than 70% of all cases of HIV/AIDS in the world. South Africa alone has an estimated population of some 5.3 million people living with HIV/AIDS. This figure equates to more people living with HIV/AIDS than can be found in North and Latin America, the Caribbean, Western and Central Europe as well as Oceania combined. Other epidemics such as malaria deaths that occur yearly on the globe, approximately 90% of them occur in Africa, with young children the most vulnerable sector of the population to disease. See Avafia (2005), p. 1.

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of the main reasons. And the increasingly high-priced pharmaceutical products are directly linked to the increasingly high protection of intellectual property rights. Before the Agreement on Trade-Related Intellectual Property Rights (the TRIPs Agreement) within the WTO, existing treaties then on intellectual property rights had rarely covered patent rights of pharmaceutical products and their manufacture. In such circumstances, developing countries might provide their people with cheap pharmaceutical products made domestically or imported abroad. Since the TRIPs Agreement extended its protection of intellectual property rights to all technical fields, prices of patented pharmaceutical products have kept going up. As result, an increasing number of epidemic diseased could hardly gained emergent medicines and died soon after in the vast developing countries because they are neither patent holders of such pharmaceutical products, nor capable of purchasing the patent to produce such products or the patented products from developed countries. With the continuous efforts made by the developing country Members, the Doha Ministerial Conference on 14 November 2001 adopted the Declaration on the TRIPs and Public Health (Doha Declaration on Public Health).33 WTO Members “agree that the TRIPs Agreement does not and should prevent Members from taking measures to protect public health”, and “affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect health and, in particular, to promote access to medicines for all”. Accordingly, WTO Members reaffirm in the declaration their right to use to the full “the provisions flexibility” in the TRIPs Agreement against certain patented rights to protect public health, the core of which is that “each Members has right to grant compulsory licenses and the freedom to determine the ground upon which such licenses are granted”. In order to implement the “provisions of flexibility” in the Doha Declaration on Public Health, the WTO General Council on 30 August 2003 adopted the decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health.34 The decision waives WTO Members’ obligations under Article 31(f) of the TRIPs Agreement which provides that production under compulsory licensing must be predominantly for the domestic market. The provision had effectively limited the ability of those developing WTO Members who cannot make pharmaceutical products at home from importing cheaper generics from countries where pharmaceuticals are patented. WTO Members further agreed in the Decision that the waiver would last until the Article is amended. On 6 December 2005, WTO Members adopted the decision on the Amendment on the TRIPs Agreement.35 The decision directly transforms the “waiver” decision on 30 August into a permanent amendment of the TRIPs Agreement. The far-reaching significance of this permanent amendment is that it lays down once and for all the legal changes that will make it easier for the vast WTO developing Members to import cheaper generics made under compulsory licensing if they are unable to manufacture the medicines themselves. And it might be even more important, just 33 World

Trade Organization (2001a). Trade Organization (2003). 35 World Trade Organization (2005b). 34 World

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as Director-General Pascal Lamy observed, that “the agreement to amend the TRIPs provisions confirms once again that members are determined to ensure the WTO’s trading system contributes to humanitarian and development goals.”36 It might be concluded shortly from the description above that the formation and development of international legal protection of intellectual property rights itself might represent a privacy-oriented or individuals-oriented humanizing phenomenon of international law on the one hand, the integration of protection of public health which is part of human rights into the international legal regime symbolizes a publicoriented or collectivity-oriented humanizing international law on the other hand. The evolution of the linkage between the TRIPs and public health in the WTO proves that when there is a conflict between intellectual property rights and public health, the latter seems to prevail over the former. It is thus presumed that when there exist conflicts between intellectual property rights as a representation of individual human right and public health as a representation of collective human right, collective or public human right seems to prevail over individual or private human right.

2.2.5 The Linkage Between Core Labor Standards and Trade Liberalization: A New Humanizing Challenge Since the last decade or so, there has been a new trend of humanizing international law in linking the core labor standards or “social clauses” to the multilateral trading system (or trade liberalization) which is still in a state of unresolved debate. Although currently core labor standards are not subject to WTO rules and disciplines, the initiation and supporting movement on the one hand and the opposing and preventing voices on the other have never been stopping. The proponents, mainly consisting of WTO Members in Europe and North American and their institutions or scholars, put forward the following arguments37 : (1) The inclusion of core labor standards in the WTO could strengthen public confidence in the multilateral trading system; (2) Bringing the matter to the WTO will provide incentives for WTO Members to improve conditions for workers around the world. In a word, the linkage of the two is a win–win creation both for promoting the fair-trade liberalization and protection of human rights. Some scholars even observe that the involvement of intellectual property rights in the WTO already opened the Pandora’s box and there is no reason not to include the labor rights or human rights in broader sense, if intellectual property rights is an appropriate subject matter for the WTO.38 In addition, some scholars in favor of the linkage have aimed at calling for the

36 Ibid. 37 See

https://www.wto.org/English/thewto_e/minist_e/min99_english/about_. in Stiglitz (2002).

38 Quoted

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constitutionalization of the WTO, thus beneficial for overcoming the its democratic defects.39 The opponents, largely composed of developing Members in the WTO and some scholars globally, consider that the inclusion of labor standards in the WTO represents a smokescreen for undermining the comparative advantage of lower-wage developing countries and creates another guise for protectionism in developed-country markets. They argue that better working conditions and improved labor rights could only realize through economic and trade growth. They further worry about that if the issue of core labor standards became enforceable under WTO rules, any sanctions imposed against countries with lower labor standards would merely perpetuate poverty and delay improvements in workplace standards.40 There is another anxiety in academics that once human rights issue is included in the WTO, it is probable that human right will be departed from the basis of human dignity and it will be regarded as instrumental means to realize various purposes of economic policies; as a result, individuals would become the objects instead of holders of human rights.41 Nevertheless, the existing WTO rules do contain certain provisions relating to “social clauses” or humanization, although there has not been an agreement on traderelated (core) labor standards or social clauses just like the TRIPs and the TRIMS Agreements. For instance, Article 20(5) of the GATT 1994 explicitly includes the “jail products” as one of the “general exceptions” permitting WTO Members to take safeguard measures which are contrary to the basic rules of the WTO, if other conditions provided in the Article are met with. Perhaps the original intention of the Article was just purely economy-oriented or trade-considered, that is, ensuring the principle of fair trade not to be jeopardized by the man-made low costs of jail products. But objectively the Article implies the protection of human rights for the specific group of individuals, thus producing practical humanizing effect. The first document of the WTO which directly and addressed the issue of core labor standards is the Singapore Ministerial Declaration. It stated that “we renew our commitment to the observance of internationally recognized core labor standards. The International Labor Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them we believe that economic growth and development fostered by increased trade and further trade liberalization contribute to the promotion of these standards. We reject the use of labor standards for protectionist purposes and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question. In this regard, we note that the WTO and ILO Secretariats will continue their existing collaboration.”

39 See

Alston (2002). This paper is a part of contributions to the Jean Monnet Working Paper No. 12/02, Symposium: Trade and Human Rights: An Exchange, The Jean Monnet Program, NYU School of Law. 40 See https://www.wto.org/English/thewto_e/minist_e/min99_english/about_. 41 Alston (2002).

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Since then, the WTO has not taken any further substantive actions on the matter beyond the collaboration between the WTO and ILO Secretariats in mutual participation of each other’s meetings and exchanges of documentation and information. On the contrast, the ILO has taken two significant steps in addressing the workers’ rights. The first is the 1998 Declaration on Fundamental principles and Rights at Work and its Follow-up, in which the ILO Member States endorsed some basic principles embodied in the core ILO Conventions. Then in 1999, ILO Member States also agreed to prohibit and eliminate the worst forms of child labor. They defined the worst forms of child labor as all forms of slavery, child prostitution and pornography, the use of children to traffic in drugs and work which is likely to harm the health, safety or morals of children.42 We may now sum up from the illustration above some basic understandings of the linkage between core labor standards and trade liberalization: firstly, the core labor standards contained in the core ILO Conventions are universally recognized “social clauses” by the WTO Members who commit themselves to respect for and make efforts to realize; secondly, ILO, instead of WTO, is the most appropriate authoritative institution to set up, implement and supervise those core labor standards; thirdly, WTO plays its active part to help the implementation of the core labor standards through its continuous promotion of world trade liberalization and economic development; finally, it must be avoided that some countries carry out trade protectionism under the guise of maintaining the core labor standards, thus setting up new man-made obstacles to the products from low-wage countries.

2.3 The Humankind-Oriented Development of International Law The new conception of “mankind-oriented international law” implicates that a set of principles, rules, regulations or mechanisms of international law have been set up and implemented neither mainly for the States’ interests, nor mainly for the benefits of individual persons, but mainly for maintaining the common interests of the mankind as whole or for promoting the well-being of whole mankind as its supreme purposes. Frankly, in some case, the human common interests are in conformity with the interests of States or of individuals. But in other circumstances, these three kinds of interests are quite different, sometimes even in conflicts. These differences and conflicts of interest are the very factors to develop necessarily the new conception of the mankind-oriented international law. It is not long for the emerging tendency of mankind-oriented international law, and even much shorter than the history of the individuals-oriented discussed above. But it has been developing fast in general. So far not only new mankind-oriented elements have been inserted into certain traditional sectors, such as international regime in the law of sea and expansion of universal jurisdiction in State jurisdictions, but also 42 World

Trade Organization (2001b).

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37

created a number of new mankind-oriented sectors or regimes, such as international criminal law or justice, outer space law, Antarctic law, environmental law, etc.

2.3.1 Expansion of State Universal Jurisdiction and Affirmation and Punishment of the Most Severe International Crimes Owing to the objective and subjective restrictions such as transportation, technology, social consciousness or civilization, etc., traditional international law with maintaining coexistence between States as its primary tasks had neglected protection of individuals, rights and interests, not to mention the rationale of mankind common interests. Though the principle of State universal jurisdiction began to be recognized in customary law and certain treaties, it had been addressed only to the punishment of piracy and later slave trade. However, in spite of the specificity of piracy in terms of individual States or individuals as its addressees, the fact that piracy was put into the State universal jurisdiction itself proves that it was defined and punished as a public offence or severe international crime to the mankind. In this sense, the universal jurisdiction recognized in traditional law had already contained the mankind-oriented factors. With development of modern science and technology and increasing convenience of transnational transportation, the harms brought by traditional forms of international crimes such as piracy to international community have become more and more serious on the one hand, and a number of newly emerged and even more severe transnational offences, such as hijacking of aircraft, drug trafficking, trafficking in women and children, certain acts of terrorism, etc., have become world—wide threats and dangers on the other hand. The gravest circumstances have been international crimes offended by particular persons with State powers or military forces, such genocide, war crimes, crimes against humanity, torture, aggression, etc. therefore, it is imperative for modern international law to affirm these new international crimes and incorporate them into State universal jurisdiction, as well as to set up special international military and criminal tribunals directly prosecuting and punishing those gravest international offences, as supplements to State universal jurisdiction. The first attempt to establish an international criminal justice could be traced back to the peace treaty signed by the victors with Germany at Versailles in 1919 after the World War I. The Article 227 of the peace treaty provided that the German Emperor (Wilheim II) should be responsible for “the supreme offence against international morality and the sanctity of treaties” and that special tribunal should be established to charge with trying the emperor. Although this provision was not put into enforcement because the Netherlands, where the emperor had taken refuge, refused to extradite him,43 its historical significances might not be ignored. First of all, it meant that from then on, not only the ordinary individuals, but also high 43 See

Cassese (2001), p. 266.

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officials with State, government and military powers, even the heads of States or governments of commanders-in-chief, could be charged with international crimes in international law. Secondly, though the war powers of a State had not been prohibited totally in international law at that time, its top political and military leaders might still be charged with international criminal responsibilities, if their State violated the related treaty and launched an aggressive war against other States. Thirdly, the individuals’ international criminal offences might be tries not only before domestic courts of justice through their universal jurisdiction, but also before international military or criminal tribunals which might be set up for special purposes. The possibilities presumed above were soon be realized after the World War II. The establishment and operation of the International Military Tribunals in Europe and Far East to try the major German and Japanese leaders accused of grave breaches of international law symbolized that from then on war crimes, crimes against humanity and crimes against peace have been affirmed as the most serious crimes in international law. Since then, to set up international military or criminal tribunals ad hoc to try those offenders who committed grave international crimes, regardless of their identities and positions, has been not only fully legitimated in international law, but also brought into practical enforcement. However, since the Nuremberg Tribunal and the Tokyo Tribunal were set up by the Allies to try defenders, they were called as a “victors’ justice”.44 Further efforts were made in the same routine soon after. In 1948, the UN General Assembly adopted the Genocide Convention. The main contributions of the Convention to international criminal justice or to humanizing international law include: (1) the first time defining genocide as a specific grave crime; (2) prohibiting genocide both in time of war and of peace; (3) treating genocide as both a crime involving the criminal responsibility of the perpetrator and (other participants) and of the State whose authorities engage or otherwise participate, in the commission of genocide; (4) perpetrator of or participants in genocide shall be tried before the courts of the State in whose territory the genocide has occurred, or before a future “international penal tribunal”.45 The avoidance of “victors’ justice” had not occurred until the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. Unlike their two precedents ( the Nuremberg and Tokyo Tribunals), the two ad hoc tribunals were set up by the UN Security Council pursuant to its powers envisaged in Chap. 7 of the UN Charter.46 The jurisdiction of the two ad hoc tribunals covered grave breaches of the Geneva conventions, violation of the laws and customs of war, genocide and crimes against humanity committed by individuals in the territories of the former Yugoslavia and Rwanda within the specific period of time. The birth of the ICTY and ICTR is the turning point in the realization of international criminal justice. It means that the grave international crimes subject to jurisdiction of ad hoc international tribunals are 44 See

ibid. Cassese (2003). 46 See United Nations Security Council (1993; 1994). 45 See

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no longer limited to those committed in wars or armed conflicts between States, but extended to those occurred in wars or armed conflicts with a State. However, the establishment of the two tribunals has also attracted much criticism. One of its major defects is that the jurisdiction of these ad hoc tribunals is limited to specific crimes committed by specific persons at specific time within specific places, not over crimes committed everywhere in the world, thus representing a kind of “selective justice”.47 It has been widely accepted that the best way to overcome the defects of both “victors’ justice” and “selective justice” is to set up a permanent international criminal court of justice. In fact, the UN General Assembly once empowered its International Law Commission (ILC) to start the possibility of establishing a permanent international criminal court, while it adopted the 1948 Genocide Convention. But the ILC’s work on the subject matter had not produced any substantive progress until the end of the 1980s with the end of the Cold War. After the constant efforts within the ILC in the 1990s, The Statute of International Criminal Court (ICC) was adopted at a Diplomatic Conference held in Rome from 15 to 17 July 1998, which through the reconciling process thereafter entered into force on 1 July 2002. ICC was then formally established and its first judges were elected in February 2003. According to its Statute, ICC shall have jurisdiction over “the most serious crimes of concern to the international community as a whole” (Preamble), namely, genocide, crimes against humanity, war crimes, and the crime of aggression (Article 5).48 Though there exist certain defects in this permanent criminal court of justice and its practical roles still lie in the sincere cooperation between the Contracting Parties of its Statute, its establishment itself signals a breaking-through in modern international law. It has not only filled up the gaps of international judicial bodies and their jurisdictions, but also proved the new fruit achievement in protecting the core human values in the international community, thus representing the higher purposes of the humankind-oriented international law.

2.3.2 The Human Common Interests of the Areas Beyond the Sovereign Jurisdictions of States In traditional law, areas beyond the State sovereign jurisdiction, or usually called “international areas”, had long been treated as areas without owners or terra nullius, which each State could proclaim as its own territories through “preoccupation” and “effective governance” or could freely engage in all kinds of activities. With the continuous progress of modern science and technology, the international areas have been discovered of great practical values, either processing rich natural resources, or being of vast usages for scientific researches. As a result, each State, for the sake of its own interests, has made its claims beneficial to its own advantages. Developed 47 See

Roberson (2000); also see Cassese (2001), p. 728. the jurisdiction of the ICC over the crime aggression has to wait for the adoption of a definition in accordance with Article 5(2) of the Statute. 48 However,

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countries have speeded up their research, exploitation and development with their absolute advantages in economic, military and scientific and technological fields, thus resulting in the increasing opposition of the vast developing countries. Therefore, to fix as soon as possible the legal statuses of those international areas such as international seabed, outer space and the Antarctica, etc., and establish respective international legal regimes have become emergent tasks confronted by international community since the 1960s. After the continuous efforts of nearly the half century by international community, most of the international areas have their legal status fixed through resolutions of international organizations and international treaties between States, some of which have even formed systematic legal regimes. Though their legal positions could be the same and some of their legal regimes could not be called completed or lack of operation, they have a basic commonness that the old concepts and principles of “land without owners”, “preoccupation” and “effective governance” in traditional law have gradually been abandoned and at the same time a number of new concepts and principles with “common heritage of mankind as its core have been enacted in modern international law. Such new concepts and principles under which relative legal systems have thus been formed present the aim that international areas must be used for the well-being of the mankind.

2.3.2.1

International Seabed as the Common Heritage of Mankind

There had not been the conception of international seabed in the traditional law of sea. Beginning at the early 1960s, developed countries intensively explore the rich natural resources embodied in international seabed, which caused the high concern from developing countries who strongly proposed the establishment of legal status of international seabed areas for the benefits of the whole mankind and not merely for the benefit of developing countries. Encouraged by the well-known “Malta’s Proposal” in 1967, the UN General Assembly adopted two resolutions related to this international area respectively in 1969 and 1970. The 1969 resolution declared that each State should not claim as its ownership the seabed and its natural resources beyond State sovereign jurisdictions before the birth of the new convention on the law of sea. The 1970 resolution further clarified the international area and its natural resources as the common heritage of the mankind. On the basis of these resolutions, the 1982 UN Convention on the Law of Sea in its Part XI systematically envisaged the legal positions of international seabed and its natural resources and their exploration and management system. The core in the Convention in this aspect might be two folds. First, it reaffirmed the principle of human common heritage of international seabed and its natural resources, and explicitly envisaged that no State could claim its sovereign rights over any part of the area and its natural resources and no State, natural persons or legal persons shall claim ownership over any part of the area. Second, it affirmed that natural resources of international seabed belong to the humankind and empowered the Management Bureau of International Seabed to conduct the management on behalf of the mankind.

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It should be frankly recognized that some developed countries had not attempted to accept Part XI of the UN Convention on the Law of Sea concerning the parallel development system of international seabed during its negotiation and conclusion, and thus become the main reason for them delaying the approval and taking into effect of the Convention. After repeated consultation, an Implementation Agreement on Part XI of the Convention was reached in 1994. Though the Agreement did some substantive revisions to the parallel development system as a result of the compromise between the developing and developed countries, still the common heritage of mankind ad the legal status of international seabed and natural resources has remained the same.

2.3.2.2

Outer Space and Its Natural Resources as Human Res Communis

Scientific and technical progress has been making activities and States and humankind not only down to the seabed, but also up to the outer space. Therefore, to establish the legal status and legal system of outer space beyond air space became another new emergent task of modern international law. Through a period of debates and negotiations, the UN has adopted a number of treaties and agreements relating to outer space, the moon and other celestial bodies since the 1960s, namely, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the “Outer Space Treaty”)49 ; the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement”)50 ; the Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”)51 ; the Convention on Registration of Objects Launched into Outer Space (the “Registration Convention”)52 ; the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the “Moon Agreement”).53 The five treaties listed above represent the main contents of the outer space law, including legal system of the moon and other celestial bodies. To sum up, this newly emerging 49 Adopted by the UN General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, 98 ratifications and 27 signatures (as of 1 January 2006). 50 Adopted by the UN General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968, 88 ratifications, 25 signatures, and 1 acceptance of rights and obligations (as of 1 January 2006). 51 Adopted by the UN General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972, 83 ratifications, 25 signatures, and 3 acceptances of rights and obligations (as of 1January 2006). 52 Adopted by the UN General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976, 46 ratifications, 4 signatures, and 2 acceptances of rights and obligations (as of 1 January 2006). 53 Adopted by the UN General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984, 12 ratifications and 4 signatures (as of 1 January 2006).

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branch of international law contains three fundamental principles as follows: (1) these international areas and their resources are human common heritage which shall not be appropriated by any State, international organizations, legal persons and natural persons; (2) these areas are open to the whole mankind and States, organizations, legal persons and natural persons all could freely and equitably enter into and carry on activities in the areas in accordance with international law; (3) all activities engaged in these areas must be aimed at promotion of the human well-being and solely for the peaceful purposes.

2.3.3 The Common Interests of the Humankind Embodied in International Environmental Law International environmental law is another fast-developing new branch and one of the symbolic areas of the mankind-oriented international law. The common interests of the mankind implicated in international environmental law as its main theme are decided with the basic factors as follows: Firstly, in objective analysis, the increasing environmental issues confronted by international community are challenges of States individually or commonly, as well as of the whole mankind. And it could be even concretely described as the challenges of the human existence and development. Progress of science and technology is a double-edged sword: on the one hand, it has been continuously creating new ways for human economic growth and social progress; on the other hand, it might bring about constantly negative environmental influences on the sustainable development of the mankind. It has also been proved that human wisdom could be used both to enrich the material and spiritual aspects of human life and to do harms to human living environment. The increasing threats to environment of the international community have been resulted mainly not from the natural movement itself, but mainly from the human activities. Secondly, subjectively international actors (states, organizations, legal persons and natural persons) and public have more and more universally recognized the globalization and commonness of environmental issues to the mankind. It has not been long for international community to understand the transnational characters and commonness of environmental issues to mankind. Before the1960s, States and other actors in international society could hardly realize the necessity of international law to protect human environment. There were at least three factors behind such a late understanding of the environmental issues. First, industrial development had not caused environmental pollution and harms in large scale. Second, though States did recognize the transnational nature of environmental issues to certain extent, they still persisted in coping with the issues with traditional approach in international arena, that is, regarding environmental issues as matters concerning relationship between States. They cared much for their maintenance of their own interests and concerned much with their own economic development and social progress, but did not care

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much for the management of spaces and resources in other States, not to mention the concern with global environmental quality and weather changes. Thirdly, the public had not been sensitive appropriately for potential dangers to environment caused by industrial and military progress.54 Situation has been changing a lot since the past over 40 years: the broadness and depth of understanding of the environmental threats to the whole globe and the whole mankind have been furthering continuously. Finally, international environmental law in the process of formation and development has been aimed at promoting the well-being of the humankind as its core values. It is the interaction between objective and subjective factors of the environmental issues mentioned above that makes international environmental law set up the human well-being as its supreme goal from the very beginning. For instance, legal principles, rules and regimes relating to the use, protection and improvement of environment and resources in those international areas (such as international seabed, outer space, the moon and other celestial bodies) are fully in conformity with the legal positions of these areas as “the common heritage of mankind”. Another example is the implications of the sustainable development which is the primary basic principle of international environmental law. The human well-being is the core value of the principle, which does not only refer to the present generation, but also the next generations to come. According to some scholars’ observation, the principle of sustainable development contains four layers of meaning as follows: (1) fairness between generations, that is, the balance of environmental necessity of both the present generation and next generations; (2) fairness within the generation, that is, environmental fairness for all people in the present generation, regardless of their nationalities, races, levels of genders economic development and cultural differences; (3) development and use of natural resources through sustainable approaches; (4) mutual conciliation between environmental protection and development in economic and other fields.55 Among the four basic implications mentioned above, the first two (fairness between generations and within the generation) is the primary and core of the sustainable development, while the last two is the expansion and guarantee of the first two elements.

2.4 Conclusion As a conclusion, this author would like to sum up and emphasize the following understandings of the humanizing international law from the survey above: First, among various external factors, war and science and technology are the two primary elements. It is the war or armed conflict that destroys or seriously harms the human life and property and thus urges makers of international law increasingly to take into consideration of the human values. It is the continuous discovery and creation of science and technology that brings constant wealth to this world on the 54 See 55 See

Cassese (2001), p. 375. Ying Song (2005).

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one hand and growing challenges to the human living environment and sustainable development on the other hand, thus making enactors of international law turn to more and more concern the latter. Judging from the internal factors (or international law itself), humanitarian law and law of human rights are the two “engines” of humanization-oriented trend of international law. It is humanitarian law that makes the start of humanizing process of international law. It is the fast development of human rights law that symbolizes humanization turning to be the main stream of international law. It has proved since the recent half a century or so that it is the continuous self-perfection of humanitarian law and human rights law, their mutual interactions and their putting-out effects on other areas of international law that have been promoting the growing humanization of international law as a whole. Second, humanizing tendency represents the advanced direction of international law. Though coexistence and cooperation between States to establish and maintain orders for peace and development are the permanent chief tasks of international law and what international law maintains are the individual or common interests of States through conciliation, the “individuals-oriented” and “mankind-oriented” rationale of international law has been taking the shape. Therefore, the tasks of modern international law no longer merely maintain the interests of States, but also include the interests of individuals and whole mankind. In some cases, these three sorts of interests are in conformity with each other. In other cases, they are different and even in conflict each other. However, it is not meant that the contradictions among the three types of interests could not be conciliated and the key lies in the value orientation decided by the international law makers in specific sectors or areas. Practice shows that the humanization value of modern international law has become the common desires of international community. Third, humanization of international law has greatly enriched the contents of international law. Firstly, humanization has directly produced a series of new branches of international law, among which international human rights law, international environmental law and international criminal law are the most persuasive examples. Secondly, humanization has promoted some classic sectors of international being updated to the era and continuously adapting themselves to new conceptions, principles, rules and mechanism, such as various new elements in the law of sea, space law, law of diplomatic protection, humanitarian law, law of extradition, etc. In addition, humanization has urged international community to seek for dynamic links and appropriate coordination among certain sectors or areas of international law, such as the interactions between security, development, human rights and rule of law, the balance between economic development and environmental protection, the conciliation between intellectual property rights and public health, the connections between trade liberalization and core labor standards, etc. As a result of these horizontal and vertical development of humanizing international law, while sectors, areas or matters that are solely subject to domestic jurisdictions of States have been increasingly decreasing, international law has been extending its scopes not only into various internal sectors of States, but also into all aspects of human life. In a word, humanizing international law symbolizes the end of absolute sovereignty and popularity of relative sovereignty both in theory and practice.

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Fourth, humanization has been impacting the classic principle of reciprocity which is the basis of rights and obligations in international law. Reciprocity is the primary manifestation of sovereign equality between States. As a result, Each State has a right or obligation in relation to one other State only. In the same domain, once a State has infringed the sovereignty of another State, only the victim has the right to claim reparation and no other State can interfere on the victim’s behalf or on behalf of the international community to claim cessation of the wrong or reparation.56 Though it remains to be the foundation for perfecting international law, there have been growing principles, norms and regimes of international law departing the principle of reciprocity and bearing the character of obligations erga onmes,57 or community obligations.58 The fundamental features of such new obligations could be summed up as follows: (1) they are obligations aiming at protecting the human fundamental values; (2) they are obligations towards all members of international community or the whole mankind (or all other contracting parties in the case of multilateral treaties); (3) they are obligations attended by a correlative rights that belong to any state or human being ( or each other contracting party; (4) this right may be exercised by any other State or any other contracting party, whether or not it has materially or morally injured by the violation; (5) the right is exercised on behalf of the whole international community (or the community of the contracting parties) to safeguard fundamental values of this community.59 through the survey of obligations erga omnes, it is not difficult to find out that these obligations are not only originated from the rationale and value if humanizing international law, but also largely reflected in those sectors of international law where the humanization is mostly intensified. Fifth, humanization does not mean the “inter-State” nature of international law has been changed. Though it may bring about substantive raising of international law, such as value-added contents, reinforcement and non-reciprocity or obligations erga omnes of community obligations, etc., humanization has mainly resulted in the evergrowing of principles, rules, regulations, regimes and mechanism in international law aiming at establishment an safeguard of human rights and interests either individually or collectively or as a whole. Humanization could never change the “inter-State” nature of international law, but rather realized through the “inter-State” agreements or recognition in the end. Humanizing international law could have never taken place without the affirmation by “inter-State” treaties or recognition or acceptance 56 See

Cassese (2001), p. 14. is generally accepted that the notion of obligations erga omnes originated from the judgment by International Court of Justice (ICJ) in Barcelona, see International Court of Justice (1970). In recent years, European Court of Human Rights and American Court of Human Rights have also confirmed the non-reciprocity in respect of compliance with human rights. There have been plenty of research on the obligations erga omnes by European and American scholars, among which the most systematic and recent monographs are the two as follows: de Hoogh (1996); Ragazzi (1977). In comparison, there has not been much specific study on the issue so far in China. Perhaps Prof. Xi Wang is the first Chinese Scholar who has lengthily touched the issue in his Doctoral Dissertation entitled “Issues on Human Environment and Modern International Law” (unpublished), 2000. 58 See Cassese (2001), pp. 15–17. 59 Ibid, p. 16. 57 It

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by States through customary rules. In a word, the humanizing value of international law, no matter how high it should be respected, could never turned to reality without the sincere cooperation between States.

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Türk D (1993) Recognition of states: a comment (Annex 3: opinions No. 4–10 of the arbitration commission of the international conference on Yugoslavia). Eur J Int Law 4(1):74–77 UN General Assembly (1990). Model treaty on extradition (U.N. Doc. A/RES/45/116) UN Security Council (1993) Resolution 827 (U.N. Doc. S/RES/827). https://www.icty.org/x/file/ Legal%20Library/Statute/statute_827_1993_en.pdf UN Security Council (1994). Resolution 955 (S/RES/955). https://undocs.org/S/RES/955(1994) UN General Assembly (2000) United nations millennium declaration (U.N. Doc. A/RES/55/2). https://daccessdds.un.org/doc/UNDOC/GEN/N00/559/51/PDF/N0055951.pdf?OpenElement UN General Assembly (2005a). 2005 World summit outcome (U.N. Doc. A/RES/60/1). https://dac cessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement UN General Assembly (2005b) Assistance to states for curbing illicit traffic in small arms and collecting them and The illicit trade in small arms and light weapons in all its aspects (U.N. Doc. A/60/161) UN General Assembly (2005c) Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (U.N. Doc. 60/147) World Trade Organization (2001a) Declaration on The Trips Agreement and Public Health (WT/MIN (01/DEC/2). https://www.wto.org/english/news_e/pres03_e/pr350_e.htm World Trade Organization (2001b) The dispute settlement system, Doha WTO ministerial 2001: briefing notes. https://www.wto.org/english/thewto_e/minist_e/min01_e/brief_e/briefl World Trade Organization (2003) Implementation of paragraph 6 of the doha declaration on the TRIPs agreement and Public Health (WT/L/540 and Corr. 1). https://www.wto.org/english/tra top_e/trips_e/implem_para6_e.htm World Trade Organization (2005a) 2005 Press releases (Press/426). https://www.wto.org/english/ news_e/pres05_e/pr426_e.htm World Trade Organization (2005b) Amendment of the TRIPs agreement (WT/L/641). https://doc sonline.wto.org/DDFDocuments/t/WT/L/641.doc Yee S (2001) Toward an international law of co-progressiveness. In: Yee S, Tieya W (eds) International law in post-cold war world—essays in memory of Li Haopei. Routledge, London, pp 19–39

Chapter 3

Harmonious World and Development of International Law

3.1 Introduction Since 2005, China’s leaders have on several occasions, proposed the peaceful development and construction of a harmonious society both domestically and abroad. In doing so, they have solemnly put forward the concept of a harmonious world. If we consider the conception of a harmonious society to be the new administrative measure for China in the coming era, then the conception of a harmonious world is an idea put forth by China to be implemented in the global environment. A harmonious society and world are the two foundations of China’s peaceful development strategy. The former reflects new policies for internal affairs, and the latter indicates new approaches to diplomacy. The two are indispensable, with contemporary international law playing a significant role. It is not only the legal basis that regulates international relations in a harmonious society, it also safeguards the interests of humanity to promote a harmonious world. The values, structures, implementation, and supervision of contemporary international law are directly related to speed and sustainability of constructing a successful harmonious world. This article will first explain how the aforementioned harmonious world calls for contemporary international law to establish and maintain a peaceful coexistence with the international community through political order. It will follow with a summary of the great achievements made by modern international law in this era, while revealing the major challenges faced by a collective security system. The author will then illustrate the economic and societal expectations necessary in the development of this harmonious world. While international law possesses the ability to institute new economic orders and modernize social affairs, the author acknowledges that the progress of a vast number of developing countries is still grim and it will be a long and arduous task before a harmonious world can be realized. The author further argues The Article was originally written by Prof. Zeng in Chinese, and published in Law Review, (2), 2008, pp. 10–17. It was then translated by Qiyao Wang, and proofread by Assoc. Prof. Yanxia Yao. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_3

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that three core factors—global democracy, the rule of law, and good governance— must be demonstrated to form a harmonious world, with international law playing a complementary role. The author will also elaborate an important prerequisite for the construction of a harmonious world: the establishment of an international legal system that respects the diversity of the world’s civilizations, especially the diversity of States, their codes of conduct, and their cultural manifestations. Finally, the author concludes that the construction of a harmonious world will require the peaceful development of an international law system itself. The potential fragmentation of international law is foreseeable due to conflicts between different institutions. If these conflicts are not properly resolved, the international legal order will inevitably lead to chaos, away from the path of the harmonious world.

3.2 International Political Order with Peaceful Coexistence: The First Insurance Pursued in a Harmonious World The international environment of peace and security is the social basis for a lasting and harmonious coexistence among States. Human history has proved that there could be no harmony between members of the international community without peace and security. History has repeatedly proved how world wars, continuous armed conflicts, and even the threat of violence is the biggest challenge to building a harmonious world. To this end, modern international law has not only limited States’ right to war and denied the use of war as a legitimate political tool, it has also prohibited the use of force or the threat of force, reaffirming that peaceful conduct is the only legal means of settling international disputes. Guided by these basic principles of international law, the United Nations was established as a core collective security system. With the continual expansion of international scenes and intricate global networks however, this collective security system designed more than 60 years ago has been unable to fully adapt. There has a gradual call across many nations for the reformation of the United Nations. Therefore, advancing the collective security system through international law is a prerequisite to establishing a desired harmonious world. Certainly, a reform of the United Nations and its security system is a vast and intricate undertaking, which involves a wide range of political, economic, social, and legal issues as well as time. Although there has been a great deal of reform proposals, they have not been adopted by the majority of the United Nations Member States or unanimously agreed upon by the five permanent members of the UN Security Council. A significant factor can be attributed to the lack of to a new concept of collective security, which is a prerequisite for amending the relevant provisions of the UN Charter. Another factor is the major differences in the reform model for the UN Security Council, which is the executive body of the collective security system. Specifically, the crux of the problem lies is the expansion and representation of permanent members. Regardless of the UN reform process, the key is to uphold the

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right path and guide the principles of reform. The aim is to strengthen the authority of the collective security system to effectively deal with crisis. As noted in the Report of the High-Level Panel on Threats, Challenges and Change (hereinafter referred to as the “High-Level Panel Report”), the overriding measure to effectively respond to the various international security challenges is “to ensure that distant challenges do not become imminent, and imminent challenges will not become destructive realities; this calls for the establishment of a framework for preventive action”, and “requires early and decisive collective action by national and international leaders”. When preventive measures do not avert war or armed conflict, or when long-term threats become imminent, the legitimate threat of force under Article 51 of the UN Charter or the use of force by the Security Council in Chap. 7 must be “properly understood and applied”. Thus, the “legitimacy” in the assurance of force as a mechanism of self-defense and coercion is crucial. To this end, the High-Level Panel Report sets out five criteria, namely, “the seriousness of the threat, the legitimate purpose, the last resort, the proportionate means and the trade-offs”.1 It is clear that only international law can be relied on to translate these standards into legally binding military codes of conduct for the decision-making and executive organs of States and collective security systems. In addition to the traditional security threats, there are a rising number of prominent non-traditional security threats, which constitutes as a serious challenge to a harmonious world. The Report of the High-Level Panel summed up the current and future decades of international security threats into six categories: (1) economic and social threats, including poverty, communicable diseases and environmental degradation; (2) inter-State conflicts; (3) internal conflicts, including civil wars, genocide and other mass atrocities; (4) nuclear, radio-logical weapons, and chemical and biological weapons; (5) terrorism; and (6) transnational organized crime.2 From the above list it can be seen that the vast majority are non-traditional security threats. As a result, the international community must promptly reach a consensus on non-traditional security threats and their response mechanisms so as to form a more comprehensive new security concept. In controlling nuclear non-proliferation, the first challenge that must be dealt with is a double or even multiple standard approach. Adherence to this practice has undoubtedly eroded the confidence of the international community in nonproliferation areas, particularly in the overwhelming majority of developing countries. Double or multiple standards are the most effective weapons to destroy international nonproliferation regions. It should therefore be removed to be judged by the nature of the particular case itself, rather than by the privilege granted by particular States.3 In other areas of non-traditional security, terrorism must be defined in international law, and an effective international legal monitoring mechanism should be established to solve new threats to internal security. These threats include internal armed conflicts, weapons of mass destruction,

1 High-level

Panel on Threats, Challenges and Change (2004), pp. 2–3. High-level Panel on Threats, Challenges and Change (2004), p. 2. 3 Zukang Sha (2006). 2 See

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poverty, environmental degradation, and transnational organized crime and disease transmission. Tolerance and dialogue are important prerequisite and means of peace and security. The UN Charter, as the core symbol of modern international law, clearly states in its preamble the determination of the international community to “practice tolerance and live together in peace with one another as good neighbors”. In 1993, the General Assembly proclaimed 1995 as the International Year for Tolerance on the basis of the proposal of the United Nations Educational, Scientific and Cultural Organization (UNESCO). On 16 November 1995, the UNESCO Member States also adopted the Declaration of Principles for Tolerance and the Plan of Action for the Year of Tolerance. In the following year, the General Assembly adopted the resolution 51/95, in which it decided that 16 November would be International Day for Tolerance. In 1998, the General Assembly decided again to adopt the resolution to proclaim the year 2001 as the United Nations Year of Dialogue Among Civilizations. The Heads of State and Government of the 60th anniversary celebration of the United Nations issued the 2005 World Summit Outcome pledging to “contribute to the advancement of human well-beings through freedom and progress in all parts of the world, and to encourage tolerance, respect, dialogue and cooperation among different cultures, civilizations, and peoples”. “Tolerance” and “dialogue” are solid foundations for building a harmonious world. Human history has repeatedly proven that conflicts and wars between States originate primarily from lack of appropriate restraint, tolerance, and dialogue by the parties concerned, and a lack of appeal by the international community to encourage and provide mechanisms for tolerance and dialogue. By international law, these two values should be based on respect for the sovereign equality of all States, to enhance the ability to coexist with others. As such, we can minimize the risk for armed conflicts and wars, bring about international cooperation, and work together to solve problems in economic, social, and cultural fields. Only then can we promote fundamental human rights and freedom, regardless of political ideology, race, sex, language, or religion.

3.3 Sustainable Economic and Social Development: The Hard Tasks Endowed with International Law in a Harmonious World Before the 1960s, the basic task of international law was to establish and maintain the principles, rules, and systems of peaceful coexistence for different types of States. In the recent years, economic and social progress has become a necessary concern for international law. The first signs in this direction can be traced back to documents between allied countries during World War II. For example, the Atlantic Charter of 1943 contained in its preamble and Article 55 the wording of economic progress and development. The UN Charter is also devoted to economic and social cooperation

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(Chaps 9 and 10). Later, the UN General Assembly adopted a number of well-known resolutions recognizing that “development is the only way to peace and justice”.4 Those resolutions include 2626 (XXV) of 1970 entitled “International Development Strategies for the Second United Nations Development Decade”, The Declaration on the Establishment of a New International Economic Order adopted by the Sixth Special Session of the General Assembly in 1974, the Program of Action for the Establishment of a New International Economic Order, and resolution 3281 (XXIX) of 1979, entitled “Charter of Economic Rights and Duties of States”. It can be said that from the 1970s onwards, economic and social development became a widely accepted international objective in politics, as well as a new mission for international law.5 The key to a sustainable and coordinated development of the global economy and society is the progress of developing countries. To this end, from the beginning of the 1960s, a number of international organizations had taken on a series of international legal initiatives. For example, the Trade and Development Conference was established within the United Nations system and made a resolution calling for developed countries to grant universal preferential treatment to trade in developing countries. The GATT specifically added the preferential provisions to promote trade and economic development in less developed countries. The Tokyo Round further developed the “enabling clause” for the development of the country’s trade. The Uruguay Round multilateral trade agreements provided special and differential treatment for developing country Members until it was established as the “Development Agenda” in the ongoing Doha Round. The International Monetary Fund and the World Bank Group provided preferential financial support, concessional lending, and special drawing rights to developing countries. The Millennium Development Goals, identified by the United Nations Millennium Summit, provided a series of action plans, follow-up measures, financial assistance, and capacity-building support to the weakest developing countries, by various organizations, developed countries, and several fast-growing large developing countries (e.g. China, India and Brazil). The $60 billion aid program fundraised for Africa at the recent G-8 Summit. However, the gap between the North and the South, which affect the harmonious world, has not only not narrowed but become increasingly large. As a result, a great number of developing countries have become marginalized in the process of globalization, and dozens of countries have become poorer. “Today, more than one billion people—one in every six—are living on less than a dollar a day. They face hunger, disease, and environmental hazards for years.”6 The causes of extreme poverty are complex, such as poor geographical conditions, poor governance, government corruption, neglect of marginalized groups, ethnic conflicts, internal wars, and so on. However, the old international economic order has yet to broken and the new international economic order has not been fully established, which is the root cause that cannot be ignored. Therefore, the construction of a harmonious world must be 4 See

United Nations General Assembly (1970), para. 6. (1982), p .13. 6 United Nations Secretary-General (2005), para. 26. 5 Flory

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focused on economic and social stability to establish a fair and reasonable international legal order. The core of promoting economic and social development of the legal order is to accelerate the development and role of international law. In addition, from the perspective of international law, the focus should be on strengthening the implementation of development-related issues and commitments in the various international regimes. At the present time, the eight Millennium Development Goals established in the United Nations Millennium Declaration should be strengthened and implemented: (1) the eradication of extreme poverty and hunger, (2) the achievement of universal primary education, (3) the promotion of gender equality and the empowerment of women, (4) the reduction of child mortality, (5) the improvement of maternal health, (6) the fight against HIV/AIDS, malaria and other diseases, (7) the promotion of environmental sustainability, and finally (8) the development of a global partnership. In the World Trade Organization, there is an urgent need to inject new vigor, particularly among developed country Members, to show greater sincerity to reverse the stalemate in the Doha Round, and to press for an early agreement on the development agenda in the multilateral trade negotiations. In addition to further intensifying and accelerating unilateral, bilateral, regional and multilateral assistance projects, international rules should be developed to prohibit and prevent the politicization of development assistance. In other words, development assistance should be purely economic and social in nature, free of political conditions. Creating a sustainable human environment is one of the key elements of international economic and social development. However, environmental degradation has resulted in ecological imbalances such as climate change. Currently, land desertification, deforestation, soil erosion, vegetation damage, marine pollution and air pollution, are human actions that not only threaten the quality of people’s life, but also negatively impact the well-being of future generations. As an emerging branch of international law, international environmental law is urgently needed. We must compile data and develop a transnational environmental damage liability system, improve international environmental standards, and strengthen the implementation and enforcement of international environmental treaties. It is worth emphasizing that in the field of environmental regulation, each country has to adhere by their own attainable standards of responsibility. As such, developed countries should shoulder greater responsibilities, and must not demand developing countries to assume responsibilities beyond their current level and capacity.

3.4 Global Democracy, Rule of Law, and Good Governance: The Higher Values Sought by International Law in Harmonious World Global democracy, the rule of law, and good governance are important means to achieving world harmony. Without these three core principles at the international

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and domestic levels, society would inevitably lay ruin to social unrest and injustice, economic recession, armed conflicts, and war. Democracy in the international community involves international relations, international politics and decision-making, creation of principles, rules, regulations and institutions of international law, and the operation of international institutions. A long-standing challenge of contemporary international law is that the principle of international law—the sovereign equality of States—is neither reflected or prioritized in international political, economic, and social affairs. Whether it is the UN Security Council, the World Bank, the International Monetary Fund, WTO or other international political, economic, trade, financial systems, only a small number of major powers have held influence; the majority of developing countries have had very limited voice. A gradual but overwhelming majority of developing countries have therefore called for changes in the international political and economic order. Such changes can only be carried out and guaranteed by international law. Specifically, it should reflect the broad representation and practical participation of the various political forces in today’s world by modifying the existing statutes of international organizations and conferences or by drafting new international procedural rules. Democracy in the international community also means the internal political democracy of the States that make up the international community. International law calls for democratic governance in all societies. This is because: “Democracy is a universal value, based on the freely expressed will of the people to determine their own political, economic, social and cultural systems, based on the full participation of the people in all aspects of their lives”.7 Some self-contained international law branches impose on States the obligation to govern with respect (such as WTO’s transparency requirements on trade rules by members, the two United Nations human rights conventions requiring States Parties to report regularly on their implementation, etc.) The United Nations also plans to establish a dedicated democracy fund to strengthen the capacity of the United Nations, at the request of Member States, to assist in its implementation of democratic principles and practices. However, the establishment and improvement of the democratic system is fundamentally domestic matters, and an important prerequisite for the construction of a domestic harmonious society. International law should not create uniform democratic standards or so-called minimum democratic standards, because, “although democracies have common characteristics, there is no single democratic model. Democracy is not exclusive to any country or region.”8 On the contrary, international law should prevent and explicitly prohibit a State from using the so-called minimum democratic standards to interfere in the internal affairs of other States. History and reality have fully proved that the harmony of the world can only be fundamentally guaranteed by allowing states to work towards the construction of their own national democratic structure, while in harmonious coexistence with different democratic political systems.

7 United 8 Ibid.

Nations General Assembly (2005), para. 135.

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The rule of law in the international community also encompasses both international and domestic dimensions. It must be clear that democracy is both the prerequisite and the constituent elements of the rule of law. At the global level, it is undoubtedly one of the missions of international law. It must be recognized that, although the rule of law in the modern international community has advanced considerably (Such as the formation of the basic principles of international law, the rise of international jus cogens, the emergence of the concept of all obligations, the rapid development of international human rights law, the evolution of individual international criminal liability system, WTO rules’ value, etc.), the overall standard has not been reached. A variety of international organizations generally lack the power of checks and balances to carefully review and monitor illegal activity, with perhaps the EU as the only exception. In 1990s for example, the UN Security Council passed the resolution to set up the ICTY and ICTR. However, its legitimacy had been doubted by some states, international law scholars, and lawyers for the fundamental reason that the United Nations lacked a corresponding judicial review system. It is clear that the rule of law in international organizations are in need to reform. Therefore, the harmonious world will inevitably call on all states at the international level to fully comply with and implement the rule of law. First, various international actors must strictly abide by the principles of the UN Charter and the existing norms of international law, establishing and maintaining cooperative relationships between them. Second, States should respond positively to the United Nations annual activities to promote universal participation in international treaties. The universal participation of States in multilateral treaties is a direct and effective way to promote global rule of law. However, there are still many states that do not uphold important conventions such as human rights, refugees, anti-terrorism, nonproliferation, sea laws, etc., and has even prevented the acceptance of certain Conventions.9 This has directly resulted gray areas in the law. Lastly, global organizations should learn from the experiences of EU governance and establish the appropriate judicial review mechanism to ensure the legitimacy of various resolutions and enhance the credibility of decision-making of international organizations. In order to build and maintain a harmonious world, we must also respect and enforce the rule of law at the national level. One of the root causes of non-traditional security threats (such as terrorism, internal ethnic conflicts, extreme poverty, environmental degradation, transnational disease transmission, and transnational crime) of the international community today is the lack of rule of law. In an era of massive globalization, the existence of the rule of law in a country is not only directly related to the development of the country and the people’s well-being, but also affects the harmonious development of the whole world and all mankind. Therefore, in recent years, the United Nations has made post-conflict peace-building a new initiative in the maintenance of international peace and security, in addition to the deployment of peace-keeping forces in some conflict areas and countries. Some international organizations, such as the European Union, have updated the rule of law as a new dimension of economic and social assistance to developing countries. Recently, a Rule 9 United

Nations Secretary-General (2005), para. 136.

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of Law Support Unit was proposed in the United Nations Secretariat to strengthen United Nations activities to promote the rule of law, including technical assistance and capacity-building for the rule of law.10 Good governance by the international community should be a necessity for democracy and the rule of law in the international community. The key to examining whether the level of governance in various countries and the governance of various international regimes is the effect of implementing democratic governance and the rule of law. Similar to democracy and the rule of law, the focus of international law should be on the good governance of international organizations and mechanisms. This is mainly the mission of each state’s domestic law, and international law should play its role of encouragement, support, and assistance.

3.5 Diversity of World Civilization: The Sustained Expectation of International Law in a Harmonious World On 23 April 2006, Chinese President Hu Jintao pointed out in his speech entitled “Promoting Middle East Peace and Building a Harmonious World” on Consultative Meeting of the Kingdom of Saudi Arabia, “To build a harmonious world, we must be committed to realizing the harmonious progress of different civilizations.” To this end, “countries should maintain the diversity of the world and the diversification of development models, adhere to peaceful dialogue and exchange, advocate open and inclusive concept of civilization, in order learn from each other in competition and comparison and achieve common development by seeking common ground.”11 It is clear that the “harmonious progress of different civilizations” advocated by China has profound connotation. The most fundamental element is the recognition of a diversity of political and social systems, development models, cultural traditions, and values in all countries. Only through this recognition can we begin to promote civilizations around the world through dialogue, exchange, and cooperation. International civilizations first and foremost, have the responsibility to recognize and respect the diversity of its subjects. As the fundamental subjects of international law, these States can be divided into multiple categories. From an ideological perspective, we may see capitalist and socialist countries; from an economic standpoint, market and non-market economy, planned economy, and transitional economy countries; from levels of industrial growth, developed, developing, or under-developed countries; from population sizes or territory, big, medium, small countries in various stages of crowding; and finally, from a geographically perspective, coastal, landlocked and archipelagic countries. Respect for the sovereignty of all countries and equal respect for their international legal representation make up the minimum requirements for building a harmonious 10 See 11 See

United Nations General Assembly (2005), para. 134. https://www.chnanews.com.cn/news/2006/2006-04-23/8/721435s.html.

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world. We believe that international cooperation necessary to meet global challenges must be built on this fundamental basis. Under international law, equality between countries involve impartial treatment of sovereign rulers, fair legal status, equal consideration for State’s individuality. The General Assembly, in its resolution 2625 (XXV), adopted in 1970, made it clear that “all States enjoy equal sovereign rights, enjoy equal rights and duties, and are equal members of the international community irrespective of economic, social, political or other nature.” For developing countries however, the inability to develop sovereignty often leads to an incomplete or inadequate sovereignty. While this emphasis on sovereign equality of nations is the basis for building a harmonious world, we further recognize the differences in various fields such as politics, economy, culture, science and technology, society and value orientation. Indeed, the growing number of principles, rules, regulations, and mechanisms in modern international law have been established and refined on the basis of this recognition. Among members of the international community, these differences include principles of differential treatment in international trade relations and the generalized system of preferences, special drawing rights in the national financial sector, and varying assistance to developing countries. Therefore, the “harmony and diversity” advocated by China to form a harmonious world is consistent with the diversified intentions of modern international law. Respect for the diversity of world civilizations requires the recognition of national differences, and thus calls for the transformation of international law values from that of formality, to one of substantive justice and equity. Modern international law and international institutions have developed and implemented a number of differential treatments on developing countries, especially the least developed countries. In economics and trade, this includes special initiatives such as debt relief, grants, and interest-free or low-interest loans. Fundamentally, these policies have been aimed to achieve a greater balance of international justice, and a fair sublimation for the small yet significant efforts made by developing countries. The final goal for respecting the diversity of world civilization involves understanding the harmonious progress made by civilizations with respect to individual cultures. Although on the whole, the international law is still far from reaching the principles and systems it strives to achieve, tangible results in promoting cultural diversity can be seen in recent years, particularly in the work of UNESCO. In its Constitution, UNESCO clearly stipulates “the establishment of necessary international agreements to facilitate the free flow of ideas through the use of words and images” and the protection and promotion of “rich cultural diversity” as objectives of the organization. To this end, the organization has adopted a series of international legal instruments in the four core areas of creative diversity: cultural and natural heritage, movable cultural property, intangible cultural heritage, and temporary creation. Examples include Convention on the Protection of the Cultural Property in the Event of Armed Conflict (1954) and the Protocols thereto (1954, 1999), Illicit Import, Export and Transfer (1970), Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), Convention on the Protection of the Underwater Cultural Heritage (2001), Universal Declaration on Cultural Diversity,

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Convention on the Protection of the Cultural Property, Convention on the Prohibition of Cultural Property, Convention for the Safeguarding of the Intangible Cultural Heritage (2003), and Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) (hereafter referred to as the “Convention on Cultural Diversity”). Among the aforementioned treaties, the Convention for the Safeguarding of the Intangible Cultural Heritage, the Convention for the Protection of the World Cultural and Natural Heritage, and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions constitute the three pillars of international law in the protection of the world’s cultural diversity. In particular, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions12 provides a more systematic definition of the nature of cultural diversity, with objectives, guiding principles, scope of protection, and rights and obligations of the States Parties that constitutes the current legal basis for protection. It must be emphasized that following the Universal Declaration on Cultural Diversity, the Convention reconfirms that the world’s cultural diversity is the “common heritage of mankind”, just after our international oceans, outer space, and biological diversity. The Convention primarily applies to the diversity of cultural expressions, namely its creation, production, distribution, or dissemination through activities, products, and services for enjoyment. Its main purpose is to affirm the sovereign right of States to adopt measures and policies for the protection and promotion of diverse cultural expressions within their territories13 ; promote the global liberalization of cultural trade; recognize the special attributes, values, and uses of cultural activities, products, and services, namely, “whether or not they have commercial value, or contribute to the production of cultural goods and services”; reinforce international cooperation and solidarity aimed at strengthening capacities for creation and dissemination of all countries and regions (especially developing countries) in both emerging and mature cultural industries. Considering the significance of the Convention for China to the construct a harmonious society, disseminate Chinese culture, enhance cultural capacity, and to build a harmonious world, the Chinese government formally ratified the Convention even before the Convention came into force.

12 The

convention was passed at General Assembly of UNESCO on 20 October 2005, voted with 148 pros, 4 abstention and 2 cons, namely USA and Israel, and the convention came into force on 18 March 2007. On 30 March 2007, Chinese government submitted the ratification to the Office of UNESCO. 13 The UN is firmly opposed to the adoption of the Convention, mainly because it may be used by the States parties to set up trade barriers, which the UN film and pop music and other cultural products constitute an obstacle to exports.

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3.6 Coordination of International Norms and Mechanisms: The Necessity of International Law in a Harmonious World Where there is no law, there are no opportunities to discuss social harmony. If the legal norms of a society are full of conflicts, it cannot maintain the harmony of the society, because sustainable laws are prerequisites for the harmonious development of society. This is true both in domestic and international community. Today the international community as a whole is peaceful, and international law has made great contribution. As previously stated, modern international law, after repealing the legitimacy of war, prohibited States from using force or threat of force in mutual relations (unless authorization by the UN Security Council for self-defense), and pushed for the settling of international disputes by peaceful means. To this end, the international community has also established a collective security mechanism through the United Nations. We cannot doubt or even deny the validity and role of international law in maintaining world peace in times of illegal international warfare, just as we cannot suspect or deny the effective role of criminal law in the construction of a harmonious society. Nowadays, the development of the international community is linked with the theme of peace. The positive impetus of international law cannot be neglected. Although slow development to date remains a worldwide problem and has not been effectively addressed, various Southern cooperation mechanisms based on international law have been devoted to the promotion of developing countries. They seek to address the challenges faced by developing countries and have achieved some results, although the progress is slow. However, we must acknowledge that the hidden dangers affecting world peace and development still exist, with new security threats becoming increasingly prominent and constant marginalization of developing countries with little evidence for improvement. These phenomena affecting the harmonious world are linked to the fragmentation of international law or to the status quo of the Balkanization. The fragmentation of international law is mainly manifested in: (1) the formation and development of various types of self-contained or sui generis legal systems in general international law, such as international environmental law, outer space law, polar law, international trade law, international development law, international finance law, international investment law, etc.; (2) the regionalization of norms of international law, i.e. the proliferation of different regional or sub-regional systems of international law, such as the European Union, American International Law, African International Law, Law of Free Trade Zone, Law of Single Customs, etc.; (3) the specialization of norms of international law, namely the parallel development of international legal mechanisms in different fields or sectors, the law of the sea, space law, international criminal law, etc.; (4) the coexistence of same sectors in different legal forms, such as different treaties for trade, investment, extradition, and mutual assistance of one country; (5) the diversification of international dispute settlement

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methods, procedures and mechanisms, such as the United Nations Dispute Settlement Mechanism, the United Nations Convention on the Law of the Sea Dispute Settlement Mechanism, the WTO Dispute Settlement Mechanism, the International Investment Settlement Mechanism, the International Dispute Settlement Mechanism in the Field of Human Rights, the Regional Dispute Settlement Mechanism; and (6) the increasingly narrow focus on individual rights and obligations, such as international human rights law, international humanitarian law, international criminal law, etc. International law scholars have argued that theoretically, the fragmentation of international law has both positive and negative effects on the rule of law in international relations. On the one hand, the fragmentation of international law seems to inspire States to adhere more strictly to international law, as they are more willing to abide by regional and specialized norms that better reflect the particular political situation of the country. On the other hand, the fragmentation of international law leads to friction and contradiction between different legal regimes.14 The fragmentation of international law is fundamentally determined by the structure of our international community, where only a parallel horizontal society exists. In this society, there can be no vertical or pagoda-like legislative, administrative, and judicial power structures. As such, the laws which maintain social order cannot be systematic. Therefore, fragmentation of international law is an objective and inevitable phenomenon predetermined by characteristics of the international community. However, the fragmentation of international law does not mean that the conflicts between norms, and norms between institutions, cannot be resolved. In other words, fragmentation of international law can be restored through the efforts of various international forces so as to lay an international legal foundation for the construction of a harmonious world. In fact, the legislators, executors, and international judicial authorities of international law have avoided a conflict between norms of international law wherever possible, or when such conflicts are unavoidable, have sought appropriate solutions. In recent years, the United Nations International Law Commission has studied the fragmentation of international law, and provided a systematic summary of the current international law, and its practice in solving the internal conflicts of international law, as to promote the coordinated development of future international law through practical guiding principles. The following points are of particular importance in the reports, recently adopted by the International Law Commission and submitted to the General Assembly15 . Firstly, the International Law Commission combed the existing principles and practices for resolving conflicts of norms in international law. These principles are: Lex specialis derogat generali (special law supersedes general law), self-contained law supersedes general international law, and Lex posterior derogat legi priori (later law supersedes earlier law). 14 See 15 See

Hafner (2004), p. 850–851. International Law Commission (2006).

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Secondly, the International Law Commission established a certain degree of hierarchy in the norms that existed in the system of international law and reaffirmed that a number of “superiors” could not be violated. When considering the nature of international law and its international social base, international law should establish a systematic hierarchical structure between its norms, as with domestic law. Although Article 38 of the Statute of the International Court of Justice lists the treaties, custom, and general principles of law as legal sources and judicial decisions applicable to the International Court of Justice, public jurists serves as an adjunct to the establishment of legal rules. There is no hierarchical distinction between these forms of origin or auxiliary sources. Nevertheless, the modern international community has recognized that some of the rules of international law are more important than others and thus enjoy a higher status in the system of international law. These rules are often referred to as “fundamental”, or “elementary considerations of humanity” or “intransgressible principles of international law”. They are: (1) jus cogens stipulated in the 1969 Vienna Convention on the Law of Treaties, which are accepted and recognized by the international community of States as a whole as norms from which no derogation is permitted; (2) Article 103 of the UN Charter, by virtue of which obligations under the Charter shall prevail over obligations under any other international agreement; (3) obligations erga omnes, that is, obligations that a State owes to international society as a whole are higher than those of other international legal obligations. Thirdly, the International Law Commission established the principle of promoting the harmonious development of international law. The Committee has made it clear in its summary at the beginning of its concluding report: When several norms are applied to a single question, they should, as far as possible, be interpreted as producing a separate set of consistent obligations, which is a generally accepted principle. At the end of the Committee’s concluding report, it was more specifically stressed that “conflicts between rules of international law should be settled in accordance with the principle of harmonization. In the event of a conflict between one of the higher-level norms referred to in this section and another norm of international law, the latter should be interpreted as far as possible in a manner consistent with the former. If this is not possible, the higher-level specification should take precedence.” It is true that the aforementioned achievements of the International Law Commission in promoting the harmonization of norms of international law are still in the preliminary stages. The Commission does not have insufficient means to resolve many of the specific conflicts in contemporary international law, especially considering limited legal scope of the Committee’s conclusions. It can be expected that normative conflicts within the system of international law will inevitably arise with the vertical and horizontal expansion of international in the twenty-first century. Therefore, the road towards a coordinated development of contemporary international law will be a long one.

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3.7 Conclusion The concept, connotation and spirit of “harmonious world” put forward by China are consistent with the principles of contemporary international law. Even foreign scholars believe that “traditionally, the primary purpose of international law is to establish a harmonious rather than equal system of international relations.”16 International relations, in the sense of international law, is to build and maintain harmonious legal relationships between countries, international organizations, individuals, and nature. The premise of this legal relationship is to ensure that the fundamental subject of international law, States—regardless of size and power, should be equal to peaceful coexistence. If the main crux of the construction of a harmonious world during Cold War period is the “East–West Relations, then the post-Cold War era is focused on correctly handling the “North–South relations”.17 Serious economic and social challenges confronting the South are not only global development issues, but also concerns regarding global security and human rights. To a large extent, a harmonious world depends on good governance, and the key to good governance is global democracy and the rule of law. The natural mission of international law account for these factors in contemporary countries. The construction of a harmonious world is not a unified world, but a world of peaceful differences where contemporary international law is committed to respect and promote the harmonious progress of diverse civilizations. As the foundation and key success to constructing a harmonious world, contemporary international law must also safeguard its own normative system and minimize negative impacts that can lead to the fragmentation of international law. In conclusion, a harmonious world calls for contemporary international law to pursue, preserve, and promote the core values and missions of security, development, human rights, democracy, the rule of law, good governance and cultural diversity shared by nations and mankind.

References Flory M (1982) Adapting international law to the development of the third world. J Afr Law 26(1):12–20 Hafner G (2004) Pros and cons ensuing from fragmentation of international law. Mich J Int Law 25(4):849–863 High-level Panel on Threats, Challenges and Change (2004) A more secure world: our shared responsibility (U.N. Doc. A/59/565) International Law Commission (2006) Fragment action of international law: difficulties arising from the diversification of expansion of international law. Yearbook of the International Law Commission, II (Part Two), pp 175–184 Mifsud-Bonnici A (1993) The aim of public international law. https://www.mifsudbonnici.com/lex net/articles/publicint.htm 16 Mifsud-Bonnici 17 Shaw

(1993). (2005), p.41.

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Sha Z (2006) Resolving the problem of nuclear proliferation by addressing both symptoms and the root causes. https://www.china-un.cn/eng/xwdt/t271739.htm Shaw MN (2005) International law (5th edn), photocopy. Peking University Press, Beijing UN General Assembly (1970) Declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the UN charter (U.N. Doc. A/RES/2626(XXV)) UN General Assembly (2005) 2005 World summit outcome (U.N. Doc. A/RES/60/1). https://dac cessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/N0548760.pdf?OpenElement UN Secretary-General (2005) In larger freedom: towards development, security and human rights for all (U.N. Doc. A/59/2005)

Chapter 4

Status and Application of Good Faith in International Law

4.1 Introduction “Good faith”, as a legal concept, term, principle or rule of social governance, is usually used interchangeably with “bona fides”.1 It is generally believed that the most direct origin of good faith is Roman law, although its concept can be traced back to the initial period of human society. The so-called “good faith” means that the subject of law or the actor of law keep its commitments in a way that is loyal to its goal and carry out works in a sincere and effective way to achieve the goal. Today, the principle of good faith plays a role in all legal systems in the world, whether it is the classic civil law of European continent or the common law of Anglo-American, or the later socialist law or the emerging market economy or transitional economy law. All the legal systems take good faith as the basic legal concept and principle. The reason behind the broad application of the principle of good faith is that it is applied not only to the private law represented by civil and commercial law, but also to the public law such as the Constitution and administrative law. The universality of the application of the principle of good faith lies in that it is not only the basis of domestic law and regional law, but also the core of public international law, private international law and international economic law. However, it is worth noting that although the principle of good faith has been widely discussed and disseminated in works, textbooks, or papers on international law by European and American scholars, there is little systematic elaboration in China’s international law academia. Even though there is a brief mention of the concept of “bona fides” in China’s international law textbooks, most of them are 1 Mitchell

(2006), p. 340.

The article was originally written by Prof. Zeng in Chinese, and published in Modern Law Science, 36(4), 2014, pp. 146–153. It is then translated by Dr. Jiao Zhang, with the assistance of Prof. Qiaofang Wu and her translation team. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_4

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discussed in the context of the Article 2 of the UN Charter on the performance of Charter obligations and Article 26 of the Vienna Convention on the Law of Treaties on the “pacta sunt servanda”, a rule of customary international law. Although some textbooks list the fulfil of international obligations in good faith as one of the basic principles of international law, the application of “good faith” is still limited to the implementation of treaties or the compliance of treaty obligations. It can be seen that Chinese scholars have an obvious narrowness in understanding the principle of good faith, lacking a systematic, comprehensive and in-depth understanding, and there is a certain distance from the mainstream international views and the actual status and role of the principle of good faith in the entire international law. To this end, the author calls on Chinese scholars to attach great importance to the study of the principle of good faith in international law and to scientifically and faithfully reflect and express the ideas, values, meanings, and significance of the principle of good faith in the discourse system of international law in China, so as to accurately reflect the essence of international law and keep consistence with the mainstream international law study in the world while maintaining Chinese characteristics in the teaching and studies of international law in China. This paper chooses the principle of good faith in international law as the subject of study, which has special practical significance for China today. In the current and future international background of interdependence between countries, continuous strengthening of mutual cooperation and expansion and deepening of globalization, China’s strategy and measures for promoting the construction of good faith shall be compatible with the principle of good faith in international law. Only in this way can China’s construction of good faith match the strategy of continuously improving China as a responsible big country. This is because the mutual good faith of sovereign states is of paramount importance in today’s complex international society. Good faith is the root of maintaining a normal international order and building a harmonious world, and is a guarantee of international stability. Judge Bedjiaoui, the former president of the International Court of Justice of the United Nations, once pointed out that good faith can make a country anticipate the behavior of its partners, and the state’s compliance with good faith takes into account the legitimate expectations of other countries.2 This paper will first discuss the status and role of good faith in the entire international law system, combining with the standards or elements of the basic principles of international law recognized by the international law community, and thus put forward that good faith is not only a specific rule of international law, but also an integral part of the basic principles of international law, at the same time, which also functions as a complementary role of general legal principles. Treaty is one of the main sources and legal basis of international law and good faith is indispensable in treaty law. To this end, the next part of this paper will focus on the application of good faith in treaty negotiation, interpretation and implementation through the practice of

2 Bedjaoui

(2008).

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international judicial or tribunals. Finally, on the basis of the above-mentioned discussions, this paper will draw some general understandings on the position, function and significance of good faith in international law.

4.2 Status of Good Faith in International Legal System 4.2.1 Good Faith is a General Legal Principle Good faith, as a general legal principle, originated in domestic law, and its application has a long history and is very extensive. Some scholars believe that the concept of “bona fides” in Roman law is the most direct precursor of good faith.3 By about 1450, good faith had been widely applied in the civil law and the common law. It is worth noting that good faith is generally not applied as an independent specific rule, but is integrated into other specific similar or close rules, such as conscience, fairness, equity, and reasonableness. In modern and contemporary society, good faith has been clearly confirmed in almost all civil codes in the world as a general legal principle, and its essence is the “Arm’s-Length Principle”.4 Good faith is especially embodied in the contract law and its gist is that the conclusion and performance of the contract shall be based on bona fides or good faith. Although there is no general theory of good faith in the United Kingdom, the principle of equity contains the concept of good faith, which is confirmed in certain types of contracts, such as insurance contracts. In the United States, according to the Restatement 2nd of the Law of Contracts, “every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” In civil and commercial law academia of China, honesty and credibility is considered to be the core of civil law, and is even directly referred to as civil law, especially in the debt law as “prime directive” or “overlord rule”. Article 4 of the General Principles of Civil Law promulgated in 1986 provides: “in civil activities, the principles of voluntariness, fairness, making compensation for equal value, honesty and credibility shall be observed.” Another example is Article 6 of the Contract Law promulgated in 1999: “the parties concerned shall exercise their rights and fulfill their obligations in good faith”; Article 60 further stipulates: “the parties concerned shall observe the principle of good faith, and perform the obligations of notification, assistance, confidentiality, etc. according to the nature and purposes of the contract and trade practices.” Article 92 also stipulates: “after the rights and obligations under a contract are terminated, the parties thereto shall perform the obligations of notification, assistance, confidentiality, etc. pursuant to the principle of good faith and according to trade practices.”

3 O’Connor 4 Gontheier

(1991). (2000).

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Studies have demonstrated that the scope of application of good faith has exceeded the field of private law such as civil law and commercial law, and now good faith principle is commonly applied in the field of public law. For example, the application of the principle of good faith in administrative law has been largely recognized in administrative law academia. A typical example is the German administrative law. However, scholars still have different views on the theoretical basis of the application of good faith principle in administrative law, mainly including private law analogy, the theory of general legal thought, the theory of the essence of law, the theory of value of law and the theory of entrustment. In recent years, domestic scholars engaged in tax law studies have expressed their opinion that the principle of good faith can also be applied to tax law, which is a branch of public law. The principle of good faith in taxation requires that both taxpayers and tax authorities should perform their respective obligations honestly and credibly and should neither violate the other party’s legitimate expectations and trust, nor go back on his promise on the basis of the promise of error. The application of the principle of good faith is conducive to protecting the reliance interests of the parties (both taxpayers and tax authorities). In summary, the principle of good faith is a general legal principle shared by all major legal systems in the world. The fundamental reason why the principle of good faith constitutes a general legal principle, which can be applied to both domestic law and international law, is that good faith, like justice and fairness, reflects the nature, essence and basic value of law. The main function of the principle of good faith, as a general legal principle in international law, is to explain the rules of customary international law and treaty provisions, and to fill the gap in the absence of rules of international law. As pointed out by Liang Huixing, a domestic civil law expert, “generally speaking, the legal provisions are extremely abstract and shall be interpreted when applied to specific cases. When interpreting laws, we shall be governed by the principle of good faith and always maintain fairness and justice.”5 This brilliant assertion also applies to the situation of international law.

4.2.2 Good Faith is a Rule of Customary International Law As a rule of customary international law, good faith has a long history. Known as the originator of international law, Grotius clearly stated in his famous book “The Law of War and Peace”, “good faith should be preserved, not only for other reasons but also in order that the hope of peace may not be done away with.”6 For a long time, the legal profession has not reached a consensus on the definition of good faith, but the legal term has formed three different basic meanings in the practice of domestic law and international law: First, as a standard for interpreting law, i.e. the legal text, whether it is the contract in domestic law, or the treaty in international law, should be interpreted in good faith in accordance with its true spirit, rather than harshly; 5 Huixing 6 Grotius

Liang (1995). (1625).

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second, as a moral quality, that requires the behavior of the subject of domestic law or the subject of international law to be faithful, heartfelt and honest and keep his promise; third, it is a wrong and forgivable belief in certain situations, that is, the reason for the validity of a particular legal situation. The repeated reaffirmation of good faith in a series of documents of the United Nations should also be deemed as the recognition of good faith as a rule of customary international law. For example, the Resolution entitled “Permanent Sovereignty over Natural Resources” (UN General Assembly Resolution 1803) declares that “foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith”; The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (UN General Assembly Resolution 3281) in 1970 (commonly known as the Declaration on Principles of International Law) declares that “All States shall comply in good faith with their obligations under the generally recognized principles and rules of international law”; the Charter of Economic Rights and Duties of States (UN General Assembly Resolution 2625) in 1974 reiterates that “sincerely fulfilling international obligations” is one of the basic principles of “international economic relations”; the Manila Declaration on the Peaceful Settlement of International Disputes (UN General Assembly Resolution 37/1015) in 1982 requires “All States shall act in good faith and in conformity with the purposes and principles enshrined in the UN Charter”, etc. More and more treaties clearly stipulated the principle of good faith, which can collectively be regarded as a compilation of good faith as a customary international law. For example, Article 2(2) of the UN Charter provides that all members shall fulfill the obligations assumed by them in accordance with the present Charter “in good faith”; Article 105 of the United Nations Convention on the Law of the Sea in 1982 provides that the State decides to seize pirate ships, aircraft or property and other coercive actions on the high seas shall subject to the rights of third parties acting in good faith. Article 157 provides “All members of the Authority shall fulfil in good faith the obligations assumed by them in accordance with this Part in order to ensure to all of them the rights and benefits resulting from membership”. Article 300 states that “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” Articles 26(1) and 31 of the Vienna Convention on the Law of Treaties require that all treaty obligations shall be interpreted and performed in good faith. These provisions reflect the general practice of various countries and can be regarded as a declaration or confirmation of the principle of customary international law of good faith. Admittedly, not all international legal documents clearly provide the principle of good faith, and even more conventions do not make clear provisions on good faith. For example, in the field of international economic law or private international law, the term “good faith” is not provided in the Hague Conventions of 1955 on the applicable law of international sales of goods; the concept of “good faith” is not mentioned explicitly in the Convention on the Law Applicable to Agency of 1978 and the Convention on the Law Applicable to Contracts for the International

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Sale of Goods of 1986 and the Convention on International Bill of Exchange and International Promissory Note of the United Nations of 1988. However, this does not affect general recognition of international law community that the interpretation of the conventions and fulfillment of obligations under the conventions should comply with the customary international law rule of good faith.

4.2.3 Good Faith is the Basic Principle of International Law That the principle of good faith is one of the basic principles already established in various fields of international law, and even the most important basic principle, has been the general consensus of the international law academia.7 Without this basic principle, the entire international law would collapse. First of all, the reason why good faith constitutes the basic principles of international law is ultimately determined by the characteristics of international relations. The international community is basically a society of horizontal relations, although a certain degree of vertical power structure or supranational factor governance structure (such as the European Union) has been formed in specific regional society. In this parallel social structure, the country, as the main behavior subject, is in an equal relationship with each other without jurisdiction over each other. In order for a country’s independence and jurisdiction to be recognized and respected by other countries or the entire international community, in addition to equipping with its own four objective elements of the country (i.e. defined territory, settled residents, political organization and sovereignty), its political power shall attain domestic people’s trust, that is, it is legitimate and conforms to the people’s will. Internationally, the political power shall also attain trust from other countries or the international community, that is, international integrity. The establishment of international integrity is both unilateral and mutual: on the one hand, a country shall rely on its own legitimacy and a good international image or reputation to win trust from other countries; on the other hand, other countries sincerely recognize the legitimacy of the existence of the national entity and is willing to establish diplomatic relations and other normal relations with the country. Second, good faith is the foundation of international communications and cooperation. The famous German philosopher and jurist Kant once regarded “good faith” as one of the six prerequisites for permanent peace between nations.8 In contemporary diplomatic activities, “trust-building measures”, “increasing trust” and “building mutual trust” have become shared message of all nations in the world.9 In the contemporary international society, regardless of differences in politics, economy, and culture, sincere cooperation is not only an international law obligation of each

7 Veralley

(1983). (2005), pp. 9–11. 9 Rihua Wang (2011). 8 Kant

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country, but also indispensable and imperative in national governance and global governance. From the perspective of national governance, the interdependence between countries determines the inevitability and necessity of sincere cooperation between countries. Interdependence, as the fundamental feature of the modern and contemporary international relations system, refers to the influence and restriction of the interaction between different roles (especially countries) in the international community. The degree of such interaction and restriction depends on the “sensitivity” and “vulnerability” of the role to the external.10 Gerhard Mally defines interdependence as a complex transnational phenomenon, which includes a multi-level and multi-faceted interaction model between countries. “Multi-level” refers to the global, hemispheric, regional, and continent levels. “Multi-facet” refers to political, economic, environmental, technological, social and cultural aspects. Marley also pointed out that interdependence is a compromise concept, which is placed between isolationism and supranationalism. He also divided interdependence into four categories: security interdependence, ecological interdependence, economic interdependence, and political organization interdependence. The first two types of relationships involve the survival of humanity, and the latter two types focus on national welfare and political interaction.11 It is precisely because of the multi-level and multi-faced interdependence between countries that the realization of the goal of a country’s own political stability, security, economic prosperity, social development, and ecological environmental protection as well as the development of activities cannot solely rely on a country itself. Instead, we shall establish a partnership of sincere cooperation with other countries to achieve a win–win or all-win situation in national governance. From the perspective of global governance, sincere cooperation among various international actors is the basic way to deal with various global challenges. Generally speaking, globalization in the modern sense mainly refers to (but not limited to) the globalization of economic activities, which rose in the 1980s. Globalization has always been divided into three basic factions in theory: support, opposition and compromise, there is never a consensus towards globalization, and objection or even confrontation are existing in practice. However, the two basic phenomena presented in the international community are indisputable facts: First, the increasing expansion and deepening of globalization has become an irreversible trend. Second, many “globalization problems” faced by all countries, such as peace, security, development, energy, population, environment, food, disarmament, development, human rights, the rule of law and so on, cannot be solved by the efforts of individual countries alone. All countries and other international actors shall establish effective global governance mechanisms based on the principle of good faith to deal with and solve all kinds of common problems faced by mankind.

10 Keohane 11 See

and Nye (1988). https://baike.baidu.com/view/1346296.htm.

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Finally, good faith meets the constitutive requirements of international law. International law scholars are not completely consistent with the expression and understanding of the concept of basic principles of international law, although they generally agree that there are basic principles and specific rules in the international law system. For example, the famous British international jurist Brownlie used the concept of “general principles of international law”, which “refers to the rules of customary law, the general legal principles in Article 38(1)(3) (the Statute of the International Court of Justice—author’s note) or logical judgment based on the analogy of current international law and domestic law through judicial reasoning.”12 Another famous British international law jurist Kelsen refers to the basic principles of international law as “basic norms” of international law, which means “states to behave in accordance with existing practice.”13 The late well-known Italian international jurist and the first president of the International Criminal Tribunal for the former Yugoslavia, Cassese, adopted the expression “basic principles governing international relations”.14 The first compilation textbook of international law in the early 1980s in China systematically explained the basic principles of international law for the first time. Since then, various international law textbooks have uniformly used this concept without exception. As for which norms constitute the basic principles of international law in the international law system, enumerations are different in Chinese and foreign academia. Brownlie enumerated the principles of consent, reciprocity, national equality, the finality of ruling and settlement, the legal effect of the agreement, good faith, domestic jurisdiction and maritime freedom. The basic principles of international relations confirmed by Cassese are: national sovereign equality, sovereign immunity and other restrictions, non-interference in the internal and external affairs of other countries, prohibition of the threat of the use of force or use of force, peaceful settlement of disputes, respect for human rights and national self-determination. Schwarzenberg chose: sovereignty, recognition, consent, good faith, self-defense, international responsibility and maritime freedom. There was no systematic elaboration of the basic principles of international law in China’s international law academia before the early 1980s. Beginning in the early 1980s, the textbook of China’s international law represented by International Law edited by Mr. Wang Tieya confirmed the seven principles provided in Article 2 of the UN Charter, the “Five Principles of Peaceful Coexistence” jointly promoted by China, Myanmar and India and the ten principles established by the Bandung Conference in 1955 as the basic principles of international law.15 The “International Law” edited by Mr. Liang Xi in 1993, in addition to reaffirming the original principles of national sovereign equality, the prohibition of the use of force or the threat of the use of force, peaceful settlement of international disputes, non-interference in internal affairs, good faith performance of international obligations and national self-determination, listed “international cooperation” as the 12 Brownlie

(2003), p. 14. (1955), p. 203. 14 Cassese (2001), p. 86. 15 Tieya Wang (1981), pp. 48–83. 13 Schwarzenberger

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basic principle of international law for the first time.16 With the development of contemporary international law and the in-depth study of Chinese international law, in recent years, some scholars in China’s international law academia have clearly stated that “respect for fundamental human rights” should be listed as the basic principle of international law.17 Then, how to identify the basic principles of international law in the vast and complex rules of international law? In the “Lotus” case of 1927, the Permanent Court of International Justice defined the principles of international law as “effective principles among all independent states” and identified these principles as the principles of universal international law. In 1955, the standard advocated by Schwarzenberg in the “Basic Principles of International Law” lecture at the Hague Academy of International Law was that they constitute the “highest common denominator” of the relevant rules of international law. Each of the principles is derived from numerous individual cases or “abstraction and generalization” of apparently more limited applied legal rules. On this basis, Schwarzenberg also put forward three specific measurement standards for each basic principle of international law: (1) They shall have special significance for international law; (2) They shall stand out from other rules of international law with wide coverage, that is, “stand tall”; (3) They shall be indispensable to any known system of international law, or if they are neglected, there is a danger that the essential characteristics of modern international law will not be detected. Cassese emphasized that the basic principles of international law “make up the apex of the whole body of international legislation. They constitute a legal standard above all others and are regarded as the constitutional principles of the international community.” Chinese scholars of international law generally explain the main characteristics or constitutive requirements of the basic principles of international law as “recognized by the international community”, “universally binding”, “applicable to all fields of international law”, and “constituting the foundation of the international law system”. Therefore, in terms of the identification standards of basic principles of international law, the understanding of international law academia in China is generally consistent with the representative views of the West. Unfortunately, Chinese scholars still lack clear and sufficient understanding of the supremacy of the basic principles of international law in the entire international law system. The principle of good faith is fully conforming to the characteristics of the basic principles of international law when tested according to the concept, features and standards of the above-mentioned basic principles of international law. First of all, the principle of good faith possesses the abstract and general characteristics of the basic principles in the entire international law system, that is, its application and binding force are not limited to a specific department or field of international law, but cover all fields or departments of international law. Second, the principle of good faith occupies at the most basic and fundamental status in the entire international legal system. Without the foundation of good faith among countries, there cannot be the existence 16 Xi

Liang (1993), pp. 60–61. Zhang (2007).

17 Hua

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of rules and systems of international law; even if rules and systems of international law exist, the existing norms and systems of international law would be in vain when states or contracting parties do not sincerely observe or perform their obligations in good faith. Therefore, good faith is the inherent essence and basic requirement of international law. Finally, the principle of good faith has the supremacy of higherlevel law in the international law system, the legal effect of which takes precedence over other specific rules of international law, and all specific rules that violate it should be considered invalid. It should be pointed out that the supremacy of the principle of good faith does not contradict the jus cogens in international law: although many of the jus cogens in international law are specific rules, some of them are also basic principles of international law; even if some jus cogens are specific rules, they are also established, observed and implemented based on the principle of good faith.

4.3 Application of Good Faith in Negotiation, Interpretation and Implementation of Treaties In modern and contemporary international law, treaties are one of the most important sources of law. The establishment of rights and obligations between actors of international law is also manifested mainly in the form of treaties. Therefore, in the international law system, the law of treaties occupies the foundation and the core status, and the principle of good faith runs through a treaty, especially in the negotiation, interpretation and implementation of the treaty.

4.3.1 The Application of Good Faith in Treaty Negotiation The International Judiciary, represented by the International Court of Justice of the UN, has repeatedly emphasized the importance of good faith in treaty negotiations on different occasions. For example, the International Court of Justice declared in the “Nuclear Tests Case”: “One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith.”18 In the advisory opinion published in 1996 on the legality of the threat or use of nuclear weapons,19 the International Court of Justice stressed in its analysis of contracting the obligation to negotiate the destruction of nuclear weapons that these obligations are mainly based on Article 6 of the Treaty on the Non-Proliferation of Nuclear Weapons, which provides “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” 18 International 19 See

Court of Justice (1974), pp. 253 and 268. International Court of Justice (1996).

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The court thus concluded that the Article played a key role in the Treaty on the NonProliferation of Nuclear Weapons because it was a compromise between nuclearweapon and non-nuclear states, and it was this compromise that gave birth to the treaty. Therefore, the court held that the treaty imposes a dual obligation on all parties, not only to require them to negotiate in good faith on nuclear disarmament, but also to complete such negotiations in good faith.20 The International Court of Justice and some other international adjudicating bodies have expounded the following basic elements of good faith negotiations on different occasions: First, meaningful negotiations. Negotiations between contracting states shall be meaningful in nature. In the 1969 decision of the North Sea Continental Shelf, the International Court of Justice once stated: “the negotiating party not only to enter into negotiations but also to pursue them as far as possible with a view to concluding agreements.”21 That is to say, the negotiation shall be substantial. The parties to the negotiation shall be open, publicize their positions, and provide solutions, plans, or suggestions on the matters to be negotiated, instead of just expressing general, principled statements in a negotiation. While expressing their positions in good faith, each party treats the statements and opinions of other parties in good faith. Second, the willingness to reach a compromise. Any treaty, whether bilateral, regional or multilateral, is ultimately a product of compromise, and this compromise comes directly from the true will of the negotiating parties. Without the willingness to compromise, the negotiating parties are bound to adhere to their own views and stick to their own positions, and the result will inevitably lead to deadlocks or breaks in negotiations. When the negotiating parties have the willingness to compromise, it is possible for them to flexibly adjust their negotiating positions and make every effort to reach a mutually satisfactory result. Of course, the negotiating obligation of good faith does not require the negotiating party to accept an unreasonable agreement, but if a negotiating party “systematically refuses to consider the other party’s suggestions or interests”,22 it will inevitably violate the obligation of good faith negotiation. Good faith even requires the negotiating parties to “consent to suspend the full exercise of their rights during the negotiations”. Third, compliance with procedural requirements. The rules of procedure that are agreed or accepted by the negotiating parties, whether temporary or formal, shall be observed in good faith as soon as they are formulated. The negotiating party’s delay in the negotiation or agreement’s conclusion without justifiable reasons, causing the negotiation to break down, abnormal delay, or failure to comply with the agreed procedures, constitutes a breach of integrity. Fourth, striving to reach agreement. In international law, good faith, as a general concept, is an obligation for conduct, not an obligation for results.23 This requires the negotiating party, regardless of the final result, to place serious negotiation and making every effort to achieve the success of negotiation in the first priority. For 20 Weeramantry

(2013). Court of Justice (1969), p. 47. 22 Tribunal (1957). 23 Reuter (1975), pp. 717–718. 21 International

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example, the International Court of Justice ruled in the Gulf of Maine case that the parties to the dispute were obliged to sincerely negotiate to achieve positive results.24 Another example is the 1972 Arbitration Panel of the Agreement on German External Debts: “Good faith does not imply an obligation to reach agreement, but it implies serious efforts to this end.”25 However, it shall be noted that the obligation to good faith negotiation in different situations will be different. According to the joint research of the International Association of Lawyers against Nuclear Arms, the International Human Rights Clinic and Human Rights Course of the Harvard Law School, under the Nuclear Non-Proliferation Treaty System, the obligations of Article 6 of the Treaty on the Non-Proliferation of Nuclear Weapons refer to both conduct and results, which requires contracting parties to the treaty shall not only work hard to negotiate for the elimination of nuclear weapons, but also achieve practical results.

4.3.2 The Application of Good Faith in Treaty Interpretation An important prerequisite for a treaty concluded in good faith to be accurately enforced or implemented in practice is that the treaty must be interpreted in good faith. Therefore, as a compilation of customary international law, Article 31(1) of the Vienna Convention on the Law of Treaties expressly provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Some international law scholars believe that the interpretation of the provision that “the treaty should be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty” itself reflects the principle of “pacta sunt servanda”. As to the relationship between interpreting the treaty in good faith and implementing the treaty in good faith, Rosenne believes: whenever the expression of “good faith” is used, it is a pointer to the close connection between this obligation and its implementation, because the interpretation displayed does not proceed abstractly, but plays a necessary functional role in the implementation of obligations in the decision-making process of a party or a court or tribunal.26 In a nutshell, interpreting a treaty in good faith requires contracting parties or persons who have the power to interpret the treaty to determine the conduct required by a treaty in accordance with the body and purpose of the text of the treaty. At the same time, they shall also consider related events and agreements after the formulation of treaty.

24 International

Court of Justice (1984), p. 246. (1972). 26 Rosenne (1989), pp. 178–179. 25 Tribunal

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4.3.3 The Application of Good Faith in Treaty Implementation If any treaty is ultimately not implemented in good faith by the contracting parties, the treaty is just a written record of the agreement reached between the negotiating parties and serves no practical significance or value. It can be seen that the application of good faith in the treaty implementation is the key to the effectiveness of a treaty, and it is also the fundamental guarantee for achieving the purpose and objective of the treaty. As a result, Article 26 of the Vienna Convention on the Law of Treaties is titled with “pacta sunt servanda”, which expressly states that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”, and thus codified this principle of customary law. The constitutions of international organizations usually emphasize the importance of fulfilling the obligations under the constitutions in good faith. For example, Article 2(2) of the UN Charter requires that “All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.” The current Article 4(3) of the Treaty on European Union (consolidated version) has more systematic provisions on the implementation of treaty obligations in good faith: First of all, “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties”; Secondly, “The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union”; Finally, “The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardize the attainment of the Union’s objectives.” Article 16(4) of the Agreement Establishing the World Trade Organization provides that “Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.” Although there is no straightforward wording like “good faith”, there is no doubt that between-the-lines implies the good faith performance. Section 4.1 of the Article IV of the Agreement of International Monetary Fund, providing “Each member undertakes to collaborate with the Fund and other members to assure orderly exchange arrangements and to promote a stable system of exchange rates”, is regarded as the Fund’s “general obligation”, which also implies the “good faith” nature of this obligation. The International Court of Justice has once stated that “The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.”27 The decisions of the WTO Dispute Settlement Body in different cases conclude that WTO Members are expected to abide by their obligations in good faith. For example, in the European Communities—Trade Description of Sardines, the Appellate Body concluded that “We must assume that Members of the WTO 27 International

Court of Justice (1997).

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will abide by their treaty obligations in good faith, as required by the principle of pacta sunt servanda articulated in Article 26 of the Vienna Convention. And, always in dispute settlement, every Member of the WTO must assume the good faith of every other Member.”28 In drafting the Vienna Convention on the Law of Treaties, the Special Rapporteur made a more elaborate statement on the “principle of pacta sunt servanda” provided in Article 26: “The original meaning is that a treaty must be applied and observed in accordance with its language, as well as good faith. It is the obligation of the contracting parties to the treaty not only to abide by the language of the law, but also to prevent the possibility of inevitably affecting their ability to fulfil the treaty,”29 which means: “A state may violate its obligation to perform a treaty in good faith even if it does not violate the treaty itself (i.e. the language of the treaty). Under the example when the state ‘seeks to avoid or to divert the obligation which it has accepted, or to do indirectly what it is not permitted to do directly’, the situation aforementioned will arouse.”30

4.4 Conclusion In conclusion, the following general knowledge on “good faith” in international law can be drawn: First, as a basic legal concept, good faith is not unique to any particular group, entity, or society. Good faith is the common heritage of human legal culture or legal civilization. Together with fairness and justice, it constitutes the basic idea, core value and spiritual essence of law. Second, good faith is universal. Although good faith originated in domestic law and is mainly applied to the fields of civil law and commercial law, its scope of application has now been extended to the field of public law including administrative law, constitution, and tax law. What is more worthy of attention is that good faith is also widely applied to all fields of international law. Compared with the situation where good faith is generally valued in the domestic legal academia, the understanding of China’s international law academia probably lose sight on the status and role of good faith in the international legal system. Third, good faith occupies a dual status in the source system of international law. First of all, good faith constitutes the general legal principles shared by major legal systems even the legal systems of all countries in the world, and plays a complementary role in the application of international law; second, good faith constitutes an integral part of customary international law, and has a long history. In addition, good faith plays a fundamental and core role in treaties, which is one of the two basic sources of modern international law, especially in the negotiation, interpretation and implementation of treaties. 28 World

Trade Organization (2002). Law Commission (1964). 30 Goodwin-Gill (2004). 29 International

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Fourth, good faith in international law can be the specific rules of a certain legal department and it also has the fundamental characteristics of the basic principles of modern international law. In other words, good faith has the abstraction of the basic principles of international law, i.e. it is not unique to a particular department and branch of international law, but can be applied to all fields of international law, constituting the basis of the entire international law, and its legal effect has the supremacy of higher-level law.

References Bedjaoui M (2008) Good faith, international law, and elimination of nuclear weapons: the once and future contributions of the international court of justice. https://www.lcnp.org/disarmament/200 8May01eventBedjaoui.pdf Brownlie I (2003) Principles of public international law (trans: Zeng Lingliang, Yu Minyou, et al.). Beijing: Law Press China Cassese A (2001) International law. Oxford University Press, London Gontheier CD (2000) Liberty, equality, fraternity: the forgotten leg of the trilogy, or fraternity: the unspoken third pillar of democracy. McGill Law J 45(3):567–590 Goodwin-Gill GS (2004) State responsibility and the “good faith” obligation in international law. In: Fitzmaurice M, Sarooshi D (eds) Issues of state responsibility before international judicial institutions. Hart Publishing, Oxford, pp 7–93 Grotius H (1625) De jure belli ac pacis libri tres. Paris: Apud Nicalaum Buom International Court of Justice (1969) Judgement, North sea continental shelf cases. International Court of Justice (1996) Advisory opinions, legality of the threat or use of nuclear weapons International Court of Justice (1974) Judgement, Nuclear tests (Australia versus France) International Court of Justice (1984) Judgement, Delimitation of the maritime boundary in the Gulf of Maine Area (Canada/United States of America) International Court of Justice (1997) Case concerning the gabcikovo-nagymaros project (Hungary versus Slovakia) International Law Commission (1964) Report of the international law commission covering its 16th session. Yearb Int Law Comm 1:70–88 Kant I (2005) Perpetual peace (trans: He Zhaowu). Shanghai people’s press, Shanghai Keohane R, Nye J (1988) Power and interdependence in the information age. Foreign Affairs 77(5):81–94 Liang X (1993) International law. Wuhan University Press, Wuhan Liang H (1995) The interpretation of civil law. China University of Political Science and Law Press, Beijing Mitchell AD (2006) Good faith in WTO dispute settlement. Melbourne J Int Law 7(2):339–371 O’Connor JF (1991) Good faith in international law. Dartmouth Publishing Co., Ltd., London Reuter P (1975) De l’obilation de négocier. Mélanges Morelli, Paris Rosenne S (1989) Developments in the law of treaties 1945–1986. Cambridge University Press, London Schwarzenberger G (1955) The fundamental principles of international law. Hague Acad Collected Courses Online 87:191–383 Tribunal A (1957) Award, Lake Lanoux arbitration (France versus Spain). Rep Int Arbitral Awards 12:281–317

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Tribunal A (1972) Decision, case concerning claims arising out of decisions of the mixed GraecoGerman arbitral tribunal set up under article 304 in part x of the treaty of versailles. Int Arbitral Awards 19:27–64 Veralley M (1983) Good faith in public international law. Am J Int Law 77(1):130–134 Wang R (2011) Traditional inter-state trust thought and its enlightenment. World Econ Polit 3:100– 121 Wang T (1981) International law. Law Press China, Beijing Weeramantry CG (2013) Good faith negotiations leading to the total elimination of nuclear weapons: request for an advisory opinion from the international court of justice. https://www.un.org/disarm ament/education/docs/goodfaithnegs.pdf World Trade Organization (2002) Report of the appellate body: European communities—trade description of sardines (WT/DS231/AB/R) Zhang H (2007) Respect for human rights as a basic principle of international law and its influence on China’s peaceful development. Law Rev 2:65–71

Chapter 5

Characteristics of International Governance, Global Governance and International Law in Times

5.1 Conceptual Evolution of International Governance and Global Governance Studies on global governance, combining with economic globalization, become popular rapidly, especially in disciplines of political science, economics, management, international politics, and international relations. Many studies take the interdisciplinary research. Nevertheless, so far, there is no global consensus on the definition, origin, content, scope, and model of global governance. Compared to other disciplines, discussions on global governance in the international law community is relatively slow, and there have been few systematic and in-depth discussions. This article attempts to put forward the characteristics of the global governance and international law from the dual perspective of history and reality, and at the dual level of theory and practice. It elaborates the characteristics of global governance and international law in different times, and explores the high degree of consistency that they present in the same era. It should be noted that there is no disagreement on the origin of international law. Academics generally recognize the 1648 Treaty of Westphalia as the beginning of the contemporary international law. However, academics have different opinions towards the start of the global governance. A view that has been widely accepted is that global governance is derived from the concept of “governance” in economics, that is, an institutional arrangement proposed for the principal-agent relationship that arises from the separation of ownership and control rights in the modern enterprise system. The 1989 Annual Report of the World Bank first introduced the idea of “governance” from enterprise level to State level. While it was the action plan “Our Global Neighborhood” issued by the Commission on Global Governance jointly sponsored by Brandt, former German Prime Minister, and Karlsson, former Swedish The Article was originally written by Prof. Zeng in Chinese, and published in the Chinese Yearbook of International Law, 2013. It was then translated by Dr. Jiao Zhang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_5

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Prime Minister, that first systematically elaborate and use directly the concept of “global governance” as a policy tool for the management of international relations and the establishment of a new international order. Therefore, the general understanding is that the global governance, as a new concept, theory or system design for settling global issues emerged at the end of 1980s and the beginning of 1990s. In fact, as a concept or value orientation of international order, evidences show that in the historical development of international community, the concept of international governance, as the predecessor of the concept of global governance, originated from the international law in the sixteenth century. At that time, European countries such as Portugal and Spain waged wars frequently to expand and compete for overseas colonies. In order to restrict wars and create peaceful international relations, the Dutch jurist Grotius, the “father of international law”, proceeded from national law and put forward the view that both individuals and countries should be bound by moral law. Impacted by this revolutionary theory, a world view of international community has been gradually formed. This community is composed of sovereign States, accepting common rules that apply to all the States, which means they accept to be bound by rules of international governance.1 However, the principle that leads international relations or international order implemented by modern European colonial pioneers who believed in the “law of the jungle” is “State power”. Later, Kant, a German international jurist, argued that it is impossible to have an international law to restrict the powers of States without common jurisdiction. The only possible way is to create an international political order, the core of which is the concept of “surpassing the rights of nations” and the establishment of a “balanced power” international governance structure.2 Although “global governance” was not used directly at that time, the nature of the international order conceived by international lawyers is synonymous with global governance, or at least approximate to it. Therefore, if the concept or thought of global governance is placed in the long history of international order or international governance, its emergence should be synchronized with the formation of theories of modern international relations and international law. It has to be noted that scholars emphasizing on the concept of global governance generally distinguish it from the concept of international governance. They believe that international governance is the product of a non-cascading interwoven network of international organizations that regulate the behavior of States and other international actors in different areas of world politics.3 While global governance is a non-cascading network of international organizations and multinational organizations, the later regulate the behavior of not only governmental organizations and international system but also transnational system. In contrast to international governance, global governance is characterized by reducing the importance of States in the rule-making and compliance monitoring, and enhancing the role of non-State actors.4 1 See

https://www.ppl.nl/100years/grotius/. Accessed August 2003. Pagden (1999). 3 Ritterberger (2000), p. 198. 4 Brühl and Rittberger (2002). 2 See

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This intended distinguish does not have significance indeed. In its essence, global governance is a broad international governance, at most it is an extended international governance. The corresponding international law is also broad, including both public international law, international economic law and private international law, or simply called “transnational law”. Therefore, the author understands the concept of global governance as a new expression of the concept of international governance in the new era, and expounds the main features of the global governance and international law in different eras and their fitness under the broad framework of international governance.

5.2 International Governance and International Law in the Era of State Monopoly The period of state monopoly, or the period of the Westphalia system, began in 1648 with the “Treaty of Westphalia” and ended with the end of the World War I. This period of international governance and international law were highly accorded with each other in many aspects. First, from the 1648 “Treaty of Westphalia” establishing the sovereign States system until the mid-nineteenth century, the States was the only international actor, and the only actor of international governance. The international relations by its nature was inter-States relations, international affairs were inter-States affairs, and the law regulating international relations was inter-States law. International order established on these was by its nature inter-States order. Second, the principle of State sovereignty is the top principle of international law and international governance. State sovereignty has absoluteness and supremacy that cannot be derogated. States enjoy the highest ruling power and governance power within their respective territories, and there is no higher authority to bind the States from outside. Without its consent, the State is not bound by any external force. Without its consent, the State is not bound by any external force. Although States gradually dealt with international affairs through concluding treaties and customs formed commonly, these legally binding rules are few, and were limited to certain areas or affairs. Meanwhile, these limited number of rules were laid down and implemented by States themselves. State “self-serving” was the basic and the only way of observing international governance rules during this period. In sum, under the Westphalia system, internal governance power was centralized in the State, while international governance power was scattered among different countries. Third, through modern times, state sovereignty has been pushed to the extreme. War, military conquest, colonial ruling were the main policy tools of international governance, and the State can freely wage war. The war was not only a powerful policy tool for States to conquer territories, compete for maritime hegemony, and expand overseas territories, but it was also the main way to settle disputes between States. The war was usually ended in negotiating peace treaties, while the core contents of

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these peace treaties were usually to divide the spoils (divided spheres of influence), cede territory, and pay indemnities. The post-war international order established in this way was very fragile and would often be broken by new wars. Fourth, multilateral conferences and the principle of unanimity were main decisive platforms and methods of international governance during this period. The 1648 Westphalia Conference set a precedent for negotiating and settling international affairs through multilateral intergovernmental conferences. Since then, multilateral international conferences were held throughout the Westphalia period. The main feature of this “international conference governing mode” is that the host State is at the core, in charge of the initiation, convening, agenda, and the secretariat of the conference. The decision of such conference must obtain the consent of all participating countries, that is, the principle of unanimity. This decision-making method fully represents the equality of state sovereignty, while its disadvantage is equally obvious. In this way, a small number of countries or even some individual countries may block the willingness of the majority number of countries. The result is that it would be very difficult to reach an agreement, legally binding treaties, and therefore limit the actual effect of multilateral conference in dealing with international affairs. Fifth, modern international law and international governance rules were obviously exclusive in their application, and double standards were implemented. Modern international law was defined as the law applied to “Christian Civilized Countries”. International governance based on it was not truly global in terms of participating subjects and applicable scope, because other so-called non-Christian civilized countries, that is, countries in Asia, Africa, and Latin America, were excluded. They were affiliated countries or colonies of Western powers, and did not have or were not fully have international capacity for acting and rights. Even if the rules of international law are applied to these countries, they are selectively applied or with double standards.

5.3 International Governance and International Law in the Era of International Organizations The era of international organizations, in a broad sense, has continued from the beginning of the nineteenth century to the present, and presents a trend of further development. The Rhine Commission, established in 1804, set a precedent for the establishment of international institutions in specific areas to manage common affairs between States. By the mid of nineteenth century, with the development of science and technology as well as transportation, States gradually realized that it was not only necessary to formulate common rules to adjust their relations, but also necessary to establish permanent international institutions to monitor the implementation of these rules and to manage common international affairs, that is to deal with various transnational issues through organized international cooperation. Therefore, international administrative organizations (collectively referred to as international administrative

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union) have been established in the fields of post, telecommunication, meteorology, measurement and so on. International governance in these technical fields was thus added a new actor in addition to countries—international organization. With the emergence of these international administrative alliances, the history of international organizations and international governance has entered into a new stage, which is of epoch-making significance.5 Firstly, international administrative union was established in administrative area of technology outside political area. On the one hand, due to the high development of science and technology and the increasing international communication, more and more administrative activities have objectively broken through boundaries of States. On the other hand, bound by the territorial jurisdiction, States cannot rule on trans-boundary issues. Therefore, establishing international management mechanisms becomes objectively necessary. Secondly, fields that international administrative union focusing were the ones that less sensitive to sovereign States than political and military ones. Although these fields are also traditionally belonged to the jurisdiction and governance of State sovereignty, States are more easily to compromise and to transfer part of the power of jurisdiction and governance to relevant international organizations when they realize that national interests that can be gained from establishing permanent international cooperation mechanisms are larger than closed and self-governance. Thirdly, the “triple structure” established by the international administrative union, namely, the system of the Congress (composed of representatives of all Member States), the executive organ (composed of representative of some Member States), and the International Secretariat (composed of international civil servants), has been imitated by or provided basic model for the governance mechanisms of later international organizations, especially specialized international organizations. Fourthly, the international administrative union improved and developed the rules of procedures of traditional international conference governance mode. For example, international organizations are fully responsible for the initial, the agenda, the language, the service provider of the conference, which the host State was responsible for in the past. More importantly, the unanimity require d by the decisionmaking of the past international conferences is now in some cases replaced by quality majority, which greatly improve the efficiency of decision-making of international organizations. In the twentieth century, international governance has fully entered “the era of international organizations”. If including an increasing number of non-governmental organizations, there are tens of thousands of international organizations. The increasing organizational development of the international community is not only reflected in the increase of the number of international organizations, but also in the diversification of the types of international organizations and the comprehensive of their functions. Observing from the types of international organizations, there are global, regional, universal, specialized, intergovernmental, supranational, civil, etc.

5 See

Xi Liang (2001), p. 21.

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From the perspective of functions or range of activities of international organizations, “international organizations exist in many aspects of human life, up to outer space, down to the seabed and ocean bottom”.6 A series of new features of international governance and international law has appeared with the rapid development of international organizations. Firstly, it has changed the traditional mode that international governance and international law are exclusive to State monopoly. International organization has become a new type of international actor although sovereign States are still the basic actors of international governance and international law. Numbers of international organizations are thousands of times larger than States. More importantly, they change and strengthen the operation mode of international governance and international law. With regards to rules of conduct, although international organizations cannot totally replace the position of States, they have changed the traditional mode that these rules can only be relied on customs formed by States and treaties concluded by States. Some resolutions of international organizations are legally binding, some are “soft law” norms, and some are important approaches to clarify, identify and breed new international customs. In addition, even treaties between countries (or governments) are mostly negotiated and concluded based on the versions drafted by international organizations and through meetings hold by international organizations. With regards to the implementation of international rules, the emergence of international organizations has changed the past State “self-service” mode. International organizations not only enjoy certain executive power, but also establish administrative monitoring and even judicial supervision mechanism for the implementation. This greatly enhances the effectiveness and force of the international rules, overcomes the weakness of international governance with regards to international regulation to a certain extent, and makes it closer to the domestic governance of a country. Secondly, international organizations raise the value orientation of international governance and international law. Before “the era of international organization”, “national interests” and “peaceful coexistence” have been continuously the value orientation of international governance. The corresponding international law has been defined as “law between nations” or “law of peaceful coexistence”. International governance in the era of international organization is focusing more on the international cooperation, including cooperation between States, cooperation between States and international organizations and cooperation between international organizations. The rapid development of international organizations itself is a result of cooperation between States and a legal form of cooperation between States. Thus, international governance led by international organizations is a new governance mode of international cooperation. It has to be stressed that the value orientation of “international cooperation” is not aims at replacing or diminishing the value orientation of “national interests” and “peaceful coexistence” among States. The value orientation of “international cooperation” has a higher or deeper pursuit, that is to maintain common peace and security and common development, i.e. peace and development. Therefore, the League of 6 Xi

Liang (2001), p. 1.

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Nations established the international collective security system for the first time after the World War I, while the United Nations, learned from the failure of the League of Nations and established an improved and more powerful international collective security system after the World War II. The United Nations has also been regarded as the center of international cooperation to promote global economic and social development. The two themes of the “international cooperation”, peace and development, are running parallel and compatible, interconnected and cross as a base for each other. In the era of international organization, the mission of international law has quietly changed from the “negative image” of “law between nations” or “law of peaceful coexistence” in the past to a more “positive image” of “law of cooperation”. Thirdly, international organizations feed and strengthen the dual trend of international governance and international law: centralization and fragmentation. Although the emergence of international organizations does not mean that the “world government” has emerged, it is no doubt that the development of international organization greatly strengthen the centralization of international governance and international law. This centralization is reflected by the following three aspects. Centralization of Regulation There is no unified norm-making organ or mechanism in the international society. However, modern international organizations, no matter its type, enjoy competences to lay down rules of conducts. These competences may be explicitly or implied conferred by the Charter of the organization. Some resolutions of international organizations have legally binding force, such as the Resolution made by the UN Security Council according to Chap. 7 of the UN Charter. Some resolutions have political or moral impacts on international actors even if they are not legally binding. That’s the case of the most resolutions of international organizations. The integrated organization has the supranational factors may even enjoy legislative rights in areas falling into its competence, such as the European Union. More commonly, international organizations provide permanent platforms for the negotiation and conclusion of multilateral treaties in various areas. Nowadays, almost all multilateral treaties are negotiated within the framework of the United Nations and its specialized agencies or autonomous international organizations. Besides, some international organizations set up specialized international norm-codification committees to draft international treaty texts or model laws for the negotiation or the adoption by States, such as the UN International Law Commission, and the United Nations Commission on International Trade Law (UNCITRAL), etc. Many international conventions today come from these specialized committees. Centralization of Compliance and Implementation Mechanisms As stated previously, in the era of State monopoly, the compliance of international legal rules was completely relied on State “self-service”, without compulsory implementation or compliance supervision from the force of third-parties. This resulted in the fragmentation of the implementation of international law. The centralization of compliance and implementation of international rules brought by the international organization can be found in two aspects. On the one hand, international organizations set up specialized implementation institutions to implement the Charter of the organization and various resolutions. On the other hand, multilateral treaties that negotiated within the

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framework of the international organization set up corresponding implementing and compliance mechanisms, such as implementation monitoring mechanism of international human rights treaties, compliance mechanisms of international environmental agreements, monitoring mechanisms of treaty on the prohibition of weapons of mass destruction, enforcement mechanism of multilateral trade agreements, etc. Centralization of Dispute Settlement Mechanism In any era of international governance, it is evitable to have various disputes between international actors in their communication and cooperation. If these disputes are not resolved for a long time, they will lead to the escalation of conflicts and the chaos of the international order, and even lead to turbulence and war. Therefore, establishing appropriate and effective international dispute settlement resolutions, procedures or mechanisms are the important parts and missions of international governance and international law. However, in the long period of State monopoly, if disputes between States could not be settled through peaceful negotiation and conciliation, States would resort to unilateral compulsory ways such as retaliation, threat of force, means of war, etc. Therefore, the traditional methods of dispute settlement are very fragmented, reflecting the force of power, most of them resulting in the jungle law, and lacking of justice and fairness. Until 1899, the first Hague Peace Conference established Permanent Court of Arbitration. After 1913, a series of “Bryan Treaties”7 gradually established a permanent international investigation system. The League of Nations has established the first permanent Court of International Justice after the World War I, and the United Nations has established the Court of Justice after the World War II. Since then, various specialized international adjudicative institutions, arbitration institutions, regional adjudicative institutions and other permanent dispute settlement mechanisms have been established one after another, which greatly enhances the centralization, transparency, justice of the international dispute settlement, and strengthens the authority and credibility of international governance mechanisms. The trend corresponding to and with the centralization is the fragmentation of international governance and international law. The fragmentation can also be observed from the three aspects: regulation, implementation and dispute settlement. With regards to regulation, the conceptualization of international rules and systems is judged compared to the era of State monopoly, while it is by no means to say that the global society has achieved unified rules and systems in all areas. As a whole, rules and systems of international governance are not systematic, which are still fragmented and are categorized to different fields, such as collective security system, human rights protection system, multilateral trading system, environmental protection system, international monetary system, international intellectual property protection system, etc. Apart from the supremacy of the UN Charter, different systems are relatively independent and fragmented, and do not have strict hierarchy.

7 It

refers to a serious of peace treaties that signed between the US and other countries based on the recommendation of the then Secretary of State of the US Bryan. The international investigation committees have been established in these treaties for dispute settlement. These treaties are regarded as “Bryan Treaties”.

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With regards to the implementation, fragmentation is reflected by the situation that various international regulations have their own implementation mechanisms, and these mechanisms are separately operated and are disconnected from each other. Every international organization has its own implementation mechanism. As to the legality and legitimacy of actions of executive organs, international organizations generally lack the system of supervision and accountability, except organizations have supranational elements like the EU. There are some international organizations even establish a system of executive organs, composed of main executive organ and sub-organs. For example, the World Trade Organization (WTO) has a General Council, and then have Council for Trade in Goods, Council for Trade in Service, and Council for Trade-Related Aspects of Intellectual Property Rights. Under the WTO system, each multilateral trade agreement sets a corresponding Council for specifically implement certain agreement. However, this kind of concentration of implementation mechanisms is partially, rather than generally. With regards to the dispute settlement, fragmentation also exists. The establishment of dispute settlement mechanisms worldwide, permanent or ad hoc, specialized or generalized, tribunals or arbitration institutions or comprehensive dispute settlement mechanisms, increase the centralization of international dispute settlement. Nevertheless, there is no and impossible to have a unified adjudicative system, arbitration system or dispute settlement mechanism. Although these dispute settlement institutions follow some fundamental common principles in their practice, such as fair, justice, equal, credibility, proportionality, legitimate expectation, etc., their jurisdiction are different, specific rules applied are different, and procedure rules applied are also different. It seems that the two trends of international governance and international law— centralization and fragmentation are opposite and contradict to each other, and they may have contradictions in practices. For example, there are some conflicts between multilateral trade system and multilateral environmental system; there are also conflicts between state sovereignty, principle of non-interference, and human rights protection, principle of humanitarian intervention, etc. Thanks to the establishment of various dispute settlement mechanisms in the era of international organization, relevant conflicts can be settled through corresponding dispute settlement mechanisms. The centralization and fragmentation of international governance and international law are objective trends, and truly reflecting the basic features of international society. International society is a structure of “horizontal” and “parallel”. In this society, unlike the domestic one, there is no highest authority to formulate and implement social norms in a unified way, and there is no compulsory mechanism to ensure the compliance and implementation of these norms. There are many kinds of international organizations, each of which is responsible for formulating, implementing and supervising the rules and systems within its jurisdiction according to its own constitution, which will inevitably cause fragmentation of international ruling. On the other hand, the exercise of international regulatory power by international organizations has greatly overcome the disadvantages of extreme decentralization caused by the traditional international law and international governance that relied solely on national “self-serving” in the past. Thus, compared with the era of State

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monopoly, what international organizations bring to the international governance and international law is the relative fragmentation and centralization. Finally, international organizations have promoted the parallel development of multilateral, regional and group governance in international governance and international law. The multilateral system is always the first choice for international governance and international law in the era of international organizations. In international relations, multilateral system or multilateralism is a mechanism that at least allows several States to jointly manage international affairs or deal with global issues. In short, it is an “international governance by majority”, the core of which is the “objection to discriminatory unilateral arrangement”.8 The multilateralism was mainly initiated by developed countries except the super powers, and gradually supported by developing countries. At present, various inter-governmental organizations, such as the UN, WTO, International Monetary Fund (IMF), World Health Organization (WHO), are typical examples of multilateral system. Various Conventions, multilateral agreements and forums in areas of international peace and security, economy, trade, finance, human rights, environment, cultural, education, science and technology, etc. are the main legal forms of multilateral system. It can be said that international law emerged from the multilateral system is a kind of democratic international law; and international governance under multilateral system is a democratic international governance. Therefore, multilateral system should be the unswerving principle of international law and international governance. Regionalism is another outstanding feature of international law and international governance in the era of international organizations. While promoting the multilateralism, international law and international governance never preclude or deny the position and function of regionalism. Instead, regionalism is treated as an important supplement to multilateralism. For example, with regards to the maintenance of international peace and security, regional agencies and regional arrangements are stipulated under the UN Charter as constituent parts of pacific settlement of disputes. The UN often takes regional arrangements in actions of peace maintenance and peace building. In economic area, the UN Economic and Social Council has established regional economic committees on all continents. With regards to trade, GATT/WTO multilateral trade system has made regional trade agreements (including free trade area, customs union, trade preferential arrangement) as the biggest exceptions to the principle of Most-Favored-Nation (MFN) treatment, so as to confirm the legality of its existence and development. In addition, various regional organizations worldwide play an irreplaceable role in their respective regional governance. There is another special governance structure in the regional system, that is, the so-called “supranational” system. The “supranational” system is a governance of regional integration, the typical example of which is the European Union (EU). Its uniqueness is reflected in the following aspects: (1) main governing organs include the ones composed of representatives from Member States, the ones composed of

8 Miles

(2002), p. 681.

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purely EU representatives, the ones composed of representatives elected by European citizens, and the ones composed of individual members who are selected based on their personal qualifications; (2) a certain group of legislations have direct effect in Member States and enjoy supremacy; (3) parts of the competence are exclusive, parts of the competence are shared with Member States, and parts of the competence are complementary to competence of the Member States; (4) has a developed accountability system and a judicial review system; (5) cooperation has been established between the judicial bodies of the EU and of the Member States; (6) enjoy an extensive competence in external relations, part of which is exclusive, part of which is shared with Member States. Group system is another special governance in addition to multilateral system. It plays a special role in international affairs in specific areas or specific periods. For example, the two major military blocs (NATO and Warsaw) sought balance and security in the region and even the world through confrontation and anti-confrontation, containment and anti-containment. The Group of 77 formed at the United Nations Conference on Trade and Development, as a representative of vast developing countries, played a pioneering role in promoting the implementation of a general preferential system that developed countries provide for trade from developing countries. In the GATT/WTO, important decision-making and negotiation of multilateral trade agreements have always emerged from the bargaining among members of different groups. The Organization for Economic Cooperation and Development, the Group of 7 (now 8), the Group of 20, the BRICs (now BRICS), etc. have special influences in a wide range of areas including international peace and security, international investment protection, social responsibility of multinational corporations, global economic and trade development, financial security and stability, environmental protection, human rights protection.

5.4 Global Governance and International Law in the Post-Cold War Era After the Cold War, the global governance and international law, with the change of international structure and the deepening of globalization, entered into the “era of international community” or the “era of international civilian society”.9 In the new era, the global governance and international law has changed or is changing in many aspects, generally speaking, including the followings.

9 Charlotte

Ku (2001).

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5.4.1 International Regime Highlights the Value Orientation of the Interests of the Global Human Community The fundamental value of international relations in the twenty-first century as enshrined by the United Nations Millennium Declaration are: freedom, equality, solidarity, inclusiveness, respect to nature and common responsibility.10 The 2005 World Summit Outcome, again, reiterated these values, and especially emphasized the respect for human rights.11 These fundamental values are the basic value orientation of global governance. For the realization of these fundamental values, global governance and international law must face to the challenges of global issues in three fields, that is, the peace and security, development, human rights and the rule of law.12 It shall be pointed out that these fundamental values are not only enshrined in the UN documents in the twenty-first century, some of these values have already been absorbed in the UN Charter, or even earlier international legal documents. For example, equality, as a basic principle of inter-States relations, has already been established in the Treaty of Westphalia. However, promoting these basic values as a whole is undoubtedly a kind of synthesis and refinement that advances with the times. Similarly, challenges faced by the global governance in the three fields are not only emerged from globalization, they have accompanied the evolution of the international community and international relations. But, the expansion and deepening of the globalization makes these challenges more prominent than ever, especially in terms of the increase of their interconnectedness. Eradicating poverty and promoting economic and social development are the foundation and premise for realizing the fundamental values of the era of the international community. History and reality prove that poverty is not only a matter of human life or the low quality of life, but also directly related to the peace and security of a country, a region, and even the world. Therefore, the international community continuously works for implementing various plans, regulatory frameworks, and activities to eradicate poverty and promote economic and social development. In the twentyfirst century, the United Nations has paid more attention to development issues. At the Millennium Summit in 2000, leaders of all countries resolved to create a constructive environment for development and poverty eradication at the national and global levels, and specifically formulated the “Millennium Development Goals”.13 Leaders of the countries recognized that “Success in meeting these objectives depends, inter 10 United

Nations General Assembly (2000), para. 6. Nations General Assembly (2005), para. 4. 12 Ibid, para. 16. 13 There are 193 member countries of the UN and 23 international organizations that have committed to achieve these goals before 2015. Each goal is attached with specific targets, current status of development, and monitoring indexes. These goals are: (1) Eradicate extreme poverty and hunger; (2) Achieve universal primary education; (3) Promote Gender Equality and Empower Women; (4) Reduce child mortality; (5) Improve maternal health; (6) Combat HIV/AIDS, Malaria and other diseases; (7) Ensure environmental sustainability; (8) Global partnership for development. See website of the UN: https://www.un.org/Chinese/millenniumgoals/. Accessed 16 May 2013. 11 United

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alia, on good governance within each country. It also depends on good governance at the international level and on transparency in the financial, monetary and trading system”. They also committed to “an open, equitable, rule-based, predictable and non-discriminatory multilateral trading and financial system.”14 Moreover, international community should continue to provide non-reciprocal special measures and arrangements at bilateral, regional and multilateral levels to developing, especially the least developed countries, for the sake of their economic and social developments. These measures and arrangements may include general preferential schedules, differentiated and special treatments, common but different responsibilities, waive of debts, development aid, capacity-building, etc. International peace and security are the top missions of global governance and international law in the era of international community. In an interdependent global society, various cross border security threats are intertwined. It is worth particular noting that security threats in the twenty-first century are not only in the forms of traditional ones such as war and armed conflict, but also in various non-traditional security forms, such as terrorism, multinational crime, environmental degradation, infectious diseases, and even poverty. Thus, security challenge faced by global governance includes both national security and human security. The new concept of security pays particular attention to the protection of individual or human life and the promotion of well-being. To deal with various security threats, actors in global governance must cooperate and comprehensively govern at national, regional, and global levels, between public organs and individuals, and between individuals, in accordance with the UN Charter and international law. The human rights, rule of law and democracy are the themes of global governance and international law in the era of international community. Before the establishment of the UN, the human rights, rule of law and democracy were under the jurisdiction of domestic law, closely connected with constitutional construction of a country. The establishment of the UN marks that these fields have entered into the scope of international governance and international law. Before the end of the Cold War, the protection of human rights has been developed rapidly (even just in terms of treaties, countries have sighed more than 30 human rights treaties) at national, regional and global levels. The spirit of democracy and the rule of law has also been enshrined in the UN Charter. However, that the international community generally recognizes the universal values of human rights, the rule of law and democracy, and recognizes the three as a whole as the basic values of global governance and international, was reflected mainly in some important UN documents since the twenty-first century. Leaders of countries committed in the UN Millennium Declaration in 2000 to “spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development”.15 On this basis, the fourth part of the “World Summit Outcome” adopted by the UN General Assembly in 2005 further elaborated, more comprehensively and systematically, the mechanisms and principles of 14 United 15 United

Nations General Assembly (2000), para. 13. Nations General Assembly (2005), para. 2.

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the human rights, democracy and the rule of law. It explicitly pointed out that “peace and security, development and human rights are the pillars of the United National system and the foundations for collective security and well-being”; “development, peace and security and human rights are interlinked and mutually reinforcing”16 ; “good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger”17 ; “reaffirm the universality, indivisibility, interdependence and interrelatedness of all human rights”.18 States “recommit to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations,19 and “to promote universal respect for and the observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law”.20 The World Summit Outcome further recognized the “need for universal adherence to and implementation of the rule of law at both the national and international levels”, reaffirmed “commitment to the purposes and principles of the Charter and international law and to an international order based on the rule of law and international law”. Finally, the Document reaffirmed that “democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives”, and “while democracies share common features, there is no single model of democracy, that is does not belong to any country or region”. It also reaffirmed “the necessity of due respect for sovereignty and the right of self-determination”.21 In short, in the era of global community at present and in the future, the scope of national jurisdiction has gradually narrowed, and even the legality of governments (regimes) has been fallen into the scope of global governance and international regulatory framework. International law is no longer purely based on the will of States. Rather, it is and will be more concentrated in the realization of interests of the international community, i.e. the constitutionalization of international law. The realization of international public interests is exactly the significance that international law means to the regulation of global governance.22

16 United

Nations General Assembly (2005), para. 9. para. 11. 18 Ibid, paras. 12–13. 19 Ibid, para. 119. 20 Ibid, para. 120. 21 Ibid, para. 135. 22 See Nowrot (2004). 17 Ibid,

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5.4.2 The Diversity of Actors of Global Governance and the Silent Transformation of Roles of Different Actors Actor of global governance is a new concept accompanying with the emergence of global governance discipline. It seems to be developed based on the concept of actor in the discipline of both international law and international relations. In short, there are 5 types of actor in global governance: (1) states and their governments, departments, and sub-state local entities and governments; (2) inter-governmental organizations, such as the United Nations, World Bank, World Trade Organization, International Monetary Fund; (3) non-governmental organizations or organizations of international civil society; (4) multinational corporations; (5) elites.23 Therefore, the range of actors of global governance is larger than that of actors of international law. A more important difference is that while admitting the basic role of sovereign states, that role and function of non-state actors are much more emphasized in global governance. Among non-state actors, influences brought by the participation of nongovernmental organization in global governance is increasing. For example, in the field of environment, there were less than 300 non-government organizations which have participated in the 1972 Stockholm UN Conference on the Human Environment; nevertheless, the number increased to 1400 in the 1992 Rio Conference. In the field of human rights, 6000 participants attended the Forum of non-governmental organizations during the 1975 UN World Conference on Women in Mexico, 13,500 registered the 1985 Conference in Nairobi, and more than 300,000 participants attended the 1995 Conference in Beijing.24 With regards to the WTO, 108 non-governmental organizations were invited to attend the 1996 first Singapore Ministerial Conference, and 437 attended the 7th Geneva Ministerial Conference in 2009.25 Non-governmental organizations participate the decision-making and regulatory process of global governance through making or submitting speeches, opinions, reports, actions plans, drafted version of legislations, model law, standards, index, etc. in various international conferences, world forums, and negotiations of multilateral treaties. Practices demonstrated that non-governmental organizations have played vital roles in initiating, preparing and promoting some international conferences and multilateral treaties, and even directly impacted on the formation of substantial provisions and contents of these treaties, such as the Statute of International Criminal Court, Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, Kyoto Protocol, Convention to Combat Desertification, Convention on International Trade in Endangered Species of Wild Fauna and Flora, and a series of human rights conventions.

23 See

Keping Yu (2002). Clark et al. (1998), p. 9. 25 https://www.wto.org/english/forums_e/ngo_e/ngo_e.htm. Accessed 10 May 2013. 24 See

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Multinational corporation also has a role to play in global governance among nonstate actors. Firstly, the system of multinational corporations itself is a unique governance mode in global governance, namely the third governance regime in addition to state regime and the regime of international public organizations (inter-governmental and supra-national). The charter and various management rules of the multinational corporation is a self-contained multinational governance regulation. However, these self-contained regulations are not isolated but closely connected with states and international organizations. The establishment and activities of multi-national corporations are both subject to the jurisdiction of domestic law and the regulation of international law and international organizations. Secondly, multinational corporations are directly involved in the formulation of global governance rules under the framework of international organizations, such as the Principles of Corporation Governance, Guidelines for Multinational Enterprises, Guidelines on Corporate Governance of State-owned Enterprises, within the framework of OECD. A newly typical example is the Financial Stability Board (FSB) under the G20 framework.26 This Board, as a legal person of an association type, directly formulate standards of international financial operations and regulations, is a hybrid (public and private) multinational regulator. It not only regulates states, governments and departments, inter-governmental organs, but also private financial entities.27 It is worth noting that elites are also considered by some global governance scholars as actors of global governance. These elites include (1) political elites, especially important members of governments, international organizations, and emerging economies; (2) business elites, especially high-level managers of multinational corporations; (3) intellectual elites, namely, authorities in different fields and disciplines. These elites have a vital role in the formulation and implementation of governance rules and mechanisms in global politics, economy, society, culture, education, science and technology, environmental protection, etc.28

26 FSB was formally established during the London Summit of G20 in April 2009. Members include member states of G20, relevant economic entities and international organizations. It is a core institution for leaders of G20, and an internationally recognized institution to promote the formulation and implementation of global financial standards. China entered into the FSB in May 2009. The People’s Bank of China, the Ministry of Finance, the China Banking Regulatory Commission, the China Securities Regulatory Commission, the China Insurance Regulatory Commission and other departments participated in the work of the Council through various forms and made active contributions to the standard formation of international financial regulation and to the reform of domestic financial regulation. See https://www.pbc.gov.cn/pubish/hanglingdao/61/2013/201301282149318 46395093/20130128214931846395093_html. Accessed 13 May 2013. 27 See Backer (2011). 28 See Clark et al. (1998).

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5.4.3 An Emerging Legal Pluralism in International Regulatory Instruments and the Strengthening of Self-discipline Rules and Soft Norms As a direct result of the diversity of global governance actors, international regulatory instruments show a tendency of “an emerging legal pluralism”.29 In the process of global governance, apart from “hard law” instruments including legislations, regulations, judicial decisions at domestic level and treaties, international customs, general principles, judicial and arbitral awards at international level, non-state actors are regulating and dealing with global issues through a large amount of other instruments. These mainly include: (1) resolutions adopted by inter-governmental conferences, especially the ones adopted by world summits or high-level conferences, such as the UN Millennium Declaration, the World Summit Outcome, declarations of G20 Summit, etc. (2) resolutions adopted by international organizations, such as resolutions adopted by the UN General Assembly, declarations of WTO Ministerial Conferences, declarations of World Health Organizations, etc. (3) standards or indexes adopted by international organizations and industrial associations, such as the ones adopted by the International Accounting Standards Board, International Organization for Standardization, Basel Committee on Banking Supervision, International Telecommunication Union, etc. (4) rules and guidelines adopted by the multinational corporations, especially by the global large multinational corporations. Moreover, the significance of “soft law” as global governance instruments is increasing. There is a strict distinguish between “hard law” and “soft law” in international regulation for a long time: the former has legally binding force and can be applied by international adjudicatory bodies, while the later does not. However, practices of international dispute settlement bodies in recent years indicate that this distinguish is becoming vague. For example, the International Court of Justice often refers to the resolutions adopted by the UN General Assembly.30 Dispute settlement bodies of the WTO (panels and the appellate body) also refer to some relevant resolutions of international conferences, especially declarations of the WTO Ministerial Conferences.31 In addition, rules of conduct formulated by some international organizations, which are specifically applied to multinational corporations, have special regulatory implications. Examples are the OECD Guidelines for Multinational Enterprises, the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy adopted by the International Labor Organizations, the International Code of Marketing of Breast-Milk Substitutes adopted by the World Health Organization. 29 See

Yu Keping (2002). Court of Justice (2004a, b), pp. 455–456, International Court of Justice (1986), (2010), etc. 31 In the Shrimp case, the appellate body referred to the Stockholm Declaration adopted by the 1972 UN Human Environment Conference and the Rio Declaration adopted by the 1992 UN Conference on Environment and Development. See World Trade Organization (1996, 1998). 30 International

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Finally, self-discipline rules made by private institutions and industrial associations are a sui generis global governance instrument. Although these norms are selfdiscipline rules, which are formulated without the participation of states or governments, their binding force within certain global industries are not second to the legislations and international treaties made and concluded by States. Typical examples are the New Lex Mercaoria made by the International Chamber of Commerce, Lex Informatica, the Internet Corporation for Assigned Names and Numbers (ICANN), Lex Sportive Internationalis made by the International Olympic Committee, etc.

5.4.4 Compliance Mechanism of International Regulations Becomes More Flexible Compliance of international rules or international law is mainly reflected in the compliance of international treaties. For a long time, due to the lack of compulsory implementation bodies at international level, the compliance of international law relies on the self-serving of individual States, mainly taking the form of bilateral countermeasures or retaliation actions. The centralization of compliance of international rules has presented in the era of international organization; nevertheless, it mainly existed in the international collective security regime. In other fields, similar compliance mechanisms were rarely established. In the era of international community, there are at least four flexible treaty compliance mechanisms in addition to the one in the international collective security regime.

5.4.4.1

Compliance Mechanism for the Principle of Obligations Erga Omnes

The concept and principle of obligations erga omnes established by the contemporary international law exceed the principle of reciprocity in rights and duties and the self-serving principle in international law compliance in the past international law in certain fields. Under this emerging principle, all countries have a duty to react with regards to certain violation to international obligations so as to ensure the compliance of relevant international rules. Since this duty is created to safeguard basic values of international law (such as peace, human rights, self-determination of peoples, environmental protection), it is a duty for the interests of all members of the global community.32 Based on the principle of obligations erga omnes, the 2005 World Summit Outcome further established the principle of “responsibility of state to protect”.33 The UN Secretary General submitted a report on “implementing the responsibility to protection”,34 specifically elaborated the three pillars of this 32 See

Cassese (2001), p. 16; Brunnée (2006); Lingliang Zeng (ed.) (2011), p. 28. Nations General Assembly (2005), paras. 138–140. 34 United Nations General Assembly (2009). 33 United

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responsibility: (1) every country has the enduring responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity; (2) the international community has the responsibility to encourage and assist States in meeting those obligations (the international community has the responsibility to use proper diplomatic, humanitarian or other means for protection populations from these crimes); (3) when a state is manifestly failing to provide such protection, the international community shall respond collectively in a timely and decisive manner to protect in accordance with the UN Charter. It thus can be seen that the establishment of the principle of “responsibility to protect” not only further strengthens and develops the responsibility regime in international law, but also enriches and innovates the mechanisms for compliance and enforcement of international rules. The compliance mechanism of international human rights treaties is a specific representation of the principle of obligations erga omnes in the field of human rights protection. The international human rights law, which is based on more than 30 UN human rights treaties, is one of the main signs of the development of contemporary international law. In order to ensure the practical compliance and implementation of a series of human rights treaties, especially the core human rights treaties, specific committees have been established respectively by these treaties to supervise the compliance of these treaties, including the Office of the High Commissioner for Human Rights, Committee of Economic, Social and Cultural Rights, Committee Against Torture, Committee on the Elimination of Racial Discrimination, Committee on the Rights of the Child, Committee on the Rights of Persons with Disabilities, etc.. These Committees are regarded as “treaty bodies”, composed of independent specialists. Based on the competence conferred by the relevant treaties and the consent from the contracting parties, they have gradually created several compliance and protection mechanisms for the human rights, including review of the compliance report of contracting parties, deal with complaints from countries, review letters coming from individuals, investigation and regular visits. Among them, compliance report from contracting parties is a basic mechanism, according to which contracting parties should summit regular report to the treaty body in due years and relevant treaty body would deliver “concluding observations” based on information and opinions gained from inter-governmental organizations, non-governmental organizations, experts and individuals. Although these opinions have no legally binding force on relevant parties, they do have significant political and moral impacts and enjoy authority in academia and society.35 Since the end of 1980s, both the UN and the academia has been discussing the reform of treaty bodies and the improvement of the compliance mechanism of the UN human rights treaties. The Office of the High Commissioner for Human Rights proposed in its action plan in 2005 to establish a unified permanent treaty organ, and provided a framework document for discussion. It further delivered in 2006 a “Concept Paper” preliminarily elaborate the plan for such unified permanent organ. However, it has caused widespread controversy within and outside the UN, 35 See

Xiaohui Wu (2011), pp. 95–96.

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including doubts and oppositions. Until now, there is no substantial progress in establishing a unified permanent treaty organ. However, treaty bodies have autonomously carried out two technical reforms: one is to organize regular or irregular meetings for exchanging information, coordinating positions, and unifying working methods; the other is to unify and simplify the format requirements for the report and the review procedures, namely, contracting parties would submit a common core report together with a treaty compliance report in accordance with the new reporting guidelines.36 The compliance mechanism of international environment treaties is another specific representation of the principle of obligations erga omnes. International environment law is a rapid emerging branch of international law. Until now, more than 240 global or regional international environment treaties have been formulated. In order to ensure the compliance of these treaties, a new compliance ensuring system has been created in the field of international environment law—compliance mechanism. This new compliance mechanism is based on the consideration of features of multilateral environment treaties. First, rights and obligations under multilateral environment treaties are asymmetric. Non-compliance of a contracting party may not directly damage the rights of another contracting part, and may not directly lead to a dispute with another contracting party. Second, effects of non-compliance to international environment treaties are cumulative, and the entire effects would be apparent after a certain long period of time. Third, it is difficult to attribute the damage of certain environment to one or several countries’ act or omission. Moreover, once environmental damage occurs, it is often difficult to restore the original condition, and economic compensation does not help. Last, the non-compliance of some developing countries is often due to their lack of capacity in treaty compliance. The above features of rights and obligations under international environment treaties, and the nature of afterwards relief of dispute settlement mechanism and liability compensation system, limit the role of traditional compliance ensuring system in promoting the compliance of international environment treaties. And, a kind of preventive mechanism is thus necessary to promote the compliance of international environment treaties.37 Although compliance mechanisms of multilateral environment treaties have their own characteristics, the basic mode is similar. All the current compliance mechanisms include the following specific systems: how to judge whether the contracting parties are complying the treaty or not (system of basic rule), how to promote the treaty compliance (system of compliance judgment), and how to deal with the noncompliance (reaction system of non-compliance), institutional setup of compliance mechanisms, ways of initiation, measures promoting treaty compliance and possible penalties.

36 See 37 See

ibid, pp. 99–111; Ruijun Dai (2009). Haibo Gou and Kong (2011).

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Compliance Mechanism of Multilateral Trade Agreements

Compliance mechanism of the WTO is a comprehensive and multi-dimensional mechanism. It integrates individual supervision with collective supervision, political supervision with legal supervision. It provides preferential and special treatment to developing members, especially the least-developed members, and specific aid, so as to enhance the capacity of these members in participating multilateral trade negotiations, dispute settlement bodies, and in implementing WTO Agreements. Firstly, the WTO established a regular trade policy review mechanism. Supervising trade policies of members is a main mission of the WTO, and thus a trade policy review mechanism was created. Under this mechanism, the trade policy review body, composed of representatives from the WTO Members, review the national trade policy in different cycles in accordance with the different share of members in world trade. As stipulated in para. A of the Annex 3 “Trade Policy Review Mechanism” of the “Agreement Establishing the World Trade Agreement”: “the purpose of the Trade Policy Review Mechanism (TPRM) is to contribute to improved adherence by all Members to rules, disciplines and commitments made under the Multilateral Trade Agreements and, where applicable, the Plurilateral Trade Agreements, and hence to the smoother functioning of the multilateral trading system, by achieving greater transparency in, and understanding of, the trade policies and practices of Members”. It can be seen that increasing the transparency of trade policies of members is the core of the trade policy review. Therefore, a database of member’s trade policies was set up by the WTO Secretariat, which is open for the public to search. Then, are there any other specific criteria of trade policy review apart from the requirements of transparency? Certain differences exist in the understanding of academia since the WTO does not clearly stipulate. The practices show that a combination of legal and economic criteria is adopted. The trade policy review mechanism can not only evaluate the compliance of members’ trade policies with the principles, rules, and disciplines of the WTO, but also assess their impacts on the world trade. Secondly, the system of enforcement bodies has been established for supervising the implementation of WTO Agreements. The General Council was established by the Agreement Establishing the World Trade Organization to supervise macroscopically the entire implementation of WTO Agreements. In addition, Council for Trade in Goods, Council for Trade in Services, Council for Trade-Related Aspects of Intellectual Property Rights were set up for respectively supervising the implementation of certain agreements. Moreover, other multilateral or plurilateral agreements also have their own specific committees for the supervision and implementation of relevant agreements. All these Councils and committees are composed of representatives from WTO Members. Thirdly, the WTO established a hybrid dispute settlement mechanism which integrates political and legal means. The WTO dispute settlement mechanism not only deals with trade disputes between members, but also safeguards the compliance of WTO Agreements. WTO dispute settlement mechanism is an exclusive mechanism, and there are specific time limits for each procedure from informal and formal negotiation to panel and appellate body. Reports of the panel and appellate body decide on

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whether the accused measure is complying with the WTO Agreements or not. Such reports, upon the adoption by the dispute settlement body, have legally binding force on disputing parties. Opinions or decisions of the dispute settlement body generally lay down a reasonable time limit for the losing party to implement the awards. If the losing party fails to comply with the ruling within the prescribed time limit, the dispute settlement body may authorize the winning party to terminate the concession, or even authorize cross retaliation.38 Fourthly, the WTO adopts the following three approaches to satisfy the special demands of developing members, especially the least-developed members, so as to promoting their compliance with WTO Agreements and helping them to gain from it. The first one is that all the WTO Agreements contain special provisions for developing members. These special provisions consider the special demands of development members from two aspects: a longer period of time for them to implement the WTO Agreements and a loose condition for them to compliance with specific obligations. For example, with regards to the trade policy review, the cycle for developed countries to conduct the review is either 2 or 4 years, while for developing members, the cycle is 6 years and for least-developed members is 8 years. Besides, provisions concerning preferential treatment or special and differentiated treatment can be found in various multilateral trade agreements in addition to the Part IV of the 1994 GATT. The second one is that a specific trade and development committee was set up to be in charge of the WTO affairs with regards to developing and least-developed members. The Committee has a broad range of duties, involving compliance and implementation of almost all WTO Agreements, the priorities of which include: implementation of the provisions in favor of developing countries; formulation of guidelines for carrying out technical cooperation with developing countries; increasing the participation of developing countries in the multilateral trade system and enhancing the role and compliance capacity of the least-developed countries. Moreover, a sub-committee on least-developed countries was set up to regularly review the implementation of relevant special treatment provisions and work for the involvement of the least-developed countries into the WTO. The third one is that the WTO Secretariat provides technical assistance and advisory service to developing countries, including organizing various training programs, increasing trade capacity of developing countries, capacity to comply with the WTO obligations, capacity to participate in multilateral trade negotiations and WTO dispute settlement mechanisms.

38 Plasai

(2006).

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5.4.4.3

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Compliance Mechanisms Under the International Atomic Energy Agency and Nuclear Safety Treaties

The fundamental purpose of the International Atomic Energy Agency (IAEA) established in 1957 is to safeguard the peaceful use of nuclear energy. For this, the Secretariat set up the Department of Safeguards led by the Director General. In 1997, the IAEA Board of Governors approved the Model Additional Protocol to a safeguards agreement, which marked the expansion of the IAEA’s safeguards capabilities and scope from the past limited to the verification of nuclear activities declared by states to the detection of secret nuclear facilities and activities of non-nuclear weapon states. The Agency has signed comprehensive safeguards agreements and item-specific safeguards agreements with more than 140 countries and regional organizations. Nuclear-weapon states have also concluded voluntary safeguards agreements with the Agency respectively. Apart from the IAEA, a systematic verification regime is established in accordance with the Comprehensive Nuclear-Test-Ban Treaty.39 In order to enhance the enforce and monitor of the treaty, a treaty enforcement body composed of the Assembly of contracting parties, the Executive Council and the Technical Secretariat was established in Vienna, and an International Data Center was set up within the Secretariat. The verification regime mainly consists of (1) International Monitoring System; (2) consultation and clarification; (3) On-Site inspection; and (4) confidence-building measures. At present, the treaty enforcement body has set up 4-layer monitoring network, including the International Monitoring System consists of 321 monitoring stations and 16 laboratories build worldwide. Once a contracting state is found to be in violation of the treaty obligations, the Assembly or the Executive Council will urge the state to abide by the treaty; if it continues to violate, the Assembly will restrict or terminate the rights of such state, and jointly impose embargos or other collective sanction.

5.4.4.4

Implementation Review Mechanism Under the United Nations Convention Against Corruption

The United Nations Convention taken into effect in December 2005 created five mechanisms: preventive measures, criminalization and law enforcement, international cooperation, asset recovery, and implementation review mechanism. The Conference of the States Parties is designated by the Treaty to monitor the implementation of the Treaty. For this, the Conference established the Implementation Review Group as an open-ended intergovernmental group of States Parties, which operates under the authority of the Conference. According to relevant resolutions of the Conference, every State party has to accept regular review by two peers, one of which comes from the same regional group and shares similar legal system with the 39 158 states have already ratified the Treaty. However, 8 states including the UN, North Korea, Pakistan have not ratified yet, and thus, the Treaty has not entered into force until now.

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State party under review. The country-specific review report is secret, but the country under review can decide whether to publish or partially publish the review report. China has been the reviewing country since July 2012 and was responsible for reviewing the implementation of the Convention in Afghanistan and Sri Lanka. The review group meeting held at the UN Office in Vienna on 30 May 2013 determined by drawing lots that Vietnam and the Bahamas are responsible for reviewing the implementation of Chap. 3 (Criminalization and Law Enforcement) and Chap. 4 (International Cooperation) of the Convention in China. The review will start in July 2013, and the Hong Kong SAR and Macao SAR of China will jointly accept the review with the Mainland China. This is the first time that China accepts review since the Convention has been effective to China more than 7 years ago.40

5.5 Conclusion In sum, considering from the perspective of theories or examining international practices, early international governance and later global governance have always been closely related to the development of international law, and they interact with each other, which can be traced back to the mid-fifteenth century. In other words, international relations, international governance, and international law all started in modern times, and they share the same roots and complement each other. Moreover, the development of international governance and later global governance and international law are also synchronized. International governance or global governance in different eras show common characteristics with international law to a large extent, that is, they have a high degree of chronological fit. In the era of Westphalia system, sovereign States dominated the formation and development of international governance and international law. The state was the sole subject and actor, and formulation and implementation of international rules and international dispute settlement relied on states’ “self-serving”. Domestic governance power was concentrated in States, while international governance power was scattered among different States. In the context of the absolutization of State sovereignty, war became a legal way to promote State’s policies, and multilateral international conference was a main way to deal with international relations. There were some international customs and treaties, but very few. The balance of powers among the big powers, jungle justice among large and small countries, and the discriminatory and excusive nature of international rules were the basic features to both international governance and international law during this period. In the era of the rapid development of international organizations, international governance and international law entered into a new development era. Firstly, although states were still the main subjects and actors, the gradually lose the absolute monopoly over international governance and international law. The emergence of 40 See Xinhua News, https://news.xinhuanet.com/world/2013-05/31/c_124789889.htm. Accessed 1 June 2013.

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various inter-governmental organizations enlarged the quantity and range of international actor. Resolutions adopted by these inter-governmental organizations, though most of them are “soft law”, enriched the source of international law and accelerated the formation of contemporary treaties and customary law and changed the traditional way of “self-serving” in implementing and enforcing international rules. Secondly, value orientation of international governance and international law have been upgraded from emphasizing “law of nations” for State interests and “law of peaceful coexistence” to “international cooperation law” for international peace and development. Lastly, the centralization and fragmentation of international regulation were developing parallelly. Compared to international governance and international law in the era of Westphalia system, they certainly achieved concentration to a large extent in the era of international organization. Nevertheless, in terms of the international regulation as a whole, they still remained in a fragmented form, specifically embodied in the sectorization and regionalization of international regulation. These features of international governance and international law represented in in the era of international organization greatly impact on the emergence of global governance and development of international law in the post-Cold War era. The end of the Cold War opened a new era of global governance and international law. In the so-called era of “international community”, human rights, democracy and rule of law become the higher and deeper value orientation of global governance and international law, and to safeguard the common interests of all mankind becomes an important mission of global governance and international law. In the context of the expanding and deepening globalization of the international community, in addition to states and international organizations, the role and influence of nongovernmental organizations, international civil society, multinational corporations, and even elites are increasingly important in global governance and international law. They contribute to the diversity of international actors and international regulatory instruments, and increase the flexibility of compliance and enforcement mechanisms. At the same time, the state’s “absolute power” in global governance and international law has declined. It seems reasonable to predict that, at present and in the future, the will of these non-state actors will be increasingly reflected in relevant international regulation. Therefore, the basis of effectiveness of contemporary international law is no longer purely the coordination between the will of states, but the coordination among the will of states and various actors in international society. The above categorization of eras of international governance, global governance and international law is relative, not absolute. Although international governance, global governance and international law in each era have their outstanding features, they share a basic core element: sovereign states. The difference is just the different role and function in different era, that is, from the past “sole actor” to later “joint actors” with international organizations, and now, together with more and more “leading actors” and “supporting actors” onto the “stage” of global governance and international law. Lastly, it worth emphasizing that whether it is the era of international governance dominated by the state and the rapid development of international organizations before the end of the Cold War, or the new era of global governance after

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the end of the Cold War, they have a high degree of chronological conformity with the development of international law. The root cause is that global governance or international governance in different eras shares the same social background with international law. This common social background is the basic structure of international society in different eras. The international society in the era of Westphalia system was composed of sovereign states, and thus states dominated the international governance and international law at that period. With the emergence of international organizations, as a new type of actor in international society, they certainly have great influences in international governance and the multilateralization and regionalization of international law. And, the diversification of non-state actors after the Cold War, especially the active participation of various private actors in transnational activities, bring increasingly new elements to global governance and international law in this new era.

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Nowrot K (2004) Global governance and international law. https://www.wirtschaftsrecht.uni-hal le.de. Accessed on 5 May 2013 Pagden P (1999) The origin of “governance” and the enlightenment’s conception of a supra-national world order. Int Soc Sci J (Chin) 1:9–18 Plasai V (2006) Compliance and remedies against non-compliance under the WTO system: toward a more balanced regime for all members. https://ictsd.org/downloads/2008/05/compliance-andremedies-against-non-compliance-under-the-wto-system.pdf. Accessed on 4 February 2014 Ritterberger V (2000) Globalising und der wandel der staatenwelt. Die welt regieren ohne weltstaat. In: Menzel U (ed) Vom Ewigen Frieden und vom Wohlstand der Nationen. Suhrkamp, Frankfurt, pp 188–218 UN General Assembly (2000) United nations millennium declaration (U.N. Doc. A/RES/55/2) UN General Assembly (2005) 2005 World summit outcome (U.N. Doc. A/RES/60/1) UN General Assembly (2009) Implementing the responsibility to protect (U. N. Doc. A/63/677) World Trade Organization (1996) Report of the appellate body, Japan-taxes on alcoholic beverages (WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R) World Trade Organization (1998) Report of the appellate body, United States—import prohibition of certain shrimp and shrimp products (WT/DS58/AB/R) Wu X (2011) Theories and practices concerning the reform of the compliance mechanism of UN human rights treaties. Int Law Rev Wuhan Univ 14(1):92–111 Yu K (2002) Introduction to global governance. Marxism Reality 1:20–32 Zeng L (ed) (2011) International law, 3rd edn. Wuhan University Press, Wuhan

Chapter 6

Role of the United Nations in Promoting the International Rule of Law

6.1 Evolution of the Rule of Law in the United Nations There was no definition on the “UN Rule of Law” in any official documents for a long time. In 2004, “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”, for the first time, systematically elaborated the “UN Rule of Law” as follows: for the UN, “the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measure to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.1 It can be seen that the “UN Rule of Law” is a hybrid concept of the rule of law at national and international levels, including both the core elements of the rule of law at the national level and the features of globalism and internationality in its nature. As the most influential international organization in the world, “It is unquestionable that the United Nations plays the role of a global center for the promotion of 1 See

United Nations Secretary-General (2004).

The article was written by Prof. Zeng in Chinese, and published in Studies in Law and Business (Fashang Yanjiu), (2), 2011, pp. 112–118. It is then translated by Dr. Jiao Zhang, with the assistance of Mr. Tianchun Mo. It worth noting that the Chapter layout made by Prof. Zeng was as follows: (1) Evolution of the Rule of Law in the UN; (2) Rule of Law at International Level Promoted by the UN; (3) Rule of Law in the UN Internal Regime; (4) Rule of Law at National Level Promoted by the UN; (5) Enhancement of the Coordination of the UN Rule of Law Activities. Therefore, Prof. Zeng planned to revise and develop the article published in Chinese. Unfortunately, what we can contribute is merely translating based on the original published Chinese version.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_6

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the rule of law, in accordance with its Charter”.2 “The demand of the Charter for a rule of law, aims at the substitution of right for might.”3 The rule of law in the UN originates from “the Charter of the United Nations”. The preamble of the Charter requires Member States to affirm the faith in the equal rights of men and women and of nations large and small. These equal rights are further confirmed by the seven basic principles set forth in Article 2 of the Charter. Its purposes are to maintain international peace and security, sustained economic development and the protection of human rights and social justice. The preamble of “Draft Declaration on Rights and Duties of States”, adopted by the International Law Commission of the UN in 1946, revealed the relationship between the UN and the rule of law for the first time, that is, “Whereas a primary purpose of the United Nations is to maintain international peace and security, and the reign of law and justice is essential to the realization of this purpose”. Although before the 1990s, the rule of law was rarely included in the agenda or activities of the UN independently, its activities were closely related to the promotion of the rule of law from the very beginning, mainly reflected in the codification and development of international law, the peaceful settlement of international disputes, and the deployment of peacekeeping forces, peacekeeping operations or peacekeeping missions in countries or regions in conflict, the initiation of various development and technical assistance and plans for developing countries, the supervision of human rights violations, protection of refugees, women and children, etc. As Secretary General Kofi Annan once pointed out, for 60 years, the United Nations has been committed to the development of international norms and standards, but it is relatively late to integrate the rule of law into our main national level operation.4 Since the 1990s, the UN started to turn its attention to the rule of law at the national level. The development, peace and security and human rights institutions of the UN have been increasing their assistance to the rule of law at the request of the governments concerned. Since 1992, the UN General Assembly has included the rule of law in its agenda; since 2006, special resolutions on the rule of law have been adopted by the UN General Assembly every year.5 In recent years, the UN Security Council (hereinafter referred to as the Security Council) has held thematic debates on the rule of law in countries or regions in conflict and post conflict and adopted special resolutions to emphasize the importance of women, peace and security, children in armed conflict and the protection of civilians. The agenda of the UN Peacebuilding Commission also often deals with the rule of law of countries. Since the twentyfirst Century, the UN has passed a series of landmark documents on the rule of law, such as the 2000 “Millennium Declaration”, the 2004 “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”, the 2005 “World Summit Outcome”, the 2006 “Uniting our strengths: Enhancing United Nations support for the rule of the law”, the 2008 “Strengthening and coordinating United Nations rule of law activities”, etc. In addition, the UN Secretariat has established the rule of law 2 See

United Nations Secretary-General (2008a). United Nations Secretary-General (1961). 4 See United Nations Secretary-General (2004). 5 See United Nations General Assembly (2006, 2008, 2009). 3 See

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unit and the rule of law coordination and resource group, as well as a coordination system for rule of law activities in different sectors.6 The latest initiative of the UN rule of law activity is that the Secretary General included a list of UN rule of law activities in his report on the rule of law at national and international levels.7 The end of the list is to provide practical guidance for the UN in promoting the rule of law. The list is based on information provided by 40 UN agencies on their own rule of law activities, and takes the information as a whole for the current plan for the UN to carry out rule of law activities. The list is divided into two parts: the first part includes general information about the tasks, preparations and contents of the list, and the second part is a detailed list of various current rule of law activities of the UN. The detailed list is further divided into two categories, namely, the national rule of law and the international rule of law. Each category is divided into several sub categories based on the specific needs of the Member States of the UN and the plans of the UN agencies.8 Generally speaking, the international rule of law promoted by the UN can be roughly divided into the rule of law at the international level (the narrow sense of the international rule of law), the national rule of law (the domestic rule of law), and the UN rule of law itself (the rule of law reflected by its own operation). From the perspective of the field of UN rule of law activities, the UN rule of law includes three aspects: the rule of law at the international level, the rule of law of conflict and post-conflict societies, and the rule of law for long-term development.9 The author will focus on the role of the UN in promoting the rule of law at the international level. As for the role of the UN in promoting the other two types of rule of law, the author will elaborate it in other articles.

6.2 Activities and Achievements of the United Nations in Promoting the International Rule of Law Activities and achievements of the UN in promoting the international rule of law are mainly reflected in following six aspects: First, recognize the rule of law as the core value and principle of global governance. The principle of rule of law in the Charter contains various elements related to the conduct of relations among States.10 The Charter points out that one of the ends of the UN is to create conditions for the fulfilment of the obligations of justice and compliance with treaties and other sources of international law. To achieve this goal, the efforts of the UN must be based on values shared by the international community, These values have been proclaimed in a series of important documents of the United 6 See

United Nations Secretary-General (2004). United Nations Secretary-General (2008b). 8 See ibid. 9 See United Nations Secretary-General (2006). 10 See https://www.un.org/en/ruleoflaw/index.shtml. Accessed 5 August 2010. 7 See

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Nations, such as the Charter of the United Nations, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, the World Summit Outcome and a series of resolutions on the rule of law at the national and international levels passed by the General Assembly of the UN from 2006 to 2010.11 In summary, the core values and principles of the rule of law of the UN mainly include the following seven items12 : (1) Abide by the Charter and international law, as they are indispensable foundations for a more peaceful, prosperous and just world; (2) recognize that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing, and that they form an integral part of the universal and indivisible core values and principles of the UN; (3) recognize that according to the effective multilateral system formed by international law is necessary to deal with various and interrelated challenges and threats faced by us and the progress to be achieved in peace and security, development, human rights and other fields requires a strong and effective UN to play a central role through the implementation of its decisions and resolutions; (4) respect the sovereign equality of states and do not use force or threat by force to undermine the territorial integrity and political independence of any state in any way inconsistent with the provisions of the Charter; (5) deal with disputes in a peaceful way in compliance with the Charter, the agreement of “Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States”, the principle of justice and international rule; (6) respect and protect human rights and fundamental freedoms, the right of peoples to self-determination and the equal rights of all people regardless of race, sex, language or religion; (7) recognize the protection against genocide, crimes against humanity, race cleansing and war crimes as the responsibility of a country to its people, as well as to the international community. Second, recognize the international law basis for all UN activities supporting the rule of law and justice. The List of the United Nations rule of law activity clearly shows that promoting the rule of law at the international level is an integral part of the work of the United Nations.13 Since the establishment of the UN and the exercise of its responsibilities should be complied with international law, all UN rule of law activities should be complied with international law as well. In other words, the activities of the UN to promote the rule of law must comply with the provisions of the Charter, international human rights law, international humanitarian law, international criminal law and international refugee law. In 2004, Kofi Annan, the Secretary General of the UN, clearly expressed the common language of justice and besides the combination of the concepts of “justice”, “rule of law” and “transitional justice”, it also establishes a normative basis as a universally applicable standard for rule of law assistance in his report to the Security Council. These norms are the four pillars of the Charter and the modern international

11 See

United Nations General Assembly (2010). United Nations Secretary-General (2004). 13 See ibid. 12 See

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law system—international human rights law, international humanitarian law, international criminal law and international refugee law—as well as the rich UN standards for the human rights and prevention and punishment of international crimes.14 Third, codify and develop international law. One of the greatest achievements of the United Nations has been the relatively systematic development of norms and standards of international law under its auspices. The progressive development and codification of international law is a dynamic process and an essential part of the work of the UN.15 Article 13(1)(a) of the Charter expressively states: “The General Assembly shall initiate studies and make recommendations for the purpose of promoting international co-operation in the political field and encouraging the progressive development of international law and its codification.” In order to accomplish this purpose, the UN has established a number of specialized agencies specifically responsible for the development and codification of international law in specific fields, such as the International Law Commission of the United Nations, the Sixth Committee (Legal) of UN General Assembly, the United Nations Commission on International Trade Law and a series of ad hoc special committees. Since its establishment in 1947, the International Law Commission of the United Nations has made outstanding contributions to the codification and development of international law. There are more than 20 international conventions adopted by the General Assembly of the UN or the Conference of States Parties of the UN, covering treaties, state succession, jurisdictional immunities of States and their property, international organizations, stateless persons, oceans, space, diplomatic and consular relations, special missions and other fields. A large number of other protocols, model laws, resolutions, commentaries or studies completed, or drafted and reviewed cover a wide range of fields of international law.16 The constructive role of the International Law Commission of the United Nations in promoting the international rule of law should not be underestimated at any time, because the formulation of norms is the premise of the rule of law. As the famous British International jurist Lauterpacht stated: “The texts prepared by the Commission are, in terms of the rules about sources of international law in Art.38(1)(c), ICJ Statue, ‘at least in the category of writings of the more qualified publicists’”.17 When referring to the role of the United Nations in the development of international law, the efforts and achievements made by the two main organs of the UN, the General Assembly and the Security Council, over a long period of time cannot be ignored. As the highest deliberative organ of the UN, the General Assembly has become a conventional and lasting mechanism for discussing and formulating international law. The work of the General Assembly in this regard is mainly carried out by the Sixth Committee of the United Nations, which initiates and prepares multilateral treaty negotiations and facilitates them, and then opens the signature and ratification of the treaty to the States Parties of the UN. In addition, it has continuously adopted 14 United

Nations Secretary-General (2006). United Nations Secretary-General (2004). 16 See https://untreaty.un.org/ilc/texts/texts.htm. Accessed 5 August 2010. 17 Harris (2004), p. 64. 15 See

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declarations and resolutions on various issues on international relations. Although these declarations and resolutions are generally not legally binding, their political and moral appeal and influence are enormous. The Security Council is committed to the maintenance of international peace and security and often formulates executive norms in its decisions or resolutions, which are directly legally binding on the UN and its State Parties. More importantly, in this way, the Security Council has played a greater role in protecting civilians in armed conflict, human rights and women and children affected by war. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda established through the relevant resolutions of the Security Council, as well as the relevant sanctions resolutions, are the best examples to confirm these aspects. Fourth, initiate universal participation in multilateral treaties. One of the biggest challenges facing the UN in promoting the construction of the international rule of law is how to involve countries in multilateral treaties as widely as possible. The increasing number of treaties is only part of the prerequisite for achieving the international rule of law. What is more importantly is to make more and more countries sign, ratify, or accede to these treaties, so as to promote the most effective implementation of these treaties in governance and diplomatic relations, which is the essence of the international rule of law. It is precisely the importance of this issue that was noted by the Secretary-General of the UN, Kofi Annan, in the “Millennium Report” submitted to the General Assembly on 27 March 2000, pointed out: “Taking a longterm view, the expansion of the rule of law has been the foundation of much of the social progress achieved in the last millennium. Of course, this remains an unfinished project, especially at the international level, and our efforts to deepen it continue. Support for the rule of law would be enhanced if countries signed and ratified international treaties and conventions.”18 To this end, UN Secretary-General Kofi Annan invited all State governments that have not participated in multilateral treaties to sign and ratify those international treaties and conventions that constitute the core system of international law, and promised to provide heads of State or government with special facilities to sign and ratify these multilateral treaties deposited by the UN Secretary-General when they attended the “Millennium Summit”.19 On 15 May 2000, UN Secretary-General Kofi Annan sent an official letter to the heads of State or government, informing them that facilities would be provided for the heads of State or government or the authorized representatives to sign, ratify or accede 514 multilateral treaties deposited by him on “Millennium Summit”, especially the 25 core multilateral treaties. These 25 core multilateral treaties mainly cover the following areas or themes: (1) Human rights, 13 items; (2) Refugees and stateless persons, 1 item; (3) Penalties, 3 items; (4) Disarmament, 5 items; (5) Environment, 3 items.20 The first day of the “Millennium Summit” treaty participation activity, a total of 84 representatives (of which 59 were heads of state or government) signed 40 multilateral treaties or submitted ratification or accession documents of theses treaties to UN 18 See

United Nations Secretary-General (2000). ibid. 20 See https://WWW.un.org/millennium/law/treaties.htm. Accessed 8 May 2010. 19 See

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Secretary-General for preservation. In the activity lasting for 3 days, a total of 273 treaties are signed, ratified or acceded (187 are signed and 86 are ratified or acceded to). The following types of treaties are of particular attention: (1) “Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict” (59 signatures and 2 ratifications); (2) “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography” (57 signatures and 1 ratification); (3) “Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women” (18 signatures and 4 ratification); (4) “Rome Statute of the International Criminal Court” [Hereinafter referred to as the “Rome Statute” (12 signatures, 4 ratifications)]; (5) “International Convention for the Suppression of the Financing of Terrorism” (10 signatures, 2 ratifications); (6) “Convention on the Safety of United Nations and Associated Personnel” (7 ratifications and accessions).21 After the “Millennium Summit” in 2000, the UN Secretary-General launches universal participation in multilateral treaties activity and multilateral treaties that identify key areas or events for each year’s activity, mainly related to counter-terrorism, the rights of women and children, protection of civilians, immigrants and refugees, combat of transnational organized crime, anticorruption, sustainable development, climate change, biodiversity, etc. during the annual UN General Assembly. Fifth, strengthen the implementation and enforcement of international law. The rich international treaties and the universal participation of all countries still cannot guarantee the rule of law to fully function at the international level. The effective implementation and enforcement of international treaties and international customary rules are the key to achieving this goal. In this respect, because the actual effectiveness of international law depends mainly on the self-help of states, they have long played a major. Although the Charter stipulates a collective security system, the collective security system lacked effective operation throughout the Cold War era. Because the two superpowers—the United States and the Soviet Union—used the veto power alternately in the Security Council. Due to the lack of an effective and centralized UN enforcement mechanism, the operation of the international rule of law depends on the voluntary acceptance of international law by states. British scholar J. Craig Barker believes that there are two possible explanations for this phenomenon: (1) There may be a series of inherent “natural deterrents” in the system of international law, which make state minimize the tendency of violating the law. Of these “deterrents”, the so-called law-habit and reciprocity worth special considerations. (2) As a result of the decentralized nature of international law, each State independently exercises its rights under international law.22 However, with the increasing number of international organizations and the increasing role of international organizations play, the trend of centralization of the international community, especially after the Cold War, the State is no longer the only role on the international rule of law stage. International organizations, especially those of global universality such as the UN,

21 See

Footnote 20. (2002).

22 Barker

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have significantly strengthened their role in the implementation and enforcement of international law. Their influence is growing, sometimes even decisive. The UN international law enforcement mechanism is a complex structural system, which can be evaluated in two ways. From the perspective of the enforcing organ, the UN international enforcement mechanism can be divided into the enforcement of the executive organs and the enforcement of the judiciary: the former such as the enforcement of the UN General Assembly, the Security Council, the United Nations Economic and Social Council; the latter such as the enforcement of the International Court of Justice, the International Criminal Court, the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda. From the perspective of the legal basis for the enforcement of UN international law, the UN international law enforcement mechanism can be divided into the following three types: (1) the enforcement mechanism based on the Charter, such as the collective security system with the Security Council at its core; (2) the specific enforcement mechanisms based on special conventions or multilateral treaties, such as the implementation monitoring mechanism of international human rights conventions, the implementation monitoring mechanism of international environmental treaties, the implementation monitoring mechanism of the United Nations Convention against Corruption, etc.; (3) the enforcement mechanism of United Nations specialized agencies, such as the enforcement mechanisms of the International Labor Organization and the World Health Organization.23 There is no doubt that no matter what method is used to evaluate the enforcement mechanism of the UN international law, the importance of the Security Council in this respect cannot be ignored, although the criticisms and reform proposals on it have never been interrupted. According to the provisions of Article 23 of the Charter, the Security Council has the primary responsibility for maintaining international peace and security. Its enforcement role can be summarized as follows24 : (1) According to Article 35 of this Chapter of the Charter, any Member of the United Nations may bring any action violating the Charter to the attention of the Security Council; if the Security Council deems it necessary, it may suggest negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, or other means in accordance with Article 33 of this Chapter of the Charter to reach “pacific settlement” of disputes. These solutions are only of a suggestive nature and are not legally binding. In practice, the Security Council often requests the UN Secretary-General or his special representatives to mediate or negotiate between or among them in accordance with the guidelines established by the Security Council. Sometimes, the members of the Security Council may visit the conflict area themselves to work for a peaceful resolution of the conflict. (2) The Security Council may adopt legally binding coercive measures. The legal basis for this coercive enforcement power comes from Chap. 7 of the Charter. Chap. 7 of the Charter authorizes the Security Council to determine the existence of threats or 23 See https://WWW.stopvaw.org/Enforcement_Mechanisms_In_The_United_Nations.html. Accessed 10 May 2010. 24 See https://WWW.globalpolicy.org/security-council/32932-security-council.html?tmpl=come. Accessed 10 May 2010.

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destruction of peace, and authorizes it to impose economic and military sanctions and other forms of coercive measures. (3) The coercive measures adopted by the Security Council can target conflicts beyond those between countries. Moreover, the Security Council can define the destruction of peace or the threat of peace so broadly that serious violations of human rights can be regarded as a threat to peace. The two typical examples of ethnic cleansing in the territory of former Yugoslavia and the genocide in Rwanda in the 1990s and a series of coercive measures by the Security Council are the best manifestations of this. (4) The Security Council has the power to use force to maintain peace and security. The Security Council can also delegate this power to those UN Member States or international organizations that voluntarily dedicate their armed forces to implement enforcement actions. In the past 20 years, the Security Council has authorized the NATO to take compulsory military operations in the Balkan Conflict, authorized forces composed of the Economic Community of West African States to take military operations in Libya and Sierra Leone, and authorized multinational forces led by Australia to take military actions in East Timor. The most famous example is Resolution No. 678 of Security Council in 1990 authorizing the United States to form a multinational force to combat Iraq’s invasion and occupation of Kuwait. The General Assembly also plays a role in the implementation of international law. According to Article 11, Chap. 4 of the Charter, any violation of the Charter by a Member may be submitted by the injured State to the General Assembly for debate; the General Assembly may adopt resolutions or make recommendations on any violation of the Charter, but such resolutions or recommendations are not legally binding. However, there has been an exception in the history of the General Assembly. On November 3, 1950, shortly after the outbreak of the Korean War, the General Assembly adopted a resolution of “Uniting for Peace”.25 In the Resolution, the General Assembly declared that in case of any action of sabotage of peace or aggression, if the Security Council is unable to take action against such situation due to the veto of one of Permanent Five, the General Assembly has the right to the use of force authorized in accordance with the provisions of the Charter. The General Assembly also said it could call for collective measures, such as economic and diplomatic sanctions. However, the legitimacy of the resolution has been questioned from the very beginning. In any case, this is an exception in the context of the Cold War, not the establishment of a precedent. In addition, the United Nations has established a series of specialized enforcement agencies in the field of human rights, such as the United Nations Commission on Human Rights, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, the Commission on the Status of Women, the Committee on the Rights of the Child, the Committee Against Torture, etc. Any individual whose relevant rights have been infringed by a Member can lodge a complaint with the abovementioned relevant agencies, and each Member also should submit regular reports to the above-mentioned agencies. Through these implementation agencies and their mechanisms, the United Nations monitors human rights violations and conducts fact 25 See

Woolsey (1951).

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finding and inquiry on these violations. In the process of mediation, it constantly puts forward recommendations on the rule of law. Once authorized, it provides immediate protection, such as refugee status determination and resettlement, temporary security measures and compulsory legal actions.26 Sixth, strengthen judicial decisions on international disputes. In the process of implementing and enforcing international law, disputes may occur in one way or another between States, between States and other international actors, and between other international actors. Therefore, besides the traditional diplomatic measures such as negotiation, mediation and conciliation, an international dispute settlement institution or mechanism should be established to fully guarantee the compliance and enforcement of international norms, and to justly safeguard the rights of parties to disputes in accordance with international law. To this end, the United Nations has been making unremitting efforts and has achieved certain breakthroughs in recent years. As the main judicial organ of the United Nations, the function of International Court of Justice is to settle legal disputes between countries in accordance with international law and issuing advisory opinions on international legal issues requested by the General Assembly and the Security Council and other authorized specialized agencies of the UN. The decision of the International Court of Justice is binding on the parties, although it has no means to enforce its decision itself. So far, the International Court of Justice has accepted 148 cases, of which 26 cases are advisory cases. In the 41 years from 1947 to 1988, the International Court of Justice heard and decided 62 cases, and in less than 22 years from 1989 to the first half of 2010, the International Court of Justice accepted 62 cases.27 The increase in the number of cases under the jurisdiction of the International Court of Justice has at least two implications. First, it means that more and more States trust the Court. Secondly, it means that the role of the International Court of Justice in the implementation of international law is gradually strengthening. To encourage States to submit their disputes to the Court for ruling, after the consultation between the UN Secretary-General Javier Perez de Cuellar and the President of the International Court of Justice José María Ruda then, a special fund was established in 1989 in accordance with the provisions of the “Financial Regulations and Rules of the United Nations”. The United Nations will provide funding to the countries concerned in the following two situations: (1) Disputes submitted to the International Court of Justice through special agreements; (2) Enforcement of disputes submitted to the International Court of Justice in accordance with the provisions of special agreements. The fund depends on voluntary donations from states, intergovernmental organizations, domestic institutions, nongovernmental organizations, and natural or legal persons. As of 30 June 2009, the fund balance reached US $2,687,770.61, but Ban Ki-moon, Secretary-General of the UN, believes that the amount donated is still relatively small. Therefore, he strongly

26 See

https://WWW.globalpolicy.org/security-council/32932-security-council.html?tmpl=come. Accessed 10 May 2010. 27 See https://www.icj-cij.org/docket/index.php?p1=3&p2=2. Accessed 7 June 2010.

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urged all states and other relevant entities to seriously consider making substantial contributions to the fund and normalize such contributions.28 Besides the International Court of Justice, the United Nations has established ad hoc and mixed tribunals to try leaders responsible for atrocities and genocide committed during the war. The successful trial of these political and military leaders is of far-reaching significance: not only to seek justice for the deceased, but also to warn others not to commit such crimes in the future, thereby effectively enforcing international human rights law, international humanitarian law and other relevant international jus cogens. Ad hoc tribunals, such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, were established in accordance with the relevant resolutions of the Security Council. Hybrid tribunals, such as the special courts established in Sierra Leone, Lebanon, Cambodia and Timor-Leste, were jointly established by the UN and the relevant Member States. Compared with ad hoc tribunals, hybrid tribunals have their own characteristics and advantages. These hybrid tribunals are based on negotiated agreements between the UN and the states concerned, which consist of international and domestic judges, and are mostly established in the territory of states concerned. Some scholars refer to these hybrid tribunals as “a new generation of international tribunals” and believe that “this model will deliver justice faster and at a lower cost than its counterparts for Rwanda and Yugoslavia.”29 Finally, it is inevitable to mention the International Tribunal for the Law of the Sea and the International Criminal Court, whose establishment and operation have far-reaching implications for the rule of law at the international level. The International Tribunal for the Law of the Sea was established in 1996 in accordance with the “United Nations Convention on theLaw of the Sea” (hereinafter referred to as UNCLOS), which is one of the four dispute settlement methods stipulated in UNCLOS.30 According to Articles 2, 14 and 15 of the “Statute of the International Tribunal for the Law of the Sea”, the International Tribunal for the Law of the Sea is composed of 21 judges from different States Parties and is divided into the following four agencies to carry out its work: (1) the Chamber for Maritime Delimitation; (2) the Chamber of Summary Procedure; (3) the Chamber for Fisheries Disputes; (4) the Chamber for Marine Environment Disputes. At the request of Chile and the European Union, the Tribunal has also established a special chamber to hear cases concerning the conservation and sustainable development of swordfish species in the South East Pacific.31 At present, the Tribunal has accepted 17 cases, 2 of which are still under 28 See

United Nations Secretary-General (1992).

29 http:/www.globalpolicy.org/international-justice/international-criminal-tribunals-andspecial-

courts/special-court-for-sierra-leone.html. Accessed 8 June 2010. 30 The other three methods are the International Court of Justice, the arbitral tribunal composed of Annex 7 of the United Nations Convention on the Law of the Sea and the special arbitral tribunal composed of Annex 8 of the United Nations Convention on the Law of the Sea. The contracting parties can make a written statement to choose one or more dispute settlement methods according to article 287 of the United Nations Convention on the Law of the Sea. 31 See Shamsey (2002), pp. 539–540.

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trial.32 With the coming of effect of the “Rome Statute”, the International Criminal Court was formally established in July 2002, which is the first permanent international criminal justice institution established on the basis of the treaty in the world, aiming to punish the most serious crimes concerned by the international community, namely genocide, crimes against humanity, war crimes and aggression. According to Article 3 of the “Rome Statute”, the prosecutor of the International Criminal Court may initiate the investigation procedure on the request of any state party or the Security Council, and may initiate the investigation procedure on his own based on the information provided by individuals or organizations. To date, three of the States Parties to the “Rome Statute”, Uganda, the Democratic Republic of the Congo and the Central African Republic, have submitted their own situations to the International Criminal Court. In addition, the Security Council will submit the situation in Darfur, Sudan, to the International Criminal Court. After a comprehensive analysis of the existing information, the prosecutor of the International Criminal Court starts formally opening a case file for an investigation into the situations aforementioned.33 Although the International Criminal Court is an independent international judicial body and does not belong to the UN, it has a close relationship with the UN from the very beginning. First of all, the “Rome statute” was drafted by the United Nations International Law Commission and adopted by convening the United Nations Diplomatic Conference of Plenipotentiary on the Establishment of the International Criminal Court. Secondly, the Security Council can submit cases to the International Criminal Court. Finally, in accordance with Article 6 of the “Negotiated Relationship Agreement between the International Criminal Court and the United Nations”, the Court is required to submit an annual report to the General Assembly. Therefore, the successful establishment and operation of the International Criminal Court mainly benefit from the efforts of the UN to promote the rule of law at the international level, which has profound significance in the following two aspects at least: (1) it marks that international criminal justice has broken through the limitations of “winner justice” and “temporary justice”, and entered a new era of permanent and sustainable justice. (2) The jurisdiction of the International Criminal Court is based on the “supplementary principle”, which establishes a certain degree of division and cooperation of jurisdiction between the International Criminal Court and the domestic courts of the States Parties to the “Rome Statute”. According to the “supplementary principle”, the Court actually plays the role of the court of final appeal. If the domestic court has filed a case and launched an investigation and trial on a certain situation, then Court will not accept the case, unless the domestic judicial procedure is false, such as only the conducting of pro forma procedure, and ultimately exempt the criminal from criminal responsibility,34 or the domestic courts are unable or unwilling to exercise jurisdiction, such as the state of war and the paralysis of the judicial system.

32 See

https://www.itlos.org/start2_en.html. Accessed 8 June 2010. https://www.icc-cpi.int/Menus/ICC/Situations+and+Cases. Accessed 8 June 2010. 34 See Rome Statute of the International Criminal Court, Preamble and Article 17. 33 See

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6.3 General Knowledge The rule of law has a long history as a social value, spirit, and concept. It has been advocated by numerous foreign and Chinese writings since the ancient Greek era. It is relatively late to be widely practiced as a principle of governance, that is, it is closely related to the emergence and development of modern States. The international rule of law is much later as the value, philosophy and governance principles of the international community. This is why some scholars portray the international rule of law as the emerging rule of law. However, it must be noted that the national rule of law and the international rule of law are distinguished from each other on the one hand, and on the other hand they are connected and mutual interacted. Although the national rule of law and the international rule of law each have their own application space, the two share the core values, basic elements and spiritual essence of the rule of law, such as the democracy, responsibility, predictability and transparency of the legal system, and the equality of law application, the supremacy of law, the impartiality of justice, etc. At present, like the general international law, the international rule of law is still in a state of fragmentation and decentralization, which is mainly composed of three basic levels, namely, the national rule of law accompanied by sovereign States, the regional rule of law linked with regional organizations and regional integration and the international rule of law sharing a common destiny with global organizations and globalization. As the largest and most influential universal international organization in the world, the role of the UN in the construction of the international rule of law is crucial. The UN rule of law actions include the rule of law at the international level, the rule of law in conflict and post-conflict societies, and the rule of law for long-term development. At the international level, the United Nations has established and used various mechanisms to promote the codification and development of international law, implementation and enforcement of international law, and fair judicial decisions. At the national level, the UN rule of law actions focus on conflict and post-conflict societies and peaceful societies. In conflict and post-conflict societies, the UN rule of law actions are closely coordinated with peacekeeping and peacebuilding actions. The focus is on establishing or restoring the constitution-based legal system, law enforcement system, and judicial system, establishing transitional justice, and official and civil democracy, and a clean governance supervision mechanism. For the construction of the rule of law in a peaceful society, the UN rule of law action takes the theme of development as the goal and framework, with the focus on promoting universal teaching, research, communication and understanding of international law and applying international law as widely as possible globally.

References Barker JC (2002) Mechanism to create and support conventions, treaties, and other responses. EOLSS Publishers, Oxford Harris DJ (2004) Cases and materials on international law, 6th edn. Sweet and Maxwell, West Yorkshire

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Shamsey J (2002) ITLOS versus Goliath: the international tribunal for the law of the sea stands tall with the appellate body in the chilean-eu swordfish dispute. Transnational law and contemporary problems 12(1):513–540 United Nations General Assembly (2006) The rule of law at the national and international levels (U.N. Doc. A/RES/61/39) United Nations General Assembly (2008) The rule of law at the national and international levels (U.N. Doc. A/RES/62/70) United Nations General Assembly (2009) The rule of law at the national and international levels (U.N. Doc. A/RES/63/128) United Nations General Assembly (2010) The rule of law at the national and international levels (U.N. Doc. A/RES/64/116) United Nations Secretary-General (1961) Introduction to the annual report of the secretary-general on the work of the organization (U.N. Doc. A/4800/Add.1.1) United Nations Secretary-General (1992) Secretary-general’s trust fund to assist states in the settlement of disputes through the international court of justice (U. N. Doc. A/47/444) United Nations Secretary-General (2000) We the peoples: the role of the united nations in the twenty-first century (U.N. Doc. A/54/2000) United Nations Secretary-General (2004) The rule of law and transitional justice in conflict and post-conflict societies (U.N. Doc. S/2004/616) United Nations Secretary-General (2006) Report of the secretary-general on uniting our strengths: enhancing united nations support for the rule of law (U.N. Doc. A/61/636-S/2006/980) United Nations Secretary-General (2008a) Strengthening and coordinating united nations, rule of law activities (U.N. Doc. A/63/226) United Nations Secretary-General (2008b) The rule of law at the national and international levels (U.N. Doc. A/63/64) Woolsey LH (1951) The “Uniting for peace” resolution of the united nations. Am J Int Law 45(1):129–137

Part II

Frontier Issues of Contemporary International Law

Chapter 7

Denouncing the Barbarians of NATO’s Bombing of Chinese Embassy in Former Yugoslavia

The US-led NATO aggressively launched a missile attack on Chinese Embassy in former Yugoslavia. This is a barbaric act that has brutally infringed upon China’s sovereignty, seriously trampled basic norms of international relations, international peace and security and recklessly violated customary international law.

7.1 Personal Inviolability of Diplomatic Representative: A Customary International Law with Long History The exchange of permanent representatives among states originated from the thirteenth century but did not become a universal institution until the second half of the seventeenth century, but the practice of sending envoys and envoys’ personal inviolability could date back to ancient times, even if the inviolability originally appeared due to the factor of religion rather than law (“The envoy is sacred” is the original expression of the “inviolability of diplomatic agents”).1 The personal inviolability of envoys, as a generally accepted rule of customary international law, has not only been confirmed by relevant international treaties such as the Vienna Convention on Diplomatic Relations of 1961, but also recognized by the domestic laws and practices of states. Its application scope has evolved from the temporary envoy to the permanent envoys, from a part of diplomatic agents (ambassador, minister, chargé d’ affaires) to all diplomatic agents (including the head of the embassy and personnel 1 See

Jennings and Watts (eds.) (2008), p. 478.

The Article was originally written by Prof. Zeng in Chinese, and published in Leading Journal of Ideological Theoretical Education, (7), 1999, pp. 35–39. It was then translated by Dr. Jiao Zhang with the assistance of Prof. Qiaofang Wu and her translation team, proofread by Assoc. Prof. Yanxia Yao. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_7

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with diplomatic rank), administrative and technical staff of the mission and their dependents. It must be emphasized that the UN General Assembly adopted in 1973 a Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, which came into force in 1977. The Convention further strengthens the two rules of customary international law in the new era, namely, the inviolability of diplomatic agents and the inviolability of embassy premises. The Convention clearly stipulates that certain acts committed against the internationally protected persons, including ones against diplomatic agents, public premises, private dwellings, etc. are defined as crimes under domestic law, so the related States Parties are obliged to impose appropriate punishment according to the seriousness of the crime. The US-led NATO launched a missile attack on the residence of Chinese ambassador in former Yugoslavia and other diplomatic personnel, causing serious casualties. The vicious means and bad nature make it a punishable crime far more than a plain violation of relevant customary international laws, which is of terrorist nature and constitutes a serious crime. It is worthwhile to note that the US-led NATO may play a legal game and argue that its actions have not violated the Vienna Convention on Diplomatic Relations, because the inviolability of the diplomatic agents stipulated by the Convention is a duty of the receiving State of the embassy. We shall resolutely refute this argument. We admit that the duty stipulated by the Convention is aimed at the receiving State of the embassy. However, the personal inviolability of the diplomatic agents is not only a treaty obligation, but also a rule of customary international law. The Convention is nothing more than the confirmation and codification of this ancient customary law in the form of statute law. The preamble of the Convention clearly states that “peoples of all nations from ancient times have recognized the status of diplomatic agents”, and it also reiterates that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention. In today’s highly civilized world, international law will not allow the use of force by a powerful national military group to violate a sovereign state’s diplomatic agent in a third country!

7.1.1 Inviolability of Premises of Embassy Mission: An Old International Customary Rule Just as the personal inviolability of the diplomatic agents mentioned above, the inviolability of a state’s permanent embassy premises is also a long-standing rule of customary international law. With the consent and assistance of the receiving State, the sending State usually establishes, purchases, or otherwise obtains the embassy premises in the receiving State as the office and the embassy head’s residence. These premises are inviolable. The US-led NATO intentionally bombarded Chinese

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embassy premises in former Yugoslavia with a number of missiles from different angles. This is by far the most violent destruction of the rule of customary international law. The embassy premises have been violated by individuals or groups and terrorists before (such as the Iranian students taking a group of US embassy and consulate in Iran hostage in 1979, and the terrorist attacks on the US embassies in Kenya and Tanzania in 1998), but such an attack on the embassy of a third state by military forces, weapons, and equipment from national military groups is unprecedented. What should also alarm us is that the US-led NATO is very likely to evade its legal liability on the grounds that its actions are not subject to the Vienna Convention on Diplomatic Relations. It is undeniable that from the wording of the Convention, the rules concerning the inviolability of embassy premises are aimed at the receiving State, but this does not mean that general international law does not prohibit states and other subjects of the international law violating the embassy premises of another sovereign state. As with the personal inviolability of diplomatic agents, the inviolability of embassy premises is above all a rule of customary international law, and then a statute rule of an international treaty. As a general rule of international law established in accordance with international custom, all states around the world are bound by the inviolability of embassy premises, no matter whether they are States Parties to the Convention or not, whether they are the receiving State of the embassy or not and whether the violation occurred in peacetime or during wartime and armed conflict. As the International Court of Justice stated in the “US Diplomatic and Consular Staff in Tehran Case” (1979), there is nothing more fundamental than the inviolability of diplomatic envoys and embassies in relations between states. Throughout history, countries of all religious and cultures have fulfilled their obligations for this purpose.2

7.2 Respect for State Sovereignty: The First and Foremost Principle in Customary International Law Since the end of Thirty Years’ War in the seventeenth century and the Westphalian Peace Treaty, sovereignty has been considered inseparable from a State in international law. For centuries, although the international community has been evolving, governments and scholars of different states have different understandings on certain aspects of sovereignty (such as the debate over whether sovereignty is separable, and the debate between absolute and relative sovereignty, etc.) the respect for sovereignty, the inviolability and sovereignty equality have always been basic norms of international relations established by customary international laws and treaties as well as universally recognized. The UN Charter, which came into force in 1945, is the universal international treaty today, and its Article 2 clearly stipulates seven principles that the United Nations and its Member States must abide by, among which 2 Jennings

and Watts (eds.) (2008), note 64, p. 527.

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above all is the principle of sovereign equality of states. The UN General Assembly’s Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in 1970 (hereinafter referred to as the “Declaration on Principles of International Law”) solemnly announced that the seven principles of the Charter are the basic norms of international law, including the principle of sovereignty equality of states. It must be emphasized that the declaration was approved without objection at the General Assembly by acclamation. As the most representative international organization today, the resolution adopted by the General Assembly is one of the important bases for confirming the existence of modern customary international law. As the advisory opinion of the International Court of Justice indicates, the effect of consent to such a resolution of the UN General Assembly, especially the Declaration on Principles of International Law, is not only to restate or clarify the treaty obligations in the Charter, but also to accept the effectiveness of the rules declared as well as to express the opinio juris to these rules.3 According to traditional international law, a State’s embassy abroad is not the territory of the receiving State, but that of the sending State. A violation of a State’s embassy is a violation of the territorial sovereignty of the sending State. Under modern international law, although the embassy is no longer considered as the territory of the sending State, it is undoubtedly a symbol of the sovereignty and the property of the sending State. The embassy in the receiving State is the representative of the sending State and is responsible for all kinds of affairs in the receiving State, which is the most basic function of the embassy. It is out of this representativeness and its need to fulfill its duties that the embassy, the head of the embassy and other diplomatic personnel enjoy various privileges and immunities, including the inviolability of the embassy’s premises and personal inviolability. It is out of this representativeness that the violation of premises and diplomatic agent amounts to a violation of the sovereignty of the sending State. To this end, the preamble of the Vienna Convention expressly “confirms that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions of diplomatic missions as representing States”. It can be seen that no matter from the perspective of customary international law, or from the UN Charter and other relevant international legal documents, the US-led NATO’s attacking Chinese embassy in former Yugoslavia with missiles, not only seriously violated diplomatic relations system under the international law, more importantly, violated China’s sovereignty and China’s personality under the international law.

3 Jennings

and Watts (eds.) (2008), note 8, p. 347.

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7.3 Prohibition of Armed Forces or Threat of Armed Forces: A Jus Cogens Established in Contemporary International Law The UN Charter is the first international convention that explicitly prohibit the threat or use of force. The preamble of the charter clearly declares “non-use of force”. Article 2(4) of the Charter specifically stipulates that Member States shall refrain from the threat or use of force in their international relations, or violate the territorial integrity or independent politics of any Member State or State in any way incompatible with the purposes of the United Nations. On the basis of the Charter, the Declaration on Principles of International Law not only reiterates the principle of prohibiting the threat or use of force stipulated by the UN Charter, but also gives it priority among the seven principles. The declaration further states that the war of aggression constitutes a crime against peace, and the threat or use of force constitutes a violation of international law and the UN Charter. It cannot be ignored that the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (“Declaration on Non-Use of Force”) adopted by the UN General Assembly in 1987, has significant meaning in enhancing the effectiveness of adopting the principle of prohibiting the use and threat of force as customary international law. The declaration solemnly announces: “Every state has an obligation not to threaten or use force in its international relations. such threat or use of force constitutes a violation of international law and the UN Charter and should assume international liability.” The declaration emphasizes: “The principle of refraining from the threat or use of force in international relations, regardless of the political, economic, social or cultural systems and alliances of each State, shall be applicable and binding”; “A consideration of any nature shall not be taken as grounds for the threat or use of force in violation of the UN Charter”. It needs to be emphasized that the prohibition of the threat or use of force has not only become a basic norm of modern international law through the confirmation by the UN Charter, but more importantly, after development of more than half a century, it has become a new rule of customary international law through the confirmation of relevant UN declaration and the practice of the countries. In addition, the prohibition of the threat or use of force is a rule of international jus cogens that not only reaffirms the prohibition of formal wars of aggression, but also further confirms that all armed attacks, armed interference, armed occupation and other threats of force are in violation of international law. However, the UN Charter and other relevant international legal documents also stipulate that individual or collective self-defense (Article 51 of the Charter) and coercive actions (Chapter VII of the Charter), etc. taken in accordance with the relevant provisions of the Charter are not subject to this basic norm of international law and rules of customary international law. In addition, the armed struggle for independence and liberalization of peoples against colonial or

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foreign occupation in pursuit of self-determination of peoples shall not be construed as inconsistent with the principles and rules prohibiting the threat or use of force.4 The US-led NATO violated China’s sovereignty, rights of China’s embassy in Yugoslavia, rights of diplomatic personnel of our embassy, and rights of our journalists in Yugoslavia. It is neither the “negligence” and “blundering” that NATO justified nor general violations, but the naked violations and threats to China’s sovereignty that can explain the highly accurate missile attack. NATO’s bombarding in Yugoslavia and the armed attack on the Chinese embassy in Yugoslavia are neither individual or collective self-defense under the UN Charter, nor are coercive actions authorized by the UN Security Council, or armed struggle in pursuit of self-determination of peoples, it undoubtedly trampled the basic norms of international law and the rules of customary international law.

7.4 Principle of Differentiation or Prohibition of Indiscriminate Attack Although modern international law prohibits not only war, but also the use or threat of force, war and armed conflict cannot be completely avoided. International law recognizes the facts and possibilities of war and armed conflict, and stipulates and forms the principles, rules and systems that warring parties or parties to a conflict and neutral states should observe during the time of war and armed conflict. These principles, rules and systems constitute an important branch in international law—the Law of Armed Conflicts. Among the international laws, the Law of Armed Conflicts is one of the most comprehensive branch laws. In this special branch of international law, which is different from the law of peace, a series of basic norms and specific rules have been formed that limit the means and methods of warfare. The principle of distinction and the prohibition of indiscriminate attacks are important rules of customary international law. The principle of distinction means that during the time of wars and conflicts, warring and conflicting parties should distinguish civilians and residents from armed forces, combatants from non-combatants, combatants and incapacitated war victims, military objects from civilian objects, military targets from non-military targets, so that civilians, residents, civilian objects, and non-military targets shall not become targets during combat. Indiscriminate attack means that the warring and conflicting parties formulate, implement or adopt combat means and methods that indiscriminately attack non-military targets and civilians or civilian objects, rather than attack specific military targets. For the safety of civilians and the protection of civilian objects, the Fourth Hague Convention of 1907, the Fourth Geneva Convention of 1949 and the First Additional Protocol to the Fourth Geneva Convention of 1977 all involve or explicitly provide for “prohibition of indiscriminate attacks”, and the latter further makes a violation of this rule an international crime. 4 Xi

Liang (ed.) (1993), p. 57.

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It should be pointed out that the principle of distinction and the prohibition of indiscriminate attacks are not only the treaty rules established by the conventions mentioned above, but also a rule of customary international law that has been widely recognized for a long time. Therefore, the principle of distinction and the prohibition of indiscriminate attacks are rules of international jus cogens that all states shall abide by, even for states or groups of states that are not parties to the above conventions, this rule of customary international law is also legally binding. In the air strike against Yugoslavia, the US-led NATO blatantly violated the principle of distinction and the prohibition of indiscriminate attacks under the Law of Armed Conflicts. It blew up a large number of civilian facilities and objects like bridges, railways, highways and civilian buildings, civilian dwelling, hospitals, schools, villages, power stations, oil refineries, waterworks, etc. It caused millions of refugees to flee their homes; thousands of deaths made it the biggest humanitarian disaster since the World War II. What is even more shocking to the world is that NATO should indiscriminately attacked a third State’s embassy in Yugoslavia with missiles, which not only caused damage to the building and injury to diplomatic personnel, but also directly killed three innocent journalists. It is a vicious act in violation of the Law of Armed Conflict. In summary, the US-led NATO’s attacking Chinese embassy in former Yugoslavia with missiles has been a very rare and vicious event in the history of international relations, international law, diplomatic relations and human civilization. From the perspective of international law, the barbaric acts of NATO have grossly trampled the basic norms of international law and basic principles of international relations, such as respect for national sovereignty, prohibition of the threat or use of force, and severely undermined diplomatic law and the branch of International Law, such as the Law of Armed Conflict. It not only violated the relevant treaty obligations assumed by NATO Member States, but also violated a series of rules of customary international law generally confirmed by states around the world. It violated a series of jus cogens rules in modern customary international law and even constituted an international crime. The US-led NATO violated their international treaty obligations and customary international law obligations, which constituted an international illegal act. In addition to political, material and moral responsibilities, it is more important to assume all legal consequences, that is, to assume compulsory international legal responsibilities. First, NATO shall accept the strongest protests from the Chinese government and make an official apology to the Chinese government and people unconditionally. Second, it is necessary to conduct a comprehensive and deep investigation into the truth of this vicious event as soon as possible, and to give the Chinese government and people and the international community a convincing answer. Third, the original state of the Chinese embassy in Yugoslavia shall be restored as soon as possible. Fourth, the Chinese government and the families of the victims shall be given double damages including punitive damages. Finally, the Chinese government’s reservation

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of right to take further measures shall be accepted, including the right to international criminal accountability of the US-led NATO, the perpetrators and planners.

References Jennings R, Watts A (eds) (2008) Oppenheim’s international law (ninth edn, Chinese version). Encyclopedia of China Publishing House, Beijing Liang X (ed) (1993) International law. Wuhan University Press, Wuhan

Chapter 8

Historical Breakthrough of International Law: Comments of the Statute of the International Criminal Court

On 17 June 1998, after five weeks of heated discussion in UN diplomatic conference held in Rome, the international community decided to establish a permanent International Criminal Court (ICC).1 Upon the establishment of the ICC, the most serious crimes concerning the international community would be under the jurisdiction of this Court. Besides the Rome Statute of the ICC (hereinafter referred to as “the Statute”) adopted in this important diplomatic conference, the Final Act of the conference was also adopted. Upon the adoption of the Statute, the UN Secretary-General Kofi Annan suspended his official trip immediately and headed to Rome to offer congratulations. The adoption of the Rome Statute symbolized a huge stride in human rights law and represented the common will of international community. 1 The

Rome Diplomatic Conference was officially opened on 15 June 1998. The conference was attended by 160 Member States of the United Nations, the Specialized Agencies and the International Atomic Energy Agency, as well as representatives of 17 intergovernmental organizations, 14 United Nations Specialized Agencies Funds and 124 non-governmental organizations. At the end of the meeting, the Rome Statute of the International Criminal Court was adopted by 120 votes in favor, 7 votes against, and 21 abstentions. On 17 July 1998, the Statute was open for signature to all Countries in at the headquarter of the UN Food and Agriculture Organization in Rome, then at the Italian Ministry of Foreign Affairs in Rome until 17 October 1998, and then at the United Nations headquarters in New York until 31 December 2000. The statute shall enter into force on the first day of the month 60 days after the date of receipt of the 60th deposited instrument of ratification, acceptance, approval or accession by the Secretary-General of the United Nations. The first draft of this paper was written by Prof. Zeng during his stay as a visiting professor at the School of Law, Birmingham University in July 1998, sponsored by the Sino-European Higher Education Cooperation Project. During the process of revision, he has benefited a lot from the valuable opinions and information materials provided by Prof. Xi Liang, Wuhan University. The Article was originally written by Prof. Zeng in Chinese, and published in Social Sciences in China, (2), 1999, pp. 141–152. It was then translated by Prof. Weidong Chen, and proofread by Dr. Jiao Zhang, with the assistance of Ms. Qian Zhang and Ms. Qiaofang Wu.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_8

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8.1 Background on Establishment of ICC The thought to establish an international criminal court has been haunting the international community for almost a century. After the World War I, the relevant persons and countries once planned to establish an international tribunal designed to judge natural persons who committed international crimes. After the World War II, the practical experience of Nuremberg and Tokyo military tribunals laid a foundation to some extent for the establishment of a permanent international court. It was explicitly stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN in 1948.2 It was in the same year that the UN General Assembly asked the International Law Commission (ILC) to study the possibility of establishing a permanent international criminal court. From 1950 to 1980s, however, for the political influence of cold war, it was difficult for the ILC to make material progress in preparation for the establishment of an international criminal court. In the new context of post-cold war, by the motion of members of the UN, the UN General Assembly adopted the 47/33 Resolution in 25 November 1992 requesting the ILC to conceive and submit a draft statute on international criminal court. Meanwhile, more than 2 million people were massacred in Cambodia in late 1970s; A systematic ethnic cleansing tore apart the former Yugoslavia and killed 500,000 people living in there in the early 1990s; In Rwanda, another mass extinction of ethnic group erupted and killed estimated 800,000 people. This sets of astonishing atrocities impelled the Security Council to adopt the relevant resolutions in 1993 and 1994 respectively which gave birth to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda to judge those who were accountable individually for the serious violation of the law of war and humanitarian law. Those initiatives stimulated the international community to have the desire for a permanent international criminal court and enhanced its confidence in success. In December 1994, the UN General Assembly set up a special committee composed of UN members and specialized bodies to review the final text of the Rome Statute drafted by the ILC. In December 1995, the General Assembly set up a preparatory committee to further discuss major substantial and administrative issues resulting from the draft statute prepared by the ILC, and drafted the document in order to produce a widely acceptable unified text of the statute of the international criminal court which was prepared for the discussion in the following plenipotentiary conference. The first meeting of the preparatory committee was held in between March and April in 1996 in the headquarter of the UN and the second meeting was summoned in August. In December, the General Assembly authorized the preparatory committee to proceed its working and decided to hold a plenipotentiary conference in 1998. During February to April in 1997, the preparatory committee held the third to seventh meetings in succession. The final version of draft statute submitted 2 Article

6 of the Convention: “Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”.

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by the preparatory committee to the Rome diplomatic conference was composed of 13 sections and 116 Articles, among which there were 150 places marked by square brackets which meant there existed disputes over some areas and matters.

8.2 Focus on Debates at Rome Diplomatic Conference The most controversial and heated discussed topic was the jurisdiction of the International Criminal Court (hereinafter referred to as “the Court”). The first question is the nature of the jurisdiction of the Court. Many States believed that supplementary principle should be defined clearly i.e. the jurisdiction of the Court should be supplementary to domestic judicial system and that the principle of State sovereignty be respected without exception, i.e. the voluntary acceptance by States should be the prerequisite for Court to exercise its jurisdiction. Other delegates, on the one hand, agreed with the supplementary principle; on the other hand, they insisted on the universal jurisdiction of the Court, which means that the Courts exercising its jurisdiction over the most serious crimes of concern to the international community was not necessarily preconditioned by the consent of the State. By reading the final adopted text of the Statute, the latter opinion prevailed. Another question was about the scope of jurisdiction, especially whether aggression should be included as a crime under the jurisdiction of the Court. To secure the incorporation of this most serious international criminal offense into the jurisdiction of the Court, representatives of some States and international organizations, as well as eminent personalities, had debates. Speech made by the former Nuremberg military court prosecutor Benjamin B. Ferenczs in the General Assembly was quite powerful. He was of the opinion that if the crime of aggression was excluded from the jurisdiction of the Court, it would be an exemption for those responsible for the “most serious international crimes”. Since the trial of Nuremberg, the war of aggression had not been regarded as a right of the State but an international crime, which was already an irrefutable fact. Other speakers stressed that the Diplomatic Conference would be a historical retrogression if the crime of aggression was not included in the jurisdiction of the Court after the Nuremberg trial. From the text of the Statute, the crime of aggression is included in the jurisdiction of the ICC along with genocide, crimes against humanity and war crimes. The relationship between the proposed Court and the United Nations was a focus of the debate at the conference. It is important to note that the delegates had broad consensus on the nature of the Court that it should be an independent, impartial, fair, effective and broadly representative international criminal body. It should not be affected by political or other factors and should not be a tool for political struggle or a means of interfering in internal affairs. However, there were divergent views on its relationship with the Council. On this issue, China, as a permanent member of the Security Council, expressed the opinion that a pragmatic and cautious approach should be adopted to deal with the relationship. The representative of the United States stressed that the Court should

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operate in a manner compatible with the Security Council and not conflict with it. It should also be financially and administratively independent of the United Nations. The chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, Richard Goldstone, pointed out more sharply that if the Court or its prosecutors were under the control of a political body, both the Security Council and the State parties would lose its prestige. The plan to establish an ICC would be better off the table if such control were allowed. The question of whether the use or threat of using weapons of mass destruction, including nuclear weapons would be incorporated in war crimes under the jurisdiction of the Court is another important issue on which the Conference has divergent views. At the general session, several representatives insisted that the use or threat of using weapons of mass destruction, such as nuclear, chemical, biological, blind laser weapons, should be included in war crimes under the jurisdiction of the Court, and that they were essentially indistinguishable. Some also pointed out that it would be “absurd” if the proposed Court had jurisdiction over the killing of civilians by poisoned arrows but was powerless to stop the destruction of tens of thousands of civilians by using nuclear weapons. However, the Statute delivered and signed finally did not incorporate the above-mentioned opinions, and that was the reason why some States objected or abstained towards the Statute. The representative of India even believed that this conveyed the message that “the international community has affirmed that the use of nuclear weapons is not a crime”. It is worth mentioning that the draft statute had included crimes against the United Nations and associated personnel, terrorist activities and illicit trafficking of narcotic drugs and psychotropic substances. The Rome Conference further discussed whether such crimes should be included within the jurisdiction of the Court. Since the 1990s, with the increasing number of cases in which United Nations Peacekeeping, humanitarian, civil servants, and relevant United Nations agencies, have been threatened or even targeted for kidnapping or murder, the security of United Nations agencies and their associated personnel has attracted the attention of the international community and has been officially included in the agenda of the United Nations. After intensive preparations and consultations, the General Assembly adopted the Convention on the Safety of United Nations and Associated Personnel. Although the Convention recognized the criminal liability of those who attacked the United Nations and its associated personnel, it did not, however, bring perpetrators to justice or provide any assurance. Thus, some States, international organizations and interested parties considered it necessary to make the crimes against the United Nations and associated personnel one of the matters under the jurisdiction of the Court. In the draft statute, the crime of terrorism is defined as: (1) Engaging, organizing, initiating, directing, promoting, encouraging or tolerating acts of violence which are targeting at persons or property, aiming to oppose another state and acts of creating terror, fear or insecurity to traumatize eminent persons, groups, the public or the people, irrespective of the political, philosophical, ideological, racial, ethnic, religious and other purposes considered. (2) The offences enumerated in the relevant international conventions, such as aerial hijacking, unlawful detention of hostages,

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etc. (3) Violent acts that use firearms, weapons, explosives and dangerous substances and indiscriminately cause death or serious physical damage to persons, groups or people or causing serious property damage. Considering the serious social consequences of today’s international drug trafficking, some States lay emphasis on the inclusion of illicit drug trafficking and psychotropic substances in the jurisdiction of the Court. The definition of such offences in the draft statute was based mainly on the provisions of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. However, the above-mentioned crimes were not eventually included in the Statute. At the Rome Conference, most delegates insisted that the jurisdiction of the Court should be strictly confined to the “most serious crimes” that the international community focus on. The rationale for this was: first, such a limitation of the jurisdiction of the Court would contribute to the universal acceptance of the Statute. The higher the degree of international acceptance of these most serious crimes was, the easier the statute would be accepted by States. Secondly, it would help the Court to establish and maximize its role as early as possible. The faster the Statute was ratified by States, the sooner the court would be established, and the more States participated in the Statute were, the greater the actual role of the court is. Third, it is helpful to guarantee the quality of handling cases of the Court and maintain its authority. If the Court’s jurisdiction was too wide, the Court would lose its concentration and the quality of the case would be difficult to ensure thus its prestige would be compromised. It is also important to note that, although the four offences under the Statute are generally endorsed by the present States, many States had reservations, serious reservations or objections to the statute in the definition and scope of specific offences, such as the crime of aggression, crimes against humanity.

8.3 Main Contents of the Statute In addition to the preamble of the Statute finally adopted by the Rome Conference, the main body of which is composed by 13 parts, 128 Articles in total. The first part is entitled as “Establishment of the Court” which stipulated that the Court is a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.3 It then provides that the Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf. It also stipulates that the seat of the Court shall be established at the Hague in the Netherlands and the Court may sit elsewhere, when it finds appropriate. The last of Part 1 provides that the Court shall have international legal personality and shall also have such legal 3 The

Preamble of the Statute emphasizes that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.

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capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State. The second part constitutes the core of the entire statute, which provides for the nature and scope of the jurisdiction of the Court, admissibility and applicable laws. With respect to the jurisdiction, the Statute expressly confined the jurisdiction of the Court to the following four most serious crimes: genocide, crimes against humanity, war crimes and the crime of aggression. The Statute provided further definitions of these crimes. “Genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. “Crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, sex as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. In view of the complexity of crimes against humanity, paragraph 2 further defines in detail. On war crimes, Article 8 of the Statute stipulates that the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. The statute then specified the scope of war crimes from four different aspects. The first and second categories shall be applied to war crimes in international armed conflicts, i.e. grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict. The third and fourth categories applied to war crimes of an armed conflict not of an international character, namely, serious violations of Article 3 common to the four Geneva Conventions and acts under the second supplementary Protocol. Whether the crime of aggression should be included in the jurisdiction of the Court was a hot topic for discussion throughout the preparatory phase and during the General Assembly. The key of the debate was how to make an acceptable definition

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of crime of aggression. Proponents underscored the extreme seriousness and international impact of aggression, while opponents highlighted the difficulty of developing an accurate definition of aggression. The debate also considered what role the Council should play in this regard. In accordance with the UN Charter, the Security Council should determine whether “acts of aggression” exist. Therefore, whether the jurisdiction of the Court included the crime of aggression was closely related to the Security Council’s competence in keeping international peace and security. The point here is to find a balance between the responsibilities of the Council and the judicial independence of the Court. At the Rome Conference, the supporters had the upper hand because they had sufficient grounds to insist that it would be a major shortcoming and regret of the Court’s jurisdiction if this one of the most serious international crimes was not included, and it would imply that the new Court was essentially a throwback in history. Although the Statute ultimately included the crime of aggression, its wording was less detailed than that of other crimes. “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the UN Charter.” This means that the Court’s jurisdiction over the crime of aggression has yet to be defined by the Review Conference on the “Crime of aggression”, which will be held 7 years after the Statute taking effect for its amendment. Moreover, the fact that the Court’s jurisdiction over the crime of aggression must not contradict with the relevant provisions of the UN Charter implies the priority of the Security Council in defining what is aggression. Regarding the jurisdiction, the Statute also specifically stipulated that the jurisdiction of the Court is not retroactive and the Court has jurisdiction only with respect to crimes committed after the entry into force of the Statute. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless otherwise provided in the Statute. After the establishment of the jurisdiction of the ICC, the question followed is the commencement of jurisdiction—who are eligible to petition the court for an offence under the Statute or whose accusation falls in the jurisdiction of the court? In accordance with Article 13 of the Statute, there are three ways to commence the jurisdiction of the Court: the Prosecutor by a State Party, the Prosecutor by the Security Council and the Prosecutor. Of the three methods mentioned above, there is no doubt that the Prosecutor by a State Party are at least disputed. Article 14 of the Statute provides that a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. Specifically, the following four categories of State Parties have the power to prosecute the offenders: the state of the crime, the State of custody of the offender, the State of nationality of the suspect, the State of nationality of the victim.

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The way in which the Council launch a prosecution proceeding was in controversy during the drafting of the Statute and the Rome Conference. Some States proposed that the Court should not exercise jurisdiction over situations being dealt with by the Security Council under Chap. 7 of the UN Charter, since such situations involved the maintenance of international peace and security. Others even proposed that situations where the Security Council is involved fall within the jurisdiction only if the Security Council permits. Others feared that this role of the Security Council would seriously undermine the judicial independence of the Court, because most of the world’s conflict situations would be put on the Security Council’s agenda. Its special voting system: the veto power of the five permanent members would prevent the Court from taking judicial action. The Statute stipulates that the Court may exercise jurisdiction over the relevant crimes brought to the attention of the Prosecutor by the Council in accordance with Chap. 7 of the UN Charter. On the other hand, when the Council makes a request pursuant to a resolution adopted under Chap. 7 of the UN Charter, the Court shall not, within 12 months, initiate any investigation or prosecution or judicial proceedings under the statute; the Council can prolong such requests under the same conditions. While the compromise of the provisions is obvious, it is impressive that a political organization like the Security Council can impose such restrictions on the jurisdiction of the Court. How the prosecutor initiates the judicial proceeding was also an important issue during the discussion in the Rome Conference. Some States considered that the establishment of an effective international criminal court would require the establishment of an independent international prosecutorial body, which would prosecute directly in the International Criminal Court. Others are concerned with another aspect of the question that the independence of international prosecutors may be abused by prosecutors. Therefore, the corresponding mechanism should be set up to impose a certain degree of restriction on the prosecutors. The Statute finally provides that the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. Following the establishment of the jurisdiction of the International Criminal Court and its commencement process, there was also the question of the acceptability of specific cases. Under Article 17: the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by

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the Court. Article 19 of the Statute further provides that the Court shall satisfy itself that it has jurisdiction in any case brought before it. Challenges to the admissibility of a case on the grounds referred to in Article 17 or challenges to the jurisdiction of the Court may be made by: (a) an accused or a person for whom a warrant of arrest or a summons to appear has been issued; (b) a State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; (c) a State from which acceptance of jurisdiction is required. In addition, Article 20 of the Statute also contains a principle of Ne bis in idem: no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. No person who has been tried by another court for conduct also proscribed under provisions of the Statute shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; (b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. Article 21 of the Statute provides for the applicable law and the order in which the law to be applied by the Court. In the first place, this Statute and its Rules of Procedure and Evidence; In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. Article 21 also stipulates that the Court may apply principles and rules of law as interpreted in its previous decisions. The Article also further emphasizes that the application and interpretation of law pursuant to this Article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as sex, age, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. Part 3 of the Statute sets out the general principles of criminal law to be followed by the Court, which are mainly: Nullum crimen sine lege Namely, (1) a person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. (2) The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted or convicted.This Article shall not affect the characterization of any conduct as criminal under international law independently of this Statute. Nulla Poena Sine Lege A person convicted by the Court may be punished only in accordance with this Statute.

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Non-Retroactivity Ratione Personae It means that (1) No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute; (2) In the event of a change in the law applicable to a given case prior to a final judgement, the law more favorable to the person being investigated, prosecuted or convicted shall apply. Individual Criminal Responsibility Article 25 provides that the Court shall have jurisdiction over natural persons pursuant to this Statute. Any person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. The Article emphasizes that No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law. In Addition, Article 26 specifically stipulates that the Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime. Irrelevance to the Official Position Article 27 declares that the Statute shall apply equally to all persons, and shall not make any distinction based on official positions. In particular, the Article emphasizes that the position of a head of state or government, a member of the government or parliament, an elected representative or a government official, under any circumstances, shall not exempt a person from criminal responsibility in accordance with the Statute and shall not constitute a justification for commutation. It further states that the official position of a person may have immunity or special procedural rules in accordance with international law or national law, but this should not prevent the Court from exercising its jurisdiction over that individual.4 Part 4 of the Statute deals with the composition and administration of the Court. The Court is composed of the following bodies: (1) The Presidency; (2) An Appeals Division, a Trial Division and a Pre-Trial Division; (3) The Office of the Prosecutor; (4) The Registry. 4 Article

28 of the Statute stipulates that “A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”.

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The Generation and Qualification of Judges The Court consists of 18 judges. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office. The judges composing the Presidency shall serve on a full-time basis as soon as they are elected. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. Every candidate for election to the Court shall: (i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or (ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court; Besides, every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. The judges shall be elected by secret ballot of the meeting specially held for this purpose. With two-thirds States Parties present and voting, the candidate with the highest number of votes will be elected. The election of judges shall take into account the representativeness of the major legal systems of the world, the equitable representativeness of geography and the fair representativeness of male and female judges. In any case, no two judges of same nationality shall be elected. The term of office of a judge is 9 years and should not be re-elected consecutively. In the first election, by drawing lots, one-third of the elected judges has the tenure of 3 years and one-third for 6 years, and the remains has the tenure of 9 years; judges with tenure of 3 years could be re-elected consecutively for a full term. The elected judges shall exercise their authority independently and shall not engage in any activities which may affect their judicial functions or his or her independence. Full-time judges at the seat of the court shall not engage in any other occupation. The Presidency The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once. The presidency is in charge of the administration of the Court, with the exception of the Office of the Prosecutor. Chambers of the Court After the judges have been elected, the Court shall form the Appeals Division, the Trial and the Pre-Trial Chambers as soon as possible. The Appeals Division shall be composed of the President and four other judges. The Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and

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in international law. The Statute stresses that the Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience. The Office of the Prosecutor The Office of the Prosecutor shall act independently as a separate organ of the Court. A member of the Office shall not seek or act on instructions from any external source. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office. The Prosecutor shall be assisted by one or more Deputy Prosecutors. The Prosecutor and the Deputy Prosecutors shall be of different nationalities, shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases and shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. They shall serve on a full-time basis. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election. They shall not engage in any other occupation of a professional nature. The Registry The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court and be headed by the Registrar, who shall be the principal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. The Registrar shall hold office for a term of five years, shall be eligible for re-election once and shall serve on a full-time basis. Part 5 of the Statute deals specifically with the prosecutor’s investigation and prosecution. Firstly, The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution, the Prosecutor shall inform the Pre-Trial Chamber and the State. At the request of the State or the Security Council, the Pre-Trial Chamber may review a decision of the Prosecutor not to proceed and may request the Prosecutor to reconsider that decision. In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator. In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.5 5 Part

5 of the Statute successively stipulated duties and powers of the Prosecutor with respect to investigations, rights of persons during an investigation, role, functions and powers of the Pre-Trial Chamber, issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear, arrest

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Part 6 deals specifically with the Trial. Article 62 first stipulates that unless otherwise decided, the place of the trial shall be the seat of the Court. The accused shall be present during the trial. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. The Statute states that everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. The onus is on the Prosecutor to prove the guilt of the accused. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this Article. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused. Part 7 of the Statute deals with the Penalties. The Court may impose one of the following penalties on a person convicted of a crime referred to in Article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment. In addition to imprisonment, the Court may order a fine under the criteria provided for in the Rules of Procedure and Evidence or a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. The Court may order money and other property proceedings in the custodial State, initial proceedings before the Court, confirmation of the charges before trial.

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collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund. Part 8 of the Statute is about Appeal and Revision. Article 81(1) provides that the Prosecutor, the convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds in accordance with the Rules of Procedure and Evidence: (i) Procedural error, (ii) Error of fact, (iii) Error of law, or any other ground that affects the fairness or reliability of the proceedings or decision. Article 81(2) provides that a sentence may be appealed by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence. According to Article 82, either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; (b) A decision granting or denying release of the person being investigated or prosecuted; (c) A decision of the Pre-Trial Chamber to act on its own initiative. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order may appeal against the order for reparations. According to Article 84, the convicted person or, after death, spouses, children, parents or one person alive at the time of the accused’s death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person’s behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the grounds that: (a) New evidence has been discovered that was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified; (c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office. Part 9 of the Statute deals with international cooperation and judicial assistance. This part sets out the general obligation of full cooperation in the investigation and prosecution of crimes between States Parties and the Court. In the aspect of requesting cooperation, the Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council. The Statute further regulates that the Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement

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with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council. Regarding extradition of persons, the Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in Article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall in accordance with the provisions of this Part and the procedure under their national law comply with requests for arrest and surrender. A State Party may refuse a request for arrest only if it does not accept the jurisdiction of the Court for a particular crime. If the request for arrest is refused, the requested State Party shall promptly notify the Court and state the reasons for the refusal. A State Party which receives a request from the Court for the surrender of a person under, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting State of that fact. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court. Where a case has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to: (a) The respective dates of the requests; (b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and (c) The possibility of subsequent surrender between the Court and the requesting State. Part 10 of the Statute is the Enforcement. This Part first sets out the role of States in enforcement of sentences of imprisonment. A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following: (a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution; (b) The application of widely accepted international treaty standards governing the treatment of prisoners; (c) The views of the sentenced person; (d) The nationality of the sentenced person; (e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence. If no State is designated, the sentence of imprisonment shall be served in a prison facility made available by the host State. The Court may, at any time, decide to transfer a sentenced person to a prison of another State. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

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The sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners. Communications between a sentenced person and the Court shall be unimpeded and confidential. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time. Court. Part 11 of the Statute concerns the procedure of the establishment, composition, competence and activities of the assembly and council secretariat. Article 112 stipulates that an Assembly of States Parties to this Statute is hereby established. Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly. The Assembly shall: (a) Consider and adopt, as appropriate, recommendations of the Preparatory Commission; (b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; (c) Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto6 ; (d) Consider and decide the budget for the Court; (e) Decide whether to alter the number of judges; (f) Consider any question relating to non-cooperation. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting; (b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting. It is noteworthy that, to draw lessons from the arrears of contributions by United Nations Member States, the Statute emphasizes that, a State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State Party to vote in the 6 According

to Article 112(3) of the Statute, the Assembly shall have a Bureau consisting of a President, two Vice-Presidents and 18 members elected by the Assembly for three-year terms; the Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world; and the Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities.

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Assembly and in the Bureau if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party. Part 12 of the Statute deals with the finance of the Court. Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties. The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources: (a) Assessed contributions made by States Parties; (b) Funds provided by the United Nations; (c) Additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities. Part 13 of the Statute, entitled by “Final Clauses”, deals with matters relating to the settlement of disputes, reservations, amendments, review, signature, ratification, acceptance, approval or accession, entry into force, withdrawal and language texts of the Statute.

8.4 Significance of the ICC The year of 1998 was the 50th anniversary since the adoption of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide, two important human rights documents of the United Nations. At that moment, the convening of the Rome Diplomatic Conference and the signing of the Rome Statute of the International Criminal Court are of special significance, which marks a cross-century historic breakthrough in international law, such as the protection of human rights, the construction of the international judicial system, the international criminal responsibility of individuals, international criminal judicial cooperation and the maintenance of international peace. The Court has always been recognized as an indispensable judicial organ of the international legal system. It is well known that both the Permanent Court of International Justice in the era of the League of Nations and the International Court of Justice of the current United Nations can only deal with disputes between States and do not involve in any individual cases. For a long time, scholars of international law often regard this phenomenon as a significant distinction between international law and domestic law. In fact, this has been a major drawback of international law as an independent legal system. It is because of this flaw in international law that, despite repeated incidents of gross violations and serious human rights abuses in the international community, individuals rarely get the punishment they deserve. For example, over the past 50 years, there have been large-scale crimes against humanity and war crimes on Earth, and no individual has been accused of criminal responsibility until the middle of the 90 s. Thus, while the establishment of the Court does not imply that in the future the individual who commits the crimes mentioned above will be subject to international criminal responsibility and get punishment commensurate with his

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or her guilt, while it has, after all, filled the gap between the international judicial organs and their jurisdictions as humankind enters the new century. The establishment of the Court has fixed the shortcomings of past and existing international special (ad hoc) tribunals. Since the end of the World War II, the international community has set up special ad hoc tribunals to try war criminals, such as the Nuremberg Military Tribunal, the Tokyo Military Tribunal for the Far East, the International Criminal Tribunals for the former Yugoslavia and the International Criminal Tribunal for Rwanda. They have made important contributions or are playing an important role in the maintenance of international peace and security, international justice, the protection of human rights, the alleviation of regional conflicts, the avoidance of war escalation and the settlement of disputes. However, since they are all ad hoc institutions, the impartiality of their justice has always been in debate. For example, for a long time, it has been argued that the trial of war criminals by the Nuremberg and Far East Military Tribunals was the trial of the Allies against the Axis states, the victorious nations against the defeated nations, and even there was a condemnation of such trials as “victor’s justice”. The impartiality of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, established in recent years, have been further questioned as follows: Why are there only ad hoc tribunals for conflict and war crimes in these two regions or countries, but not to bring it to justice that similar and even more serious criminals in other regional conflicts and wars? The ad hoc tribunals also have problems in temporal limit, for instance, the massacre of thousands of refugees in the Rwandan ethnic conflict happened in 1997, but the current jurisdiction of the International Criminal Tribunal for Rwanda is limited to the massacres that took place in 1994. This kind of temporary international criminal justice process, therefore, can easily create the illusion that the same crimes committed by different persons or in different places or at different times may lead to totally distinct legal consequences. Some may be punished, and some are still getting away from punishment. It is for this reason that some scholars and politicians see this ad hoc tribunal as a “selective justice”. The Court is a permanent international judicial organ whose permanent nature eradicates the deficiencies inherent in the above-mentioned ad hoc judicial organs. The establishment of the Court will strengthen the cooperation between international criminal justice and domestic criminal justice, thus altering the situation in which the most serious international criminals cannot be or hard to be punished for a long time. As noted by the United Nations International Law Commission in its 1996 report, “The specificity of crimes in international law lies in the frequent need for direct or indirect participation of a certain number of individuals, at least some of them are in government or military command posts”. Under normal circumstances, the State will bring criminal offenders to justice through its judicial organs. However, in times of conflict or war, both nationally and internationally, the State concerned and its judicial organs are often unwilling or unable to act in this way. The reason may be that the government generally lacks the political will to accuse its citizens, especially senior government officials (as in the case of the former Yugoslavia), or

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that State institutions have collapsed (as in the case of Rwanda). After the establishment of the Court, if only the offences set forth in the Statute are committed, the Court may exercise its jurisdiction when the State concerned is unwilling or unable to resort to judicial proceedings in its own country. Thus, while we cannot assert that the establishment of the Court will bring international criminal justice to the point of “the law is so tight that no person commits crime can escape from trial”, it does can significantly alter the history of the disconnection between international criminal justice and domestic criminal justice and the history of the most serious international offender without or rarely with punishment. The establishment of the Court will deter the future or potential, the most serious international criminals. As the Deputy Secretary-General for Legal Affairs of the UN, Hans Corell, asserts, “From now on, all potential warlords must know that, with the development of conflicts, there might be an established international tribunal before which those who violate the laws of war and humanitarian law will be accused…… Everyone shall be presumed to know the contents of the most basic provisions of international criminal law; the defense that the suspects were not aware of the law will not be permissible.” In the history of mankind, the majority of war crimes and crimes against humanity were not punished even throughout the twentieth century. This weakness in human society allows war mongers and tyrants to do whatever they want to achieve a political purpose. The establishment of the Statute and the Court would necessarily reverse that situation to some degree, which means that the international community would no longer tolerate impunity for the perpetrators of the most serious international crimes, whether they were heads of states or military commanders or ordinary soldiers. Such deterrence of the Court is one of the main purposes why the UN and its Member States establish this permanent judicial organ. However, there are some serious flaws in the Statute, and there exists divergent views among states about the relevant Articles of the Statute, which has led some States to vote against and abstain from voting on the Statute. Firstly, it is difficult for some States to accept universal jurisdiction over the “core crimes” set out in the Statute by the Court. Secondly, the Statute’s provisions on the definition of crimes and individual criminal responsibility are not commensurate with the reality of the international community, and have not considered sovereignty and security interests cherished by States. For example, the Statute’s definition of war crimes in internal armed conflict goes beyond customary international law and relevant international conventions. Although the Statute affirms the priority of the Security Council in the determination of the crime of aggression and the individual criminal responsibility, the Statute stipulates a 12-month period for the Security Council’s priority determination, which is clearly detrimental to the Security Council’s exercise of its authority under the UN Charter. The Statute’s definition of crimes against humanity is too radical, which deletes the important criterion “wartime”. It is incompatible with customary international law that requires this crime committed in wartime or wartime-related periods and the international judicial precedents. It is also incompatible with the judicial practices in half a century that various international military and criminal tribunals applied these crimes committed in wartime. Moreover, the Statute’s enumeration of specific acts against humanity

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is too broad, including some contents that are originally part of human rights law. Such a practice “deviates from the original intention to establish the Court”, since “the international community is not to establish a human rights court, but a criminal court that punishes the most serious crimes in the world”.7 Moreover, in terms of the jurisdiction of the Court, many States regretted that the Statute had failed to contain crimes like terrorist activities. Other states were dissatisfied with the provisions of the Statute on military jurisdiction. For example, the UN, fearing that its soldiers would be tried abroad, insisted that the Statute should contain the provision that in most cases the prosecution of military personnel should be subject to the consent of the Stated concerned. Some States even held that the provisions of the Statute concerning the jurisdiction might result in unjust consequences: If Cambodia did not sign the Statute, even though its civilians were slaughtered by a person like Pol Pot, the ICC still could not help with it; while if the UN did not sign the Statute but Serbia did, the UN peace-keeping force in Serbia and its servicemen may be accused of committing crimes enumerated in the Statute. It is more important to note that some States have made serious reservations to the Statute regarding the investigative power ex officio enjoyed by the Prosecutor. Such investigative power of the prosecutors is not only automatic, but it also empowers individuals, non-governmental organizations and various agencies to accuse civil servants and soldiers. This initiation procedure, which places the will of individuals and non-governmental organizations above national sovereignty, is likely to become a tool for interfering in the internal affairs of States. Another negative effect of such procedure is: “To cause the court be faced with too many accusations from individuals or non-governmental organizations, and disenable it to pool human or material resources to deal with the most serious crimes in the world. In the meantime, it would also cause the prosecutors to be faced with allegations in great number and place themselves in a political vortex where they must make political decisions on whether to investigate and prosecute which would consequently lose their independence and impartiality.8 Although the Statute provides that the Pre-Trial Chamber exercises some oversight over the powers of the Prosecutor, the checks and balances do not function very well. Finally, some States expressed their opposition to the adoption of the Statute in the form of a majority vote, advocating that such important international treaty should be adopted by consensus. In short, the new changes in the international landscape in the last decade have made the Statute to be signed at the end of twentieth century and the Court can be eventually established at the beginning of twenty-first century. But we should be soberly aware of that: even though the Statute was adopted by a majority votes, it still lacks the fundamental basis for the formation of international agreements—(almost) consensus. In a multipolar international community of sovereignties, it is not yet clear whether an international agreement, which has not been adopted based on a (or almost) consensus, can obtain the necessary number of signatories and ratifications 7 See

Guangya Wang (1998). Wang (1998).

8 Guangya

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for its formal entry-into-force. Even if it comes into force, its actual effect is still questionable. Similarly, the fundamental and essential meaning of an Court which has not been widely accepted by all countries, cannot be brought into full play even if it is established. The United Nations International Court of Justice, which has existed for more than 50 years, has told a cautionary tale. Nevertheless, humankind should be hopeful that the Statute could enter into force by 2000, and that the major defects of some provisions in it could be fixed during the signing and ratification of the Statute. Meanwhile, differences among States with regard to the relevant provisions of the Statute would be eliminated or minimized, and the Court can be established on schedule and fully exercise its jurisdiction and establishes its authority as soon as possible, on the basis of respecting the principle of complementarity. Thus, beginning with the new millennium, human society will gradually reduce and even eliminate the evils that jeopardize the international peace, security, development as well as anti-human and such gross violations of human rights such as war, armed conflict, genocide, ethnic cleansing, murder, rape and human drug testing.

Reference Wang G (1998) On the Rome statute of the international criminal court. Legal Daily, p. 4

Chapter 9

Legality Issues of the Third Iraq War and the Dilemma of International Law

9.1 Introduction One year has passed since the Iraq war launched by the US-British coalition in March 2003. Saddam’s regime has already been declared toppled. The first postwar national interim constitution has been signed, laying the ground for the final transfer of sovereignty to Iraqi Governing Council on 30 June 2004. However, the material losses and psychological trauma left by the war to the Iraqi people cannot be overestimated. The impact that the war brings on international law is no less than the influence caused by various issues the war left to Iraq, the Middle East, and the entire world in areas of politics, military and economy. Since the first day of the US-British coalition launching Iraq War, every type of actors on earth—states, international organizations, civil groups, news media, people from all walks of life, including ordinary people—comment on this war, either due to professional instincts and a strong sense of responsibility, or as a chat topic. The members of the International Legal Community around the world have responded to their professional instincts, and have commented on the issues of international law involved in this war in various ways. The core issues involved are nothing more than: (1) Is this war legal or illegal under international law? (2) Did this war bring a crisis of trust to international law or a turning point of change? Undoubtedly, the deniers ruthlessly condemn the military strikes of the US-British coalition, believing that it has brought an unprecedented crisis of trust to international law, a flagrant trample on the UN Charter and its principles, and another heavy blow to the international collective security system. Supporters, though acknowledging that the war launched by the US-British coalition was not directly authorized by the Security The Article was originally written by Prof. Zeng in Chinese, and published in Lingliang Zeng (ed.), International Law and China in the Early 21st Century, Wuhan University Press, 2005, pp. 53–76. It was then translated by Dr. Jiao Zhang, proofread by Prof. Qiaofang Wu and Assoc. Prof. Yanxia Yao.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_9

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Council, thus questionable in its legitimacy, believe that the principle of self-defense in international law and several Security Council resolutions on the Iraq issue can be used as legitimate grounds. They even believe that it is an opportunity for the development of international law in the twenty-first century. There are also some neutrals, or “the one stand in grey zone,” who admit that it is difficult to find a legitimate basis for the war from the theories and practices of current international law, but also think the war objectively reasonable or consider it to be a pragmatic and reasonable alternative practices of international law. After a general analysis of several representative views that have emerged, in the following part, I will try to use a comprehensive research method to review the shortcomings and vitality of the current international law and its mechanism exposed through this war, combined with the political background from the perspective of international law theories and practices, and further demonstrates the necessity of appropriate changes in the existing international law and international mechanisms.

9.2 Legality of the Third Iraq War: A Sustained Debate Topic in International Law On 20 March 2003, the US-British coalition launched military attacks against Iraq. The next day, the United Kingdom and the United States respectively wrote to the then President of the UN Security Council to report on the military strikes against Iraq and their legitimacy. Britain has cited in its report the right to enforce the Security Council Resolutions1 on Iraq’s weapons of mass destruction. The United States argues that the basis for the ceasefire agreement reached with Iraq in 1991 no longer exists, thus continuing to exercise Security Council authorization 678 (1990) for the use of force in Iraq, declaring its use of force against Iraq as the exercise of the right to self-defense and the defense of the international community.2 The basis of use of force against Iraq by the US and Britain once again caused a great uproar in the theoretical and practical circles of international law. The intensity of the debate is greater than the dispute caused by NATO’s use of force against Kosovo in 1999 on the ground of humanitarian intervention. After reviewing the comments made by scholars of international law at home and abroad during the previous period, the following representative views have been formed on the legitimacy of the Iraq war in 2003.

1 See 2 See

United Nations Security Council (2003). ibid.

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9.2.1 Opinion for Lawful Use of Armed Force in Iraq The US and British governments, the initiators and implementers of the war against Iraq, who occupied Iraq, naturally claim the legitimacy of their acts of force. The legal councils of relevant government departments of the two states have demonstrated and explained their position in details on some occasions. Some scholars of international law have also tried to find evidence from similar events experienced by the international community. Some scholars seek policy evidence outside the law—in the new US security strategy.

9.2.1.1

“Collective Self-Defense” or “Authorization from Resolutions”

Soon after the US-British coalition launched the war against Iraq, the American Society of International Law and the Journal of American International Law held an annual conference in April 2003 under the theme “Future Implication of The Iraq Conflict”. The first paper published was an article co-authored by legal counsel (William Howard Taft IV) and assistant legal counsel (Todd Buch-Wald) of Bureau of Political-Military Affairs, the US Department of State. In this article, the author identified the United States military action against Iraq in 2003 as the continuation of legitimate collective self-defense due to Iraq’s occupation of Kuwait in 1990 and Iraq’s continued serious violation of the cease-fire conditions established in April 1991, as enforcement actions taken in accordance with several Security Council resolutions on Iraq issues during 1990–2003. John Yoo, a former deputy assistant attorney general for the United States Department of Justice, reviewed the background of the Iraq issue from 1990 to 2003 and came to the same conclusion: the 2003 US-British coalition’s use of force against Iraq was authorized in accordance with several Security Council resolutions. These resolutions mainly include Resolution 678 of 1990, Resolution 687 of 1991 and Resolution 1441 of 2002, and Iraq’s material breach of the 1991 Ceasefire Resolution.3 To this end, the author summarizes these views as theories of “collective self-defense” or “authorization from resolutions.” The supporter of “collective self-defense” believes that the resolutions on Iraq made by the UN Security Council over a period of more than ten years are not isolated, but have a close internal relationship with each other. On 2 August 1990, Iraq violently occupied Kuwait. The next day, the Security Council approved the Resolution 660, which strongly condemned Iraq’s aggression and demanded its immediate withdrawal from Kuwait. When diplomatic efforts failed, the Security Council approved Resolution 678, which stipulated that Iraq must fully implement Resolution 660 before 15 January 1991, and authorized UN Member States to “use all necessary means to uphold and implement Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.” Later, Iraq refused to withdraw its troops from Kuwait before the stipulated deadline, and the US-led coalition launched the Operation Desert Storm, forcing Iraq 3 See

Yoo (2003), p. 567.

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to withdraw from Kuwait on 27 February 1991. In March of the same year, the Security Council approved Resolution 687, establishing formal ceasefire conditions aimed at ending hostilities in the Persian Gulf. These conditions require Iraq: (1) to destroy its chemical, biological weapons and ballistic missiles and accept on-site inspections; (2) not to use, develop, build or obtain such weapons of mass destruction and their launch systems; (3) not to obtain or develop nuclear weapons or materials or components that can be used for nuclear weapons. To this end, the resolution also established a United Nations Special Commission (UNSCOM) in cooperation with the International Atomic Energy Agency (IAEA), responsible for monitoring the implementation of the conditions above. Iraq formally accepted these conditions on 6 April 1991, and ceasefire came into effect. However, Iraq failed to cooperate with the work of UNSCOM and the IAEA over the next few years. During which, the Security Council approved Resolution 1137 in 1997 “condemning …… Iraq’s continued violation of its obligations under relevant resolutions to cooperate fully and unconditionally with the Special Commission”, and warned that this situation continued to pose a threat to international peace and security and would have “serious consequences”. On 15 December 1998, the Special Commission reported that due to Iraqi obstruction, it failed to perform its duties assigned by the Security Council. The next day, the US-British coalition launched a 74-h air strike against nearly 100 targets in Iraq. Over the next four years, Iraq rejected UN inspections. The “9·11” terrorist attacks in 2001 and the US military strike against Afghan al-Qaida and Taliban forces have sharpened the Iraqi issue. On 8 November 2002, the Security Council unanimously approved Resolution 1441, stating that “Iraq’s non-compliance with Council resolutions, the proliferation of weapons of mass destruction and long-range missiles poses a threat to international peace and security,” warned that if it rejected international inspections and continued to refuse to sever relationships with international terrorism and stop the persecution of its people, this would cause “serious consequences”. It also gave Iraq “the last chance to comply with its obligation to destroy weapons in accordance with relevant Security Council resolutions”. Despite Iraq’s expressing its willingness to resume United Nations inspections, its actual actions are far from the requirements of Security Council Resolution 1441. The situation over more than 10 years triggered the use of force against Iran under Resolution 678, the suspension of the ceasefire and the recommencement of hostilities against Iran are an appropriate response to Iraq’s material breach of Resolution 687.4 It must be pointed out that the above conclusions of the US government and some scholars of international law have not been widely accepted by the international community. For example, the Permanent Representatives of France, Germany, and Russia to the United Nations have clearly stated that as the councils of the Security Council at the time, they did not agree on the use of force against Iran without the Security Council’s resolution to authorize the use of force, because the broad authorization of Resolution 678 of 1991 has ended. However, John Yoo disagreed. He believes that this view is wrong both from the perspective of the practice of the United Nations and from the perspective of law. In 4 See

ibid, pp. 567–568.

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his view, in the past, the Security Council had not easily authorized the use of force or easily revoked the decision to authorize the use of force. When the Security Council is taking serious steps to terminate its authorization, it has only chosen one of the two ways: either by expressly terminating the prior authorization or by setting an up-front time limit on the authorization. In contrast, Resolution 678 contains no time limit, and all Security Council resolutions on Iraq, including Resolution 1441, do not explicitly terminate the provisions of Resolution 678 on the use of force. Therefore, unless the Council uses the same language as it did in the past, and explicitly announces that it has terminated its authorization under resolution 678 on the use of force, any such authorization will continue.5 Supporters of the theory of “collective self-defense”, while demonstrating the continued validity of Resolution 678 on the authorization to use force, have also strengthened their arguments from the perspective of the inseparable connection between Resolution 687, 1441 and 678. Resolution 1441 of 2002 concluded that Iraq “has been and remains in material breach of its obligations under the relevant resolutions, in particular Resolution 687 on obligations regarding Iraq’s weapons of mass destruction programs.” Furthermore, Resolution 1441 states that any false statement and concealment by Iraq regarding its weapons of mass destruction program “shall constitute a further serious breach of Iraq’s obligations”. In addition, the resolution reminded Iraq that Security Council has repeatedly warned that its continued breach of its obligations would have “serious consequences”. As a result, Resolution 1441 found that Iraq was seriously in breach of its obligations and would inevitably allow the United States and its allies to end the ceasefire under Resolution 687 and recommence the use of force authorized by Resolution 678.6 It is worth noting that the theory of “collective self-defense” regarded the Security Council Resolution 687, which stipulated the conditions for a ceasefire, as a treaty between Iraq as one party and Kuwait and the United Nations Member States that cooperated with Kuwait as the other party. Therefore, in accordance with Article 60, paragraph 2(b) of the Vienna Convention on the Law of Treaties, a serious breach of a treaty by one party gives the other party particularly affected the right to partially or wholly suspend the implementation of the treaty. Furthermore, in accordance with Article 60, paragraph 2(3) of the Convention on the Law of Treaties, even if one party is not “particularly affected”, a serious violation that “fundamentally changes” the parties’ status also allows the whole or a part of the treaty to be suspended. Resolution 687 is a formal ceasefire agreement between Iraq and Kuwait, the United States and other United Nations Member States (not the United Nations) that participated in the First Gulf War. For more than 10 years since then, Iraq has repeatedly violated the ceasefire agreement, especially the continued development of weapons of mass destruction, which will inevitably give the United States, as a party to the agreement, the right to unilaterally suspend the implementation of the agreement. Once the cease-fire agreement is suspended, the United States can use force against Iran in

5 Ibid. 6 See

ibid, p. 568.

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accordance with Resolution 678 to implement the resolution and restore international peace and security in the area.7 Here, supporters of the theory of “collective self-defense” especially emphasized that in the spring of 2003, the use of force by the US-British coalition against Iran could also justify its legitimacy through the rules of armistice in International Law. In other words, Resolution 687 is an armistice agreement, not a peace treaty. It does not end the state of war, but merely “suspends military operations through an agreement between the warring parties.” According to the annex to the Convention with respect to the Laws and Customs of War on Land, “any serious violation of the armistice by one of the parties gives the other party the right of denouncing it and even, in cases of urgency, of recommencing hostilities immediately.” The missile attacks on Iraq by the US-British coalition in 1993 and 1998 were examples of the suspension of the ceasefire and the recommencement of hostilities caused by Iraq’s serious breach of its obligations.8 Nevertheless, no matter how widely the theory of “collective self-defense” is cited as a legitimate basis for the US-British coalition’s armed forces, the international community has completely different responses to the three military strikes and wars against Iran in 1993, 1998, and 2003, from questioning to slamming, to condemnation, more and more intensely.

9.2.1.2

“Anticipatory Self-Defense” or “Preventive Self-Defense”

Another common legal basis for the use of force by the US-British coalition against Iran in 2003 was the right to self-defense under Article 51 of the UN Charter, especially the anticipatory action in self-defense confirmed by customary international law. Some scholars call this right “preventive self-defense”. European and American scholars of international law, especially American scholars, believe that a reasonable right to “anticipatory self-defense” is an inherent right already established by customary international law. According to US Secretary of State Elihu Root, during the US-Soviet-Cuban missile crisis of 1963, the right to anticipatory self-defense means that, in accordance with international law, every country enjoys the right to “protect itself by preventing a condition of affairs……otherwise, it will be too late to protect itself.”9 At the same time, American scholars cited the “Caroline Case” in 1837 between US and Britain as a classic case when referring to the right to anticipatory selfdefense.10 The case established two main criteria to test whether self-defense is 7 Ibid,

p. 569. p. 570. 9 See Schlei (2003), p. 196; Yoo (2003), p. 572, note 51. 10 In 1837, an American steamboat named Caroline was used by armed insurgents to provide manpower and material resources from the United States to oppose British rule over Canada. A British army entered the United States from Canada one night and captured Caroline, ignited the ship and dropped it into Niagara Falls, while killing two American citizens. Britain claimed that it was exercising its right to self-defense, and then US Secretary of State Webster, on behalf of the 8 Ibid,

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legitimate: First, the use of force must be necessary because the threat is imminent and it is impossible to choose a peaceful approach. Second, the use of force to respond must be commensurate with the threat. These two standards are called “Caroline test” or “Webster’s formulation” because they came from a letter from US Secretary of State Webb to British Minister in Washington Henry Fox. This standard was allegedly confirmed by the Nuremberg International Military Tribunal, which had ruled that Germany’s invasion of Norway in 1940 was not an exercise of self-defense because there was no need to prevent “imminent” invasions from the Allies.11 The provisions of Article 51 of the UN Charter, which came into force in 1945, on the right to self-defense, are also considered as a confirmation of the “right to anticipatory self-defense” in customary international law. Although the “right to anticipatory self-defense” and its test standards have long been recognized by the theories and practices of international law, international law does not and is unlikely to specifically define some key concepts, like “imminent” “threat” and “necessity” “commensurate” with “threat”. In practice, this naturally leaves room for the user of this theory to justify the relevant armed action. For example, some scholars of international law have suggested that an “imminent threat” does not necessarily mean that an “armed attack” has occurred, and it does not necessarily have to “enter the territory or border of a country exercising the right to self-defense”. As long as there is evidence that the “threat” has “possibility” rather than “probability,” the threatened country can exercise the “right to self-defense”, otherwise it will be too late. For the Iraq war, the US government believes that it is exercising its “right to anticipatory self-defense” because it thinks necessary to resolutely exercise “the right to anticipatory self-defense” against a “rogue state” that it believes has weapons of mass destruction, has close links with international terrorism, and repeatedly refuses to fulfill its international obligations, otherwise it is to condone international criminal acts. The US government and some scholars have also claimed that over the past 20 years, the United States military strikes against Libya, Panama, Iraq, Afghanistan, and Sudan have all been manifestations of the exercise of its “right to self-defense”. However, it is also important to recognize that the majority of these US military actions based on “the right to anticipatory self-defense” have not been (at least not completely) recognized by the international community, and some of the military attacks have even been condemned. US government, asked the British government to provide evidence that the need for self-defense was immediate and imperative with no other choice, and it will be too late to think seriously. The US government has also suggested that even if it proves necessary for British troops to enter US territory at the time, it must also prove that nothing unreasonable or excessive was done. Since this action is declared to exercise the necessary self-defense, it must be within necessary limits. The following year, Britain sent a representative to the United States to specifically resolve the Carolina dispute and other related matters, during which the British representative acquiesced in using the above conditions to prove whether the British action was justified. See Webster (1841); Ashburton (1842). 11 See International Military Tribunal (1946), p. 205; Also Bowett (1958), pp. 142–143; Yoo (2003), p. 572, note 54.

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“Doctrine of Pre-Emption”

Doctrine of pre-emption, also known as “pre-emptive self-defense”, was first proposed in the National Security Strategy of the United States of America (referred to as “National Security Strategy”) issued by the US Government in September 2002.12 The background is well known: The “9·11 Attack” that broke out in 2001 prompted the United States to review its “deterrence and containment” national security policy formed since the Cold War. In view of the increasing size of international terrorist organizations, the increasing possibility of (potentially) having weapons of mass destruction, their cruel means of attack, and the huge damage caused to people and property, the United States Government believes that its traditional national security policy is not enough to safeguard the national security and the lives and property of the people. It cannot maintain international peace and security, so it is necessary to establish a new security concept: “pre-emption.” For example, the United States’ National Security Strategy explicitly states: “The greater the threat (terrorism), the greater is the risk of inaction, and the more compelling the case for taking action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.” The US-British war against Iraq in March 2003 was the first time the United States put its “doctrine of pre-emption” into practice. As to the essence of “doctrine of pre-emption”, some scholars believe that it is a new expression of “anticipatory self-defense” or “preventive self-defense”. They are actually the same thing: “pre-emptive” self-defense is not an armed action against a specific and dangerous threat, its purpose is to prevent a more general threat.13 The US State Department’s Legal Council has written specifically on the meaning of “pre-emption”, arguing that “the president’s National Security Strategy is based on the same legal framework as applied to the United Kingdom in the Carolina case and to Israel in 1981.14 When facing a critical threat, after exhausting peaceful relief and carefully considering the consequences, a country can take “pre-emptive” action to defend its nationals from incredible damage.”15 Other scholars believe that the “doctrine of pre-emption” has exceeded the traditional “preventive self-defense”. It emphasizes the potential and subjective threats, thereby making it easier to use force to defend itself. The “doctrine of pre-emption”, as the basis of the American war against Iraq, has been widely questioned about its legitimacy in international law and is still a debate topic in the political and academic circles. Despite the fact that Iraq’s repeated violations of the relevant Security Council resolutions are recognized by the international 12 White

House (2002). (2003). 14 In 1981, Israel vigorously defended its armed attacks on Iraq’s nuclear facilities based on the “anticipatory self-defense”, arguing that its actions were vital to its national security. The Security Council has condemned it by resolutions, arguing that Israel’s armed actions are unnecessary, endanger regional security, and have not exhausted peaceful means. See United Nations Security Council (1981). 15 See https://www.cfr.org/publication.php?id=5250%3E (Memorandum to American Society of International Law Council on Foreign Relations Roundtable on Old Rules, New Threats). 13 Sapiro

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community, it may possess weapons of mass destruction, it may have links with international terrorism, and it may pose a threat to the national security of the United States and the lives and property of its people, its actions may pose a threat to the area, obviously there is no theoretical or practical basis for the use of “preemptive” military strikes to exercise the so-called “right to preventive self-defense”, without “armed attacks”, without obtaining conclusive evidence that it did have weapons of mass destruction, and without exhausting peaceful means, without fully demonstrating “emergency” of the threat and the “necessity” of using force. So, if people at least felt sympathetic to the fact that American armed strikes against Afghan alQaida and Taliban forces has won the support of the international community, the US-British war against Iraq in 2003 has caused endless condemnation. Although the background of the “doctrine of pre-emption” can be understood, there is no legitimacy at all in international law. However, “doctrine of pre-emption”, as a new strategic and foreign policy tool of the United States, seems to have received some expected effect: It gives an end to Saddam’s decades-long autocracy and frees the Iraqi people from long-term internal depression and external sanctions. Some countries called by the United States “axis of evil” or suspected of possessing weapons of mass destruction, such as Iran and Libya, have expressed their willingness to accept the International Atomic Energy Agency’s inspection of its nuclear facilities. At the same time, because “doctrine of pre-emption” is unreliable in international law, its negative political consequences and uncertainty are also clear: Although the US-British coalition won the war against Iran easily, their international reputation was greatly damaged, and domestic support also suffered. Although the battle has ended for more than a year, post-war reconstruction work turned to be more difficult and the situation is becoming increasingly serious. The US and British soldiers were attacked in Iraq which led to continuous casualties and the armed conflict seems to be intensifying. Although the United States claimed that it would establish a democratic government elected by the Iraqi people as soon as possible, people still wonder when this future government will come into being, whether it can guarantee the democracy, and whether the new regime can independently handle Iraq’s internal and external affairs. Although the United States has always believed that Iraq own weapons of mass destruction and has spared no effort in conducting searches, however, it ended up with nothing definite. Over time, the international community becomes more doubtful whether Iraq has weapons of mass destruction. In the end, not only is it difficult to justify the American war against Iraq, but even some “rationality” that might exist politically and morally has gone.

9.2.2 Opinion for Unlawful Use of Armed Force in Iraq On 20 March 2003, as the war launched by the US-British coalition against Iraq broke out, international law scholars all over the world instinctively began to discuss the legality of the war like this kind by applying their own understandings about

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current international law theories and practices. This big global debate has been dominated by the opponents who deny the legality of this war. Chinese international law scholars have nearly invariably expressed the same negative attitudes, which could at least be seen from those papers and speeches that have already been published in domestic press and relevant seminars. It is commendable that the idea raised by a few Chinese international law scholars about the negative impact this war brings on modern international law, especially the United Nations and its collective security system have been further discussed by the worldwide international law scholars. Mainly based on the following analysis, most international law scholars reach the same negative judgment on denying the legality of the Iraq War: Firstly, the war launched by the United States and Britain obviously violated Article 2(4) of the UN Charter, which prohibits the use of force. The Article 2(4) of the UN Charter is recognized as an epoch-making progress in the development of international law. It marks the start of a period in which states, when dealing with their relations with each other, are prohibited not only on using wars as the instrument of national policy, but also on the use of force, even the threat of force, unless International Law expressly provides otherwise (that is, Security Council expressly authorized to do so or the state itself legally exercised the right to self-defense); And the rule of the UN Charter on the prohibition of the use or threat of force is not simply a principle to be observed by the United Nations—the most universal international organization today, and its Member States, more importantly, it serves as an important part of modern International Law basic principle system, which is also a generally recognized norm of international jus cogens that is equally legally binding to non-United Nations Member States. Combined with the background analysis of the war, it is difficult for the United States and Britain to shield themselves from severe condemnation of international community about their violation of the prohibition of the use of force. Indeed, more than a decade passed since the first Gulf War during which Iraq did not seriously fulfilled its obligations suggested by a series of UN Security Council resolutions. Generally, Iraq coordination with United Nations and IAEA verification and weapons inspections has been far from satisfactory though there are some other complicating and periodical factors. To this end, the Security Council has repeatedly issued harsh resolutions while the United Nations Secretary-general and concerned leaders have also repeatedly warned the Iraqi government. At the same time, the United States, Britain and some other countries claimed to obtain the evidence and clues indicating the possibility of Iraqi possessing, developing and producing weapons for mass destruction, and even a certain amount of information indicating that the Iraqi regime was close to international terrorist organizations. However, such clues or information are not sufficient enough since it only proves possibilities. And more importantly, no conclusive evidence has been found, at least not earlier than the military attack launched by the US and Britain (there is still no great progress has been made yet).16 16 On January 27, 2004, the bush administration’s self-appointed chief inspector for Iraq, David kay, testified before the senate armed services committee that Saddam Hussein’s government had not possessed or continued to develop weapons of mass destruction before the Iraq war. “Almost all of us

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In this context, the flagrant war against Iraq launched by the US and Britain is illegal. No wonder the other three permanent members except the US and Britain have clearly opposed to this military action. Secondly, the use of force by the United States and Britain against Iraq violates the UN Charter’s principle for peaceful settlement in international disputes. Compared with the prohibition of the use and threat of force, the peaceful settlement of international disputes was established much earlier as a principle of international law. The peaceful settlement of disputes between states was the preferred method of dispute settlement even in those centuries when international law did not prohibit war but only limited it. Especially after two Hague Peace Conferences in the late nineteenth century and the early twentieth century, peaceful settlement of disputes has become an indispensable principle in various bilateral treaties. Since the UN Charter lists the peaceful settlement of international disputes as one of the principles to be observed by the United Nations and its Member States, together with the prohibition of the use of force, the principle of the peaceful settlement of disputes also has the status of fundamental principles and jus cogens in the entire international law system. There is no doubt about this, because they are cause and effect to each other and complementing each other. Modern international law prohibits the use or threat of force between states, which necessarily means that the states concerned can only settle their disputes by peaceful means. And vice versa, modern international law requires states to abide by the peaceful method as a compulsory legal obligation, which necessarily means that states cannot use or threaten to use force to settle disputes between them, unless they are explicitly authorized by the UN Security Council or exercising the legitimate right to self-defense. Before the US and Britain launched the war against Iraq, there are serious differences between these states in how to carry out the series of the UN Security Council resolutions, some of the differences also exists between Iraq and the United Nations, especially in the composition about teams of weapons inspectors and about inspection issues such as place, time, scope, approach, which is the most severe that have led to a very long time suspension in weapon inspection work, and military air strike from the US and Britain. Nevertheless, the United Nations and other relevant international organizations have been sparing no effort to use various peaceful means to compel the Iraqi authorities to comply with their international obligations. Many states have also been making considerable diplomatic efforts in the hope that Iraq will unconditionally accept and cooperate with the inspectors in their field work. However, as the work of the UN inspectors is continuing as planned and the Iraqi side is cooperating as required (although such cooperation is incomplete and unsatisfying), the US and Britain launched a war against Iraq after failing to obtain the permission from Security Council to allow to use force, which is undoubtedly a serious violation of the principle of peaceful settlement of international disputes. Although until are wrong,” he says wistfully. “I must include myself.” Kay’s comments put the bush administration in a difficult position, as it struggled for a long time to convince the world that Saddam Hussein’s stash of weapons of mass destruction was merely an “emperor’s new clothes” for US policy in Iraq. Now, kai used his conscience to take off the emperor’s new clothes, which did not exist in the first place. See https://www.people.com.cn/GB/guoji/1029/2324814.html. Accessed 7 February 2004.

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catastrophe struck Iraq, its cooperation with the weapons verification team was still limited which leaves the doubt about its sincerity, after all, there is still some room for peaceful means which is acknowledged by the international community. As the war loomed, the Security Council held an emergency session about Iraq issue. At this meeting, all the participants except the representatives of the United States and Britain proposed that a peaceful solution on dealing with Iraq issue still exists and that the council’s rules of collective responsibility must be maintained. Even France and Germany, which had supported the US and Britain in the previous two wars, also made clear that using a peaceful solution was still possible.17 Mr. de Villepin, French representative, clearly states that: “France believes that war can only be used as last resort and that the established rule of collective responsibility did not change. No matter how we loathe Saddam Hussein’s brutal regime, this rule must be applied to the Iraq issue and to the people and crises we will face together……Their plan (UN weapons inspectors, author’s note) tells us that there is still a clear and credible prospect for the peaceful disarmament of Iraq.”18 Fischer, the representative of Germany, also made it clear: “the plan (means program of work of the weapons verification group) provides a clear and convincing approach to the short-term and peaceful disarmament of Iraq. I want to emphasize this fact especially today. By supporting these demands and adding strict deadlines, it is possible to make Iraq peacefully disarm. Therefore, there is still some room for peaceful settlement. For the same reason, Germany firmly opposed to the launch of this imminent war.”19 Thirdly, without authorization from the UN, the use of force by the US and Britain against Iraq seriously violates the procedural rules of the UN collective security system. According to the UN Charter, the Security Council exercises primary functions and powers in maintaining international peace and security in accordance with the purposes and principles of the United Nations. To this end, it is responsible for investigating any international disputes or situations, providing suggestions on the method to mediate the dispute or the conditions for resolving it, making plans to deal with threats against peace or aggression and suggesting the action, urging Member States to implement economic sanctions and other measures except for use of force to prevent or stop the invasion, or take military action to fight against the invaders. It can be seen that in the UN collective security system, if it is necessary to take military actions against aggression and actions which pose a threat to peace, the decision should be made by the Security Council, as its exclusive authority any UN Member States and other states shall not take military action against a specific state without the authorization of the United Nations. Moreover, Article 27 of the UN Charter stipulates that any Security Council resolution on a substantive matter must be adopted by a unanimous vote of nine members, including all five permanent members’ affirmative vote. The judgment of aggression and threats and the decision

17 For

statements by delegates, see details on https://www.un.org/chinese/peace/iraq. Villepin (2003). 19 Fischer (2003). 18 de

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of whether to take military action or not are undoubtedly the most serious substantive matter. The United States and Britain flagrantly launched the war against Iraq without the authorization of the Security Council and even under the express opposition by the overwhelming majority of the Security Council, which not only violated substantive principles and rules of international law as mentioned above, but also constituted a serious violation of the procedure rules of the international collective security system. On March 20, 2003, the day the US-British coalition sent a letter to the President of the Security Council informing him of the war against Iraq, the Secretary-General said regretfully: “Perhaps if we had held on for a little more time, Iraq would have disarmed peacefully. If that were not the case, the world might have made a collective decision to act to address the problem, which would have had more legitimacy than the current action, thus gaining broader support”.20 The representative of Russia, in addition to the regret, also stated seriously that: “At a time it was very possible to disarm Iraq through examination, issues not directly related to resolution 1441 (2002) or other United Nations resolutions on Iraq were raised. None of these decisions authorized the use of force against Iraq beyond the scope of the UN Charter; or violently overthrowing a sovereign’s leader.”21 Finally, the US and Britain cannot justify themselves by the right to self-defense as legal basis. Indeed, the right of states to defend themselves by force, individually or collectively, is an important exception to the international prohibition against the use or threat of force. However, in order to prohibit and prevent the abuse of the right to self-defense by states in international relations, international law imposes clear and strict restrictions on the right to individual and collective self-defense of the states. As the most authoritative legal basis for the right to national self-defense, Article 51) in Chap. 7 of the UN Charter explicitly stipulates: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” From Article 51 of the Charter, we can conclude that the exercise of a state’s right to individual or collective self-defense must satisfy the following specific requirements: First, having already been attacked by force; second, before the council taking necessary measures; third, not hindering the council actions at any time, and fourth, reporting to the council immediately. The first and third requirements are undoubtedly material requirements and the second and fourth requirements can be regarded as the procedural ones. It is difficult to use the right to self-defense as the legal 20 Annan 21 Ivanov

(2003). (2003).

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basis for the use of force to examine the US-British war against Iraq according to the above-mentioned requirements. Firstly, Iraq not only has no capability or possibility to launch any armed attack towards the United States or Britain, there is also no evidence that Iraq posed an imminent threat to the interests, property or lives of the United States and its nationals in Iraq or any other state. Therefore, even according to the “anticipatory self-defense” established after the Carolina case and later so-called customary international law which is invoked by the US government and some scholars, the legitimacy of the US-British military action against Iraq can still not be justified. Secondly, although the Security Council has adopted a series of measures against Iraq during the last decade, most council members and the international community still believe that there are still some necessary measures which had not been taken. To be specific, the weapons examination team established under the relevant Security Council resolutions, despite numerous setbacks in Iraq, made significant progress before United States and Britain launched the war, whose program has been affirmed by the majority of the Security Council and the Secretary-general of the United Nations, and they all regret that the continuation of the program has been interrupted by the use of force by the United States and Britain in Iraq. This was amply confirmed by the statements made by the representatives at the council’s emergency consultations on Iraq on 19 March 2003. Finally, the United States and Britain launched a military attack on Iraq, which occurred during the team’s weapons examination, when the Secretary General of the United Nations and most members of the Security Council were sparing no effort to disarm Iraq peacefully, this undoubtedly obstructed the necessary action taken by the Security Council on the Iraq issue. The use of force in Iraq that is consistent with Article 51 of the UN Charter on the right to self-defense in that the two countries sent a letter to the President of the Security Council on 21 March, the day after the war began. Combined with the above analysis, it is not difficult to draw a conclusion: the war launched by the United States and Britain in Iraq not only directly violated the rule of prohibition on the use or threat of force and fundamental principles of international law about peaceful settlement of international disputes, distorted the right to national self-defense established by customary international law and the UN Charter, destroyed the international collective security system which has been running for more than half a century, but also directly invaded Iraq’s national sovereignty, damaged its territorial integrity and interfere in its domestic affairs.

9.2.3 Partial Legitimacy When discussing about the legitimacy of the US-British war against Iraq, a newlyborn view expressed that the war has a certain degree of legitimacy though it may not be totally legal. For example, Richard A. Falk, one of the editorial board members of American Journal of International Law, came up with the following explanation

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about the impact of the Iraq war on international law, especially on the United Nations charter system, even though he himself considered it unsatisfying: “The American pattern of behavior is in some tension with the Charter system, but it is a creative tension that suggests respect for the underlying values of the world community, viewing legality as a matter of degree, not either/or, and as requiring continuing adjustment to changing circumstances; as such, the claims of pre-emption in relation to mega-terrorism provide a reasonable doctrinal explanation for an expanded right of self-defense.”22 Another senior editorial board member of American Journal of International Law, agreed on the same occasion that “legitimacy can be seen as a question of degree, rather than an all-or-nothing choice.”23 Obviously, the view of partial legitimacy emerges as a compromise between the view of total legitimacy and total illegitimacy. This view does not fully support the presumption of legitimacy view that the US-British war against Iraq is a legitimate act to continue to implement the relevant Security Council resolutions and fully comply with the provisions of international law and the UN Charter on the right to self-defense. It recognizes that the US-British war against Iraq is hard to be viewed as a totally legitimate act according to substantive international law, whether customary international law or an international treaty. After all, it has not been authorized by the Security Council, and it goes beyond the usual interpretation of international law, especially the provisions on the right to self-defense in the UN Charter. Nevertheless, it does not seem to view the use of force by the US and Britain totally as an illegal act under international law, since the provisions of the UN Charter on prohibiting the use of force and legitimate self-defense were established more than 50 years ago, which are not entirely appropriate to current circumstances; A changeless understanding of the relevant provisions of the UN Charter (in particular Article 51 on self-defense, which states that a response can be made only after an armed attack has occurred) obviously cannot response to 9·11-like threats in the future. Then some scholars out of this ambivalence concluded that the war launched by US and Britain against Iraq was illegal in the light of static international law while it becomes legitimate in dynamic international law. As the view of partial legitimacy calls for centrism which does not go to extremes like the total legitimacy or illegitimacy, it seems to have won more agreement, especially from those non-legal people. However, when analyzing in terms of jurisprudence, this kind of compromise will inevitably be under suspicion of not following the principle, which is at least difficult to justify itself. As to the law, no matter domestically or internationally, there is only right or wrong. In judicial practice, there seems to be no such ruling that an act is illegal but also partially legitimate. Only after an act is judged as illegal, the judicial or adjudicative organ must consider how severe it is and what consequences it causes before deciding whether it should take legal responsibility and how much it should take.

22 See

Falk (2003), p. 593. (2003), p. 582.

23 Wedgwood

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9.2.4 “Illegal, Yet Not Illegitimate” Another compromise view expressed that the war against Iraq seems illegal from the point of the current international law and the international collective security system; however, from the purpose, it can be accepted that it is legitimate, or at least understood by the international community. For example, Miriam Sapiro, a former senior US national Security Council official, review the war from the perspective of self-defense, during which he wondered whether the doctrine of preventing war, while inconsistent with current international law, could be justified on other grounds. For example, could the brutality of Saddam Hussein’s rule constitute a situation in which regardless of its legitimacy, the purpose could justify the means?24 He also tried to use the Kosovo war in 1999 as an example during which NATO’s military intervention in Kosovo was justified on humanitarian grounds though the international law at that period did not explicitly authorize it. As Richard A. Falk talked about the Iraq war’s impact on international law, he cited the possibility envisaged by some American review articles in newspapers and magazines: no matter from the idea of launching the war without the approval of the Security Council, or based on the benefits of the interference, the use of force criticized for its violation of the UN Charter is “illegal, yet not illegitimate”. Based on this view, the legitimacy of the military intervention would not be necessarily affected even if Iraq was found to have weapons of mass destruction. It can still be justified as legitimate since it has freed the Iraqi people from an oppressive institution, used massive amounts of evidence to prove that the rulers of Baghdad committed crimes against humanity on a systematic and widespread large scale and occupied for helping Iraqi people to realize political democracy and economic prosperity.25 However, Richard argues that the legitimacy of Iraq war has not yet been justified at this point, it also depends on “whether the American battlefield victory in the Iraq war can be converted into a political victory, which will be measured in Iraq by such factors as stability, democratization, recovery of Iraqi sovereignty, and economic development. If the American occupation is viewed as successful, then the intervention is likely to be treated as ‘legitimate’, despite being generally regarded as ‘illegal’”.26 As far as I am concerned, arguments like this are under great suspicion of seeking the international community’s after-the-fact support and sympathy for the launch of war since it is almost impossible to convince the world to believe in this military attack’s legitimacy in international law. More importantly, the view of “illegal, yet not illegitimate” can be greatly harmful in practice. If this view was recognized by the international community, it means that: in the future, as long as the purpose can be proved to be legitimate, or just reasonable, a state can use force to attack another even without the authorization of the Security Council, which violates the theories and the practices of the international law on self-defense. As a result, the international fundamental principles about national sovereignty, non-interference, 24 See

Sapiro (2003), p. 603. (2003, March 18); Krauthammer (2003, May 16); Friedman (2003, May 18). 26 Falk (2003), p. 594. 25 Slaughter

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prohibition of use of force and peaceful settlement of international disputes will be severely damaged by the so-called “Illegal, yet not illegitimate” actions. And international collective security system will be just formal, and hegemony of “the purpose justifies the means” will be encouraged by the international community, which led the whole world to the unrest.

9.2.5 “Flexibility Benefits” Thomas M. Frank, a famous international law scholar and editorial board member of American Journal of International Law, put it in this way: “If the US-British war against Iraq does not comply with the UN Charter, should it be affirmed at least as a violation to help reform the law and make it more realistic?”.27 Then, Professor Frank enumerates some facts to prove that sometimes violators of international law will turn to be the law founders. In his opinion, the UN Charter was a quasi-constitutional document which has the flexibility through the practice of interpretation by its principal organ. This practice of interpretation is sometimes guided by states that have an interest in the result, which cannot be considered legitimate if the original meaning of the text is understood narrowly. In such conditions, the violation is covered by modification, sometimes focusing on the interests of the laws of the UN Charter and sometimes interests of the organ responsible for its implementation. For example, the International Court of Justice has confirmed that the abstention vote of a permanent member in the United States Security Council on the substantive matter is no longer considered as a veto. Such confirmation by the International Court of Justice results from the effectiveness to be achieved on the basis of the previous practice of substantial abstentions by Security Council members. It is obvious that the court’s confirmation would be unconvincing if Article 27(3) of the UN Charter is strictly followed, since the provision provides that resolutions on any substantive item of the council shall obtain the consents of the permanent members. Besides, during these decades, the peace-keeping action by the United Nations were based on the flexible interpretation of the UN Charter, namely, the presumption of “six-anda-half chapter of the charter”. However, actually, the evidence of clear authorization could not be found in current UN Charter. He also cited NATO’s so-called humanitarian intervention in Kosovo in 1999 as an example of flexible interpretation of the United States Charter.28 Superficially, the “flexibility benefits” appears to be innovative and has some examples to support. In fact, this argument is virtually the same as the above “illegal yet not illegitimate” view. If this view is accepted to guide international relations, the consequences will be disastrous. According to this view, if results are generally considered to be beneficial to the international community and to the development of international law, states can take action including the use of force regardless of 27 Franck 28 Ibid,

(2003), p. 614. pp. 614–615.

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the current international law. If so, the principle of prohibiting the use or the threat of force in modern international law would lose its nature as coercive law in practice as any state could resort to any means, even by launching the war to realize its purposes, as long as it believes those actions were beneficial. This would lead to the disappearance of world’s security and peace. It is also necessary to emphasize that some of the examples cited by Professor Frank could not excuse the Iraq war through the view of “flexibility benefits”. The confirmation of abstentions by permanent members of the Security Council and the recognition of the legal basis for UN peace-keeping actions are both based on a large number of consistent practices and objectives (Frank also mentioned this point) which are non-war and non-military issues. These decisions are made by the United Nations, the world’s largest universal international organization. By contrast, the US-British war against Iraq was an extraordinary and extreme act which was not decided by the United Nations, but a severe act decided unilaterally by an individual state that recognized it as beneficial and flexibly applied the international law. As for the Kosovo war launched by NATO in the name of humanitarian intervention in 1999, whose legitimacy, like that of the US-British war against Iraq, has been a controversial issue in the international community since it was not authorized by the UN Security Council. Therefore, this event simply cannot be regarded as persuasive practice.

9.3 Dilemma and Defects of Existing International Law: Completely Unmasked Again 9.3.1 Confusion Although the Iraq war ended with the collapse of Saddam Hussein’s regime, it raised questions about modern international law which will remain for a long period. More seriously, a series of postwar actions on Iraq by international community make people even more confused: Confusion 1 The international community, including most permanent members of the Security Council, who strongly opposed the military strike against Iraq, and stopped the United States and Britain from obtaining the authorization of the use of force through the Security Council resolution. However, after the quick end of war in Iraq, not only the US and Britain regarded themselves as winners and occupied Iraq, the United Nations and other states also recognized that and entrusted them with reconstruction in Iraq and only played a secondary and supplementary role in the post-war reconstruction in Iraq29 What does this mean? Does this mean that 29 The United Nations Security Council, in its resolution 2483 (2003) of 22 May 2003, declares that it “takes note of the letter dated 8 May 2003 from the permanent representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland addressed to the President of the council (S/2,003,538) and affirms that, as the occupying power under the

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the opposition to the use of force against Iraq was just a diplomatic tactic? Does it mean the implication ex post of the legitimacy of the use of force in Iraq? (as was inferred by some international law scholars) Does it mean that power can determine the legitimacy? Does it mean that we should let it go and just go ahead? Does this mean the law is attached to politics and decided by it? Confusion 2 If the war against Iraq is legal, why did so many states oppose it? Why was there a global debate? If it is judged as illegal, why could offenders evade the responsibility? Does this mean that although the exercise of the right to early selfdefense is illegal, it could evade legal responsibility? Or does it mean that the use of force without the Security Council’s authorization is simply a procedural violation, which is far less harmful than a state possessing weapons for mass destruction? Confusion 3 Can international law allow one state to use force to overthrow another state’s autocracy? If so, how can international law maintain the universally recognized basic principles and jus cogens of safeguarding state sovereignty and not interfering in internal affairs? How does international law ensure that fundamental human rights are observed worldwide while prohibiting the use of any force to overthrow a state’s autocracy? How to prevent the recurrence of severe crimes against humanity in a timely manner, such as the massive repression of the Kurds in Iraq, the massive ethnic cleansing in Kosovo and the massive genocide in Rwanda? Confusion 4 In terms of prohibiting weapons for mass destruction, the current international law tends to protect a few nuclear weapon-owning states with vested interests, whose obligation is to guarantee the waiver of test, production and proliferation of nuclear weapons and the technology and the use of nuclear weapons, while the obligation of most other states in the world is not to obtain, test, develop, produce and use nuclear weapons and its technology. Can international law guarantee the non-proliferation of weapons for mass destruction while guaranteeing the nuclear deterrent superiority of those nuclear powers? Is it fair to remain such an international legal system? Can we permanently sustain the world peace and security? Or can lasting peace and security in the world exist upon the nuclear deterrent of the nuclear powers? Confusion 5 As science and technology develops rapidly in the twenty-first century, on the one hand it constantly injects new vitality and means to the world economic development and social prosperity, on the other hand it brings great convenience and greater risk for international terrorist organization to commit brutal crimes like “9·11”, and increases the difficulty of the prevention and the strike against international terrorism for states and the international community. If the strict procedures of the international collective security system are maintained and the requirements for the right to self-defense in current international law are still strictly observed, then how to deal with new means of threatening international peace and security? Should the exception to the prohibition of the use of force in international law be adjusted? But if early strike or preventive strike, as advocated by the United States, is allowed, how to justify the necessity of it, and how to ensure the method is commensurate unified command (administration authority), the two states have specific powers, responsibilities and obligations under applicable international law”.

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to the purpose? How to ensure that the superpower will not interfere in the internal affairs of other states in the name of striking against international terrorism?

9.3.2 Two Sides of a Coin The questions and confusions listed above not all resulted from the Iraq war. Most have accompanied the international law from the beginning, but some of them become more prominent, sharper and more urgent after the Iraq war. It is beyond author’s limited knowledge, level and capacity and the limited space of this chapter to settle those questions, and the answers to many of them ultimately depend on the sovereign states that establish, observe and enforce the international law. Just as the sayings goes, “It is better for the doer to undo what he has done”. Moreover, some of these “bumps” may continue to accompany the international law in the future. What I want to clarify here is what attitude should be taken towards these issues: that is, what does the Iraq war really mean to international law? In my opinion, what the Iraq war means to international law has two sides of a coin: On the one hand, we cannot deny that the Iraq war has once again set back some rules, principles of current international law and systems of collective security, and tested their value and practical function. Nevertheless, it seems exaggerating to describe such negative effects as a disaster to international law or a crisis of confidence. We should at least firmly believe that as a whole, international law conforms to and adapts to the trend of progress with the time, though the progress in some areas may be very slow or even stagnant. On the whole, the fundamental principles of international law and the system of international collective security can stand the test of history and reality. We should not doubt the vitality of the fundamental principles of international law and the value of the collective security system because of the Iraq war or the like. A view holds that the Kosovo War in the late 1990s and the Iraq war in the early 2000s expose the inflexibility and obsoleteness of the principles of sovereignty, non-interference in internal affairs, peaceful settlement of disputes, prohibition of the use or threat of force in international law, and the powerlessness of the collective security system. In fact, the existence, value and function of law always go hand in hand with the fact that law is sometimes violated, destroyed and trampled on, the former could not completely prevent the occurrence of the latter, and will not die out because of the emergence of the latter. Take the domestic society as the example, no matter how the democracy and the legal system develops, crimes and even the severe ones will never disappear. In a domestic society which is regulated by the so-called “hard law” and coercive force, people will not doubt the vitality and value of the existence of the so-called “hard law” even when severe illegal events repeatedly happen and even become more and more intense in some places. Thus, it is not surprising to find cases of violation or even severe violation of the fundamental principles of international law and basic security system in an international

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community that is naturally regulated by so-called “soft law” and lacks coercive force. On the other hand, the shortcomings of international law revealed by the Iraq war must be faced and lessons must be learned, including how can the fundamental principles of international law adapt to the new situation, and more importantly, how to improve and strengthen the current collective security system. In terms of the adaptability and operability of the principles of international law, it is in badly need to formulate special conventions on the right to self-defense and prohibition of the use and threat of force. If it is premature to formulate the convention, the Security Council shall at least adopt a special resolution within the framework of Chap. 7 of the UN Charter. It must be recognized that, although the principles established by the UN Charter are of eternal significance, they were established more than 50 years ago by the statesmen of the major powers based on international relations at that time. Things are constantly developing, and man’s subjective creativity is inevitably limited by history. Therefore, in order to endow a legal norm and system with eternal value, we must constantly revise and improve it as time passed by to meet the needs of the new situation. For example, some international law scholars have advised the council to adopt a special resolution to allow the use of force in situations which may pose a threat to peace under the following conditions: (1) possessing the weapon for mass destruction or clear and full evidence of attempt to acquire such weapon; (2) severely and systematically trampling upon human rights and fully showing a lack of domestic restrictions on the conduct of the government; (3) Evidence of attempt to invade another state.30 Although the above conditions are too broad and it seems very difficult to reach an agreement in the Security Council, however, the idea is worthy of support, at least it put forward a targeted proposal for the international law on how to adapt to the requirements in new era. Nowadays, as weapons for mass destruction pose greater threats to national security and human peace and wanton massive genocide and violations of fundamental human rights occur from time to time, it is highly necessary to adjust and improve the principles and regulations on the prohibition of the use of force and the right to self-defense. In order to perfect the collective security system, corresponding actions shall be taken, particularly from the following aspects: Firstly, the UN General Assembly should convene a particular summit of heads of states and governments (similar to the “millennium summit” four years ago) to adopt a Declaration of Principles on Strengthening and Perfecting the System of Collective Security. This declaration should firstly recognize the value and legal validity of the purposes, fundamental principles, basic structures and basic function of the UN Charter on the collective security system; after which the declaration should put forward the necessity and urgency of perfecting the collective security system, and determine the guiding principles, basic contents, organization organs, basic steps and time limit for perfecting the collective security system. What needs to be emphasized here is that it is imperative to express the statesmen’s confirmation about the values and beliefs of the UN Charter and the collective security 30 Slaughter

(2003, April 13).

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system established by it through a solemn international document. As mentioned above, the Iraq war not only demonstrated the force users’ distrust of the current collective security system, but also resulted in a view that the collective security system is regarded as “outdated” in international politics, international relations and international law circles. The skeptics held that the exception on the prohibition of the use of force in the UN Charter which was made more than 50 years ago could not adapt to the new situation in which force attack with weapons for mass destruction is allowed at any time, in any place, against any target without prior warning, and even through a secret organization. Therefore, in order to safeguard itself, regional, international security, a state has the right and obligation to preempt or prevent a strike without waiting for the occurrence of an armed attack, even if weapons for mass destruction are still in the process of development. This theory essentially follows a unilateralism thinking pattern. Indulgence of which would undoubtedly become a fundamental denial of the collective security system. Therefore, it must be abandoned. It is also urgent that the members of the United Nations must take new effective collective actions against new forms and means of armed attack and security threat in the twenty-first century. As what the UN Secretary-General has pointed out: “terrorism is not just the problem for rich countries……Weapons for mass destruction do not just threaten the West or the North……”,31 it also became trouble and threats for poor countries and the South. However, we shall adhere to and firmly believe that: we must adhere to the principle of multilateralism, based on the UN Charter through effective collective action of the UN collective security system to deal with the challenges of international terrorism, the threat of weapons for mass destruction and the mass brutality trampling on basic human rights. Secondly, we shall spare no efforts to make full use of the enforcement action of the collective security system authorized by the UN Charter. Article 42 of the charter authorizes the UN Security Council to take enforcement action for the maintenance of international peace and security, in particular using the armed forces provided by the Member States through agreement pursuant to Article 43. This plan, devised more than half a century ago, will undoubtedly become the most powerful enforcement action of the collective security system if implemented. However, during Cold War era, the political climate within and outside the United Nations naturally made Article 43 impossible to be realized. After the Cold War, and especially after 9·11, a series of major Security Council resolutions on international peace and security have shown that it has gradually become mature to put Article 43 of the Charter into practice (at least compared with the Cold War era). Although it is not easy for the Security Council to own an army under its control, it still can be a pragmatic proposal to put that on the agenda of perfecting collective security system. Thirdly, emphasis of strengthening the collective security system shall be put on the pattern of enforcement action authorized by the Security Council. As the United Nations does not, and may not in the future, own its own forces, the Security Council’s authorizing the Member States to act individually or collectively 31 Annan

(2003).

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is a more effective means of maintaining international peace and security. It must be recognized that, from a legal point of view, the charter does not expressly give the council the right to authorize enforcement action except that Article 53(1) provides that enforcement action can be taken through regional arrangements or regional institutions, and is at most an implied power of the Council. Therefore, the authorization of enforcement action is regarded by some scholars of international law as a kind of “half-way house” between the state’s unilateral resort to force and the collective security stipulated by the charter.32 However, even such a “half-way house” had little role to play in the cold war decades after the foundation of the UN. In the postCold War era, it has become common for the Security Council to adopt resolutions authorizing Member States to take enforcement action individually or collectively. It can be expected that the authorization will be the main approach for the council to take enforcement action as to maintain international peace and security.33 But in what specific circumstances should the council authorize such? How to determine the specific criteria and conditions for authorization and how to authorize in a timely and effective manner? How to ensure that the authorized states strictly comply with the relevant authorization decisions or the authorized enforcement actions are effectively monitored by the Security Council? These practical problems exposed during the past decade need to be solved urgently through concrete improvement measures. Finally, it is imperative to reform the composition of the UN Security Council—the core institutions of the collective security system. There is still no substantive progress on the reform after the work was initiated at the general assembly in 1992 despite many members’ call for the reform of United Nations bodies, including the Security Council, and the large amount of recommendations, proposals and reports on the reform. As the Security Council is primarily responsible for maintaining international peace and security, the composition of which must represent broadly in power, responsibility, capacity and region, otherwise, it will be hard to get broad support from its Member States for its enforcement action, or the support from Member States with stronger political, military and economic ability. Over time, the prestige of the Security Council will inevitably be damaged, and it will be difficult for it to effectively perform its primary responsibility for maintaining international peace and security, resulting in the collective security system breaking faith with the international community. Therefore, although it is extremely complicated and difficult to restructure the council, the difficulty of reaching agreement on this issue among the Member States of the United Nations cannot excuse the omission. The issue on the restructuring of the council must be set about as a more urgent task if its decision is to be respected more widely, especially in the developing world.34 In short, the key to making the current security system work in the new century is that the leaders of its Member States, especially heads of the five permanent Security Council, shall be far-sighted like Anti-Fascist Union state leaders more than 50 years 32 Freudenschuß

(1994), p. 492. (2000), p. 567. 34 See Annan (2003). 33 Blokker

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ago, who truly took the responsibility of preventing the war from breaking out again in the later generation and put national interests below the peace and security for the whole human beings, so as to take decisive and resolute measures to enhance the practical effectiveness of the collective security system. It should be said that the difficulty of establishing the international collective security system on the ruins was not less difficult, or even much more difficult than the task of perfecting the current system in the light of the new situation.

9.4 Necessity of Reforming Existing International Law The history of the development of international law shows that war could be two sides of a coin. First of all, it is obvious that war will destroy everything and cause severe damage to the lives and property of those states and their people who are directly involved and it always poses a threat to the peace and security in the region or even in the whole world. Therefore, in this sense, there is no absolute winner in the end since both the victorious one and the defeated one suffered greatly from the war though the degree of which varied. The war will not only damage human lives, economy, and destroy good relationships between the states, but also break current social order and legal system, which will make some legal regulations and mechanism ineffective, or at least bring difficulties and severe challenges to them. For this reason, whenever crisis or conflicts occur, various powers of peace will try to use non-military means to solve it, while they also stop its escalation and spread and try to prevent the war from breaking out. Once war is inevitable, various powers of peace will lobby to end it as soon as possible (Of course, parties will often strive for a quick fight to minimize the costs and losses caused by war). As for the development of the international law, war is a stimulus. Once a war breaks out, the current principles, rules and regulations and system of international law are bound to undergo the test whose shortcomings will usually be exposed. Therefore, members and actors of the international community have to review the current international law and think about the legitimacy of the war and the reason for failure to stop the war’s outbreak and how to improve the current principles, rules, regulations and mechanism. Therefore, on the one hand, the war brings severe challenges to current international law, and even crisis. On the other hand, it drives the international community to realize the necessity to reform current international law. In this sense, war, driven by the strong desire of the international community for peace and security, also provides an opportunity for the development of international law. The duality of war was proved by Thirty Years’ War between Europe’s ruling dynasties and the two world wars in the twentieth century. There is no need to talk about the terrible damage to mankind caused by these wars in history. From the perspective of international law only, there was always a “break” at first that violates the current international system and order, while the war also formulated a new

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international legal order and improved the current legal system based on it, that is, “establishment” in the process. There is no doubt that the Iraq war cannot be compared with any other world war in history, reviewed and assessed from any perspective. However, since the war broke out in the era when peace and development have become the absolute mainstream and the principles, rules and regulations, as well as the modern international collective security system of international law on prohibiting war and the use or threat of force had stood the test for more than half a century, especially since the war was witnessed by the whole world, with the implementation of which reported by the new and advanced media technology, the thrill of the war to the international community, the impact of it on the international collective security system, and negative effects on belief and value of the current international law cannot be ignored in particular. This war forced us to think about how can modern international law and its security system be adapted to the new conditions and demands in the twenty-first century. If the issue of keeping up with the time has become prominent for modern international law since the outbreak of the Kosovo war in 1999, the US-British war against Iraq will make the cut-and-dried issue of international law more urgent.

References Annan K (2003) Secretary-general’s statement on Iraq https://www.un.org/Chinese/peace/unmovic/ sg_iraq.htm Ashburton L (1842) Letter to daniel webster. Br Foreign State Aff 30:1841–1842 Blokker N (2000) Is the authorization authorized? Powers and practice of the UN security council to authorize the use of force by “coalitions of the able and willing.” Eur J Int Law 11(3):541–568 Bowett DW (1958) Self-defense in international law. The Lawbook Exchange Ltd., New Jersey de Villepin D (2003) Statement to the UN security council on Iraq. https://www.un.org/chinese/ peace/unmovic/4721/France.htm Falk RA (2003) What future for the UN charter system of war prevention? Am J Int Law 97(3):590– 598 Fischer J (2003) Report on Iraq in the UN security council speech. https://www.un.org/chinese/ peace/unmovic/4721/Germany.htm Franck TM (2003) What happens now? the united nations after Iraq. Am J Int Law 97(3):607–620 Freudenschuß H (1994) Between unilateralism and collective security. Eur J Int Law 5(1):492–531 Friedman TL (18 May 2003) Bored with baghdad—already, New York times. 2003, p. 13 International Military Tribunal (1946) Judgment. Am J Int Law 41(1):172–333 Ivanov I (2003) Statement before the UN security council on Iraq. https://www.un.org/chinese/ peace/unmovic/4721/Russia.htm Krauthammer C (16, May 2003). Iraq: a moral reckoning. Los Angeles Times, A 29 Sapiro M (2003) Iraq: the shifting sands of preemptive self-defense. Am J Int Law 97(3):599–607 Schlei NA (2003) Anticipatory self-defense: a 1962 OLC Opinion on lawful alternatives for the U.S. in the Cuban missile crisis. Green Bag, Winter, pp 195–201 Slaughter A-M (18, March 2003a). Good reasons for going around the U.N. New York Times, A 33 Slaughter A-M (13, April 2003b). Chance to reshape the U.N. Washington Post, B 7 UN Security Council (1981) Resolution 487. https://unscr.com/en/resolutions/doc/487

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UN Security Council (2003) Letter from the permanent representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the president of the security council (U. N. Doc. S/2003/350) Webster D (1841) Letter to Henry Fox. Br Foreign State Pap 29:1840–1841 Wedgwood R (2003) The fall of Saddam Hussein: security council mandates and preemptive selfdefense. Am J Int Law 97(3):576–585 White House (2002) National security strategy of the UN of America. https://whitehouse.gov/nsc/ nss.pdf Yoo J (2003) International Law and the War in Iraq. Am J Int Law 97(3):563–576

Chapter 10

A Review of the DPRK Nuclear Test from the Perspective of International Law

On 9 October 2006, the Democratic People’s Republic of Korea (DPRK) brazenly carried out a nuclear test in defiance of the general opposition of the international community, and immediately declared itself a nuclear weapons State after holding a mass rally to celebrate the test. In this regard, the United States, Japan, South Korea, Russia, China, and many other countries in the world have condemned it in various ways, and expressed that they do not recognize North Korea’s status as a nuclear power. On 14 October, the Security Council adopted Resolution 1718 (2006). On the one hand, it condemned North Korea for conducting nuclear tests in disregard of the relevant Security Council resolutions, and ordered it to return to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and under the safeguards and monitoring of the International Atomic Energy Agency (IAEA). On the other hand, a series of economic sanctions against the DPRK were decided under Chap. 7 of the UN charter. Meanwhile, China, the US, the Republic of Korea (ROK), Japan and Russia urged the DPRK to return to the Six-Party Talks at an early date through shuttle diplomacy and urgent consultations. There have been extensive comments in the political, diplomatic, military, academic and media circles at home and abroad on the impact of the DPRK nuclear test on the relations between the DPRK and the other five parties in the Six-Party Talks, especially on the impact on the relations between the DPRK and the US, the DPRK and China, the DPRK and the ROK, as well as the challenges to peace and security in east Asia and the world at large. However, to date, there has been little systematic and in-depth discussion by the legal profession on the unlawfulness of DPRK nuclear test in international law. It is widely assumed that DPRK nuclear test must be illegal under international law since the UN Security Council has passed legally binding economic sanctions. The Article was originally written by Prof. Zeng in Chinese, and published in World Economic and Politics, (1), 2007, pp. 7–13. It was then translated by Dr. Zhihua Xue, proofread by Dr. Jiao Zhang, with the assistance of Xingxing Ye. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_10

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Convincing such a conclusion, however, is not easy. If the DPRK nuclear test is found to be illegal, what international law does it violate? Does it violate the relevant treaties on prohibition of nuclear test or the NPT? If these specialized treaties are not sufficient legal grounds for establishing the unlawfulness of the DPRK nuclear test, is the Six-Party Talks Joint Declaration of China, the DPRK, Japan, the ROK, Russia and the United States legally binding on the DPRK? At present, are there any international customary rules of law in the field of nuclear disarmament and nuclear security to prove the illegality of the DPRK nuclear test? Can the UN charter and its relevant provisions be used as a basis for establishing the violation of international law by the DPRK nuclear test? This series of intricate legal issues triggered by the DPRK nuclear test is exactly what this paper will discuss.

10.1 Multilateral Treaties on Prohibition of Nuclear Test Under International Law With regard to the prohibition of nuclear tests, two important and special multilateral treaties have been formulated and adopted within the framework of the United Nations: One is the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water signed in 1963, commonly known as the Limited Test Ban Treaty (LTBT); the second is the Comprehensive Nuclear-Test-Ban Treaty (CTBT) signed in 1996. The purposes of the LTBT1 is clearly stated in its preamble as follows: (i) “proclaiming as their principal aim the speediest possible achievement of an agreement on general and complete disarmament under strict international control in accordance with the objectives of the United Nations which would put an end to the armaments race and eliminate the incentive to the production and testing of all kinds of weapons, including nuclear weapons”; (ii) “seeking to achieve the discontinuance of all test explosions of nuclear weapons for all time, determined to continue negotiations to this end, and desiring to put an end to the contamination of man’s environment by radioactive substances”. Thus, the treaty banning nuclear tests in specific areas and space is the first step towards the higher goal of a comprehensive nuclear test ban. The centerpiece of the treaty is Article I, providing that each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (a) in the atmosphere; beyond its limits, including outer space; (b) or under water, including territorial waters or high seas; (c) in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted. As can be 1 The

treaty was first signed by the Soviet Union, Britain and the United States on 5 August 1963. The treaty, which entered into force on 10 October 1963, now has 108 signatories, with 93 countries depositing instruments of ratification and 23 submitting instruments of accession. See https://www. state.gov/tac/trt/4797.htm#signatory.

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seen from the provisions of Article I above, the LTBT, limits, except for territorial powers, testing bans to areas outside the jurisdiction of the Contracting State. In other words, the treaty does not in principle prohibit the State party from engaging in nuclear test explosions within its territory (excluding territorial waters), as long as the radioactive material released by such nuclear test explosions does not exceed its territory. The DPRK nuclear tests was conducted underground within its own territory, and no radioactive dust has been found to fall outside its territory. In this sense, the DPRK nuclear test has not yet constituted a violation of the current LTBT. Moreover, even if the DPRK nuclear test violates the scope prohibited by the Treaty, the treaty will not be legally binding on DPRK because it has not yet been a party to the Treaty. The CTBT2 is undoubtedly much more advanced than the aforementioned LTBT. As stated in its name and preamble, the CTBT aims to reduce nuclear weapons, eliminate nuclear weapons globally, and conduct nuclear disarmament in a comprehensive and thorough manner under strict and effective international supervision. To this end, all States Parties promise not to carry out any nuclear weapon test explosion or any other nuclear explosion, and does not cause, encourage, or otherwise participate in nuclear test explosions. In order to promote the legal effect of this Treaty as soon as possible, the United Nations has held three consecutive conferences in October 1999, November 2001 and September 2003. Although these three conferences have led to more and more countries to sign and ratify the treaty (as of October 2006, 176 countries have signed the treaty and 135 countries have ratified the treaty), however, among the 44 countries listed in Appendix II of the Treaty that are related to nuclear weapons, 12 countries have not yet completed the signing or ratification procedures, resulting in that the Treaty has not yet entered into force, because the treaty stipulates that the ratification of these 44 countries is a necessary prerequisite for the entry into force of the treaty. Obviously, a treaty that has not entered into force cannot be legally binding on countries that have signed or even ratified it, not to mention that the DPRK has not signed this treaty. Nevertheless, it seems possible to argue that the CTBT is legally binding on the DPRK if the purposes and principles enshrined in the CTBT constitute customary rules of modern international law. According to Article 38 of the Vienna Convention on the Law of Treaties signed in 1969, if an obligation of a treaty has become a rule of customary international law, the obligation is also legally binding on third countries that are not parties. The key is to prove whether a comprehensive ban on nuclear testing constitutes a rule of customary international law. Judging from the constitutive requirements of the rules of customary international law, it seems 2 The

treaty was first proposed by Indian Prime Minister Jawaharlal Nehru at the United Nations General Assembly in 1954, and the limited nuclear-test-ban treaty, signed in 1963, explicitly pursued the conclusion of a comprehensive nuclear-test-ban treaty. However, it was not until March 1994 that the conference on disarmament in Geneva formally launched negotiations on a comprehensive nuclear test ban. On 10 September 1996, the United Nations General Assembly adopted the comprehensive nuclear-test-ban treaty by an overwhelming majority of 158 votes to 3, with 5 abstentions. See https://news.xinhuanet.cm/ziliao/2003-09/18content_1088319.htm.

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somewhat far-fetched to conclude that the contents contained in the CTBT constitute customary international law. Although it was adopted by the UN General Assembly with an overwhelming majority of votes and was signed and ratified by most countries in the world, the Treaty was only 10 years old (although there is no set period for the formation of customary rules). In the meantime, there are still countries conducting or suspected of conducting nuclear tests. More importantly, there are some nuclearpossessing countries or potential nuclear powers that have not signed or ratified this treaty. All of these show that from the perspective of international law, the guidelines contained in the CTBT lack both long-term, consistent and common practice in the international community, and lack the legal confidence3 of all countries in the world. Therefore, the prohibition of nuclear tests as a rule of customary international law to prove the illegality of the DPRK Nuclear Tests seems unconvincing.

10.2 Treaty on Non-proliferation of Nuclear Arms and the DPRK Nuclear Test With the advent of the LTBT, the Member States of the United Nations, particularly those with nuclear status, agreed to negotiate on the non-proliferation of nuclear weapons as the basis for all nuclear disarmament agreements until the negotiation conditions for the comprehensive nuclear-test-ban treaty were fully in place. In January 1968, 59 countries, including Britain, the United States and the Soviet Union, signed the treaty on the non-proliferation of nuclear weapons, which came into force in March 1970.4 Although the Treaty consists of only 11 Articles, it is of great significance in the process of achieving complete and comprehensive nuclear disarmament and maintaining world peace and security in the international legal system. First, it constitutes a legal basis for the gradual and complete elimination of nuclear weapons on a global scale. Second, it imposes for the first time an international legal obligation on a nuclear State party not to transfer nuclear weapons or nuclear explosive devices directly or indirectly to any non-nuclear State party and not to assist a non-nuclear State in the manufacture of nuclear weapons. Thirdly, for the first time, it obligates non-nuclear State parties to ensure that they do not develop, accept or seek nuclear weapons. Fourth, it has established a monitoring mechanism, that is, placing peaceful nuclear facilities within the safeguards framework of the IAEA. The DPRK became a party to the nuclear non-proliferation treaty in 1985. Under the treaty, as a non-nuclear State party, the DPRK is obliged to prohibit the development or acquisition of nuclear weapons or other nuclear explosive devices and to accept inspections and supervision of its nuclear programs and facilities by the 3 Le

Mon (2006), p. 1. treaty will be valid for 25 years, during which a meeting of the parties will be held every five years to review its implementation. At the conference of the parties held in 1995, it was decided to extend the treaty indefinitely. Currently, there are 187 parties to the treaty.

4 The

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IAEA. To this end, the DPRK concluded the relevant safeguards agreement with the IAEA in 1992 and the relevant framework agreement with the United States in 1994. However, there has always been a disagreement between the IAEA and the DPRK over the location, timing, scope and other matters of cooperation for verification, which have led to the suspension of verification. The DPRK and the United States have accused each other of violating the agreed framework agreement. On 10 January 2003, the DPRK announced its immediate withdrawal from the NPT, but also stated that it had no intention of producing nuclear weapons and that its nuclear activities were currently being used only for peaceful purposes such as generating electricity. The unusual move by the DPRK is of deep concern to the international community because it is the first country to withdraw from the NPT in more than 30 years since it came into force. There have been widespread calls for it to reverse its decision to withdraw and return to the international nuclear non-proliferation regime. However, the DPRK has not yet withdrawn its declaration of withdrawal. This raises the following issues in international law which need to be further explored. For example, does the DPRK have the right to withdraw? If its action is illegal, is its withdrawal certainly null and void, so that the nuclear test it has conducted undoubtedly violates the international legal obligations of a State party under the NPT? If the DPRK’s withdrawal is legal (that is, in line with the treaty’s withdrawal provisions), does it mean that its nuclear test did not violate the NPT? Even so, is there any other legal basis to prove that the DPRK nuclear test violated the treaty? Article 10, paragraph 1 of the NPT states “each party shall in exercising its national sovereignty have the right to withdraw from the treaty if it decides that extraordinary events, related to the subject matter of this treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other parties to the treaty and to the UN Security Council three months in advance. Such notice should include a statement of the extraordinary events it regards as having jeopardized its supreme interests.”5 These provisions indicate, on the one hand, that it is the sovereign right of each contracting State to withdraw from the treaty; On the other hand, States Parties intending to withdraw should meet a set of substantive and procedural requirements. The essential requirement is that there must be “extraordinary events”, and that such “extraordinary events” endanger the “supreme interests of its country”, that is, there should be a causal relationship between the two. The procedural requirement is that it must inform the other States Parties and the UN Security Council of its decision to withdraw three months in advance. In principle, DPRK’s withdrawal from the NPT is an exercise of its sovereign right. Moreover, under the terms of the treaty, whether or not “extraordinary events” had occurred and endangered its “supreme interests of the country” was a matter of its own “determination”. Therefore, the DPRK’s withdrawal has not violated the treaty’s principled and substantive rules. As for what is “extraordinary event” and what is “the supreme interest of the country”, the treaty does not make a clear definition or establish a corresponding review mechanism on whether there is a direct cause-and-effect relationship between the two and whether 5 See

https://www.un.org/chinese/peace/disarmament/t5.htm.

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the “determination” of the DPRK itself is legal. Therefore, even if the international community doubted the existence of these substantive conditions or the correctness of the DPRK’s “assertions”, it would not affect the legality of the DPRK’s withdrawal in terms of treaty law, but would only indicate that the provisions of the treaty on the matter of withdrawal itself have obvious loopholes or defects. It is debatable that on 10 January 2003, the DPRK announced that its withdrawal was “automatic and effective immediately”. This appears to be a violation of the NPT procedural requirement that withdrawal decisions be given three months’ notice. The procedure requires that the DPRK’s decision to withdraw should not be “automatic and immediately effective” under international law, as it claimed, but would not take effect until 10 March 2003. Until then, it remained a party to the treaty, although it had declared its withdrawal. But it seems hard to assume that the DPRK’s breach of the three-month deadline would invalidate its decision to withdraw, because the treaty does not provide for it. Thus, three months after the date on which the DPRK announced its withdrawal and informed the other States Parties and the Security Council, it undoubtedly ceased to be a party to the treaty. That is why the international community has been calling on the DPRK to reverse its decision to withdraw and restore its status as a party to the NPT. Since it is difficult to determine the illegality of the DPRK’s withdrawal decision from the perspective of treaty law, how to interpret the “Presidential Statement” of the UN Security Council on 6 October 2006 and its related wording? The “Presidential Statement” pointed out that “The Council expressed its “regret” for the DPRK’s announcement of withdrawal from the “NPT”, disregarding the treaty obligations and the IAEA’s obligations of safeguards, and claiming to develop nuclear weapons.”6 While the presidential statement still referred to the DPRK’s “obligations” under the treaty and the “safeguards obligations” of the IAEA, the Statement merely expressed “regret” over the DPRK’s withdrawal. More importantly, although the statement was issued by the President on behalf of the Security Council, and can even be justified as issued under Chap. 7 of the UN Charter, it is, after all, just a presidential statement that expresses a political attitude, not a legally binding “resolution” by the Security Council in the form of a formal vote under Chap. 7 of the UN Charter. Therefore, it seems unconvincing to conclude from the Presidential Statement that the DPRK is still a party to the Treaty and that its nuclear test violates its obligations under the Treaty and related safeguards obligations.

10.3 Joint Statement of the Six Parties and the DPRK Nuclear Test The “Six-Party Talks” formed by China, the DPRK, Japan, the ROK, Russia and the US play an important role in dealing with the nuclear crisis in the DPRK. The Joint Statement adopted by the fourth round of Talks issued by the six parties on 19 6 United

Nations Security Council (2006).

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September 2005 is the most important consensus reached in the “Six-Party Talks”. Therefore, revealing the legal nature and characteristics of the Joint Statement will help us further explore the legality of the DPRK nuclear test. More specifically, if the treaty and relevant documents on the nuclear test ban and non-proliferation of nuclear weapons are not enough to determine the illegality of the DPRK nuclear test under international law, will the Six-Party Joint Statement provide an alternative legal basis? To answer this question, we need to analyze the form and content of the Joint Statement. In terms of content and wording, the joint statement of the six parties contains the unilateral and joint commitments of all parties. The commitment from the DPRK is “it will abandon all nuclear weapons and existing nuclear program, return to the NPT at an early date, and return to the IAEA safeguards”. There is no doubt that the Joint Statement is a political compromise reached after four rounds of repeated negotiations, and the unilateral and joint commitments made by all parties are the external declaration of the political attitude of all countries. The key question now is whether these unequivocal political commitments are also legal commitments, that is to say, a commitment to the joint declaration is not only a political consensus and declaration, but also legally binding on all parties. To prove this, one must prove that the “Joint Statement” is a form of legally binding source. For a long time, the international legal community has different understandings on the legal nature of the joint statement or joint declaration issued by the heads of State, heads of government or other organs of foreign relations and their leaders. One view is that such a statement is not a strictly legal source of international law but merely an expression of a common political will. Another view is that such a declaration is an agreement between states or governments, which is a form of treaty that has not only political and moral implications for the conduct of the parties concerned, but also the nature of legal obligations to be observed. There is also a compromise view that such a statement is stronger than a general political consensus or commitment, but not a strictly legal source. Rather, it is a “soft law” that, although not legally binding, produces legal results.7 From a practical point of view, the legal nature of unilateral, bilateral or multilateral declarations by states and their governments depends on the specific circumstances and, crucially, on the true intentions of the statements made by the states and their governments. In practice, it appears that most declarations are accepted by the parties as legally binding documents. For example, the communiques on the establishment of diplomatic relations between China and the United States and the relevant statements have always been regarded as legally binding written documents by both sides, and almost every time the leaders of China and the United States meet and talk, both sides make clear their compliance with these communiques and statements. The legally binding nature of the State’s declaration has also been confirmed by the ICJ. In the nuclear test case, one of the legal questions the Court has faced is whether 7 See International Court of Justice (1986a), p. 554; International Court of Justice (1974), p. 253; Cassese (2001), p. 151.

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France’s unilateral declaration (the core of which is that it will halt nuclear testing in the South Pacific) creates a legal obligation. In paragraph 46 of its judgment, the court held that: “when it is the intention of state making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, …… is binding.”8 In this presumption, the Court has in effect established two preconditions for a state’s unilateral declaration to test whether it creates a binding international obligation: that the declaration is made public, and that the binding effect is the intention of the state making the declaration.9 Since these two preconditions apply to unilateral declarations, there is no reason not to assume that they apply equally to bilateral, plurilateral or multilateral declarations. Joint Declaration is a hybrid statement that combines unilateral, bilateral and plurilateral commitments. Therefore, we can use the standards of “publicity” and “intention” established by the ICJ to judge whether the Joint Statement is legally binding on the DPRK. First, the Joint Statement meets the “publicity” requirement. Although the sixparty talks on the Korean nuclear issue were held in secret, the consensus reached and the commitments made by each other were not only written in the form of statements, but also published publicly to the world through the news media. One view is that the Joint Statement was privately negotiated between the DPRK and the other parties and was less “public” than the French Presidential Statement in the “nuclear test case”.10 This view is debatable. In practice, negotiations on any bilateral, plurilateral or multilateral legal document are conducted in secret, not only in statements or declarations, but even in formal treaties or agreements. As for unilateral statements such as the French Presidential one in the case of the nuclear test, there is no question of secret negotiations at all, because he is totally unilateral in his commitment. It should be considered that the “publicity” referred to by the ICJ here refers to the final public release of the relevant commitment document and not to its formation. However, it seems more controversial and therefore more difficult to conclude that the “Joint Statement” meets the “intention” requirement than the “publicity” requirement. Judging from the wording of the “Joint Statement”, the DPRK’s commitment should be clear: “to abandon all nuclear weapons and existing nuclear programs, return to the NPT at an early date, and return to IAEA safeguards.” Although there is no direct renunciation of nuclear tests, renunciation of nuclear tests is undoubtedly included in the renunciation of nuclear weapons and existing nuclear programs. The US also confirmed that “the US has no nuclear weapons on the Korean peninsula and has no intention to attack or invade the DPRK with nuclear or conventional weapons”. The two sides also promised to “respect each other’s sovereignty, coexist peacefully and take steps to normalize relations in accordance with their respective bilateral 8 https://www.icj-cij.org/icjwww/icases/inzf/inzf-ijudgment/inz-ijudgmen-197. 9 See

Le Mon (2006), p. 4.

10 Ibid.

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policies.” Similarly, the DPRK and Japan also promised to “take steps to normalize relations on the basis of settling the unfortunate history and properly handling the pending case”. On the one hand, we seem to infer from these unmistakable solemn commitments the intention of the parties to make them legally binding; On the other hand, we are well aware that the DPRK’s commitment is in exchange for the commitment of other parties, especially the US Among the most important: the United States and Japan will establish diplomatic relations with the DPRK; The United States has pledged not to attack or invade the DPRK with nuclear or conventional weapons; The United States will unblock North Korean bank accounts abroad; Other parties jointly guarantee the DPRK’s security and provide economic development assistance, etc. It is worth noting that the DPRK withdrew from the NPT and conducted nuclear tests on the grounds that the US had not fulfilled its commitments. It follows that the DPRK’s real intention in the “Joint Statement” to give up its nuclear program was premised on the promise of the United States and others to honor their commitments. Thus, it is far-fetched to assume that the DPRK’s intentions constitute an obligation under international law, given the stalled Six-Party talks and the lack of follow-up action on the commitments made by other parties.

10.4 The UN Charter and the DPRK Nuclear Test The above analysis shows that from the perspective of the international regulation in the field of nuclear test ban and non-proliferation of nuclear weapons and the status quo of legal relations with the DPRK, it seems that there are some difficulties in proving the unlawfulness of the DPRK nuclear test in international law. However, this by no means implies that the DPRK Nuclear Tests are legal in international law. Otherwise, the legitimacy of the UN Security Council’s resolution on economic sanctions imposed on the DPRK on 14 October 2006 is in doubt. It can be seen that the unlawfulness of the DPRK nuclear test and the legality of the Security Council’s economic sanctions resolution have the same legal basis, and the same legal source is the “UN Charter”. The “UN Charter” (hereinafter referred to as “the Charter”) is the basic legal document of the United Nations, the largest and most influential international organization in the world today. The DPRK is a member of the United Nations and, in accordance with Article 2 of the Charter, “shall in good faith fulfil its obligations under the Charter”. Among these obligations, the most important one is the primary purpose of the United Nations established in Article 1 of the Charter: “to maintain international peace and security; and to this end, to take effective collective measures to prevent and eliminate threats to peace”. To this end, “Member States shall not use the threat or use of force in their international relations” (Article 2, paragraph 4, of the Charter). In order to achieve the purpose of “maintaining international peace and security” of the United Nations, and to ensure that all Member States abide by the principle of “no threat or use of force”, all Member States entrust the Security Council with

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the primary responsibility for the maintenance of international peace and security, and agree that the Security Council represents all Member States when performing its duties under this responsibility” (Article 24 of the Charter). As the organ with the primary responsibility for the maintenance of international peace and security of the United Nations, the Security Council, under Chap. 7 of the Charter, has the right to “determine the existence of any threat to peace, breach of peace or act of aggression” (Article 39), to “decide on ways other than the use of force to implement its resolutions, and to urge the Member States of the United Nations to implement this approach. Such measures include the partial or total cessation of economic relations, railways, sea transportation, aviation, posts and telecommunications, radio and other means of transport, and the severance of diplomatic relations” (Article 41). The DPRK nuclear test is undoubtedly a violation of the primary purposes and principles of the above-mentioned charter and an act that poses a threat to international peace and security. This was clearly concluded in Security Council resolution 1718 (2006). The preamble to the resolution expresses “serious concern” at the “danger to peace and stability in the region and beyond” caused by the DPRK nuclear test and “identifies as such a clear threat to international peace and security”. Then, the resolution clearly stated that a series of economic sanctions against DPRK adopted in it were actions taken under Chap. 7 of the Charter and measures taken under Article 41. It also needs to be emphasized in particular that the illegality of DPRK’s nuclear tests under international law can be confirmed even if it is not a member of the United Nations or even if it takes an action similar to its withdrawal from NPT. This is because DPRK’s nuclear test fundamentally violates the modern customary international law principle of “no threat of force”. The rules of customary international law are legally binding on the actions of all countries in the world, regardless of whether a state is a party to a specific treaty or a member state of a specific organization, or whether it participates in the formation of relevant rules of customary law or changes in its attitude after the formation of relevant rules of customary law. The key question is whether the “Prohibition of the threat or use of force” contained in Article 2, paragraph 4, of the Charter has become a principle of customary international law. Customary law follows a basic rule of international law, that is, “acts are permitted unless expressly prohibited”, and prohibited acts and affirmative acts must be proved by the acts of all countries in the world.11 As mentioned above, DPRK’s nuclear test is an act that poses a threat to international peace and security, which belongs to the category of “threat by force” in modern international law, and threat by force belongs to acts expressly prohibited by Article 2, paragraph 4, of the Charter. Thus, to prove that this kind of “Prohibition” has constituted the rule of modern customary law, we must start with two basic elements of the rule of customary law (quantity element and quality element). Quantitative element, also known as objective element or material element, refers to a rule of customary law that must first be a universal practice in the world, that is, the so-called “general practice”. The principle of banning the threat of force is 11 See

Permanent Court of International Justice (1927), p. 19.

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undoubtedly the “general rule” of the international community in various forms since the founding of the United Nations 60 years ago. The Charter itself is the primary source of authority to prove the existence of this “general rule” because it is an international treaty to which almost all countries, including the DPRK, are parties. As one of the Charter principles states that “the organization shall, to the extent necessary for the maintenance of international peace and security, ensure compliance with the above principles by States not members of the United Nations”. It can be seen that the principles of the United Nations, including “no threat or use of force”, already have the nature of the rules of customary international law. In North Sea Continental Shelf , the ICJ clearly ruled that the provisions of a Multilateral Convention, when widely adopted, can be applied as customary law, thus binding on non-parties, if the relevant practices are uniform and widely recognized as a legal obligation.12 The UN General Assembly also adopted relevant resolutions as “subsequent practice” to prove the existence of the rule of customary law, such as the “Declaration on the Noninterference in the Internal Affairs of States and the Protection of their Independence and Sovereignty” signed in 1965, the “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the UN Charter” signed in 1970 (commonly known as the “Declaration of Principles of International Law”), the “Resolution on the Definition of Aggression” signed in 1974 and the “Declaration on Strengthening the Effectiveness of the Principle of Non-use or Threat of Force in International Relations” signed in 1987, etc. As for the evidence that countries around the world, including the DPRK, express the existence of this “general rule” through statements, treaties, domestic legislation, judicial practice and other ways, there are numerous. Quality factor, also known as subjective factor or psychological factor, refers to the “Opinion juris” of each country, that is, each country always believes that it has an international legal obligation to comply with a “general practice”. The “Opinion juris” of the prohibition of the threat of force as a rule of customary international law has been confirmed by the ICJ. In Nicaragua v. the United States (1986), the ICJ writes that “when two States agree to include a particular rule in a treaty, the agreement between them is sufficient to make the law that binds them. However, in the field of customary international law, the parties’ shared view of the content as a rule is not sufficient. The court must satisfy itself that the existences of the rule in the Opinion juris of States is confirmed by practice”.13 The ICJ ruled: “in this case, the court only exercises its jurisdiction over the application of customary rules of non-use of force and non-interference. The fact that the parties are bound by these rules is not only a matter of treaty, but also a matter of customary international law. Moreover, in this case, in addition to the treaty commitments binding the parties with respect to the relevant rules, they have expressed their recognition of the effectiveness of these rules as customary international law on various occasions. Therefore, it is in accordance with this “subjective element”—the expression used by the Court in its 1969 Judgment in North Sea Continental Shelf —that the court has to evaluate 12 See

International Court of Justice (1969), p. 4. Court of Justice (1986b), para. 184.

13 International

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the relevant practice”.14 The “general practice” and “Opinion juris” of all countries evaluated by the ICJ in the process of confirming the status of customary international law of non-use or threat of use of force must include the DPRK.

10.5 Conclusion Although the DPRK nuclear test has aroused widespread condemnation from the international community, such condemnation is political, diplomatic and moral in nature. It is a very complicated question to determine whether the DPRK Nuclear Test violates the current international law. We cannot simply give a positive or negative answer. Instead, we should start from the current situation of international law and specifically explore the relationship between the relevant special international law and general international law and the DPRK Nuclear Test. From the point of view of special law, in the specific field of nuclear test prohibition, non-proliferation of nuclear weapons and nuclear disarmament, there has not yet been a universally recognized rule of customary international law in the world. Therefore, the unlawfulness of DPRK nuclear test in special international law is difficult to find the basis of customary law at the present stage. From the point of view of treaties in this particular field, the LTBT and the CTBT should have been the two most direct legal sources for determining the illegality of the DPRK nuclear tests. But DPRK is not bound by the two treaties because it has not been a party to them, and the latter has not yet entered into force. However, the DPRK Nuclear Test took place three and a half years after its withdrawal from the treaty, and it is clearly inappropriate to use the treaty as a means of determining the illegality of the DPRK nuclear tests. In contrast, the Six-Party Joint Statement as a form of international commitment seems to be an important legal basis for determining the illegality of the DPRK nuclear test, since the statement as a legally binding document for all parties seems to meet the “publicity” standard established by the ICJ. However, the Joint Statement was unable to meet another essential standard established by the ICJ, namely the “intention” requirement. From the perspective of general law, DPRK’s nuclear test can be regarded as a violation of both the UN Charter and the norms of modern general international customary law and jus cogens. The international community has long regarded nuclear test, proliferation of nuclear weapons and nuclear expansion as one of the greatest threats to international peace and security, and therefore regarded it as the scope and content of Article 2 of the UN Charter, which prohibits the use or threat of force. The prohibition of the use or threat of force is not only a principle that the United Nations, as an international organization and its Member States, must abide by, but also has been recognized as a basic principle of general international law with the nature of jus cogens. Therefore, as a member of the United Nations, DPRK’s behavior must be bound by this principle. Even if it is not a member of the 14 Ibid,

para. 185.

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United Nations or withdraws from the United Nations, it is also subject to this principle, because the principles of general international law and the rules of customary international law are generally legally binding, regardless of whether a State is a party to the treaty containing the principle or whether it has participated in the formation of the customary rules. Otherwise, the UN Security Council resolutions on sanctions against DPRK nuclear test lack legal basis, will not be legally binding, and will not be widely supported and abided by all UN Member States including China and the international community. Finally, the author believes that, in the absence of the entry into force of the CTBT and the unlikely entry into force in a short period of time, the NPT, which is legally binding on the vast majority of countries in the world, especially the nuclear possessors, is particularly important. However, NPRK nuclear test exposed the weakness of the NPT in terms of withdrawal provisions. The author believes that to achieve the goal of global nuclear disarmament and build sustainable nuclear security, the United Nations should start amending the withdrawal provisions of the NPT as soon as possible. Key concepts such as “extraordinary events” and “the supreme interest of the state” should be clearly defined and, where possible, the scope and matters to be covered by each of these core concepts should be specified. Furthermore, a review mechanism should be established for States Parties to withdraw from the treaty. Such review function may be entrusted to the Security Council, or to the IAEA, or to the conference of the States Parties to the NPT. Only in this way can we try our best to avoid the recurrence of events like the withdrawal of the DPRK, so as to guarantee the NPT’s authority and the universality and durability of its effectiveness.

References Cassese A (2001) International law. Oxford University Press, Oxford International Court of Justice (1969) Judgement, North Sea Continental Shelf Cases International Court of Justice (1974) Merits, Nuclear test cases (Australia versus France and New Zealand versus France) International Court of Justice (1986a) Judgement, Frontiers dispute case (Burkina Faso versus Mali) International Court of Justice (1986b). Judgement, military and paramilitary activities in and against Nicaragua (Nicaragua versus United States) Le Mon C (2006) Did North Korea’s nuclear test violate international law? https://www.opiniojuris. org/posts/1160382356.shtml Permanent Court of International Justice (1927) Judgement, The case of the S.S. Lotus (France versus Turkey). Publications of the permanent court of international justice, series A (10) UN Security Council (2006) Statement by the president of the security council (S/PRST/2006/41). https://undocs.org/en/S/PRST/2006/41

Chapter 11

Issues of International Law Concerning Crimea’s Secession from Ukraine and Merging with Russia

11.1 Introduction Crimea’s separating from Ukraine and merging into Russia by referendum set off a great disturbance internationally. Russia, Serbia and some other countries immediately expressed their firm support, and Russia even completed its national procedures of approval soon after the event. In contrast, Ukraine, the US, the EU and its Member States expressed their strong opposition. They not only refused recognition of the fact, but also trigged a series of diplomatic and economic sanctions. On 27 March 2014, the UN General Assembly, by a recorded vote of 100 in favor to 11 against, with 58 abstentions, adopted a resolution titled “Territorial Integrity of Ukraine”, calling on States, international organizations and specialized agencies not to recognize any change in the status of Crimea or the Black Sea port city of Sevastopol, and to refrain from actions or dealings that might be interpreted as such. Those 100 votes in favor were led by the US, the United Kingdom, France and Germany, etc., while 11 opposing votes were casted by Russia, Cuba, North Korea, Venezuela etc. those abstention votes are led by China, Brazil, India, South African, Uzbekistan, etc. in addition, more other UN Member States did participate in the voting.1 It is obvious that the policies and attitudes toward the “Crimean Event” are greatly divided internationally. The “Crimean Event” is undoubtedly involved in a number of theoretical and practical issues of international law, apart from its complicated political, military, economic and social factors: Does principle of self-determination of peoples provide 1 United Nations General Assembly (2014). General Assembly Adopts Resolution Calling upon States Not to Recognize Changes in Status of Crimea Region (GA/11,493). https://www.un.org/ News/Press/docs/2014/ga11493.doc.htm. Accessed 31 March 2014.

The Article was originally written by Prof. Zeng in Chinese, and published in Chinese Review of International Law, (1), 2015, pp. 3–13. It was then translated by Assoc. Prof. Yayun Chen, and proofread by Dr. Jiao Zhang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_11

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legitimate evidence for the Crimean referendum? What concrete situations does the principle apply for? How to deal with the relationship between the state sovereignty and territorial integrity and self-determination of peoples; when two are in conflict, which prevails? Does the Independence of Kosovo in 2010 make a precedent for the “Crimean Event”, even for particular peoples in other regions of the world? What kind of referendum is legitimate and effective for self-determination of peoples? This paper tries to make response and clarification from the perspectives of positive theory and practice of international law.

11.2 Scope of Application of the Principle of Self-determination Self-determination of peoples, as a universally recognized basic principle of international law, has experienced historical development and its origin could be traced to American Declaration of Independence in 1776 and Great Revolution of France in 1789. After the Russian October Revolution in 1917, principle of self-determination became a policy of nations. In the intervals between the First and World War IIs, the principle promoted the collapse of the Austro-Hungarian Empire and independence of a number of European countries. The Atlantic Charter2 stated eight principal points of the War, in which Point Two confirmed that “territorial adjustments must be in accord with the wishes of the peoples concerned, and Point Three expressly declared “all people had a right to self-determination”. However, Churchill explained that the principle only applied to European states and other nations who were under the rule of Nazi to restore their sovereignty and autonomous governments, but not to colonies.3 It is the UN Charter which for the first time confirms the principle of self-determination of peoples in dual legal forms, namely both the treaty and constituent document of a universal organization. Article 1(2) of the Charter explicitly provided to develop friendly international relations based on respect for the “principle of equal rights and self-determination of peoples”, and defined the self-determination of peoples to the right of peoples to decide their own government. In addition, Article 73 stimulated to help non-self-governing territories “to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions”. Article 76 further confirmed to “promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples”.

2 The

Atlantic Charter was a pivotal policy statement issued in 14 August 1941 that, early in World War II, defined the Allied goals for the post-war world. It was drafted by the leaders of the United Kingdom and the United States, and later agreed to by all the Allies of World War II. 3 Sathasivam (2005), p. 59.

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In the 1950s, the UN General Assembly adopted a number of declarations enabling self-determination from a legal principle to a concrete right.4 In particular, the Declaration on the Granting of Independence to colonial countries and Their Peoples in 1960 for the first time expressly proclaimed the right of independence of colonial peoples, triggering a world-wide movement of decolonization.5 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the UN Charter reaffirmed the “right of equality and self-determination of peoples” and that “the establishment of a sovereign and independent State, the free association or integration with and an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”.6 What does “people” mean in those resolutions of the General Assembly? Does it refer to peoples in and sense or only to those people striving for national independence and colonial peoples? Those resolutions did not provide clear definition. Article I of both International Covenant on Civil and Political Rights and International Convention on Economic, Social and Cultural Rights in 1966 stipulates: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All people may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation based upon the principle of mutual benefit, and international law. In no case a people may be deprived of its own means of subsistence. 3. The States Parties to the present Convention, including those having responsibility for administration of Non-Self-Governing and Trusting Territories, shall promote the realization right of self-determination, and shall respect for that right, in conformity with the provisions of the UN Charter. Provisions of the above Article illustrates that, the right of self-determination of a people is a kind of continuing right which was not first created by these Conventions.7 Originally, the wording of Article I was drafted as “all peoples shall have the right of self-determination, but the word “shall” was deleted in the final text. Revision aimed emphasizing that people’s right of self-determination is an inherent and sustained right. According to Article I, right of self-determination of a people embodies four basic aspects of implication in international law as follows. Firstly, it declares that people in existing States enjoy the right to express the wills of the public. In other words, the right of self-determination endows the peoples of all countries with the right to decide their national political, economic, social and 4 United

Nations General Assembly (1952), (1957), (1959) and Carley (1996). National General Assembly (1960). 6 United Nations General Assembly (1970). 7 See United Nations General Assembly (1955), para. 3. 5 United

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cultural policies, namely “internal self-determination”. The contents of such “internal self-determination” are systematically provided as a number concrete rights in the International Covenant on Civil and Political Rights, such as freedom of expression (Article 19), the right to peaceful assembly (Article 21) freedom of association (Article 22), Right to vote, including the right of participating decision-making in public affairs through freely elected representatives (Article 25), etc. It must be pointed out that although these concrete rights are closely related to the right of self-determination of peoples, yet that it is not to say these concrete rights equals to the right of self-determination of peoples. The latter is a particularly specific legal conception. Secondly, it indicates that peoples of all States enjoy the right to freely select their political, economic, social and cultural systems without any external interference. Thus, the two Conventions prohibit a Contracting Party to interfere the internal affairs of another Contracting Party who freely determines its political status and freely pursues its economic, social and cultural development. In substance, the provision reaffirms all States shall mutually respect for political independence and territorial integrity which is an established principle of customary international law. It also implies the prohibition of one Contracting Party to invade and occupy the territories of another Contracting Party by the means of depriving the people of the other Contracting Party the right to self-determination. Thirdly, it confirms that peoples of all States enjoy the ownership and control of their natural resources, and gain benefit from them. Such right is an inevitable consequence of exercising the right of self-determination as well as the material foundation of political and civil rights of peoples. However, the exercise of such right in subordinated to the rules of international law concerned. For instance, the development and utilization of national natural resources might not impede or contradict to the implementation of international agreements aiming at international economic cooperation in respective fields, and not infringe customary international law concerning protection of the rights of foreign investors. Fourthly, the people of a dependent State or territory have the right to freely determine their international territory. Clearly, the subsidiary states or dependencies defined here refer specifically to colonial or non-self-governing areas which have not yet attained independence or to territories under trusteeship. For the peoples of such territories or areas, the right to self-determination includes the right to freely choose to form an independent state or to merge into an existing sovereign state. Since the principle of self-determination of peoples is established, from 1950 to 1980, a large number of colony or affiliated territory has formed an independent country, greatly accelerated the collapse worldwide, the colonial system, and further improve and consolidate the basic order on the basis of the sovereign state of the international community and structure. Now that the colonial areas are virtually non-existent, and the practical significance of ethnic identity is very limited. It should be noted that neither the UN Charter nor the two Conventions on fundamental human rights nor the relevant resolutions adopted by the general assembly have clearly defined the “peoples” of self-determination. So what peoples or what type of peoples has the right to self-determination? In general, each international

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legal document dealing with self-determination of peoples has a specific context for the peoples to which it applies. For example, the ethnic groups referred to in regional human rights treaties are limited to those in the region, and the ethnic groups in the declaration of the United Nations granting independence to colonial countries and peoples are limited to those in regions that have not yet achieved independence or non-self-governing territories. As far as the UN Charter and the two basic international human rights conventions are concerned, the scope of the nations to which they refer is broad. It includes that (1) the total population living in an independent state; (2) the entire population of the territory on which independence is to be obtained; (3) population living under foreign military occupation.8 Then does the principle of self-determination in international law apply to national minorities or ethnic groups in a sovereign state? For example, how to understand Article 27 of the International Covenant on Civil and Political Rights. It claims that in those States in which ethnic, religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. The meaning of the Article is very clear: first, the rights provided for in the Article are directed to individuals who are members of a national minority and not to a national minority group. Secondly, the Article does not cover the political, economic or social self-determination of minorities as a whole, and its rights are limited to cultural, religious and linguistic autonomy, that is, the right to retain their national identity or identity in a sovereign state. These rights are human rights, not the right to self-determination. This conclusion was fully confirmed in the relevant documents of the drafting process of the convention, since most of the countries involved in the negotiations of the convention believed that granting self-determination to a small number of peoples within a state would have serious consequences for the social and political instability of existing sovereign states.9 After the end of the cold war, the scope or situation of the application of the principle of self-determination has taken on a new look. The typical example is Kosovo’s independence and wider recognition by the international community. It is well known that Kosovo was originally an autonomous province of the republic of Serbia following the disintegration of the former federal republic of Yugoslavia, and that its inhabitants are overwhelmingly ethnic Albanians. This minority claims and has evidence of ethnic cleansing and massive human rights violations by Serb forces during the former southern civil war and therefore claims secession from the republic of Serbia. On 17 February 2008, the Kosovo national assembly adopted the declaration of independence, declaring the republic of Kosovo. Although Kosovo’s independence was immediately recognized by western countries such as Europe and the United States, it was also strongly opposed by Serbia, Russia and other countries. In October of that year, the general assembly adopted a resolution requesting the International Court of Justice to issue an advisory opinion on the legality of Kosovo’s 8 Cassese 9 See

(1999), p. 59 and pp. 61–62. Novak (2002), pp. 662–665.

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unilateral declaration of independence under international law. On 22 July 2010, the international court of justice issued an opinion on this issue, but it sidestepped many substantive issues, including the right to self-determination, except that Kosovo’s declaration of independence from Serbia did not in itself violate international law.10 Thus, Kosovo’s unilateral declaration of independence does not constitute a precedent for the exercise of the right to self-determination.

11.3 Relationship Between Territorial Integrity of State and Self-determination As confirmed by the International Court of Justice in its advisory opinion on Kosovo, the principle of territorial integrity is an important component of the international legal order and is enshrined in Article 2(4) of the charter of the United Nations.11 At the heart of the concept of territorial integrity is the inviolability of the territorial territories that a state possesses and which it effectively governs. In international law, the concept of territorial integrity has been inseparable from the concept of sovereignty from the very beginning, because territory is the basic or even the first element of a state. Furthermore, territorial integrity is closely linked to the prohibition of the use of force, since, under modern international law, no state may use or threaten to use force to destroy or damage the territorial integrity of a state, unless authorized by the UN Security Council and in self-defense.12 In addition to the UN Charter and the precedents of the International Court of Justice, the crucial importance of the principle of territorial integrity in international law and international relations has been reiterated many times in relevant resolutions adopted by the General Assembly. For example, in 1960 the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples declared that “all peoples have the right to self-determination; ……To enable them to exercise peacefully and freely their right to complete independence; Respect the territorial integrity of their country.” Any attempt to divide the unity of a state and to undermine its territorial integrity, partly or wholly, is contrary to the purposes and principles of the UN Charter. All states shall faithfully and strictly abide by the provisions of the universal declaration of human rights and the present declaration of the charter of the United Nations on the basis of equality and non-interference in the internal affairs of all states and respect for the sovereignty and territorial integrity of all peoples. The 1970 declaration of principles of international law further affirmed that national territory shall not be used as an object of military occupation in violation of the provisions of the constitution. National territory shall not be acquired by other states through the use of threat or force. In many parts of the text, it reaffirms the obligation of states to refrain from doing so in their international relations for the purpose of 10 International

Court of Justice (2010), para. 121. Court of Justice (2010), para. 80. 12 Wood (2014). 11 International

11.3 Relationship Between Territorial Integrity of State …

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infringing upon the political independence or territorial integrity of any state, and for the purpose of partially or wholly undermining national unity and territorial integrity or political independence, which is incompatible with the purposes and principles of the charter. The 1994 UN General Assembly resolution on the definition of aggression once again stressed the obligation of states not to use force to deprive other peoples of their freedom of self-determination and independence or to undermine their territorial integrity, and reaffirmed that the use of force by one state against the sovereign territorial integrity or political independence of another constitutes aggression. It can be seen that territorial integrity of states has a sacred status in international law, which should be respected by all States except for special exceptions permitted by international law and should not be violated or violated. However, with the rapid development of international human rights law and the establishment of the principle of self-determination of peoples, especially the rise of the concept of the responsibility of state protection after the end of the cold war, there has been an argument that territorial integrity should give way to the principle of self-determination of peoples and respect for human rights.13 However, with the rapid development of international human rights law and the establishment of the principle of self-determination of peoples, especially the rise of the concept of the responsibility of state protection after the end of the Cold War, there has been an argument that territorial integrity should give way to the principle of self-determination of peoples and respect for human rights. As mentioned above, the territorial integrity of states is an established principle of modern international law, which has the dual legal basis of customary law and treaty law. After the confirmation of the constitution of the world’s largest universal international organization, the further reaffirmation of a series of important resolutions and the confirmation of the International Court of Justice, the fundamental and central role of the principle of territorial integrity in the modern system of international law is indisputable. Although the principle of self-determination of peoples established in international law is much later than the principle of territorial integrity, this does not mean that the status and importance of the principle of self-determination of peoples is not the same as that of territorial integrity, and vice versa. It should be said that they are equally important in international law. In fact, both the UN Charter and the relevant General Assembly resolutions and the advisory opinion of the International Court of Justice have declared or reaffirmed their international legal status at the same time. Even in the context of the establishment of the principle of self-determination of peoples, international law still confers on territorial integrity a central status. For example, in the era of decolonization, the colonialists should likewise respect the principle of territorial integrity in their exercise of the principle of self-determination in the realization of independent statehood. The organization of African unity (the predecessor of the African union today), established in 1863, while supporting African national political independence, took full account of the

13 Wood

(2014).

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importance of maintaining the former colonial borders for the stability of the territories and borders of the newly independent states.14 As professor Crawford has argued, the peoples of existing states exercise their right to self-determination in a manner consistent with the territorial integrity of those states.15 The principle of territorial integrity and the principle of self-determination of peoples are not different in nature or in legal order in international law. Both of them are the basic principles of international law and have the nature of compulsory law. The difference between the two lies in their different emphases. Territorial integrity is the material basis for the survival and development of states and their peoples and the statutory space in which states exercise effective governance and jurisdiction. Peaceful coexistence and normal exchanges and cooperation between states can only be guaranteed if they respect each other’s territorial integrity. It is precisely because of the crucial importance of territorial integrity to national and international relations that no country has ever failed to attach great importance to its territorial integrity. Among the many elements of national security, territorial security is undoubtedly the most important. It is for this reason that the main focus is on the establishment and maintenance of international law for world peace and security and the promotion of global sustainable development among states, which consistently upholds the fundamental status of territorial integrity of states in international relations. In the context of international human rights law, self-determination of peoples emphasizes the humanistic value of international law. From the perspective of collective human rights, it emphasizes that contemporary international law should not only safeguard national sovereignty and national interests, but also protect the fundamental rights of people or peoples. This fundamental right is the right of each people or nation to choose to be independent or to be independent of another country or other political status, as well as to maintain the economic, social, cultural, religious and other aspects of national identity. It can be seen that the subjects and circumstances under which self-determination applies generally refer to the foreign self-determination and internal self-determination of the peoples and nations of the peoples and colonies of the existing sovereign states. Then, does the application of the principle of self-determination of peoples necessarily affect the territorial integrity of states? In general, self-determination of peoples does not affect the territorial integrity of a state because it does not alter the map or the governing framework of an existing state. By contrast, the self-determination of a nation may have a certain impact on the territorial integrity of an existing state. For example, independent nation-building by colonial peoples inevitably leads to a decrease in the territorial claims of the former colonial master. Another example is that when a particular region or nation of a country is established independently or separated from its original country and merged into another country, territorial changes will also occur, that is, the territorial boundaries of its original country must be reduced accordingly. Generally speaking, the impact of colonial independence on the territory of the original colonial state is recognized by modern international 14 Wood 15 See

(2014). Crawford (1998), p. 85.

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law. Leaving aside political factors and judging solely from the Angle of Law, any territorial change resulting from the determination of a people in conformity with the provisions of international law is not reprehensible and should be recognized. Any territorial change (such as the use of force or the threat of force) caused by selfdetermination of peoples that does not comply with the provisions of international law shall be condemned by the international community, or even sanctioned, and shall not be recognized.

11.4 Issues of International Supervision on Referendum An important reason for the United States and Europe to accuse Crimea of independence and inclusion in Russia is that the Crimean referendum lacks legitimacy and validity due to the lack of the participation of all Ukrainians and the supervision of international organizations. Crimea claimed it had verbally invited the organization for security and cooperation in Europe to send observers to monitor the referendum, but was refused. The OSCE believes that Member States of the OSCE are sovereign states and that Crimea is not a member of the organization and has no right to request observers. Nevertheless, 13 observers from 23 countries, more than 1, 200 local observers and more than 600 journalists from 169 international media were present to observe the referendum.16 So what kind of referendum is legal and effective in international law? Whether the referendum can be valid only with the participation of all the citizens of a country? Is the supervision of international organizations a prerequisite for the legitimacy and effectiveness of the referendum? (1) It must be pointed out that a referendum since modern times was not only as a democratic way for some countries to decide its significant matters (such as territory belonging to national separation or combined with conclusion of treaties and important international organizations, etc.), and had become a way for an international organization to determine the political status of disputed territory a way. The popular vote is a form of democratic determination, which is clearly defined by the constitution in some countries and by the decision of the legislature in others.17 For this reason, there is no doubt about the legitimacy and validity of referendums in accordance with the provisions of the constitution or laws of a country. (2) There is no general or ad hoc provision in international law for referendums or referendums. In practice, decisions or recommendations for holding a referendum are often made by the relevant bodies of international organizations in the form of resolutions based on the specific situation of a particular country or region. The administrative council of the League of Nations and the United 16 See “Crimea Referendum: Voters ‘Back Russia Union’”. BBC News. https://www.bbc.com/news/

world-europe-26606097. Accessed 31 March 2014. 17 Beigbeder (2011).

204

(3)

(4)

(5)

(6)

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States Security Council, for example, have repeatedly suggested in this form referendums on their political status in relevant disputed areas. Although there are no specific criteria for the legitimacy and validity of referendums in international law, the long-standing international practice has resulted in some universally observed principles.18 First of all, the referendum should have the universality or universality of participation, that is, it should be the action of the common people or ethnic groups of a country or relevant region, rather than the action of some or even a minority of the common people. Second, the referendum should be held in a peaceful manner, without any interference or intervention by outside forces, especially the threat or intervention of force. Finally, the referendum should be held in an open, fair and transparent manner. The referendum on the political status of a non-self-governing territory (United Nations trust territory) requires the participation of the local population, not the original colonial or suzerainty. Its legality and effectiveness, in addition to being consistent with the principles set forth in (3) above, must be conducted under the supervision of the relevant international organizations (i.e. international observers), which has become a universally consistent international practice since the League of Nations. Referendums involving the political status of a particular region or ethnic group in an existing country are justifiable and valid if they involve the citizens of that country as a whole. But since the central government’s explicit opposition to the referendum, which is often disputed if it involves only local residents and lacks a clear domestic constitution or law, the legitimacy is key to the Crimean referendum being challenged by some countries. With regard to the international supervision of referendums, international law does not make general provisions, but depends on specific circumstances. As mentioned above (4), referendums on the independence of colonial territories and the political status of contested territories are usually conducted under the supervision of observers dispatched by international organizations. Without the supervision of international organizations, the fairness and transparency of referendums will naturally be questioned by the international community. In the absence of actual international law and precedent, it is not surprising that the effectiveness of referendums in some parts of the existing countries that the organizers of referendums invite the news media of civil society and nongovernmental organizations from other countries to observe or supervise them on the spot can be regarded as an alternative to the supervision of international organizations.

18 Ibid.

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11.5 Cases of Self-determination Under Supervision of International Organizations Since the end of the World War I, there have been some typical cases involving self-determination of peoples under the auspices of the League of Nations and the United Nations. It not only plays a decisive role in determining the political status of some long-disputed regions or nations and thus maintaining the relevant peace and security, but also promotes the continuous perfection of the theory of international law related to the principle of self-determination of peoples.

11.5.1 The League of Nations Intervened in Cases Involving Self-determination During the League of Nations period, two cases involving self-determination had important international implications: the case of the Aran Islands and the case of the Saar region.

11.5.1.1

Aran Islands Case

Historically, the Aran islands were under the jurisdiction of Finland during the union of Sweden and Finland, and after the independence of Finland, both countries claimed territorial sovereignty over the islands and referred to the legal question of selfdetermination. In 1992, in the absence of a Permanent International Court of Justice, the executive committee referred the matter to an ad hoc international commission of jurists for an advisory opinion. After investigation and consideration, the committee found that the concept of self-determination could not, at the time, be considered as an established part of positive international law. The essential foundation of law, at least in general, is sovereignty, but in the absence of stable sovereignty the legal situation becomes vague and uncertain. This ambiguous case is converted from fact to law. In such cases, the discretionary principle is applicable. On the basis of this advice, the League of Nations recommended that the Aran islands remain under Finnish sovereignty, but also demanded that Finland improve its guarantee of autonomy for the islands. In the end both Finland and Sweden accepted the proposal.19 In 2004, when Finland joined the European Union, the highly autonomous status of the Aran islands was reaffirmed.

19 See

Padelford and Andersson (1939).

206

11.5.1.2

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Saarland Referendum

After World War I, under the treaty of Versailles, Saarland was entrusted to the French and British occupation and administration. On 4 June 1994, the executive Committee of the League of Nations approved the recommendation of the Aloisi’s Committee for the holding of the referendum and established a committee to organize it. Under the supervision of an international force authorized by the executive committee of the League of Nations, the result of the referendum in the region was that 90 percent of the electorate voted in favor of returning to the Council of the League of Nations, by which a resolution was adopted that Saarland was annexed to Germany on 1 March 1935.20

11.5.2 Cases Involved by the United Nations in Self-determination 11.5.2.1

Eritrea’s Independence

Eritrea was once a colony of Italy, which renounced all colonies in Africa after its defeat in World War II. In December 1950, the United Nations adopted a resolution federating Eritrea with Ethiopia as an autonomous body. In 1962, Ethiopia forced the abolition of federalism and the incorporation of Eritrea into a province of Ethiopia, resulting in a prolonged armed struggle by the Eritrean people for independence. From 23 to 25 April 1993, under the mediation and supervision of the United Nations, Eritrea held a referendum in which an absolute majority voted in favor of Eritrean independence. On 24 May of the same year, Eritrea formally declared its independence.21

11.5.2.2

The Independence of Northern Cyprus

Cyprus declared its independence from British colonial rule on 16 August 1960, and established an independent republic of Cyprus, with a coalition government of GreekCypriots in the south and Turkish-Cypriots in the north. Cyprus joined the British commonwealth of nations in March 1996. Since then, armed conflicts between the two groups have continued. On 15 January 1983 the Turkish minority in the north declared the establishment of the Turkish Republic of Northern Cyprus, while the Cypriot government firmly opposed to Turkish independence, the European Union and the United States and other countries also explicitly declared that it would not recognize, the only country to give recognition is Turkey. Since 1975, the United Nations and the international community have been trying their best to mediate a 20 Beigbeder 21 Ibid.

(2011).

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settlement of the Cyprus issue. In 2004, Cyprus held a referendum on a United Nations unity plan, which failed to pass. While the Turkish majority in the north voted in favor of the plan, the Greek-dominated south voted against it, declaring the UN’s mediation a failure.22 On 1 May 2004, the internationally recognized Republic of Cyprus (controlled by the Greek south) formally joined the European Union.

11.5.3 Cases in Which the International Court of Justice Has Decided (or Issued an Advisory Opinion) on Self-determination 11.5.3.1

Independence of Western Sahara

Western Sahara was a former Spanish colony. In May 1973, the western popular front decided to fight for the independence of Western Sahara through armed struggle. Meanwhile, the neighboring countries such as Algeria, Morocco and Mauritania also oppose Spanish rule in Western Sahara. On 27 February 1967, the western popular front declared the formation of the Saharan Arab democratic republic. Since then, there have been repeated clashes between armed forces of the Morocco and Mauritania and the armed forces of the western popular front. The armed conflict between Morocco and the Western Sahara people’s liberation front (PFL) has continued since August 1979, when Mauritania abandoned its territorial claim in western Sahara and withdrew from the war in western Sahara, while Morocco seized the area from which Mauritania withdrew. In April 1991, the UN Security Council adopted a resolution establishing the United Nations mission for the referendum in western Sahara to monitor the cease-fire between the two sides and organize a referendum for the people of western Sahara to decide the future status of the region. In the process, the UN General Assembly adopted resolution 3292 in 1974, requesting an advisory opinion from the International Court of Justice on the question of whether Western Sahara is landless and the nature of the legal links between the area and Morocco and Mauritania. In its opinion, the Court first stated that the legal status of Western Sahara should be settled in accordance with the UN Charter and General Assembly resolutions on self-determination. The Court further stated that Article 1 (2) of the Charter established relations between States on the basis of respect for the principle of equal rights and self-determination of peoples, and that the declaration of independence for colonial countries and peoples was further interpreted through resolution 1514 of the General Assembly in 1960. These Articles and documents provided the legal basis for the decolonization movement. The Court affirmed that, in accordance with the principle of national self-determination, a non-sovereign territory may have any of three legal status of its own free will: (1) form a sovereign State;(2) independent

22 Beigbeder

(2011).

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combination with existing independent countries;(3) integration with the existing independent states.23

11.5.3.2

Border Dispute Between Burkina Faso and Mali

Burkina Faso and Mali were both French West African colonies before their independence. They achieved independence in 1960. Shortly after independence, the two countries established bilateral institutions to resolve the border issue between the two countries and successfully demarcated about two thirds of the border. However, some 300 km of the border in the east were still not agreed upon and had resulted in armed conflict. On 16 September 1983, the two countries signed a special agreement to refer the dispute to the ICJ. In this case, although the mission of the ICJ chamber was to determine the boundary between the two parties, the definition of the elements of the right to self-determination of people’s and the establishment of the principle of the immutability of colonial boundaries were of great significance in the award. “At first sight this principle (i.e. the principle of the immutability of colonial boundaries, author’s note) conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.”24 The ruling in this case shows once again that territorial integrity has always been an indispensable requirement in the implementation of the process of national self-determination.

11.5.3.3

East Timor Case

A former Portuguese colony, East Timor was declared a non-self-governing territory by the general assembly in 1960 and administered by Portugal. In 1975, the armed invasion and control of East Timor by Indonesia forced the Portuguese to withdraw. In 1989 Australia and Indonesia signed a treaty on joint exploration and development of the resources of the Timor sea continental shelf. Portugal has sued Australia in the ICJ for what it considers a violation of the status of the non-self-governing territory of East Timor and Portugal’s rights as administrator. Portugal has sued Australia in the international court of justice for what it considers a violation of the status of the non-self-governing territory of East Timor and Portugal’s rights as administrator. Although the ICJ refuses to make a judgment on the substantive matters of the 23 International 24 International

Court of Justice (1975). Court of Justice (1986).

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case, its interpretation on self-determination of peoples has important theoretical and practical significance. The Court recognized self-determination as one of the fundamental principles of contemporary international law and further attributed it to obligation erga omnes.25 This means that the ICJ has recognized that the right to selfdetermination constitutes a fundamental value for the entire international community and thus has universal applicability. The jurisprudence of the Court showed that the right to self-determination was not only linked to the territories concerned but also included the freedom to choose the mode of governance it considered appropriate.

11.5.3.4

Kosovo Independence

It is worth noting that in Kosovo independence consulting case, the International Court of Justice skillfully dodged about whether the international law gives part of the population within an existing national shall enjoy the right of self-determination, or so-called relief separation of sensitive issues, which thought that there was no need to reply. The reason was that they were not mentioned in the questions requested for consultation by the General Assembly. The Court’s approach is to analyze and interpret the formation process of the situation in Kosovo and the relevant resolutions of the UN Security Council, and conclude that general international law does not prohibit Kosovo from unilaterally declaring independence by examining the practice of newly independent states and their international recognition from modern times to the present. From the eighteenth century to early twentieth century, a large number of independent and separated the opposition of the event, as a result, lead to the generation of new country, others did not fulfill a wish. But practice shows that international law did not produce new rules banning declaration of independence, so the Court considers Kosovo’s unilateral declaration of independence is not in violation of international law.26

11.6 Conclusion According to the above analysis, we can get the following conclusions: Firstly, self-determination of peoples in international law is closely related to the formation and development of international human rights law from its establishment to its evolution. It was firstly established by the UN charter as a fundamental principle of international law. As a right under international law, it has been confirmed by the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and a series of important resolutions of the General Assembly.

25 International 26 International

Court of Justice (1995). Judgment, East Timor (Portugal v. Australia), para. 29. Court of Justice (2010), paras. 79–84.

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Secondly, the application of self-determination is relatively certain in the following situations: (1) the right of the people of existing countries to choose their political status and political, economic and social systems. (2) the right of colonial peoples under foreign occupation and domination to choose to become independent and to assume an existing independent state or other political status. Thirdly, in international law the principle of self-determination of peoples is closely related to the principle of territorial integrity. Both of them are components of the basic principles of international law and have the nature of jus cogens. However, they have different emphases in different international law contexts. The territorial integrity of a State is one of the core elements of the concept of State sovereignty, and it is the primary element and the material basis for the exercise of State sovereignty. In the process of its formation and evolution, self-determination of peoples focuses on the humanization of international law. The exercise of the right to internal selfdetermination had no effect on the territorial integrity of states, while the exercise of the right to external self-determination generally resulted in changes in the territory of existing States. Fourthly, for a long time, the most controversial issue of self-determination of peoples in practice has been the question of external self-determination of national minorities or certain regions in existing States, which directly affects the sovereignty and territorial integrity of existing States. In this regard, while international practice is not in uniformity, national minorities or populations of regions in existing States that do not constitute “peoples” do not enjoy the right to self-determination under international law, in the light of existing international law. Only in the case of consistent and rude infringement on a large scale for a long time by domestic regime, and in the absence of any external force to interfere in military threat, and under the effective supervision of international organizations, through fair and open way of referendum to make decisions about their own political status, it is likely to get widely acknowledged in the world. Lastly, the secession of Crimea from Ukraine to Russia reflects the contradiction between the principle of self-determination of peoples and the principle of territorial integrity in international law. In this incident, the differences and even antagonisms between the Russian camp and the US and European camp not only involve the issue of legitimacy, but also involve the conflict between the two sides on value orientation, major strategy and core interests. In the absence of universally recognized international precedents, it is normal for other States to take different positions on the issue. If the General Assembly or the Security Council were to ask the Court for an advisory opinion on the legality of Crimea’s declaration of independence, it would be a hot potato for the international judiciary. It may agree with Kosovo’s unilateral declaration of independence that the unilateral declaration of independence and annexation of Crimea to Russia are not prohibited under existing international law. Or, on the grounds that there are no human rights and humanitarian disasters in Crimea similar to those in Kosovo, that its referendum undermines Ukraine’s

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sovereignty and territorial integrity and is therefore inconsistent with international law. In the final analysis, the final settlement of the Crimea issue must be achieved through international law, but it also depends crucially on the political wisdom of the parties concerned.

References Beigbeder Y (2011) Referendum. Max Planck Encyclopedia of Public International Law, Oxford Public International Law, https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690-e1088?rskey=3j7BpG&result=1&prd=EPIL. Accessed 31 Mar 2014 Carley P (1996) Self-determination, sovereignty, territorial integrity, and the right to secession. UN Institute of Peace, Peaceworks No. 7. https://www.usip.org/publications/1996/03/self-determina tion-sovereignty-territorial-integrity-and-right-secession. Accessed 31 Mar 2014 Cassese A (1999) Self-determination of peoples: a legal reappraisal. Cambridge University Press, London Crawford J (1998) state practice and international law in relation to secession. British Yearbook Intl Law 69(1):85–117 International Court of Justice (1975) Advisory Opinions (Summary), Western Sahara International Court of Justice (1986) Judgement, Frontier Dispute (Burkina Faso v. Mali) International Court of Justice (1995). Judgment, East Timor (Portugal v. Australia) International Court of Justice (2010) Advisory opinion, accordance with international law of the unilateral declaration of independence of Kosovo. Novak M (2002) Commentary on the international covenant on civil and political rights, 2nd edn (trans: Sun S, Bi X). SDX Joint Publishing House, Beijing Padelford NJ, Andersson KGA (1939) The Aaland Islands question. Am J Intl Law 33(3):465–487 Sathasivam K (2005) Uneasy neighbors: India, Pakistan, and US foreign policy. Ashgate Publishing Ltd., Surrey UN General Assembly (1952) Convention on the international right of correction (U. N. Doc. A/RES/630 (VII)) UN General Assembly (1955) Comment made by the chairman of the working party of the third committee on the draft international covenants on human rights, (U. N. Doc. A/C.3/SR.668) UN General Assembly (1957) Convention on the nationality of married women (U. N. Doc. A/RES/1040 (XI)) UN General Assembly (1959) Declaration of the rights of the child (U. N. Doc. A/RES/1386 (XIV)) UN General Assembly (1960). Declaration on the granting of independence to colonial countries and peoples (U. N. Doc. A/RES/1514 (XV)) UN General Assembly (1970) Declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the UN Charter (U.N. Doc. A/RES/2625 (XXV)) UN General Assembly (2014). General assembly adopts resolution calling upon states not to recognize changes in status of Crimea region (GA/11493). https://www.un.org/News/Press/docs/2014/ ga11493.doc.htm. Accessed 31 Mar 2014 Wood M (2014) Territorial integrity. Princeton Encyclopedia of self-determination. https://pesd.pri nceton.edu/node/686. Accessed 31 Mar 2014

Chapter 12

Implementation Mechanism of the UN Core Human Rights Treaties: Current Situation, Issues and Enhancement

12.1 Introduction The emergence and development of the international human rights law is undoubtedly one of the most important milestones in the history of international law and has epoch-making significance. It brings multi-dimensional changes to international law. Firstly, the period when States dominated international law has passed away: the State is no longer the only subject of the international law; the international law is no longer centered on protecting the interests of States; and the compliance and implementation of international law no longer rely solely on the “voluntary” and “self-serving” of each State. Although the eligibility of individual as a subject of international law has always been controversial, but with human rights law as the core, more and more norms of international law directly stipulate individual rights and obligations. It has long been an objective fact that individual has become a limited subject of international law in some specific areas at least. Secondly, the international human rights law has injected new value orientation into the international law. Although the principle of state sovereignty is still and will always be the primary basic principle and value orientation of the international law, it has been developing since the birth of the UN Charter (hereinafter referred to as “the Charter”). In 1945, the Charter clearly stated the commitment of the State Members of the United Nations to promote and protect human rights and fundamental freedoms. The Universal Declaration of Human Rights (hereinafter referred to as “the Declaration”) adopted by the UN General Assembly in 1948, although not a formal multilateral treaty, has acquired the effects of the customary international human rights law through the affirmation, confirmation and absorption of a series of human rights treaties, UN documents and international judicial judgements and The Article was originally written by Prof. Zeng in Chinese, and published in Jiang Han Forum (Jianghan Luntan), July 2014, pp. 33–41. It was then translated by Ms. Qian Zhang, and proofread by Dr. Jiao Zhang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_12

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advisory opinions during the past half century. In particular, the preamble to the Declaration solemnly proclaims that whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…, it is essential that human rights should be protected by the rule of law and be universally and effectively recognized and observed. Since then, led by the UN, a series of core human rights conventions have been concluded, which embody and specialize the new value of respecting and protecting human rights. The Vienna Declaration and Program of Action, adopted by the World Conference on Human Rights in 1993, reaffirmed the universality of human rights and of indivisibility and interdependence of human rights and fundamental freedoms. So far, the values and standards of the United Nations in the area of human rights have been basically established. As a new branch of international law, international human rights law has formed a relatively independent system. Entering the twenty-first century, a series of UN documents further align human rights with democracy and the rule of law, and declared and confirmed them as a whole value orientation. The heads of State have, in the United Nations Millennium Declaration in 2000, stated their commitment that in addition to their separate responsibilities to their individual societies, they have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. The 2005 World Summit Outcome reaffirmed the universality, indivisibility, interdependence and interrelatedness of all human rights and recommitted to actively protecting and promoting all human rights, the rule of law and democracy and recognize that they are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations. The Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International levels once again reaffirmed the three main pillars upon which the United Nations is built: international peace and security, human rights and development. As a new value orientation of international law, human rights, democracy and the rule of law as a whole have been declared, confirmed and reaffirmed by the most universal international organizations and heads of State, and their authority is beyond doubt. Thirdly, international human rights law expands the scope of the objects of international law. Before the founding of the United Nations, although some treaties have involved some specific human rights, most of them were stipulated from the perspective of the international humanitarian law, such as restricting the means of war, the treatment of prisoners and wounded and sick soldiers, civilian protection, and so on. Therefore, in traditional international law, the protection of human rights in essence and as a whole belongs to the domestic jurisdiction of each country. Since the founding of the United Nations, the protection of human rights has been formally included in the scope of the international law, and has a rapid and sustainable development trend. Nowadays, as a new branch of the international law, the international human rights law mainly includes: (1) recognize the universality and basic principles of basic human rights and freedoms; (2) recognize civil, political, economic, cultural and social rights as the basic contents of human rights; (3) comprehensively regulate the individual human rights or the rights of specific groups, such as women, children, persons with disabilities, workers and members of their families, ethnic minorities,

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ethnic groups, tribes, etc.; (4) prohibit and punish specific human rights violations, such as racial discrimination, torture, child trafficking, sexual slavery, etc.; (5) establish human rights reporting, compliance and monitoring mechanisms; (6) establish specialized organizations or human rights bodies in international organizations; (7) establish specialized human rights courts (limited to the regional level); (8) The establishment of special international criminal tribunals and permanent international criminal courts to exercise jurisdiction over specific serious human rights violations. It should be noted that since the twenty-first century, the development of international human rights law has achieved a historic breakthrough. On the one hand, based on the recognition of the States’ obligations on protecting the rights of their own nationals and foreigners, the collective responsibility of the State for the protection of human rights has also been recognized. On the other hand, the international criminal courts, temporary, special or mixed, have been established to accuse of and try large-scale serious violations of human rights, and then a permanent International Criminal Court has been established to realize the normalization and persistence of the legal system on the protection of human rights. Finally, international human rights law marks the trend towards the humanization in contemporary international law. For a long time, the international law has been defined as “the law of nations”. However, with the norms and contents of the international law paying increasing attention to the respect and protection of “human” rights and the maintenance of “human” interests, international law is no longer only “based on the State (interests)”, but also “human-oriented”, which is a more significant phenomenon of “humanization” from the modern era to the contemporary. Although not the only reflection, the international human rights law is undoubtedly the core and main symbol of this trend.1 In short, with the rapid progress of international human rights law, the establishment and relevant activities of human rights treaty bodies have significant impacts on the compliance and implementation of international human rights law. Human rights were originally domestic matters under the jurisdiction of each country. Later, human rights were incorporated into the international law, mainly regulated by a series of human rights treaties, rather than formed through customary international law. Therefore, compared with some traditional international law departments, the legal foundation of international human rights law is not that solid. In this case, if the compliance and implementation of human rights treaties is based mainly or even totally on voluntary and self-serving of States, their effectiveness will definitely be greatly reduced. Therefore, after the conclusion of UN human rights treaties, each core human rights treaty has established a corresponding standing committee, which is responsible for the monitoring of the implementation of the relevant human rights treaties. Although the establishment of treaty bodies is not the original and exclusive right of human rights treaties, and most of other multilateral treaties have also established corresponding bodies, such as security and disarmament treaties, multilateral trade agreements under the WTO framework, international environmental treaties, etc., international human rights treaty bodies have some distinctions. 1 See

Zeng (2007).

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12.2 Characteristics of the Implementation Mechanism of UN Human Rights Treaties 12.2.1 Types of UN Human Rights Organs Besides main organs of the UN, such as the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), the International Court of Justice, which play their due roles in the area of human rights within their respective terms of reference, the specialized human rights organs of the UN can be divided into two categories: the first category is human rights organs established on the basis of the Charter, and the second is those on the basis of human rights treaties. The Charter-based organs are actually created by the General Assembly through resolutions, namely, the Human Rights Council and Office of the High Commissioner for Human Rights (OHCHR). The Human Rights Council is a specialized body within the UN system. Its predecessor was the UN Commission on Human Rights, a functional body under the ECOSOC. On 15 March 2006, the UN General Assembly adopted Resolution 60/251 to create the United States Human Rights Council and replace this Commission. It is composed of 47 Member States elected by the General Assembly. Its mandate is to strengthen the promotion and protection of human rights around the globe, to pay attention to human rights violations and to make recommendations thereon. It has the ability to discuss all thematic human rights issues and situations that require its attention throughout the year. Its Universal Periodic Review mechanism serves to assess the human rights situations in all UN Member States, the Advisory Committee serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues and the Complaint Procedure allows individuals and organizations to bring human rights violations to the attention of the Council. What deserves special attention is its Special Procedures, which are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. Special procedures are either an individual (called “Special Rapporteur” or “Independent Expert”) or a working group. The Special Rapporteurs, Independent Experts and members of the Working Groups are appointed by the Human Rights Council and they do not receive any financial renumeration. The mandates of Special Procedures generally require mandate-holders to review, monitor, advise and publicly report on the human rights situation. Mandates targeted at the human rights situation of specific countries or regions are called country mandates and those targeted at serious human rights violations around the globe are called thematic mandates. All mandate-holders should report their findings and recommendations to the Human Rights Council. Sometimes, these mandates are the only mechanism for alerting the international community to certain human rights issues. At the Vienna World Conference on Human Rights in 1993, the international community decided to establish a more robust human rights mandate with stronger institutional support. Accordingly, Member States of the UN created the OHCHR by a General Assembly Resolution in 1993. The main missions of the OHCHR are to

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provide specific services to UN human rights bodies and to protect all human rights for all people. In carrying out its missions, OHCHR will: give priority to addressing the most pressing human rights violations, both acute and chronic, particularly those that put life in imminent peril; focus attention on those who are at risk and vulnerable on multiple fronts; and pay equal attention to the realization of civil, cultural, economic, political, and social rights, including the right to development. After the establishment of the OHCHR, two important measures were adopted in 1994 to monitor the implementation of human rights. The first one was to set up a 24-h hotline in Geneva so that the OHCHR can monitor the emergencies of human rights violations and respond promptly. The second was to set up human rights databases in Geneva to collect a wide range of information for the Special Rapporteurs of the Commission on Human Rights (the later Human Rights Council after 2006) to investigate issues such as religious discrimination, torture, racism, and violations of freedom of expression, etc. These two measures have greatly strengthened the effectiveness of UN human rights bodies in dealing with the issues of human rights protection, and created a “timely response” mechanism for the UN human rights protection activities. The second category of human rights organs are called treaty-based bodies. To date, nine core human rights treaties of the UN have set up specialized bodies respectively to monitor the implementation of these treaties, namely, the Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR); the Committee on Economic, Social and Cultural Rights under the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Committee on the Elimination of All Forms of Racial Discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Committee against Torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Subcommittee on Prevention of Torture under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Committee on the Elimination of Discrimination against Women under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Committee on the Rights of the Child under the Convention on the Rights of the Child (CRC); the Committee on Migrant Workers under the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW); the Committee on the Rights of Persons with Disabilities under the Convention on the Rights of Persons with Disabilities (CPRD); and the Committee on Enforced Disappearance under the International Convention for the Protection of All Persons from Enforced Disappearance (CED).

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12.2.2 Basic Characteristics of UN Human Rights Treaty Bodies Compared to the treaty bodies within other areas, the UN human rights treaty bodies have some following distinctions: Firstly, although each member of the human rights treaty bodies is nominated and selected by States Parties, they are not officials responsible for human rights affairs but widely-recognized experts on human rights. They perform their duties independently, instead of representing respective States or governments. Other treaty bodies are different. Some international conventions do not set up specialized independent bodies, instead, the assembly of States Parties is entrusted with the function of monitoring the implementation of the Convention. This is the case with the United Nations Convention against corruption, although it leaves room for the establishment of specialized bodies.2 However, the Technical Guide to the United Nations Convention Against Corruption was developed by a group of independent experts, government officials and officials of international organizations organized by the United Nations Office on Drugs and Crime. Each multilateral and plurilateral trade agreements under the WTO framework has set up its committee, which, however, is not composed of independent trade experts, but of trade officials of the governments of States Parties. On the other hand, there are some other treaty bodies of which the structure resembles that of human rights treaty bodies. For example, international environmental treaties have successively set up treaty compliance committees composed of independent environmental experts. Secondly, the composition of human rights treaty bodies is much more streamlined than that of others. Its members are elected, ranging from 10 to 23. In contrast, the committee of each multilateral trade agreement is composed of all WTO Members. It is clear that the working efficiency of the body composed of a specific number of people is bound to be much higher than that of the one composed of all States Parties. Thirdly, the existing human rights treaty bodies operate separately and do not form a unified operation system, although the OHCHR adopted the expression of “human rights treaty system”,3 mainly from the perspective of the number of human rights treaties and their bodies and the breadth of their coverage over human rights. Although all human rights treaty bodies have a high degree of consistency in terms of composition, terms of reference and procedures of activities, they do not form a unified system, but operate independently and irrelevantly. In recent years, the OHCHR have been striving for a unified permanent treaty body,4 but there is no substantial progress due to great divergence. Multilateral trade agreements under the framework of the WTO have formed a unified agreement system. This system is composed of three levels: the highest one is the General Council; the second is 2 Article 63 (7) of the Convention against Corruption: “Pursuant to paragraphs 4–6 of this Article, the

Conference of the States Parties shall establish, if it deems it necessary, any appropriate mechanism or body to assist in the effective implementation of the Convention”. 3 See United Nations Office of the High Commissioner for Human Rights (2012). 4 United Nations International Human Rights Instruments (2006).

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sub-Councils, namely, Council for Trade in Goods, Council for Trade in Services, Council for Trade-Related Aspects of Intellectual Property Rights; and the third level is Committees for each specialized multilateral trade agreements (12 in total). They together constitute of the implementation institution of WTO Agreements. Fourthly, the functions and powers of human rights treaty bodies are relatively broader than those of other treaty bodies. Each human rights treaty body performs a series of functions to monitor the implementation of relevant human rights treaties by States Parties. All treaty bodies are mandated to receive and consider periodic reports submitted by States Parties, including detailed information on the implementation of human rights treaty provisions within their territories. After deliberation, the human rights treaty bodies issued what is commonly known as “concluding observations”, which include the affirmation of the positive aspects of the implementation of the treaty, as well as recommendations for further measures to be taken by States Parties. Besides, the bodies also publish their interpretation of the content of human rights provisions, known as “general comments” on thematic issues or methods of work. Some treaty bodies also perform additional functions to strengthen the implementation of treaties by States Parties, such as conducting field investigations, receiving complaints from states, considering complaints and communications in which an individual claims that his or her rights under the treaty have been violated by a state party, etc. In contrast, the WTO’s multilateral trade agreement bodies have much more specific responsibilities. In addition to the General Council’s decision-making function during the intersessional period of the Ministerial Conference, each subCouncil and each specialized Committee are only responsible for the management of the implementation of relevant agreements, and separate mechanisms have been established for the review of trade policies of WTO Members and trade disputes among Members. Fifthly, civil society organizations can cooperate with human rights treaty bodies to promote the implementation of human rights treaty bodies. There are a number of ways in which civil society can engage with the human rights treaty bodies, while taking into account the specific arrangements of each treaty body, for instance: promoting the ratification of a treaty; monitoring compliance by States Parties with their reporting obligations; submitting written information and material to human rights treaty bodies, including through written reports; depending on the rules of each human rights treaty body, participating in human rights treaty body sessions as observers or through oral submissions; following up on human rights treaty bodies’ concluding observations; submitting an individual complaint to human rights treaty bodies (Human Rights Committee, Committee on the Elimination of Discrimination against Women, Committee against Torture, Committee on the Elimination of Racial Discrimination, and Committee on Migrant Workers); providing information to generate confidential inquiries (Committee against Torture and Committee on the Elimination of Discrimination against Women); providing information for early

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warning and urgent procedures (Committee on the Elimination of Racial Discrimination), etc.5 This broad and close collaboration between human rights treaty bodies and civil society organizations is absent or rare in other treaty bodies.

12.3 Defects and Improvement of Implementation Mechanisms of UN Human Rights Treaties 12.3.1 Main Problems For more than half a century, the international human rights protection mechanism centered on UN human rights treaties and human rights organs has made great progress. However, great challenges remain. Some countries remain at the signing stage and have not completed the ratification process, limiting the application of human rights treaties.6 Influenced by different levels of the economic and social development of each country, the level of human rights protection varies greatly. From the perspective of the UN human rights treaty monitoring mechanism, there are still some outstanding problems7 : Firstly, the sharp increase in human rights treaties and their monitoring bodies has led to the overburdened reporting obligations of States Parties to the human rights treaty bodies. Almost every human rights treaty, especially the core human rights treaties, has stipulated the obligation of the States Parties to submit reports to relevant Committees on a regular basis, and to respond to the inquiries, recommendations and comments by Committees. These obligations do not seem to have much problems for developed countries with abundant human and material resources, but they are indeed a burden for developing countries (especially the least developed countries) 5 United

Nations Human Rights Office of the High Commissioner for Human Rights (2008). to the statistics of the OHCHR, among the nine core human rights treaties, the most widely ratified are: (1) the International Covenant on Civil and Political Rights (167 States parties); (2) the International Covenant on Economic, Social and Cultural Rights (160 States parties); (3) the International Convention on the Elimination of All Forms of Racial Discrimination (175 States parties); (4) the Convention on the Elimination of All Forms of Discrimination against Women (187 States) (5) Convention against Torture (153 States parties); (6) Convention on the rights of the child (193 States parties); (7) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (125 States parties). To date, only a few countries have ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (46 States parties) and the International Convention for the Protection of All Persons from Enforced Disappearance (36 States parties). Even though most of the core human rights conventions have been ratified by most countries, there are still some core human rights conventions that have not been ratified by some particularly important countries. For example, the UN has not yet ratified or acceded to the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the International Convention on the Rights of Persons with Disabilities. 7 United Nations General Assembly (1989), United Nations General Assembly (2003), United Nations Commission on Human Rights (1997). Quoted from Wu (2011) and Dai (2013). 6 According

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with relatively scarce resources. As a result, many States Parties are not able to submit their reports in a timely manner, and some even do not do so at all. For instance, as of February 2006, only 8 of the 194 States Parties to the seven core human rights treaties had submitted their full reports as scheduled, while the remaining 186 States Parties had delayed 1442 reports in total. Secondly, it is difficult to guarantee the quality of the States Parties’ human rights reports. In some reports submitted by States Parties, there are obvious perfunctory situations. For example, a certain country condensed 14 reports delayed from 1978 to 2004 into one, which was only 24 pages, and its negative and perfunctory attitude was self-evident. In addition, some States Parties did not fulfill their reporting obligations at all, which prevented the human rights treaty bodies from carrying out normal deliberations. Thirdly, the existing working mechanism of Committees on human rights treaties cannot meet the needs of effective monitoring. First of all, the members of the Committees do not receive fixed financial renumeration. Although they are experts on human rights and have enthusiasm to protect human rights, they have no obligation to fully perform their duties of monitoring the implementation of human rights treaties. To a large extent, the effectiveness of the monitoring of the bodies is weakened by the non-professional nature of the members. Second, the number of the meetings held by each Committee is limited (one or two generally) and the duration of the meetings is also relatively short (three to four weeks in general). It is obviously difficult for the Committees to conduct a comprehensive and careful review in a limited period of time. As a result, there will be a large backlog of reports. Third, some members despise the reports submitted by the States Parties and rely excessively or totally on the information from non-governmental organizations, and sometimes even conduct deliberations in the absence of the reports of the States Parties. This is inevitably suspected of violating the provisions of the existing human rights treaties, and the objectivity and impartiality of their deliberations are also questioned. Finally, issues such as the capacity and independence of the Committees, the utilization of individual communications and inter-State complaining procedures are also important deficiencies.

12.3.2 The Failure of the Early Reform Plans Since the end of 1980s, the UN have been striving for the reform on human rights treaty mechanisms. In 1988, the UN Secretary-General appointed Phillip Alston as an independent expert to report on how to improve the effectiveness of human rights treaty mechanisms. He submitted three reports to the United Nations from 1989 to 1996. These reports pointed out the main problems and defects in the implementation and monitoring mechanisms of the existing human rights treaties, and suggested that the human rights treaty bodies should streamline reporting, focus on efficiency, unify requirements, and reasonably divide labor, and should merge the existing treaty bodies and no longer establish new treaty bodies.

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In 1999, the International Law Association commissioned Anne Bayefsky to conduct a thematic study and report on the improvement and strengthening of human rights treaty mechanisms. With the support of the OHCHR, this report provided a more comprehensive and detailed report on the issues of the systematic reform on human rights treaty mechanisms. The main points of the reports are: to integrate the Committees on human rights treaties, to establish the institutions respectively responsible for the consideration of State party reports and the handling of individual and states communications, and stress the importance of adopting “follow-up measures” after the concluding observations of the Committees. In 2005, the OHCHR was specifically responsible for the design, consultation, coordination and promotion of the reform on human rights treaty mechanisms. It formulated a Plan of Action, and, on this basis, issued a Concept Paper on a unified permanent treaty body. According to the document, the capacity of the existing Committees on human rights treaties is close to the limit, and the fundamental way to reform is to establish a unified human rights treaty monitoring body to replace the Committees. The newly-established unified body is permanent and composed entirely of professionals, which is conducive to comprehensive and indepth reporting, review and monitoring of the implementation of all human rights treaties; to more authoritative and clear interpretation of human rights treaties; to comprehensive and in-depth information exchange, exchange of views and constructive dialogues with States Parties; to spare more adequate time and energy to understand the human rights situation of each State party, to consider its reports, to deal with individual complaints and to track the States Parties’ follow-up measures; to facilitate the strengthening of contacts and coordination with other relevant United States human rights bodies and special procedures. Although the above-mentioned reports and proposals (the Concept Paper of the OHCHR in particular) and the plan on a unified permanent human rights treaty body have a positive impact on overcoming the defects of current human rights treaty bodies and strengthening the implementation and monitoring of human rights treaties, they are generally too radical and lack legal bases in existing human rights treaties. As a result, it was objected by many States Parties, and its feasibility has also been questioned by some specific human rights committees and non-governmental organizations. Since 2007, this plan has no longer been put forward and then been set aside.

12.3.3 The Strengthening Process Initiated by the OHCHR In 2009, the OHCHR has initiated the strengthening process (hereinafter referred to as “the Strengthening Process”) for human rights treaty body system. To this end, the OHCHR has held about 20 consultations involving various stakeholders (human rights treaty bodies, States, United Nations organs, the civil society and national human rights institutions, etc.). On the basis of the proposals of all stakeholders, the

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Report of the United Nations High Commissioner for Human Rights on the Strengthening of the Human Rights Treaty Bodies was formed. The report was submitted by the Secretary-General to the General Assembly on June 26 2012 and was considered and adopted by the latter. The process aimed at “strengthening” rather than “reforming” the treaty body system, that is, enhancing the effectiveness of human rights treaty body system on the premise that the legal parameters of the treaties should not be altered. This report has proposed specific strengthening process from the following six aspects: Firstly, formulating and implementing the Comprehensive Reporting Calendar. The large backlogs of reports before many treaty bodies create long delays in the examination of those reports. To tackle this problem, the High Commissioner proposed to organize the current reporting deadlines into a single Comprehensive Reporting Calendar, based on a periodic five-year cycle. Within this five-year period, there would be a maximum of two reports per annum due for a State that is a party to all the treaties. This is based on the current situation of there being nine or ten reports due under the core treaties that establish reporting obligations. In this proposal, the reports to be considered by each treaty body should be spaced out to 20% of all States Parties each year, so that over five years, it will have examined the reports of all States Parties. The High Commissioner further proposed that the treaties be grouped on a thematic basis as follows: in Year 1 the ICCPR and the ICESCR, in Year 2 the CRC and its Optional Protocols, in Year 3 the CAT and the CED, in Year 4 the ICERD and the CEDAW, and in Year 5 the ICRMW and the CRPD. The report indicated that formulating and implementing the Comprehensive Reporting Calendar might have several advantages. It can reduce the burden on States Parties to fulfill their reporting obligations, save the cost of reporting, and improve the efficiency and effectiveness of the consideration of reports by treaty bodies. More importantly, it does not need to amend the existing provisions of human rights treaties on reporting obligations, so it has practical feasibility. In addition, the adoption of the Comprehensive Reporting Calendar is consistent with the principle of universal adherence to the reporting obligations of States Parties, reduce the uneven treatment of States Parties, and encourage the gradual specialization of domestic human rights reporting mechanisms of States Parties. Secondly, simplifying and aligning the reporting process of States Parties on core human rights treaties. The current reporting process is built on interlinked phases: (1) preparation of the reports by the State; (2) submission of the report by the State; (3) consideration of the reports by and a face-to-face dialogue with human rights treaty bodies; (4) concluding observations and recommendations by human rights treaty bodies; (5) follow-up of the State on the recommendations adopted by the human rights treaty bodies; (6) follow-up of human rights treaty bodies on the implementation of recommendations by the State. The main proposals of the Simplified Reporting Process (hereinafter referred to as “the SRP”) are to strictly adhere to page limitations for State parties’ reports and reducing the number of languages for the translations for summary records, to shorten and streamline concluding observations, further institutionalize the engagement with other UN entities, and to align

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the models of interactions between treaty bodies, national human rights institutions and civil society organizations. States Parties can select the SRP in either traditional reporting process or Comprehensive Reporting Calendar and adopt Common Core Documents models to simplify the preparation and submission of the report. Thirdly, strengthening the individual communications procedures, investigations and country visits. The OHCHR has adopted the proposal of the Committee on the Elimination of Racial Discrimination to create a joint treaty body working group on communications, composed of experts of different treaty bodies, and prepare common written guidelines to establish common procedures for all treaty bodies. The OHCHR will establish and maintain a well-functioning and up-to-date treaty body jurisprudence database on individual cases, searchable in all six official United States languages, and redesign the OHCHR webpages on the individual complaint procedures of the Treaty Bodies to make them more accessible. The OHCHR also stands ready to support the treaty bodies in the exploration of possibilities for friendly settlements, especially the strengthening of the functions of the Committee against Torture. Fourthly, strengthening the independence and expertise of treaty body members. In view that nomination and election process is a determining factor of paramount importance to the expertise and efficiency of each treaty body, the OHCHR support the initiative taken by the treaty bodies themselves to adopt guidelines to bolster the independent and impartial exercise of functions by their members. The OHCHR also proposed to invite States Parties to adopt, within their respective settings, national policies and processes, with respect to the nomination of experts as candidates for treaty body membership. Besides, the OHCHR also proposed an open public space for all States Parties to present their potential candidates or nominees for treaty bodies. The candidates nominated and selected should have a proven record of expertise in the relevant area. In is also necessary to avoid nominations or election of experts while they are holding positions in the government or any other positions, and the limitation of their terms of service should be a maximum of two years. Fifthly, strengthening capacity to implement the treaties. The implementation of treaty body recommendations remains the primary responsibility of States Parties and the key to monitoring the implementation of human rights treaties by States Parties. Therefore, all treaty bodies request States Parties to provide information on implementation of the recommendations contained in previous concluding observations in their subsequent reports to facilitate a clear assessment on the progress made by the State party since the previous review, which constitutes an inherent follow-up mechanism of the treaty bodies in the context of the review of periodic reports. However, whether this follow-up mechanism can achieve practical results depends on the capacity of States Parties to implement human rights treaties in addition to their willingness. The OHCHR may make its accumulated experience available to conduct capacity-building activities at the national or (sub-)regional level on treaty reporting and individual communications. Such activities are traditionally servicing representatives of the Government, the Judiciary and Parliament, but also other national stakeholders, civil society organizations, as well as regional human rights organizations. The OHCHR will further refine its capacity-building strategy,

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including technical assistance, such as providing the Universal Human Rights Index, when States Parties wish to use it for preparing their reports and for clustering recommendations from the various UN human rights mechanisms as the starting point in formulating a national framework/policy/plan of action for their implementation. The High Commissioner further encourage States Parties to, with the possible support of the Universal Human Rights Index database, establish or reinforce a standing national reporting and coordination mechanism. Such a mechanism should aim at facilitating both timely reporting and improved coordination in follow-up to treaty bodies’ recommendations and decisions. Standing National Reporting and Coordination Mechanisms (SNRCM) should be able to deal with all UN human rights mechanisms requirements with the objectives of reaching efficiency, coordination, coherence and synergies at the national level. Sixthly, enhancing the visibility and accessibility of the treaty bodies. The High Commissioner believe that to varying degrees, treaty bodies remain relatively unknown at the national level and the use of their outputs remains too limited, but this situation can be remedied by better using modern information technologies as well as other measures to disseminate the work undertaken by the treaty bodies. For instance, the webcasting and videoconferencing may enhance the accessibility and visibility of treaty bodies at the national level. Webcasting the treaty bodies’ public meetings will strongly enhance accessibility and visibility of the dialogue between States Parties and treaty bodies, and there is a great benefit in social media networks using webcasting of treaty body sessions to transmit knowledge and involve younger generations in enlightened debates about rights and responsibilities in their respective societies. Besides, cameras installed for webcasting purposes could be used also for videoconferencing to give greater opportunities to national civil society actors to engage with treaty bodies. Through the development or reinforcement of the above measures, the visibility and awareness of the treaty bodies can be enhanced, the achievements of the treaty bodies can be better disseminated and the predictability can also be improved.

12.3.4 The Intergovernmental Process Initiated by States Parties It is worth noting that, although the High Commissioner self-proclaimed that the Strengthening Process can systematically improve the current human rights body system without amending human rights treaties, this process was not widely supported by States Parties. In fact, from the very beginning, the Strengthening Process has belittled the leading role of States Parties in strengthening the human rights treaty body system. The OHCHR is more likely to conduct consultations with such stakeholders as national human rights institutions and non-governmental organizations and the recommendations on the measures to the Strengthening Process are therefore mainly from them. It was only later in the consultation that OHCHR initiated

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a small number of consultations with the States Parties, and their recommendations and views were not fully reflected in the Strengthening Process. On 23 February 2012, the General Assembly adopted Resolution 66/254 and initiated the Intergovernmental Process on strengthening and enhancing the effective functioning of the human rights treaty body system.8 The Intergovernmental Process is a multilateral consultation mechanism based on the platform of the general assembly and led by the Member States of the United Nations or the States Parties to human rights treaties, in which national human rights institutions and relevant nongovernmental organizations are invited to participate. This process aims to strengthen and promote the efficiency of human rights treaty body system from the following four aspects: first, the feasibility of the Comprehensive Reporting Calendar adopted by the High Commissioner; second, the update of the specific working methods of treaty bodies; third, the improvements of the reporting procedures by States Parties; fourth, the enhancement of the capacity-building of States Parties and of the implementation of the views of treaty bodies. Due to divergent opinions among States Parties and stakeholders on a range of crucial issues, the Intergovernmental Process has been delayed repeatedly. At present, it is still in progress and when the final results will be achieved remains a mystery. Firstly, States Parties believes that, while the OHCHR, as the UN body specialized in human rights, has the right to work to strengthen the implementation of human rights treaties and improve the efficiency of human rights treaty bodies, it must be carried out within the framework of existing human rights treaties, and the Comprehensive Reporting Calendar it proposes and actively promotes risks breaking through human rights treaties. Whether and how to amend human rights treaties falls within the sovereign jurisdiction of States Parties. Therefore, whether or to what extent the Strengthening Process of the OHCHR, including the Comprehensive Reporting Calendar, can be adopted by the Intergovernmental Process also requires agreement among States Parties, which seems to be difficult to achieve. Secondly, although States Parties generally favors the launching of the Intergovernmental Process and the strengthening of human rights treaty bodies, they have divergent opinions on some specific proposals. For example, some States Parties support the enhancement of the independence of treaty bodies, while others insist that treaty bodies should respect the principles of equal participation of States Parties and of regional equity. Some States Parties advocate to ensure the wide and full participation into the Intergovernmental Process of stakeholders such as national human rights institutions and non-governmental organizations, while others insist that the participation of other stakeholders should be maintained to an appropriate extent, that is, the States Parties and their governments should always be at the core and play a leading role in the implementation of human rights treaties and the protection of human rights. In sum, either the Strengthening Process of the OHCHR or the Intergovernmental Process, on the one hand, reflects that various actors of the international community (i.e. States Parties and their governments, international organizations, human rights 8 Ibid.

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treaty bodies, national human rights institutions, non-governmental organizations and international civil society, etc.) generally favors the reinforcement of the implementation of human rights treaties and the strengthening of the operational efficiency of human rights treaty bodies, and on the other, has not reach an agreement on the specific methods and ways on the strengthening or the reform. Although the two co-existing processes have consistent goals, substantial promotion is still hard to achieve. The reason is that international actors or human rights stakeholders have different understandings on the importance of sovereignty and human rights and the relationship between them, and such differences stand not only between States Parties and other stakeholders, but also between States Parties, and even between other stakeholders. It will take a long time to eliminate, or at least minimize, these differences in the implementation of complex and sensitive human rights treaties.

12.4 Practical Ways to Effectively Implement Human Rights Treaties Despite the constructive significance of the above-mentioned reports and proposals (especially the Concept Paper of the OHCHR) in overcoming the shortcomings of current human rights treaty bodies and strengthening the implementation and monitoring of human rights treaties, especially the OHCHR’s proposals of a unified permanent treaty body and the Comprehensive Reporting Calendar, these recommendations are generally too radical. The lack of a clear legal basis within the existing human rights treaties seems to be a risk of amending current human rights treaties, which has been opposed by many States Parties, and its feasibility has also been questioned by some specific human rights committees and non-governmental organizations. Clearly, in order to guarantee the implementation of human rights treaties and enhance the operational efficiency of human rights treaty bodies, our actions must also be based on the situation of the whole international community and its human rights situation and adhere to the following basic approaches: Firstly, maintain the current human rights treaty body system. The existing human rights treaties have been concluded through numerous continuous negotiations among Member States within the framework of the United Nations for more than half a century, and more specific optional protocols have been further concluded on the basis of each core human rights treaty. Each core human rights treaty has further established corresponding monitoring bodies, thus forming the international human rights law and human rights body system. This is a great achievement of the cause of international human rights, the crystallization of the collective wisdom of the international community, and a significant symbol of the progress of human civilization. We should unswervingly maintain the stability and continuity of the current human rights treaty system. Although there are various defects and deficiencies within the human rights treaty system in practice which need to be improved or strengthened, such strengthening measures must be carried out step by step on the basis of the

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current human rights system. Any reform that breaks through the current human rights treaty system is impractical, because the breakthrough reform needs to amend the current human rights treaties, and it is bound to be difficult to amend the human rights treaties that most countries in the world participate in, and the material and intellectual costs are also difficult to estimate. To maintain the current human rights treaty system means to maintain the current human rights body system. Each human rights treaty has its specific contents and each human rights treaty body is responsible for the monitoring of the implementation of a specific human rights treaty. Each human rights treaty body is composed of experts in a specific area of human rights, which is highly professional, and therefore the effect of its monitoring is bound to be highly targeted. Under this circumstance, a unified human rights treaty system can to some extent lighten the reporting burden of States Parties, reducing reporting costs and enhance the operational efficiency of treaty bodies, but the quality of the monitoring will be sacrificed if it has to review the reports of the States Parties on the implementation of the nine core human rights treaties. It should be noted that some human rights treaties involving special groups (such as women, children, persons with disabilities, workers and their family members) and those against and punishing serious human rights violations (such as against torture) need more specialized monitoring by professional bodies. If these specific human rights treaty bodies are incorporated into a unified one, it will inevitably weaken the strength of monitoring, and further result in ineffective monitoring. Secondly, uphold the principle of State-dominance. It is unquestionable that the protection of human rights at national level and international level requires the multidimensional wisdom and wide participation of all stakeholders, especially those of non-state actors such as international organizations, non-governmental organizations, civil society organizations and individuals. However, the State and its government should always play a leading role in any aspect of human rights protection, especially in the implementation of international human rights treaties. The reasons are as follows. First, all States Parties to UN human rights treaties are sovereign States. On the one hand, through the conclusion of human rights treaties, there are both domestic and international legal basis for the granting and protection of individual rights, and on the other, states undertake the international obligations to comply with human rights treaties and guarantee their implementation. Therefore, the State party has absolute dominance over the establishment and operation of human rights treaty bodies and such dominance should extend to any reinforcement or reform measures of human rights bodies. One of the reasons why the Concept Paper and the Strengthening Process have not achieved much progress is that they attach too much importance to the recommendations and proposals of other actors and fails to respect and uphold the principle of State-dominance. Second, States Parties possess absolute resources to protect human rights and implement human rights treaties. It is undeniable that with the increasing awareness of human rights protection in the whole international community, in addition to the resources of States Parties and their governments, more and more international organizations, non-governmental organizations and civil society organizations are committed to the cause of human rights protection. The input and contribution of these non-state actors to the protection

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of human rights are not only human and intellectual resources, but also a large number of material resources. However, it is the resources from States Parties and their governments that are always the main source to guarantee the implementation of international human rights treaties. This is because the complete state apparatus and governmental system of the State party can provide a solid and strong legislative, administrative and judicial system for human rights protection, and they remain all kinds of human and material resources of the State party for human rights protection and international human rights cooperation. Despite the independence of human rights protection activities of human rights bodies, they cannot operate without the support and help of States Parties and their governments. Thirdly, enhancing the compliance capacity of States Parties. The reasons for reviewing the defects or malpractices in the implementation of international human rights treaties are complex. It is true that the difference of the implementation of human rights treaties among States Parties is influenced by political, economic, cultural, religious, ideological and other factors, and the low operational efficiency of international human rights bodies can also be attributed to operational or technical reasons, but the fundamental reason is the long-standing imbalance among States Parties on the compliance capacity of human rights treaties. The key point rests on the insufficient or even absence of compliance capacity of many States Parties. Therefore, in the long run, the most fundamental way to strengthen the implementation of human rights treaties is to enhance the compliance capacity of developing countries, especially the least developed countries. On the one hand, the strengthening of the compliance capacity is in essence to enhance the comprehensive national strength, which is, in essence, to enhance the hard and soft power of the State party within economic and social areas. The most important premise of the enhancement of comprehensive national strength is the harmony and stability of the society. Sustainable economic development is the foundation and guarantee of the comprehensive national strength, while the improvement in democracy, rule of law, awareness and level of human rights of the whole society is the driving force of the enhancement of the comprehensive national strength. It is worth noting that in the era of deepening globalization, the enhancement of the comprehensive national strength of developing countries requires not only their own efforts, but also a stable peaceful international environment and sustained support of international resources. Only when the comprehensive national strength of developing countries is improved, can people’s living standards be improved, basic human rights of citizens be fully guaranteed, and can the State and its government increase investment in various infrastructure and superstructure to protect human rights, and participate in international human rights cooperation and fulfill obligations of human rights treaties more conscientiously. On the other hand, it is also necessary to strengthen the reporting capacity-building of States Parties. One important reason why some developing States Parties, especially the least developed ones, fails to submit the report or as scheduled, or the reports submitted are of low quality, is that they lack human resources and expertise for preparing the reports. The United States human rights bodies and other international organizations should strengthen the professional training of human rights institutions and human rights personages in

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developing countries. Although various international human rights training projects have been organized by relevant international organizations in recent years, they still cannot meet the needs of the continuous development of international human rights cause. In addition to the systematic human rights expertise, the interpretation of human rights treaty provisions and the functions of human rights treaty bodies, the contents of training must also include the standards, contents and format requirements for the national human rights reports. Moreover, in terms of training methods, targeted experimental and clinical methods should be emphasized.

12.5 Conclusion The emergence of the international human rights law is an important embodiment of the recent development of international law, which is characterized by the international human rights system composed of nine core human rights treaties. Each human rights treaty has established a corresponding human rights committee responsible for the monitoring of the implementation of the core human rights treaty, and they together constitute the core human rights treaty body system. It can be said that this human rights treaty body system is the backbone of the UN human rights treaty monitoring mechanism. Establishing treaty implementation and monitoring mechanisms has been an important trend of the implementation of international treaties for more than half a century. However, those mechanisms of UN human rights treaties has developed some distinctive features in practice: they are composed of independent human rights experts rather than representatives of States Parties; their functions and powers are wide and broad, that is, they can review the human rights reports submitted by States Parties, issue concluding observations and recommendations, follow up the implementation of the recommendations and some also accept inter-State complaints and individual communications and conduct country visits, etc. Although the conclusions and observations are not legally binding on States Parties, their monitoring functions are a connected sequence and mutually linked, which impose continuous and open pressure on States Parties, especially in terms of procedures. Practice shows that although the monitoring mechanism of the UN core human rights treaties has been continuously promoted, many problems have also been exposed. From the perspective of States Parties, these defects include overburdened reporting, delayed reporting time, and uneven quality of reporting. From the perspective of human rights treaty bodies, these defects are mainly reflected in the few times of expert review meetings, the short cycle and the large number of reports to be reviewed, which makes it difficult to achieve a better monitoring effect. Since the 1980s, the UN has always been striving for the reform on the monitoring mechanism of UN human rights treaty bodies. A number of expert reports have been issued successively, and the OHCHR has put forward reform measures such as the unified human rights treaty body and the implementation of the Comprehensive Reporting Calendar. In recent years, the General Assembly has initiated the

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Intergovernmental Process aiming to strengthening the implementation of human rights treaties and the efficiency of human rights treaty bodies. However, none of the previous expert report, the later OHCHR’s Strengthening Process, or the ongoing Intergovernmental Process has been widely recognized by State parties. It is clear that it is bound to be long-lasting to make substantial progress on the reform or strengthening of the monitoring mechanism of the core human rights treaties. The author believes that the U.N.Doc. core human rights treaty system and its monitoring mechanism are the crystallization of the collective wisdom of all States Parties and their universal social foundation should be resolutely maintained. Any reform program or strengthening measures should be carried out within the framework of the current core human rights treaty system. In terms of specific strengthening measures, while giving full play to the role of all human rights stakeholders, the principle of State-dominance should be firmly adhered to. It is necessary to improve the current reporting system and review methods from a technical perspective. However, the most fundamental issue is to effectively strengthen the implementation capacity of human rights treaties to improve the compliance capacity of the majority of developing States Parties.

References Dai R (2013) The strengthening process of the human rights treaty body system of the United Nations: the latest development of the United Nations human rights protection mechanism. Global Law Rev 6:158–170 UN General Assembly (1989) Report of the independent expert on enhancing the long-term effectiveness of the UN human rights treaty system-initial report (U.N. Doc. A/44/668) United Nations Commission on Human Rights (1997) Effective functioning of bodies established pursuant to United Nations human rights instruments: final report on enhancing the long-term effectiveness of the United Nations human rights treaty system (UN. Doc. E/EC. 4/1997/74) UN General Assembly (2003) Interim report on updated study (U.N. Doc. A/Conf. 157/PC/62/Add. 11/Rev. 1) United Nations International Human Rights Instruments (2006) Concept paper on the high commissioner’s proposal for a unified standing treaty body (U.N Doc. HRI/MC/2006/2) United Nations Human Rights Office of the High Commissioner for Human Rights (2008) Working with the United Nations human rights program: a handbook for civil society (U.N. Doc. HR/PUB/06/10/Rev.1) United Nations Office of the High Commissioner for Human Rights (2012) The United Nations human rights treaty system: an introduction to the core human rights treaties and the treaty bodies (Fact Sheet No. 30). https://www.ohchr.org/Documents/Publications/FactSheet30Rev1.pdf Wu X (2011) On theoretical and practical issues of the reform of the United Nations human rights treaty monitoring mechanism. Wuhan Univ Intl Law Rev 14(1):92–111 Zeng L (2007) Trends towards humanization in contemporary international law. Soc Sci China 1:89–103

Part III

International Law and China’s Peaceful Development

Chapter 13

Mutual Influence and Interactions Between China’s Peaceful Development and International Law

13.1 Foundations of China’s Peaceful Development: Harmonious World and International Law Since the announcement of peaceful development strategy by the Chinese leadership, there have been increasing politicians and scholars both at home and abroad who have been making efforts to identify and explore the implications embodied in the concept of China’s peaceful development. The common acknowledgement seems to be reached as follows: the core of China’s peaceful development is to gain peaceful external environment for the realization of China’s great civilization on the one hand, and to maintain and promote world peace and global economic and social development with its own flourishing on the other hand. We could therefore presume two important premises from China’s peaceful development: (1) the harmonious world is the external social basis for China’s peaceful development; and (2) international law is the external legal basis for China’s peaceful development. Why must the China’s peaceful development be based on the harmonious world? This lies in the fundamental characteristics of international society both at present and in future. Co-existence among states and economic globalization have been the tendency in international community, in which all states are located in the same “global village” and all peoples are the “citizens in this “global village”. Therefore, issues concerning domestic stability and development in each state are closely linked to global issues, and the latter is also the same issues confronted by each stated and the whole mankind. Thus, on various complicated issues in this world, affairs purely belonging to a state’s sovereign jurisdiction or that could be solely coped with by a state has become less and less, while those that are regulated by international legal regimes and effected with international politics and economics have been growing rapidly. The Article was originally written by Prof. Zeng in English, and published in Frontiers of Law in China, 2008, 3(1), pp.15–34. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_13

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In such international context, all states are seating in the same boat and each should combine its own development with the world peace and development. In other words, the world is “a big family” in which each state forms “a small family”: there are no enrichment and well-beings for small families without peace and development of this very big family. The China’s peaceful development is an important part of the harmonious world, and both of them rely on the support and guarantee from international law. Legal sociologists generally figure out three basic social functions of law: “(1) Law carries the structure and systems of society through time. (2) Law inserts the common interest of society into the behavior of society-members. (3) Law establishes possible futures for society, in accordance with society’s theories, values, and purposes”.1 These threefold basic social functions are undoubtedly applied to international law. Firstly, if domestic law is the carrier of a state’s structure and systems, international law deems to be the carrier of basic structure and systems in international community. Then, how do we describe such basic structure and systems in this globe? On the one hand, we see the increasing institutionalization of international community since the twentieth century, especially after the World War II. Nowadays various international organizations exist not only in areas where states act and carry on all kinds of activities, but also in fields where human living lies in. What is more, some states in specific regions have established between themselves highly integrated economic and monetary unions and even political union with ties such common boundaries, political and economic systems, religious beliefs and cultural tradition, etc. Even without these common ties, some states have still set up their political and military leagues to meet the needs of their common strategies, e.g. NATO. On the other hand, those new trends of development mentioned above have not altered the basic features of international social structure formed since modern times, that is, the relations among all states which are the fundamental components of international community are largely horizontal relationship, instead of vertical relations which are characterized between members within domestic societies.2 International Law which maintains international order carries such horizontal structures and establishes and gradually completes principles, rules, regulations and mechanism respectively for such structures of relations between states. Such horizontal social structures result in a scattered state for the three basic layers of international legal system (that is, legislation, execution and adjudication). Another important consequence brought by such horizontal social structures is that both the formation and implementation of international largely rely on states themselves. Under the principle of sovereign equality of states, they make and implement international law and settle international disputes with it mostly not on behalf of international community, but for their own national interests. Though contemporary international law represents more and more interests of international community as a whole, this tendency has not changed its long-fixed nature of self-serving.

1 Allot 2 See

(1999). Cassese (2001) and Xi Liang (2000).

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Secondly, international law has gradually brought common interests of international community into the conducts of states. Member in international society needs international law to maintain their own and common interests in their bilateral and multilateral intercourses and cooperation. The maintenance of common interests must borrow the effectiveness of international rule of law. “The rule of law represents a culture of order. In international affairs that culture had not yet been firmly established, nor, yet, as the international rule of law. But steady progress is being made… The rule of law involves accepting that international law is not and à la carte choice. It applies as whole, and for all States including (and indeed especially) those with the physical and political power to marginalize the law if they so choose. The international community prospers when law and power are in partnership, not when they are in conflict.”3 It cannot be imaged that in contemporary international society in which sovereign states, though independent each other, are co-exist and cooperate as a matter of fact, states would refuse to regard international law as their rules of conducts. In international society, such refusal would mean the refusal of international rule of law, and the refusal of international rule of law deems to mean disorder, chaos and dictatorship in international affairs. Therefore, it (international law) provides for stability in international relations. That stability is in turn the necessity basis for the pursuit by States of their national interest”.4 At same time, international law is the safeguards to frame and maintain common interests of international community. Finally, international law does only represent the past of international society (such as international customs, general principles of law) organize the present (such as through treaties, international organizations or mechanism), but also shoulders the future of international society. The collective security system in the UN, the multilateral trading system in the WTO, the international monetary and financial systems in the IMF and the World Bank Group, just name a few, are all for long-run and future purposes.

13.2 The Impacts of International Law upon China’s Peaceful Development: Promotion and Restriction In the era of economic and social globalization, the China’s peaceful development needs the guarantee and support with not only a sound domestic legal order, but also a just and fair international legal order, and the latter is closely bound with just and fair international political and economic orders. Thus, a stable, just and progressive international law is deemed to promote the China’s peaceful development. On the other hand, although international law has uniqueness, its nature of law cannot be doubted. Once it is enacted and put into effect, international law is deemed 3 Watts 4 Ibid.

(2000).

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to have legally binding force on its subjects. China is one of the basic subjects of international law, its peaceful development must be regulated and bound by that law.

13.2.1 Promotion of International Law to China’s Peaceful Development 13.2.1.1

International Law Creates Peace and Safe External Environment for the Chinese Peaceful Development.

International environment with peace and security is an imperative external condition for a state to carry out its self-development strategy. Both historical experience and lessons have proved that a State’s rising by means of war or armed forces is not only costly for itself, but also results in great sufferings to other States and their peoples which could hardly be made up in short time. At the same time, international peace and security based on war or armed forces could not be sustainable, because international peace and security could both be established and destroyed by means of war, especially in the era that war had not be prohibited in international law. Contemporary international law prohibits not only war, but also the use of armed forces or threat of armed forces, which means that States could no longer pursue their national development by means of non-peaceful means. For this purpose, the collective security system has been established in international law so as to build up peaceful and safe international environment for states to realize their development strategy. In the past sixty years or so since the birth of the UN, though regional wars or armed conflicts have never stopped and international terrorism happens here and there, peace and development have constantly been the main stream of international society. These two main streams are set up with the foundation of international law and the fundamental tasks of the 21st international law as well.

13.2.1.2

International Law Shapes just and Fair International Competitive Orders for the China’s Peaceful Development.

China’s peaceful development in the twenty-first century needs a fair and just international economic order. Such an economic order is in substance a just and fair international competitive order, and such a competitive order could only be established, completed and safeguarded with international law. “The existence of competing interests is a normal feature of any society: international society is no different. But not all States are at the forefront of such competition: most just want order.”5 Practice shows that the following states are most likely in the forefront of international competition: (1) political and military powers, who are competitive in political and military interests; (2) developed countries, who present 5 Ibid,

p. 15.

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their competition mostly in economic and trade areas; (3) fast developing countries, especially those big developing ones such as China and India, whose competition covers political, military, and economic fields. The competing interests internationally could happen both between the same sort of states and between the states of different kinds mentioned above. It is further to be noted that competing national interests in international society is in dynamic and not in static state. The changes of such competing interests could be resulted from the changes of states, such as the disappearance or declines of a state, the rising of a new power, they might also happen because of interest shifting and such shifting of interests depends on time, concrete circumstances and new technology, etc. The political, military and economic competing interests between the related states which arose during the Gulf War might be a good example. The political competing interests between states concerned on the reform of UN Security Council could represent another example. Other typical examples could also be listed, such as competing interests around development assistance to developing countries, especially the least developed countries, competing interests concerning the combats against the mass destructive weapons and international terrorism, etc. All these represent well the dynamic character of competing interests between states in international society. One of the most important tasks of international law is to make and keep a fair balance among various competing interests internationally on the hand, and to promote such a balance to be continuously adapted to the changes of international social competing interests on the other hand. A large number of existing treaties have been concluded to set up principles, disciplines, regulations and systems for the establishment of international competing orders in respective fields, such as treaties on prohibition of nuclear tests and nuclear proliferation; treaties on prohibition of research, production, use and selling of biochemical weapons; various bilateral, plural and multilateral treaties on trade, investment, finance, monetary affairs, intellectual property rights, etc. All kinds of global and regional governmental organizations, either general or specialized, have been founded for the maintenance of fair international competing orders hardly with exceptions. Of course, so far, the existing international orders established with international law could hardly be said fair and just in many areas. There might be even fairness at all in certain areas or at least on some specific matters. Just to show a few, the different rights and obligations between nuclear weapon possessing states and nonpossessing states, unilateralism in international political and economic orders, the ignorance of development rights of developing countries in areas of human rights and environmental protection, etc. Therefore, it is a permanent and heavy task for international law to establish and complete updated fair international orders.

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13.2.1.3

International Law Provides Legal Safeguards of International Cooperation to the China’s Peaceful Development.

Judging from international law, whether a state is willing to conduct international cooperation is in principle a matter of self-determination. A state is not obligated to cooperate with other states except that there is a cooperative undertaking made by that state in specific treaties or there exists a customary international rule of cooperation. International cooperation before the twentieth century had been mostly bilateral and regional cooperation had been a few, not to mention global cooperation true to the name. after the World War I, the importance of international cooperation became obvious increasingly. The Covenant of the League explicitly provides that Member States should strengthen international cooperation and ensure international peace and security. After the World War II, the UN Charter upgraded “promotion of international cooperation” as one of the UN’s main purpose. Since then, an ever-increasing number of treaties have been concluded between states to set up principles, rules and mechanism for international cooperation in political, military, economic, cultural, educational, scientific, technological, environmental, healthy and other social areas. Although its importance and universality are generally recognized as a matter of reality, there has been no common view on whether international cooperation has become a fundamental principle of international law.6 This author considers that it seems to be no doubt to define international cooperation as one of the basic principles of international law. First of all, the UN Charter which is a treaty of the most importance, highest effectiveness and greatest influence fixes in its articles the legal status and significance of international cooperation. For instance, the preamble declares Member States “have resolved to combine our efforts” to ensure the realization of the UN’s purposes. As one of its purposes, the UN is to “achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. Article 2(5) of the Charter requires that all Members “shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action”. Secondly, a number of key UN documents subsequent to the Charter further emphasized international cooperation as a basic principle in international law. The 1970 UN Assembly’s Declaration on Principles of International Law7 reaffirms that the cooperation between states under the UN Charter is a kind of “obligations” that must be fulfilled in good faith and such cooperation “is of the greatest importance for the maintenance of international peace and security and for the implementation of the other purposed of the United Nations”. Again, international cooperation for development was the subject matter embodied in the Declaration on Establishing

6 See

Lingliang Zeng and Geping Rao (2005), pp. 88–89. Nations General Assembly (1970).

7 United

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New International Economic Order,8 the Program of Action on the Establishment of a New International Economic Order9 and the Charter of Economic Rights and Duties of States10 adopted by the UN General Assembly in 1974, the latter of which explicitly lists therein the “international cooperation for development” as one of the basic principles of international economic relations. Finally, international cooperation qualifies the requirements of basic principles of international law, that is, being generally recognized, broadly accepted, universally legally binding, applicable to all fields of international law and the foundation of whole international legal order. International cooperation as the basic principle of international law is in substance the need of promoting common security, common development and harmonious coexistence of all states.11 International cooperation bears the following trends: (1) the legal forms of cooperation are various and different kinds of bilateral, plural, regional and global cooperation are interacted and in parallel development; (2) apart from traditional intergovernmental cooperation, there have appeared so-called “supranational cooperation” in certain region, in specific areas and between given states; (3) cooperation exists in all aspects of state activities and human life; (4) international organizations as a kind of legal form of cooperation have increasingly presenting their advantages and significance. Therefore, in order to implement well its strategy of peaceful development, China should actively carry on various forms and international cooperation with other states or entities in political, military, economic, scientific, technological, cultural, environmental, health and human rights areas. One of the important functions of international law is to create sustainable legal frameworks, consultative platforms, conductive norms, effective managing mechanism and dispute settlement methods for international cooperation in those fields mentioned above. Thus, the continuous perfection of international law would provide China’s peaceful development with more and more stable, safe, certain or expectable safeguards of international rule of law.

13.2.2 Restriction of International Law to China’s Peaceful Development For a long time, international law has left us with the impression of a sort of “soft law”. Especially in traditional international legal order, states—the basic subjects of international law—possessed extremely broad freedom of action. The “softness” of international law resulted in that the conducts of states had little to be legally bound, thus bringing the advantages for western powers to realize their rising with armed 8 United

Nations General Assembly (1974a). Nations General Assembly (1974b). 10 United Nations General Assembly (1974c). 11 Li (2005). 9 United

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forces and disorder in international society and even disasters for other states and their people. Therefore, the members of international society were determined to draw lessons from the past, speed up the progressive codification of international law, enhance the executive mechanism of international law and strengthen the role of legal means in international dispute settlement. In the context of such a development tendency, the conducts of states have been increasingly bound by international legal norms and the freedom of state actions has been turning to be growingly less. According to the analysis by the former president of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the following three factors seem to result in the increasing binding on states12 : The first is the ever-increasing of international treaties. The most direct presentation of treaty proliferation is the speedy growing of its numbers. Nowadays most states have concluded or participated in large number of multilateral treaties. As for bilateral treaties, they are even greater in quantity. Another reflection of treaty proliferation is the continuous expansion of contents regulated by treaties. There have been treaties in almost every aspect of state activities and human life, either up to the outer space or down to the seabed. Not only human public activities (such treaty negotiation, attendance to international conferences, investment, trade, transnational services, etc. are regulated by treaties, but also private conducts (tourism, visiting foreign relatives and friends, transnational marriage and birth, heritage of properties, etc.). the result is that internal rule of law in most countries has been broadly and deeply affected by ever-increasing international agreements. The second important factor is more and more strict restriction made by contemporary international law upon the States’ power of use of armed forces. In traditional law, States had absolute rights to invoke war. Although there had been enacted a lot of rules and regulations concerning wars, their purposes and functions were only to make conducts of war more in order and humanitarian. Contemporary international law, through the Covenant of the League of Nations, the UN Charter and other related treaties, started from the restriction of war to the prohibition of war and finally of use of armed forces or threat of use of armed forces, “thus, making peaceful settlement of disputes deemed to be a basic principle of international law, laying legal foundation for trail of war crimes, promoting the enactment the definition of aggression, assisting the creation and development of UN Peace-Keeping Actions and collective security system……”; thus “making the great breakthrough on international responsibilities of states and servants”.13 In the post era of Cold War, international law has shown a strong signal, that is, state leaders could bear international criminal responsibilities of war or armed conflicts not only between states, but also within a state. The third factor is the enhancement of enforcement of international law. Although its enforcement could never be compatible to that of domestic law, the effect of international law has been strengthened indeed compared itself in the past. Since the sixties of the twentieth century, conception and contents of jus cogens have been 12 See 13 See

Cassese (2001), pp.11–12. Xi Liang (2000), pp. 34–35.

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gradually established in the normative system of international law. It means that in international law some principles and rules have greater effectiveness than other norms, the result of which being that subjects of international law cannot conclude international treaties not consistent with international jus cogens. Those horizontal and vertical developing trends of international law unavoidably constitute more and more binding forces on implementation of China’s peaceful development strategy. The binding force of international law is directly reflected in the external aspects of China’s peaceful development. For instance, the expansion of foreign investment is one of the important measures and contents of China’s peaceful development strategy. However, in the process of its implementation, China’s foreign investment would largely depend on not only political, economic, legal and cultural environment in host countries, but also international political, economic and legal factors. Only take international legal aspects for example. China’s peaceful development must not infringe basic principles and compulsory norms of international law. Furthermore, it must not be conducted within the legal framework of multilateral conventions on investment and related bilateral agreements on investment concluded by China. The same is true for the expansion of trade, especially the exporting aspect, which is another key element of China’s peaceful development. In regard to its international legally binding factors, Attention must be paid to various bilateral, regional and multilateral agreements on trade in goods, services and other trade-related fields concluded or participated in by China. Even further, those external restrictive factors mentioned above are not isolated but interacted. Moreover, international legal restrictions are usually the final forms or results of other non-legal factors. For instance, those special non-market economic status provisions on special safeguards, textile trade and antidumping and countervailing measures in the Protocol of China’s Accession to the WTO and the Report of Working Party are all legal forms which present political and economic restrictions on China’s expansion of exporting strategy. The same influence of international law happens in China’s internal development strategy. For example, China must pay a greater attention to environmental issues than in the past in promotion of its economic growth, and could no longer speed up economic development with the sacrifice of environment. Because, only judging from international law, China ought to be more and more strict restraints by various treaties and international regimes related on environmental protection. Similarly, China should enhance protection of human rights because protection of human rights has gradually surpassed domestic jurisdiction of states and entered into scopes of international legal regulation. With the fast development of human rights law internationally, China has to put its stress on harmonization of its economic growth and social development.

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13.3 The Far-Reaching Significance of China’s Peaceful Rising to Development of International Law Establishment and perfection of fair and progressive international legal order provide imperative premises and safeguards for building a harmonious world and promoting development of all countries and human progressiveness. On the other hand, the peaceful development of countries including China will produce important and far-reaching significance for the formation and completion of fair and progressive international legal order.

13.3.1 Significance of China’s Peaceful Rising to Development—The Subject Matter of International Law The UN Millennium Declaration in 2000 set up eight aspects of development targets until the year 2015: (1) eradiate extreme poverty and hunger; (2) achieve universal primary education; (3) promote gender equality and empower women; (4) reduce child mortality; (5) improve maternal health; (6) combat HIV/AIDS, malaria and other infectious diseases; (7) ensure environmental sustainability; (8) develop a global partnership for development.14 However, the eight aspects of goals in economic and social areas above are not exclusive, and issues on development are closely interrelated with international peace and security. This is because development “serves multiple functions. It helps combat the poverty, infectious diseases and environmental degradation that kill millions and threaten human security. It is vital in helping States or reverse the erosion of State capacity, which is crucial for meeting almost every class of threat. And it is part of a long-term strategy for preventing civil war and for addressing the environments in which both terrorism and organized crime flourish”.15 That is why the UN has long regard development and peace as two main purposes. The Report of the UN SecretaryGeneral to all UN Member States in March 200, entitled “In Larger Freedom: towards Development, Security and Human Rights for All”, specially points out that “development, security and human rights go hand in hand”, and further emphasizes that “we will not enjoy development without security; we will not enjoy security without development, and we will not enjoy either without respect for human rights”.16 Therefore, development is a kind of right endowed with all states, peoples and individuals. Development is the sustainable fundamental means for national economic

14 United

Nations General Assembly (2000). Nations Secretary-General (2004). 16 United Nations General Assembly (2005). 15 United

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development and improvement of people’s life, the basis necessary for the maintenance of international peace and security, and the preconditions for realization of global human rights. China is a big country consisting of one-fourths of the world population and its peaceful development itself is of particular significance for the global development pursued by international law. First of all, China’s peaceful rising makes great contributions to the elimination of poverty and hanger program in the UN Millennium Development Goal. As related materials have shown, the population in poverty at time of 1970s had been 2.5 billion, and now it has been reduced to 26 million.17 We have no reasons not to believe that with its sustained economic growth and implementation of economic and social harmonious development strategy, China will be at least one of the most successful countries among those who are determined to implement the UN Millennium Development Goal. Secondly, the China’s peaceful rising is one of important engines leading the global economic growth. As a result of fast economic development, the Chinese people have been continuously raising their living standards and purchasing capabilities. Now China has become one of the largest world purchasing markets. On the other hand, with the constant increasing of domestic production and export abilities, China has provided global consumers with more and more cheap and good commodity. Also, with the speedy expansion of national construction, China has become one of countries who have drawn the most of foreign investment. With the deepening of its opening-up and reform policy, China has been increasingly investing in other countries so as to promote the economic and social development in those host countries. Finally, the peaceful rising has been enabling China to carry on more and more development assistance for other developing countries especially the least developed countries. China is the world largest developing countries. Although it is not wealthy itself, China has long and constantly given its assistance to the vast developing countries. Recently China promised to the world18 : (1) zero tariff treatment to certain products imported from thirty-nine States who have diplomatic relations with China and the scope of this preferential treatment would cover most exports of those countries to China; (2) further expansion of assistance of the least developed countries and those poor countries with heavy debts, and giving up or eliminating by other means the government loans (existing before the end of 2004) of those poor countries having diplomatic relations with China within two years; (3) providing preferential loans of 100 billion US dollars within 3 years to developing countries to help their construction of infrastructure and promote joint ventures an co-ops between enterprises of both sides; (4) increasing assistance to developing countries especially African countries in diseases prevention, promotion of medical facilities and medical training, etc. 17 See https://eee.chinesenews.com/news/2005/2002-11-06/8/647684.shtml. Accessed 6 November

2005. 18 See

https://www.fmpre.gov.cn/chn/wjdt/zyjh/t212090.htm. Accessed 6 November 2005.

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Those undertakings above fully illustrate the responsible image of China as a big developing country and its firm determination and concrete actions to carry out the UN Millennium Development Declaration, thus producing a positive effect in international society.

13.3.2 Significance of China’s Peaceful Rising to Peace and security—The Primary Task of International Law Since the establishment of the UN, there has not happened any big world war in this globe on the one hand. The world has been in relatively peace and security state which lays a sound basis for economic and social development of all countries. On the other hand, this world has never been absolutely in peace and security and regional wars or armed conflicts have never been stopping which have not only caused the unstableness and poverty in the regions concerned, but also negatively affected the peace and security and economic and social development in the whole world. Therefore, with the observance of basic principles of international law, it is the common and long task shared by all countries in the twenty-first century to form a new concept of security, enhance capacities to cope with new security threats at global, regional and domestic levels and to maintain and construct sustained international and regional peace and security. China has constantly persisted in peaceful diplomatic policy and actively used its concrete actions in maintenance of international peace and security. In recent years, the contributions made by China to dealing with global and regional security threats setting up regional security mechanism and strengthening collective security system have won the high appraisal by other countries and their peoples. In aspect of maintaining international peace and security, China has fully shared its responsibilities in the UN Security Council as one of its permanent Member States. Whatever matters related to international peace and security in the Security Council, China have always made its decisions or taken its positions in accordance with the purposes and principles of the UN Charter, firmly opposed against any unilateral actions which are contrary to the UN collective security system, accused with a clear-cut stand those actions obviously trampling on or severely infringing international law and destroying peace or creating threats of security, and supported the use of international cooperation to cope with all kinds of new treats of security. In the process of maintaining international peace and security, China has been consistently supporting and actively participating in the UN peace-keeping or peaceconstructing actions. Since 1990 when it firstly sent its military observers to the UN peace-keeping forces, China has sent nearly four thousand soldiers to the UN peace-keeping actions. In the process of building and keeping regional security, China has long been insisting on principles of good neighbors and partners and pursuing goodneighboring, safe-neighboring and rich-neighboring diplomacy. It has made great

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efforts to promote the construction of security dialogue and cooperation mechanism in the Asian and Pacific region. In recent years, China’s contributions to the constructions of security safeguard mechanism in the region are well-known particularly as follows: In the first place, China and Russia jointly initiated the establishment of Shanghai Cooperation Organization (SCO). Since its establishment, its Member States have been scrupulously abided by the purposes and principles of the UN Charter, kept the principle of equality between the Member States and dealt with various issues through consultation. The cooperation has been conducted and enhanced in security, military affairs, economy and trade, judicial matters and culture, etc. Especially after the “9.11 Event”, the Organization has strengthened the cooperation of anti-terrorism with hitting regional terrorism, ultra-nationalism and splittism as its core. In the second place, China has actively framed and participated in the security system in the ASEAN region. Since China was accorded full Dialogue Partner status in July 1996, the relations between China and ASEAN have been developing fast and both sides have become an important cooperative partner with each other. In political field, China and the ten Member States of the AEAN have signed a number of political and legal documents in the perspective of the twenty-first century. More importantly, China accessed to the Treaty of Amity and Cooperation in Southeast Asia in October 2003, which illustrates the further enhancement of political mutual trust between the two sides. In economic area, both sides concluded the Framework Agreement on Comprehensive Economic Cooperation in 2002, thus starting the construction of ChinaASEAN Free Trade Area. Since then a number of implementation agreements or sub-agreements have been followed. Nowadays the cooperation between the two sides have been steadily expanding and deepening in other economic areas. In security, China and ASEAN have constantly made efforts to strengthen the mutual understanding and confidence, settle disputes through consultation and negotiation and realize the regional stability and security through cooperation. China and some of the ASEAN Member States concerned jointly adopted the Declaration on the Conduct of Parties in the South China Sea in 2002 and promised to realize the conclusion of a treaty for that disputed area as early as possible. In addition, China and the ASEAN Jointly reached the Memorandum of Understanding on Cooperation in the Field of Non-Traditional Security Issues in 2004, thus expanding cooperation on new security issues. In the final but the least important place, China has been playing a unique and non-substitutable role in coping with the nuclear issues of the Korean peninsula.

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13.3.3 Significance of China’s Peaceful Rising to Human Rights, Rule of Law and democracy—The New Values of International Law Human rights, rule of law and democracy are the ideal goals and universally core values pursued by both the mankind and contemporary international law, which has been reaches as a common recognition by international community in recent years. However, it should be recognized that although international protection of human rights has been making great progress in codification of law, construction of institutes and enforcement and supervision, in global sense, the level of protection are sharply different between regions or between states, and the severe trampling on human rights has never been stopping, but taking place here and there. Looking through the present state of international human rights, the following dilemmas seem to be particular outstanding: Firstly, since the ending of the cold war, events of heavily infringing human rights in large scale such as genocide and ethnic-cleansing resulting from civil wars and regional conflicts have happened one after the other. Although special international criminal tribunals have been set up thereafter respectively to investigate and affix criminal responsibilities of the persons concerned for those events, such subsequent reflections are only meaningful for punishing the criminals and warning the people and useless for remedy of the disasters of human rights already caused. Secondly, on the one hand, since the event of “9·11”, various forms of terrorism, splittism and ultra-nationalism have constantly caused the increasing death and wounds of innocents and losses of their properties, thus depriving them of rights of life, safety and property. On the other hand, the continuously enhanced attacks on terrorism, splittism and ultra-nationalism have inevitably been causing losses of life and properties of ordinary people. Thirdly, hunger, extreme poverty and infectious diseases have turned to be the important or even the first and foremost roots of infringement of human rights. In this world, there is still more than ten billion of people living with less than one US dollar every day and there are 20 million of people dying of poverty. AIDS has caused death of over 20 million of people and HIV carriers have increased to over 40 million.19 Fourthly, there have been sharp differences and quarrels or confronts instead of consensus between states and their governments are still sharply on issues of contents and importance of human rights. Because of difference between states, especially between the developed and developing countries, in political system, ideology, value orientation, levels of economic and social development, religion, cultural background, tradition and habits, etc., states are particularly difficult to reach agreement on relations between universality and particularity of human rights, between state sovereignty and non-interference of domestic affairs and human rights, between

19 United

Nations Secretary-General (2005), para. 9.

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domestic protection and international protection of human rights and between development, safety and human rights, thus sabotaging to large extent the furthering of international protection of human rights. Fifthly, the enforcement, report and supervision mechanism is still respectively weak, compared with a large number of existing international legal documents and agencies on human rights. Finally, international organizations, either general or specialized, global or regional, are largely short of resources and means to effectively protect human rights. Such shortage is especially obvious in helping the protection of fundamental human rights closely related to construction of peace and maintenance of stability and security in the post-war of post-conflicts in the countries or regions concerned. In terms of these countries, it is most urgent to establish the rule of law and sound judicial system of protect human rights. But, so far, the UN and other relative international organizations have no resources and means enough to support them to do so.20 Therefore, key task confronted with international law to protect international human rights is to enhance the enforcement aspect of existing treaties on human rights. In order to do so, the primary thing is to strengthen the rule of law at both domestic and international level, because the lack or weakness of rule of law in international society and some countries is one of the very sources of bad record of human rights therein. That is why the top leaders of states realize the needs to fully observe and implement rule of law both internally and externally and reaffirm that the maintenance of international order based on rule of law and international law is imperative to peaceful coexistence and cooperation between states. They solemnly promised that they would support the annual activities of participating in multilateral conventions launched by the UN Secretary-General since 2000, especially the ratification and implementation of those treaties concerning the protections of the populace; they would also support the Rule of Law Assistance Unit in the UN Secretariat, so as to strengthen the promotion of rule of law by the UN, including the promotion of rule of law through technical assistance and capacity-building.21 In addition, in order to strengthen international protection of human rights, it is imperative to enhance the construction of democracy both domestically and in international plane because internal and external democratic governance is the foundation and guarantee of human rights. The degree of democracy in a society to large extent decides the state of human rights enjoyed by the people in that society. Although democratic systems have commonness, there is no single model of democracy and democracy is not exclusive to any state and region.22 At same time, we would also emphasize that the process of democratic governance pursed by international law must appropriately respect state sovereignty and rights of self-determination of peoples, and that the interdependence between human rights and economic and social development should not be ignored. It was decided in the World Summit Conference that the UN would establish a Democracy Fund as suggested by the United States 20 Ibid,

para. 137. Nations General Assembly (2005). 22 Ibid, para. 135. 21 United

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Secretary-General in order to enhance the UN’s capacity to provide assistance for the construction of democracy at request of the UN Member States.23 To promote the progress of protecting human rights both within China and in international plane is one of the fundamental goals of China’s peaceful rising. Since the year of 1991, China has published its White Papers of Human Rights annually so as to enhance the transparency and understanding of human rights in the country by international community. The White Paper shows, with plenty of facts and data, that with the sustained increasing of its economy and continuous up-grading of it its rule of law, China has made new progress and contributions annually in the protection of human rights both at home and internationally. According to its White Paper in 2004, the new achievements of human rights in China are mainly presented as follows: (1) great progress of people’s rights of life and living standard, e.g. the healthy level of the Chinese people has surpassed that of the countries with the middle level of income in the world and averagely anticipated life of the people has been up to 71.4 years old; (2) further enhancement of construction of democratic governance and political civilization and safeguards of citizen rights and political rights; (3) further perfection of environment in execution of law and adjudication; (4) particular maintenance of legitimate rights of those special groups of people, such as the disabled persons and peasant-workers; (5) ever support for and participation in the UN’s activities in the field of human rights, actively carrying on international cooperation in human rights and extensively joining in international humanitarian assistance.24 However, we have to recognize that there is long way to go in the process of human rights protection in this country and certain issues of human rights are still serious. Just take the example of rights of life and development. The average GDP per person in China is still listed after one hundred among states in the world; there is about 26 millions of population in poverty in the countryside; around 21 million of urban citizens have to live with the minimum living standards; about 24 millions of people need to be employed annually; still about 60 million of the disabled need to be concerned and assisted particularly. Therefore, President Hu Jintao rightly declared to the international community that China’s persistence in the road to peaceful development is a kind of imperative choice based on its concrete national circumstances, on its historical and cultural tradition and on the developing tendency of the world nowadays. So, the road of peaceful development is the only road for China to realize its national prosperity, people’s happiness and sustained progress of human rights.25

23 Ibid,

para. 136. https://www.news.xinhuanet.com/newscenter/2005-04/13/content_2822246.htm. Accessed 20 November 2005. 25 Hu (2005). 24 See

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13.4 Conclusion To sum up the analysis above, we could reach certain important conclusions as follows in interactions between the China’s peaceful development and international law: First, the China’s peaceful rising must be based on a harmonious world as its imperative external social foundation. Such a harmonious world is composed of harmonious global environment, harmonious regional environment and harmonious neighboring environment. The very reason is the decisive tendency of “global village”, interdependence between states and economic globalization. Second, the China’s peaceful rising is part of the building process of a harmonious world and both could not be successfully conducted without international law. And this lies in the fundamental social functions played by international law. Such basic functions are as follow: (1) international law carries the fundamental structure and system of international society; (2) international law continuously inserts the common interests of international community into the conducts of states; (3) while it presents the past and organizes the present of international society, international law strives to construct a harmonious future of the world. Third, the China’s peaceful rising needs the support with a fair, just and progressive international legal order in international plane. In a broad sense, international law has three positive influences on the China’s peaceful development: (1) it creates a stable peaceful and safe external environment; (2) it frames fair and just competing orders; (3) it provides the legal forms and safeguards of international cooperation. Fourth, as a member of international society, China must be abided by international law in its peaceful development. With the enhancement of its “hardness” and expansion of its jurisdictions, international law is deemed to increasingly effect of the China’s peaceful rising. And such affects are reflected not only in the external implementation of the China’s peaceful rising, but also in its internal aspects of implementation. Fifth, the China’s peaceful rising will make great contributions to the progressive development of international law. In the first place, China is the largest developing country in the world and its peaceful rising is of far-reaching significance to global economic development pursued by international law. Secondly, as a responsible big power, China will play an ever-increasing role in maintaining the peace and security on international law with the strengthening of its national capacities. Finally, human rights, rule of law and democracy are the new core values of international law and one of the fundamental goals of the China’s peaceful development.

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References Allot P (1999) The concept of international law. Eur J Intl Law 10(1):31–50 Cassese A (2001) International law. Oxford University Press, London Hu J (2005) Speech at the banquet held by the Mayor of the Monetary City, London. https://www. cctv.com/news/china/20051110/100966.shtml. Accessed 19 Nov 2005 Liang X (ed) (2000) International law, 2nd edn. Wuhan University Press, Wuhan Li Z (2005) Peace, development and cooperation—the talk on the banner of China’s diplomacy in the new era of China. https://sy.china-embassy.org/eng/xwfb/t209386.htm. Accessed 6 Nov 2005 UN General Assembly (1970). Declaration on principles of international law concerning friendly relations and cooperation among states in accordance with the UN charter (U.N. Doc. A/RES/2625 (XXV)) UN General Assembly (1974a) Declaration on the establishment of a new international economic order (U.N. Doc. A/RES/3201(S-VI)) UN General Assembly (1974b) Program of action on the establishment of a new international economic order (U.N. Doc. A/RES/3202(S-VI)) UN General Assembly (1974c) Charter of economic rights and duties of states (U.N. Doc. A/RES/3281(XXIX)) UN General Assembly (2000). United Nations millennium declaration (U.N. Doc. A/RES/55/2) UN General Assembly (2005) 2005 World summit outcome (U.N. Doc. A/RES/60/1) UN Secretary-General (2004) A more secure world: our shared responsibility, report of the highlevel panel on threats, challenges and change. https://www.un.org/chinese/csa/hdr2005/nowl.htm. Accessed 20 Nov 2005 UN Secretary-General (2005) In Larger freedom: towards development, security and human rights for all (U.N. Doc. A/59/2005) Watts SA (2000) The importance of international law. In: Byers M (ed) The role of law in international politics—essays in international relations and international law. Oxford University Press, London Zeng L, Rao G (eds) (2005) International Law. Law Press, Beijing

Chapter 14

Contemporary Construction of Chinese International Law Discourse

The contemporary construction of 1. Chinese International Law Discourse (CILD), in general, ought to systematically reflect the basic contents and substantial characteristics of contemporary international law, its discipline and discourse on the one hand, completely, precisely and timely manifest the Chinese contributions to international law, its disciplines and intercourse since the 1949, especially in the most recent thirty years of its Reform and Opening-Up Policy on the other hand. For the latter, few examples are as follows: at the time of establishment of the People’s Republic of China, the principles and positions held by the Chinese government toward treaties concluded before 1949, which contributed much to the rules of treaty succession; in the middle of the 1950s, the “Five Principles of Peaceful Coexistence” jointly initiated by China and India, which creatively contributed to the formation and development of fundamental principles of international law; From 1980s to 1990s, the smooth settlement of the historically inherited issue on Hong Kong and Macao between China and Britain and China and Portugal respectively under the creative principle of “One Country, Two Systems”, which devoted much to the enhancement of the principle of peaceful settlement of international disputes; from the middle of 1990s to the beginning of the twenty-first century, the realization of China’s “one country with four seats” in the WTO, which made a special contribution to the membership of international organizations; more recently, the new rational of “building a harmonious world” declared by China, which is undoubtedly a very positive and creative efforts toward the development of the new value of contemporary international law, etc. In sum, the CILD should, on the one hand, carries systematically the fundamental elements of the international law and, on the other hand, fully presents the Chinese characteristics, styles, manner or print in the development of contemporary international and its discipline. The Article was originally written by Prof. Zeng in English, and published in Social Sciences in China, 32(4), 2011, pp. 78–91.

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14.1 The Guiding Rational and Basic Dimensions of the CILD 14.1.1 One Guiding Rational The contemporary construction of CILD must first of all find out a defined guiding rationale as its basis, whose selection ought to meet with two basic conditions. Firstly, it could completely and precisely indicate the nature, features and missions of contemporary international society, international relations and international law. Secondly, it should be best created or initiated by China. The conception of “building harmonious world”, first declared by China in 2005 and reaffirmed consistently since then as the core of Chinese foreign policy, coincides with those two conditions and should become the guiding rational in the formulation of CILD. The connotation of the “harmonious world” includes that all States “should act in accordance with the purposes and principles of the UN Charter, international law and universally recognized norms of international relations, and promote the spirits of democracy, harmony, coordination and win–win cooperation. Politically, they should respect for each other, consult on equal basis and jointly promote the democratization of international relations. Economically, they should co-operate each other, complement mutual interest and jointly promote economic globalization toward the direction of balance, general preference and common development. Culturally, they should learn from and make reference to each other, seek commonness while reserving difference, respect for the world diversity and jointly promote the human civilization and prosperous progress. In aspect of security, they should trust each other, reinforce cooperation, persist in settle international disputes by peaceful means instead of war and jointly maintain the world peace and stability. In protection of environment, they should help each other and make concerted efforts to take care of the earth, the home where the mankind survives”.1 The rational, connotation and spirit contained in the conception of “harmonious world” is consistent with the value oriented by the contemporary international law. While the main crux of building a harmonious world in the era of the Cold War had been the relations between the East and the West, the construction of harmonious world in the post-Cold War is how to handle the issues of South-North relations.2 Because the severe challenges confronted by the South in the economic and social areas are not only the issues of global development, but also directly relate to the security and human rights of the whole world. Furthermore, a harmonious world, to a great extent, lies in the global good governance. However, the construction of a harmonious world does not mean the unification of all; instead, it means the striving for harmony but not sameness, thus requiring that the contemporary international law should make every endeavor to respect for and promote the harmonious progress of various civilization of all States. Contemporary international law, as both the 1 Jintao 2 Shaw

Hu (2007), Part Eleven. (2005), p. 41.

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foundation and guarantee of the harmonious world, should further emphasize the coordinated development of its own system of norms and try to avoid or at least reduce the negative effects on the construction of the harmonious world resulting from the fragmentation of international law. In summary, a harmonious world calls for contemporary international law should take security, development, human rights, democracy, rule of law, good governance and diversity of civilization as its core values and missions to be pursued, maintained and promoted.3

14.1.2 Four Fundamental Dimensions The contemporary construction of CILD should take into overall account the four fundamental dimensions of international rule of law and Chinese foreign relations both at the present and in the future, namely, the domestic international, regional and bilateral dimensions. Each dimension possesses the CILD with its own characteristics on the one hand, and they are all correlated, mutually echoing and complement each other. At domestic level, the contemporary construction of CILD, on the whole, should cover two basic aspects: one is to include the rights and obligations of China under international law, the other is to coincide with the Chinese concrete circumstances, particularly those essential or core national interests concerned by China. In the process of construction, efforts should be made by every means to avoid the potential conflicts of the two aspects and seek, instead, for the mutual coordination and conformity. More specifically in dealing with the relationship between international law and Chinese domestic law or the application of the former in the latter, endeavors should be tried, under the precondition that the independence and authority of the two legal systems are not affected, to keep the consistency between the construction of CILD and the globally common discourse of international law in the Chinese legislation, execution and adjudication, and ensure the penetrating of the CILD throughout the dissemination, teaching and studies in China. For the sake of its international or global implication, the contemporary construction of CILD must precisely and adequately reflect the core values of international law, important agenda jointly concerned by all States and common interests of mankind. The core values of international law ought to include the inter-State peaceful coexistence and economic cooperation based on equality and mutual benefits, as well as the global-wide democracy, human rights and rule of law, etc. The important agendas concerned by all States, although may change as times goes by, are basically those sustained global challenges, such as peace keeping and building, restoration and construction of the rule of law in the conflict or post-conflict States or regions; prohibition of and prevention from test, production, sale, utilization and proliferation of weapons of mass destruction; attacking international terrorism; punishing international crimes which grossly infringe humanity, humanitarian law 3 Lingliang

Zeng (2008).

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and human rights; preventing and attacking transnational crimes; establishing and enhancing international anti-corruption mechanism; realization of the UN Millennium Goals; promoting liberalization of international trade; stabilization of international monetary order, etc. The maintenance and promotion of common interest of mankind has become a newly emerging mission of contemporary international law, which includes but is not limited to maintaining the sustained international peace, security and environment; promoting biological diversity; creating mechanism to secure the equitable environmental rights between generations; ensuring the exploitation and utilization of outer space for the interest of all mankind and for peaceful purposes; maintaining the international seabed and diversity of culture as common heritage of mankind; preventing and the transnational spreading of communicable diseases, etc. Dealing with contemporary international challenges and affairs has been more and more relying on various regional mechanisms, thus resulting in different types of regional international law therein which are in parallel development to general international law. Since the twenty-first century, China, as a responsible big power and largest developing country, has been growingly highlighting the establishment and enhancement of regional security systems and economic, trade and social cooperation regimes, in addition to continuous playing its role in multilateral systems. Therefore, to build contemporary CILD should inevitably bring in regionalism as its integral part. Bilateral relations have always been important part of international relations, and bilateral cooperation, either in terms of its forms or its contents, are far more surpass regional and multilateral cooperation in quantity. Since its introducing the Reform and Opening-Up Policy and particularly entering into the twenty-first century, China have not only realized the target of overall participation in multilateral systems, but also made a speedy progress in establishing all kinds of bilateral cooperation mechanisms with other countries or international organizations. In recent years, China has built various strategic partnership and regular consultation or dialogue mechanism in areas of political relations, military and security cooperation, human rights and the rule of law, etc., apart from conclusion of thousands of bilateral agreements in fields of economics and trade, science and technology, education and culture, law and judiciary, sports and other social sectors. Consequently, the cotemporary construction of CILD cannot neglect those contents at bilateral level. In sum, considering that contemporary international law will continue bearing national sovereignty and common interest of mankind as its dual orientations and its formulation, implementation and judicial safeguard will continue to be in fragmentation, the contemporary construction of CILD must be conducted simultaneously in national, multilateral, regional and bilateral contexts. In other words, it should be footed at domestic autonomy, with view of international (global) systems, adapted itself to regional integration and underlining various bilateral strategic partnership and cooperation.

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14.2 Fundamental Principles of Contemporary Construction of the CILD The four basic layers of CILD discussed above, though their contents are not the same and each has its own focus, should all respect for and in accordance with certain fundamental principles as illustrated as follows:

14.2.1 According to Basic Norms of International Relations The basic norms of international relations, or basic principles of international law, are the most fundamental guiding principles in the intercourses and cooperation between States and between them and other international actors, the foundation and cores of the whole international law system, applied to all fields of international life or all spheres within the effective jurisdiction of international law and shall be absolutely observed as jus cogens. Since the CILD is a kind of information expression and dissemination in the context of international relations and taking international law as its object, its constructions must follow those basic norms of international relations and international law. International society is a parallel society being structures horizontally, in which no single State or other authoritative entity could confirm basic norms of international relations or making basic norms for conducts of other States and international actors. Such fundamental norms have been progressively enacted and confirmed by States themselves in their mutual intercourses and based on their common needs and interest. As a consequence, fundamental norms of international relations or international law in different times may vary, though some of them have sustained permanently. In traditional international law, based on the postulate that they are legally equal, most of its rules endow States with wide freedom of actions provided they abide by certain “rules of the game”, and the law even gives its blessing to new situations brought be force. That is the “lasses-faire approach” of classical international law.4 The outcome of the UN Charter symbols the birth of contemporary international law. Those principles affirmed in Article 2 of the Charter are the fundamental principles no only to the Organization and its Member States, but also universally recognized as formulating the basic norms of contemporary international relations as well as international law, the cores of which are sovereign equality between Member States, peaceful settlement of disputes, prohibition of armed forces or threat of armed forces, fulfillment of the Charter obligations in good faith, and non-interference of matters essentially within the domestic jurisdiction. Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in

4 See

Cassese (2001), p. 86.

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Accordance with the UN Charter (hereinafter referred to as “Declaration on Principles of International Law”) adopted by the General Assembly in 1970, in addition to reaffirming those principles of the UN Charter, further confirmed principles of self-determination and obligation of cooperation. In the development of basic principles of contemporary international law, special contributions have been made by some regional organizations or conferences. For examples, the Five Principles of Peaceful Coexistence first initiated by China and then jointly proclaimed with China, India and Burma (now called Myanmar) from 1953 to 1954, the Ten Principle confirmed in the Final Communiqué of Bandung Conference in Indonesia in 1955, the Ten Principles contained in the 1975 Helsinki Final Act adopted at the Conference on Security and Cooperation in Europe (called as Organization of Security and Cooperation in Europe since 1995), etc. All these basic principles confirmed by specific States and regional organizations are highly in conformity with those principles of the UN Charter and the General Assembly Declaration on Principles of International Law discussed above and they are either reaffirmation of those principles or the latter’s further extension and development.

14.2.2 Conforming to Globalization and Persisting on Multilateralism The contemporary construction of the CILD should closely keep pace with contemporary international relations and follow up the general tendency of contemporary international society. Though opinions on advantages and disadvantages of globalization have long been divided and the movements of anti-globalization have never ended, it is an irreversible fact and tide that the globalization has been proceeding both in wideness and depth. Therefore, in the developing context of globalization, the fittest survives in terms of national interest. As a matter of fact, the establishment of international organizations or regimes, and the formulation of international legal rules or mechanisms are to great extent the outcomes or the services for globalization. The manifestation of globalization in the sense of governance has been the rising of various multilateral systems as the times demand, the fundamental rational of which lies in multilateralism. According to the explanation by Johan Roggie, multilateralism refers to a form of system which coordinates relations between three or more than three States in terms of the principle of general behavior; in addition to the definition from this dimension of system, multilateralism also presents the behavior manner between State actors as well as attaches importance to and respect for universally recognized norms and regulations.5 In substance, multilateralism means democratization of international relations, emphasizing that all States should jointly cope with various challenges brought by globalization based on equal consultation within the framework of multilateral systems, such as the UN, the WTO, the IMF, etc., 5 See

https://zh.wikipedia.org/zh-cn/%E5%A4%9A%E9%82%8A%E4%B8%BB%E7%BE%A9. Accessed 2 August 2010.

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while opposing that international affairs are dominantly dealt with by some main powers who are the minority of States. In a word, multilateralism is featured with its multilateral coordination and cooperation between international actors. The contemporary construction of the CILD cannot be isolated from the grand context of globalization, escape from its various challenges and confront with them without utilizing multilateralism. Therefore, the CILD must be built in the context of globalization, establishing China with the image of an internally responsible big power, firmly promoting multilateralism and giving up unilateralism and supporting resolving all kinds of issues in the process of globalization such as security, stabilization, development, democracy, human rights, the rule of law, environment and energy, etc., through appropriate multilateral mechanisms and in accordance with the rules and procedures jointly set up by all States, with the spirit of coordination and cooperation.

14.2.3 Actively Participating in Regional Integration Regional integration is a kind of social phenomenon in the contemporary world, companying with and parallel to globalization. It is undoubtedly a matter of fact that there has been a flourishing tide of proliferation and speedily growing number of various regional arrangements, agreements and organizations or mechanisms currently, in spite of the constant debates concerning its positive and negative impacts on multilateralism. To trace it to its cause, regional mechanisms have been playing increasingly important or special roles (sometimes these roles are not substitutable) in dealing with regional conflicts, maintaining regional peace and security and promoting regional economic and social development, which becomes essentially supplementary to multilateral systems respectively. Considering the unique roles of regional integration in building regional security and promoting regional economic and social progress, and its legitimate status in multilateral organizations concerned (such as the regional arrangements in the UN collective security system and regional trade agreements as exceptions to the Most-Favored-Nation treatment in the WTO, etc.), China, as a big power in the region, should not only continue its enhancement the intercourse and cooperation with different organizations for regional integration in the world and active participation in their activities, but also actively explore and initiate the creation of necessary regional organizations or mechanisms in Asia which are both in conformity with the core interest of China and the interest of other countries concerned as well as the overall interest of the whole region. Consequently, there must be appropriate reflection of the tendency, characteristics and roles of regional integration and its interactions with China in the contemporary construction of CILD, thus echoing to the contents of globalization and multilateralism mentioned above.

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14.2.4 Fully Manifesting the International Community Obligations (or Rights) In international society nowadays, the traditional principle of reciprocity still constitutes the foundation of contemporary international law. At the same time, certain new rules of international law with somewhat different implication or character has been formulating gradually, that is, a sort of non-reciprocal obligations confirmed in a number of multilateral treaties in the past over half a century, meaning in essence the obligations of one contracting State arising from a treaty not just only to the other contracting State, but to any other contracting States even including non-contracting States. Such non-reciprocal obligations in international law are formally called “obligations or rights erga omnes” or “community obligations or rights. To trace the origin of the conceptions, such reciprocal obligations are rooted in the rational and values of humanizing international law, being largely contained or implicated in international humanitarian law, international law of human rights, international refugee law, international criminal law and international environmental law, where humanization of international law is mostly concentrated. If we say that the CILD in the past was built up in the orientation of national sovereignty and on the basis of the principle of reciprocity, the construction of current and future CILD should, in addition, timely, adequately and effectively reflect the norms concerning “obligations erga omnes” in contemporary international law and adapt itself to the double-oriented tendencies of “national sovereignty” and “international community interest”. Only so doing, can it be ensured that the contemporary construction of CILD would always proceed side by side with the frontiers of international law and the development of its discipline?

14.2.5 Adapting to the Needs of China’s Peaceful Development The CILD belongs to China to large extent, although it is of direct and strong international elements. Therefore, it must serve for the strategy of China’s peaceful development, otherwise it would lose its Chinese character, Chinese style and Chinese manner, thus weakening its main theory and practical significance. In order to make the contemporary construction of CILD closely link to and directly serve for China’s strategy of peaceful development, the first and foremost prerequisite in theory is to clarify the interactions between China’s peaceful development and contemporary international law. Roughly speaking, the contemporary international law plays an actively role for China’s peaceful development in three dimensions: (1) it creates peaceful and safe external environment for China’s peaceful development; (2) it sets up a just and fair competitive international order for China’s peaceful development; (3) it provides

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legal safeguards of international cooperation for China’s peaceful development.6 Judging from the other side, China’s peaceful development would contribute greatly to the development of contemporary international law. Firstly, since China is the largest country in the world, its peaceful development is of special significance for the global development which is the one of the main missions pursued by the contemporary international law. Secondly, as a responsible political power, China will play an ever-greater important role in international peace-keeping and peacebuilding as well as maintenance of international security engaged by contemporary international law. Finally, human rights, the rule of law and democracy are becoming the core values of contemporary international law and the promotion of such new core values at both national and international levels is one of the main purposes of China’s peaceful development. The road of peaceful development chosen by China is not only the road of making the country rich and wealthy, but also the one essential for realization of human rights, the rule of law and the democracy.7

14.3 The Functional Orientation of Contemporary CILD To build contemporary CILD cannot neglect its functional orientation. Only if its functions are precisely defined, could the construction of CILD reach the following goals: (1) its objectives are explicit; (2) its gradation is clear; (3) structure is wellframed; and (4) its contents are comprehensive. This author elaborates the basic functional location of contemporary CILD as follows, in terms of international law, the rule of law, academic dimension, social context and political perspective:

14.3.1 Promoting the Continuous Development and Broad Application of Contemporary International Law To promote the codification and progress of international law is a sustained special mission of the General Assembly endowed by the UN Charter. In addition to the constant efforts made by the UN and States, many other intergovernmental organizations, NGOs, civil societies, academic agencies, etc. have been involving themselves in the progress or development of international law in one or another. Though the Chinese discipline of international law is relatively young, it has been developing fast. The intercourse of Chinese international law should own a seat in the development of contemporary international law and such a seat should become one of growing influence.

6 See

Lingliang Zeng (2006), p. 119.

7 Ibid.

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However, it is true that however developed international law would be, its practical role in regulating international relations, maintaining international peace and security as well as promoting global economic and social development would be significantly reduced, if its space of application is limited. Being fully aware of the issue, the UN Secretary-General has launched a movement calling for the UN Members States to sign, ratify or access to a large number of listed multilateral treaties so as to promote the broad application of these important treaties and international law, during the general session of the General Assembly each year since the Millennium Summit in 2000. At the same time, the Secretary-General approved the Strategy for an Era of Application of International Law: Action Plan.8 The CILD could play its part in promoting the broad application of international law in China as well as in the world through the comprehensive and timely dissemination and spreading multilateral treaties and knowledge, information and importance of contemporary international law.

14.3.2 Promoting the Teaching, Research and Dissemination of Contemporary International Law The extent of consciousness, broadness of dissemination and the highness of teaching and research level of international law in a society directly influence the personal act of international law and its effect in scope, thus resulting in the impacts on realization of the values of international law and its social functions. Considering the importance of this concern, the General Assembly adopted a special resolution in the middle of 1960’s, initiating the UN Program of Assistance in Teaching, Study, Dissemination and Wide Appreciation of International Law.9 Since then, the General Assembly had repeatedly adopted the resolution annually continuing the Program until the Twenty-Sixth Session; from then, it has done the same every two year. The most fundamental, direct and extensive function of the CILD is to promote the nation and world-wide teaching, study and dissemination of international law by the means as follows: (1) to transfer the basic knowledge, theories and techniques of international law into the university textbooks, reading materials and courses through the expression of the CILD, nursing the elites of international law; (2) to utilize the CILD to study the frontier issues of contemporary international law both in theory and practice as well as important international legal issues involved in China’s peaceful development, bringing about the prosperity of the research of international law with Chinese characteristics and improving the level of international law studies in China; (3) to train government officials at all levels, legal professionals and high managers with the CILD, and to disseminate contemporary international law with the CILD 8 United 9 See

Nations Legal Technical Assistance (2000). United Nations General Assembly (1965).

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both at home and abroad through the publication of outcomes of international law studies by Chinese international law scholars and their lectures or essays delivered both internally and externally, thus globally spreading the contemporary international law.

14.3.3 Promoting the Progress of the Rule of Law in China The promotion of the rule of law at international and national levels is becoming a core value of contemporary international law and an important agenda of the UN. Since its implementation of Reform and Opening-Up Policy, particularly in most recent years, China has been endeavoring to enhance its own rule of law construction under the strategy of governing the country by law. In such context, the contemporary construction of CILD should take into full consideration of its role in the progress of China’s rule of law. More specifically, it should growingly insert its influence in the whole process of the rule of Law in China. Firstly, in dimension of the rational, there must be establishment of the correct and complete concept of the rule of law in the country, realizing that the term law in the conceptions of “governance of the nation by law” and “administration according to law” does not only refer to “Chinese law”, but should also include “international law”. Secondly, in dimension of the Chinese legislative, executive and judicial organs, they should be required to precisely grasp principles and rules of international law relevant to cases in question and appropriately handle the relationship between related domestic law and international law and the latter’s application. In addition, there should be measures adopted to strengthen the understanding of the knowledge of international law by actors of market economy and civil societies so that they could protect their own rights and interest, if cases arise, utilizing the rules and procedures of international law.

14.3.4 Maintaining China’s Interest, Especially Its Core Interest The conception of national interest was formulated when the national states arose in modern European. Since then, the concept may have different implications or stress in different times. The essence and primary purpose of international law, as a law regulating international relations, is to maintain the common interest of all nations which is composed of individual interest of each nation. Of course, the interest of states could not be completely the same, and sometimes may be greatly different, or even in conflict, eventually resulting in armed conflicts. Therefore, the common interest maintained by international law is in essence the coordination of interest of all states. When it scientifically presents the interstate common interest and the common interest of mankind, the contemporary construction of international law discourse

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deems to be consistent with the nation’s own interest, particularly the need of its core interest, otherwise, the international law discourse would lose its characteristics of individual state. It should be taken for granted that the CILD must unambiguously protect China’s national interest, particularly its core interest in its contemporary formulation. The core interest of China should include but not limit to the maintenance of Chinese fundamental system, national security, national sovereignty, territorial integrity and sustainable and stable economic and social development.10

14.3.5 Improving the International Image and Status of China as a Responsible Big Power As a largest developing country in the world, China has been steadily improving its international image and status with the gradual increasing of its comprehensive national forces since the implementation of 2. Reform and Opening-Up Policy. The discourse power and influence of China in international affairs have been growingly strengthened and rising, such as its role either in the UN collective security system, in building regional security mechanisms and coping with regional hot issues, or in the affirmation and realization of the UN Millennium Development Goals, promotion of Doha Development Agenda, or in coping with global financial crisis and global climate change, or in attacking international terrorism and pirates, etc. Taking it as its mission, the contemporary construction of CILD should continue to improve the international image and status of China as a responsible growing power. More specifically, the CILD, through its own creative and scientific construction, should lead the progress-oriented development contemporary international law, influence the decision-making of important or key issues in multilateral and regional systems and provide theoretical think tank and practical advice for the formulation and implementation of China foreign policies or strategies.

14.4 Conclusion To sum up, we could preliminarily reach some conclusions as follows: Firstly, the contemporary CILD is the foundation and core of contemporary international law discipline with Chinese characteristics, style and manner. Only if the construction of CILD is scientific and systematic manner and keeps with the pace of times, could the Chinese international law discipline be formulated in exactly the same manner. Secondly, the contemporary CILD must, on the one hand, precisely, comprehensively and completely express and disseminate the principles, rules, regulations, 10 See

Binguo Dai (2009).

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mechanisms of international law and its natures as well as core values, basic conceptions, key terms, mainstream theories or doctrines and representative views, etc. On the other hand, it should adequately and timely present the creative contributions made by China to international law and its discipline and discourse since 1949, particularly in the most recent thirty years of China’s 2. Reform and Opening-Up Policy. Thirdly, the contemporary construction of CILD must base on the most advanced rational as its guideline. Such a rational is “building a harmonious world” first proclaimed by China. The concept of “harmonious world” reflects the common wishes and voices of international society, expresses the common perspective of mankind and indicates the sacred mission of contemporary international law. Fourthly, the contemporary construction of CILD should in overall cover the four basic levels of international rule of law and Chinese foreign policies, namely, domestic, multilateral, regional and bilateral levels. The contents, scopes and characters of CILD in these four basic levels may vary, but they are interacted, influence and complement mutually. Fifthly, the construction of contemporary CILD should be conducted according to and adapting to a number of basic principles, orders and tendencies, such as the fundamental norms of international relations and international law, globalization and multilateralism, regional integration and regionalism, international community obligations (or rights) and the needs of China’s peaceful development, etc. Last but not the least, the construction of CILD should have its functions scientifically defined. This author would like to locate its functions as promoting the continuous development and broad application of contemporary international law, enhancing the teaching, study and dissemination of contemporary international law at home and abroad, advancing the progress of China’s rule of law, protecting China’s national interest, particularly the core interest, and improving the international image and status of China as a growing responsible power.

References Cassese A (2001) International Law. Oxford University Press, London Dai B 2009) Remark at the first round of Sino-American economic dialogue. Chinese State Council. https://www.chinanews.com.cn/gn/news/2009/07-29/1794984.shtml. Accessed 3 Aug 2010 Hu J 2007) Hold high the great banner of socialism with Chinese characteristics and strive for new victories in building a moderately prosperous society in all respects (Report to the Seventeenth National Congress of the Communist Party of China). Beijing Shaw MN (2005) International law, 5th edn, (photocopy edition). Peking University Press, Beijing United Nations Legal Technical Assistance (2000) The strategy for an era of application of international law: action plan. United Nations office of legal affairs. https://www.un.org/law/technical/ technical.htm. Accessed 3 Aug 2010

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UN General Assembly (1965) Technical assistance to promote the teaching, study, dissemination and wider appreciation of international law (U.N. Doc. A/RES/2099(XX)) Zeng L (2006) On the mutual influence and effect of china’s peaceful development and international law. China Legal Sci 4:110–119 Zeng L (2008) The harmonious world in the perspective of contemporary international law. Law Rev 4(2):10–17

Chapter 15

International Legal Personality of Macao Special Administrative Region

15.1 Introduction The issue of international legal personality of Macao Special Administrative Region (SAR) is an unavoidable theoretical and practical issue for China and its special administrative regions in implementing international law.1 However, consensus has not been reached on this issue in international law academia, at least international law academia in China, although Macao has been reunited with the motherland for 10 years. Until now, textbooks on international law, regardless of whether they are the Chinese textbooks or foreign equivalents, and regardless of the language in which they are published, “Subjects of International Law”, a chapter of indispensable nature, tends to be written in the following order: States—Warring Groups— Rebel Groups—International Organizations—Peoples Striving for Independence, and sometimes includes individuals as well, while only slight mention may be made of any constituents or administrative regions of a country, never specifically making a reference to Macao. Even among few specific explorations on this issue within the Chinese academic circle of International Law, discussions mainly focus on the Hong Kong SAR.2 There may be various reasons for the long-term silence on, avoidance of, or even indifference to the issue of Macao as Subject of International Law. Viewed objectively, both the area and population of Macao are relatively small; additionally, Macao’s external relations are relatively limited, and consequently the issue is easily 1 The discussion and basic viewpoints of this paper also apply to the Hong Kong Special Administrative Region. 2 Ni (2009), Wang and Song (2006), Ge (2007).

The Article was originally written by Prof. Zeng in Chinese, and published in Journal of Macao Studies, 53, 2009, pp. 1–7. It was then translated by Assoc. Prof. Yanni Wu, and proofread by Dr. Jiao Zhang.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_15

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ignored to a large extent. Viewed subjectively, this issue possesses high political sensitivity which causes many scholars of international law (mainly Chinese scholars) to adopt an evasive attitude, at best carrying out some discussions in their classes. The situation is clearly regrettable. This exposes a flaw that cannot be ignored during the process of dissemination, education and research of the contemporary international law: it fails to reflect the reality of the international society in a timely, complete and comprehensive manner, especially the profound impact of “One Country, Two Systems” as was creatively proposed by China, on the development of international law during the process of China’s peaceful development. The divergent views on the SAR as a subject of international law could be clearly seen from the publicly published articles at present (although they are mainly concerning Hong Kong, the situation applies to Macao as well). The skeptics argue that China does not alter its position as a single subject of international law for the reason of the return of Hong Kong and Macao and the implementation of “One Country, Two Systems”; the same situation will continue even if Taiwan reunites with mainland China in the future. While believers disagree, the Basic Laws of Hong Kong and Macao stipulate that these two SARs enjoy “a high degree of autonomy” and a certain level of independent power for external relations, which means they are respectively invested with the position as subject of international law, and the same situation will apply to Taiwan after the reunification is achieved across the Taiwan Strait. Even among the believers, however, each has a different view and expression on the bases, natures and characteristics of the SAR as a subject of International Law. Firstly, this paper dissects the main points of view of the skeptics, trying to employ the basic principles of the modern international law, particularly the general theory and its practices hereof, to prove that the theories and facts that the skeptics make reference to are outdated, partial and sometimes even confusing in terms of concept and logic. Secondly, this paper argues about the basis of both international law and national law for Macao to be regarded as a subject of international law, and compares Macao with other types of subjects of international law, to reveal the implied, authoritative and limited natures and characteristics of Macao as a subject of international law. Lastly, this paper tries to reach a general understanding of the legal and theoretical basis as well as the international recognition of Macao as a subject of international law as conclusion.

15.2 Disagreed Negativism Those skeptics, who argue there is only one subject of international law in China and Macao SAR does not possess the identity as a subject of international law, hold the following arguments: First, China is a State of unitary system, with only one entity possessing the identity as the subject of international law, i.e. the People’s Republic of China; Second, due to the indivisible sovereignty of China, Macao does not possess the sovereignty, but the autonomy only;

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Third, Macao is not authorized with the power to engage in foreign affairs and cannot represent China in terms of international law. Therefore, Macao, who does not possess the independent identity as international personality, nor is a holder of “international personality”, does not have the identity as a subject of international law.3 The author believes that the above-mentioned negativism is untenable, or at least debatable, due to the unconvincing basis and inference; moreover, it is inconsistent with the 10-year practice since Macao’s return to China. Firstly, although the subject of international law is closely related to the concept of the types and elements of a State, they should not be confused with each other. Generally speaking, a subject of international law refers to an entity that is able to enjoy the right and assume the responsibility independently in terms of external relations. The type of a State is a classification based on the structure of power established by a State in accordance with its Constitution, i.e. a State is usually organized into unitary state or composite state, and the latter can be further classified into four forms: Federalism, Confederacy, Real Union and Personal Union. The elements of a State, as a concept of international law, refer to the most essential elements that must be possessed by any entity known as a State, which includes settled inhabitants, definite territories, certain political organizations, sovereignty and other elements. Thus, the subject qualification of international law is the concept of an entity’s power and capacity in terms of external affairs, while the classification of the State is the concept of the state structure in which the power of a State is configured within it. A State is the inherent, basic and complete subject of international law, which is the undisputed theory and fact of international law. However, it is not directly related to the type of a particular State. In other words, a particular State, regardless of its structural form, which is its internal affairs, its qualification as a subject of international law will not be affected. Likewise, it is a State’s own internal affair whether its personality is reflected by the whole of a State or by two or more entities respectively. For example, in the case of a composite State, the subject of international law as seen in the federation is generally embodied in the Federation, although its constituent entities have the majority of powers internally; however, the Confederation system itself is not the subject of international law and such qualification is enjoyed by its constituent bodies. Given that the power of a unitary state is largely concentrated in the Central Government, it is usually regarded as a subject of international law, especially the power of foreign relations resides almost exclusively in the Central Government. However, we cannot therefore conclude that a unitary state cannot or may not have more than one subject of international law, as we cannot arbitrarily assume that the State is the sole subject of modern and contemporary international law. The reason is that the domestic and international societies are changing, and consequently, the legal system that serves these two societies is bound to innovate. Since a country can 3 Ni

(2009). The Subject Qualification of Chinese International Law Under “One Country, Two Systems”. Thesis NET, https://www.Lunwentianxia.com/product.Free.6664677.1/.

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implement two different systems in one sovereign State, why there may not be two different subjects of international law in this country?! Similarly, since the elements of a State are the basic criteria for measuring whether an entity constitutes a State, it is clearly wrong if these basic criteria are tagged as prerequisites for the subject of international law. Certainly, in traditional international law, since the State is the only subject of international law, it seems logical to equate state elements with the subject of international law. Today, entities other than States, such as international organizations, the peoples striving for independence, etc., are also recognized as subjects of international law. Therefore, the elements of a State must not be equated with the subject of international law. Secondly, in modern international law, especially in contemporary international law, sovereignty cannot be regarded as the essential condition of the personality of international law. In traditional international law, because the State is the only subject, sovereignty is one of the elements of the State, therefore, the international personality is only enjoyed by the sovereign owners. From the date of the practice of modern international law, non-sovereign entities like intergovernmental organizations and the peoples striving for independence have the right and capacity to conduct foreign relations independently, such as the conclusion of treaties, the sending and acceptance of representatives or missions of external relations, the participation in national or international litigation and dispute settlement proceedings, etc., as plaintiffs or defendants or third parties. The result lies in the subject of modern international law not only has a significant increase in quantity, but also the type is no longer exclusive to sovereign State, which displays the diversity. Thirdly, the diplomatic powers of the State should not be equated with the qualification as subject of international law. Indeed, the diplomatic powers are usually exercised uniformly by the central or federal government on behalf of the entire State, regardless of a unitary state or a composite one; the administrative area of the State, irrespective of its level of autonomy, does not have diplomatic powers and cannot, under any circumstances, represent the country in which it resides, due to the uniformity and indivisibility of the State’s diplomatic powers as is the territorial sovereignty of the State. However, the State’s unification of diplomatic powers does not exclude the possibility that the State, in accordance with its own national conditions, through the adoption of specific legislation, authorizes its specific administrative regions with the power, in specific areas and within the scope or under certain conditions, to conduct the external relation actions independently. The specific administrative region must have the corresponding personality of international law in order to fully and effectively exercise the powers of external relations conferred by national law in practice. It can be seen that diplomatic relations are the relations between States, and correspondingly, the diplomatic powers may only be exercised by the State; the external relations could be between States, or between the non-sovereign entities and the States or the non-sovereign entities, thus the power of external relations does not exclusively belong to a State. Today’s EU is a typical example: it enjoys extensive powers of external relations in three pillars (EC, Common Foreign and Security Policy, Justice and Home Affairs), but the power to external relations, in any case,

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is not a strictly diplomatic power from a legal perspective, which is still possessed by the Member States of the EU. Finally, we should not treat the international legal personality of Macao SAR as opposite to that of China. Undoubtedly, China, as a sovereign State, enjoys full qualification as an international legal personality; internationally, only the Central People’s Government has the exclusive and comprehensive powers to represent China. However, China’s sovereignty, the full qualification as an international legal personality as well as the exclusiveness and comprehensive powers of the Central People’s Government representing China, do not necessarily exclude the possibility that the SAR established by the Central Government can enjoy the international personality under certain conditions and within certain limits. In other words, there is no inevitable conflict between China and its SAR established by itself in terms of international personality. Otherwise, it would be difficult to explain hundreds of multilateral treaties, in which both China and Macao are contracting parties; it is difficult to explain why Macao has concluded many bilateral agreements with other countries and regions independently in the name of “Macao, China”; and it is difficult to explain that both China and “Macao, China” are members of relevant international organizations respectively. The practice has proved that within the scope of the Central Government’s authorization, Macao’s comprehensive and effective external relations activities will not affect the integrity of China’s sovereignty as well as the inherent and complete nature of its international legal personality, while it will enrich the connotation and denotation of this inherent and complete nature.

15.3 International Legal Personality of Macao and Its Characteristics International legal personality of Macao is not only tenable in the theory of international law, but also has a solid legal basis, i.e. the Joint Declaration of the Government of the People’s Republic of China and the Government of the Portuguese Republic on the Question of Macao (hereinafter referred to as the China-Portugal Joint Declaration), the Constitution of the People’s Republic of China (hereinafter referred to as the Constitution of China) and the Basic Law of the Macao Special Administrative Region of the PRC (hereinafter referred to as the Basic Law of Macao). Indeed, none of the above-mentioned three documents expressly stipulates Macao’s international legal personality. However, it cannot be the basis of denying Macao’s international legal personality. In fact, the constitutions of most of the States in the world, including China, have not explicitly made such provisions, however, as a subject of international law, China and those countries have never been questioned. Similarly, although the statutes of many international organizations have not made such provisions either, they do not affect the international organizations as a derived subject of international law. Few treaties explicitly stipulate the international legal

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personality of Rebel Groups, Warring Groups and the Peoples Striving for Independence, it, however, does not preclude these non-sovereign entities from enjoying specific international legal personality under specific circumstances and conditions.

15.3.1 The Treaty or International Law Basis for the International Legal Personality of Macao Viewed from the perspective of international law, the China-Portugal Joint Declaration is the treaty basis for the presumption of Macao’s international legal personality. In this landmark legal document, China has solemnly pledged to the world that, upon China’s resumption of the exercise of sovereignty over Macao, the Macao SAR shall be directly under the administration of the Central People’s Government of the PRC and may enjoy a high degree of autonomy, with the exception of foreign and defense affairs which shall be under the administration of the Central People’s Government. The Macao SAR is vested with executive power, legislative power, independent judicial power, including that of final adjudication.4 This is China’s basic policy on Macao as well as the primary principle. It can be inferred that, except for foreign and defense affairs, Macao enjoys a “high degree of autonomy”, including “executive power, legislative power, independent judicial power, including that of final adjudication”, not only for Macao’s internal affairs, but also for its corresponding external relations. In fact, this basic policy or primary principle statement implies the Chinese Central Government’s authorization of the international legal personality to Macao. Moreover, a number of paragraphs in the China-Portugal Joint Declaration have explicitly invested Macao with the power to carry out external relations in specific areas, thus providing a series of direct implied authorizations for Macao to be the subject of international law. For example, using the name “Macao, China”, Macao may on its own maintain and develop economic and cultural relations with States, regions and relevant international organizations respectively and sign relevant agreements5 ; using the name “Macao, China”, Macao may on its own maintain and develop relations with States, regions and relevant international organizations or regional organizations in economic, trade, finance, shipping, communications, tourism, culture, science and technology, sports and other appropriate areas, and sign and implement the agreement. While participating in international organizations or conferences only opening to State parties, representatives of the Government of the Macao SAR may express their views in the name of “Macao, China” in appropriate fields which are relevant to Macao but only open to State parties; In participating in international organizations or conferences not requiring “State” members, the Macao SAR may participate in the name of “Macao, China”. With regards to international organizations to which the Central People’s Government is already a member, while the Macao SAR also participates in certain way at present, 4 Article 5 Article

2(2), Sino-Portuguese Joint Declaration. 2(7), Sino-Portuguese Joint Declaration.

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the Central People’s Government shall, according to the circumstances and needs of the Macao SAR, take measures to ensure the continued status of Macao SAR in an appropriate capacity in those international organizations. With regards to international organizations to which the Central People’s Government is not a member, while the Macao SAR participates in certain way at present, the Central People’s Government shall, according to the circumstances and needs of the Macao SAR, take measures to facilitate the continued participation of the Macao SAR in an appropriate capacity.6 The Central People’s Government shall authorize or assist the government of the Macao SAR to negotiate and sign visa-free agreements with the countries and territories concerned.7 Macao SAR continues to participate in relevant international organizations and international trade agreements, such as the General Agreement on Tariffs and Trade, and the International Textile trade Agreement.”8

15.3.2 The Most Fundamental Domestic Legal Basis for Macao’s International Legal Personality The Constitution of China is the most fundamental precondition of determining Macao as a subject of international law. Article 31 of the current Constitution of China stipulates: “The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress (NPC) in the light of specific conditions.” The above provision expressly authorizes the National People’s Congress to establish a special administrative region in the form of separate legislation and to implement different systems in accordance with the “specific circumstances”. The “different systems” herein referred not only to the political, economic and social systems of the SAR, but also to the corresponding fields of external relations. It is a general understanding that the Macao SAR and its special system, including its independent power to external relations, are established through the Basic Law of Macao enacted by the NPC. Therefore, from the perspective of domestic law, Article 31 of the Constitution of China is the highest legal authorization to presume the international legal personality of Macao.

15.3.3 The Basic Law of Macao Implies the International Legal Personality of Macao Firstly, the Basic Law of Macao emphasizes that Macao is an “inalienable part” of China, while clearly stipulating that the SAR shall “exercise a high degree of 6 Section

8, Annex I, the Sino-Portuguese Joint Declaration. 9, Annex I, the Sino-Portuguese Joint Declaration. 8 Section 10, Annex I, the Sino-Portuguese Joint Declaration. 7 Section

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autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication”.9 Secondly, the Basic Law of Macao further clearly stipulates the nature of the Macao SAR and the principle of competence allocation between the Central People’s Government and Macao SAR in areas of external relations, namely, Macao is “a local administrative region of the People’s Republic of China, which shall enjoy a high degree of autonomy, directly under the Central People’s Government”, the Central People’s Government is responsible for the administration of the foreign affairs of the SAR; while the Central People’s Government authorizes the SAR to conduct relevant external affairs on its own in accordance with the Basic Law.10 Thirdly, the Basic Law of Macao, when providing for the powers of the chief executive of the SAR, expressly empowers him/her to “conduct, on behalf of the Government of the Macao Special Administrative Region, external affairs as authorized by the Central Authorities”.11 Fourthly, when the Basic Law of Macao stipulates the functions and powers of the SAR government, it further stipulates that the SAR government conduct external affairs as authorized by the Central People’s Government under the Basic Law.12 In addition, the Basic Law of Macao invests Macao with the power to external relations in a series of specific fields. For example, “with the assistance or authorization of the Central People’s government, the Macao Special Administrative Region may make appropriate arrangements with foreign states for mutual judicial assistance.”13 Also, as a separate customs territory, the Macao SAR may, in the name of “Macao, China”, participate in relevant international organizations and international trade agreements (including preferential trade arrangements), such as the General Agreement on Tariffs and Trade and arrangements regarding international trade in textiles.14 Finally, Chapter VII of the Basic Law of Macao, collectively sets out Macao’s external relations competences.15 The main points include: (1) the competence to participate in diplomatic negotiations, i.e. as members of delegation of the Chinese government, to participate in negotiations at the diplomatic level directly affecting the Region conducted by the Central People’s Government; (2) The competence to conclude an agreement, i.e. the Macao SAR. may on its own, in the name of “Macao, China”, maintain and develop relations and conclude and implement agreements with foreign states and regions and relevant international organizations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, tourism, cultural, science and technology, and sports fields; (3) The competence to participate in international organizations and international conferences, i.e. 9 Articles

1 and 2, Macao Basic Law. 12 and 13, Macao Basic Law. 11 Article 50(13), Macao Basic Law. 12 Article 64(3), Basic Law of Macao. 13 Article 94, Basic Law of Macao. 14 Article 112, Basic Law of Macao. 15 Articles 135–142, Basic Law of Macao. 10 Articles

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the representatives of the Government of the Macao SAR may, as members of delegations of the People’s Republic and China, participate in international organizations or conferences in appropriate fields limited to states and affecting the Region, and may express their views, in the name of “Macao, China”. The Macao SAR may, in the name of “Macao, China”, participate in international conferences not limited to states; (4) the competence to issue a separate passport and travel document, i.e. with the authorization from the Central People’s Government, Macao may issue a passport of the Macao SAR of the PRC to a Chinese citizen holding a permanent identity card of the Macao SAR, and travel documents of the Macao SAR of the PRC to other persons lawfully residing in the Region; (5) the competence of Independent immigration control, i.e. Macao may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states or regions; Macao may enter into a visa-free agreements with relevant foreign states or regions with the assistance or authorization of the Central People’s Government.

15.3.4 Characteristics of International Legal Personality of Macao It is true that the international legal personality of the SAR cannot be in the same position as that of China: the former is authorized by the central authorities and is limited; the latter is of inherent and complete nature. Authorization is the essential nature of international legal personality of Macao. Macao cannot enjoy such personality without the central authorities’ direct or indirect authorization. Such authorization is rooted in China’s basic policy of “One Country, Two Systems” in Macao, which depends on Macao’s identity as a “special Administrative Region” of China, rather than a General Administrative District, and is based on the above-mentioned China-Portugal Joint Declaration, the Constitution of China and the Basic Law of Macao. There is a certain similarity between the authorization of international legal personality of Macao and those of the international organizations. For example, it is achieved by express or implied authorization of relevant law: the authorization of the international legal personality of an international organization relies on its constitutional treaty or basic document, and the authorization of international legal personality to Macao is based on the above three international and national legal documents. However, there is a fundamental difference between these two subjects: the authorization of an international organization derives from the consensual agreement or the reconciliation of the will of its members, while the authorization to Macao comes from the supreme authority of China, i.e. the National People’s Congress and the Central People’s government, which embodies the will of all Chinese, including compatriots in Macao. Finiteness is a specific characteristic of Macao’s international legal personality. Compared with the inherent and complete nature of the international legal personality

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of China, the limitation of the international legal personality of Macao is manifested in the derivation of its competence and in the specific field of external relations. They are mutually reinforcing and inseparable. Since this personality is shaped by the legal act of its parent and as a special derivation of the Motherland, Macao’s capacity of conducts and competences in an international sense must be at a lower level. Similarly, under the authorization of the supreme authority and the highest administrative authority of China, Macao’s international legal personality must be strictly limited to “external affairs related to Macao”, excluding “diplomatic affairs related to Macao”, needless to say the foreign affairs and diplomatic affairs of China unrelated to Macao, the latter three of which belong to the central power.

15.4 Conclusion To sum up, we can draw the following general understanding on the international legal personality of Macao SAR: First of all, we cannot stick to the subject theory, or even the existing textbooks of international law in order to have a correct understanding of the international legal personality of Macao; on the contrary, we should make theoretical innovation, or at least innovative perception, which needs to keep pace with the times. Of course, this innovation must conform to the scientific outlook on development, that is, it must be based on scientific analysis of the relevant theory of international law, scientific interpretation of relevant laws and scientific solution of objective reality. Secondly, today, international legal personality is no longer exclusively belongs to sovereign States, but rather shows a diversified development trend. Although the sovereign State remains and will always be the fundamental subject of international law, the non-sovereign entities, such as the intergovernmental organizations, the peoples striving for independence, the warring groups, and the rebel groups, are universally recognized as subjects of international law. Without doubt, the international legal personality of these non-sovereign entities cannot be the same as the State, given that they are of derivative, or transitioning, or limited nature. As a subject of international law derived from the authorization of China’s supreme authority and the Central People’s Government, the Macao SAR is in conformity with this diversified international trend, which in no way affects, but instead greatly enriches the innate and complete nature of the international legal personality of China. Thirdly, the international legal personality of Macao SAR makes a State have more than one subject of international law becoming a reality, which is the creative contribution China has made to the development of contemporary international law. This creativity has a solid dual base both in international and national law, namely, the China-Portugal Joint Declaration, the Constitution of China and the Basic Law of Macao. Although these basic legal documents do not directly and explicitly stipulate the international legal personality of Macao, the personality is the proper and inevitable logical implication of the core legal concepts of “One

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Country, Two Systems”, “Special Administrative Region”, “high autonomy” and “external relations” in these basic legal documents. The international legal personality of Macao SAR is limited to external affairs regarding Macao, excluding its diplomatic and national defense affairs. Nevertheless, the positive and fruitful external relations practices of Macao in the past 10 years fully demonstrates the special value and function of Macao’s international legal personality. While other countries and regions and relevant intergovernmental organizations are willing to as well as successfully establish and develop various external relations with the Macao SAR, it further proves the objective fact that Macao’s international legal personality exists within certain limits and under certain conditions.

References Ge Y (2007) The theory and practice of the international law subject status of Hong Kong and its contracting authority. J Comp Law (5):48–60 Ni X (2009) The subject qualification of Chinese international law under “one country, two systems”. Thesis NET, https://www.Lunwentianxia.com/product.Free.6664677.1/ Wang Peng and Song Yang (2006) A probe into the subject status of international law of the “Hong Kong special administrative region. J Guizhou Univ Technol (Social Science Edition) 8(2):69–72

Chapter 16

Chinese Practice of International Rule of Law: Great Progress in the Past Thirty Years and Growing Challenges Ahead

16.1 Introduction Thirty years ago, China had still suffered deeply in rule of man and rule of law had been absolutely an unknown concept to the Chinese people. With the ending of the “Cultural Revolution” in the mid-1970’s, the Chinese leadership turned to carry out the Reform and Opening-Up Policy and explicitly put forward the principle of ensuring the people’s democracy and socialist legal system since the late 1970’s. with the deepening of Reform and Opening-Up Policy and overall construction of its socialist market economy, “the strategy of governing the county according to law” and “building a socialist country ruled by law” was for the first time inserted into the 15th National Party Congress Report in 1997 and then into the Constitution of China in 1999. So, rule of law as a kind of governing rationale, principle or strategy in China has been a matter in the recent past thirty years and a product or symbol of its development of political civilization in this period. In the perspective of international law, the concept of rule of law does not mean only the governance within a State, but also that in the international society as whole, that is, rule of law at the national and international levels. In the era of globalization, the promoting process of the rule of law at these both levels might well be described as “globalizing the rule of law”.1 The World Summit 2005 solemnly in the United States documents declared that “good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger”2 and recognized “the need 1 See

the most recent Article on the subject matter written by Wang (2008). Nations General Assembly (2005), para.11.

2 United

The Article was originally written by Prof. Zeng in English, based on a paper presented at International Seminars on Law and Social Sciences in Universidade Estadual Paulista Júlio Mesquita Filho, 12–17 October 2008. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_16

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for universal adherence to and implementation of the rule of law at both the national and international levels” and the importance of “an international order based on the rule of law and international law”.3 On this basis the UN Sixth Committee had submitted in 2006 and 2007 special reports entitled “Rule of Law at National and International Levels”4 to the General Assembly who adopted each of them. In 2007 the UN Assembly in its Resolution further reaffirmed that “human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations”.5 So it is clear that rule of law in the sense of international law includes both national and international connotations and they are interacted and supportive each other. Therefore, under the tendency of ever-enhancing coexistence among States and everdeepening globalization, Each State has to make endeavors to the construction of international rule of law while being engaged in its national rule of law. China is the biggest developing county with increasing political and economic influence in this globe. For the past thirty years. China has not only been making continuous efforts to build and enhance its national rule of law,6 but also actively practicing international rule of law. At the same time, facing continuous emergence of various new circumstances, China has been confronting increasingly challenges in its implementation of rule of law at both national and international level. Generally speaking, China, taking authorities, civil societies and academic circles as a whole, has comparatively focused on rule of law at its national level more than international level. The most recent White Paper on Construction of Rule of Law in China published by the Press Office, State Council is a good example for illustration. It is said to be a product of collective wisdom with participation of over 30 prestigious Chinese legal scholars from over ten units who had spent one year and half to complete the Paper, and it is called “the first white paper to introduce comprehensively the construction of rule of law in the country”.7 However, it is regretted that there is no single word concerning the practice of international rule of law in China.8 In order to fill up the gap, this author will first of all try to sum up the major practice

3 Ibid,

para. 134. item entitled “The rule of law at the national and international levels” was included in the provisional agenda of the sixty first session of the General Assembly at the request of Liechtenstein and Mexico (A/61/142). At its second plenary meeting on 13 September 2006, the General Assembly, on the recommendation of the General Committee, decided to include the item in its agenda and to allocate it to the Sixth Committee. https://www.un.org/law/cod/sixth/61/summary. htm. Accessed 31 May 2008. 5 United Nations General Assembly (2008), preamble. 6 On 28 February 2008, the Press Office of the Chinese State Council for the first time issued White Paper on Construction of Rule of Law in China. See https://www.chinanews.com.cn/gn/news/2008/ 02-28/1177314.shtml. Accessed 1 June 2008. 7 https://www.zgfzxw.com/fzjs/ShowArticle.asp?ArticleID=1216. Accessed 1 June 2008. 8 It is not difficult to presume that no international legal scholars or officials were invited to participate in drafting the White Paper. 4 The

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of international rule of law in China for the past 30 years and then figure out certain challenges faced and to be coped with by China with caution combining with the explosion of some new tendency of rule of law at international level.

16.2 Outstanding Contributions Made by China in Its Practice of International Rule of Law 16.2.1 Initiation of New Concept and Principles Reflecting the Core Values of International Rule of Law The primary core value and objective of realizing international rule of law must be the maintenance of an international order of peaceful coexistence between States on the basis of rule of law and international law. Without this primacy, other core values of international rule of law such as democracy, sustainable development, fundamental human rights, good governance, etc. could not be implemented effectively. Therefore, China has tried its best in the past half fifty years to innovate the concept and principles of norms governing international relations. For instance, in the middle of 1950’s, China together with India initiated the well-known “Five Principles of Peaceful Coexistence”, namely, mutual respect for each other’s territorial integrity and sovereignty, mutual non-aggression, mutual non-interference in each other’s internal affairs, equality and mutual benefit and peaceful coexistence.9 As these “Five principles” are fully in conformity with those principles contained in the UN Charter, UN Declaration on Principles of International Law and other international documents concerned, and furthermore, they highly reflect the basic features of international relations, they have become widely recognized and accepted throughout the world. In recent years, China again put forward a new concept of “building a harmonious world” in accordance with the new characteristics in the post-Cold War era.10 According to the most recent explanation by the Chinese top leadership, the implication of this new concept is put as follows. All countries should uphold the purposes and principles of the UN Charter, observe international law and universally recognized norms of international relations, and 9 They were first put forth by Premier Enlai Zhou of China at the start of negotiations that took place

in Beijing from December 1953 to April 1954 between the Delegation of the Chinese Government and the Delegation of the Indian Government on the relations between the two countries with respect to Tibet. Later, the Five Principles were formally written into the preface to the “Agreement Between the People’s Republic of China and the Republic of India on Trade and Intercourse Between the Tibet Region of China and India” concluded between the two sides. Since June 1954, the Five Principles were contained in the joint communique issued by Premier Enlai Zhou of China and Prime Minister Jawaharlal Nehru of India, and have been adopted in many other international documents, https:// en.wikipedia.org/wiki/Five_Principles_of_Peaceful_Coexistence. Accessed 29 August 2008. 10 Hu (2005).

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promote democracy, harmony, collaboration and win–win solutions in international relations. Politically, all countries should respect each other and conduct consultations on an equal footing in a common endeavour to promote democracy in international relations. Economically, they should cooperate with each other, draw on each other’s strengths and work together to advance economic globalization in the direction of balanced development, shared benefits and win–win progress. Culturally, they should learn from each other in the spirit of seeking common ground while shelving differences, respect the diversity of the world, and make joint efforts to advance human civilization. In the area of security, they should trust each other, strengthen cooperation, settle international disputes by peaceful means rather than by war, and work together to safeguard peace and stability in the world. On environmental issues, they should assist and cooperate with each other in conservation efforts to take good care of the Earth, the only home of human beings.11 It could be presumed that the new concept of “building a harmonious world” and the new agenda on international rule of law in the UN are in conformity with each other, either in terms of their values orientation and ending purposes, or judging from their basic principles and main contents. The reason is simple: because the highest objective of the rule of law at international level is to realize a harmonious international order and the latter’s establishment and maintenance must always follow the objectives and principles of the UN Charter and basic norms universally recognized, push ahead the international economic relations toward the fairness, mutual interests and common development, protect varieties of the world civilization and cultures on the one hand and promote the cultural intercourses and cooperation on the other, jointly engage in the environmental protection and realize the sustainable development of the while globe.

16.2.2 Full Participation in International Law-Making and Decision-Making One of the prerequisites for building a harmonious world and promoting international rule of law is to realize the fairness of international norm-making and decisionmaking. As a consequence of proliferation of international organization in the international society, almost all activities of international deliberation, legislation and decision-making have been conducted with the framework of international organizations. Therefore, one of the key parameters to assess the impacts of a State on international rule of law is to see what roles it plays in international norm and decision making and these roles to large extent lie in the broadness and depth of its participation of international organizations. Thirty years ago, though it already restored its legitimate seats in the United States and its specialized agencies one after another in the 1970’s, China had been 11 Hu

(2007), Part X.

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basically in rather a passive state in the aspects of regulation and regimes of international relations, either simply accepting or ignoring the outcomes of or swimming outside of international regimes, owing to the long hostile policies of the western pole towards China externally and its long “closed-door policies” internally. Apart bilateral diplomacies and agreements with some countries, China could hardly play any substantial role in multilateral regimes. Though there might be occasionally Chinese voices therein, they were often too weak to be heard. Thirty years of “reform and opening-up” has brought about not only the continuous economic growth, social stability and development, progress of political civilization and construction of domestic rule of law in China, but also the ever-rising of its international status and ever-enhancement of its participation in international legislation and its voices on various international agendas. And all these latter outcomes have been reached through its continuously active access to all kinds of international organizations and their activities. From 1979 to the early 1990’s, the enthusiasm of China to become membership of international organizations had been obviously much greater than before. For instance, after it became the member of the IMF and the World Bank in 1980, China successfully make its accession to the WIPO, International Fund for Agricultural Development, Asian Development Bank and other international economic or monetary organizations. At the same time, China turned to active participation in activities of the UN family. Beginning in 1979, it has taken part in each annual session of the UN Commission on Human Rights (now Human Rights Council) and became the member of its Council in 1982 and again the member of the newly established UN Human Rights Council in 2006.12 Since 1980, China has attended all meetings of the UN Conference on Disarmament and has signed a number of agreements or documents on the subject matter. There have been some new features in respect of China’s participation in international organizations since the 1990’s. First of all, with the increasing challenges resulting from global climate changes and environmental issues, China has demonstrated its increasing enthusiasm in the agendas of the UN family in this aspect. Secondly, considering the specializing and professionalizing tendency of international organizations, China has carried on its full-fledged participation strategy. Thirdly, owing to the fast development and increasing roles in international affairs of Non-Governmental Organizations (NGOs), China has focused more than ever before on the involvement of itself in the activities of the various NGOs. Fourthly, facing and coping with newly emerged challenges 12 The UN General Assembly in 2006 adopted its Resolution 60/251, deciding to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly. The Council shall consist of forty-seven Member States, which shall be elected directly and individually by secret ballot by the majority of the members of the General Assembly; the membership shall be based on equitable geographical distribution, and seats shall be distributed as follows among regional groups: Group of African States, thirteen; Group of Asian States, thirteen; Group of Eastern European States, six; Group of Latin American and Caribbean States, eight; and Group of Western European and other States, seven; the members of the Council shall serve for a period of three years and shall not be eligible for immediate reelection after two consecutive terms. See https://www2.ohchr.org/english/bodies/hrcouncil/docs/A. RES.60.251_En.pdf. Accessed 30 August 2008.

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in national, regional and global securities, China has greatly enhanced its cooperation with those influential regional organizations, such as the European Union (EU), Association of South-East Asian Nations (ASEAN), Asia–Pacific Economic Cooperation (APEC), etc. on the one hand, and engaged itself in setting up new regional organization, such as Shanghai Cooperation Organization (SCO).13 According to the statistics (2002–2003) of the Union of International Associations (UIA), China has particularly stressed its accession to federations of international organizations (numbered 25), universal membership organizations (numbered 372), intercontinental membership organizations (numbered 507) and Subsidiary and internal bodies of other bodies (numbered 216),14 indicating that China has more and more portrayed itself as a responsible peaceful rising power in coping with global challenges. It is of more substantial significance that China has been trying hard to devote itself to international legislative and decision-making activities through its active accession to international organizations. Nowadays, China does not only constantly make statements on various hot issues confronted globally either in general or special sessions of the UN General Assembly and play its specials in the Security Council as its one of the five permanent Member States, but also involve itself in legislative or decision making processes of all UN specialized agencies or subsidiary agencies and other international organizations with global membership and purposes. Particularly in those specialized agencies on codification of international law, such as the UN International Law Commission, the General Assembly Sixth Committee, International Trade Law Commission, Outer Space Committee, etc., China has been increasingly making its views known through forms of written or oral proposals, statements, comments and opinions.

13 It is a permanent intergovernmental international organization, the creation of which was proclaimed on 15 June 2001 in Shanghai (China) by the Republic of Kazakhstan, the People’s Republic of China, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan and the Republic of Uzbekistan. Its prototype is the Shanghai Five mechanism. The main goals of the SCO are strengthening mutual confidence and good-neighborly relations among the member countries; promoting their effective cooperation in politics, trade and economy, science and technology, culture as well as education, energy, transportation, tourism, environmental protection and other fields; making joint efforts to maintain and ensure peace, security and stability in the region, to move towards the establishment of a new, democratic, just and rational political and economic international order. https://www.sectsco.org/html/00026.html. Accessed 1August 2008. 14 https://www.china.com.cn/node_7000058/2007-04/02/content_8047647.htm. Accessed 5 June 2008.

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16.2.3 Active Taking Part in International Peace-Keeping and Peace-Building Actions as Well as Regional Security Mechanism To prevent conflicts and build post-conflict peace either domestically or between states has been the core of rule of law at international level. For the past 30 years, with the fast and sustained development of its comprehensive national forces, the desire and capacity of China to shoulder more international responsibilities have been growingly strong. In 1997, the Chinese government solemnly declared to the world that China has been determined to become a responsible power. Since then, China has been more and more frequently participating in the UN peace-keeping and peace-building forces and other regional security actions, which has been highly appraised in international society. 2008 is the 60th anniversary of the UN Peace-Keeping Actions, for which the UN organized a special celebration. Since 1948 when the United States for the first time sent its Special Peace-Keeping Mission to Palestine, deployment of the UN peace-keeping operations has become the major effective means to maintain and build peace and security in the conflicted areas. So far the UN has been deploying 63 peace-keeping forces, helping the conflicted states or regions create sustainable peaceful environment. Currently more than 100, 000 solders or servants have been engaged in 20 UN peace-keeping operations.15 Since its first peace-keeping force sent in 1990, China has been expanding and enhancing its participation in the UN peacekeeping operations. Presently China has been taking part in 22 UN peace-keeping actions with totally more than 10,000 soldiers and servants sent,16 the biggest number among the five permanent Member States in the UN Security Council. In respect of post-conflict peace construction, China has also indicted its full support for the related actions initiated by the UN. It once clearly stated the basic principles to be followed in its assistance for the states concerned to build their national rule of law, namely, (1) fully respect for the sovereignty of the related state, no to interfere its internal affairs, and maintain to the greatest extent its autonomy in building rule of law with its finance, technology support and capacity-building as the stress of assistance; (2) persist in the assistance within the UN framework and with the UN taking the initiative; (3) build a rule of law at national level compatible to its national situations and not to engage in “broad-brush”.17 Under the guidance of these principles, China, since the 1990’s, has supported and participated in the post-war peace building and rule of law construction in countries such as Cambodia, East Timor, Afghanistan, Iraq, etc. In respect of building regional security, the contributions made by China have been outstanding and its influences have been greatly broadening and deepening since the beginning of the twenty-first century. In some regions, China’s roles have 15 https://www.un.org/chinese/events/peacekeeping60/gapres.shtml. 16 Zhao

(2008). 17 See Duan (2006).

Accessed 8 June 2008.

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been creative and even irreplaceable. Since the commencement of the North Korean Nuclear Crisis in 2002, China has not only been just as one of participants in the three-party talks (i.e., China, North Korea, the US) or six-party talks (that is, the former three plus South Korea, Russia and Japan), but more importantly functioning as the sponsor, organizer and even sometimes as the mediator, thus playing a unique role in settlement of the issues. On the thorny issues of the Middle East, China, in addition to insert its respective influences in the Security Council as its one of the permanent Member States, has sent its envoy to the Middle East striving for the ultimate realization of peaceful coexistence and common development between Arab nations and Jewish nations in the region. In recent years, China has been putting a lot of human resources, finance and intelligence in the settlement of Sudan’s Darfur Issues. After its continuous efforts at bilateral, plural and multilateral levels, China has urged the government of Sudan to accept the “Hybrid Peace-keeping Program” of the UN and the African Union (AU). In the Iran Nuclear Issues, China has also been actively urging Iran to implement the related resolutions adopted by the Security Council, suspend the uranium enrichment activities, keep the cooperation with the International Atomic Agency and to continue the talks with the EU so as to prevent deterioration of the situation and realize the peaceful settlement of the issues as early as possible.18 In addition, the summit meetings and regular strategic dialogues and consultations formed between China and Russia, the US and the EU respectively have become important effective mechanisms in the maintenance of security in the Asian-Pacific region. The Access of China to the Southeast Asia Treaty of Friendship and Cooperation, the establishment of FTA with the ASEAN and the adoption of Declaration on the Conduct of Parties in the South China Sea, all are far-reaching significant legal and political insurance of the security and stability in the region. Shanghai Cooperation Organization established by China, Russia and some Members of the Commonwealth of the Independent States, under which effective cooperation has been carried on in combating “three evil forces” (terrorism, separatism and extremism) and other defense and safety-related areas, has laid a permanent and solid foundation for the peace and security in the middle Asian region. Recently the obvious improvement of the relations between China and Japan and the establishment of strategic partnership between China and the South Korea deem to generate positive impacts on promoting stability of the situation in the East Asia and peaceful settlement of related disputes between them.

16.2.4 Active Assistance to the Middle and Small Developing Countries in Their Capacity Building for Rule of Law National capacity on rule of law, as integral part of international rule of law, lies in substantially the capacity of a State in its economic and social development, because 18 See

Zhao (2008).

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economic and social infrastructure is the key determinant of superstructure in a society which includes the rule of law. China is the largest developing country and undoubtedly the capacity-building for its own domestic rule of law construction has a long way to run. Since 1979, China has been actively making a full use of various external assistances especially supplied by the UN family, some western developed countries and NGOs, in addition to continuing the principle of self-reliance, to speed up its economic reforms, social development and improvement of rule of law. In recent years, the US, the EU, Canada and other international organizations concerned have provided China with specific assistance containing various sub-projects for its capacity-building in implementation of the WTO Agreements.19 Simultaneously, China has been fulfilment within its capacity to provide assistance to other developing countries especially the least developed countries so as to foster the capacity-building in their economic growth, social stability and domestic rule of law. China began its foreign assistance as early as 1950. In 1964 during his visits in those 14 Asian and African countries, Enlai Zhou, the Premier at that time, initiated eight principles guiding the Chinese foreign assistance, the essences of which as follows: mutual equality and benefits, non-interference of internal affairs, help for the assisted country to build capacity of self-reliance, making the assisted country genuinely benefited, reduction of burdens of the assisted country at maximum and strict fulfilment of obligations undertaken.20 In September 2005, President Jintao Hu at the United Nations 60th anniversary summit on Financing for Development high-level meeting, not only clarified the principles, positions and suggestions of China in implementation of the UN Millennium Development Goals, but also declared to the world the five new measures which the Chinese government would adopt to enhance its assistance for developing countries as follows: (1) to grant all the 39 least developed countries who have diplomatic relations with China zero-tariff treatment for some commodities which cover most of their exports to China; (2) to further expand the scale of assistance to the heavily indebted poor countries and least developed countries, and in the next two years to waive or remove by other approaches all interest-free and low-interest government loans which had been owed by the heavily indebted poor countries who have diplomatic relations with China and which should be expired but not yet returned to China by the end of 2004; (3) to provide developing countries with 10 billion US dollars in preferential loans and preferential export buyer’s credit to help developing countries strengthen infrastructure construction and promote enterprises of both sides to carry out joint venture cooperation; (4) to increase to developing countries, especially African countries, the relevant assistance, including providing anti-malaria vaccine or treatment, drugs and helping them establish and improve medical facilities and train medical staffs; (5) to train more talented people and help them expedite the training of personnel.21

19 See

Goldstein and Anderson (2002). Li (2006). 21 See Hu (2008). 20 See

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According to related statistics, until the end of 2006, China has provided various forms of assistance to 160 developing countries or regional organizations, with over 2000 assistance projects, training 18,000 high management and technical personnel, reducing and waiving in debts of over 2 billion US dollars. The forms of assistance have been changed from the single non-pay assistance to various kinds such as payable assistance, interest-free assistance, preferential loans, mixed loans, joint ventures, etc.22 Most recently Chinese Premier Jiabao Went, at the UN High Level Meeting on the Millennium Development Goals, announced a number of new actions of China for the MDGs realization as follows: “ (1) In the coming five years, China will double the number of agricultural technology demonstration centers we build for developing countries to 30, increase the number of agricultural experts and technicians we send overseas by 1000 to double the original figure, and provide agricultural training opportunities in China for 3000 people from developing countries; (2) China will contribute 30 million US dollars to the UN Food and Agriculture Organization to establish a trust fund for projects and activities designed to help developing countries enhance agricultural productivity; (3) China will increase exports and aid to countries facing food shortages; (4) In the coming five years, China will give 10,000 more scholarships to developing countries and offer training programs exclusively for 1500 principals and teachers from African countries. China will ensure that the 30 hospitals it builds for African countries are properly staffed and equipped and train 1000 doctors, nurses and managers for the recipient countries; (5) China will cancel the outstanding interest-free loans extended to least developed countries that mature before the end of 2008 and give zero-tariff treatment to 95% of products from the relevant least developed countries; (6) In the coming five years, China will develop 100 small-scale clean energy projects for developing countries, including small hydropower, solar power and bio-gas projects.”23

16.2.5 Active Access to and Implementation of Multilateral Treaties Treaties, especially multilateral treaties, are one of the very basic forms (or source) of international law and one of the major tests of the level of rule of law in a State. In terms of international society, the primary prerequisite of realizing democracy and rule of law in international relations is that there exist laws to be followed, and it then could be stressed that the laws shall be obeyed and implemented strictly and the offenders shall be held liable. Therefore, in the current international society as well as various aspects of human life, whether there is any treaty and how many treaties there are or even whether there has formed any system of treaties directly reflects 22 See

Li (2006). https://news.xinhuanet.com/english/2008-09/26/content_10116246.htm. October 2008. 23 See

Accessed

19

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the extent of rule of law therein. With the continuous enhancement of coexistence between States and ever-growing issues resulted from globalization, the normative and regulative functions of treaties have become increasingly important in promotion of peaceful interstate coexistence and resolution of challenges commonly confronted by the mankind. The similar importance of treaties to the rule of law at national level could not be neglected. However, it is regretted that such importance is often underestimated in reality, at least not stressed as equally as that at international level. There might exist a misunderstanding that the rule of law of a State lies in whether its national legislation is perfect in framework, observed and implemented effectively as well as its domestic adjudication is just and fair; whether the State has acceded to treaties or how many treaties to which it has acceded belongs to its foreign affairs and has nothing directly to do with its internal rule of law. Actually, if it’s rule of law reaches a high level, that State often uses its constitution, legislation and adjudication to recognize expressly that treaties or treaties concluded by it are part of its law, at least, having legally binding force as the same as its national law. What is more, there seems to be consensus in international community that how many treaties a State has entered into, especially whether it has acceded to those core treaties and conventions on protection of basic human rights, and these treaties and conventions have been effectively implemented domestically, all are the parameters to test the domestic rule of law in that State on the one hand and the popularity and effectiveness of rule of law at international level on the other hand. That is why the UN has been endeavouring to not only the codification of international law, but simultaneously to the motivation of acceding to international treaties by all the UM Member States. The UN Secretary-General launched a campaign during the Millennium Summit to promote the signature and ratification of, and accession to, treaties In May 2000, he wrote to all heads of State and Government inviting them to sign and ratify, or accede to a core group of 25 multilateral treaties that are representative of the objectives of the UN Charter and reflect the Organization’s key values. A booklet, entitled Millennium Summit—Multilateral Treaty Framework: An Invitation to Universal Participation, containing that letter and a list of the core treaties that are the focus of this campaign.24 These core treaties “have a profound impact on the lives and livelihood of individuals, as they relate to questions such as human rights, refugees and stateless persons, international criminal law, commodities, trade, transportation, the sea, disarmament and the environment”.25 Since the Millennium Summit 2000, The UN has launched the campaign in the annual sessions of the General Assembly, and in each year certain key subject matters are selected, mainly covering anti-terrorism, rights of women and children, protection of civilians, immigrants, refugees, transnational organized crimes, corruption, sustainable development, climate changes and biodiversity, etc. With the expanding and deepening of its Reform and Opening-Up Policy, China has been speeding up its vast participation of international treaties, symbolizing the new era of China in practicing international rule of law. From 1949 to 1977, there had 24 See

United Nations Secretary-General (2000), para.274. para. 275.

25 Ibid,

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been only 32 multilateral treaties participated by China, meaning at average roughly one treaty for each year. The subject matters concerned are as follows: 2 treaties in general international law, namely, the UN Charter, peaceful settlement of international disputes, privileges and immunity and law of treaties; 4 treaties on human rights, humanitarianism, labors and refugees; 4 treaties in areas of education, science, culture, sports and health; 18 treaties concerning maritime, transportation, civil aviation, postal service and telecommunication; 1 treaty related to sea, environment, fishery and polar; 2 in areas of disarmament, outer space and atomic energy; 1 for others. There had been no treaties acceded by China in areas of trade, finance, investment, customs, intellectual property and other economic matters, or in international private law.26 From 1978 to 2004, the number of multilateral treaties participated by China had reached to 239, averagely 9.1 a year.27 Since 2005, number of multilateral treaties signed, approved, acceded or accepted by China has been rising annually: 12 in 200528 ; 14 in 200629 ; 18 in 200730 (not including those applied in Hong Kong and Macao via the Chinese Central Government). In addition, China has concluded more than 17,000 bilateral treaties, agreement and other document of the same nature since 1978.31 Furthermore, there is no longer any treaty area missed by China.

16.2.6 Creative Settlement of Hong Kong and Macao Issues as Well as Other Disputes Peaceful settlement of international disputes is the one of the fundamental principles of international law as well as an important component and objective of international rule of law. As a universal practice, States have affirmed their commitments to this principle and established various methods, procedures and even mechanisms to make the principle operated by bilateral, regional and multilateral treaties. They even conclude specialized agreements on peaceful settlement of disputes in specific areas or on specific matters. In addition, that States set up specialized courts or tribunals and other agencies of the similar sort within respective international organizations has become an increasing practice in since the World War II. 26 This is the analytical result based on the information available in the webpage of the Chinese Ministry of Foreign Affairs. See https://www.fmprc.gov.cn/chn/wjb/zzjg/tyfls/tfsckzlk/zgcjddbty/ t70814.htm. Accessed 8 June 2008. 27 See ibid. 28 https://www.fmprc.gov.cn/chn/wjb/zzjg/tyfls/wjzdtyflgz/zgdwdjtyqk/t236465.htm. Accessed 8 June 2008. 29 https://www.fmprc.gov.cn/chn/wjb/zzjg/tyfls/tfsckzlk/zgcjddbty/t310143.htm. Accessed 8 June 2008. 30 https://www.fmprc.gov.cn/chn/wjb/zzjg/tyfls/tfsckzlk/zgcjddbty/t310143.htm. Accessed 8 June 2008. 31 See Duan (2006).

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China has always persisted in the principle of peaceful settlement of international disputes. Since the commencement of its Reform and Opening-Up Policy, China has resolved, by means of peaceful methods, some historical issues with other States concerned and trade and economic disputes which have been increasingly raised with other countries, thus contributing greatly to the maintenance of global and regional peace and security as well as the realization of international rule of law. First of all, beginning with the 1980’s, China opened negotiations with United Kingdom and then Portugal on the turnover of Hong Kong and Macao to China. And the transfer of sovereignty and governance of Hong Kong and Macao was realized in 1997 and 1999 respectively, thus setting up good examples to solve interstate historical disputes in international society. The key for the solution of issues over Hong Kong and Macao is the creative principle of “One Country, Two Systems” initiated by the late Xiaoping Deng who is crowned as the Chief Architect of the China Reform and Opening-Up Policy and which is accepted triple parties, namely, the China, the UK or Portugal and residents in Hong Kong or Macao. The creativeness of this new principle lies in that under this model China as a State, maintains its sovereignty and territorial integrity on the one hand and Hong Kong and Macao can govern themselves with high autonomy and their social and legal system as well as way of life can remain long unchanged on the other hand. This “One Country, Two Systems” model has been fixed in both in Chinese law and international law through a number of documents, such as Joint Statement between China and the UK, Joint Statement between China and Portugal, Hong Kong basic law, Macao Basic law. Secondly, China, after its continuous efforts, has gradually and appropriately settled boundary issues left in history with most of its neighboring counties and has been striving for peaceful resolution of unsettled issues concerning land boundaries, maritime delimitation and rights over certain sea areas with related neighboring States on the basis of mutual understanding, mutual accommodation and mutual adjustment. China is a country who possesses borderlines of over 22,000 km, the longest in the world and is neighboring with 14 counties, more than any other countries. Therefore, its border situation is one of the most complexes on the globe. In the 1960s, China concluded border treaties with Myanmar, Nepal, North Korea, Mongolia, Pakistan, Afghanistan. Beginning with the 1990s China further settled its border issues with Russia, Laos, Vietnam, Kazakhstan, Kyrgyzstan and Tajikistan. So far, China has signed border treaties or agreements with 12 neighboring countries, with demarcation of 90% border lines of the total length.32 The only two neighbors with whom China has not settled its land border issues are India33 and Bhutan. 32 https://news.sohu.com/20050831/n226833010.shtml.

Accessed 8 June 2008. Sino-Indian border is about 2000 km with disputed area of about 125,000 m2 and has never been officially designated. In the 1980s after the normalization of Sino-Indian relations, the two sides started to discuss the border issue. In September 1993 and November 1996 both sides signed the Agreement on Sino-Indian Border on the Line of Actual Control in Maintaining Peace and Tranquility and Agreement on China-India Border on the Actual Control Line in the Field of military Confidence-Building Measures. In 2003, the two countries appointed special representatives to

33 The

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China has more than 18,000 km of the coastline and about 6,500 islands. According to 1982 UN Convention on Law of the Sea, not only the waters under the jurisdiction of China have been expanded, but also those of its 8 other sea neighboring countries,34 thus unavoidably resulting in the overlapping jurisdictions between China and these maritime neighbors, especially over the specialized economic zones and continental shelves. In addition, the disputes over sovereignty of certain islands between China and some neighboring countries at sea remain unsettled. Confronting with these disputes, China has been persisting in promoting the peaceful settlement of delimitation of certain sea areas and sovereign claims of islands with sea neighboring countries by means of consultation under the principle of fairness and advocating the engagement of joint development of the disputed sea areas. So far great progress has been made in this regard. Just name a few examples as follows35 : (1) The Demarcation Agreement of the Beibu Gulf between China and Vietnam was signed on 25 December 2000 and came into force on 30 June 2004. This is the first agreement on delimitation of the maritime boundary between China and its neighboring country. (2) Mainly focusing on the delimitation of maritime zones and maritime cooperation issues in East China Sea and Yellow Sea. Since the delimitation of maritime zones is related to the vital interests of the countries concerned, one cannot expect the agreement could be reached shortly. Although the negotiations on the demarcation of the seas have not produced results, some interim arrangements have been made on cooperation of fishery and joint development of resources in the disputed sea areas. Recently, it is reported that China and Japan, through equal consultations on issues concerning the East China Sea, reached consensus in principle as follow: (1) to carry out cooperation in the East China Sea in the transitional period prior to the demarcation to be defined and without prejudice to the legal claims of both sides; (2) as a first step for the joint exploitation of the East China Sea, to define certain blocks to be developed jointly by both sides, the details of which will be settled down through consultation; (3) continue consultations for joint development as early as possible for other areas in the East China Sea; (4) to welcome the participation of Japanese enterprises in development of Chunxiao Oil and Gas Fields in accordance with related Chinese law.36 (3) Dialogue, consultation and cooperation for the South China Sea. In addition to China’s long and consistent claims its sovereignty over the whole South China Sea, all other countries (Indonesia, Philippines, Vietnam, Malaysia, Cambodia, Thailand and Singapore) surrounding the Sea has claimed the same over its negotiate political guiding principles for an agreement which was signed in 2006. However, so far, no further progress is reported. 34 Namely, North Korea, South Korea, Japan, Vietnam, the Philippines, Malaysia, Brunei, Indonesia. 35 https://www.fmprc.gov.cn/chn/wjb/zzjg/tyfls/wjzdtyflgz/zgzhyflydgz/t255489.htm. Accessed 9 June 2008. 36 https://news.xinhuanet.com/newscenter/2008-06/18/content_8394191.htm. Accessed 18 June 2008.

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various areas or islands therein since the 1970’s. The reasons behind are that the 1982 United Nations Law of the Sea allows for a country’s Exclusive Economic Zone to extend 200 nm (370.6 km) beyond territorial waters and there have been discovered rich resources in the Sea. In order to maintain the security over the Sea and even in the region related, China initiated in the mid-1980’s the basic principle of “shelving disputes and seeking common development” for Sea which has been accepted by all other States surrounding it. For years, china have lunched a number of bilateral dialogues and consultations with each of other related State and some specific cooperation projects have been developed as well with some of the neighboring countries, such as joint marine seismic undertaking, sea waves and storm surge forecasts cooperation, fisheries and marine environmental protection cooperation, etc. Multilateral cooperation in the areas of the South China Sea has also made great achievements. In 2002, China and 10 ASEAN countries signed the Declaration on the Conduct of Parties in the South China Sea, promising to jointly maintain the peace and stability in the South China Sea and resolve their differences by peaceful means and not to take actions which might make the dispute further complicated.37 Finally, with its fast growth and expansion of foreign trade and economic transactions, especially after its accession to the WTO, disputes therein have also been increasing. If they cannot be timely and effectively settled or inappropriately settled, the harms in which they would result will not only to the trade and economic interests, but also to the normal relations in general sense between China and its partners, even to the fairness of international economic order which is part of the international rule of law. Therefore, the Chinese government always highlights the resolution of its trade and economic disputes and has established or made appropriate use of various dispute settlement methods or mechanism with its trade partners. Some examples could be shown as follows: (1) Establishment of regular consultation mechanism with key trade partners. For instance, the China-US Joint Committee on Commerce and Trade (JCCT) was set up in 1983 as the top level bilateral economic and trade consultation mechanism between the two countries. Since 2003, top leaders of both sides decided to grade the JCCT up to the vice- premier level.38 So far the China-US JCCT has held 18 sessions which have been playing an irreplaceable function in resolving or reducing conflicts and promoting cooperation in trade and economic fields between the two sides.39 Another example is the China-EU Economic and Trade Mixed Committee which was established under 1985 China-EC Agreement on Trade and Economic Cooperation and has been a regular and main agency where 37 https://www.fmprc.gov.cn/chn/wjb/zzjg/tyfls/wjzdtyflgz/zgzhyflydgz/t255489.htm.

Accessed 9 June 2008. 38 https://big5.xinhuanet.com/gate/big5/news.xinhuanet.com/world/2005-07/12/content_3264648. htm. Accessed 10 June 2008. 39 https://www.china.com.cn/economic/txt/2007-12/11/content_9370337.htm. Accessed 10 June 2008.

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annual review of the trade and economic cooperation and consultation on resolutions therein is conducted. On 25 April 2008, commenced the first China-EU High-Level Dialogue which is co-chaired by the Chinese Vice-Premier and the EU Trade Commissioner and is to be held annually by rotation.40 The last but not the least is the China- Japan Economic Partnership Consultation which was first set up in 2002 and held annually by rotation.41 On 1 December 2007, the China-Japan High-Level Economic Dialogue was conducted for the first time and will be continued annually.42 (2) Taking advantages of the WTO Dispute Settlement Mechanism. Before its accession to the WTO, China could only seek for resolution of trade disputes with other countries through procedures, methods or mechanism fixed by related bilateral trade agreements. One of the advantages for China as a WTO Member is that it could use the WTO Dispute Settlement Mechanism as the additional or subsequent channel to deal with its trade and even some trade-related disputes with other WTO Members. For the past 7 years since it became a WTO Member, there have been 12 cases lodged within the WTO Dispute Settlement Mechanism, 10 of which targeted China as a defendant, and 2 of which targeted other WTO Members by China.43 (3) Establishment of dispute settlement suitable to Free Trade Areas. Soon after its accession to the WTO, China turned to negotiate FTAs with other countries and regions, a manifestation of its “dual tracks” strategy for development of foreign trade, that is, a parallel use of the WTO and the regional trade agreement (RTA). Since its first FTA with the ASEAN in 2002, China has signed FTAs with Chile (2005), Pakistan (2006) and New Zealand (2008). And there have been more than 20 countries either negotiating or exploring the feasibility of signing FTAs with China. One feature in those FTAs worthy of attention is that they all include operational and detailed, to some extent, dispute settlement clauses (e.g., China-Pakistan FTA, China-Chile FTA and China-New Zealand FTA), or even signing a separate specialized agreement on dispute settlement mechanism (e.g. China-ASEAN Agreement on Dispute Settlement Mechanism). Furthermore, these dispute settlement clauses or agreements embodied therein operational provisions of arbitration in addition to political or diplomatic methods such as consultation and negotiation, indicating an important signal that China is gradually altering its traditional policy towards the methods used to settle interstate disputes, namely, while persisting in political means as priority, China is no longer object to legal means as a subsequent selection to settle disputes in trade and economic areas. 40 https://news.xinhuanet.com/newscenter/2008-04/25/content_8052211.htm.

Accessed 10 June 2008. 41 https://news.xinhuanet.com/newscenter/2007-10/12/content_6872794.htm. Accessed 10 June 2008. 42 https://big5.xinhuanet.com/gate/big5/news.xinhuanet.com/newscenter/2007-12/01/content_7 181229.htm. Accessed visited 10 June 2008. 43 https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm. Accessed 10 June 2008.

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16.2.6.1

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A Great Promotion of Teaching, Spreading and Research of International Law in China

A fundamental prerequisite and guarantee to realizing the rule of law in international society is that all States as well as their peoples must possess a high consciousness and level of international rule of law. In order to strengthen the universal consciousness and raise the whole of this kind, it is imperative to promote the teaching, spreading and research of international law in all States. Just as the UN Secretary-General once pointed out, “As international law develops and affects ever greater areas of daily life and business, it will also increasingly affect the laws of each country. This reality imposes a special responsibility on lawyers and on those who educate and train them. International law can no longer—if it ever could—be considered an optional extra, in which lawyers may or may not be trained. To satisfy the demands of the rule of law, lawyers need to be familiar with international law, to be schooled in its methods and know how to research it when the occasion demands.”44 As a matter of fact, in its 1969 Resolution 2099(XX), the UN General Assembly, “Recognizing the need for the strengthening of the role of international law in international relations”, considered it necessary for the UN family to assist “Member States, in particular developing countries, in the training of specialists in the field of international law and in the promotion of the teaching, study and dissemination and wide appreciation of international Law” and decided to establish a Program of Assistance for this very purpose.45 In 1989, the UN General Assembly in its 44th Session declared by its Resolution 44/23 “the period 1990–1999 as the United Nations Decade of International Law” and to “encourage the teaching, study, dissemination and wider appreciation of international law” as one of the main objectives.46 Most recently, the Codification Division of the Office of Legal Affairs announced that the United Nations Audiovisual Library of International Law would be launched at a ceremony in the Sixth (Legal) Committee of the General Assembly on 28 October 2008.47 The dissemination of international law commenced late in China (after the Opium War in the mid-1880’s). In the first half of the twentieth century, teaching and study of international law in this country had been intermittent. From 1949 to the mid1960’s, teaching and study of international had been carried on gradually in the Chinese universities but this positive trend suspended suddenly. During the 10 years of “Cultural Revolution” legal education (of course including international law) had ceased in nearly all Chinese universities with only 3 exceptions (Beijing University, Jilin University and Hubei University). Since 1979, with the speedy restoration and 44 See

United Nations Secretary-General (2000). https://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/217/37/IMG/NR021737.pdf?Ope nElement. Accessed 10 June 2008. 45 https://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/217/37/IMG/NR021737.pdf?OpenEl ement. Accessed 10 June 2008. 46 https://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/561/71/IMG/NR056171.pdf?OpenEl ement. Accessed 10 June 2008. 47 See https://www.un.org/webcast/. Accessed 19 October 2008.

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development of its higher education, teaching, study and dissemination of international law in China has been entering into an unprecedented flourishing time, and China is becoming one of the most active countries in this specific respect. First of all, there has been forming a large scale of international law teaching, study and dissemination in China. It is officially reported that there are now 755 public universities and colleges48 with more than 600 setting up undergraduate bachelor of law programs.49 There are 14 cores courses for this undergraduate law programs required by the Ministry of Education, among which are public international law, international economic law and private international law. This might well illustrate the importance and popularity of international law in the bachelor of law programs in this country nowadays. If private and other forms of universities and colleges in China to be included in calculation, the scale of teaching and dissemination of international law deems to be much larger, to which no other countries might be compatible. Secondly, there have been established some training bases of specialists in international law. For 30 years of accumulation, a number of key universities have be able to offer students specialized elective courses on specific areas of international law, particularly new branches such as international of human rights, international environmental law, international criminal law, etc., in addition to the three compulsory core courses mention above. Furthermore, there have been around 100 faculties of law developing the program of master of international law, about 20 of which have Ph.D. programs and further 10 of which Post-Ph.D. programs in the area of international law. Nowadays China has set up its degree hierarchies in training specialists of international law. Last but not the least, there has been an ever-flourishing prospect in the research of international law. 30 years ago, there have been few books or journals specialized in international law in libraries and bookstores and if there any, either in very old editions or almost solely in Chinese, not to mention the holding of any international law conferences and establishment of international law society. Currently, the scene of vitality in the study of international law appears throughout the country: plenty of paper or electronic resources of international law in the National Library and libraries of key universities; Monographs and textbooks of international law of various kinds in bookstores; special journals or Articles on international law both in Chinese and English easily found in universities; establishment and activities of societies of international law not only at national level, but at local levels; frequent holdings of conferences, symposiums and seminars on advanced specific topics of international law, etc.

48 See

https://www.moe.edu.cn/edoas/website18/43/info1210056254488343.htm. Accessed June 2008. 49 According to information offered by a division head from the Chinese Ministry of Education at the Conference of the Legal Teaching Guidance Commission of the Ministry of Education held in Nanjing, China, 30 November 2007.

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16.3 Some Issues to be Coped with by China in Its Practicing International Rule of Law In spite of great progress achieved for the past 30 years, China has been facing increasingly challenges in its practicing international rule of law of which the Chinese government should have a timely understanding and appropriate responding strategy so that the process of rule of law in China could be kept on going not only in conformity with its national features as well as the tendency of rule of law at international level. For this very purpose this author would present some issues and relative suggestions which might arouse the further discussion among scholar or at best further actions by the government agencies concerned.

16.3.1 Challenges of Adaptation to Humanizing Tendency of International Law The humanizing tendency has been more and more obvious in contemporary international law, originating from law of war, humanitarian law and international law of human rights gradually to other sectors or fields, such as asylum and extradition, diplomatic protection, State responsibility, subjects of international law, international criminal law, international trade law, international protection of intellectual property rights, law of treaties and international justice, etc.50 Furthermore, democracy, basic human rights, rule of law and good governance at national and international levels have been affirmed as the core values and basic principles not only pursed by the developed countries and some regional organizations (such as the EU) in both their internal affairs or external relations, but also in the formation of contingent international law (such as 2005 World Summit Outcome and 2007 UN General Assembly Resolution on the Rule of Law at International and National Levels, etc.). Facing with the humanization of international law, the Chinese international legal lawyers have to update their re conceptions and theories of international law. In terms of the nature of international law, while insisting on its interstate features, the human nature both individually and as a whole of contemporary international law could be not neglected. In this context, the traditional views long dominated in the Chinese international law society, such as absolution of sovereignty, inseparability of sovereignty, non-recognition of individuals as subjects of international law and supremacy of sovereignty over human rights, etc., might need to be reviewed and adapted with some flexibility. Judging from the national image, it is of significance that China would take a more active attitude than ever before toward the humanization of international law. For instance, under the prerequisite of full consideration of its fundamental national

50 See

Zeng (2009), Meron (2006).

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interests, China should be more and more positively involved itself in those international agendas or proposals concerning human rights, international humanitarian actions, peace-keeping operations and post-conflict capacity-building of the rule of law in related country or region. In addition, considering there have been increasingly countries and regional organizations abolishing death penalty and implementing the policy of non-extradition, it is necessary for China to study the possibility of abolishing death penalty with caution; even currently it is not appropriate to do so, there might be possible to narrow the scope of death penalty. Furthermore, while ensuring the uniform and equal application of the Chinese Criminal Law, it might be practical and necessary for China to commit in negotiating treaties of extraction or judicial assistance with foreign countries that it would not use or execute the death penalty to the criminal extradited from the requested country even though the crime committed could be sufficiently or is to be sentenced to death according to the Chinese Criminal Law. In fact, there have been already clauses of the similar sort included in the ChinaSpain Extradition Treaty,51 China-France Extradition Treaty52 and China-Australia Extradition Treaty53 since 2006. This new practice might produce the “two birds with one stone” effect: it helps the Chinese government portray its positive image of adapting to the humanization of international law on the one hand and bring more easily those corrupt officials flee abroad back to be sentenced one the other hand. The two UN Human Rights Covenants are undoubtedly core manifestation of the humanizing international law. In general, whether a State accedes itself to the two Covenants is one of the basic standards in international society to test its level of the rule of law. China signed in 1997and 1998 respectively the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights and made its approval of the former in 2001. However, China has not yet approved the latter Covenant, raising increasingly criticism and pressures from the West. Therefore, it is becoming more and more emergent for China to make appropriate revisions to those provisions of its related national law (such as Re-education through Labor System, application of death penalty, etc.) which are in conflict with the Covenant, thus clearing the obstacles for its timely approval of the covenant.

16.3.2 Issues to Enhance China’s Status and Influence in International Legislation and Decision-Making Though China now participates in all important international organizations and international conferences under their auspices and its voices therein have been gradually 51 https://news.sina.com.cn/c/l/2006-04-29/13089751318.shtml.

Accessed 15 September 2008. Accessed 15

52 https://news.xinhuanet.com/newscenter/2008-04/24/content_8044444.htm.

September 2008. 53 https://news.xinhuanet.com/newscenter/2008-04/24/content_8044434.htm.

September 2008.

Accessed

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enhanced, yet it is far from the expectation in international society of China to be a responsible power. Generally speaking, China’s function and roles are greater in international political affairs (especially in peace and security) than in international economic, legal and social affairs. Though it is one of the five permanent Members in the UN Security Council, China has rarely important seats in main organs of other international organizations. So far there are roughly 500 Chinese international servants working in international organizations, meaning that averagely there is one Chinese servant for each international organization, which is not at all proportionate to its 1.3 billion people. Even further, with very few exceptions, the ranks of those Chinese servants are generally low. In addition, though it has participated in various committees or commissions drafting or codifying international law in specific areas or on specific topics, there are scarcely any Chinese representatives or experts designated as reporters or chairpersons. As for specific topics in codification, China rarely submits its initiatives, but mostly making some comments on the drafts or proposals made by others. Therefore, it is both an urgent task and a long way to go for China to raise its status in international legislation and decision-making and to enhance the reflection of Chinese interests, values and wisdom in the process of international rule of law.

16.3.3 Issues to Accept Jurisdictions of International Judicial Organs In the post-Cold War era, there have emerged two growing trends of international judicial agencies. One is the increasing in quantity of judicial organs. Firstly, a number of new ad hoc judicial or quasi-judicial tribunals have been established, such as International Criminal Tribunal for Former Yugoslavia, International Criminal Tribunal for Rwanda, Special Tribunal for Sierra Leone and Special Tribunal for Lebanon. Secondly, several new permanent courts or tribunals have come to be effective, such as International Tribunal for Law of the Sea, WTO Appellate Body and International Criminal Court of Justice. The other is the increasing in sense of cases submitted to international adjudications, either to the International Court of justice set up over 60 years ago, or to the newly established international tribunals in recent years. Such a tendency shows that international rule of law has been entering into a new era in which international actors more and more make use of international adjudication to effectively implement the principle of peaceful settlement of disputes, to forcefully punish gross international crimes and to realize international judicial justice at the maximum, thus laying a more solid foundation for the sustained world peace and development. China has long advocated and actively used friendly consultation and negotiation to seek for the settlement of international disputes. For the past decades, there have been more Chinese to be elected as judges in some international judicial or quasi-judicial organs, such as in the ICJ, International Tribunal for Law of the Sea,

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WTO panels an Appellate Body and International Criminal Tribunal for the Former Yugoslavia, etc. However, China has neither accepted the optional compulsory jurisdiction by statement,54 nor submitted any case by way of special agreement to the ICJ. Furthermore, in general, China would make reservations to the clauses referring to the ICJ any dispute arising from interpretation and application of treaties concerned to which China would accede.55 As for the new International Criminal Court of Justice, China has not participated yet,56 but repeatedly expresses its support for establishing an independent, fair, effective and universal international criminal court to punish the gravest international crimes; it recently participated as an observer in the Sixth Session of Conference of the Contracting Parties to the Statute from 30 November to 12 December 2007.57 A number of trends as follows might be worthy of special attention. At the World Summit celebrating the 60th anniversary of the UN, State leaders “Recognize the important role of the International Court of Justice, the principal judicial organ of the United Nations, in adjudicating disputes among States and the value of its work, call upon States that have not yet done so to consider accepting the jurisdiction of the Court in accordance with its Statute”.58 In 2007 the UN General Assembly in its Resolution on the Rule of Law at International and National Levels again calls upon “States that have not yet done so to consider accepting the jurisdiction of the International Court of Justice in accordance with its Statute”.59 As of 18 July 2008, already 108 countries have become the Contracting Parties to the Statute of International Criminal Court of Justice,60 and number could be expected to increase in the near future. Simultaneously, the EU and some States have been using bilateral occasions to aggressively call for China to accede as early as possible to the Rome Statute.

54 There are 65 States accepting the compulsory jurisdiction of the ICJ. See https://www.icj-cij.org/

jurisdiction/index.php?p1=5&p2=1&p3=3. Accessed 13 June 2008. to statistics concerned, there are 430 conventions containing clauses referring disputes related to their interpretation and application to the jurisdictions of the ICJ (until 2002). See https://www.nationsencyclopedia.com/United-Nations/The-International-Court-of-Jus tice-COMPETENCE-AND-JURISDICTION-OF-THE-COURT.html. Accessed 13 June 2008. 56 On 11 July 2002 at the Press Conference in Beijing, the spokesman of the Chinese Ministry of Foreign Affairs explained reasons as follows: China holds that the relevant provisions of the Statute did not strictly follow the principle of complementarity, that may affect national judicial systems to the jurisdiction of the crime; the Statute also did not resolve the crime of aggression, especially no provision as to the power of the Security Council for determining acts of aggression in accordance with the UN Charter; the Statute is lack of necessary checks and balances for the Prosecutor’s self-investigation powers, likely to cause abuses of prosecuting powers. See https://sydney.chines econsulate.org/chn/xwdt/t41981.htm. Accessed 13 June 2008. 57 https://www.fmprc.gov.cn/chn/wjb/zzjg/tyfls/wjzdtyflgz/zgyyggjjghgjhy/t405160.htm, visited 13 June 2008. 58 United Nations General Assembly (2005). 59 United Nations General Assembly (2008). 60 https://www.icc-cpi.int/statesparties.html. Accessed 15 September 2008. 55 According

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In the international context mentioned above, it seems to be necessary for China to think of the adjustment of its traditional policy toward international judicial adjudication. And with the fast enhancement of its national forces and the rule of law, time seems to be maturing for China to make such adaptation. Specifically, China might consider the flexibility of making reservations to the clauses referring to the jurisdictions of the ICJ in international treaties and not totally exclude the jurisdictions of the ICJ for low sensitive matters based on special agreements between China and the other party concerned. As for the optional compulsory jurisdictions of the ICJ, it might not be hurry for China to take positive actions since so far less than one-third of the UN Member States has made their acceptance. In addition, China might consider conditionally its accession to the Rome Statute, that is, committing that once the Contracting Parties of the Statute resolve the issues of strict respect for the principle of “supplementarity”, definition of the “crime of aggression” and prevention the Prosecutor from possible abuses of powers, China will commence the procedures of its accession.

16.3.4 Necessity of Further Perfection of Normative System in Its External Relations One of the fruit cores representing the great achievements of the rule of law in China for the past 30 years lies in the continuous perfection of its legal system including its legislations for external relations. Firstly, the Constitution of China, though several times of revisions, explicitly stipulates the guidelines and principles the Chinese foreign policies and State and government organs and their respective competences to implement them. Secondly, there have been a growing number of legislations, statutes and regulations containing special clauses providing the application and effect of the treaties and international customs in related sectors or areas. Thirdly, there have been enacted a number of legislation, statutes or regulations specially in the area of external relations, such as the Procedural Law of Concluding Treaties, Foreign Trade Law, Regulation on Diplomatic Privileges and Immunity, Regulation on Consular Privileges and Immunity, Regulation on Foreign Trade Management, Regulation on Management of Export and Import of Goods, Regulation on AntiDumping Measures, Regulation on Countervailing Measures, Regulation on Safeguards, etc. Last but not the least, by adopting the two Basic Laws, China manifests divisions of areas, competences and coordination between the Central Government and Hong Kong and Macao in external relations. However, we might recognize that the status quo of the legislation in external relations does not totally meet the needs of the fast development of China’s external intercourses and cooperation and its status and responsibility in international affairs. Therefore, this author proposes some further improvement as follows. Firstly, the present Constitution might need to be further revised appropriately. It is necessary and maturing for China to make clear in its Constitution that international

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law in general or treaties and international customs are part of Chinese law or have the equal legal effect as the latter. Whether a State in its constitution expressly defines the legal status and effect of international law might be regarded to some extent as one of the important reflections, at least as a formal signal, of whether it highlights the international rule of law. Nowadays, developed countries as well as many developing countries have done so in this way and even some medium-sized or small developing countries follow this example. Since it is not a non-case-law country and quite a number of its domestic law are silent on the status and effect of treaties and international customs, it is particular important for China clarify the status and effect of international law domestically though the general provision of this supreme law. As a substitute for revision of the Constitution, some existing sectoral legislations need to be improved. Concrete speaking, it is suggested that the Chinese legislators should within 5 years or so complete a thorough review of its existing legislations and make sure that they all have respective provisions regarding the status and effect of the treaties of which China is party and of international customs. Furthermore, it should ensure that new legislation should explicitly contain clauses of this kind. Finally, it might be necessary for China to fill up some gaps of legislation in the area of its foreign relations. For instance, foreign assistance has long been an important component of China’s foreign policies, but there is no single domestic law touching the subject matter, neither any mention of this aspect in other laws. In order to ensure the normalization, certainty and transparency of decision-making and implementation of its foreign assistance and consistency with the multilateral assistance programs under the international organizations and even to avoid the misunderstanding and groundless accusation by some developed countries, it is wise for China to study the possibility of enacting a special Chinese Foreign Assistance Law.61 The main contents of this new Law might include objectives, guidelines and principles of China’s foreign assistance, definition and classification of its foreign assistance, qualifications and conditions for recipient countries, organs of foreign assistance and their competences and procedures, plans-making and their implementation of foreign assistance, reports and surveillance of foreign assistance, relationship between China’s foreign assistance with multilateral assistance programs within international organizations, etc.

16.3.5 Transformation of the Mass-Scale Model to the Elite-Oriented Model in Training Chinese International Legal Professionals Another important determinant of the level of international rule of law in a State is the number and quality of international legal professionals it owns. Though, as mentioned above, it has been developing fast in its higher education including the 61 See

Fan Wang (2006); Meibo Huang (2007).

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teaching of international law and there have been growing number of international legal professionals both in quantity as well as in quality to some extent, the quality, as a whole in china, of professionals in this special area is not adequately high. There have been few international lawyers or scholars who are able to be recognized internationally. The number of Chinese international legal scholars who could have its articles or monographs published in the world well-known journals or by the world prestigious presses in obviously disproportionate to the large number of its international legal scholars. The late well-known Chinese professor of international law once exclaimed that “the research of international law cannot be compatible not only to the west developed countries, but also to the medium-sized countries, Egypt, India.”62 Therefore, this author would suggest that it is urgent for China to make change of its training model of international legal professionals, that is, from the expansionoriented road (or scale-pursued development road) that has passed through 30 years toward the elite-oriented road, at least in certain elective universities which are best in training resources throughout the country. To make this transformation into reality, this author would further suggest 3 points as follows: First and foremost, the Chinese government should establish a nation-wide special elite pool of international law. In doing so, focus should be put on those who have systematic schooling and working experience in international law areas both at home and abroad, especially those still working abroad; if possible, special measures should be taken trying to recruit them to work as heads or high-level counsels of divisions in charge of international legal affairs and recommend them to work in international organizations. Secondly, while continuously enhancing with intensive finance those universities where the national key international law programs and research bases are established, the government agencies concerned should set up an overall national strategy for those universities to be implemented and the latter is obligated to work out and submit respective elite training and fine research outcome plans. Last but not the least, the government should establish a special quality assurance assessment mechanism for the elite training and research of international law in China, that is, a truly international assessment mechanism. The reason is simple. Though the teaching and study of international law in each country unavoidably bears its national characteristics, international law as a legal science is of international nature in essence. If the assessment agency is composed of foreign professionals in this area who will conduct the evaluation in accordance with international standards, the whole assessment must be more objective, persuasive and authoritative than that of the Chinese assessment agency. It is the belief of this author that only in those ways suggested above, the teaching, study and dissemination of international law could be integrated into the advanced level globally, the elite of Chinese international legal professionals could be portrayed with advanced international standards and recognized internationally and the capacity-building of international rule of law in China could be sustainable. 62 https://www.china.com.cn/chinese/feature/288744.htm.

Accessed 15 June 2008.

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References Duan J (2006) Statement on the rule of law at the national and international levels. Sixth Committee of the 61st Session of the UN General Assembly, New York. https://www.fmprc.gov.cn/chn/wjb/ zzjg/tyfls/lcybt/t283190.htm. Accessed 7 June 2008 Goldstein BL, Anderson SJ (2002) Foreign contributions to China’s WTO capacity building. https:// www.chinabusinessreview.com/public/0201/goldstein.html. Accessed 8 June 2008 Hu J (2005) Build towards a harmonious world of lasting peace and common prosperity. Written speech at the high-level plenary meeting of the United Nations’ 60th Session, New York. https:// www.fmprc.gov.cn/eng/wjdt/zyjh/t213091.htm. Accessed 2 June 2008 Hu J (2007) Hold high the great banner of socialism with Chinese characteristics and strive for New Victories in building a moderately prosperous society in all respects. Report to the Seventeenth National Congress of the Communist Party of China, Beijing Hu J (2008) Promote universal development to achieve common prosperity. United Nations 60th anniversary summit meeting of the high-level meeting on financing for development, New York. https://politics.people.com.cn/GB/1024/3696504.html. Accessed 8 June 2008 Huang M (2007) China’s foreign assistance mechanism: current situation and tendency. https://info. feno.cn/2007/110103/c000072227.shtml. Accessed 15 June 2008 Li R (2006) China’s foreign assistance and promotion of world harmony. https://www.china.com. cn/xxsb/txt/2006-08/08/content_7064778.htm. Accessed 8 June 2008 Meron T (2006) The humanization of international law. Martinus Nijhoff Publisher, Leiden UN General Assembly (2005) 2005 World Summit Outcome (U.N. Doc. A/RES/60/1) UN General Assembly (2008) The rule of law at the national and international levels (U. N. Doc. A/RES/62/70) UN Secretary-General (2000) Report of the secretary-general on the work of the organization (U. N. Doc. A/55/1) Wang F (2006) China should has its own foreign assistance law. https://www.zaobao.com/special/ forum/pages3/forum_lx060803b.html. Accessed 15 June 2008 Wang G (2008) Globalizing the rule of law. Indian J Int Law 48(1):21–44 Zeng L (2009) Humanizing tendency of contemporary international law. Front Law China 4(1):1–30 Zhao Q (2008) Active roles played by china in settlement of international hot issues. https:// www.ciis.org.cn/index-news.asp?NewsID=20080429083225526&d=5&classname=%CA% B1%CA%C2%C6%C0%C2%DB&classid=10. Accessed 7 June 2008

Chapter 17

Conceptual Analysis of China’s Belt and Road Initiative: A Road Towards a Regional Community of Common Destiny

17.1 Introduction The idea of jointly building the Silk Road Economic Belt and the twenty-first Century Maritime Silk Road (the Belt and Road)1 is based on the historical, empirical and practical considerations by the Chinese government. Historically, The Silk Road began thousands of years ago and has lasted ever since. Empirically, the Silk Road Spirit of “peace and cooperation, openness and inclusiveness, mutual learning and mutual benefit” has passed from generation to generation, promoted the progress of human civilization, and contributed greatly to the prosperity and development of the countries along the Silk Road, as pointed out in the preface of the Vision and Actions on Jointly Building Silk and Road Economic Belt and twenty-first Century Maritime Silk Road (the Belt and Road Initiative).2 Practically, there are three dimensions in the mind of the top Chinese leaders. Firstly, theme of the current century is almost the same as that of the Silk Road in history, namely, “peace, development, cooperation and mutual benefit”. Secondly, the international and regional situations faced by all countries have become more and more complicated. Thirdly, the recovery of global 1 The Silk Road Economic Belt focuses on bringing together China, Central Asia, Russia and Europe

(the Baltic); linking China with the Persian Gulf and the Mediterranean Sea through Central Asia and the Indian Ocean. The twenty-first-Century Maritime Silk Road is designed to go from China’s coast to Europe through the South China Sea and the Indian Ocean in one route, and from China’s coast through the South China Sea to the South Pacific in the other. 2 Vision and Actions on Jointly Building Silk and Road Economic Belt and twenty-first Century Maritime Silk Road, jointly released by the National Development and Reform Commission, Ministry of Foreign Affairs and Ministry of Commerce with the authorization of the State Council, the People’s Republic of China on 28 March 2015, available at: https://news.xinhuanet.com/eng lish/2015-03/28/c_134105435.htm. Accessed 17 April 2015. The Article was originally written by Prof. Zeng in English, and published in Chinese Journal of International Law, 15(3), 2016, pp. 517–541.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_17

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economy has been weak and slow since the financial crisis began in 2008. Therefore, the Belt and Road is created as a new strategy to carry forward the spirit of the ancient Silk Road, and cope with international political, economic and social challenges in the world of globalization and global governance. The Belt and Road proposal was first initiated by the Chinese President Jinping Xi during his visits in the Central Asia and Southeast Asia in September and October of 2013. In November of the same year the Third Plenary Session of the 18th Central Committee of the CCP called for accelerating infrastructure links among neighboring countries and facilitating the Belt and Road Initiative. In March 2014, Premier Li Keqiang reaffirmed accelerating Belt and Road construction in his annual government work report the Chinese People’s National Congress; at Beijing APEC meetings in November, President Xi announced that China will contribute 40 billion US dollars to set up the Silk Road Fund and the fund to provide investment and financing support for infrastructure, resources, industrial cooperation, financial cooperation and other projects in countries along the Belt and Road; in December the Economic Work Conference of the CCP sketched out priorities for the coming year, which include the implementation of Belt and Road strategy. On 28 March 2015, after President Jinping Xi highlighted the strategy at the opening ceremony of the 2015 annual conference of the Boao Forum for Asia (BFA), the formal the Belt and Road Initiative as mentioned in the beginning was made public.3 For the past year and half, especially after the announcement of the Belt and Road Initiative recently, discussions and comments on the Belt and Road Initiative have been carried on in various circles both at home and abroad, such as politicians, diplomats, scholars of international relations, economists, journalists, jurists and sociologists, etc. Each circle has been trying to understand this newly proposed strategy in terms of his or her professional observation. However, before the Chinese official document Vision and Actions was made public, all comments and explanations had been made largely on assumption except for some sporadic empirical examples.4 At present, although the Belt and Road is roughly designed and its building is just at very beginning, we can still expound its theoretical and practical implication from legal perspectives mainly in accordance with this official Chinese document available and some concrete actions adopted so far. The first section below tries to make analysis of the Silk Belt and Road in contrast to existing regional integration. Discussions in the second section will focus on the comparison of Belt and Road with international partnership arrangements. The further comments on Belt and Road 3 Xinhua News, Chronology of China’s Belt and Road Initiative, 28 March 2015, available at: https:// news.xinhuanet.com/english/2015-03/28/c_134105435.htm. Accessed 17 April 2015. 4 For instance, in October 2013, President Xi in his speech at the Indonesian parliament proposed establishing the Asian Infrastructure Investment Bank (AIIB) to finance infrastructure construction and promote regional interconnectivity and economic integration. During the Beijing APEC meeting in November 2014, Xi announced that China would contribute 40 billion US dollars to set up the Silk Road Fund to be used to provide investment and financing support for infrastructure, resources, industrial cooperation, financial cooperation and other projects in countries along the Belt and Road. See Bai (2014).

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will be set within the framework of the new conception of “Community of Common Destiny”. Finally, the author intends to make a preliminary summary assessment of the Belt Road in the context of global governance as a conclusion.

17.2 The Belt and Road in the Perspective of Regional Economic Integration 17.2.1 Legal Definition and Hierarchy of Regional Integration The theory of integration has gradually become popular among scholars of international relations, economics and jurists of regional studies since the end of the World War II. There exist two different views concerning the origin or integration. One view is that the development from city States in the Middle Ages to modern sovereign States had been the remark of integration in international relations and its theoretical evidence originated from the political thoughts of Thomas Aquinas and others in that time; the other view is that integration started with the German Customs Union in the mid-19 century and it originated directly from economics.5 Nevertheless, contemporary integration commenced in Europe after the World War II, such as the Marshall Plan, OEEC (currently the OECD), NATO, Warsaw Treaty Organization, Council of Europe, Comecon, Shuman Plan, ECSC, EEC, EURATOM, EFTA, EU, etc. Nowadays, various patterns of regional integration spread all over the world. Talking of integration, it often refers to economic integration. However, it may also mean integration initiative or movement in political, military and social fields or sectors. Furthermore, in accordance with neo-functionalism,6 in spite of regional dimension, integration may also present at global level, such as the WTO, the IMF and other UN specialized agencies. The concept of integration often refers to some forms of cohesiveness between states in economic, social and even political fields at regional level, while worldwide cohesiveness or cooperation either in specific areas or in comprehensive fields is largely put into the intercourses of globalization. Furthermore, talking of either regional integration or globalization, the thematic concentration deems to be economic area and its related fields. Then, how to define economic integration, especially in legal sense, and what main features and trends it presents? According to the free encyclopedia of Wikipedia, economic integration is the unification of economic policies between different states through the partial or full abolition of tariff and non-tariff restrictions on trade taking place among them prior to their integration. This is meant in turn to lead to lower prices for distributors and consumers with the goal of increasing the combined 5 Peter

(1966), Pescatore (1974). (1988), Claude (1971).

6 Caporaso

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economic productivity of the states.7 As a legal form of economic cooperation between states or entities related, regional economic integration may be conducted in various types in terms of cohesiveness. The most popular type of regional economic integration is free trade areas in which participants remove trade barriers in goods between them, such as tariffs and all kinds of non-tariff barriers, as well as liberalization or at least facilities of trade in services between them. For instance, the European Union’s integration started with free trade area between its original six Member States (Belgium, France, Germany, Italy, Luxembourg and the Netherlands). Another influential FTA is the North American Free Trade Area among the Canada, Mexico and the US (NAFTA) established in 1994. The higher regional economic integration takes the legal form of customs union, by which participant states or entities not only establish the FTAs between themselves, but also implement the common external tariff rates towards the thirty countries. In history the German Customs Union in mid-nineteenth century was the first of this kind while the customs union within the EU established in 1968 is by far the largest in the world. Within the framework of the WTO regime, agreements establishing free trade areas and customs unions including the interim arrangements of both forms are categorized as regional trade agreements,8 while regional arrangement of trade in services is defined in the GATS as “regional integration”.9 In addition, preferential trade agreements (PTAs) between developed countries and developing countries and between the latter themselves, including the Generalized System of Preferences (GSP)10 are also part of RTAs.11 RTAs, as the largest exception of the principle of most urozo-nation treatment (MFN) in the WTO are subordinated to notification by participants concerned to the WTO secretariat and especially the review mechanism of WTO Committee on Regional Trade Agreements, although so far such mechanism has been proved to be not effective in practice as predicted. Common market is considered even higher than the customs union in the process of economic integration, in which the participants through mutual agreement aim at free movement of labor and capitals in addition of free movement of goods and services. 7 See

https://en.wikipedia.org/wiki/Economic_integration#cite_note-5. Accessed 23 April 2015. Agreement on Tariff and Trade (GATT 1994), Article 24. 9 General Agreement on Trade in Services (GATS), Article 5. 10 See the three main variants (arrangements) of the current EU GSP scheme, available at: https://ec.europa.eu/trade/policy/countries-and-regions/development/generalised-schemeofpreferences/index_en.htm. Accessed 26 April 2015. 11 GATT Contracting Parties (1979), World Trade Organization Secretariat (2000). Mercosur is composed of 5 sovereign member states: Argentina; Brazil; Paraguay; Uruguay; and Venezuela. Its associate countries are Chile, Bolivia, Colombia, Ecuador and Peru. Its purpose is to promote free trade and the fluid movement of goods, people, and currency. But so far it is a full customs union and a trading bloc rather than a common market. Wikipedia, the free encyclopedia, available at: https://en.wikipedia.org/wiki/Wikipedia, accessed 24 April 2015. Wikipedia, the free encyclopedia, available at: https://en.wikipedia.org/wiki/Economic_and_monetary_union. Accessed 26 April 2015. 8 General

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Furthermore, they also seek for a number of common policies, such as common commercial policy, common agricultural and fishery policy common competition policy, common environmental policy, common science and technology, and even common social policy. The European Union is undoubtedly again the biggest and most outstanding Common Market in the world which was declared to be completed by the end of 1992. Another important Common Market but less influential is the South Common Market (MERCOSUR).12 Economic and monetary union is at the top level in the hierarchy of regional economic integration. A pure monetary union only establishes a single currency and does not implement customs union and common market, such as Latin Monetary Union in the nineteenth century) and Belgium-Luxembourg Monetary Union (1922–2002), superseded by the European Monetary Union. An economic union contains two core elements based on customs union and common market, namely, the establishment of a single currency zone and a uniform central bank with a uniform fiscal policy. Currently the sole complete economic union is the EU with the Euro as its single currency and urozone as its coverage of territory. Other proposed economic unions include Economic and Monetary Community of Central Africa (CEMAC), West African Economic and Monetary Union(UEMOA), Gulf Cooperation Council (GCC), East African Community (EAC), Caribbean Single Market and Economy (as part of the CARICOM), Southern African Customs Union (SACU), Southern African Development Community (SADC), South Asian Association for Regional Cooperation, Union of South American Nations (UNASUR), Economic Community of Central African States (ECCAS), Economic Community of West African States (ECOWAS), African Economic Community, Union State of Russia and Belarus, Arab League, etc.13

17.2.2 Debates on Advantages and Disadvantages of Regional Integration The debates on advantages and disadvantages on regional integration have been as long as its history, especially in economic circle. Recently, a senior World Bank economist identified advantages of regional integration (largely referred to RTAs) in terms of traditional gains and non-traditional gains.14 12 Mercosur

was established in 1991 by the Treaty of Asunción, which was later amended and updated by the 1994 Treaty of Ouro Preto. Mercosur is composed of 5 sovereign member states: Argentina; Brazil; Paraguay; Uruguay; and Venezuela. Its associate countries are Chile, Bolivia, Colombia, Ecuador and Peru. Its purpose is to promote free trade and the fluid movement of goods, people, and currency. But so far it is a full customs union and a trading bloc rather than a common market. Wikipedia, the free encyclopedia, available at: https://en.wikipedia.org/wiki/Wikipedia. Accessed 24 April 2015. 13 Wikipedia, the free encyclopedia, available at: https://en.wikipedia.org/wiki/Economic_and_mon etary_union. Accessed 26 April 2015. 14 Niekerk (2005).

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Traditional gains achieved by participants of RTAs mainly include: (1) trade creation, that is, increasing trade between participants, especially if good and services between them are strongly sufficient substitutes for exports; (2) inducing competition of trade and investment both inside and outside the regional integration concerned; (3) driving down exporting prices of third parties, thus reducing internal consuming prices; (4) promoting economic growth of the participants; (5) raising living standards of the people in the region concerned. Non-traditional gains resulting from regional integration might be called a sort of spilled-out advantages. They could be manifest in multiple dimensions. First and foremost, regional integration could bring about and lock in to domestic economic, social and even political reforms, if necessary. For instance, in order to meet with the rules or standards embodied in the RTAs, contacting parties have to abolish its tariff and non-tariff barriers to imports and exports for each other, simplify their customs formalities. They may also need to enact or revise their domestic law concerning preferential treatment of pre-investment and post-investment for each other. They my further need to adjust their industrial and agriculture policies and make these policies transparent and predictable. Finally, they may be required to establish complete judicial system and arbitral agencies, providing legal remedies for both domestic and foreign traders and investors, etc. No less important spilled-out gain of the regional integration lies in its political significance. Firstly, it may cause sustained domestic social stability supported by the economic prosperity and social welfare resulting from the process of integration. Secondly, it could enhance the unity of contracting parties, strengthening their sense of security. Human history has repeatedly told that national security is the very first foundation of regional and international security. In the era of globalization, national security cannot be maintained solely by one state’s on political and military forces. It must also rely on its rich economic basis which to a great extent could be sustained by regional integration. This is particular true for a region consisting of small countries or economies. For instance, there exist more than 40 Sahara African countries; they are small in size, weak in economic, poor and unstable in society, in spite of their political independence. Therefore, the best way out for their sustainable security and development is by formulating their own regional integration,15 in addition to all kinds of international aids and cooperation. Thirdly, regional integration not only can minimize the possibility of conflicts between the contracting parties, thus helping the maintenance of regional peace and security, but also help to coordinate their policies and formulate their international collective bargaining power as blocs in international negotiations, such as in the UN, WTO and various specialized agencies. Opponents and even neutralists have constantly revealed the disadvantages brought about by regional integration. Such disadvantages could be sorted out mainly from different perspectives as follows:

15 See

Niekerk (2005).

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17.2.2.1

311

Economic and Trade Disadvantages

Opponents often criticize that regional integration as matter of fact does not result in trade growth but rather trade diversion. This is especially true of RTAs signed between nations with relatively small economies short of foreign trade and investment. On the one hand, RTAs may increase trade between the contracting parties or within the region; on the other hand, they may decrease their trade with the third parties or outside the region, because third parties cannot enjoy the preferential treatment of zero tariffs and non-tariff barriers as the contracting parties of RTAs. If the grade lost from third parties is greater than the trade gained from contracting parties through RTAs, the result may well be called as “trade diversion”.16

17.2.2.2

Negative Effect on Competition

Preferential trade arrangements within RTAs may encourage sales and services by contracting parties to displace goods and services from third parties even though the latter’s goods and services are superior in quality and lower in cost.17 As a result, the practice of RTAs may sacrifice the interest of producers and consumers within the region. Furthermore, it is contrary to the economic theory of comparative advantage and harmful to the principle of fair competition. In a word, it infringes the law of market economy.

17.2.2.3

Disadvantages Towards Multilateral Trading System

Regional trade agreements have become increasingly prevalent since the early 1990s.18 From that time on, “spaghetti bowl effect or crisis” has been widely used by scholars to describe a phenomenon of proliferation of RTAs.19 Now, all WTO Members, except of Mongolia, have involved themselves in the spaghetti bowl of various forms or RTAs, such as bilateral or regional free trade areas, customs unions, common markets and monetary and economic unions. Many scholars contend that 16 Harrison

et al. (2003). and Ornelas (2010). 18 As of 7 April 2015, some 612 notifications of RTAs (counting goods, services and accessions separately) had been received by the GATT/WTO. Of these, 406 were in force. These WTO figures correspond to 449 physical RTAs (counting goods, services and accessions together), of which 262 are currently in force, available at: https://www.wto.org/english/tratop_e/region_e/region_e.htm. Accessed 17 April 2015. 19 The term was first used by Jagdish Bhagwati in his 1995 paper “US Trade Policy: The Infatuation with Free Trade Agreements”. Subsequently, Bhagwati has used the term on various occasions in describing a problem of FTAs. He named it the Spaghetti Bowl Effect. When applied specifically to trade among Asian nations, the effect is sometimes called the “noodle bowl effect”, see “The noodle bowl: why trade agreements are all the rage in Asia”. The Economist, 3 September 2009, available at: https://www.economist.com/asia/2009/09/03/the-noodle-bowl. 17 Freund

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the fast growth of RTAs has disrupted the equilibrium between multilateralism and regionalism established under the GATT 1994. They claimed that this disruption in equilibrium has caused world trade to become fragmented.20 The negative effect of this spaghetti bowl phenomenon can be manifest in different ways. Firstly, it may undermine the very purpose of the WTO, that is, international liberalization of trade in goods and services. Although RTAs can make trade flow freely within the region or between contracting parties, such a freedom is of little significance at global level because their trade obstacles to excluded countries remained the same. Secondly, RTAs are discriminatory in nature and their wide spreading is contrary to the original intent of the multilateral trade system. Most-favor-nation treatment (MFN) is designed as the first wing of the fundamental principle of non-discrimination (the other wing is national treatment) and ought to be applied generally and automatically by WTO Members, while RTAs or regional integration only have their legal status as exceptions. With the fast and increasing proliferation of RTAs, the principle of MFN has been fading away21 in practice, while the expanding volume of RTAs has turned to be general in reality. Thirdly, RTAs discourages the progress of the multilateral trade system, especially the outcome of Doha Round. 15 years have passed, but the curtain of Doha Round still could not put down, which hurts the image of the WTO and impedes the regulatory development of international development. There have been complex of reasons for the setback of Doha Round, but the shifting enthusiasm of WTO Members, especially those key Members, from multilateral trade negotiations to bilateral and regional RTAs is part of the incentives.

17.2.2.4

Fragmentation of Trade and Trade-Related Regulatory Norms

Within the WTO there is a multilateral agreement on rules of origin, aiming at the global harmonization in this dimension. However, proliferation of RTAs results in obstacle in the process of this harmonization. In practice, each RTA may have its own rules of origin. Exports of both participants and non-participants have to meet different rules of origin, even though the exported goods are the same. Therefore, producers have to bear additional compliance costs.22 In addition, some RTAs in recent years contain chapters or Articles on labor, health, environment and intellectual property rights, which are inconsistent with the current WTO policy or agreements concerned. For instance, the Jordan-US RTA explicitly links trade and labor and overrides the TRIPs concerning pharmaceutical products.23

20 Cho

(2006), p. 40. (2011). 22 Cho (2006), p. 69. 23 Ibid. 21 Powell

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17.2.3 Tendency of Regional Integration in Recent Years The sustained debates on regional integration have never sabotaged the fast development of regional integration scattering in all over the world. In spite of the quantitative increase, new types of RTAs concluded in recent a few years or under negotiations are worthy of special attention. The so-called “environmental RTAs” is the most attractive type of RTAs.24 According to the report by the OECD Joint Working Party on Trade and Environment, RTAs negotiated in the past few years by the most OECD members include some type of environmental provisions and the scope and depth of environmental provisions in RTAs varies significantly. Some RTAs make a prior assessment of its potential environment impacts before concluding RTAs, while quite a number of RTAs include provisions on environment in the body of the RTAs, either by special Articles or by detailed chapters. In addition, some RTAs contain a general provision on environment and detailed provisions in this aspect are elaborated in a side agreement. The core elements of this new type of RTAs include escape clause in provisions on trade, provision of new cooperative mechanisms or manners, such as transfer to technology, and enhancement of provisions concerning climate-friendly trade in goods and services, including encouragement of developing clean energy.25 In spite of this new tendency, so far, the number of “environmental RTAs “remain relatively small. Most RTAs between developing countries exclude any provision on environment. These countries consider the appropriate way to deal with transnational environmental issues is not by RTAs but by specialized thematic bilateral, regional and multilateral agreements on the matter. However, it is not to be neglected that developed countries tend to push the “environmental RTAs” in their negotiation of new RTAs with developing countries.

17.2.4 Comparative Analysis of Belt and Road with Regional Integration Judging from its geographical coverage, the Belt and Road seems to be within the conception of regional integration. According to the Initiative, the Belt and Road is composed of two parts. The first part is called the “Silk Road Economic Belt” which brings together China, Central Asia, Russia and Europe (the Baltic), linking China with the Persian Gulf and the Mediterranean Sea through Central Asia and West Asia and connecting China with Southeast Asia, South Asia and the Indian Ocean. The Second part is called “Twenty-first Century Maritime Silk Road” which is designed to go from China’s coast to Europe through the South China Sea and the Indian Ocean in one route, and from China’s coast through the South China 24 OECD

Joint Working Party on Trade and Environment (2007), Summary. et al. (2013), Executive Summary.

25 Markus

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Sea to the South Pacific in the other. The Initiative identifies the Belt and Road as “a systematic project”, which should be jointly built “to integrate development strategies of the countries along the Belt and Road”. Furthermore, it emphasizes the openness and inclusiveness of the Belt and Road, which covers, but is not limited to, the area of the ancient Silk Road. It is open to all countries, and international and regional organizations for engagement, so that the results of the concerted efforts will benefit wider areas. Therefore, the Belt and Road might not be identified as a form of regional integration in a strict traditional sense. Such presumption might be further illustrated by analysis of its purposes, contents and mechanisms as follows. Regional economic integration to a certain extent is the first purpose of the Initiative. It aims at “promoting orderly and free flow of economic factors”, but seems to be not in the sense of free trade area. It also aims at promoting “highly efficient allocation of resources and deep integration of markets”, and encouraging the countries along the Belt and Road “to achieve economic policy coordination and carry out broader and more in-depth regional cooperation of higher standards; and jointly creating an open, inclusive and balanced regional economic cooperation architecture that benefits all”, but less than a common market. On the other hand, the purpose of the Belt and Road is beyond regional economic integration. Firstly, it proclaims to be “a way for win–win cooperation” that promotes “common development and prosperity” and “a road towards peace and friendship”. Secondly, it aims at promoting “practical cooperation in all fields” not limited to specific fields. And finally, it works to build “three communities”, namely, “a community of shared interests”, “a community of shared destiny” and “a community of shared responsibility”. The Initiative explicitly figures out five cooperation priorities of the Belt and Road construction. The first priority is the policy coordination. Enhancing policy coordination is an important guarantee for implementing the Initiative, which means that the construction and operation of the Belt and Road, in spite of factors of market, should largely be governments-driven. Therefore, intergovernmental cooperation between participating countries is imperative, which includes building “multi-level intergovernmental macro policy exchange and communication mechanism”, expanding “shared interests”, “enhancing “mutual political trust, and reaching “new cooperation consensus”. The second priority is facilities connectivity which is fundamental for implementing the Initiative. Currently each country along the Belt and Road has its own infrastructure plans and technical standard systems. Such varieties of plans and standards are inconvenient for fast or to a less extent smooth movement of goods, persons, capitals and adequate supply of services across borders. Therefore, the Initiative intends to “jointly push forward the construction of international trunk passageways, and form an infrastructure network connecting all sub-regions in Asia, and between Asia, Europe and Africa step by step”, with due consideration of “the impact of climate change on the construction”. The construction of infrastructure connectivity focuses three areas. The first area is transport infrastructure construction. The connectivity of energy infrastructure becomes the second and follows the construction of cross-border optical cables and other communicates trunk line networks as the third.

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The third priority is the unimpeded trade. Trade and investment cooperation within the region and with related countries is set out as a major task of the Belt and Road construction. The primary goal of this cooperation is to create sound business environment by improving trade and investment facilitation and removing trade and investment barriers. It is worthy of attention that free trade area of the whole region seems not to be the recent goal, but countries along the Belt and Road “could discuss” on opening it. It could be presumed that formulation of a free trade area is at most a medium-term or even a long-term goal of the Belt and Road. Therefore, speeding-up trade and investment facilitation within the region is the core of this goal. However, facts have already demonstrated that the possibility of establishing bilateral free trade areas between china and some countries or sub-regions along the Belt Road could not be excluded. For instance, China has concluded free trade agreements with ASEAN Member States,26 Pakistan,27 Singapore,28 Iceland,29 Switzerland,30 New Zealand31 and Australia,32 apart from the Closer Economic Partnership Arrangements (CEPAs) between the Central Government of China and the Government of the Special Administrative Region of Hong Kong and the Government of the Special Administrative Region of Macao respectively in 2003. In addition, China currently conducts FTAs negotiation with Gulf Cooperation Council (GCC), Norway, Korea, Japan and Sri Lanka.33 Furthermore, possible bilateral FTAs between China and other 26 China and ASEAN Member (AMS) signed the Framework Agreement on China-ASEAN Comprehensive Economic Cooperation at the sixth China-ASEAN Summit in November 2002. In November 2004, both sides signed the Agreement on Trade in Goods of the China-ASEAN FTA which entered into force in July 2005. In January 2007, the two parties signed the Agreement on Trade in Services, which entered into effect in July of the same year. See China FTA Network: https://fta.mofcom.gov.cn/topic/chinaasean.shtml. Accessed 17 April 2015. 27 China and Pakistan reached the Free Trade Agreement in November 2006. The Agreement took effect in July 2007. On 21 February 2009, two countries signed the Agreement on Trade in Service of the China-Pakistan FTA which entered into force since 10 October 2009. See China FTA Network: https://fta.mofcom.gov.cn/topic/enpakistan.shtml. Accessed 17 April 2015. 28 China and Singapore signed the China-Singapore Free Trade Agreement on 23 October 2008. Under this Agreement, the two countries will accelerate the liberalization of trade in goods on the basis of the Agreement on Trade in Goods of the China-ASEAN FTA and further liberalize the trade in services. See China FTA Network: https://fta.mofcom.gov.cn/topic/ensingapore.shtml. Accessed 27 April 2015. 29 The Iceland-China Free Trade Agreement was the first FTA signed between China and a European country on 15 April 2013. See https://www.mfa.is/news-and-publications/nr/7655. 30 China-Switzerland FTA was signed on 1 July 2013 and entered into force on 1 July 2014. See China FTA Network: https://fta.mofcom.gov.cn/enArticle/chinaswisen/chinaswissennews/201405/ 15660_1.html. 31 On 7 April 2008, China-New Zealand Free Trade Agreement was signed in Beijing, which entered into force on 1 October 2008. Covering such areas as trade in goods, trade in services and investment, the Agreement is the first comprehensive FTA that China has ever signed. See China FTA Network: https://fta.mofcom.gov.cn/topic/ennewzealand.shtml. Accessed 17 April 2015. 32 On 17 November 2014, both sides affirmed the practical conclusion of the China-Australia Free Trade Agreement (FTA) negotiations. See China FTA Network: https://fta.mofcom.gov.cn/enArti cle/chinaaustralia/chinaaustralianews/201411/19037_1.html. Accessed 17 April 2015. 33 See https://fta.mofcom.gov.cn/english/index.shtml. Accessed 17 April 2015.

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related countries along the Belt and Road, such as India, Maldives and Moldova are under consideration or studies.34 The fourth priority focuses on financial integration. Financial stability and adequate financial supply along the Belt and Road and beyond the region deem to be vital for the success of the Initiative. Efforts will be made in building three systems in Asia, namely a currency stability system, an investment and financing system and accredit information system. A number of regional or sub-regional financial institutions are to be established, in addition to bilateral financial operation, such as the Asian Infrastructure Investment Bank,35 BRICS New Development Bank36 and Shanghai Cooperation Organization (SCO) financing institution.37 Furthermore, the Silk Road Fund is also planned to be set up. The fifth priority concentrates on people-to-people bond, aiming at promoting friendly relationship partnership and cooperation between peoples along the Belt and Road. The scope of the people-to people-bond scheme is broad and prefund, including “extensive cultural and academic exchanges, personnel exchanges and cooperation, media cooperation, youth and women exchanges and volunteer services”. The Initiative on cooperation in fields of humanity, social sciences and science and technology is adequately ambitious and all-embracing. In short, the first four priorities of the Belt and Road could safely be defined as within the framework of economic regional integration. However, the fifth one could hardly be so presumed. Although some contents in this priority is closely connected 34 See

https://fta.mofcom.gov.cn/english/index.shtml. Accessed 17 April 2015.

35 The AIIB is proposed by the government of China in 2013 and launched at a ceremony in Beijing

in October 2014. The purpose is to provide finance to infrastructure projects in the Asia region AIIB is regarded by some as a rival for the IMF, the World Bank and the Asian Development Bank (ADB), which are regarded as dominated by developed countries like the United States. The United Nations has addressed the launching of AIIB as “scaling up financing for sustainable development for the concern of Global Economic Governance. As of 15 April 2015, almost all Asian countries and most major countries outside Asia had joined the AIIB, except the US, Japan (which dominated the ADB) and Canada. The Articles of Agreement (AOA) would be finalized and open for signature by Prospective Founding Members (PFMs) from June 2015. The AOA is expected to enter into force and AIIB to be fully established by the end of 2015. As of 15 April 2015, there are 57 PFMs. Available at: https://en.wikipedia.org/wiki/Asian_Infrastructure_Investment_Bank. Accessed 7 May 2015. 36 The New Development Bank was agreed to by BRICS leaders at the 5th BRICS summit held in Durban, South Africa on 27 March 2013 and is operated by the BRICS states (Brazil, Russia, India, China and South Africa) as an alternative to the existing US-dominated World Bank and International Monetary Fund. The bank is set up to foster greater financial and development cooperation among the five emerging markets. On 15 July 2014, the first day of the 6th BRICS summit held in Fortaleza, Brazil, the group of emerging economies signed the long-anticipated document to create the $100 billion BRICS Development Bank and a reserve currency pool worth over another $100 billion. The bank is headquartered in Shanghai, China. Unlike the World Bank, which assigns votes based on capital share, in the New Development Bank each participant country will be assigned one vote, and none of the countries will have veto power. On 11 May 2015, K. V. Kamath was appointed as President of the Bank. See https://en.wikipedia.org/wiki/New_Development_Bank. Accessed 17 April 2015. 37 On 14 January 2015, Russian Prime Minister Dmitry Medvedev said at a plenary session of the VI Gaidar Forum in Moscow that the Shanghai Cooperation Organization is also developing tools to finance promising projects. See https://en.sco-russia.ru/news/20150114/1013272597.html.

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to regional economic integration, such as the cooperation on creation of new tourist routes, but most of them surpasses the field of economics. Arguably, exchange of personnel exchanges on the one hand could roughly be sorted within the concept of movements of peoples in regional integration, but on the other hand, does not reach the sense of free movement in a common market. Again, expansion of tourism could be within the meaning of trade in services, but income increase of tourism is not the primary purpose of the Initiative. The emphasis of the people to people-bond lies in building consensus and cooperation in the spiritual, conscious and psychological dimension among the peoples along the Belt and Road. It is a project of transnational public feelings and support of the Initiative. Let’s turn to cooperation mechanism of regional integration. Normally, participants set up a certain kind of institutions endowed with powers and functions for implementation of regional economic integration, such as a plenary organ consisting of high representatives of contracting parties, an executive organ consisting of limited elected officials of participants, a dispute settlement agency consisting independent judges, or arbitrators or anellists. Advanced regional integration, such as the European Union, may even establish a parliamentary organ consisting of members by direct suffrage and a judicial hierarchy system. The designers of the Belt and Road have no intention of formulating a new cooperation mechanism of its own, but “will take full advantage of the existing bilateral and multilateral cooperation mechanisms to push forward the building of the Belt and Road and to promote the development of regional cooperation”. Those existing bilateral mechanisms include joint committee, mixed committee, coordinating committee, steering committee and management committee. Those regional and multilateral mechanisms include, but not limited to the Shanghai Cooperation Organization (SCO), ASEAN Plus China (10 + 1), Asia–Pacific Economic Cooperation (APEC), Asia-Europe Meeting (ASEM), Asia Cooperation Dialogue (ACD), Conference on Interaction and Confidence-Building Measures in Asia (CICA), China-Arab States Cooperation Forum (CASCF), China-Gulf Cooperation Council Strategic Dialogue, Greater Mekong Sub-Region (GMS) Economic Cooperation, and Central Asia Regional Economic Cooperation (CAREC), etc. In addition, the Initiative particularly mentioning an active use and a full play of exiting international forums and exhibitions at regional and sub-regional levels hosted by countries along the Belt and Road. Furthermore, the Initiative supports the local authorities and general public of countries along the Belt and Road to explore the historical and cultural heritage of the Belt and Road, jointly hold investment, trade and cultural exchange activities, and ensure the success of the Silk Road (Dunhuang) International Culture Expo, Silk Road International Film Festival and Silk Road International Book Fair. However, the Initiative proposes to set up an international summit forum on the Belt and Road, which is undoubtedly most important of all.

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17.3 The Belt and Road in Terms of Partnership The concept of partnership has long been used in company law, often meaning an association of two or more persons engaged in a business enterprise in which the profits and losses are shared proportionally.38 In business law, partnership generally has five main characteristics. Firstly, a partnership should be treated as an aggregate of individual partners or as a corporate-like entity separate from its partners. The partnership is not a distinct legal entity. Secondly, the formation of a partnership requires a voluntary “association” of person who co-own the business and intend to conduct the business for profit. Persons can form a partnership by written or oral agreement. A partnership agreement often governs the partners’ relations to each other and to the partnership. Thirdly, each partner has a right to share in the profits of the partnership. Unless the partnership agreement states otherwise, partners share profits equally. Moreover, partners must contribute equally to partnership losses unless a partnership agreement provides for another arrangement. Fourthly, each partner also has a right to participate equally in the management of the partnership. In many partnerships a majority vote resolves disputes relating to management of the partnership. Fifthly, each partner owes a fiduciary duty to the partnership and to co-partners. This duty requires that a partner deal with co-partners in good faith, and it also requires a partner to account to co-partners for any benefit that he or she receives while engaged in partnership business.39 So far when the concept of partnership begins to be used in international context is not clear for this author and needs a special exploration. However, it is certain that since 1990s, the vocabulary, especially the concept of “strategic partnership”, has been increasingly used in relations between states or their governments and between state governments and other international actors in various fields or on different matters. According to the British National Corpus’s observation, only 6 entries in newspapers, books, magazines and journals used the expression “strategic partnership” in the period 1980–1993, but none of these is used in the context of international relation. In the collection by the Corpus of Contemporary American English, in the period 1990–1994, only 1 entry of expression “strategic partnership” related to international relations. In the period 1995–1999, 29 entries can be found in this context. In the following period 2000–2004, 33 times can be found. And in the period 2005–2010, 45 entries can be found.40 As a result, partnership or strategic partnership and other similar expressions have become popular in global governance. “Strategic partnership” has been often used in building cooperation at bilateral levels. The UN first time used the concept in 1992 concerning the US-Turkey strategic partnership. Since 1990’s, the vocabulary has been often used in the EU’s documents 38 See

the US Revised Uniform Partnership Act (1994), Article 101. https://legal-dictionary.thefreedictionary.com/partnership. Accessed 17 April 2015. 40 Blanco (2011). 39 See

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of foreign policy. In the past, the EU used to conclude trade and economic cooperation agreements with third countries, in addition to associate agreements with some countries which have special relations with the EU Member States historically. Beginning with 1999, the EU has gradually upgraded these bilateral cooperation agreements to Partnership and Cooperation Agreements (PCAs).41 The PCAs between the EU and its non-Member States bear certain common features as follows: Firstly, the PCAs establish a kind of comprehensive partnership and cooperation relationship between the two parties. The aims of the PCAs are to provide a suitable framework for political dialogue, support the efforts made by the countries to strengthen their democracies and develop their economies, accompany their transition to a market economy, and encourage trade and investment. They also aim to provide a basis for cooperation in the legislative, economic, social, financial, scientific, civil, technological and cultural fields.42 To some extent, the EU’s PCAs could be regarded the upgraded and expanded version of its traditional trade and economic cooperation agreements with third countries. Secondly, the PCAs include special clause on “respect for democracy, rule of law and human rights”, which have not been provided in previous trade and economic cooperation agreements. Scholars have defined this special provision as a “social clause”, or “human rights clause”, or “democratic and human rights clause, or “rule of law clause”.43 The sustained insertion of this special clause of in the EU’s international PCAs with third countries directly resulted from a number of the EU documents of external policy on human rights in the first half of the 1990’s.44 Thirdly, the PCAs establish a Cooperation Council responsible for supervising the implementation of the PCAs. It meets at ministerial level once a year. The Council is assisted by a Parliamentary Cooperation Committee. In addition, periodic political dialogues in wide range of fields facilitated to ensure their implementation. Fourthly, they explicitly fix their duration, normally a period of ten years, and at the same time provide their autonomous extension. China has been striving for establishment of partnership with other countries as a new type of state-to-state relations in the post-Cold War era. According to the report of one Chinese Media, China has so far established partnerships with 58 foreign countries or international organizations.45 In practice, all these partnerships could be divided into several sub-types by their terms, such as (1) friendly partnership with Jamaica; (2) friendly cooperative partnership with Hungary; (3) traditional cooperative partnership with Albania; (4) comprehensive friendly cooperative partnership with Romania; (5) important cooperative 41 The most intensive and typical PCAs are those concluded between the EU and a number of countries in Eastern Europe and Central Asia, Namely, Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyz, Moldova, Russia, Ukraine and Uzbekistan, Belarus and Turkmenistan. See https://ec.eur opa.eu/external_relations/ceeca/pca/index.htm. Accessed 17 April 2015. 42 See https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:r17002. 43 Bartels (2005), pp. 73–78. 44 See European Commission (1991); European Council (1991); European Council and Member States (1991); European Commission (1995). 45 See https://www.zj.xinhuanet.com/newscenter/InAndAbroad/2014-07/25/c_1111796932.htm.

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partnership with Fiji; (6) strategic partnership with the ASEAN, African Union, Peru, the United Arab Emirates, Angola, Uzbekistan, Tajikistan, Turkmenistan, Mongolia, Poland, Nigeria, Canada, Serbia, Chile, Ukraine; (7) strategic cooperative partnership with Afghanistan, South Korea, India and Sri Lanka; (8) strategic reciprocal partnership with Ireland; (9) comprehensive strategic partnership with the EU, the United Kingdom, Italy, France, Spain, Portugal, Greece, Denmark, Belarus, Brazil, Mexico, Argentina, Venezuela, Kazakhstan, Indonesia, Malaysia, South Africa and Algeria; (10) comprehensive strategic cooperative partnership with Thailand, Viet Nam, Cambodia, Laos and Burma. Different termed partnerships implicate different levels and broadness of relations between China partner countries. Friendly partnership might demonstrate that the relationship between the two states are more than just a normal diplomatic relationship, while traditional friendly partnership emphasizes the historical heritage and evolution of the friendship of both parties on the one hand, and cooperative partnership stresses cooperation in the fields that both parties concern. Strategic partnership implicates both the “strategic” quality and the “partnership” nature of relations of the both parties, requiring that both parties regard it as essential to achieve their basic goals with national security as the core and stressing on win–win effect.46 Comprehensive strategic partnership denotes the overall coverage, entirety and coherence of cooperation and core interests of the both parties. In short, in addition to factors such as geopolitics, security, economic growth, environment protection, sustainable development, social welfare, etc., it has been suggested that “the presence of common values, common interests and mutual understanding are essential criteria for a ‘partnership’ as opposed to mere a ‘cooperation’”.47 As for a prerequisite for a comprehensive strategic partnership, “comprehensiveness” of cooperation, “common core interests” and “mutual trust deem to be added. Among those strategic partnerships established between China and foreign countries, the comprehensive partnership arrangements with the Russia, the U.S, Germany and Pakistan are of vital importance and have drawn world-wide attention. The first three partnerships mark the establishment of new type relationship between big powers characterized not only with its wideness of mutual cooperation, but more importantly indicating their non-alignment, non-confrontation and non-targeting a third party. The last one represents the highest level of partnership for it is termed as a “all-weather partnership”, meaning that the mutual trust and close and friendly cooperation of the both parties are sustainable regardless of changes of international and regional situation. Thus, partnership between states could take flexible forms with implication of various levels of relationship and cooperation between the states involved in it. Judging from the Initiative of the Belt and Road, it is not difficult to presume that its proclaimed goals and priorities are undoubtedly within the conception of partnership, even within that of strategic or comprehensive partnership. Firstly, as illustrated 46 Grevi 47 Vahl

(2010), pp. 2–3. (2001), p. 4.

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above, China has built partnership or strategic partnership or comprehensive partnership with most of the 65 states and related regional or sub-regional organizations along the Belt and Road and the implementation of the Belt and Road will definitely further enhance those exiting bilateral partnership arrangements. Secondly, it could be predicted that with the implementation of the Belt and Road, the new partnership will be naturally formulated between China and those few countries which have not yet established such a relationship. Nevertheless, it might not be correct or at least not precise to identify the Belt and Road merely as a kind of partnership or even strategic partnership construction. The intention of the Belt and Road Initiative is more ambitious and far more reaching than a partnership goal, which could further explore and justified in the section follows.

17.4 The Belt and Road Towards a Regional Community of Common Destiny 17.4.1 Evolution of Concept Pursued by Chinese Government The phrase “community of common destiny” was first officially used by Jintao Hu, the former President of the PRC. In 2007, in his report to the 17th National Congress of the CCP, he used this phase to describe the special cross-strait relationship between mainland China and Taiwan. In September 2011, the White Paper on China’s Peaceful Development issued by the Information Office of the Chinese State Council initiates the new perspective of “a community of common community to seek the new connotation of common interests and values”. From then on, China has been using his term to emphasize its important and unique relations with other countries, particularly with it neighboring countries, such as in Jintao Hu’s June 2012 speech during the summit of the Shanghai Cooperation Organization. In the report of the 18th National Congress of the CCP in late 2012, the concept was used in the world-wade perspective, which pointed out that “In this world, the degree of interaction and interdependence among countries are unprecedentedly deepened. All peoples are living in the same earth village and in the same time of space between history and reality, more and more formulating a community of common destiny in which we are among you and you are among us”. Therefore, the report advocates to “promote the consciousness of human destiny community”, that is, each country “in the pursuit of its national interests, takes into account the reasonable concern of other countries and in the pursuit of national development, promotes common development of all countries”. The concept “community of common destiny” has been repeatedly and systematically used since 2013 by the current presidency of Xi Jinping during his visits to Africa in March and to ASEAN countries October 2013 and in his speech at the Boao Forum in early 2013 and visit to ASEAN countries in October 2013. In his speech at Conference on the Diplomatic Work with Neighboring Countries on 25 October 2013 in Beijing, Xi particularly stressed “letting the awareness of community of common

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destiny take root in the neighboring countries.” This was understood as a guiding principle of China’s diplomacy with its neighbors. Western media commented it as a counter-balancing measure to Washington’s “return to Asia” policy, intending to show its neighbors a softer image by emphasizing community and a shared fate.48 For the past two years or so, President Xi has referred to “community of common destiny” for 62 times on various occasions, continuously interpreting the rationale of “community of common Destiny”, so as to grasp the commensurability of human interests and value and find the common denominator in state-to-state relations.49

17.4.2 Connotation of Community of Common Destiny According to observation made by a senior scholar of international studies, the rationale of community of common destiny connotes a new rationale of human society, that is, a global view of values. Community of common destiny, as a global view of values, embodies the interdependence of international power, common interests, sustainable development.50 The view of international powers aims at adaption and response to the worldwide tendency of globalization. With the development of transnational movement of capitals, technology, information and personnel, all countries are in the state of mutual interdependence, which has formulated an interest link. Each country has to maintain such a link through the international order so as to realize its own interest. Therefore, appropriate international mechanisms with international powers have to be established so that international political, economic and social order could be steadily maintained and various challenges commonly confronted by all countries could be jointly coped with. The view of common interest is contrary to the theory of zero sum which has long be influential in international relations since the twentieth century. According to offensive/defensive realists, states are obsessed with the security and continuation of the state’s existence. The defensive view can lead to a security dilemma, where increasing one’s own security can bring along greater instability as the opponent(s) builds up its own arms, making security a zero-sum game where only relative gains can be made. The view of common interest, in contrast, claims that in the era of globalization human society turns to be a “global village” in which the political, economic and social interest of one state is highly integrated with that of other states and the interest of each state is a ring of a common interest chain. Thus, a problem rising from one ring might result in disruption of the global interest chain. In view of common interest, no state can get along without thought of other states. If a state wants to develop, it must help others to develop, and the same is true for national security and social life. 48 Kai

Jin (2013). (2015, May 18). 50 Qu (2013). 49 Guo

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The contemporary concept of sustainable development was first put forward by the Club of Rome in 1972 in its classic report on the Limits to Growth.51 In 1980 the International Union for the Conservation of Nature published a world conservation strategy that included one of the first references to sustainable development as a global priority. In 1987 the United Nations World Commission on Environment and Development released the report Our Common Future, commonly called the Brundtland Report. It defines that “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Since then, the concept and principle of sustainable development has been reaffirmed and enhanced by a number of important UN conferences and related documents. The Earth Charter adopted at the UN Conference on Environment and Development in 1992 outlined the building of a just, sustainable, and peaceful global society in the twenty-first century. The Millennium Declaration in 2000 identified principles and treaties on sustainable development, including three main dimensions of sustainable development, namely, economic development, social development and environmental protection. The term sustainable development as used by the United Nations incorporates both the issues associated with land development and broader issues of human development such as education, public health, and standard of living. In 2002, the UN Johannesburg Summit adopted the Declaration on Sustainable Development making commitments to strengthen and improve governance at all levels for the effective implementation of Agenda 21, the Millennium development goals and the Plan of Implementation of the Summit. In 2012 the outcome document of Rio World Earth Summit in addition to reaffirmation of commitments made from 1972 Rio Earth Summit to 2002 Johannesburg Earth Summit on sustainable development, particularly emphasizes that eradicating poverty is the greatest global challenge facing the world today and an indispensable requirement for sustainable development and it is a matter of urgency. Fort the past over thirty years, China has been actively participating in all kinds of international initiatives on sustainable development. From Stockholm Conference on the Human Environment in 1972, to Rio Conference on Environment and Development in 1992, to Johannesburg World Summit on Sustainable Development in 2002 and to Rio + 20 Conference on Sustainable Development in 2012, the Chinese leaders attended all these key conferences, contributing to sustainable development in its rationale formulation, capacity and mechanisms building and development aids. China constantly makes efforts to realize the UN Millennium Goals of Development. It reduced over two billion poverty population, becoming the first country which halved its poverty population in the UN Millennium Goals. As the largest developing country, China feeds the population of the world’s 1/5 with Less than 51 The Club of Rome was founded in 1968 as an informal association of independent leading personalities from politics, business and science, men and women who are long-term thinkers interested in contributing in a systemic interdisciplinary and holistic manner to a better world. The Limits to Growth is a book about the computer simulation of exponential economic and population growth with finite resource supplies. The book used the World 3 model to simulate the consequence of interactions between the Earth’s and human systems, available at: https://www.clubofrome.org/? p=324. Accessed 17 April 2015.

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10% of arable land in the world and only 28% of the world’s water resources per capita. In terms of environmental protection, China’s energy consumption per unit of GDP decreased by about 21% in recently years and total emissions of major pollutants reduced by about 15%. In addition, China has exempted about 300 billion yuan of debt from 50 heavily indebted poor countries and the least developed countries. It has implemented zero tariff treatment for over 60% imported products from the least developed countries and supplied to other developing countries over 1000 billion-yuan preferential loans.52 These data demonstrate that sustainable development has turned from a rationale into the guidelines of plans and concrete actions of the Chinese government, resulting in great achievements. The community of common destiny takes the view of global governance. The necessity and tendency of global governance, as the extension of traditional international governance,53 have been increasingly prominent in international community since the turning of the twenty-first century, although there have been various definitions and understanding of the concept.54 Compared with international governance which focuses on relations between nations or their governments, global governance aims at reducing the roles and importance of states and their governments in the process of rule or decision-making and its surveillance, and strengthening the roles of non-state actors in it.55 In sum, global governance conceptually and practically implies change of management of world affairs mainly in three dimensions as follows56 : Firstly, it means the change of international power structure. In the era of the cold war, world affairs had long been in the pattern driven by the western states. World economy had been largely sustained by three international economic institutions, namely, the IMF, the World Bank Group and the GATT (now the WTO). Politically, international security has been maintained by the UN collective security system with the unanimity of five big powers in the Security Council as its core. In the field of science, technology and social areas, international powers have been centered in the UN specialized agencies. In contrast, global governance calls for international powers should be more shared by the G20, the G5, the G77, non-state and non-intergovernmental institutions, such as sub-components of states, regional or regional organizations, NGOs, transnational corporations and even professional elites. Secondly, it means the change of international process. Proliferation and diversification of international actors mentioned above results in democracy and multiplicity of in international decision-making process. Many challenges in the era of globalization directly concern the interests of human individuals and the whole mankind and 52 Wen

(2012). governance, as a rationale and value orientation, is originated from the discipline of international law in the sixteenth century. The concept of international order advocated by the International publicists ever since that time is equivalent to the concept of international governance and nowadays the concept of global governance. See Zeng (2013). 54 See Rosenau and Czempiel (1992), p. 13; Weiss (2000); Commission on Global Governance (1995), Chap. 1, para. 6. 55 Brühl and Rittberger (2002), pp. 2–3. 56 United Nations Development Programme (2012), pp. 12–13. 53 Global

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traditional state and intergovernmental organization-oriented policy and rule-making process no longer meets the needs of the times. Global governance requires non-state actors extensively and profoundly participate in the process of international norm and decision-making so as to ensure the accountability and legitimacy of policies and norms both at home and abroad. In addition, global governance also depends on selfcontained codes of conducts enacted by transnational corporations, and international civil societies or professional associations in corresponding fields. Thirdly, it means the change of international implementation mechanisms. Traditionally, the implementation of international norms largely, if not totally, relies on states themselves, namely by the principle of state self-serving. In the era of international organizations, their executive organs play an important role in implementation and monitoring international norms, but they still consist of representatives of states or their governments. Global governance has brought about multilateralism and flexibility of international implementation and monitoring mechanisms. In addition to the United Nations system and Breton Woods Systems, other implementation and monitoring mechanisms at global, regional sub-regional, national, sub-national, private or civil levels all are included in the framework of implementation and monitoring mechanism of global governance. Some international monitoring mechanisms are mix-structured, such as the Financial Stability Board which is composed both states and international economic organizations. Furthermore, quite a number of convention implementation and monitoring mechanisms is composed of experts instead of government officials or both officials and experts, such as specialized committees of the UN core human rights treaties, compliance mechanisms of environmental treaties, supervision mechanism of the Treaty on Comprehensive Prohibition of Nuclear Test, etc. In addition to the four views nalysed above, it seems to this author that the community of common destiny contains another important view advocated by Chinese President Jinping Xi, that is, the correct outlook on justice and gain. At the Central Foreign Affairs Conference from 28–29 November 2014 in Beijing, Xi declared “upholding justice and pursuing shared interests” as part of the Chinese new Diplomacy. In his Keynote speech at the Boao Forum for Asia Annual Conference 2015, he further identified this new rationale as one of the approaches to build community of common destiny and new future of Asia, the essence of which is win–win cooperation and all-win cooperation in replacement of the old approach of zero-sum, namely, “the interests of others must be accommodated while pursuing one’s own interests, and common development must be promoted while seeking one’s own development.” He also stressed “the vision of win–win cooperation not only applies to the economic field, but also to the political, security, cultural and many other fields. It not only applies to countries within the region, but also to cooperation with countries from outside the region.57

57 Xi

(2015).

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17.4.3 The Belt and Road Initiative as Part of Community of Common Destiny 17.4.3.1

Consistency of Purposes

As illustrated in Sect. 17.2 above, the fundamental purpose of the Belt and Road Initiative is to promote “common development and prosperity” and facilitate “a road towards peace and friendship” of all states involved. In sum, it aims at building “a community of shared interests”, “a community of shared destiny” and “a community of shared responsibility”, first in Asia and Europe, and then extending to Africa. The purpose declared as such is exactly the reflection of the purpose of a community of common destiny as President Xi proclaimed in his speech at the Opening Ceremony of Boao Forum 2013. The Fundamental purpose of community of common destiny is the common development, which is the very foundation of sustainable development. He further identified four dimensions of this common development, namely: (1) to break new ground so as to create an inexhaustible source of power for boosting common Development; (2) to work together to uphold peace so as to provide security safeguard for boosting common development; (3) to boost cooperation as an effective vehicle for enhancing common development; (4) to remain open and inclusive so as to create broad space for enhancing common development.

17.4.3.2

Consistency of Principles

In his speech at Boao Forum 2015, Xi Jinping outlined four principles that underlay the vision of the community of common destiny proposed by China: (1) to make sure that all countries respect one another and treat each other as equals; (2) to seek win–win cooperation and common development; (3) to pursue common, comprehensive, cooperative and sustainable security; (4) to ensure inclusiveness and mutual learning among civilizations.58 The Belt and Road Initiative as the hallmark of this vision of community of common destiny,59 transfers the four principles exactly and further elaborated them. Firstly, the Initiative highlights the upholding of the purposes and principles of the UN Charter and the Five Principles of Peaceful Coexistence. Secondly, it especially emphasizes the openness of the Silk and Road, namely, it is open to all countries, and international and regional organizations for engagement, so that the results of the concerted efforts will benefit wider areas”. Thirdly, it underlines harmoniousness and inclusiveness of all countries, that is, “to tolerate among civilizations, respects the paths and modes of development chosen by different countries, and supports dialogues among different civilizations on the principles of seeking common ground while shelving differences and drawing on each other’s strengths”. Fourthly, it stresses the decisive rule of the market, that is, to fully “abide market rules and 58 Ibid. 59 Brant

(2015).

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international norms” in operation of economic cooperation. Fifthly, it seeks mutual benefit, that is, to accommodate the interests and concerns of all parties involved, and seeks a conjunction of interests and the “biggest common denominator” for cooperation.

17.4.3.3

Consistency of Coverage

Since the report of the 18th National Congress of the CCP formally put forward the rationale of community of human common destiny, the coverage of this new type of community has been gradually manifest through the speeches of the top Chinese leaders on various occasions and related documents of the Chinese central authority. The concept was first referred to the relationship between the mainland China and Taiwan, then to China’s relationship with the ASSEN its Member States, then to all countries along the Belt and Road, even further to the Latin American countries, and finally to the whole mankind as the term so directly referred. As for coverage of areas, the community of human common destiny is allembracing, covering all fields of national and social life. It can be summarized as focusing on three themes, that is, global, regional and national peace and security, prosperity and sustainable development and welfare of peoples. It is certain from the text of the Initiative, the Belt and Road covers but is not limited to the area of the ancient Silk Road. In addition to road links, trade ties, currency circulation, peopleto-people bond, etc., Policy coordination, Facilities connectivity, unimpeded trade, investment facilitation, financial integration, as mentioned in section II above, are all included, and projects of all these areas are within the framework of three themes of peace and security, development and welfare of peoples.

17.4.3.4

Shared Mechanisms

One of the common features of community of common destiny and the Belt and Road is that the institutional structure is not fixed once for all, but rather flexible. Each has no intention to set up its own instinct institutions, but promotes an adequate play of various existing international and regional organizations or forums. Those organizations or forums commonly mentioned and stresses in documents related to the Belt and Road the Community of Common Destiny in the most recent three years include the UN, the WTO, the ASEAN, the ASEAN Plus China (10 + 1), the APEC, the Shanghai Cooperation Organization (SCO), the Asia-Europe Meeting (ASEM), the Asia Cooperation Dialogue (ACD), the Conference on Interaction and Confidence-Building Measures in Asia (CICA), the China-Arab States Cooperation Forum (CASCF), the China-Gulf Cooperation Council Strategic Dialogue, the Greater Mekong Sub-region (GMS) Economic Cooperation, and the Central Asia Regional Economic Cooperation (CAREC), Boao Forum, etc. However, as one observer noticed recently, the Belt and Road, as a kind of regional integration, “differs from ASEAN-style or EU-style regionalism… it will be a core

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to periphery structure of connectivity, regional decision-making and membership status, a sort of hub (Beijing) and spokes (other countries) arrangement”.60 In terms of membership, both the community of human common destiny and the Belt and Road are open and inclusive. The former’s membership just as its name implies includes all countries in the world and the whole mankind. The latter as the Initiative explicitly indicates is “inclusive” and its membership not only includes the Asian and European countries along the Belt and Road, but also is open to all countries, and international and regional organizations for engagement”. In contrast, the membership of traditional regional integration is normally exclusive; limited to the countries within the region concerned and countries outside the region may only make association or partnership arrangements with the existing regional integration pattern.61 In terms of decisions-making, again, both the Belt and Road and the Community of Common Destiny are not ambitious to enact their own rules and procedures which are distinct from those available in existing mechanisms at bilateral, regional or subregional and multilateral levels. More specifically speaking, both will follow those principles and rules of procedures which have long be established in various international organizations, conferences and forums, such as consultation, negotiation, one state-one-vote, majority vote, consensus, etc.

17.5 Conclusion Currently, it might be difficult to precisely define the Belt and Road initiated by the Chinese Government in a conceptual way and it might be even harder from the legal point of view. So far there have been no direct formal legal sources both domestically and internationally which could be found, in spite of the reports of the Chinese State Council and the CCP National Congress, the Belt and Road Initiative, and speeches of the top Chinese leaders on various occasions. Those related documents are at most a kind soft law sources or could be safely defined as a policy and strategy orientation or proclamation. However, by reading carefully the existing sources of the Belt and Road and comparing it with other existing models of international cooperation, we may reach the conclusion that the Belt and Road is a new formula of global governance. Although this new formula started shortly in time, as clearly demonstrated in the Initiative, “it is a positive endeavor to seek new models of international cooperation and global governance, and will inject new positive energy into world peace and development”. 60 Arase

(2015), p. 2.

61 For instances, the EU used to sign association agreements with some European and Mediterranean

counties before they become gain full membership of the EU, and partnership and cooperation agreements (PCAs) with non-Member States with a view of establishing wider and deeper cooperative relationship. The ASEAN has set up respectively 10 + 1 and 10 + 3 mechanisms with China, and China, Japan and Korea.

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As a new model of global governance, the Belt and Road bears some elements of regional economic integration, but not completely the equivalent of the latter. On the one hand, it looks like a regional economic integration mainly because of two factors. One is its geographical coverage, that is, all Asian and European states along the Silk Road and the Maritime Silk Road. The other is its fields of cooperation, that is, largely the in economic field, or the economic cooperation as its core. On the other hand, the Belt and Road does not like other existing regional economic integration which has set up a uniform institutional structure, or even established a super-national structure. One of the operational features of the Belt and Road lies in its full use of advantages of all related existing mechanisms of cooperation at bilateral, regional, sub-regional and multilateral levels. The Belt and Road, as a new model of global governance, could be more or less identified as a kind of partnership arrangement since partnership between states as illustrated above can be flexible in form, scope and quality. However, the Belt and Road could hardly be sorted as such in its entirety. First of all, partnership stresses the cooperative relationship in good faith between the two sides and the bilateralness is the prerequisite. In contrast, the Belt and Road is not a bilateral partnership arrangement between China on the hand and all other states related on the other. Secondly, since China has already established partnership in various forms with most of the individual states along the Belt and Road, it is meaningless to repeat the same arrangement by the Belt and Road Strategy. Therefore, the Belt and Road, as a new model of Global Governance, is far more than the connotation of a regional economic integration and partnership arrangement. It takes the patterns of regional integration and partnership arrangement both as its basis and priorities with a far-reaching view of building a regional community of common destiny. This new community is different from all existing communities is several aspects. Firstly, it aims at not only building a “community of shared interests”, but also “a community of shared destiny” and “a community of shared responsibility”. Secondly, it has no fixed institutional structure, but intends to take advantage of all kinds of mechanisms available at national, bilateral, regional, sub-regional and multilateral levels. Lastly, its long strategy is not limited to merely formulating of a common community of the region, but to build a community of common destiny of the whole mankind. However, it is clear so far that the Belt and Road is initiated and mainly promoted by the Chinese Government at home and abroad. Although the proposal has been actively responded by neighboring states and certain specific projects have been designed and implemented, the Belt and Road as a regional community of common destiny and as part of the human community of common destiny has not yet taken its shape and deems to be a long way to run. Undoubtedly, its building will face with various unprecedented challenges. Merely from the legal point of view, the smooth operation of and the success of the Belt and Road strategy imperatively needs the establishment, improvement and completion of legal mechanisms at national, bilateral, sub-regional, regional levels of the region. It also lies in the completion of multilateral mechanisms concerned in the context of globalization and global governance.

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Peter H (1966) Federalism and supranational organizations: patterns for new legal structures. University of Illinois Press, Urbana Powell SJ (2011) Is the WTO quietly fading away? The new regionalism and global trade rules. Georgetown J Law Policy 9:261–281 Qu X (2013) The basic values of the community of human destiny. Qiushi J (Chinese Edition) 4:53–55 Rosenau J, Czempiel EO (1992) Governance without government: order and change in world politics. Cambridge University Press, London United Nations Development Program (2012) Reconfiguring global governance—effectiveness, inclusiveness, and China’s global role (Report of High-Level Policy Forum on Global Governance in Beijing China). https://www.cn.undp.org/content/china/en/home/library/south-southcooperation/report-of-high-level-policy-forum-on-global-governance.html Vahl M (2001) Just good friends? The EU-Russian “Strategic Partnership” and the northern dimension. Centre for European Policy Studies, Working Document No. 166. https://www.ceps.eu/ ceps-publications/just-good-friends-eu-russian-strategic-partnership-and-northern-dimension Weiss T (2000) Governance, good governance and global governance: conceptual and actual challenges. Third World Q 21(5):795–814 Wen J (2012) Work together to write a new chapter in promoting sustainable development for mankind. https://www.uncsd2012.org/content/documents/886WorkTogetherChina.pdf World Trade Organization Secretariat (2000) Implementation of special and differential treatment provisions in WTO agreements and decisions (WT/COMTD/W/77, updated by the 1994 Treaty of Ouro Preto). https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?Cat alogueIdList=21868,75336,69267,64560,46353,12283,1294&CurrentCatalogueIdIndex=6 Xi J (2015) Towards a community of common destiny and a new future for Asia (a keynote address at the Boao Forum for Aisa Annual Conference 2015). https://www.chinadaily.com.cn/opinion/ 2015-03/30/content_19946411_2.htm Zeng L (2013) Time characteristics of global governance and international law. Chin Yearbook Int Law 11–41

Part IV

China and WTO Rule of Law

Chapter 18

Position of the WTO Law in International Legal Order

18.1 Introduction Before and after China’s accession to the WTO, there was a surge of study and research of WTO law (commonly referred to as “WTO rules”) in China’s legal profession and relevant state and government agencies. Especially the discussion on the application of WTO law in China seems to be more heated. All walks of life in the whole country paid such extensive and concentrated attention to the issue of international law for such a long time, which is unprecedented not only in China, but also in the rest of the world. However, almost all of the existing researches on WTO law and its achievements in our country explain principles, rules, regulations and mechanisms of the GATT Agreement and its impact on China. It should be recognized that the pragmatism of this research methodology and its results is unquestionable. However, studying WTO law in isolation from the broader context of the general international legal order and its social foundation is inevitably theoretically limiting and one-sided, as it may overemphasize the specificities of WTO law while ignoring the basic elements commonly shared with general international law. Therefore, the study of WTO law based on general international law will not only provide a deep understanding of the commonality between them and uniqueness of the WTO law, but also provide an accurate understanding of the whole picture of WTO law, which is will help the international community to navigate this multilateral trading institution and its legal order in the right direction in the twenty-first century, although such kind of macro-comparative study will inevitably repeats the “same old tune” for some fundamental issues of international law. This Article was originally written by Prof. Zeng in Chinese. It was submitted to the Seminar on “China and International Law at the beginning of the twenty-first Century” held by Chinese Society of International Law in Shanghai on 18–20 April 2002. It was published in Shaping Shao and Minyou Yu (eds.), Special on International Law Issues, Wuhan University Press, 2002. It was then translated by Dr. Jiao Zhang, and proofread by Mr. Xiaomeng Liu.

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The WTO law, based on its predecessor, GATT law, has developed over half a century into a tremendous legal system in the international legal order. On the whole, this legal system is composed of three parts, which are both independent and interrelated, namely, the Institutional Law, the Law of Trade in Goods (including laws relating to trade in goods) and Trade Law in Services. Among them, Institutional Law on the one hand inherits basic system and practices of the GATT period, and on the other hand acquires some innovations and breakthroughs in the fields of legal status, membership, organizational structure, division of functions and powers, voting system and dispute settlement, etc. As the traditional field of GATT/WTO multilateral trade system, the Law of Trade in Goods is undoubtedly the most complicated and well-developed part of WTO law. Law of Trade in Service, as a new legal department, its provisions are mostly framework, which has a broad space for development.1 WTO law is not only a relatively independent legal system in the international legal order, but also a unique or self-contained2 legal system in international legal order. As a whole, compared with the general international law, the WTO law has both the fundamental commonality and its own distinctive characteristics.

18.2 Common Features of WTO Law and General International Law: A Holistic Review On the whole, although WTO law has its own vitality and personality, it is, after all, an integral part of the contemporary general international law family. Therefore, there are some common elements between WTO law and general international law throughout, and these fundamental common elements are fundamental and are the basis upon which the WTO law demonstrates its particularity. Generally speaking, these fundamental common elements are mainly reflected in the following aspects.

18.2.1 The Same Social Foundation The formation and development of international law and WTO law are based on the international community and are the basic members of the international community— the product of the interaction between sovereign states.3 Since the twentieth century, development trend of interdependence between countries has gradually changed the world into a “global village”. The problems that countries deal with are transcending national borders increasingly, which need to be resolved internationally. Although the state remains the highest form of political organization and the center of power, 1 See

Zeng (1996b), or Zeng (1996a), pp. 19–24. Kuyper (1995). 3 For the social basis of international law, see Liang (ed.) (2001), pp. 5–9; See also Fedros et al. (1981), pp. 10–19. 2 See

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interdependence between states is an objective developmental reality that is not transferred by the will of man. As a result, functions and powers of traditional states are no longer exercised by the state alone, but must be carried out through international cooperation.4 As a result, the status and role of international law have been constantly strengthened. Because of the need of the interdependence among countries, the international cooperation among countries is increasingly achieved through such emerging legal forms as international organizations. Increasingly, international laws are formulated and implemented within the framework of international organizations. The international cooperation and the development of international law are being organized at a remarkably faster pace. The phenomenon of economic globalization is accompanied by the interdependence of countries and the organization of the international community. Economic globalization has pushed all aspects of national economic life, including all aspects of its associated social life, beyond national boundaries and must be carried out on a global scale. However, the economic and trade operations beyond national boundaries need to be regulated by relevant international rules and relevant international systems need to be adapted to ensure the implementation. The WTO and its laws are established for meeting needs of economic globalization and, in turn, constantly promotes it. It can be seen that interdependence among countries, institutionalization of international community and trend of economic globalization are undoubtedly the common basis of contemporary international law and WTO law.

18.2.2 The Same Legal Attributes The attribute of “inter-state” is the most essential feature of international law. Since the international community on which international law depends is composed of sovereign states with equal legal status, and the entire international legal system is inevitably the product of “equal collaboration” of sovereign states. Thus, in the entire international legal order par in parem non habet imperium (“equals have no sovereignty over each other”), and disputes between countries are settled primarily by means of mutual consultation with each other or other agreed political and legal methods; the formulation of legal rules and the establishment of the legal system mainly depend on inter-state treaties and international customs recognized by states; observance and enforcement of legal rules and regimes mainly base on the practices and approaches of state itself. In short, the basic structure of the “parallelism” of international community determines “horizontal” basic structure of the international law including the WTO law. It is impossible to establish a unified legislature, a unified law enforcement authority and a unified judiciary over all countries in a “parallel” international community where international laws are adopted to mainly regulate the “horizontal” legal relations among countries.

4 See

Schermers and Blokker (1995), pp. 1–3.

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18.2.3 The Same Origin of Validity Basis Although international law does not have the same unity as domestic law in legislation, law enforcement and judicature, any present generation who knows about this particular legal system will not doubt its legal nature—the collection of a legally binding code of conduct. Admittedly, whenever serious violations of international law are not promptly stopped or duly punished, the existence and effectiveness of international law is often questioned. However, the rhetorical question blurted out is extremely powerful, i.e. in any domestic society, there are often serious violations of law and even crimes that have not been properly stopped or punished, who can say that there is no law in the country? However, on the premise of determining the legal effect of international law, there emerges a further question: what is the basis of the validity of international law? In the history of international jurisprudence, international law scholars at all times have tried to answer this question from different perspectives, and have successively formed the Natural Law School, the Positive Law School, and their new branches, such as the New Natural Law School, the Social Solidarist Law School and the New Positive Law School; other scholars endeavor to answer the question with political science and theory of international relations, such as the Balance of Power, Policy Oriented Approach, etc. In today’s European and American countries, most scholars agree that “will of the state” or “common will of the state” is the basis for the effectiveness of international law. China generally regards “coordination of the will of states” as the basis for the effectiveness of international law. It can be said that theories or doctrines about the validity of general international law are equally capable of explaining or interpreting the validity of WTO law.

18.3 Uniqueness of WTO Law: Some Concrete Explorations In addition to maintaining some fundamental features that are inherent in general international law, WTO law has some special practices in terms of such basic aspects of international law as law-making and basis of effectiveness. Some provisions and practices of WTO law have introduced new changes or presented new challenges to certain international law departments, such as institutional law, treaty law, international liability law and international dispute settlement law.

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18.3.1 The Characteristics of Source of Law, Its Formation and Validity First of all, there is a combination of agreements and practices. WTO law, including its predecessor—GATT, is mainly formed and developed through the negotiation and conclusion of agreements between the contracting parties or members, and practices are undoubtedly secondary. For example, Article 16(1) of the “Agreement Establishing the WTO” (hereinafter referred to as”the Agreement”) states: “Except as otherwise provided under this Agreement or the Multilateral Trade Agreements, the WTO shall be guided by the decisions, procedures and customary practices followed by the Contracting Parties to GATT 1947 and the bodies established in the framework of GATT 1947.” However, for particular matters, practice takes precedence even overwritten rules established by WTO. For example, Article 7(2) of the Agreement provides that “the financial regulations shall be based, as far as practicable, on the regulations and practices of GATT 1947.” It is worth noting that the “practices” referred to in the Agreement are not an “international custom” or “international customary rules” in a strict sense of international law. However, Article 3(2) of “Understanding on Rules and Procedures Governing the Settlement of Disputes” (hereinafter referred to as “DSU”) clearly refers to that the WTO dispute settlement mechanism “…to clarify the existing provisions of those agreements (meaning multilateral trade associations, author’s note) in accordance with customary rules of interpretation of public international law”. Secondly, combination of hard law and soft law. Although WTO law is a new branch of the contemporary international legal order, it has emerged in the form of “hard law” from the beginning and plays a real role in regulating and adjusting the legal relations of trade among WTO Members. The main reason is that the WTO legal system has evolved from its predecessor-1947 GATT and its practice of nearly half a century, which forms obvious distinction with other new branches of international law. For example, international environmental law, as one of the most dynamic forms of contemporary international law, has its legal origins mainly in the form of “soft law”, that is, the resolutions of various international conferences or organizations.5 However, series of ministerial declarations as well as declarations contained in the Final Act of the Uruguay Round and those issued by ministerial conferences since the establishment of the WTO, whether it is a hard law or a soft law seems to be a debatable question. In a strict legal sense, it seems difficult for these declarations and decisions to fall within the scope of “hard law”, because they do not need signatures of members’ representatives or even the ratification process stipulated in the domestic constitution. But it seems to be “aggrieved” these ministerial decisions and declarations, especially those contained in the final documents of the multilateral trade negotiations. For they are not only politically appealing and legally effective in final formation of the law of treaties, but are directly legally binding on WTO and its members, or at least on the WTO itself. Therefore, the various ministerial 5 See

Liang (ed.) (2001), p. 252.

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declarations and decisions of WTO appear to be a kind of self-contained source of WTO law between “hard law” and “soft law”. Thirdly, the dynamic nature of WTO law is evident. The stability of GATT/WTO law goes without saying. But its dynamic nature seems to be more characteristic. The main manifestations of this “dynamic” are: (I) Each round sets new rules and regulations in new areas or matters on the one hand, and reviews, revises the agreement in the previous round on the other. (II) Improve the lex lata and declare lex ferenda by convoking ministerial meetings regularly and publishing ministerial declarations and resolutions. (III) Between rounds and when the ministerial conference is not in session, through the standing bodies of the WTO (such as the General Council, SubCouncils, Special Committees, etc.), to deal specifically with the development and amendment of legal rules and regimes provided or mandated by existing agreements and ministerial declarations or decisions. Next, the procedures and manner in which the legal rules are legal rules are developed are quite special. While multilateral negotiations and consultations are the basic way of formulating international law, GATT/WTO launches a round of multilateral trade every few years to make rules is hardly seen in other international systems or branches of international law. Moreover, in each round of multilateral negotiations, the formulation of specific rules on market access (including bilateral market access negotiations for the admission of new members), such as tariff schedules for trade in goods and the specific commitment table in areas of service trade etc., has been undertaken in a bilaterally-negotiated-multilaterally-applied manner. It can be seen that automaticity of the principle of most-favoured-nation treatment in WTO system is not only reflected in the application of legal rules, but also implied in formulation of legal rules. Finally, validity basis contains new components. If the effectiveness of general international law is based on “common will of states” or “coordination of the will of states”, then the validity of the WTO law should be based on “common will of contracting parties” or “coordination of the will of contracting parties”. Specifically, the effectiveness of the current WTO law derived from the coordination of the will of the states (or governments) that are members, the will of the separate customs territories (or regions) and the will of the regional integration organizations. Since the establishment of WTO, the impact of non-governmental organizations to the multilateral trading system has been increasing. The NGO related research and its results and the related proposals or reports submitted by them are becoming more and more important in the functioning of WTO, especially in merging areas of lex ferenda related trade liberalization with environmental protection, labor standards, and competition policy. It seems possible to make this prediction: The enactment of future WTO law (at least in the emerging areas mentioned above) must reflect not only the coordination of the will of WTO Members, but also the will of the NGOs. Given increasing activities of NGOs in other areas of international life (such as human rights, humanitarian aid, outer space, international seabed, sanitation and health, science and technology, etc.), possibilities or developments on the basis of effectiveness seem to apply equally to other areas of international law in the twenty-first century.

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18.3.2 New Breakthroughs in the Institutional Law In general, the organizational structure of WTO is basically the same as that of other specialized intergovernmental organizations, that is, the “three-tier structure” of decision-making bodies, executive bodies and administrative agencies.6 However, the organization of WTO also has its own characteristics: (1) the executive body is an executive system composed of many institutions, that is, the system of general council—sub-councils—special committees. In the execution body system, the execution bodies are both hierarchical and closely linked. The composition, function and power of the General Council seems to be one of the most characteristic features in the organizational law of WTO. In general, the executive bodies of global intergovernmental organizations are usually represented by a specific number of Member States, instead of being composed of representatives of all Member States like the supreme decision-making body. It is intended that moderately sized executive bodies are conducive to efficiently implement resolutions of the highest decisionmaking body. General Council of WTO distinctively is made up of representatives of all members. There seem to be three reasons: (1) the continuation of the practice of the council of representatives during the GATT period in 1947; (2) during the period when Council of Ministers are not in session, the General Council surrogates decision-making functions, and as a permanent body in Geneva, the vast majority of decisions are made by the body, and it is difficult to make a decision if its composition is not broadly representative; even if a decision is made, its effectiveness will be called into question; and (3) consensus is the basic decision-making way of WTO and in order to ensure that this decision-making way is effective, representatives of all members must be granted to participate in General Council. Particularly notable is the fact that besides an executive agency and a policy-making agency, the General Council acts as a trade policy review body under the trade policy review mechanism and a dispute settlement body in the dispute settlement mechanism. In short, the General Council rolls executive functions, decision-making functions, supervision and adjudication functions into one and is the true center of power of WTO. New regulations on membership are another highlight of the WTO institutional rules. Article 11 of “Agreement Establishing the WTO” clearly stipulates that the European Community becomes a founding member of the WTO, which means more than just the European Community itself ended the long-term status of being a “de facto member” in the GATT system, it has enjoyed full “de jure membership” status since the establishment of WTO, and more importantly, “this marks the latest development in the theory and practice of contemporary international organizational law”,7 that is, regional integration organization may enjoy independent membership in an intergovernmental organization without prejudice to the full membership of its Member States in that intergovernmental organization. Another special feature of member qualification is to allow independent customs territories to join the WTO. Although this is not a WTO initiative and was explicitly stated in the 6 See 7 See

Liang (ed.) (2001), pp. 275–276. Zeng (1999), p. 39.

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GATT 1947. However, in the GATT period, in order for an independent customs territory to become a full contracting party, in addition to proving that it enjoyed full autonomy in foreign trade relations, it had to be confirmed by a statement issued by the contracting party which had accepted the GATT on its behalf. Now, the “autonomy” of an independent customs territory does not need to be confirmed by another WTO member. As a result of these new practices in terms of membership, a new phenomenon of equal membership but unequal seats has emerged among the State Members of WTO. European Community and its membership also have a direct impact on the decision-making methods and procedures of WTO. Although WTO follows customary practices of GATT and adopts consensus as its basic way of decisionmaking, on certain major matters, such as admission of new members, exemption from member obligations, amendments to the relevant provisions of “Agreement Establishing the WTO”, etc., decisions must be made by vote. In order to prevent the “dual membership” of the European Community and its Member States from creating unequal voting rights among WTO Members, the “Agreement Establishing the WTO” specifically provides that “At meetings of the Ministerial Conference and the General Council, each Member of the WTO shall have one vote. Where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their Member States which are Members of the WTO.”

18.3.3 New Attempts at Treaty Law In the field of treaty practice, the WTO has the following three characteristics, namely the type of treaty, the acceptance of the treaty, and the interpretation of the treaty. The type of treaty is mainly due to the “dual membership” of the European Community and its Member States in the WTO. The special acceptance of the treaty is an important guarantee for the successful conclusion of the Uruguay Round and the establishment of the WTO. The interpretation of the treaty reflects some extraordinary practices of the GATT/WTO panel in the dispute settlement process, which has been criticized by European and American scholars.8 As a result of the European Community’s exclusive treaty-making powers in the area of external commercial policy, particularly in the area of trade in goods (with non-members of the EU), since the 1970s, the European Community has gradually replaced its Member States’ qualification to conclude treaties. Whether the codes reached in the “Tokyo Round” or the agreements reached in the “Uruguay Round”, the vast majority of codes and agreements are concluded by the European Community (rather than its Member States). In other areas, however, the European Community shares its right to external relations with its Member States, so that the European Community together with its Member States are the parties to the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) and the 8 McGovern

(1986).

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General Agreement on Trade in Services (GATS) in Uruguay Round. As a result, a new type of treaty has emerged in the WTO system—he “mixed agreement”—and it remains to be seen whether this mixed agreement generates “mixed liability” or “joint liability”. In the multilateral trade system of GATT/WTO, the mode of treaty acceptance has also undergone legally significant changes. Prior to the Uruguay Round, the agreements reached in previous Rounds were ultimately on a voluntary basis accepted by the GATT Parties. As a result, owing to the limited number of parties accepted, the agreements, which took years of painstaking negotiations to reach, were extremely limited in terms of scope and effectiveness in practice. The agreements reached in the Uruguay Round introduced a ground-breaking reform in the way of acceptance, i.e. with the exception of four agreement,9 other agreements, including the “Agreement Establishing the WTO”, were concluded as a package of acceptance. The practices of “bundling” a series of agreements in framework of the organization together with the membership of an international organization are undoubtedly new attempts in practices of the law of international organization and the law of treaty, which not only ensure space for the application of the treaty, but also strengthen the close relationship between the implementation of international organizations and international treaties. During the GATT period, the panel often referred to the historical background of the relevant GATT provisions as the first reference of interpretation when analyzing the relevant dispute facts and applying the relevant GATT provisions. It was then considered that this was clearly contrary to the provisions of Articles 31 and 32 of the Vienna Convention on the Law of Treaties, which not only laid down the general principles of treaty interpretation, but also established the order in which the various methods of interpretation were to be followed. That is, the literal interpretation, contextual interpretation10 and the purpose interpretation, while the historical interpretation (which includes information on the preparations for the treaty and the circumstances at the time of its conclusion) belongs to the supplementary explanatory information. Although several panel reports seem to endorse the steps for the interpretation of treaties under Article 32 of the Vienna Convention on the Law of Treaties and regard the preparations for the treaty as the last resort in the late GATT period, the general trend is that the panel still places historical interpretation at least on a par with other methods of interpretation, rather than as a secondary method. 9 Namely, “Civil Aircraft Agreement”, “Government Procurement Agreement”, “International Dairy

Products Agreement”, “International Beef Association”,the latter two agreements have been discontinued and their contents have been incorporated into the “Agriculture Agreement” and “Sanitary and Phytosanitary Agreement”. 10 Article 31 (2) of the Vienna Convention on the Law of Treaties states: “the context, except for the text of the treaty including the preamble and annexes, it shall include one or more agreements entered into by all parties to the: (a) Any agreement relating to the treaty as a result of the conclusion of the treaty. (b) Any instrument made by the parties as a result of the conclusion of a treaty and accepted by other parties as the relevant instrument of the treaty.” Section 31 (3) provides that: “ It shall be taken into account together with the context: (a) Any subsequent agreement relating to the agreement interpretation or its rules application signed between the parties; (b) Any subsequent practices determines the same meaning of interpretation of the treaty between the parties at the time of the application of the treaty.”

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It is worth noting that DSU concluded in the Uruguay Round has been improved in this regard. Article 3 (2) of the understanding states: “The dispute settlement system of the WTO is…to clarify the existing provisions of those agreements (i.e. any attached agreements in “Agreement Establishing the WTO”, author’s note) in accordance with customary rules of public international law”. It is generally considered that the “customary rules of public international law interpretation” of the abovementioned provisions refer to Article 31 and Article 32 of the “Vienna Convention on the Law of Treaties”, and fully authenticated by the practice of the panel since the establishment of WTO. For example, in the case of “US Standards for Reformulated and Conventional Gasoline”,11 due to the fact that Article 3(4) of the GATT 1994 did not specify the “same product” in national treatment, and the panel resolve this explanatory issue on the basis of Article 3(2) of the DSU, and with reference to the section 31 of “Vienna Convention on the Law of Treaties”. For this purpose, the panel reviewed the practices of all parties during the GATT period and concluded that these practices are relevant to the authentication of “same product”, as Article 31 of the Convention on the Law of Treaties states that “subsequent practices” should also take it into account when interpreting treaties.12 For example, in the case of “Japan-Taxes on Alcoholic Beverages”,13 the issue of interpretation of Article 3(2) of the 1994 GATT (essentially with regard to the definition of whether alcoholic beverages are the direct competition or alternative products), the panel also believes that it should apply the standards of interpretation set out in Article 31 and Article 32 of the Vienna Convention on the Law of Treaties. The panel concluded that, pursuant to Article 31 of the Convention on the Law of Treaties, the starting point for the interpretation of international conventions similar to GATT is treaty terms, which shall be interpreted as a whole in accordance with the context, the objective and purpose of the treaty, and subsequent practices and agreements should also be considered; while complementary methods of interpretation should be an exception and can only be applied under certain circumstances in Article 32.14 However, some researchers doubt the practical significance of Article 31 and 32 of the Convention on the Law of Treaties applied by WTO panel or remain cautious about practical effects of the two Articles on the interpretation of treaties in the settlement of WTO disputes. The reason is that among the existing WTO Members, some important members (such as the UN) are not parties to the Vienna Convention on the Law of Treaties, and moreover, it is impossible for the European Community to become parties to the convention. This means that these members are under no obligation to apply interpretation methods regulated by the convention in the dispute involving them. There is no doubt that the UN and the European Community are two pivotal members in the WTO dispute settlement system whether as complainant or as respondent.15 11 World

Trade Organization (1996b, d). Han (2001), p. 180. 13 World Trade Organization (1996a, c). 14 See Han (2001), p, 201. 15 Barnhoon and Wellens (eds.) (1995), p. 232. 12 See

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The above doubts or concerns seem unnecessary. Article 3(2) of DSU does not directly provide for the application of Article 31 and Article 32 of the Vienna Convention, but are “in accordance with customary rules of interpretation of public international law”. It is generally believed that the interpretation methods and sequences of treaties set out in Article 31 and Article 32 are already the customary rules of treaty interpretation, and that the Convention merely confirms these customary rules by the form of treaty. Therefore, whether the WTO Members are parties of convention or not, it shall not affect the application of customary interpretation rules stipulated in Article 31 and Article 32 of the panel or the appellate body in the settlement of specific disputes. After the establishment of WTO, the panel practicing on dispute settlement have proved this point. For example, in the above-mentioned “Japan-Taxes on Alcoholic Beverages” case, the panel clearly pointed out that the customary principles of the interpretation of public international law are included in the Vienna Convention on the Law of Treaties, and noticed that Article 3(2) of the DSU actually codified the established practices in the past.16

18.3.4 New Developments in International Liability The development of international liability or state liability system is one of the important symbols of the development of modern international law. The main manifestations of the development are as follows17 : First, great changes have taken place in the quantity and quality of the subject of international liability, the transformation of which is in line with the sharp increase in the number of subjects of international law and the diversification of types. Second, the scope and contents have been expanded. The traditional international liability mostly refers to the consequence that states breach the obligation in respect of the treatment of foreigners, but modern international liability has been extended to international liability for all internationally wrongful acts, including criminal liability. Third, the basis of international liability has been diversified, and traditional international law emphasizes that wrongful act is the sole basis of state liability, that is, states bear the consequences of breaches of their obligations under international law due to their intention or negligence, while modern international liability builds on the basis of the former theory of fault liability, puts forward the theory of liability without fault (also known as “consequential liability” or “absolute liability”), That is, although the subject of international liability has no intention or negligence, there are objective facts that violate international law and cause damage to other subjects of international law, or engage in activities not prohibited by international law and cause damage to other subjects of international law.

16 See 17 See

Han (2001), p. 201. Liang (ed.) (2001), pp. 129–130.

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In the course of the development of the international liability system summarized above, the liability system in the GATT/WTO system is a requisite part of it, especially in terms of the basis of international liability, the law of GATT/WTO and its practices are of their own particularity. From the perspective of the relevant legal provisions of WTO, it seems that “interest nullification or impairment” is the key basis for WTO Members to assume liability, it would be called “the theory of interest nullification or impairment “. Article 23(1) of the 1994 GATT and Article 3(3), (8) and Article 26 of the DSU have been stipulated in a consistent and systematic manner in terms of the application of interest nullification or impairment. Under the unique doctrine of WTO, the actions or measures of a member nullifies or impairs other WTO Members’ direct or indirect benefits gained under relevant WTO Agreements, or is hindering the achievement of any relevant WTO Agreements’ goal, although the actions or measures of a member do not violate the obligations of the relevant WTO Agreements or even do not contravene the relevant WTO Agreements, the member shall bear corresponding liabilities which may be requested by other members and adjudicated by the WTO dispute settlement body to assume respective liabilities. It can be seen that in terms of the elements of the composition of liability, “the theory of interest nullification or impairment” is much broader than the “theory of fault liability” or the “theory of consequential liability”. Throughout the practice of GATT/WTO, extensiveness of WTO’s “the theory of interest nullification or impairment” mainly has the following manifestations: 1. A member does not have to be responsible for trade losses caused by other members. A minor difference in the law (such as non-compliance with the principle of national treatment and non-compliance with the tariff schedule) may constitute prima facie “nullification or impairment” of other member’s interests so as to undertake the corresponding liabilities to adjust related measures or make compensation. 2. A member government shall also bear the corresponding liability if its administrative measures (not necessarily formal administrative regulations, such as administrative guides, etc.) results in discrimination against other members’ products, services, investments, etc. 3. A member’s legislation which is inconsistent with WTO law, even before its entry into force, may constitute liabilities for the prima facie “nullification or impairment” of the interests of the other member. 4. A member whose measures cause potential or indirect trade losses to other members (no specific damage has been caused) shall undertake liability even if it does not violate the obligations of GATT/WTO law, that is, the so-called “non-violation nullification and impairment”. 5. If any WTO member considers that the actions or measures of a member hinder the achievement of specific objectives relating to multilateral trade agreements, whether directly or indirectly affecting its interests, it could charge the member with “nullification or impairment.” If we further analyze the essence of the theory or jurisprudence of “the theory of interest nullification or impairment” of WTO, it seems that we can get the following

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two impressions about the focus of the responsibility system of WTO and even the principles, rules, regulations and systems stipulated by the whole WTO law: first, this system guarantees not only the continuous increase of trade volume or a certain degree of trade flow among members, but also the competition relations, opportunities and environment among members; second, this system maintains not only the balance between the rights and obligations of members under WTO law, but also, more importantly, the balance of economic and trade interests among members.

18.3.5 Uniqueness of Dispute Settlement The establishment of WTO dispute settlement mechanism and its achievements have always been the subject of great pride for politicians and scholars when they talk about WTO and its laws.18 Ruggiero, the first secretary general of WTO, once pointed out that “no review of the achievements of the WTO would be complete without mentioning the Dispute Settlement system, in many ways the central pillar of the multilateral trading system and the WTO’s most unique contribution to the stability of the global economy”.19 Professor Jackson, a famous American GATT/WTO jurist, even recognized that “the core feature of WTO is its dispute settlement mechanism”, “dispute settlement mechanism is unique in international law and practices of international relations”. Generally speaking, the uniqueness of WTO dispute settlement mechanism is mainly listed in the following aspects: 1. The WTO dispute settlement mechanism is a comprehensive mechanism that combines political (or diplomatic) methods with legal (or judicial or quasijudicial) methods. Although the various specific methods in the mechanism, whether political or legal, have long existed as individual method or procedure in the practice of international law and international relations, the combination of various dispute settlement methods in the form of agreements into a comprehensive mechanism is indeed a unique contribution of international dispute settlement law and its practice. In the WTO dispute settlement mechanism, there is a chain-like procedure between various political and legal methods. Various procedures have fixed deadlines, are relatively independent of each other, but also closely linked. 2. In inheriting the policy-oriented or pragmatic oriented approach of past GATT dispute settlement mechanism, the WTO dispute settlement mechanism enhances

18 It can’t be perfect. For example, there is no corresponding judicial procedure in the WTO dispute

settlement mechanism to review panel reports, reports of appellate body and justness and legality of dispute settlement body’s decisions. Another example, the problem of inconsistency between Article 21(5) and Article 22 in “the letter of understanding on dispute settlement rules and procedures” exposed by “The Banana case”. 19 Speech by Ruggiero, the first Director-General of the World Trade Organization, quoted from World Trade Organization (1999), p. 68; see also Han (2001), p. 6.

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more rule-oriented approach methods and procedures, such as arbitration procedures, the judicial nature of panel reports, appeal procedures, and adoption of rulings of dispute settlement institutions. However, while strengthening legal methods and procedures, political methods have been given priority from the outset. 3. The WTO dispute settlement mechanism is of obvious exclusiveness or specificity. Any dispute between WTO Members concerning matters covered in the respective agreements of the WTO can only be settled under the WTO dispute settlement mechanisms and must not resort to any other method or procedure. 4. 4 WTO dispute settlement mechanism has a high degree of unity. In the WTO multilateral trading system, not only all kinds of disputes related to the Agreement Establishing the WTO and the 1994 GATT must be submitted to the dispute settlement mechanism, but also all kinds of multilateral trade agreements, even some disputes under the plurilateral trade agreements must be settled in the dispute settlement mechanism. The unity of the dispute settlement procedure fundamentally overcomes serious defect in this respect in the past time of GATT—“Balkanization” or “fragmentation” phenomenon. In addition, the reverse (inverted) consensus rulings and the new cross retaliation authorization awards are special measures with which WTO dispute settlement mechanism enhances its mandatory. In the form of a reverse consensus ruling, the dispute settlement body composed of representatives of all WTO Members shall negate panel reports or conclusions of re-examination of the appellate body. The above way may be possible in theory, but it is unlikely in practice, because the negative opinions of one or more members are difficult to obtain the unanimous agreement of the vast majority of other members. In the situation of authorized cross retaliation, the damage caused by a member in the department of an agreement may seeks compensation in another department of the agreement or another agreement, that is, inter-departmental or cross-agreement retaliation to open up a new way of compensation maintaining the balance of economic and trade interests between WTO Members. Finally, the GATT/WTO dispute settlement mechanism does not seem to pay much attention to the international law rule of “exhaustion of local remedies”. In the WTO legal system, there are some areas (such as anti-dumping agreement, countervailing agreement, safeguards agreements, etc.) are not mainly concerned with the rights of member governments, but with the rights of companies and enterprises. In cases of these areas, enterprises and companies directly involved in the relevant investigation procedures, and may resort to judicial review procedures towards measures taken by the related government departments.20 The question is, under WTO law, when a company of one member seeks redress for an injury to the interests of another member, it may request diplomatic protection from its own government, thereby 20 Judicial review requirements are stipulated in “agreement on dumping and Anti-dumping”, “Agreement on subsidies and countervailing Rights”, “Agreement on Trade-related aspects of intellectual property Rights”, “General Agreement on Trade in Services” and so on. See Zeng (2001).

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necessitating the exhaustion of local administrative and judicial remedies? Or, shall a government of a member which seeks to protect (directly or indirectly) the legitimate interests of its companies in another member have to wait until the company has exhausted local remedies in the territory of the other member before accusing the other member in the WTO dispute settlement mechanism? It is generally believed that the exhaustion of local remedies is a rule of customary international law and explicitly confirmed in Draft Articles on Responsibility of States for Internationally Wrongful Acts of the United Nations International Law Commission. However, some scholars believe that the exhaustion of local remedies rule in diplomatic protection of general international law does not apply to the GATT/WTO law. The reason is that a state sues another state for infringing upon the citizen rights when the state exercises the right of diplomatic protection, while a state as a member of WTO claims its own national rights in the GATT/WTO dispute settlement mechanism.21 In fact, the above point of view is open to question, because the state claims rights in its own name when a state exercises its right of diplomatic protection. Nevertheless, neither the past GATT nor the present WTO has a clear provision on the exhaustion of local remedies, and the practice of the GATT/WTO dispute settlement mechanism does not seem to follow this customary international law rule. In sum, since the establishment of the WTO dispute settlement mechanism, the number and speed of disputes accepted and settled has greatly exceeded its predecessor, GATT, its efficiency and reputation continues to improve. All of these, to a large extent, depends on the uniqueness of WTO dispute settlement mechanism.

References Barnhoon LANM, Wellens KC (eds) (1995) Diversity in secondary rules and the unity of international law. Martinus Nijhoff Publishers, Leiden Fedros et al (1981) International Law (trans: Li Haopei). Commercial Press, Beijing Han L (2001) WTO case and analysis, vol 1. Renmin University Press, Beijing Kuyper PJ (1995) The law of GATT as a special field of international law. In: Barnhoom LANM, Wellens KC (eds) Diversity in secondary rules and the unity of international law. Martinus Nijhoff Publiishers, Leiden, pp 227–257 Liang X (ed) (2001) International law, 2nd edn. Wuhan University Press, Wuhan McGovern E (1986) Disputes settlement in the GATT—adjudication or negotiation? In Hilf M, Jacobs F, Pertarsmann E-U (eds) The European community and the GATT (pp. 73–84). Kluwer, Deventer Petersmann E-U (1991) GATT dispute settlement proceedings in the field of anti-dumping law. Common Market Law Rev 28(1):69–113 Schermers HG, Blokker NM (1995) International institutional law, 3rd edn. Martinus Nijhoff Publishers, Leiden World Trade Organization (1996a) Report of the appellate body. Japan-Taxes on Alcoholic Beverages (WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)

21 Petersmann

(1991), pp. 101–102.

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World Trade Organization (1996b) Report of the appellate body. UN Standards for Reformulated and Conventional Gasoline (WT/DS2/AB/R) World Trade Organization (1996c) Report of the panel. Japan-Taxes on Alcoholic Beverages (WT/DS8/R, WT/DS10/R, WT/DS11/R) World Trade Organization (1996d) Report of the panel. UN Standards for Reformulated and Conventional Gasoline (WT/DS2/R) World Trade Organization (1999) Trade towards the future. Law Press China, Beijing Zeng L (1996a) Law of the world trade organization. Wuhan University Press, Wuhan Zeng L (1996b) The legal system of the world trade organization. Law Review 2:40–44 Zeng L (1999) Dual status of the European community and its member states in WTO and its impact on China. Legal Rev 2:38–45 Zeng L (2001) China’s entry into WTO and improvement of the judicial review system. J Wuhan Univ (Philos Soc Sci) 3:261–267

Chapter 19

WTO’s Self-contained Rule of Law Model and Its Challenges

19.1 Introduction With a history of only 15 years (or half a century if the previous GATT period is included), the WTO has gradually developed into a self-contained model of the rule of law in various aspects such as institutional structures, terms of reference, decision-making methods, legal systems, dispute settlement mechanism and in-depth requirements for the domestic (internal) rule of law of its Members, and has made gratifying achievements in advancing the rule of law in multilateral trade. It is true that the WTO rule of law is not flawless, and the criticism of it and the calls and suggestions for reform have never stopped during the past 15 years. One of the important reasons why the ongoing Doha Round has not come to an end after 10 years’ negotiation is that the issues and processes are intricate and complex, which involve not only a series of substantive trade and trade-related issues, but also the reform of the multilateral trading system itself. After all, the essence of the Doha Round is the self-improvement of the rule of law in multilateral trade. The author believes that among the many challenges faced by the WTO rule of law, the most critical ones are: the balance between the WTO competence and the sovereignty (or autonomous power) of its Members, the substantial integration of its developing country Members into the WTO, the erosion of the rapid proliferation of regional trade agreements to the principle of non-discrimination, the enhancement of democracy, transparency and efficiency of WTO decision-making processes, and further improvements of dispute settlement mechanism. These major challenges will be explored in this article.

The Article was originally written by Prof. Zeng in Chinese, and published in Law Science Magazine (Faxue Zazhi), Issue 9, 2011, pp. 37–46. It was then translated by Ms. Qian Zhang, and proofread by Dr. Jiao Zhang.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_19

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19.2 The Balance Between the WTO Competence and the Sovereign Power of Its Members One of the controversies about the future development of the WTO focused on whether the WTO competence should be expanded to other new areas such as investment, competition, environment, human rights and so on, or should the current situation be maintained. For most developing country Members and some commentators, the WTO has eroded the sovereign powers of and constantly restricted the decisionmaking space of its members, especially the developing ones, by forcing them to follow a single model of market freedom and therefore making them lose the ability to determine their own development directions and priority projects. On the other hand, for developed country Members, there are a range of reasons supporting the allocation of competence at the international level, including what is called “coordinated interests” by some economists, which means that if every government acts in its own interests without coordination, everyone will be harmed in the end.1 Furthermore, in the context of the global economy, it is increasingly difficult for States to make efficient regulations, and this is especially the case for global and transferrable economic elements such as investment, currency payment and monetary policies, and personnel mobility.2 Therefore, the European Union and other developed country Members have been striving to promote the WTO rules in investment and competition policies in the past few decades. In the Singapore Ministerial Conference of 1996, two separate working groups has been established to examine the relationship between trade and investment, as well as the interaction between trade and competition policies.3 The Conference also decided to establish a working group to conduct a study on transparency in government procurement practices and direct the Council for Trade in Goods to undertake exploratory and analytical work, on the simplification of customs procedures, which is generally called “Trade Facilitation”.4 However, most developing country Members have expressed strong opposition to the new WTO rules negotiated on these “Singapore Issues” for fear that these new rules may impose organizational and fiscal burdens on them, and restrictions on domestic society and economic development policies.5 More importantly, many developing country Members, given their limited bargaining power, have not fully and efficiently participated in additional negotiations on “Singapore Issues” besides the established heavy agenda of the Doha Round.6 Consequently, although the Doha Ministerial Declaration in 2001 indicated that the negotiations on these new issues could not be started until the next ministerial 1 See

First Warwick Commission (2007), para. 129. ibid, para. 139. 3 See World Trade Organization (1996), para. 20. 4 See ibid, para. 21. 5 See Van den Bossche (2005), p. 705. 6 See ibid. 2 See

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conference, i.e. the Cancún Ministerial Conference, the negotiations did not take place as scheduled due to the failure of this Conference. Nevertheless, in accordance with the Doha Work Program adopted on 1 August 2004, the General Council decided to started the negotiations on Trade Facilitation to meet the needs of developing country Members in this regard and to strengthen technical assistance and capacity-building in this area. Meanwhile, the General Council decided not to initiate negotiations on the other three “Singapore Issues” (i.e. investment, competition policies and transparency in government procurement), but stopping negotiations on these new issues in the ongoing Doha round does not mean that they will not be launched in the future. In addition, some scholars and non-governmental organizations have been proposing to start negotiations on trade-related human rights issues, at least to reach an agreement on trade-related social provisions within the framework of WTO, namely, to formulate WTO rules to link core labor standards with trade, although the Singapore Ministerial Declaration implicitly excluded this possibility.7 It is time to strike a prudent and appropriate balance between the expansion of the WTO competence and the reservation of the sovereign power of its Members, although this is difficult to achieve. In this process, the most important matter is the balance between the principle of state sovereignty and the globalization of growing world and human affairs. As the cornerstone of international relations, the principle of state sovereignty shall be upheld and respected, no matter what changes have taken place in the international community or to what extent. No country, be it developed or developing, big or small, is willing to give up or sacrifice its sovereign power and interests. Under this principle, a sovereign state is the one that enjoys supreme political authority and a monopoly over the legitimate use of force within its territory, the one that is capable of regulating movements across its borders, the one that can make its foreign policy choices freely, and the one that is recognized by other governments as an independent entity entitled to freedom from external intervention.8 However, these components of sovereignty has never been absolute, but together they offered a predictable foundation for world order. What is significant today is that each of these components—internal authority, border control, policy autonomy, and non-intervention—is being challenged in unprecedented ways.9 As the former UN Secretary-General Annan observed, our post-war organization was originally built for an interstate world, but now we live in a globalizing world.10 It is clear that in the context of this “globalizing world”, countries, whether individually or jointly with limited participants, cannot solve some core dilemmas confronted by all countries; similarly, no private sector can deal with “market failure” problems such as monopoly and competition problems. The only appropriate instrument is a multilateral system, such as the WTO. Ultimately, what counts is 7 See

World Trade Organization (1996), para. 4. Haass (2003). 9 See Haass (2003). 10 Annan (1999). As quoted in Haass (2003), p. 19. 8 See

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whether the balance between some loss of “policy space” at the national level and the advantages of cooperation and the rule of law at the multilateral level is positive or negative.11

19.3 The Substantial Integration of Developing Country Members into the WTO For a long time, GATT/WTO has always recognized the close relationship between trade and development and its significance, and has made continuous efforts to integrate its developing country Members into the multilateral trading system and help them benefit from it: from the fourth part of GATT 1947, titled “trade and development”, in the mid-1960 s, to the implementation of “Enabling Clause” in the Tokyo Round in 1979; from almost all the multilateral trade agreements in Uruguay Round that contain Special and Differential Treatment Provisions for developing countries, followed by the trade capacity-building and technical assistance measures launched by the WTO for developing countries, especially for least developed countries, and zero tariff and quota market access for their product imports, to the launch of the ongoing Doha Development Agenda. Currently, the breadth and the depth of the participation of developing countries, which accounts for two-thirds of the WTO Members, has greatly surpassed those in the past GATT era. In WTO multilateral trade agreements, developing country Members enjoy more rights and interests than before on the one hand, and undertake more obligations in market access, traderelated investment and intellectual property on the other hand. Additionally, it should be recognized that with the support of various WTO projects, the trade capacity of developing country Members has been enhanced to some extent in recent years. However, all these efforts and achievements have not substantially improved the fragile position of developing country Members in the multilateral trading system, as well as the imbalance in sharing the benefits from trade liberalization and trade growth, the recession of the economic and social development, and the low capacity of trade and the rule of law. The poor situation of developing country Members, if not improved in time and effectively, will not only deteriorate their own stability and development, but also threaten the interests of developed country Members, the fundamental structure of the WTO, and even the whole world economy in this global age. In this context, in November 2001, trade Ministers launched the Doha Development Agenda at the Doha Ministerial Conference, aiming to fully respond to the needs of all WTO Members, both developed and developing. Through this agenda, WTO Members put development issues and the interests of developing country Members at the center of WTO work. Meanwhile, in order to promote the integration of developing country Members into the WTO, Ministers also agreed to deal with the specific difficulties encountered by developing country Members in the implementation of the 11 See

Sutherland et al. (2004), para. 14.

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existing WTO multilateral trade agreements; to strengthen the Special and Differential Treatment Provisions in the WTO multilateral trade agreements; and to increase and better coordinate various trade-related technical assistance and capacity-building activities.12 Unfortunately, the Doha Round has not made much progress in the following three aspects: (1) There are about 100 implementation-related issues and concerns that were brought to the Doha Ministerial Conference. Although a considerable number of implementation-related issues and concerns have been successfully addressed (more than 40 projects under 12 headings have been resolved during or before the Doha Conference), others raised by a large number of developing country Members have not been satisfactorily resolved. The Doha Declaration indicated that some outstanding issues would be addressed through multilateral negotiations and be included into the agenda of the Doha Round as scheduled. Ministers also agreed to treat other outstanding implementation-related issues and concerns as “priorities” by relevant WTO bodies. As the Doha Round has not been successfully concluded so far, all outstanding implementationrelated issues and concerns, including those listed in multilateral negotiations and assigned to relevant bodies, are still in their original state. (2) There are still many expectations for the implementation of Special and Differential Treatment Provisions in WTO Agreements, which have been classified according to the following six-fold typology, namely, provisions aimed at increasing the trade opportunities of developing country Members; provisions under which WTO Members should safeguard the interests of developing country Members; flexibility of commitments, of action, and use of policy instruments; transitional time periods; technical assistance; and provisions relating to least-developed country Members.13 In the Doha Declaration, member governments agreed that these provisions should be reviewed with a view to strengthening them and making them more effective and operational. More specifically, the declaration (together with the Decision on Implementation-Related Issues and Concerns) mandates the Committee on Trade and Development to identify which of those special and differential treatment provisions are mandatory, and to consider the legal and practical implications of making mandatory those which are currently non-binding. In addition, the Committee is to consider ways in which developing countries, particularly the least-developed countries, may be assisted to make best use of special and differential treatment.14 In accordance with the Work Program on Special and Differential Treatment,15 developing countries, including the least-developed countries, made 88 proposals concerning specific agreements at the special session of the 12 See

Van den Bossche (2005), p. 694. Committee on Trade and Development (2001), para. 3. 14 See http://www.wto.org/english/tratop_e/devel_e/dev_special_differential_provisions_e.htm. Accessed 11 August 2010. 15 World Trade Organization (2001), para. 44. 13 See

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Committee on Trade and Development, 38 of which (Category II) were transferred to other negotiating groups and WTO bodies for consideration; of the remaining recommendations considered by the special session (Category I), members agreed in principle on 28 proposals in 2003, although they have yet to be formally adopted.16 Additionally, WTO Members have adopted the Decision on Measures in Favor of Least-Developed Countries at Hong Kong Ministerial Conference.17 On Category II proposals, the Chairs have periodically reported to the General Council. These reports have indicated that only very limited progress has been made on these proposals. This is largely due to the fact that the issues raised in many of the proposals form an integral part of the ongoing negotiations in the respective bodies. As for the operation of the Monitoring Mechanism, discussions have focused mainly on its Structure, Scope and Functions. Although discernible movements have been achieved, Members continue to have divergent views on a number of issues.18 (3) It is necessary to further strengthen and coordinate trade-related assistance and capacity-building activities. Aid for trade and capacity-building are the core elements of the WTO development issues, aiming to promote developing countries, especially least-developed countries to develop skills and infrastructure needed to implement and benefit from WTO Agreements and expand their trade. The success of these initiatives rests on the establishment of the closer partnership among the trade, finance and development officials from the capitals of WTO Members, and on matching close cooperation between intergovernmental organizations and their member governments at international and regional levels. The WTO can make contributions by encouraging additional flows of Aid for Trade from bilateral, regional and multilateral donors to support requests for trade-related capacity-building from beneficiary countries, by supporting improved ways of monitoring and evaluating the initiative and by encouraging mainstreaming of trade into national development strategies by partner countries. Additionally, the Enhanced Integrated Framework is the main mechanism through which least-developed countries access Aid for Trade. The Aid for Trade initiative was launched at the Hong Kong Ministerial Conference in December 2005. In February 2006 the WTO established a Task Force, with the aim of “operationalizing” Aid for Trade. The Task Force recommended in July 2006 that Aid for Trade should focus on identifying the needs within recipient countries, responding to donors and acting as a bridge between donors and developing countries. It also recommended the establishment of a monitoring body in the WTO, which would undertake a periodic global review based on reports from a variety of stakeholders. In 2007 the WTO’s Aid for Trade initiative moved into its first stage of implementing the 2006 recommendations of the Aid for Trade Task Force. Besides, the WTO started to establish a system of monitoring Aid for Trade at three levels: first, global monitoring of overall Aid for Trade flows, based on work carried out 16 World

Trade Organization (2003c), Annex C. Trade Organization (2005), Annex F. 18 Committee on Trade and Development (2010). 17 World

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by the OECD; second, monitoring the commitment of individual donors to provide additional Aid for Trade; and third, monitoring how the needs of developing countries for additional Aid for Trade are being presented to, and met by, the international donor community, including the development banks.19 The above clearly shows that the expansion, deepening and strengthening of these aid initiatives are just on the way. In view of the huge demand, both long-term and short-term, for Aid for Trade and capacity-building in developing countries, their trade capacity and these aid initiatives must be strengthened in a sustainable way, donations need to constantly increase, and various aid and capacity-building activities should be further strengthened.

19.4 The Erosion of the Proliferation of Regional Trade Agreements to the Principle of Non-discrimination Regional trade agreements have become a hotspot issue in the multilateral trading system. As of 31 July 2010, 474 regional trade agreements have been notified to the GATT/WTO. The number of trade agreements in force has also continued to grow; moreover, many of the trade agreements under negotiation indicate that the trend of growth will be further strong.20 RTAs, as the most significant exception of the Most-Favored-Nation treatment, were allowed for the first time under the Article XXIV of the GATT 1994 (i.e. the establishment of free trade areas and customs unions, as well as their transitional arrangements), then they were extended to the preferential trade agreements between developed countries and developing countries and between developing countries through the “Enabling Clause” in 1979, and then to the regional integration of trade in service through the Article V of the GATS. Since the GATT first provided special legal status for RTAs in the multilateral trading system in 1947, the debate about the concussion of RTAs on the GATT/WTO has never been interrupted, mainly between the “building blocks” and “stumbling blocks” theorists. It is worth noting that after the failure of the Cancún Ministerial Conference, the following Doha Round has not come to an end. The ever-expanding RTAs have made more and more politicians, observers and scholars believe that this trend will do more harm than good to the multilateral trading system.21 In the long run, the increasing proliferation of FTAs is bound to threaten the practical and effective application space of the MFN treatment principle. As worried in the Report by the Consultative Board to Director-General, “yet nearly five decades after the founding of the GATT, MFN is no longer the rule; it is almost the exception. Certainly, much trade between major economies is still conducted on an MFN basis. However, what has been termed as the ‘spaghetti bowl’ of customs unions, common 19 See

http://www.wto.org/english/tratop_e/devel_e/a4t_e/aid4trade_e.htm. Accessed 11 August 2010. 20 See http://www.wto.org/english/tratop_e/region_e/region_e.htm. Accessed 13 August 2010. 21 See Lingliang Zeng (2004).

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markets, regional and bilateral free trade areas, preferences and an endless assortment of miscellaneous trade deals has almost reached the point where MFN treatment is exceptional treatment. Certainly, the term might now be better defined as LFN, LeastFavored-Nation treatment. Does it matter? We believe it matters profoundly to the future of the WTO”.22 However, this does not mean that the RTAs have no positive significance. Supporters believe that RTAs can promote trade liberalization in a faster and more effective way, contribute to regional stability and social security, help trade and economic development of developing countries more effectively, accumulate experience for multilateral trade liberalization, etc. Perhaps the most persuasive and positive reasons for regional trade agreements are those preferential trade agreements that conform to and belong to the WTO development policies and the special and differential treatment stipulated in the WTO Agreements, except for the reasons as the exceptions of the MFN treatment principle. On the other hand, in practice, preferential trade agreements have brought some new problems23 : (1) Multiple preferential trade agreements mean the application of multiple preferential rates to multiple trading partners—and often within schemes that have different timelines for reaching the final zero or low-tariff preferential rate, which makes the administration of these schemes complicated. In addition, preferential origin rules are complex and inconsistent. Since the absence of the harmonized rules of origin, and the preferential arrangements were even excluded from the multilateral trade negotiation on rules of origin, the origin of goods is arbitrarily defined in practice. (2) Economists have divergent opinions on whether preferential trade arrangements are “building blocks” or “stumbling blocks” in the opening market at the multilateral level, but some of the trends in recent years are not always positive or encouraging. Participation in PTAs contributes to innovative policies in such areas as investment rules and market regulations. There have already been some implications that the last generation of PTAs has seen diminished attention to tariff issues relative to increased focus on regulatory issues in goods and services trade. This is creating complex networks of trade regimes, potentially undermining transparency and predictability in international trade relations, and eventually making it more difficult to attain meaningful multilateral liberalization. Besides, the diversion of skilled and experience negotiating resources to PTAs—especially for developing countries and probably for rich countries also—is too great to permit adequate focus on the multilateral stage. (3) One other unanticipated and significant issue that has arisen with the growth of PTAs is the injection of particular “non-trade” objectives into trade agreements. Apart from comparatively ambitious and one-sided provisions on intellectual property rights, we have seen an increasing tendency on the part of preference

22 See 23 See

Sutherland et al. (2004), para. 60. Sutherland et al. (2004), paras. 81–87.

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givers to demand significant labor and environmental protection undertakings— and even restrictions on the use of capital controls—as the price for preferential treatment. Similarly, the Generalized System of Preferencess also inevitably faces criticism of its shortcomings in implementation. First, the GSP was to be granted unilaterally by developed countries and for developmental purposes. In reality, the recipient countries have been burdened with obligations unrelated to trade, which are expressed as conditions to receiving preferences. Thus, it can be argued, preferences are no longer unreciprocated. Second, grantor, rather than grantee, country interests have determined the product coverage and the preference margins in GSP schemes. Third, empirical studies of the impact of GSP schemes conclude that little benefits have in fact accrued to developing countries. Fourth, the offer of preferential market access serves to undermine the incentive and the ability of developing countries to stand up to their own domestic protectionist pressures. Finally, the tendency of GSP beneficiaries to become over-reliant on preferences (or trapped by the nature of the system) at the expense of industrial agricultural diversification is a common and observable phenomenon.24 Noting the possibility of negative impacts of RTAs on the basis of the multilateral trading system, WTO Members agreed to establish the Committee on Regional Trade Agreements as the single body responsible for the examination of agreements to strengthen the review and monitoring on RTAs. The examination of the RTA served two purposes: it ensured the transparency of RTAs and allowed WTO Members to evaluate an agreement’s consistency with WTO rules. The examination was conducted on the basis of information provided by the parties to the RTA, as well as through written replies to written questions posed by WTO Members or through oral replies to questions posed at CRTA meetings. Once the factual examination was concluded, the Secretariat drafted the examination report. Thereafter, consultations were conducted and once the report was agreed by the CRTA, it was submitted to the relevant superior body for adoption. However, due to the lack of consensus among WTO Members, no examination report has been completed since 1995. One of the problems stems from the possibility of the connection between the determination of the consistency of RTAs and dispute settlement procedures. In addition, for a long time, there have been disputes on the interpretation of WTO rules on RTAs, and there are also structural problems, or lack of WTO rules (such as preferential origin rules), or differences between WTO rules and some RTAs. In view of this, at the Doha Conference, the Ministers agreed to launch negotiations aimed at clarifying and improving disciplines and procedures under existing WTO provisions applicable to RTAs, and at the same time, taking due account of the development aspects of these agreements.25 Unfortunately, according to a recent report submitted by the Chairman of the Negotiating Group on Rules to the Trade Negotiations Committee, while no one is disputing the fundamental 24 See

Sutherland et al. (2004), paras. 94–101.

25 http://www.wto.org/english/tratop_e/region_e/regcom_e.htm.

Accessed 13 August 2010.

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importance of the issues, the Group cannot advance and conclude its work in this area without text-based proposals by Members.26

19.5 The Enhancement of Democracy, Transparency and Efficiency of WTO Decision-Making Process As a “Members-driven” organization, and, to a large extent, a negotiation machine, WTO aims to use multilateral consensus as its basic means to end bargaining and decision-making, and to respond to challenges of global trade through negotiations. As discussed before, the multilateral trading system is working well on the whole. However, in recent years, the WTO has sometimes given the impression of being unable to negotiate effectively (the repeated delays of the ongoing Doha Round is the most typical example).27 Apart from efficiency issues, some critics also point to the issues of democracy and transparency in the operation of the WTO, describing it as a group of grey-suited, secretive and anonymous men dictating the future of entire countries from behind closed doors.28 Some critics also pointed out that the reliance of the WTO on a system of decisionmaking by “consensus” makes it far more difficult for developing country Members to stand in open opposition to the forceful delegations of the EU, USA and other rich countries. The WTO decision-making process functions through a system known as “passive consensus”, whereby any WTO member country which is not actively opposing a position is taken to be in favor of it—even if that country’s representatives are not actually present at the meeting. This has sometimes led to major decisions being taken without the full membership being represented. Indeed, the final Declaration of the WTO’s Doha Ministerial was “approved” despite the absence of many WTO Member countries: the Ministerial had run well past its scheduled deadline, and several smaller delegations had been forced to return home on pre-booked flights. The system of passive consensus also allows for more powerful countries to use an armory of threats and pressures in order to win over opposing delegates, since those delegates will only need to remain silent for the “consensus” decision to go through. A full picture of the pressures which developing countries face in their negotiations at the WTO is only just beginning to emerge, as a result of new publications based on extensive interviews with trade negotiators themselves. These interviews reveal a situation in which less powerful countries regularly find themselves being pressured to support decisions which they know are not in their own interest, but which they dare not oppose. Sometimes the pressure is a direct result of stronger bargaining power or negotiating capacity within the WTO itself, given that richer countries are able to

26 Negotiating

Group on Rules (2010), para. 18. Sutherland, et al. (2004), para. 270. 28 See Sutherland et al. (2004), para. 313. 27 See

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bring far greater resources to the negotiating table.29 There are many potential explanations for the sometimes troubling absence of substantive negotiating advances in recent years, such as the broader and more intense participation of WTO Members, the enhancement of their negotiation capacity, the increasing complexity and sensitivity of negotiations, the widening gap among the interests of the Members, the increasingly fierce competition among them, etc.30 Nevertheless, the report believes that, on the one hand, the current organizational structure and consensus approach do not need to be changed greatly, and on the other hand, the following minor reforms are necessary: In the light of the problems on efficiency and decision-making methods, the Consultative Board has two recommendations. First, it recommends that the WTO Members give serious further study to the problems associated with achieving consensus in light of possible distinctions that could be made for certain types of decisions, such as purely procedural issues. As a second recommendation in this context, the Consultative Board urges the WTO Members to cause the General Council to adopt a Declaration that a Member considering blocking a measure which otherwise has very broad consensus support shall only block such consensus if it declares in writing, with reasons included, that the matter is one of vital national interest to it.31 Sessions of the Ministerial Conference currently take place every two years, which is too seldom and out of line with other major international bodies. Instead, The Ministerial Conference of the WTO should normally meet on an annual basis; the Director-General should be required to report to ministers in writing on a six-monthly basis; and a WTO Summit of World Leaders should be held every five years.32 In addition, to construct a specific vehicle to accommodate senior official’s participation in Geneva, the Consultative Board also advised that a senior official’s consultative body to be chaired and convened by the Director-General should be established to meet on a quarterly or six-monthly basis; that membership be limited and composed on a partly rotating basis; that funding be available to ensure senior officials from the capital of developing countries attend; and that when necessary, the consultative body could meet wholly or partially at ministerial level.33 The Consultative Board further suggested that the Director-General should have the capacity and the standing to be at the center of negotiations during Ministerial meetings, and explore with the relevant groups the potential for increased coordination and group representation in restricted meetings.34 Apart from the report by the consultative Board, there are many suggestions from experts or scholars aimed at enhancing the democracy, transparency or efficiency of the WTO. A bold proposal is to develop a parliamentary dimension to the WTO 29 Action Aid Aliance, WTO Democracy and Reform, http://www.Actionaid.org, visited on 30 September 2010. 30 See Sutherland et al. (2004), paras. 274–276. 31 See ibid, paras. 288–289. 32 See ibid, paras. 317–320. 33 See ibid, paras. 321–327. 34 See ibid, paras. 332 and 336.

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to remedy these deficiencies.35 Some experts advise to establish a Management Council or other small committees composed only of some WTO Members. Some experts also suggest that the WTO’s functions and powers should be extended to the general adjustment of the international economy, and worry that the WTO lacks sufficient organizational capacity to play an effective role in the future. Although these proposals are not intended to turn the WTO into a “world government”, they emphasize that at present, within the WTO, there is a tough and legally binding dispute settlement mechanism on the one side and a relatively weak, clumsy and political rule-making and negotiation machine on the other side, and the imbalance between them is obvious.36 Other scholars further suggest to inject weighted voting system as a supplement to the consensus approach, that is, weighted voting may be used in case of consensus cannot be reached. They believe that although the current decision-making show formal equality among Members, they are actually unequal, because they do not take into account the real political and economic strength of WTO Members. They also put forward several alternative models of weighted voting system, including according to the contribution to WTO, the GDP, the market openness, the population, etc. They think this new system may help overcome the major difficulties in trade negotiations and in the daily operation of the WTO.37 The weighted voting system has been supported by some scholars. For example, some believed that unless the consensus principle is surgically converted into a weighted voting formula, the multilateral trade negotiations are hard to achieve success. Furthermore, obstruction will be even more serious when a sizable number of Members, even as many as thirty, that collectively represent less than 10% of world trade, insist on their way or the highway.38 An idea along these lines discussed by the Warwick Commission was to create a voting arrangement embodying two thresholds. The first threshold would relate to country size, such that a decision could be carried by a certain percentage of global trade or global national income. The second threshold would require that a minimum number of countries voted in favor of a decision. Although the Commission alleged that this combination could protect the interests of large and small countries alike, it decided to support the idea of a critical mass instead of the weighted voting system.39 All the above recommendations on the reform of the organization and operation of the WTO have their own advantages and disadvantages. What really counts is how we make appropriate choices. No matter what specific measures are adopted, the most important premise is that the reform must be carried out under the guideline of “Members-driven”, that is, to ensure that the overall operation of the WTO and multilateral trade negotiations is driven by all Members instead of merely by

35 Steger

(2009). and Ehring (2005), Steger (2004), Bronckers (1999). 37 Cottier and Takenoshita (2008). 38 Hufbauer (2005). 39 First Warwick Commission (2007), pp. 29–32. 36 Ehlermann

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some Members or the so-called “key players”. Secondly, the reform should be ruleoriented. One of the most urgent issues is to study the possibility of amending relevant provisions of the Agreement Establishing the World Trade Organization, which aims to shorten the intermission period and increase the number of plenary sessions of the Ministerial Conference; to establish a senior officials’ consultative body on trade and trade-related issues; to strengthen the Director-General’s involvement in the plenary sessions of the Ministerial Conference and multilateral trade negotiations, and the coordination of different interest groups and regional groups; to inject provisions on the regular submission of written reports by the Director-General to the Ministerial Conference; to divide decision-making issues into two categories, i.e. substantive issues and procedural issues, and for the decisions of the latter adopt the simple majority rule rather than the consensus approach; to require the Members who intend to block a measure which otherwise has very broad consensus support to declare in writing, with reasons included, that the matter is one of vital national interest to it; and so forth. Thirdly, the main bodies of the WTO should formulate and perfect their procedural rules, aiming to ensure the greatest degree of transparency in the meetings of The Ministerial Conference, the General Council, sub-Councils and sub-Committees. Fourthly, the WTO should continue to strengthen and expand its openness to public, non-governmental organizations and private sectors. Finally, we should take a prudent attitude on the establishment of a parliamentary body. The WTO is a multilateral trading system rather than a comprehensive organization or international human rights organization or international environmental protection organization. Therefore, it is seemingly not necessary to set up a special parliamentary body which may otherwise bring about additional personnel resources and fiscal burdens in promoting the democracy of the WTO. The democracy and legitimacy of the international adjustment can be achieved through the democratic monitoring and influence of WTO Members to their own trade policies and negotiation standings and therefor ultimately affecting the overall governance of the multilateral trading system.

19.6 Further Improvements of Dispute Settlement Mechanism As discussed above, the current WTO dispute settlement procedures are to be admired, especially from the perspective of the disputes it has settled and the quite positive impression of increasing cases and that the Members concerned comply with the rulings. More importantly, it provides some of the necessary attributes of “security and predictability” which traders and other market participants need.40 However, considering that the WTO dispute settlement mechanism has made important reforms in many aspects (compared with the GATT period), such as a clear time limit for each procedure, a reform of the composition of the Panel, the creation of the Appellate 40 See

Sutherland et al. (2004), para. 213.

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Body and the adoption of the Negative Consensus, etc., the Ministerial Conference of the Uruguay Round in 1994 decided to complete the review of dispute settlement rules and procedures by 1 January 1999. Such a review was initiated in the DSB in 1997, after which the deadline was extended to July 1999, when no agreement was reached. At the Doha Ministerial Conference held in November 2001, members agreed to negotiate on the improvement and clarification of the DSU. These negotiations would be conducted in the form of a special session of the DSB and was planned to be completed by May 2003 at the latest.41 Due to the divergence among Members on the amendment proposal, they have only reached the consensus on the Chairman’s proposal text at that time. In December 2008, the Chairman informed the Trade Negotiations Committee (TNC) that Members had endorsed as basis for the future work the consolidated draft legal text contained in the document that he had issued in July 2008.42 Currently, formal discussions and informal consultations are still continuing. In the past few years, Members have submitted hundreds of proposals. Although the proposals are varied, there does not exist a strong political incentive to reform the system. And the reforms should not “do any harm” to the existing system since it has so many valuable attributes.43 I have no intention or possibility to analyze all these proposals, but choose to explore the following points that are important to improving the dispute settlement mechanism itself and the overall progress of the rule of law of the WTO: (1) The necessity of establishing judicial review institutions. At present, the WTO law only requires its Members to establish judicial or independent review mechanisms in some trade and trade-related areas to ensure the transparency, fairness and legitimacy of the management of their domestic trade, but it does not make the same requirement at its own multilateral trade level. From the perspective of the rule of law, it is a serious deficiency to the WTO, an important international organization and self-contained module. Although these deficiencies are shared by other international organizations, such as the UN and its Specialized Agencies, this is not an understandable excuse for the WTO, because the legal system of the WTO is more integrated than that of the UN and its Specialized Agencies. In this respect, the WTO should take the EU as an example, because they are both typically highly integrated in the legal system, although one is global and the other is regional. This necessity, in essence, depends on the breadth and depth of the jurisdiction of the multilateral trading system and its penetration and restriction on the trade and trade-related policy sovereignty of WTO Members. To ensure that the decisions made by the Ministerial Conference, the General Council, sub-Councils and other Committees on specific trade and trade-related matters are in compliance with the WTO Agreement, and that their powers are not abused, it is necessary to establish 41 http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm. 42 Dispute

Settlement Body (2010). 43 See Sutherland et al. (2004), para. 254.

Accessed 15 August 2010.

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an appropriate judicial review mechanism to facilitate the use of all stakeholders involved in WTO affairs. In addition, with the increasing number of reports of the DSB through the Panel or the Appellate Body in the form of rulings, it is necessary to establish an appropriate independent judicial body to review these rulings, so as to fully guarantee the judicial remedy rights of the parties to the dispute, because the reports of the Panel or the Appellate Body in the DSB, under the negative consensus approach, are actually passed automatically. The judicial review body can be composed of five or seven judges, and the selection procedure can be the same as that the current Appellate Body. The complainants of the privilege can be limited to WTO Members, the Ministerial Conference and the General Council; the Council for Trade in Goods, the Council for Trade in Services and the Council for Trade-Related Aspects of Intellectual Property Rights can be the complainants of non-privilege, and they can only make complaints when the alleged issues or matters involve their own rights and interests. These bodies are also the targets of judicial review in relevant areas. Accusations can be based on the following reasons: the violation of the Agreement Establishing the World Trade Organization, the violation of multilateral trade agreements, the violation of international jus cogens, the violation of general legal principles, the abuse of power, the lack of power or violation of necessary procedural requirements, etc. The rulings of the judicial review institution should be final. (2) Enhance the transparency of ruling proceedings. The criticisms to the dispute settlement mechanism focus on the confidential proceedings of the Panel and the Appellate Body, mainly from non-governmental organizations, the civil society and scholars. They suggest that at least part of the above-mentioned proceedings should be open to the public, such as oral hearings. James Bachus, the former chairman of the Appellate Body, also supports this view, but he does not propose that the deliberations of either panels or the Appellate Body should be open, because they always related to the confidential interests of the parties.44 The Consultative Board also generally agreed because it feels that the degree of confidentiality of the current dispute settlement proceedings can be seen as damaging to the WTO as an organization. Thus, the Consultative Board recommends that, as a matter of course, the first level panel hearings and Appellate Body hearings should generally be open to the public.45 However, the principle of protecting confidential information should be followed and maintained, especially in the cases where the hearings involve the business confidential or national security confidential of the parties. Therefore, there should be an appropriate balance between the openness and confidentiality of the panel and the appellate proceedings. One efficient way is to allow the hearing proceedings of the Panel and the Appellate Body to be generally open to the public, and on the other hand, the Panel, the Appellate Body or the parties can decide which proceedings are

44 Bachus 45 See

(2004). Sutherland,et al. (2004), paras. 261–262.

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not open to the public on a case by case basis, if such decisions are made with “good and sufficient reasons”.46 (3) Strengthen the compliance of DSB rulings. As mentioned above, WTO Members’ track record of compliance with DSB’s rulings is generally good. However, in recent years, a more and more dispute settlement cases reach the stage of adopted reports, attention has naturally shifted towards whether the “losing party” has given timely, adequate and effective compensation measures. Clearly, under GATT/WTO rules, if the “losing party” does not implement the adopted report during a reasonable period of time, there is an opportunity for the winning party to demand compensatory measures. These measures have traditionally not been monetary payments. On the contrary, such measures have generally been additional market access measures by the party called upon to correct its failure to fulfill its WTO obligations. Absent agreement on such compensation by adding to market access would suspend obligations regarding the losing party, a response which is sometimes informally called “retaliation” or “cross retaliation”.47 The “retaliation” or “cross retaliation” is by no means out of question. First, retaliation goes against the underlying objective of the WTO system generally to promote rather than restrict international trade,48 because both the retaliation by the winning party and the violation of compensation measures by the losing party fall within the scope of trade restrictive measures. Secondly, it is questionable whether retaliation can effectively and adequately replace compensation measures, especially when the winning party is a developing country Member and the losing party is a more powerful trading partner. Another issue related to the adequate and effective compliance and compensation is the proposal that losing parties are allowed to “buy out” its obligations by providing “monetary compensation”. Firstly, such suspension of obligation only favors the rich and powerful countries which can afford such “buy-outs”, and meanwhile put developing countries, especially least developed countries, at a disadvantage. Secondly, this goes against the purpose of the WTO system to promote trade liberalization rather than restrict international trade. “Buy-out” can be described as “the purchase of trade liberalization obligations in currency”. Thirdly, although the “buy-out” is permitted, monetary compensation will in some cases face enormously difficult “valuation” problems, because “valuations” would have to consider not only effective losses, but also potential gains that are nullified or impaired. Fourthly, this may often ignore the rights of third parties, if the latter cannot obtain the monetary compensation. Fifthly, it will damage the goals of security and predictability of a rules-based system for market participant future activities.49 Therefore, during the course of the

46 See

Sutherland et al. (2004), para. 263. Sutherland et al. (2004), paras. 237–238. 48 See Sutherland et al. (2004), para. 240. 49 See Sutherland et al. (2004), paras. 242–243. 47 See

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reform on the DSU, we must be prudent to determine whether and to what extent the “buy-out” measures should be adopted. (4) Give full consideration to the concerns and needs of developing country Members for special and differential treatment. During the review of the DSU and the negotiations of the later special sessions, developing countries, especially least developed countries, has submitted a series of proposals aiming to reform the provisions of the DSU which are related to their special and differential rights and interests.50 These proposals can be roughly divided into four categories, namely, general issues on the implementation of special and differential treatment, entry barriers to use of the dispute settlement mechanism, the inadequacy and inappropriateness of the retaliation mechanism, the dispute settlement mechanism’s lack of development orientation.51 General Issues on The Implementation of Special and Differential Treatment The annexes to the current DSU do not include the provisions of Ministerial Declarations and Ministerial Decisions on the provisions of special and differential treatment to least developed countries. By amending the DSU, these two types of documents should be included in the “covered agreements” referred to in the annexes to the DSU. In addition, it is necessary to limit the annual number of complaints made against specific developing countries in order to prevent developing countries from undertaking accusations of overload. In addition, considering that two thirds of WTO Members are developing countries, the members of the indicative list of governmental and non-governmental panelists should be more selected from developing countries, so that the number of WTO Members is basically commensurate with that of the panelists of the DSB.52 Entry Barriers to Use the Dispute Settlement Mechanism There are two sets of entry barriers to use the DSM by developing countries, and least developed countries in particular: those faced before a case is officially initiated and those involved in using the system once a case is initiated. It is widely acknowledged that the trade-policy infrastructures of developing countries are inadequate for them to fully respond to the increased volume and complexity of WTO Agreements, and they also lack expert legal and in-depth knowledge of how to use the system and how to proceed with a case. In addition, the rising cost of initiating litigation constitutes another burden for the least developed countries. Therefore, the African Group proposed that the WTO should provide more effective and adequate legal and expert assistance. Specifically, legal assistance should be all-day and cover both consultative services and litigation services, and private lawyers should be allowed to be involved in government delegations; in addition, it is necessary to In addition, developing countries should be exempted from or reduced in litigation costs; when these countries succeed against the developed countries, the latter should bear all the costs. Furthermore, given the 50 Sub-Sahara

African countries alone or together with others have submitted five proposals with more than twenty issues, see Alavi (2007). 51 See Alavi (2007), especially pp. 31–38. 52 See World Trade Organization (2003a, b), No. 1.

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special economic difficulties of least developed countries, consultations, mediation or good offices procedures should be conducted in the capitals of these countries, not in Geneva. Inadequacy and Inappropriateness of the Retaliation Mechanism The problem is that, as small countries with an insignificant share of international trade, most sub-Saharan African countries cannot meaningfully retaliate against their bigger trading partners since the losses would exceed any possible gains. The experience so far with those few cases that have reached the retaliation stage shows that, unless other rules are changed, countries can avoid being subjected to retaliation for a very long time. Many countries under this threat simply invoke the DSU provisions giving parties the option to ask for re-examination of the other party’s measures, without any time limit for how long this might take. Furthermore, it is not clear whether retaliation, when it does occur, makes it more likely that the losing parties comply with the rulings. The main point of the African Group’s proposal is that the right to retaliate against a country losing a case (i.e. the developed countries) should be extended to all members and not only the winning party (i.e. collective retaliation). This proposal could be implemented either as a general amendment to the DSU or applied to African/least developed countries only as a special and differential treatment provision.53 In addition, developing countries find it difficult to comply with the “burden of proof” of Article 22 of the DSU concerning “cross-retaliation” and therefore recommend that paragraph 3 be added to that article as follows: The complainants of an accusation and ultimately the winning party shall have the right to request authorization to suspend concessions or other obligations without proof. Dispute Settlement Mechanism’s Lack of Development Orientation This is attacked by the African Group on two fronts: first, the alleged trend of the system towards law-making, and secondly, the system’s lack of development-friendly decisions.54 The European Union recommended to move from a system of ad hoc selection of panelists to a more permanent selection process.55 In response to this proposal, the African Group suggested that any amendment to the panel structure should cover the functions of panels and not only their composition. In this regard, it argued that the functions should be limited to determining the factual matters in a case, including finding and assessing all the facts related to how a case might affect developing countries. The actual ruling should then be left to the Appellate Body, which should be re-named the “WTO Tribunal”.56 The African Group also proposed that any party to a dispute, or the DSM’s own organs at any stage of the dispute, should be able to refer a ruling or an issue to the General Council for resolution. To sum up, the implied new structure would thus reorganize the DSM into three instances and phases: fact finding by panels, deliberation and ruling by a tribunal, and (if desired by any party to a dispute) recommendation/ruling/evaluation by the General Council. The novelty of this proposal is that if applied, this scenario would strengthen the role 53 Alavi

2007, p. 34. 2007, p. 35. 55 See TN/DS/W/1. 56 Alavi 2007, p. 36. 54 Alavi

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of politics in the process, but without going back to the GATT diplomacy-centered model, since the whole process would be based upon facts—including, critically, facts concerning the development aspects of the issues in question. Meanwhile, the proposal sought to address the current lack of obligation on panels to give opinions on those development-related issues that are not specifically raised by a party to a dispute. However, the author is concerned that although the reorganization and functional reorientation of the proposed dispute settlement mechanism will make it obligatory for the DSB to include development elements in its decisions, which will be beneficial to developing country Members, it will bring great changes to the existing dispute settlement mechanism, which is operating basically well; Therefore, I am afraid it is difficult to obtain the approval of WTO Members by consensus. To sum up, although WTO is unique and plays a leading role in promoting the rule of law in international trade, it also faces unprecedented challenges. Some challenges originate from outside the WTO. For example, the constant acceleration and deepening of globalization will inevitably require the multilateral trading system to accelerate the promotion of global trade. For another example, the global financial crisis, on the one hand, has seriously affected the growth of international trade, and on the other hand, it has required the multilateral trading system to more effectively limit protectionism and expand international trade, so as to make a better future for the global economic crisis and economic recovery. It is true that the challenges faced by the rule of law in WTO mainly come from the multilateral trading system itself, which includes not only the substantive issues of the rule of law, but also the procedural considerations of the rule of law, as well as the operation mode of the system itself. On a series of legal issues, the WTO needs to make decisive decisions: to adhere to the current organizational framework, or to basically maintain it, but make appropriate adjustments? To enhance the WTO’s rule orientation, or to strengthen its political or diplomatic momentum, or to combine the two? To maintain the decision-making mode of consensus or to set the weighted voting system as a supplement? To stick to the existing position and strengthen and improve it, or to expand it to other trade-related areas appropriately? To limit the rapid development momentum of regional agreements and allow them to erode the cornerstone of the MFN treatment, or to appropriately restrict and strengthen the supervision of regional trade agreements, and maintain the spatial effect of the MFN treatment principle to the greatest extent? To provide developing countries with “rouge powder” so as to make them look “beautiful”, or to provide them with “power” so as to make them “stronger”. No matter how big, complex and sensitive the challenges of WTO’s rule of law are, and no matter where the challenges come from, we must adhere to three basic guiding principles to deal with these challenges and promote the further improvement of WTO’s rule of law: the “Members-driven”, the “development-focused” and the “cooperation and wins-shared”. Under the principle of “Members-driven”, any measures for the reform and improvement of the rule of law in the WTO must, on the one hand, take the overall interests of WTO Members as the fundamental purpose, and on the other hand, be carried out with the participation and consensus of all WTO Members, and resolutely abandon the reform agenda driven by “powerful

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countries” or the Group of Eight or the so-called “core group”. Under the principle of “development-focused”, not only must the ongoing Doha round always adhere to the theme of “development”, but also all the legal reforms of the WTO must focus on “development”; any measures deviating from “development” will damage the interests of both developing countries and developed countries, that is, no country can stand or fall alone in the international trade. Under the principle of “cooperation and wins-shared”, all members of the WTO, regardless of their size, strength or wealth, should, in the spirit of seeking common ground while reserving differences, equality and mutual benefit, and mutual tolerance, and under the premise of full consultations, meet the challenges faced by the rule of law of the WTO. Finally, it must be stressed that the challenges of WTO’s rule of law is long-term, and its reform is bound to be long-lasting, which cannot be achieved overnight or once and for all. Currently, the most urgent task is to gather all kinds of wisdom and strength to push the Doha round to an end as soon as possible and achieve a phased breakthrough in progress of the rule of law in the multilateral trading system.

References Alavi A (2007) African countries and the WTO dispute settlement mechanism. Develop Policy Rev 25(1):25–42 Annan K (1999) Annual report to the general assembly. https://www.un.org/press/en/1999/199 90920.sgsm7136.html Bachus J (2004) Open doors for open trade: shining light on WTO dispute settlement. Remarks to the National Foreign Trade Council, Mayflower Hotel, Washington D. C., http://www.worldtrad elaw.net/articles/bacchusopendoors.pdf. Accessed 28 Apr 2005 Bronckers MCEJ (1999) Better rules for a New Millennium: a warning against undemocratic developments in the WTO. J Int Econ Law 2(4):547–566 Committee on Trade and Development (2001) Implementation of special and differential treatment provisions in WTO agreements and decisions (WT/COMTD/W/77/Rev. 1). World Trade Organization Committee on Trade and Development (2010) Report by the chairman to the trade negotiations committee for the purpose of the TNC stocktaking exercise (TN/CTD/25). World Trade Organization Cottier T, Takenoshita S (2008) Decision-making and the balance of powers in WTO negotiations: towards supplementary weighted voting. In: Griller S (ed) At the crossroads: the world trading system and the doha round. Springer, Berlin, pp 181–229 Dispute Settlement Body (2010) Report by the chairman to the trade negotiations committee for the purpose of the TNC stocktaking exercise (TN/DS/24) Ehlermann C-D, Ehring L (2005) Decision-making in the world trade organization: is the consensus practice of the world trade organization adequate for making, revising and implementing rules on international trade? J Int Econ Law 8(1):51–76 First Warwick Commission (2007) The multilateral trade regime: which way forward?. University of Warwick, United Kingdom Haass RN (2003) Sovereignty: existing rights, evolving responsibilities. Remarks at the school of foreign service and the Mortara Center for international studies. Georgetown University. https:// 2001-2009.state.gov/s/p/rem/2003/16648.htm Negotiating Group on Rules (2010) Report by the chairman to the trade negotiations committee for the purpose of the TNC stocktaking exercise (TN/RL/24). World Trade Organization

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Steger DP (2004) The struggle for legitimacy in the WTO in peace through trade: building the WTO. Cameron May Ltd, London Steger DP (2009) The future of the WTO: the case for institutional reform. J Int Econ Law 12(4):803– 833 Sutherland P et al (2004) Future of the WTO: Addressing Institutional Challenges in The New Millennium. Report by the Consultative Board to the Director-General Supachai Panitchpaki. World Trade Organization. http://www.wto.org/english/lhewtoe/l0annive.htm#future Van den Bossche P (2005) The law and policy of the world trade organizations, text, cases and materials. Cambridge University Press, Cambridge World Trade Organization (1996) Singapore ministerial declaration (WT/MIN (96)/DEC) World Trade Organization (2001) Ministerial declaration (WT/MIN (01)/DEC/1) World Trade Organization (2003a) Communication from China (TN/DS/W/29) World Trade Organization (2003b) Communication from China (TN/DS/W/57) World Trade Organization (2003c) Preparations for the Fifth Session of the Ministerial Conference, Draft Cancún Ministerial Text, Second Revision (JOB (03)/150/Rev. 2) World Trade Organization (2005) Doha work program, ministerial declaration (WT/MIN (05)/DEC) Zeng L (2004) New tendency of RTAs and its negative impacts on Doha round (Quyu Maoyi Xieding de Zuixin Qushi jiqi dui Duoha Fazhan Yicheng de Fumian Yingxiang). Chinese J Law (Faxue Yanjiu) 5:117–128

Chapter 20

Dilemma and Outlet of Doha Development Agenda After Cancún Ministerial Conference

20.1 Cancún Ministerial Conference: A Symbol of Severe Setback of Doha Development Agenda Since September 2003, there has been no substantial progress in the WTO Doha Development Agenda (hereinafter referred to as DDA). International public opinion generally predicts that there is little hope that the Doha Round will be concluded by the end of 2004. The main reason is that during the midterm review of the DDA at the Cancún Conference, WTO Members did not reach a consensus on some major issues and matters. Moreover, to date, some major differences still exist and there is no obvious sign of compromise. The Cancún Conference, as a symbol of the severe setback of the DDA, which was reflected in the Ministerial Statement issued at the end of the meeting. Although the host country has made great efforts, and in July before that, the General Council of WTO prepared a basic text in Geneva for discussion of and adoption by the Ministerial Conference, during which the draft of Cancún ministerial text has been formed twice on this basis. But in the end, it was difficult for the ministers attending the meeting to reach a consensus on the content of the text. Therefore, the closing ceremony had to replace the Ministerial Declaration with a brief Ministerial Statement. Although the document was worded to cover the frustration of the participants as much as possible and to avoid sending a message of disappointment to the world, it had to be acknowledged that the Conference was a “frustration”.1 The Cancún Ministerial Conference ended in failure, which exposed major divergences among WTO Members, especially between developed and developing 1 World

Trade Organization (2003b).

The article was originally written by Prof. Zeng in Chinese, and published in Theory Monthly (Lilun Yuekan), Issue 7, 2004, pp. 5–11. It is then translated by Dr. Jiao Zhang, with the assistance of Prof. Qiaofang Wu and her translation team, and proofread by Ms. Qian Zhang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_20

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Members, on some substantive issues and conference documents and decisionmaking methods or procedures.

20.1.1 Divergences on Some Major Issues 20.1.1.1

“Singapore Issues”

The lack of agreement among WTO Members on the “Singapore Issues” is considered to be the most direct cause of the failure of the meeting. In the early morning of 14 September 2003, the chairman of the conference (Minister for Foreign Affairs of the host country) moderated a small informal meeting of 9 ministers of WTO Members, also known as the “Green Room Meeting”,2 especially for discussing the “Singapore Issues”. Since the participating ministers held to their original positions, the consultation was inconclusive. Then, a larger “Green Room Meeting” was held with 30 ministers. Although the meeting aimed to negotiate all prominent issues, the chairman of the host country decided to start with the “Singapore Issues”. In order to narrow differences and seek compromise, the chairman proposed to remove investment and competition issues, the most controversial in the “Singapore Issues”, from the agenda, leaving only trade facilitation and government procurement. In this regard, EU Trade Commissioner Lamy agreed, but Japan and South Korea said they did not agree to cancel any issue, while developing countries insisted on opposing the launch of any “Singapore Issues” negotiations. In fact, since the Singapore Ministerial Declaration of 1996 included investment, competition, trade facilitation, and government procurement on the WTO’s agenda, the “Singapore Issues” composed of these four areas has been a basic issue of North-South divergence within the framework of WTO. From the beginning, most developing countries opposed the negotiation and conclusion of new agreements in these areas, but not the study of these issues by the WTO. At the Doha Conference, developed countries used their influence to indicate in the Doha Ministerial Declaration that negotiations on these four issues should be initiated after the Cancún Ministerial Conference, but this decision must be based on a clear consensus among WTO Members on the mode of negotiation. After the Doha Conference, the differences among WTO Members on the “Singapore Issues” have not been narrowed, but expanded. This makes developing country members think that there is no consensus on the “Singapore Issues” and thus there is no ground to discuss the negotiation mode. On the contrary, the members of developed economies, led by the European Community and Japan, strongly advocated the launch of multilateral negotiations on the “Singapore Issues”, believing that the decision taken at the Doha Conference was irreversible.

2 The nine members were the UN, the European Community, Mexico, Brazil, China, India, Malaysia,

Kenya, and South Africa.

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The reason why developing countries objected to the inclusion of the “Singapore Issues” in the formal negotiation agenda of the Doha Round are mainly as follows. First, once agreements are concluded in these areas, it means that they need to invest a great deal of human and material resources to implement, which will have a serious impact on their economic and social development. Developing countries have already paid a heavy price in implementing the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) reached in the Uruguay Round and are unwilling to repeat the same mistake in other new areas. Second, at the Cancún Conference, the agricultural issues of concern to developing country members and the implementation of special and differential treatment in the multilateral agreements of the Uruguay Round were not given due attention, and were deliberately ignored by developed country members led by the UN and the European Community.

20.1.1.2

Development Issues

The Doha Ministerial Declaration clearly places the special needs of developing countries at the core of the Doha Round. Since then, most developing countries have been full of hope, enthusiasm and faith in this round of multilateral negotiations, known as the “Development Agenda”. They have long advocated the formulation of clear and specific rules for the implementation of “special and differential treatment” and strongly called for negotiations on the implementation of multilateral trade agreements reached in the Uruguay Round. Prior to the Cancún Conference, the only positive outcome for developing countries was the TRIPs and the public health issue. The issue dragged on for nine months before an agreement was reached. Although the agreement gives special and differential treatment in intellectual property protection for developing countries that do not have or do not have sufficient manufacturing capacity to import generic medicines (mainly used for the control and treatment of epidemic diseases) from developed countries, but it also sets out a series of conditions and restrictions. For other development issues of concern to developing countries, there has been no substantive progress, and all of them have exceeded the original deadline for negotiation, and some issues have repeatedly missed the deadlines. At the Cancún Conference, the issues of concern and the propositions and suggestions put forward by developing countries were once again ignored. Developing countries are particularly dissatisfied with the draft ministerial declaration text submitted for discussion. The areas or matters of importance to developing countries (such as substantial support and subsidies for agriculture and cotton production and exports by developed countries, restrictions on market access for non-agricultural products by developed countries, etc.) covered in the draft are evasive, understated or vague. This has aroused strong dissatisfaction among developing countries and added to their aversion to the “Singapore Issues” advocated by developed countries.

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20.1.1.3

Agriculture Issues3

Since the launch of the Doha Round, agriculture has been a focus area of divergencies among WTO Members. Although developing countries rejected “Singapore Issues” to be considered as the direct trigger for the failure of the Cancún Conference, the huge differences on agricultural issues between developing countries and the United States, the European Community and other developed members should be one of the fundamental reasons for the fruitless return of this Ministerial Conference. Different from what they did in the Doha Round, the United States and the European Union have reached a great deal of compromise on agricultural issues in advance, and the compromise between the two powers is at the expense of the agricultural interests of developing countries and delaying the process of agricultural trade liberalization. During the Mini-Ministerial Conference held in Montreal in July 2003 the United States and the European Community reached a joint framework document on the modalities of negotiations on agriculture. The joint framework document, with minor modifications, became the script for agriculture as part of the draft Ministerial Declaration in Cancún. The vast majority of developing countries believe that the draft ministerial declaration on agriculture has largely maintained the protectionist policies implemented by the United States and the European Union in the field of agriculture: the United States continues to maintain a very wide range of counter cyclical subsidies, while the EU maintains most of its barriers against agricultural imports. In terms of agricultural support, although the draft text plans to reduce domestic support for twisting trade, capping support for specific products in the “amber box”, reducing support in the “blue box” and modifying the standard of the “green box”, however, the wording of special and differential treatment for developing countries in this regard is ambiguous. Moreover, not only developing countries are dissatisfied with domestic support measures, but some developed countries also hold opposite opinions. Developing countries demand greater liberalization, namely, abolishing the “blue box” and restricting the “green box”. With regard to agricultural market access, although the draft text again adopts the concept of “special products”, plans are still in place to reduce tariffs on these products. However, most developing countries request not to make any commitment on tariff cuts for these special products, and when the tariffs on these products are too low, there is the possibility of increasing the tariff. The draft text does not specify how to determine these products procedurally, while developing countries strongly demand that they be able to do so themselves. The text also plans to establish special safeguard measures for developing countries, but the basic framework has yet to be determined. In terms of export subsidies for agricultural products, the draft text is almost a replica of the joint proposal of the United States and Europe. The draft plans to end export subsidies for products of interest to developing countries and reduce other export subsidies and export credit schemes. Developing countries, especially the

3 See

Chetaille and Tavernier (2003), pp. 5–6.

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Group of 20 (also known as the Group of 21), want to completely eliminate export subsidies.

20.1.1.4

Cotton Issues

Cotton was the only area where specific agricultural products were negotiated at the Cancún Conference, and it was also one of the most responsive issues in developing countries, especially in Africa. It can be said that the cotton issue is a microcosm of the serious differences between the developing and developed countries in the agricultural field. For a long time, the United States has provided strong support to its domestic cotton production. The European Union also provides substantial support for cotton, although its cotton production is smaller than in the United States. The support policies adopted by developed countries such as the United States and Europe have led to global cotton overproduction and a decline in world cotton prices, which has brought serious negative results to developing countries with cotton as their main export products.4 In response to this situation, some West African countries formed an alliance before the Cancún Conference to submit proposals on cotton to the WTO, requiring the elimination of all cotton subsidies in the short term, and that financial compensation should be obtained during the period of maintaining subsidies. Some non-governmental organizations also support African countries’ recommendations. The main reason why African countries are so concerned about cotton subsidies is that cotton is one of the few areas where they have certain competitiveness in the world market, while this competition is distorted by unfair subsidy policies. For poor developing countries, the cotton issue, like access to cheap medicines, is one of the key areas of the development theme in the Doha Round. However, the draft text recommends that this issue should be addressed from the perspective of market access to non-agricultural products; for African countries that produce cotton, this is by no means a problem that can be solved in the short term, because in any case the cotton export industries of these African countries are not competitive. The draft also recommends that African countries should address this issue by diversifying their economies, especially through the support of the Bretton Woods organizations. African countries were shocked by the wording of the draft, and it seems that the answer from the United States is: I will grow cotton, while you do something else. The proposal to seek support from the World Bank and the International Monetary Fund has also drawn criticism because the two financial organizations have included these countries in the framework of their structural adjustment plans. In short, developing countries, especially African countries, feel that this paragraph of the draft text on cotton really insults them.5 4

Relevant data show that the United States, the European Union and China are the WTO members that give the most subsidies to cotton. The United States continued to increase in the second half of the 1990s, and the subsidy to cotton exceeded 370 million US dollars by 2002. Although China declined in the same period, the subsidy to cotton remained at the level of about 100 million US dollars. See Baffes (2003). 5 See Chetaille and Tavernier (2003), pp. 6–7.

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20.1.2 Divergencies on Conference Documents and Decision-Making Methods The opacity of the decision-making of the Conference, in particular the neglect of the participation of developing countries in the drafting of the text of the Ministerial Declaration, aroused the dissatisfaction of developing countries, which was another important incentive for the Cancún Conference. A minister from a Caribbean country issued a series of questions about the conference: “Here, more than 70 of our developing countries clearly expressed their views during the consultation process and the consensus language of the document was clearly expressed on the ‘Singapore Issues’, while the revised text takes the opposite position regardless of their position. What kind of organization is this? Whose organization does it belong to? Who drafts the documents? Who designates them? Why waste our time to negotiate carefully and finally find out in the draft that our point is completely out of it?”6 It can be seen that the Cancún Conference not only ignores the claims and interests of developing countries on substantive issues, but also ignores the positions and views of developing countries because of the undemocratic and opaque decision-making process and the text drafting process. In fact, the problem of opacity in drafting the documents of the WTO Ministerial Conference has existed from the outset. At the Singapore conference in 1996, only 30 ministers were invited to enter the “Green Room”, while most ministers were turned away. At that time, it was the “Green Room” that rigged the entire first ministerial meeting. In the following informal plenary meeting, these uninvited ministers were very indignant when they were told they should agree to the declaration they had not intervened in drafting. Finally, the text of the ministerial declaration was not adopted until the then Director-General of the WTO had promised that there would be no exclusive meetings in the future. At the Seattle Conference in 1999, the “Green Room” continued to manipulate the conference the same as usual. Ministers from the African, Canadian, Pacific and African groups were furious at being shut out. They issued a statement saying that they would not participate in any consensus meeting of the declaration. In the end, the Seattle meeting broke up in discord. At the Doha Conference in 2001, the procedure was improved. Many informal consultations were held at this meeting, but different versions of the Doha Declaration were still drafted in an opaque and exclusive manner, that is, the Chairman of the General Council submitted a private text in his own name for consultation and revision to a certain extent, and the ministers were not urged to adopt the final text until the last postponement of the meeting. Under such circumstances, ministers had no choice of time at all. After the Doha Conference, it became a common practice for the Chairman to draft texts in his own name. This practice continued at the Cancún Conference and became a rule of procedure. Although developing countries have consistently expressed their dissent or even dissatisfaction, some key WTO Members seem to have become 6 Khor

(2003).

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accustomed to this undemocratic and opaque approach. The high-sounding reason is that this form of private and minority involvement in drafting text can improve the efficiency of the work. In fact, developed countries have found that this approach makes it easier to integrate their positions and policies into the documents of the conference. The chair-driven approach to meetings and negotiations often brings adverse results to the developing countries in general. The chairman of the meeting is in charge of the whole process of the meeting, and the convener or person in charge of each special topic designated by the chairman of the meeting is specifically responsible for the consultation and text drafting of the relevant issues. This approach itself is beyond reproach, and it is basically adopted at various conferences today. The key questions are the identity of the Chairman of the Conference and the designation of the conveners of the specific topics, in particular the composition of the drafters of the final documents of the meeting. Previous WTO ministerial meetings have shown that most of the personnel in these key positions and roles are officials from developed country members. No wonder the documents of previous ministerial parliaments more reflect the interests of members of developed countries, while the claims of members of developing countries are often diluted.

20.2 Anxiety and the Light of Hope After the Cancún Conference 20.2.1 Signs of Concern Although it has been more than half a year since the end of the WTO’s Fifth Ministerial Conference in Cancún, Mexico, the shadow of its failure still seems to be hanging over both inside and outside of the border trade system. At present, the rapid trend of regional trade agreements with the establishment of free trade zones as the core has added more concerns about the prospect of the DDA.7 Shortly after the Cancún Conference, the enthusiasm of the United States for the multilateral trading system was greatly diminished. The United States has even

7 Although regional trade agreements can promote trade liberalization to a limited extent, the author

thinks that it is mainly negative in terms of the current rapid proliferation of regional trade agreements and their impact on the Doha Development agenda. For details, see the Chinese paper. “The Latest Development Trends of Regional Trade Agreements and Their Negative Impact on the Doha Development Agenda: An Analysis of China’s Countermeasures” submitted by the author, English Abstracts and speeches “Recent Tendency of Regional Trade Agreements and Its Negative Impacts on Doha Development Agenda: China’s Corresponding Tactics” (Executive Summary) for the Asia-Pacific Law Association Free Trade area legal issues Seminar (Shanghai, 18-21 May 2004) at the invitation of the Chinese Law Society (They have not been published yet. No exploitation or reproduction herein is permitted without my consent).

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released threatening messages, shifting its focus from the front lines of multilateral negotiations to opening up the markets of developing countries through bilateral, plurilateral and regional trade agreements,8 and is accelerating negotiations with Latin American, Central American, South African and Asia-Pacific countries to establish Free Trade Areas (FTAs). Although the European Union has indicated that it will no longer negotiate regional trade agreements (RTAs) during the Doha Round, the leader of the regional group, which has taken the lead in terms of the number and degree of integration of regional trade agreements, is committed to regional trade agreements in the following two approaches. On the one hand, the Economic Partnership Agreement (EPA) with the establishment of free trade areas as the core is continuing to be negotiated with 77 African, Canadian and Pacific countries (i.e. the previous Lomé Convention and the current Cotonou Agreement), which is planned to be finished in 2018, so as to achieve the upgrading of regional trade agreements with the GSP as the basic content. On the other hand, the regional trade agreements between the EU and these countries are being replaced by the admission of 10 Central, Eastern European and Mediterranean countries as its new members (1 May 2004), resulting in a reduction in the number of regional trade agreements,9 but a higher degree of integration, thus further consolidating the basis for deviating from MFN treatment. The eastward expansion of the European Union will also bring another new change to regional trade agreements, that is, it will naturally expand the personal and territorial scope of regional trade agreements between the European Union and countries in other regions, because the acceptance of the existing legal system and effectiveness of the European Union (including international agreements concluded by the European Union) is one of the necessary prerequisites for the admission of new Member States. As a result, the application space of the principle of MFN treatment, which is the cornerstone of the multilateral trading system, has lost a large part. Under the influence of the United States and the European Union, other WTO Members, in view of the serious hindrance and uncertain future of multilateral trade negotiations, soon joined the upsurge of establishing free trade areas in order to safeguard their own political, economic and trade interests. Today, of the 147 members of the WTO, only Mongolia remains faithful to the multilateral trading system, and all other members are stepping on the “two ships” of the multilateral trading system and the regional trading system, and are even particularly attracted to the “bride” of regional trade agreements. What is particularly striking is that some East Asian countries or regions, such as China, Japan, South Korea, Hong Kong, and Macao, have also adjusted their policies and legal forms of foreign trade cooperation in the past two years. In the past, they were interested in the multilateral trade system in particular. At present, they have also tried to take step on the path of regional trade agreements, and have achieved initial results. Moreover, from the perspective of development trend, various bilateral, plurilateral and regional free trade agreements, economic

8 See 9 See

Action Aid International (2003). World Trade Organization (2003c), p. 5.

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partnership agreements, economic cooperation agreements, customs union agreements, common market agreements and so on, have broken through the traditional principle of “territorial proximity” in each continent, is developing in the direction of trans-regional, trans-continental and trans-oceanic, and a huge network of regional trade agreements is being formed. It is a source of concern to note that the obsession of WTO Members with regional trade agreements seems to reflect from an important aspect that the WTO and its DDA are falling into a crisis of confidence. It indicates that the enthusiasm and confidence of some influential WTO Members in multilateral trade negotiations have declined sharply, while the hopes of the vast number of developing countries on the Doha Development agenda are getting dimmer due to the failure of the Cancún Conference and the breach of trust of developed countries. After the Cancún Conference, the prospect of the DDA has become uncertainty because of the influence of other factors. 2004 is the election year for the US president. In a sense, US Trade Representative Zoellick took a tough attitude on issues such as agricultural export subsidies, domestic support, and market access for nonagricultural products at the Cancún Conference, and refused to make substantive compromises, which has made other WTO Members vaguely feel the impact of the US election. With the general election approaching, the struggle between the democratic and Republican parties in the United States is reaching fever pitch, and both sides play the two main cards of “Iraq issue” and “economy and trade” in their domestic and foreign policies. To run for re-election, President Bush must economically take into account the interests of the Federation of Industry, the Federation of Labor and farmers in the United States, as well as the sentiments of the American people. Democrats are attributing the recession in the US manufacturing industry and the high unemployment rate to the fact that the Bush administration has failed to take strong measures to reverse the huge trade deficit between the United States and other major trading partners, including China, and has not opened up other countries’ markets. At the same time, it criticizes the ineffective response to unfair trade practices in imports and the insufficient use of safeguard measures. Under the domestic political circumstance, we cannot expect the United States to take a higher profile in multilateral trade negotiations. In addition, the election overwhelms everything, and it is impossible for the US government to devote its main resources to how to advance the DDA. Just like what happened to China’s accession to the WTO in 2001, although China has concluded bilateral negotiations with major WTO Members, including the United States in 2000, and the substantive problems of multilateral negotiations have been basically resolved, the remaining issues are mainly legal and technical issues. However, due to the defeat of the Democratic candidate in the 2000 US presidential election, members of Clinton’s team naturally began to be perfunctory in government affairs, focusing on their own way out. After Bush took office, the assistant in charge of East Asian affairs in the Office of the Trade Representative was vacant for several months, resulting in a delay in the conclusion of multilateral negotiations on China’s accession to the WTO. By coincidence, the European Community, another WTO member that played a decisive role in the DDA, has been a politically eventful year. The first half of 2004

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coincided with the election of the European Parliament once every five years and the eastward expansion of the European Union, with an unprecedented admission of 10 Central, Eastern European and Mediterranean countries as new Member States. In particular, the change of the European Commission in the autumn of 2004 has a direct impact on the process of the Doha Round: the change of the European Commission means that Lamy, who is now responsible for foreign trade affairs, will be replaced by a new European Commission commissioner. The source, background, idea, proposition, manner and ability of the successor are all variables that will affect the EU’s policy on the follow-up Doha Development agenda. Therefore, it can be said without disguise that the WTO is facing the biggest crisis since its establishment, and the hope of its first round of multilateral negotiations to come to an end as scheduled is not optimistic.

20.2.2 The Beacon of Hope Slowly Lighting Up Nevertheless, we see some glimmers of hope around the world at the same time. After the Cancún Conference, although the formal meetings of WTO subsidiary bodies and negotiations under the Doha Work Program were suspended, the General Council and its chairman have not stopped informal consultations. The first round of consultations was held in mid-November 2003, followed by a second round of consultations on 9 December, even if differences remained. In accordance with the Cancún Ministerial Statement, the ministers authorized the General Council to convene a special session on 15 December 2003 to carry out the work that had not been completed by the Ministerial Conference. The special session was held as scheduled. However, the results were not surprisingly disappointing: no breakthroughs were made, and the meeting only recorded the reports and statements of the Chairman of the General Council on the ineffectiveness of negotiations, as well as other statements made by delegations. After the New Year, the General Council held its first formal meeting on 11 February, which focused on the designation of the new chairman and conveners of various bodies established under the Trade Negotiations Committee. A positive sign of this meeting is that the General Council did not appoint the conveners of three working groups on “Singapore Issues” (i.e. investment, competition and transparency in government procurement). This seems to mean that the three working groups will no longer hold meetings, at least for the time being. It is particularly gratifying that the 12th formal meeting of the Trade Negotiations Committee was held on April 21, and the delegations of WTO Members gathered in Geneva again to reopen the Doha development agenda. With due diligence, the Director-General of WTO has been sparing no effort to shuttle between the capitals of some important and representative WTO Members and some important international conferences, trying to use his special status and influence to facilitate the continuation of multilateral trade negotiations. On many different occasions, he not only faced squarely the reality that the Cancún Conference did not achieve the expected goals and the plight of the DDA, but also expressed great

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enthusiasm and confidence in the resumption of multilateral trade negotiations. As the Chairman of the Multilateral Trade Negotiations Committee, at the 12th meeting of the Committee on 21 April, he particularly stressed that “the coming days and weeks will be critical” and hoped that ministers “will be more determined than ever to win” and made it clear that “to turn this political will into a concrete outcome, it is clear that the responsibility lies with the negotiators in Geneva”.10 Although the vast majority of WTO Members have devoted considerable resources to the negotiation and conclusion of regional trade agreements, they have not completely given up the Doha Round (at least in public) and have been communicating and coordinating in private through various diplomatic means. After all, most members recognize that the multilateral trading system and multilateral trade negotiations based on the principle of Most-Favored-Nation treatment are the best places and legal forms to liberalize global trade and promote the economic and social development of members. Some relevant intergovernmental organizations (such as the United Nations Conference on Trade and Development, the World Bank, the International Monetary Fund, the Organization for Economic Cooperation and Development, the Asian Development Bank, etc.) and non-governmental organizations have been working together to start the Doha Round as soon as possible through seminars, round tables, workshops, comments, reports, recommendations and other ways. It is worth mentioning in particular that the theme set by WTO’s annual public seminar this year is “Multilateralism at a Cross Road”.11 Participants included not only representatives of the government and members of Parliament, but also representatives from the private sector, the business community, the academic community and the media. They will discuss some key challenges faced by the multilateral trading system at the critical moment of the Doha Round. We have seen the enthusiasm of the Doha Development Agenda burning in terms of the theme, preparations, modalities and participants of this conference.

20.3 Outlet of Doha Round: Idea, Belief and Principle Since modern times, human beings have survived and developed in two kinds of societies: one is a domestic society connected by the ties of nationality, citizenship, national boundaries and national jurisdiction, and the other is the international community in which States are interdependent and work together to solve global problems regardless of nationality, regardless of citizenship, across national boundaries and beyond national jurisdiction. No matter what kind of social progress and development, it is necessary to establish, maintain and improve a trade order that keeps pace with the times, fair, transparent, rule-oriented and maximum liberalization, in order to maximize the well-being of mankind. More than half a century ago, 10 WTO

News, www.wto.org. Accessed 22 April 2004. The seminar was held in Geneva from 24–27 May 2004. Previously, WTO had been publicly registered through its website as of 11 May. 11

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it was the basic purpose of countries to establish the multilateral trading system; and the operating mechanism has been constantly reformed, various rounds of multilateral trade negotiations are constantly seeking innovation and change under the cliché topic, but they remain unchanged. Therefore, in order to make the Doha Development agenda erase the shadow of the Cancún Conference, get out of the predicament as soon as possible, and enable the ship of the Doha Development agenda to reach the other shore successfully, the key is that as a member of the WTO, who integrates the founder, captain and crew of this ship, we should firmly believe in the purpose of the multilateral trading system, adhere to the principle of interdependence of “a prosperity or a loss for both sides of the situation”, and in line with the principle of seeking common ground while reserving differences. We should also in accordance with the established agenda and objectives of the Doha Conference and take the spirit of cooperation to continue specific negotiations on various issues reached by consensus. In the current situation, the author believes that members of the WTO, in particular, should adhere to the established theme of the Doha Round—development, to the basis of the Doha Round—multilateralism, and to the reform direction of the operation of the WTO—democracy, transparency and inclusiveness.

20.3.1 The Gist of Development Must Not be Deviated The above analyzes the factors of the failure of the Cancún Conference from various angles. In the final analysis, the root cause of the obstruction of the Doha Round is that the Fifth Ministerial Conference deviated from the “development” theme set for the round by the Doha Ministerial Conference in 2001. In order to save the fate of the Doha Round, the key is to re-establish and firmly establish the development agenda as defined in the Doha Ministerial Declaration, and to carry the main line of “development” throughout the current round of multilateral trade negotiations. To this end, WTO Members should start from at least the following three aspects: First of all, the theme of “development” must be highlighted from the determination of negotiation topics. From a technical point of view, the excessive number of topics in the Doha Round is one of the reasons why the Cancún Conference broke up in discord. The Doha Conference not only identified a wide range of negotiation topics, but also set a corresponding time limit for negotiations on each topic. However, on the eve of the Cancún Conference, the vast majority of topics missed the original deadline, and some topics exceeded again the time limit which was later rescheduled. These issues that should have been completed were concentrated in the Cancún Conference, coupled with the lack of consensus among WTO Members, especially the lack of political will of developed country members to fulfill the Doha commitments. The fate of its failure seems inevitable. Therefore, in order to make the follow-up negotiations of the Doha Round proceed smoothly until the end of the best results, it is necessary to streamline the negotiation topics and remove the issues with great differences among members or even impossible to reach consensus

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from the agenda, or at least shelve them for the time being, retain those topics with relatively small differences and those related to the implementation of the Uruguay Round of multilateral trade agreements, so as to ensure that the issue of development can be fully negotiated and resolved to the maximum extent on the premise of the agenda. More specifically, the “Singapore Issues” should be decisively removed from the agenda or shelved for the time being, as these issues have always been the most divisive areas between developed and developing countries, and the voice of developing countries refusing to negotiate is increasingly loud. At most one of the topics, namely trade facilitation, should be retained, as it is an inherent issue of trade liberalization, while investment and competition are trade-related issues, although they are quite closely related. As for the transparency of government procurement, although it is a direct sectoral trade issue, this area of trade is still outside the scope of multilateral trade agreements. Abolishing or shelving the “Singapore Issues” is not only a pragmatic choice from a political point of view, but also well-founded from a legal and technical standpoint. Although the Doha Work Program authorized the establishment of three “Singapore Issues” working groups (Investment Working Group, Competition Working Group and Government Procurement Working Group), the Trade Commission for Goods also set up a special trade facilitation working body, however, this mandate is only up to the Fifth Ministerial Conference, while the Ministerial Statement of the Cancún Conference does not provide further authorization, although the statement concluded with a general statement that ministers confirmed their commitments in the Doha Declaration and the Doha Plan of Action. This is not to say that these working groups must be cancelled as a matter of course, as this requires at least a specific decision. However, in the context of severe differences on these issues, since the Cancún Conference did not have a clear mandate, these working bodies can no longer automatically continue their work under the outdated Doha mandate.12 Secondly, we should earnestly implement the “special and differential treatment” in terms of the contents of the negotiations. The implementation of “special and differential treatment” and multilateral trade agreements is at the core of the “development” theme of the Doha Round. Developing country Members have been making unremitting efforts to this end before and during the Doha Conference, and eventually put these two issues in the priority negotiations in the Doha Declaration and the Doha Plan of Action and as part of a package of commitments. Under these circumstances, the Doha Round must highlight these two priority topics from beginning to end, otherwise the DDA will more in name than reality. As far as “special and differential treatment” is concerned, substantive negotiations should be conducted from two aspects. First, it is necessary to formulate operational rules and systems to strengthen the “special and differential treatment” provisions in the current WTO multilateral trade agreements, because most of the current “special and differential treatment” provisions are broad, empty, general and too flexible. The second is to formulate the necessary and new “special and differential treatment” provisions, because there is 12 For

details, see Das (2003).

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still a “special and differential treatment” vacuum in the existing multilateral trade agreements. As for the issue of “implementation”, it is mainly to solve the problems that need to be further clarified and improved in the implementation of the Uruguay Round of multilateral trade agreements, which are not necessarily aimed at developing countries. However, practice has proved that most of them have a negative impact on the trade and economy of developing countries, while they are either beneficial or have less impact on developed countries. Developing countries attach great importance to this and have submitted more than 100 proposals. Therefore, whether the implementation of multilateral trade agreements can be further improved in a direction of beneficial to developing countries is an important indicator of whether the Doha Round can achieve the “development agenda”. Finally, in implementing the main theme of “development”, it is important to ensure the negotiation agenda and substantive areas, it is also important to ensure the full participation of developing country members in the negotiation and decisionmaking procedures. If the vast majority of developing countries are turned away during the negotiation process of various issues and the drafting and amendment stages of various legal documents, the status and interests of developing countries will be ignored from the beginning of the procedure. This is not only an issue of economic and trade interests, but also a matter of principle with regards to the sovereign equality of countries.

20.3.2 The Belief in Multilateralism Is Unshakable WTO Members should always adhere to the belief that the multilateral trading system is the best legal form to promote trade liberalization. Especially at a time when the Doha Round is in the doldrums and regional trade agreements are booming, the firm belief of WTO Members in multilateralism is particularly important. It is true that regional trade agreements play a positive role in trade liberalization, investment facilitation and the promotion of transnational cooperation in other trade-related areas. Because of this, from the beginning, GATT regards the most common regional trade agreements-free trade area and customs union and their transitional arrangements as exceptions to the MFN principle of the multilateral trading system; the 1979 “Enabling Clause” further expands the type of regional trade agreements with this exception; the GATS of the Uruguay Round extends this exception to the field of trade in services. After the establishment of WTO, the Singapore Ministerial Declaration in 1996 and the Doha Ministerial Declaration in 2001 have successively confirmed the role of regional trade agreements in promoting trade liberalization. However, the positive role of regional trade agreements is limited though, and it is a second-best choice for trade liberalization. Compared with the multilateral trading system, the limitations of regional trade agreements are multi-faceted. Mainly manifested in: (1) The geographical scope and beneficiaries of trade liberalization are limited, although the degree and speed of trade liberalization may be higher than that of multilateral trade liberalization, because

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regional trade agreements involve only a few or a small number of countries, the trade preferences and facilities it brings can only be enjoyed by participating countries and their legal and natural persons; (2) The trade volume of trade liberalization is limited, accounting for only a small part of the total annual import and export volume of the countries participating in regional trade agreements; (3) According to the analysis of the US economic circle, from the perspective of importing countries, free trade zones will not necessarily bring greater economic and trade benefits than multilateral trade liberalization, or even smaller than the latter, because free trade zones can only bring trade diversion, but not trade creation13 ; (4) In the long run, it will do more harm than good to the vast number of developing countries, because developing countries are vulnerable in regional trade agreements. They often have to accept some harsh economy, political and military conditions put forward by the developed country under the pressure, in exchange for market access and direct investment. In the multilateral trading system, developing countries can form alliances to strengthen their ability to argue with developed countries in multilateral trade negotiations. In view of the limitations of regional trade agreements and the fact that their rapid development has increasingly eroded the principle of Most-Favored-Nation treatment, the cornerstone of the multilateral trading system, the designers of the multilateral trading system have defined their legal status as “exceptions” from the beginning, and have been working to establish reviewing and monitoring mechanisms for regional trade agreements, although no substantive progress has been made so far. The limitations of regional trade agreements on global trade liberalization fully demonstrate the superiority of the multilateral trading system from a corresponding perspective. Therefore, no matter how difficult and tortuous the road ahead of the Doha Round and the WTO, we must always maintain our belief in multilateralism. Only in this way can WTO and its Members, including other intergovernmental organizations and non-governmental organizations, make concerted efforts and make use of all kinds of official and folk wisdom, seek ways to overcome various difficulties, promote multilateral trade negotiations, constantly improve the multilateral trading system, and continuously promote the vertical and horizontal liberalization of global trade.

20.3.3 The Non-transparent, Non-democratic and Non-inclusive Way of Working Must be Changed Non-transparency, non-democracy and non-inclusiveness are more a basic working method of the multilateral trading system than an obstinate symptom that it has developed over the past few decades. Ironically, transparency has been a fundamental principle of the multilateral trading system since the beginning, but this principle 13 United

States Congressional Budget Office (2003), pp. 1–6.

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seems to have been directed only to the members of the club and not to the operation of the club itself. Indeed, during the GATT period, which lasted nearly half a century, various important decisions of the multilateral trading system were almost invariably formed by informal consultations of several important members first, and finally submitted to the representatives of all members for consultation and adoption near the end of the meeting. In the age of GATT, known as the “Rich Man’s Club”, the unwritten customary practices might work (and then it was not the case). However, in today’s new era of WTO, which is composed of 147 members, it is obviously anachronistic to continue to follow this old practice. Since the establishment of the WTO, five ministerial meetings have been held so far, two of which have ended in failure; and two of the last three Ministerial Conferences have broken up in discord. Moreover, although the reasons for each failure are different, the dissatisfaction and even indignation of the vast number of developing countries over the non-transparency, non-democracy and lack of broad participation in the working methods and procedures during the preparation and conduct of the Conference, is the common cause. The meetings of the supreme decision-making and deliberative bodies of a multilateral trade organization that has been established less than 10 years have such a high failure rate, and the last two failed meetings are critical moments in determining the fate of the first round of multilateral trade negotiations hosted by this emerging intergovernmental organization (The previous one did not launch the “Millennium Round” as scheduled, while this time, the Doha Round was severely blocked in the middle and its future was uncertain). Cannot this arouse the high vigilance and contemplation of WTO Members, especially those developed country members with great responsibilities? It is urgent to reform the decision-making procedures and document-formulating methods of WTO ministerial meetings and multilateral trade negotiations, in order to save the Doha Development Agenda, to ensure the normal operation of WTO. Developing countries and some non-governmental organizations have been actively calling for the reform of the way WTO conducts business. For example, in April 2000, a group of developing countries jointly submitted a proposal for WTO reform, the core of which was to achieve the transparency, broad participation and predictability in the multilateral trade negotiations and ministerial meetings of the WTO.14 On the eve of the Cancún Conference, several non-governmental organizations issued a Memorandum on the Need to Improve Internal Transparency and Participation in the WTO15 jointly. In this Memo, these non-governmental organizations warned that Cancún and other future ministerial meetings would run a high risk of failure if the WTO continued its current practice. The outcome of the Cancún Conference has been said by these non-governmental organizations. The urgent task is to take decisive measures to reform the working methods and procedures of the WTO, so as to avoid repeating the tragedies of the Seattle Conference and the Cancún Conference in the next Hong Kong Ministerial Conference and future Ministerial Conferences and multilateral trade negotiations. 14 World

Trade Organization (2003a). Network et al. (2003).

15 TransWorld

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First of all, the conference dominating mode must be fundamentally changed from chair-driven to members-driven. However, if a conference is operated entirely by the convener from preparation to the final decision or adoption of the document, and is operated in an opaque manner, regardless of the claims of the vast majority of participants, such a conference is bound to fail to achieve the desired results. Especially for intergovernmental conferences, the main role of the conveners is to use their positions, wisdom and skills to enable equal representatives to consult and negotiate on relevant issues in accordance with the agenda and rules of procedure of the meeting, and to bring about a final agreement as far as possible. However, how the meeting progresses and whether an agreement can be reached should be decided by the main body of the meeting, the participating members. That is the Members-driven meeting, and the convener serves the function of a go-between. The topics of intergovernmental meetings can only be achieved through negotiations and consultations among participating members, not through consultations and negotiations between each participating member and the convener of the meeting. Otherwise, this would not be an intergovernmental meeting and would distort the “intergovernmental” nature of the intergovernmental organizations responsible for convening such meetings. Secondly it is essential to ensure the transparency and broad participation or inclusiveness throughout the Conference. During the preparatory phase of the meeting, the WTO should, as far as possible, involve the delegations of its Members in the preparation of the agenda and documents of the meeting, and should fully ensure that the permanent representatives of the members in Geneva have time to contact the capital on relevant matters, and to ensure that they can fully express their views and suggestions. During the holding of Conference, the progress of the meeting and dissenting views or new suggestions should be communicated to each member in a timely and unreserved manner, and representatives of members should be allowed to participate in urgent or ad hoc informal consultations as much as possible, at least the participation of representatives of members from various interest groups should be ensured, thus in principle the participation of a small number of members in the “green room” meeting model should be abandoned. Thirdly, the democracy and representation of the final document of the conference must be ensured. The final document of the conference is a sign for determining whether a conference is successful or not. In other words, the final document is a landmark outcome of a conference, especially for intergovernmental organizations and intergovernmental conferences. Therefore, in order to achieve the successful conclusion of the DDA, it is necessary to promote meetings and negotiations as far as possible to produce high-quality legal documents. The term “high quality” here mainly means that the final document must have substantive content and conclusions on the theme of the meeting. To achieve this ultimate goal, as far as the final document itself is concerned, the principle of “seeking common ground while reserving differences” must be implemented. First, it is necessary to state the content that WTO members have reached agreement on relevant issues through consultation and negotiation, and then truthfully reflect the issues on which differences still exist after consultation and negotiation. Under no circumstances should the final document omit

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concluding observations that are broadly democratic and representative, nor include opinions that are not broadly democratic and representative. Finally, to implement the above recommendations, the fundamental premise is that the WTO should formulate systematic rules of procedure for meetings as soon as possible, especially the rules of procedure of the Council of Ministers.16 As a result, the rule orientation advocated by the WTO and the principle of fairness and justice in both entities and procedures not only restrict the domestic measures of each member, but also the operation of the WTO itself and the various actions of members in the WTO.

20.4 Conclusion There is a famous Chinese saying: failure is the mother of success. The failure of the Cancún meeting does not mean the failure of the Doha Round. It just means that the Doha Round has a bad fall on the way. Admittedly, it is a really bad fall, and it almost has been shaken to its core. In order for the Doha Round to continue its agenda and to bring down the curtain of success on time or at an early date, the author put forward proposals for WTO Members, especially those with decisive influence, from developed countries and representative developing countries as follows: First, WTO members must deeply reflect on and sum up the lessons of the Cancún conference, get out of the shadow of the Cancún conference as soon as possible, heal the spiritual trauma caused by the Cancún conference to WTO members, especially those from developing countries, and make concerted efforts to complete the last difficult journey of the Doha Round in line with the concept of “a prosperity or a loss for both sides of the situation” and the principle of “seeking common ground while reserving differences”. Second, WTO members must always keep to the path of global liberalization, which is dominated by multilateralism and supplemented by regionalism (including multilateralism and bilateralism). In an era of increasing interdependence among nations and an accelerating trend of economic globalization, no matter from the perspective of the overall world peace and development, or from the local economic and social progress of each country, multilateralism is the best way to meet various cross-border, trans-regional, trans-continental and trans-oceanic challenges, including trade issues. Regionalism can only play a supplementary or complementary role in addressing these challenges, so it is a second-best choice. Unilateralism must be resolutely resisted and abandoned, because this approach fundamentally violates the law of international social development of interdependence among countries. 16 Several

major developed country members are reluctant to set the rules of procedure for the Council of Ministers, and the reason is: Ministers of the highest deliberative and decision-making bodies of the WTO should have flexibility in how to manage the Council of Ministers and should not be restricted with procedural rules. See Khor (2003).

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Thirdly, WTO members must pursue multilateral negotiations and consensus around the development issue, which is the main theme of the Doha Round. Since the Doha Ministerial Conference identified the first round of WTO multilateral trade negotiations as a “development agenda”, it is necessary to respect the international legal personality and will of developing country members and absorb their suggestions or proposals to the largest extent, whether in the preliminary issues of the determination and adjustment of sentencing issues, in the specific areas, departments and other substantive contents of negotiations, or in the entire multilateral negotiation. To ensure their full participation in meetings and the formulation of legal documents as much as possible, and to ensure that major issues of particular concern to them, such as special and differential treatment, the implementation of multilateral trade agreements, agricultural and cotton production support and export subsidies, and market access for non-agricultural products are finally resolved to the largest extent. Finally, it is particularly important to emphasize that the yardstick of success in the Doha Development agenda is not whether the Doha Round ends on time or how long it has been extended, how many agreements have been formally concluded, and whether agreements have been concluded in trade-related areas or how many agreements in new areas have been concluded, but are the following key points in turn: (1) The theme of the Doha Round–the extent to which development issues are resolved, i.e. whether the majority of developing country members have obtained real benefits in the newly concluded multilateral trade agreements; (2) whether the newly concluded multilateral trade agreement is conducive to promoting the vertical and horizontal development of global trade liberalization; (3) as the institutional guarantee of global trade liberalization, whether the operation of WTO will become more democratic, transparent and highly efficient.

References Baffes J (2003) Cotton: market setting, politics, issues, and facts. Policy Research Working Paper 2918. World Bank, Washington, D. C Chetaille A, Tavernier K (2003) Failure of the fifth WTO ministerial conference in Cancún: a looming crisis in the multilateral trade system? http://agritrade.cta.int/. Accessed 22 Apr 2004 Das LB (2003) Status of The Singapore Issues after Cancún. Third World Network. www.twnside. org.sg/title/twninfo81.htm. Accessed 5 Apr 2004 Khor M (2003) An analysis of the WTO’s Fifth Ministerial Conference. Research Papers. www. g24.org. Accessed 22 April 2004 See Action Aid International (2003) Beyond Cancún: key issues facing the multilateral trading system. https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.wto.org% 2Fenglish%2Fforums_e%2Fngo_e%2Fpospap38_actionaid_e.doc. Accessed 22 Apr 2004 TransWorld Network et al. (2003). Memorandum on the Need to Improve the Internal Transparency and Participation in the WTO. Prepared by TWN, Oxfam, PSI, WWF, CIEL, Focus on the Global South, IATP, Africa Trade Network, IGTN and Tebtebba United States Congressional Budget Office (2003). Economic and budget issue brief: the pros and cons of pursuing free trade agreements. https://www.cbo.gov/publication/14657. Accessed 24 Apr 2004

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World Trade Organization (2003a) Communication from Cuba, Dominica Republic, Egypt, Honduras, India, Indonesia, Jamaica, Kenya, Malaysia, Mauritius, Pakistan, Sri Lanka, Tanzania, Uganda, and Zimbabwe (WT/GC/W/471) World Trade Organization (2003b) Ministerial Statement (WT/MIN (03)/20) World Trade Organization (2003c) The changing landscape of RTAs. Regional Trade Agreements Section, Trade Policies Review Division, WTO Secretariat, prepared for the Seminar on Regional Trade Agreement and the WTO. https://view.officeapps.live.com/op/view.aspx?src=https%3A% 2F%2Fwww.wto.org%2Fenglish%2Ftratop_e%2Fregion_e%2Fsem_nov03_e%2Fboonekamp_ paper_e.doc. Accessed 22 Apr 2004

Chapter 21

Brilliant Multilateral Trade System with Hardship: Achievements, Issues and Improvement

21.1 Concentration: Remarkable Achievements of Multilateral Trade System According to a recent report of the Consultative Board of the WTO Director-General,1 when some important trading countries and groups of countries decided to launch a new round of GATT multilateral trade negotiations in the mid-1980s, few people predicted that the final text of the Uruguay Round would have such a far-reaching influence, let alone the birth of a new international organization. Similarly, when 1 See Cho (2005); Sutherland et al. (2004), para. 2. In June 2003, Supachai, director general of the WTO, set up a consultative board composed of eight outstanding persons. Its responsibility is to study the current organizational challenges faced by the WTO and make suggestions on how to deal with these challenges. The Consultative Board is chaired by Peter Sutherland, former Director-General of the GATT, and its members include Jagdish Bhagwai (Professor at Columbia University), Kwesi Botchwey (former Minister for Finance of Ghana), Niall Fitzgerald (Chairman of Reuters), Koichi Hamada (Professor of Economics at Yale University), John H. Jackson (Professor at Georgetown University), Celso Lafer (former Foreign Minister of Brazil) and Thierry de Mombrial (Dean of the French Institute of International Relations). 2 Panitchpakdi (2005). In the opening speech of the fifth WTO open seminar, Supachai, DirectorGeneral of the WTO, listed six remarkable achievements of the WTO in the past 10 years: (1) extending the rule of law to the field of international trade, thus greatly maintaining peaceful and stable trade relations among WTO members; (2) providing an efficient platform for further trade liberalization and rulemaking; (3) making great progress in becoming a more universal organization; (4) making sustained efforts to fully integrate developing countries into the multilateral trading system by substantial investments in technical assistance and capacity-building activities; (5) the trade policy review mechanism has continuously promoted the trade system of WTO members to have a higher degree of transparency and predictability; (6) the operation of the WTO is more transparent to the outside world.

The Article was originally written by Prof. Zeng in Chinese, and published in Wuhan University International Law Review, (2), 2006, pp. 94–117. It was then translated by Assoc. Prof. Yanni Wu and proofread by Assoc. Prof. Yayun Chen. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_21

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the WTO took over the baton from the GATT on 1 May 1995, it was difficult to predict whether the reformed multilateral trading system can accomplish its mission and achieve breakthrough in promoting global trade liberalization. 10 years later, the international community’s evaluation of the WTO is, on the whole, more positive than negative. Although there are many twists and turns in the course of trade liberalization in the past 10 years, the achievements are still obvious to all.2 The following is not intended to list all achievements made by the WTO in its own organizational construction, and in promotion of global trade growth and economic and social development, but rather attempts to summarize from these achievements some far-reaching and symbolic contributions that the WTO has demonstrated or foreshadowed from the perspective of international law.

21.1.1 The Unprecedented Recognition and Participation to the Multilateral Trading System The birth of the WTO is a successful example of multilateralism in the last 10 years. The international recognition and participation to the WTO are rarely seen among many other international organizations. As one of the three pillars of the postwar world economy, the GATT initially had only 23 members. By the beginning of the Uruguay Round in the mid-1980s, there were only 86 members. Today, the WTO has nearly 150 Members. About 20 of them are new members after the establishment of the WTO. Relevant information shows that the number of WTO Members is expected to exceed 170 in the near future.3 Perhaps except for the United Nations—the world’s largest international organization, no other international organization can catch the attention and favor of the international community in such a short time, though this kind of recognition and participation to the WTO is, to some extent, a coercive one, at least for some countries. The international community attaches great importance to the WTO, showing exactly the value and role of the multilateral trading system in this interdependent global economy. As of today, although the number of WTO Members is still less than that of the United Nations and its specialized agencies, no one doubts that the WTO is truly an international organization. With nearly 1/4 of the world’s population, the economic growth rate ranking top in the world for consecutive years and the high attractiveness to foreign investment, China, after 14 years of negotiations, finally acceded to the WTO. China’s accession to the WTO is undoubtedly of great significance to enhance the internationality of the WTO. At present, there are 29 countries in the middle of accession to the WTO, among which Russia’s and Vietnam’s accession will have an important impact on the multilateral trading system. This will further prove that an effective multilateral trading system should be inclusive, and should not set discriminatory conditions in non-economic-and-trade fields such as political system and ideology. 3 Sutherland

et al. (2004), para. 283.

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When it comes to the recognition and participation to the WTO, we have to admit the diversity of the members of this new international organization. Today, it has, to some extent, thoroughly changed or is changing the image of “Rich Man’s Club” of the multilateral trading system. Although the number of developing country Members and economy-transitioning-country members of the GATT/WTO keeps increasing, and outnumbers all developed country Members, the latter, especially the United States, Europe, Japan and Canada, has been playing a dominant role in the multilateral trading system for so long. As the experience of developing country Members piles up, the enhancement of participation consciousness and ability, and the application of group mode, the proposals and opinions of developing countries in this “Rich Man’s Club” are no longer just “noises”, but rather an ever-increasing and passionate “melody” that cannot be ignored. Sometimes they have even become a key force that influences the major decision-making and negotiation process of the WTO. The Seattle Ministerial Conference, the Cancún Ministerial Conference and the ongoing Doha Development Agenda after the establishment of the WTO are all outstanding examples. The recognition and participation achieved by the WTO in such a short time is the inevitable result of the economic globalization. Although members of the international community from all walks of life have different or even opposite views on globalization, there is no doubt that globalization is an objective international phenomenon after World War II, and it has accelerated its pace in the past 10 years. The liberalization of global trade is undoubtedly an important catalyst for the acceleration of globalization, though there are other factors such as the acceleration of capital and human resources flow, the progress of science and technology, the convenience of transportation and communication. The WTO is an international organization that provides multilateral security and predictability for global trade liberalization. The WTO is established to adapt to globalization, while its operation in turn promotes the process of globalization. Therefore, if members of the international community desire to achieve economic and social development and improve the well-being of their people, they must integrate themselves into the trend of globalization. If we want to integrate into globalization, we must choose an open market economy, we must facilitate trade liberalization, and therefore we must accede to the WTO. The trade liberalization has brought to us economic prosperity and social stability and progress. Generally speaking, countries that choose trade as their economic pillar enjoy faster economic growth, stronger development momentum and more wealth than those choose to solely rely on domestic markets backed by protection walls.4 Moreover, economic theory and practical experience have repeatedly proved that “the sign of a closed economy is the lack of democracy and media freedom, the political oppression and the lack of opportunities for individuals to work and make contributions through education, innovation and sincere efforts. Therefore, putting the government and its citizens

4 Ibid,

para. 16.

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into the framework of an international organization dedicated to openness will surely produce effects far beyond the commercial business per se”.5

21.1.2 The Ever-Increasing Rule-Oriented Philosophy of the Multilateral Trading System The birth of the WTO reflects a basic consensus of most members of the international community: to ensure the continuous promotion of trade liberalization and the steady development of economy and society under the background of globalization, we must establish a rule-oriented philosophy and mechanism. However, only providing a contractual agreement basis is not enough to establish an effective ruleoriented multilateral trading system, we need to establish an appropriate organization and formulate an organizational charter, so as to provide a lasting organizational guarantee and a legal basis with constitutional features for the rule-oriented global trade liberalization. In the development of the multilateral trading system, the fundamental reason why the GATT was effective in the early stage, but powerless in the late stage in promoting trade liberalization and solving increasing trade disputes, is that it was based on the policies of all contracting parties, though it also contained certain rules and institutional components. Although the GATT’s policy-orientation was to use the agreement as the legal basis and operate through the organizational structure formed in practice, its legal basis and organizational structure were temporary and did not have security and predictability. It can be said that the WTO’s rule-oriented came into being by drawing lessons from the shortcomings of the GATT’s policy-oriented. The rule-oriented philosophy runs through the WTO’s operation in all aspects. Here are just two examples: Before the Uruguay Round, the conclusion and entry into force of relevant agreements in multilateral trade negotiations highlighted the characteristics of the GATT’s policy-oriented. After six years of negotiation, a series of agreements have been reached in the Tokyo Round. However, in the most critical link of concluding and accepting these agreements, the policy-oriented of separating the GATT membership and the parties to these agreements (sub-agreements) was adopted, i.e. the contracting parties to the GATT could choose to become the parties to these sub-agreements on their discretion. As a result, the parties to the sub-agreements formed in the Tokyo Round were on average less than half or even one third of the parties to the GATT at that time. The multilateral trade negotiations, which consumed a lot of human, material and intellectual resources, exerted a very limited effect. This can be said to be a microcosm of the input cost of international law disproportional to its effectiveness and efficiency.

5 Ibid,

para. 12.

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More than 30 agreements have been reached in the Uruguay Round, among which, few agreements follow the practice of the Tokyo Round as plurilateral agreements,6 while most agreements adopt “a package deal or a single undertaking” in the critical links of conclusion and acceptance, i.e. whether being contracting parties of the GATT or not, to become WTO Members, they must become parties to these multilateral trade agreements at the same time, and vice versa. This “a package deal” has greatly enhanced the rule-oriented and spatial effectiveness of the multilateral trading system. Today, the WTO has nearly 150 members, and the parties to multilateral trade agreements in the Uruguay Round are also about 150. The essence of this “a single undertaking” is to bind the membership of an international organization with the parties to the relevant treaties or agreements negotiated under the auspices of the organization, so as to guarantee the effectiveness of international legal rules to the greatest extent through the organizational structure. It should be said that the WTO’s practice is undoubtedly an innovation, which is of epochmaking significance for both general international law and specific international organic law or treaty law. The WTO’s dispute settlement mechanism is a powerful demonstration of its ruleoriented. Although this new type of dispute settlement mechanism has shown some defects in practice, the negotiations on its reform have been delayed again and again, and so far, it has not been concluded as scheduled, it is generally considered as the most successful aspect of the WTO. As stated in the report of the Consultative Board of the WTO Director-General, “the current WTO dispute settlement procedures…… are to be admired, and are very significant and positive step forward in the general system of rule-based international trade diplomacy. In many ways, the system has already achieved a great deal, and is providing some of the necessary attributes of ‘security and predictability’……”7 As a symbol of the WTO’s rule-oriented, the dispute settlement mechanism is first embodied in the legal basis established by the founders of the mechanism. At the beginning, there were only three provisions of the GATT on dispute settlement. Although the GATT gradually formed a set of dispute settlement procedures and methods in the practice of the following decades, these procedures and methods were scattered in different sub-agreements, and there was no unified system. With the passage of time and the increasing complexity of trade disputes, the GATT was facing more and more disputes, and its established dispute settlement procedures and methods were becoming more and more powerless, all of which were directly and significantly related to the inherent deficiencies of its legal basis. In order to avoid the same mistake, the Understanding on Rules and Procedures Governing the Settlement of Disputes in the Uruguay Round was hereby formulated, containing 6 These agreements are the Government Procurement Agreement, the Aircraft Trade Agreement, the

Beef Agreement and the Dairy Products Agreement. Among them, the first one has about 1/5 WTO members as its contracting parties, and the second one has even less. The last two agreements are included in the Agricultural Agreements and no longer exist. After the establishment of the WTO, another Plurilateral Trade Agreement was reached in 1996, namely the Information Technology Agreement. At present, there are about 63 WTO members participating this Agreement. 7 Sutherland et al. (2004), para. 213.

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as many as 27 clauses and four annexes. In addition, the Uruguay Round agreements on substantive trade sectors and areas had made clear supporting provisions on the dispute settlement. It can be seen that the WTO has laid a solid legal foundation for the WTO’s rule-oriented dispute settlement since its inception. In order to enhance the effectiveness and efficiency of the dispute settlement mechanism and make the WTO’s rule-oriented worthy of its name at the level of dispute settlement, the WTO’s dispute settlement mechanism, on the basis of inheriting some necessary elements of the GATT dispute settlement procedures, has made great efforts to implement a series of important reforms and innovations. For example, in order to prevent case delay, a strict time limit has been set for every dispute settlement procedure; in order to prevent the deadlock between the parties in the generation of the expert group, it is provided that the Director-General has the right to appoint the members of the expert group; in order to ensure that the report of the expert group or the appellate body is not subject to a single blocking veto of the losing party, the decision-making mode of the dispute settlement body is changed from the consensus to the reverse consensus; in order to fully protect the rights of the parties and the accuracy and appropriateness of the law application, an appellate body and corresponding appeal procedures have been established; in order to ensure the effective enforcement of the decision of the dispute settlement body, the cross-retaliation has been added on the basis of the original authorized compensation. In a word, although consensus, as the core of policy-oriented, is still the basic and preferred political method of the WTO’s dispute settlement mechanism, compared with the GATT, the WTO’s rule-oriented dispute settlement mechanism has been greatly enhanced. Moreover, there are signs that the legal characteristics of the reformed WTO dispute settlement mechanism will be more distinct.

21.1.3 The Initial Formation of the Legal System of the Multilateral Trading System Undoubtedly, given many international trade organizations withered on the vine before the WTO, the GATT and the sub-agreements, decisions and customary practices formed in its subsequent practice have played an invaluable but temporary role in the establishment and maintenance of the international trade order for nearly half a century after World War II. However, it is not without regret that in the GATT period, the multilateral trading system did not establish a clearly defined legal system. With the establishment of the WTO, a multilateral trade legal system with initial framework and scale shows itself in front of the international community. The main contents of this new legal system are composed of five relatively independent but also closely related legal branches: (1) the WTO institutional law with the Agreement Establishing the World Trade Organization as its core; (2) the laws concerning trade in goods, trade-related investment and trade-related intellectual property with the 1994 GATT and a series of multilateral trade agreements formulated in the Uruguay

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Round on clarifying, supplementing and improving the GATT as the core; (3) the laws on trade in services based on the GATS; (4) the dispute settlement law represented by the Understanding on Rules and Procedures Governing the Settlement of Disputes; (5) the plurilateral trade law composed of several plurilateral trade agreements. Among the above-mentioned legal branches, the laws on trade in goods are the most systematic and sophisticated ones, while the laws on trade in services are the most underdeveloped. Although the organic law and the dispute settlement law are new, they inherit some traditions from the GATT, while the plurilateral trade law continues to maintain its characteristics of voluntariness and independence in the GATT period. One of the most important criteria for judging the establishment of legal systems is to see whether there is a certain level or hierarchical relationship within their complex legal norms. In the WTO law, this kind of hierarchical relationship possesses a great degree of certainty. According to the Agreement Establishing the World Trade Organization and other relevant legal documents of the Uruguay Round, in the WTO legal system, the WTO Charter is the supreme authority and shall prevail over other branch laws in case of conflicts; as to the laws on trade in goods, in the event of a conflict between the GATT 1994 and Uruguay multilateral trade agreements, the latter shall prevail. However, in the WTO legal system, the legal standing of some legal documents is not specified. For example, since the establishment of the WTO, if the Protocols of Accession for New Members and the Report of the Working Group conflict with the WTO Charter or the multilateral trade agreements of the relevant departments, which shall prevail? It is true that in practice, if the relevant disputes involve these uncovered matters, the WTO dispute settlement body can make appropriate interpretation by applying the principles and rules of treaty law and general international law.

21.2 Focus: Outstanding Issues of Multilateral Trade System Since the establishment of the WTO, criticism never dies. With the matters in Ministerial Declarations or Decisions of the Uruguay Round not carried out or completed as scheduled, all kinds of complaints about the WTO become more and more intense. In particular, the failure of the Seattle Ministerial Conference, the setback of the Cancún Ministerial Conference and the extraordinary difficulty of the Doha Development Agenda have made various problems of the multilateral trading system more and more prominent, and the call for reform is growing.

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21.2.1 The Self-Orientation of the WTO Among the challenges faced by the WTO, the most prominent one is the decline of work efficiency, which is mainly reflected in the increasingly difficult multilateral negotiations and the slowing-down progress of trade liberalization. It can be said that most of the other problems discussed below are related to this. There is no doubt that there is an objective inevitability for this to happen, such as there are more WTO Members, identities of WTO Members are more complicated, negotiation topics are more sensitive, room for negotiation becomes smaller, etc. However, viewed subjectively, the WTO does need to identify itself correctly. The Uruguay Round was once called a round of multilateral trade negotiations with epoch-making significance. It not only promoted the further reduction of tariff, but also greatly restricted or canceled all kinds of non-tariff barriers, as well as improved the trade remedy system such as dumping and anti-dumping, subsidy and anti-subsidy and safeguard measures. When people praise the Uruguay Round, they can’t help mentioning that it is this round that created the WTO, and at the same time promoted the multilateral trading system to enter into the fields of service trade and two fields beyond trade—investment and intellectual property rights for the first time. Moreover, Ministerial Declarations and Decisions of the Uruguay Round also vowed to regard the environmental protection as a new area of the WTO. Some developed members and academic circles harbor greater ambitions, and even spare no effort to integrate competition and human rights into the multilateral trading system. However, with the passage of time, more and more developing country Members think that they have not obtained obvious benefits from the new multilateral trading system, and even feel cheated. The main reason why they made compromises in some new areas in the Uruguay Round was that the developed members promised them a considerable number of special and differential treatment. It has been proved that such special and differential treatment has not been realized, but developing country Members have paid high human and financial costs for the implementation of agreements in these new areas, some of which even exceed their actual capacity. Therefore, under the strong appeal of developing members, the WTO has determined the Doha Round as the “Development Agenda”, which means that the WTO’s first round should focus on solving the increasingly serious development issues of developing countries. Therefore, when some developed countries put pressure on them to include the “Singapore Issues”8 in the negotiations during the Cancún Ministerial Conference, the developing country Members said they would not make any compromise, but instead focusing on the implementation of the multilateral trade

8 Singapore Ministerial Declaration, adopted on 13 December, available at: http://www.wto.org/eng

lish/thewto_e/minist_e/min96_e/wtodec_e.htm. Accessed 18 April 2004. According to the 1996 Singapore Ministerial Declaration, research would be carried out in a number of areas which would be used as the topics of multilateral trade negotiations. These areas are trade and investment, trade and competition policy, transparency in government procurement and trade facilitation, which were later generally referred to as “Singapore Issues”.

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agreements of the current Uruguay Round, which eventually led to the failure of the Conference. It can be seen that how to orient the multilateral trading system in the new century is a major issue that the WTO and its members must take seriously and make scientific decisions for. If the orientation is too conservative, it will not meet the needs of globalization and trade liberalization; if the orientation is too avant-garde, I’m afraid that the desire for speed will not be achieved.

21.2.2 The Erosion of the Non-discrimination Principle Non-discrimination is a core principle established by the multilateral trading system for global trade liberalization from the beginning. There are two main components of non-discrimination: the Most-Favored-Nation (MFN) treatment and the national treatment. In view of the importance and role of this principle, politicians and scholars have unanimously described it as the “cornerstone” of the multilateral trading system.9 More than half a century ago, when this principle was upgraded from the previous basic principle of bilateral trade relations of some countries to the basic principle of multilateral trade relations, the international community generally called this principle a leap forward in the rule of law in international trade. At the same time, considering the history and reality of international trade relations, the GATT also provides a series of exceptions that can legally deviate from the principle of non-discrimination. These exceptions can be roughly divided into two categories: one is for the MFN treatment based on the actual situation, such as historical preference exception, regional trade agreement exception, general exception, security exception, anti-dumping measures, countervailing measures, safeguard measures, etc.; the other is to stipulate the exemption of certain types of members from the rules accepted by all members or to modify the rules for such members, mainly aiming at the special and differential treatment (preferential treatment) of developing and least developed country Members, such as balance of payments exception and infant industry exception stipulated in Article XVIII of the GATT, the special and differential treatment stipulated in Part IV of the GATT, 1979 “Enabling Clause”, special and differential treatment clauses contained in multilateral trade agreements of the Uruguay Round, etc. Among all the exceptions mentioned above, Regional Trade Agreements or Arrangements (RTAs) with free trade zone agreements and their transitional arrangements, customs union agreements and their transitional arrangements and preferential trade agreements as the main forms are the most common, which have the greatest

9 See

Lingliang Zeng (1996), pp. 38–39; Guiguo Wang (2003), pp. 39–61, 158–169. Mai-Sushita et al. (2004), pp. 143–154.

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impact on the MFN treatment—the cornerstone of multilateral trading system. Especially since the establishment of the WTO, RTAs have been increasing explosively.10 In 2003, the Cancún Ministerial Conference failed, resulting in the frustration of the Doha Development Agenda. Although there are many complicated reasons, it is closely connected with WTO Members in the policy-oriented of “abandon the old for the new” and “pass one’s affection to another” in multilateral trade negotiations and RTA negotiations.11 The rapid growth and global spread of RTAs, together with the frequent use of many other exception clauses, undoubtedly erode the principle of non-discrimination and damage the foundation of the multilateral trading system more seriously. This phenomenon of “spaghetti bowl” means that the MFN treatment, originally a basic principle of universal application, gradually evolves into an “exceptional treatment”, while the clauses originally applied in exceptional circumstances are becoming provisions with practical universal application. Under such a trend, the MFN treatment has become the “least-favored-nation treatment” from the perspective of practical application.12 The EU is a typical example. As a member of the WTO, the European Community has always been the pioneer of RTAs. It not only has the highest degree of regional integration and the greatest influence, but also constantly expands RTAs around the world. At present, there are only nine trading partners to whom the EU’s MFN tariffs are fully applicable. There are various signs that other WTO Members are actively emulating the EU. Even the East Asian countries, which used to be the “blind area” of RTAs, are becoming enthusiastic. In the long run, the prospects of the multilateral trading system are really worrying. Another serious consequence of the proliferation of RTAs is the balkanization and complication of the rules of origin. Up to now, there is no unified rules of origin in the world, which undoubtedly hinders the establishment of a non-discriminatory, fair and transparent international trade order. The WTO has been committed to the coordination of the rules of origin, but it has not made much progress, and the current coordination plan does not include the coordination of preferential rules of origin. In the era of globalization, the production and supply of raw materials and spare parts of products are becoming more and more diversified. Each RTA has its own rules of origin, including its own standards for “local added value” or “conversion” of products. This means that the number of RTAs a country has participated in equals to the number of preferential rules of origin that country has. Thus, by the end of 2005, the number of RTAs may be close to 300, and there will be an equal number 10 At present, the vast majority of WTO members are parties to one or more regional trade agreements. By December 2002, about 250 RTAs had been notified to the GATT/WTO, of which 130 were notified after 1995. At present, there are 170 regional trade agreements in force, and another 70 are to be ready for implementation, although the WTO has not yet been notified. By the end of 2005, if the regional trade agreements under planning and negotiation will be concluded, the total number of regional trade agreements will be close to 300. See http://www.wto.org/english/lratop_ e/region_e/region_e.htm. Accessed 12 April 2005. 11 For details, see Lingliang Zeng (2004a). Lingliang Zeng (2004b). 12 Sutherland et al. (2004), para, 60.

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of preferential rules of origin. The inevitable consequence of the fragmentation and complication of the rules of origin is the increase of trade cost, which is especially unfavorable for the export trade of SMEs and developing countries.13

21.2.3 The Ineffectiveness of the Preferential Treatment Since the introduction of preferential treatment to the trade of developing countries in the mid-1960s, the field and scope where the principle of preferential treatment is applicable have been constantly expanding, and the number of treaties, agreements, declarations, resolutions and clauses related to preferential treatment has been increasing, with no accurate statistics available. Generally speaking, in addition to the preferential trade agreements among developing countries, the trade preferential treatment of developed countries to developing countries and least developed countries can be roughly divided into two categories: The first is the preferential treatment clauses or special and differential treatment clauses contained in various multilateral trade agreements concluded within the framework of the GATT/WTO. The second is the trade preferential treatment given to developing countries by developed countries or groups of countries through bilateral agreements under the initiative of the multilateral trading system, which is mainly embodied in the Generalized System of Preferences (GSP). After the establishment of the WTO, a series of new measures have been taken to implement the preferential treatment for developing countries. The ongoing Doha Round, named after the “development agenda”, claims to pay special attention to the implementation of the special and differential treatment clauses for developing countries in the multilateral trade agreements of the Uruguay Round. The Doha Declaration clearly states that all existing special and differential treatment clauses “should be examined in order to strengthen them and make them more specific, effective and operational”.14 In addition, the WTO, in cooperation with other international organizations, has successively launched a number of specific programs for special and differential treatment of developing countries. For example, in 2002, the WTO, the World Bank and other international organizations jointly established a new fund called the Standards and Trade Development Facility, aiming to provide financial support and technical assistance to developing countries to help them develop and implement international standards for food safety, animal and plant health. For another example, according to the initiative of the 1996 Singapore Ministerial Conference, in 1997, the WTO, together with the International Monetary Fund, the World Bank, the International Trade Center, the United Nations Conference on Trade and Development, and the United Nations Development Program, jointly launched a Plan

13 Ibid,

pp. 81–82. Ministerial Declaration, adopted on 14 November 2001, para 44. See http://www.wlo.ore/ english/thewto_e/minist_e/min01_e/mindecl_e.htm. Accessed 21 April 2005.

14 Doha

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of Action specifically for the special trade difficulties of the least developed countries. To this end, an “integrated framework” of cooperation has been formed among the secretariats of these international organizations. Each of them cooperates with donor countries and least developed countries within its own competence to provide trade-related assistance and capacity-building for the latter. Although the WTO and other international organizations have made great efforts in many aspects such as laws, policies, funds and technologies in terms of trade preferential treatment for developing countries, and achieved some results, developing countries tend to feel that “the thunder roars loudly, but little rain falls”. After the encouraging momentum brought by each launch of the preferential treatment, the result is far beyond satisfaction. Of course, there are many reasons for this to happen, but the following factors make developing countries feel particularly frustrated.

21.2.3.1

An Insight into the Fishy Part of GSP

The GSP is a kind of non-reciprocal treatment that developed countries unilaterally grant to developing countries for development purposes. However, in practice, benefactor countries usually directly or indirectly impose certain conditions on beneficiary countries, and many of these conditions are not trade related, such as human rights protection, environmental protection, intellectual property protection, democracy, currency exchange rate, etc. Therefore, there is a great distance between the actual GSP and that claimed by the relevant agreements and declarations. It has been asserted that the GSP is no longer non-reciprocal in nature.15 Moreover, benefactor countries are usually discriminatory in the choice of beneficiary countries, which results in double erosions of the MFN treatment.16 Recently, India has filed a complaint with the WTO on the issue of discriminatory treatment in the GSP implementation by the European Community. Although the appellate body partially overruled or revised the conclusions of the expert group in this case, it generally maintained the main opinion of the expert group that the principle of nondiscrimination must also be followed in the GSP implementation among developing countries.17 In terms of the product range and preferential range of GSP, it is also the benefactor country rather than the beneficiary country that plays a decisive role. In practice, the GSP is usually excluded from application for imported “sensitive products” that pose a competitive or potential competitive threat to the domestic country. According to some research data, the GSP has not brought much practical benefits to the developing countries, even China, that is, China’s remarkable achievements in trade and economic development in recent years are not owing to the GSP.18

15 Sutherland

et al. (2004), para. 94. Zeng (2004b), pp. 125–126. 17 World Trade Organization (2004); Bartels (2003). 18 Sutherland et al. (2004), para. 99. 16 Lingliang

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21.2.3.2

405

An Insight into the Crux of Special and Differential Treatment

If we carefully study the provisions of Part IV of the GATT and the multilateral trade agreements of the Uruguay Round on special and differential treatment, especially when we are comparing these provisions with other provisions, it is not difficult to find that the wording of the special and differential treatment provisions is often general, principled and flexible, with many incentive and prospective expressions, leaving sufficient room for interpretation and application thereof. In other words, the rights and obligations of many such provisions are vague and lack of due operability. Even if the rights and obligations of preferential treatment clauses in some agreements are clear and specific, developed country Members usually fail to implement them as scheduled or completely due to political, economic and social concerns in practice. Although in recent years, the WTO has adopted some specific action plans for assistance and support to developing countries, especially to the least developed countries, these action plans are totally policy-oriented and are not legally binding. Their success or failure and implementation depend on the generosity and goodwill of volunteers. It would be self-evident that its effect is not good. In a word, over the years, developing countries have generally felt frustrated about the preferential treatment. The ongoing Doha Development Agenda is the latest example. Although the Doha Ministerial Declaration specifies that all special and differential treatment should be reviewed to make it more specific, effective and practical, however, there has been no substantive progress in the negotiations in this regard.19 In fact, the reason is very simple: given developing countries and their population account for an absolute majority, if their trade cannot be substantially improved, their economy cannot grow for a long time, and hunger, poverty and disease cannot be contained for a long time, this will inevitably bring domestic social unrest, even armed conflicts and wars, which will eventually endanger regional and global economic and social development, peace and security. Recently, the UN Secretary-General Annan submitted a report titled “In Larger Freedom: Towards Development, Security and Human Rights for All” on the implementation of the United Nations Millennium Declaration five years ago.20 Remarkably, the report changes the previous enumeration order and puts “development” first. In his report, Annan also elaborated on the interaction among the three elements of larger freedom, namely, “development, security and human rights are not only necessary, but also mutually reinforcing”21 ; “therefore, without development, we cannot enjoy security; without security, we cannot enjoy development; without respect for human rights, we can neither enjoy security nor development”.22 Undoubtedly, the sustainable growth of global trade, especially “development”, is the most crucial factor to realize this trinity of larger freedom.

19 International

Centre for Trade and Sustainable Development (2004). Nations General Assembly (2005). 21 Sutherland, et al. (2004), para. 16. 22 Sutherland et al. (2004), para. 17. 20 United

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21.2.4 The Choice of Decision-Making Methods One of the main functions of the WTO, like its predecessor the GATT, is to initiate and preside over multilateral trade negotiations. WTO Members cut tariff and other non-tariff barriers, as well as tackle other challenges in global trade liberalization through multilateral trade negotiations. Therefore, to a large extent, be it the previous GATT or the current WTO, their reputation depends on the success or failure of each round of multilateral trade negotiations. For decades, whenever the multilateral trade negotiations are frustrated, the multilateral trading system will incur criticism from all sides. Although compared with the GATT, the WTO has fundamentally changed from the perspective of organization, it is still a fair and square international organization; but its first round of multilateral trade negotiations since its establishment does not seem to be smoother than previous rounds, or even more difficult and tortuous than before, and the criticism received is even sharper than that received by the GATT in the past. This is generally the case in terms of performing daily duties and carrying out routine activities. In addition to the above-mentioned objective factors and the subjective positioning deviation of the WTO, the decision-making mode of consensus is the important reason for the difficulty of reaching an agreement in multilateral trade negotiations and the low efficiency of the routine work of the WTO. In terms of the decision-making mode, the WTO basically follows the practice of the GATT in the past, that is, except for a few matters that need to be approved by vote, the vast majority of matters adopt the decision-making mode of consensus. The so-called consensus means that a decision can be passed only if there are no WTO Members actively opposing it. This means that any WTO member, even if its status is insignificant in global trade, has veto power to any decision of the WTO. The decisionmaking mode of consensus can ensure that the least developed country Members are not overwhelmed by the developed country Members, which is equivalent to the application of the MFN principle in the decision-making process and method.23 It can be seen that the consensus approach has its own advantages compared with approaches adopted by other international organizations. It is not as rigid as the unanimous approach, according to which a decision cannot be made without the consent of every member. It can also avoid the defect of the majority voting at the expense of the interests of a few members. However, there are obvious disadvantages in the consensus approach. Firstly, the consensus approach is favorable to those members who can attend all conferences, while unfavorable to those who can only attend some conferences due to human and financial resources constraints, because absence or waiver cannot prevent the formation of agreements. Therefore, in recent years, some small developing countries, especially the least developed countries, have often complained that WTO conferences are too many, too frequent even with several conferences held at the same time. Due to the lack of human, financial and intellectual resources, many conferences are beyond the reach of such countries. Therefore, it is commented that 23 Ibid,

para. 281.

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the WTO’s consensus approach seems to be beneficial to developing countries, but in fact, it is unfair.24 Secondly, the consensus approach usually results in the minority or even a single opinion “blocking” the majority opinion. Under the consensus approach, even if the relevant resolution is approved by the overwhelming majority of members, if a few members or even a single member insist on their objections, the resolution still cannot be adopted. Therefore, on the one hand, the interests of the majority of members have been harmed; on the other hand, multilateral trade negotiations are stalled and those established issues that need to be implemented are difficult to be carried out. Some analysts believe that in recent years, WTO Members have transferred some matters that belong to multilateral trading system negotiations and discussions to other occasions (such as regional organizations) or sought other solutions (such as regional agreements), which is the result of “consensus blocking” within the WTO.25 In recent years, given that consensus is a major factor restricting the work efficiency of the WTO, some WTO Members, NGOs and scholars have advocated to reform the decision-making mode of the WTO. Generally speaking, there are three different views: The first is to abolish the consensus approach and take majority voting as the basic decision-making mode of the WTO. The second is that there is no perfect decision-making method in the world, and the consensus approach is the practice of the multilateral trading system in the past 50 years, which cannot be easily changed. The third is a compromise, which advocates that the consensus approach should be maintained and that some reforms can be carried out on specific matters. Therefore, among the common international decision-making modes, the consensus approach, which has been the least controversial for so long, is facing an unprecedented and uncertain severe challenge under the new situation.

21.2.5 Democratic Governance The global democratic governance is a popular concept in recent 10 years. Its essence is to enhance the internal transparency and external transparency of international organizations’ decision-making. The so-called internal transparency mainly means that the decision-making process of an international organization should ensure sufficient openness and democracy, that is, the democracy and transparency of the decision-making process. The so-called external transparency mainly means that an international organization should include actors (mainly NGOs and civil society organizations) that are not members of the organization to participate in the operation thereof. In fact, the division of internal transparency and external transparency is only of a relative nature, and cannot be completely separated. In many cases, the two are overlapping.

24 Choike

(2015), p. 2. et al. (2004), para. 284.

25 Sutherland

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21.2.5.1

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Internal Transparency

The internal transparency of the WTO is mainly about how to ensure that WTO Members, especially the developing countries, can fully and timely obtain all kinds of documents and information of the WTO, as well as participate in all kinds of conferences and decision-making processes of the WTO. After the establishment of the WTO, the internal transparency is mainly reflected in the previous ministerial conferences. Complaints mainly come from developing country Members and least developed country Members. These members’ criticisms on the lack of internal transparency of the WTO mainly include: (1) There are many informal, unregistered and exclusive conferences. These conferences are often held in private and lack transparency. Moreover, developing country Members cannot attend them all due to resource constraints. (2) “Mini Ministerial Conference” is popular. Only a few members are invited while the vast majority of developing countries cannot attend such conferences. This kind of conferences, generally held before the ministerial conferences, actually creates an unelected secret “steering group”. (3) Conference documents are issued too late, and some important documents are only available in one language. Some small developing countries do not have enough time to be familiar with such documents, or they cannot understand such documents due to language barriers. (4) More and more discussions and negotiations have become “chair-driven” by various formal and informal committees or groups, which has a great momentum to replace “Member-driven”. (5) The Chair or “Friends of the Chair” presiding over the negotiations on some key issues are not democratically selected, and the “greenroom” conference excludes many Members from participating in decision-making. The above-mentioned problems are age-old, and more and more developing country Members feel dissatisfied or even indignant. It should be acknowledged that the original intent of the above practices is to improve the operation efficiency of the WTO. However, the result seems to be backfired. Over the years, the ministerial conferences and multilateral trade negotiations have been repeatedly frustrated, all of which are directly related to the internal transparency of the WTO.

21.2.5.2

External Transparency

The global democratic governance is more closely linked with the increasingly prominent position and role of NGOs and international civil society organizations in international affairs. This new “Mass Democracy” emerged in the international

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community is called “Global Partnership Revolution” or “Global Associational Revolution”.26 This rising revolution is bound to have an ever-increasing impact on the operation of intergovernmental organizations including the WTO. It should be acknowledged that the WTO has attached great importance to establishing ties with NGOs at the very beginning, and has taken a series of measures to strengthen its external transparency. Article V (2) of the Agreement Establishing the WTO explicitly authorizes the General Council to “make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO”. It is rare for the charter of an international organization to explicitly stipulate the establishment of consultation and cooperation with NGOs. Therefore, viewed from the legal basis, the WTO goes far ahead in this regard. To this end, the General Council adopted the guiding principle in 1996, with particular reference to the search for improved transparency and the dialogue with NGOs. In 2002, the General Council decided to speed up the release of WTO documents; at present, NGOs may obtain WTO documents almost simultaneously as WTO Members. All ministerial conferences of the WTO have invited NGO representatives to attend the plenary session. The number of participating NGOs and their representatives is increasing rapidly.27 In addition, the Director-General and the Secretariat also meet regularly with NGO representatives, and those NGOs with representative offices in Geneva may also receive briefings from WTO councils and committees. Moreover, the home page of the WTO website has a dedicated forum for government officials, representatives from private sectors, NGOs and other non-state actors to make comments. The Secretariat also regularly invites NGOs to participate in various thematic seminars held in Geneva. From the perspective of NGOs, if used properly, they can play a positive role in improving the multilateral trading system. Some NGOs closely related to the WTO’s matters, especially those in the field of economy and trade, are highly professional. By establishing extensive contacts with these NGOs and allowing them to participate in the relevant WTO activities, the WTO can enrich the discussion of relevant topics, put heads together, enhance the democracy and scientificity of decision-making, as well as influence government representatives to adjust their positions and policies properly, thus breaking the deadlock of negotiation and promoting multilateral trade negotiations. However, viewed from the impact on the government, some believe that it is not the WTO, but WTO Members who shall take the initiative to bear the responsibility of increasing the transparency to NGOs. It is worth noting that NGOs are not satisfied with their current relations with the WTO. They believe that the multilateral trading system is completely dominated by the government’s economic and trade policy objectives and the interests of multinational corporations, at the expense of public policy objectives, citizens’ interests, public interests and the overall interests of mankind. Therefore, they strongly demand 26 Sutherland

et al. (2004), para, 176.

27 Sutherland et al. (2004), para. 184. At the fifth Ministerial Conference (Cancún Ministerial Confer-

ence), there were about 1575 attendees representing 795 NGOs; at the first Ministerial Conference (Singapore Ministerial Conference), there were only 235 attendees representing 108 NGOs.

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that the WTO be more open, more transparent, more democratic, and further they should be officially qualified as observers of the WTO. What’s more, it is suggested that the WTO should establish a Parliament Assembly28 to fundamentally guarantee the democratic governance of the multilateral trading system. So far, the above-mentioned proposals have been partly approved and supported, and partly opposed by some WTO Members; quite a few WTO Members oppose any of the above proposals. It can be said that the dispute about the WTO’s democratic governance is bound to be more and more intense, and the WTO has to make new choices.

21.3 Expectation: Self-perfection of Multilateral Trading System In conclusion, the WTO’s 10-year development has gone through many ups and downs! This international organization born on the eve of a new century not only creates unprecedented achievements in the process of global trade liberalization and its rule of law, but also faces unprecedented challenges. At the beginning of the new century, the multilateral trading system has come to a new cross road! In recent years, with more and more accusations against the WTO, the WTO Secretariat, WTO Members, other intergovernmental organizations, NGOs and academic circles also show their special prowess, and put forward various suggestions for the reform and improvement of the WTO. In view of the prominent problems in the above analysis, the author thinks that in the self-improvement process of the WTO, we should focus on the following aspects:

21.3.1 Adhere to the Principle of Dos and Don’ts That is, in the process of globalization, the WTO should unswervingly stick to its own position—to provide rule-oriented system for the security and predictability of multilateral trade liberalization. For fields other than trade, regardless of the direct or indirect relation, we must be cautious, i.e. be prudent in overstepping the line and always avoid misplacement. In other words, the WTO should not use its own resources and wisdom to open up new paths in a decentralized way, but should focus on building the main road under its jurisdiction, so that it can go farther and better, 28 Sutherland

et al. (2004), paras. 204 and 206; World Trade Organization (2002), pp. 1–4. The initiative to launch the WTO to establish a Parliamentary Assembly originated from a proposal adopted by members of the European Parliament during the Seattle Ministerial Conference in 1999. The proposal was reintroduced during the Doha Ministerial Conference in 2001. In recent years, representatives of the European Parliament, the Inter-Parliamentary Union and other representatives of domestic parliaments of WTO members have been committed to the establishment of the WTO Parliamentary Assembly through various channels.

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and benefit all motor vehicles (i.e. WTO Members), be they the luxurious Mercedes or BMW, or the mid-end Audi or Honda, or the low-end Citroen series, running on the road of global trade liberalization.

21.3.2 Strengthen the Review Mechanism of RTAs In view of the rapid spread of various RTAs, the WTO should organize relevant sides as soon as possible to carry out an objective assessment of its negative impact on the multilateral trading system, as well as study the corresponding legal and policy measures. The specific suggestions are as follows: Firstly, the WTO should improve the standards and conditions of review and supervision over RTAs, and specify the relevant substantive conditions contained in Article XXIV of the GATT and Article V of the GATS. More importantly, given the main motivation of many RTAs at present is not about economy and trade, but more closely related to political, security and diplomatic considerations, the WTO should start to formulate rules, specifying that RTAs among WTO Members should be purely or mainly for economic and trade purposes, and guaranteeing that the trade of WTO Members who are not contracting parties to RTAs will not be harmed materially. Secondly, we should improve the review procedure and change the situation where the WTO cannot pass decisions though being trapped in the process of reviewing RTAs for a long time. We should establish an expert group or committee comprised of independent personnel to make an independent and objective evaluation on the compliance of RTAs with the provisions of the WTO, and then submit the decision to the Committee on Regional Trade Agreements for deliberation and adoption. In order to prevent the representatives of interested WTO Members in the Committee from blocking the adoption of the decision, the decision-making mode of reverse consensus in the dispute settlement body should be introduced. In addition, the coordination system of studying and formulating preferential rules of origin should be initiated as soon as possible. In particular, it is necessary to establish a unified guiding principle for the local component requirements of preferential rules of origin; establish general disciplines for the way, method and procedure of identifying the origin of products, especially the principles of nondiscrimination, transparency, objective, impartial, judicial review, etc. If possible, we should strive for the coordination plan of general rules of origin and the coordination plan of preferential rules of origin of the WTO to be launched simultaneously, so as to curb the increasing complication and balkanization of rules of origin around the world as soon as possible, and further minimize the obstacles to the process of global trade liberalization. Finally, when it is still impossible to prohibit RTAs in the foreseeable future, in order to reduce the RTAs’ erosion on the cornerstone of the multilateral trading system, the fundamental way out is that the WTO and its members use greater political wisdom to highlight the status of the multilateral trading system, strengthen its role

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and facilitate its advancement. In other words, through the effective reduction of MFN tariffs and non-tariff measures in multilateral trade negotiations, the negative impact of the proliferation of RTAs can only be remedied until the MFN tariffs are reduced to zero,29 and in this way, the preferences offered by RTAs would become meaningless.

21.3.3 Safeguard the Rights and Interests of Developing Members Only if the trade of these members continues to grow, their economy continues to develop, and their society continues to stabilize and progress, can the purposes of the WTO be realized, the world may enjoy real peace and security, and the whole human society can enjoy a harmonious development. From the perspective of law, the WTO should endeavor to seek consensus and strive for breakthroughs in preferential treatment for developing country Members. Firstly, we should study and formulate the guiding principles for the GSP implementation, so as to change the GSP implementation dominated by the benefactor country to a new system, according to which, the GSP implementation will be dominated by the agreement between the benefactor country and the beneficiary country, and supervised by the WTO. In formulating the guiding principles for the GSP implementation, we should, in particular, while adhering to the theme of promoting the “trade development” of developing countries, specify that the principle of nondiscrimination must be followed in the selection of beneficiary countries, the scope and standards of beneficiary products and other matters, and explicitly prohibit conditions other than trade and pertinent technical requirements, such as democracy, human rights protection, environmental protection and currency exchange rate, to prevent interference in the internal affairs of beneficiary countries in the name of the GSP implementation. Secondly, we should effectively implement all kinds of special and differential treatment for developing countries in existing multilateral trade agreements. It is imperative to ensure that the “development” theme of the ongoing Doha Round is not impaired, especially to effectively implement the preferential treatment for developing countries in agreements of the Uruguay Round, so that the majority of developing countries feel that they do benefit from multilateral trade liberalization, so as to enhance their trust on and sense of responsibility for the multilateral trading system. Finally, the assistance programs or action plans jointly initiated by the WTO and other international organizations in recent years are gradually changed from policy-oriented to rule-oriented, from voluntary to compulsory. Previous experience and practical situation have proved that to prevent developing countries, especially the least developed countries, from being gradually marginalized in the 29 Sutherland

et al. (2004), para. 104.

21.3 Expectation: Self-perfection of Multilateral Trading System

413

process of globalization, diplomatic consensus, political commitment and voluntary almsgiving alone will make no difference. It is necessary to crystalize the existing voluntary political commitments in the form of “written law” through agreements, and make available the corresponding multilateral monitoring system. Only in this way can special initiatives such as trade-related financial assistance, technical support and capacity-building for developing countries be expected to achieve greater effectiveness.

21.3.4 Improve the Decision-Making Mode of the WTO The consensus approach is the basic decision-making rule of the multilateral trading system for more than half a century, and has been proved to be effective. However, the number of WTO Members is large and the identities of them are complex. The scope of the WTO’s responsibilities has expanded unprecedentedly, the negotiation topics of the WTO have become increasingly sensitive, and the expectations of the international community on the WTO have become higher and higher. Under this reality and development trend, the WTO does need to ponder over the consensus approach of the multilateral trading system implemented for several decades. On the one hand, sticking to the established rules is obviously insensible, which will severely restrict the due role of the multilateral trading system. On the other hand, we must realize that there is no ideal way of decision-making at both the international and the domestic levels. By contrast, the advantages of consensus seem to be slightly better than those of others. Moreover, dramatic changes to the established decision-making mode will inevitably bring chaos to the multilateral trading system and be difficult to be accepted by the vast majority of WTO Members. Therefore, it is necessary to reform the decision-making mode, but at the same time, we should be cautious. The relevant recommendations30 proposed by the Consultative Board of the WTO Director-General recently can be said as a pragmatic option: Firstly, the WTO’s matters under discussion are divided into procedural ones and substantive ones. For procedural matters, approaches (e.g. majority voting) that are more conducive to improving efficiency other than the consensus approach can be considered; for substantive matters, the consensus approach can be maintained. Secondly, WTO Members may request the General Council to adopt a declaration, requiring that for a resolution approved by the vast majority of members, if there is only one WTO member opposing it, such member can only obstruct the adoption thereof if it submits a written statement justifying the involvement of its major national interests.

30 Ibid,

paras. 288–289.

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21.3.5 Adhere to the Principle of “Members-Driven” and Promote the Democratic Governance The global democratic governance is an inevitable demand under the background of globalization, and undoubtedly a sign of the progress of human society. However, the WTO is after all an inter-governmental organization, and the multilateral trading system is an international system mainly regulating the inter-governmental trade relations and standardizing the governmental acts. In short, the core of the WTO and the multilateral trading system is WTO Members themselves. Therefore, it is necessary to adhere to the fundamental principle of “Members-driven” or “subjectsdriven” when exploring ways to improve the democratic governance of the WTO. Firstly, the emphasis on “Members-driven” here means to ensure that the overall operation and improvement of the WTO is always driven by “all members”, rather than “some members” or “key members”, let alone “the chair”. “All-Membersdriven” is the real crux of the WTO’s democratic governance. It can be predicted that if the WTO solves the “all-Members-driven” problem, the future democracy and rule of law of the multilateral trading system will be much brighter. Secondly, we should adhere to the rule-oriented to promote the democratic governance of the WTO. First, it is imperative to study the possibility of amending the provisions of the WTO Charter related to ministerial conferences. Given that the process of global trade liberalization depends critically on the political will and energy of the top government officials of the members, the number of ministerial conferences should be increased and the time thereof be extended. At the same time, the Rules of Procedure of the Ministerial Conference should be formulated as soon as possible to ensure democracy and transparency in all aspects of the Ministerial Conference from preparation, holding to the end, and try to put an end to various underhand meetings. Thirdly, we should gradually expand the WTO’s openness to the public. Since the WTO is for the benefit of all mankind, it should be open to the public, so as to increase the public’s understanding of the purposes and functions of the WTO and win the public’s support for the WTO. To this end, in addition to the plenary session of the Ministerial Conference, the general review meetings of the General Council, the sub councils and the dispute settlement body may be made available to the public, and so do oral procedures of WTO expert groups and appellate bodies. However, the panel discussion of the expert group and the appellate body, and multilateral trade negotiations should not be made publicly available, because such meetings usually involve the secrets of the members involved.31 Finally, the proposal that NGOs serve as WTO observers should be treated prudently. NGOs are mainly from developed countries. Although there are also NGOs from developing countries, their financial, human resources and influence are not as good as those from developed countries. Once NGOs are granted the observer status, the current North-South Contradictions will be more complicated. We should be more 31 Bachus

(2004), p. 2.

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cautious about the proposal, which is mainly advocated by the European Union but expressively opposed by many developing countries, of establishing a parliamentary body in the WTO. The WTO, after all, is a multilateral trading system, rather than a comprehensive international organization, let alone a human rights organization or an environmental organization, and therefore there is no need to set up a parliamentary body. The parliamentary bodies of various countries and the European Parliament can absolutely exert influence on the trade policies and negotiation positions of WTO Members at the domestic or group level in accordance with their own constitutions and the charters of the organizations, so as to play their due role in the democratic governance of the multilateral trading system.

21.4 Conclusion The WTO’s 10-year development witnesses the striving of the multilateral trading system in the whirlpool of globalization, the fighting between the multilateralism and the unilateralism,32 the prevalence of the regionalism, the confrontation between the rule-oriented and the policy-oriented, the ever-increasing democratic governance, the interaction between “Members-driven” and other forces, and the changing of the concept of state sovereignty! The global trade liberalization is an important part of the “long march to freedom and well-being” of all mankind. In this great march, the WTO is undoubtedly a trailblazer. The WTO, based on the experience of the GATT and its half-century practice, and combined with the new situation of economic globalization in the late twentieth Century and early twenty-first Century, continuously increases the trade liberalization worldwide by further reducing trade barriers around the world. More and more prosperous trade will, on the one hand, inevitably create more and more possibilities for individuals (natural persons and legal persons), while more and more choices will, on the other hand, inevitably bring more and more possibilities for individual freedom.33 Be it viewed from its remarkable effect on the global economic development or from its international rule of law, the WTO can be regarded as a dazzling new star. While praising the WTO, we must be aware of the seriousness of the challenges facing the WTO, and the current multilateral trading system’s inadaptability to the development needs of globalization, which is far from the expectations of WTO Members and other actors of the international community. The WTO is in urgent need of reform, the multilateral trading system is in urgent need of improvement, and the global trade liberalization is in urgent need of new vitality to broaden its coverage. In order to maintain the WTO’s pioneering role in the cause of human freedom and well-being, we must correctly grasp the pulse of the twenty-first Century, i.e. 32 An

Chen (2004). (2003).

33 Star

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Globalization. Globalization is an irreversible and objective development trend. It is a lesson learned from years of practice of the international community that the prosperity comes from submission to the objective law while the decline comes from resistance. Therefore, when designing the pace and rhythm of the WTO’s future development, we must follow the objective law of globalization. Undoubtedly, there are many choices available to members of the international community to eliminate trade barriers and promote the in-depth development of trade liberalization, and they have been practicing such choices for a long time. In an international society with numerous sovereignties and ever-increasing interdependence, unilateralism is not only unable to solve the increasingly prominent problems in the global political, military, economic, social, cultural, legal and other fields, but also often appears to be powerless to deal with domestic political stability and economic and social development. Although regionalism has its own advantages and characteristics in solving international problems including trade barriers through international cooperation, and is an important supplement to multilateralism to some extent, it has its inherent defects in terms of space and regional effects. Moreover, regionalism is materially eroding the multilateral trading system in the field of trade. In the long run, multilateralism is the best choice for trade liberalization, regionalism is at most a secondary choice, while unilateralism should be abandoned as much as possible. Over the past decade, “the WTO has been providing the world with new and needed proof every day that multilateral approaches against multilateral challenges can lead to multilateral success”.34 The strengthening and improvement of the WTO is the key to promoting global trade liberalization, while the rule-oriented is the basis and guarantee therefore. It seems that the policy-oriented has always been the mainstream governance mode of international organizations and international institutions, especially for universal and political international organizations. The WTO is a rising star of international governance, with its core of gradually changing the GATT’s long-standing policy-oriented operation mode, making the multilateral trading system move towards the track of rule-oriented increasingly obvious. History and experience also tell us that if the international governance, whether a regional or multilateral one, is rule-oriented, it would have a high degree of integration, rapid effectiveness and great influence. Therefore, the WTO resolutely adheres to the rule-oriented on the way to improvement. The democratic governance of international organizations and institutions has become an increasingly common and strong demand in recent years. The multilateral trading system is no exception. It can be predicted that democratic governance is the development direction of global trade liberalization, and its fundamental purpose is to ensure the scientific, open, fair, predictable and applicable decision-making of the multilateral trading system. In the multilateral trading system, the key to democratic governance should be to ensure that all WTO Members, especially the developing countries and the least developed countries, can fully participate in the decisionmaking in the process of liberalization, so as to realize the universality of WTO Membership and its full participation in activities. 34 Ibid.

21.4 Conclusion

417

A sound, secure, predictable and rule-oriented multilateral trading system must be driven by sustainable vitality, which is embodied in the sustainable political will, enthusiasm and action of all WTO Members. We must adhere to the belief that, while global trade liberalization must bring together the wisdom and strength of the international community, the “Members-driven” is the most direct and powerful source of power all the way. Where the WTO will go, whether the multilateral trading system will keep pace with the times, and whether the global trade liberalization will move forward bravely, all depend on the sovereignty concept and its application of WTO Members that are equal to each other. It can be asserted that the concept of sovereignty keeping pace with the times is the essence and prerequisite for the progress of global trade liberalization. In the era of interdependent “global village”, the trade growth and economic and social development of every country, nation and region are increasingly dependent on the those of the whole world. Every country that controls the fate of this “global village” must innovate the concept of sovereignty and exercise the same appropriately. When the discussion of a topic, the decision-making of a matter, the solution of a problem, the formulation of a rule or the establishment of a system operates better in the multilateral trading system in terms of its benefits and value orientation, WTO Members should decisively waive the operation at the domestic level, or even put aside the operation at the regional level, so as to maximize the value and benefit of sovereignty. Only in this way, can the WTO play the role expected by its members for the journey ahead.

References Bachus J. (2004). Open doors for open trade: shining light on WTO dispute settlement. Remarks to the national foreign trade council. http://www.worldtradelaw.net/articles/bacchusopendoors.pdf. Accessed 28 April 2005 Bartels L (2003) The appellate body report in european communities—conditions for the granting of tariff preferences to developing countries (WT/ DS246/AB/R) and its implications for conditionality in GSP programs. http://www.worldtradelaw.net/articles/bartelsgsp.pdf. Accessed 20 April 2005 Chen A (2004) The three big rounds of U.S. unilateralism versus WTO multilateralism during the last decade—a combined analysis of the great 1994 sovereignty debate, Section 301 Disputes (1998–2000) and Section 201 Disputes (2002–2003). Trade-related Agenda, Development and Equity (T. R. A. D. E.), Working Papers 22, South Centre Cho S J (2005) The future of the WTO: report by the consultative board. AS1L insight. http://www. asl.org/insights/2005/01/insight05031.htm. Accessed 2 April 2005 Choike (2015) Reform the WTO’s decision-making processes. http://www.choike.org/nuev_eng/ informes/2092.html. Accessed 13 April 2005 International Centre for Trade and Sustainable Development (2004) WTO members “cautiously positive” about S&D approach. Weekly Trade News Digest 8(42). http://www.ictsd.org/weekly/ 04-12-08/story2.htm. Accessed 21 April 2005 Mai-Sushita M, Schoenbaum TJ, Mavroidis PC (2004) The word trade organization—law, practice, and policy. Oxford University Press, London, pp 143–154

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Panitchpakdi S (2005) WTO after ten years: global problems and multilateral solutions. WTO public symposium, Geneva. http://www.wto.org/english/news_e/spsp_e/spsp38_e.htm. Accessed 21 April 2005 Star L (2003) The historic role of the WTO. Keynote Address by James Bacchus, World trade organization, to the symposium on “globalization and the judiciary” at the University of Texas School of Law, Austin, Texas. http://www.worldtradelaw.net/articles/bacchuslonestar.pdf. Accessed 22 April 2005 Sutherland P et al (2004) Future of the WTO: addressing institutional challenges in the new millennium. Report by the consultative board to the director-general supachai panitchpaki. World Trade Organization. http://www.wto.org/english/lhewtoe/l0annive.htm#future. Accessed 2 April 2005 UN General Assembly (2005) In larger freedom: towards development, security and human rights for all (A/59/2005) Wang G (2003) Law of the world trade organization. Law Press China, Beijing World Trade Organization (2002) The WTO: the role of parliamentarians. http://www.carolineluca smep.org.uk/speeches/WTO_Geneva%2005_02.htm. Accessed 14 April 2005 World Trade Organization (2004) European communities—conditions for granting of tariff preferences to developing countries (WT/DS246/AB/R) Zeng L (1996) Law of the world trade organization. Wuhan University Press, Wuhan Zeng L (2004a) The dilemma and way out of the doha development agenda after cancún conference. Theory Monthly 7:5–11 Zeng L (2004b) The latest development trend of regional trade agreements and its negative impact on the doha development agenda. Chinese J Law 5:117–128

Chapter 22

Application of WTO Agreements in China and Revolution of Chinese Legal System

WTO accession will bring unprecedented opportunities and challenges, especially to the reforms of the socialist market economy system, the structure of domestic industry, and the development of the economy and society. It seems to have been a common sense across the country and in all walks of life. However, the profound impact of China’s accession to the WTO on the Chinese legal system is insufficient. The domestic application of WTO Agreements1 marks an important and the most fundamental aspect. This is because the impact of the accession on any other aspects of China’s legal system, in the final analysis, originates from this preliminary issue— how China applies WTO Agreements domestically. Article 16(4) of the Agreement Establishing the World Trade Organization clearly states: “Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.” While the WTO lay down this principle through its constitutional legal document, it is a practical issue faced by all WTO Members that protect the correct domestic application of WTO Agreements and ensure the consistency of domestic laws, regulations and administrative procedures with WTO Agreements. All countries applying for WTO accession, including China, must concern that important issue as well.

1 The

WTO Agreements referred to in this article is a broad and dynamic concept. Starting from a broad concept, it not only refers to the agreement on the establishment of the WTO in the Final Document of the Uruguay Round, but also includes the agreements and other normative documents attached to the agreement, as well as the proposed protocol and its attached documents. Considering the concept of initiative, it refers not only to various existing WTO agreements and normative documents, but also to various agreements and normative documents that will be reached in the WTO system in the future. The article was originally written by Prof. Zeng in Chinese, and published in China Legal Science (Zhongguo Faxue), Issue 6, 2000, pp. 38-46. It is then translated by Assoc. Prof. Hua Lan, and proofread by Ms. Qian Zhang.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_22

419

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22.1 Recalling: Theory and Practice of Domestic Application on General International Law With particularity on its application in each member’s jurisdiction, WTO Agreements is considered as a relatively independent legal system in the international legal order. However, WTO Agreements is an integral part of modern general international law after all. Therefore, it is necessary to elaborate on domestic application of general international law before specifically analyzing the application of WTO Agreements in each member’s jurisdiction. And this issue ultimately involves the relationship between international law and domestic law, the foremost issue in the fundamental theory and practice of international law.

22.1.1 General Theory and its Development The relationship between international law and domestic law has long been a dispute mainly and theoretically between the two traditional schools, namely, the monism and dualism. New theories such as coordination theory, or connection theory, emerged later. Dualism, or parallelism of international law and domestic law, emphasizes specially on the essential difference between international law and national law. It believes that international law and national law adjust different subjects, namely: international law is the law between sovereign states, while national law applies within the state, adjusting the relationship between its citizens and between the citizens and the government. According to that argument, neither the legal order has the power to create or modify the rules of the other one. In whole or in part, the stipulation of domestic law that international law applies within its jurisdiction merely equals to the exercise of the authority of national law, that is, the incorporation or transformation of international law rules. In the event of a conflict between international law and national law, the dualist presumes that domestic courts apply national law.2 It should be admitted that dualism has its reasonable side. “Starting from the positive law, it analyzes the different characteristics of international law and domestic law in a relatively correct method, and proves that they are separated into two different legal systems, which is a remarkable development in the theory of international law.”3 However, dualism ignores or even denies the interactions between international law and domestic law, which is not only one-sided in theory, but also unrealistic. It has difficulties giving explanations to the progressive trend of mutual penetration, transformation and interaction of the legal systems in the context of the increasing interdependence among states and the tendency of globalization. 2 Brownlie 3 Xi

(1998), p. 32. Liang (1993), p. 40.

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Monism puts international law and national law into the same legal norm system, the content and effectiveness of which come from a so-called “basic or primary norm”. There are different interpretations of this term of primary norm. According to the theory of natural law, it refers to the norms of natural law; while according to the theory of normal law, it refers to “all countries should act as they are used to”. The monists, due to the differently emphasized affiliation, further developed into two branches of schools. The “priority of national law” theory holds that international law is subordinate to national law, and that the effectiveness of international law comes from national law. Therefore, in the entire legal system, national law prevails, while international law is hierarchically lower. On the contrary, “international law priority” theory holds that the effectiveness of international law should be higher than that of national law, and that the national law of each state should be subordinate to international law. Monism has the significance of recognizing international law as law and its commonality and close relationship with national law. However, it has obvious onesidedness as well. The “priority of national law” essentially denies the effectiveness of international law, which reflects the idea of “sovereignty supremacy” in legal theory. It emphasizes the absolute authority of domestic law, which means that a state may, based on its own interests, arbitrarily lift their international obligations by virtue of their national law. That is where the danger lies in, since it will inevitably lead to the destruction of international legal order. And the “priority of international law” overemphasizes the absolute effectiveness of international law and fundamentally denies state sovereignty, which is inconsistent with the basic structure of the international society in reality. With the unconvincing monism and dualism in the early stage, from the 1950s onwards, theories of coordination have emerged in the international law community and has been increasingly endorsed by international law scholars. Trying to get rid of the shackles of traditional theories, the coordination theory explains the relationship between international law and domestic law by virtue of a new concept. G. Fitzmaurice, the famous British international jurist and former International Court Judge, marks the representative of the coordination theory. According to this theory, with their own roles in different fields, international law and national law do not conflict as legal systems respectively, and each one of them ranks the highest in its own field. However, the theory recognizes that a potential conflict of obligations exists, namely, if a state fails to act in the way required by international law within its territory, the consequence will not be the invalidity of the relevant national law, but its state responsibility at the international level.4 There is a developing process of Chinese scholars’ views on this issue. The famous international jurist Mr. Gengsheng Zhou marks the earliest Chinese scholar to elaborate on this relationship. His article “International Law and Domestic Law” wrote in 1932 tends that international law prevails, but the “prevail” he refers to is not the idea that the state power comes from the consignation by international law, but the

4 Fitzmaurice

(1957), pp. 79–80. Quoted from Brownlie (1998), pp. 33–34.

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idea that international law casts a sort of legal restrictions on the state power.5 In his legacy “International Law” published in 1978, Mr. Zhou preferred dualism. But at the same time, he pointed out that dualism overemphasizes the formal opposition between international law and domestic law, and relatively ignores their actual interactions. Therefore, he asserted that there should not have been the question of which one prioritizes between international law and domestic law, nor can they be said to be opposed to each other.6 Since then, Mr. Zhou’s opinion has been recognized by most of China’s international law writings, that is, international law and domestic law belongs to separated legal systems, while both of them are enacted by states, and they are interconnected, infiltrated and complemented each other.7 Based on a comprehensive analysis of the social basis and legal nature of international law, Mr. Xi Liang pointed out in his newly revised “International Law (Second Edition)” that the relationship between international law and domestic law comprises both opposition and unity. He held that monism completely denies the aspect of “opposition”, while dualism ignores the aspect of “unity”. “On the one hand, there are significant differences between international law and domestic law in terms of their nature, subjects, sources, validity basis, application scope, objects, and actual implementation; on the other hand, modern international practice also shows that their existence and development are not of irrelevance, but related to each other instead.” To this end, Mr. Liang comes out the “theory of the interrelationship between international law and domestic law”, which is summarized from the opinions recognized by most Chinese scholars, and is considered as the representative theory of Chinese international law scholars.8

22.1.2 General Practice and Its Complexity 22.1.2.1

The Complexity of the Practice

The method of the domestic application on international law (by the court) is an important aspect of the close relationship between international law and domestic law. It is not easy to answer this question, because: first, there is no uniform international rules on this issue, and national laws of different states treat it variously; second, the domestic application of international law should be separately analyzed from its two main origins, the treaties and customary rules. And two issues further arise in their domestic application: first, can international law be directly applied in a state (i.e. can it be directly invoked in domestic courts)? Second, with the existence of the

5 Tieya

Wang (1998), p. 191. Zhou (1981), pp. 19–20. 7 See Tieya Wang (1981), p. 44; Muzheng Duan (1989), p. 35; Xi Liang (1993). pp. 41–42. 8 See Xi Liang (2000), pp. 18–19. 6 Gengsheng

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conflicts, how should the courts and domestic institutions implementing international law (such as China’s State Council and ministries) handle the issue?9

22.1.2.2

Basic Principles of International Law

Although the relationship between international law and domestic law is still not regulated in uniformity by international law, at least two basic principles for solving this problem in practice have emerged. The first principle is pacta sunt servanda. Considered as a rule of customary law and the law of treaties, this principle requires a state not to change international law with its domestic law. For example, Article 27 of the Vienna Convention on the Law of Treaties expressly states: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” The second principle is non-interference in internal affairs. According to this principle, each state, as a sovereign entity, can formulate any domestic laws necessary for its own society. Anything that the country does not undertake international obligations falls within the jurisdiction of domestic law and is out of the scope of international law. But if the matters in question falls within the overlapping jurisdiction of domestic law and international law, the question how international law should be treated arises. The principle of sovereign equality, therefore, as the most fundamental principle of international law, should take the lead. According to that principle, on the one hand, the courts can implement domestic law regardless of international law; on the other hand, the state concerned should bear the corresponding international responsibilities.

22.1.2.3

Representative State Practices

As for the domestic application of international law, the legal provisions and practices vary in different countries, and treatments of international customs and treaties differentiate as well. (1) Application of international custom (customary international law). Several states have established in their constitutions that international custom is an integral part of domestic law, and the courts can apply customary international law. Those states include the United Kingdom, the United States, France, Germany, Italy, Austria, the Netherlands, Japan, South Korea, and etc. (2) Application of international treaties. Some states, such as the United States, Japan, France, Austria, the Netherlands, Italy and more, explicitly stipulate in their constitutions that treaties are an integral part of domestic law or recognize the domestic effectiveness of treaties. The new constitution of the Netherlands even establishes that treaties are not only superior to general domestic law, but also superior to itself. Some countries represented by the United Kingdom 9 Tieya

Wang (1998), pp. 197–198.

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stipulate that treaties concluded and ratified by the state and the government can only be applied in domestic courts after the parliament passes a particular (special) bill identical with the treaty. Other countries like Russia and China, have no explicit provisions on the effectiveness of the treaty in their constitutions, however, with some relevant departmental laws stipulating that the treaty is superior to that department law. From the various state practices, the domestic application of the treaty can be summarized in three ways:10 (1) Transformation, that is, only if its content is formulated as domestic law through the domestic legislation, can the treaty in question be applied within the state; (2) Incorporation or adoption, that is, international law is generally recognized as an integral part of domestic law by the provisions of constitution and law, or other legislative actions (such as ratification of treaties, and publication of treaties and judicial precedents, etc.), through which it can be directly applied in the country; (3) A hybrid approach, that is, to apply treaties through both transformation and incorporation methods: according to the nature and content of the treaties, some of them are required to take the adoption method only so as to be applied at home directly, while other treaties must undergo legislative transformation procedure before they can be directly applied domestically. (Some scholars believe that in this case, the court does not apply the treaty, but the relevant domestic law). The United States is a typical state with the practice of the hybrid method.

22.2 Application of the Treaties in China So far in China, there is no uniform provisions in law regarding treaty application, scattered in some departmental laws or other related regulations. In summary, China applies international treaties mainly in the following ways: (1) The Constitution of China does not expressly provide for domestic application of treaties (or the relationship between international law and domestic law). On this issue, the Constitution only specifies the procedures for concluding treaties. According to the Constitution, the procedures for concluding treaties in China shall be applied respectively as follows: the State Council has the power to conclude treaties; the Standing Committee of the National People’s Congress (NPC) has the power to ratify and abolish treaties; President of China has the power to ratify and abolish the treaty in question according to the related decision of the Standing Committee of NPC. These provisions indicate that in China, the procedure for concluding treaties is generally the same as the procedure for formulating general national laws, from which it can also be presumed that the effectiveness of treaties is equivalent to that of national laws in China. 10 See

Jiang (2000, April 29).

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(2) Legislations in some departments of law clearly stipulate the direct application of international treaties, to be specifically, through incorporation into national law. This is a directly applicable method without transforming the content of the treaty in question into domestic law. Such as the provisions embodied in Article 142 (2) of the General Rules of Civil Law, Article 189 of the Civil Procedure Law, Administrative Procedure Law, Postal Law, Environmental Protection Law, and etc. It is worth noting that they not only provide for the direct application of international treaties, but also make it clear that when the relevant domestic law conflicts with the treaty, the treaty is given priority in domestic application. (3) In order to implement the international treaties to which China has acceded or approved, some special regulations have also been formulated in order to “transform” the treaties in question into national law and apply. The 1986 Diplomatic Privileges and Immunities Regulations and the 1990 Consular Privileges and Immunities Regulations were formulated to fulfill China’s obligations of implementing the two acceded Vienna Conventions on diplomatic relations and consular relations. (4) According to the provisions of 1990 Procedures for the Conclusion of Treaties, for the treaties with provisions different from China’s domestic laws, its conclusion must be approved by the Standing Committee of NPC. In this case, the Standing Committee may consider to suggest a reservation to the specific content of the treaty in question, or a modification or supplement to the inconsistency of that with the relevant domestic law. Such modification or supplement is also a way to transform the content of the treaty into national law. Accordingly, it can be proved that China adopts a combined method of incorporation and transformation in domestic application of international treaties.

22.3 Issues on Application of WTO Agreements in China There are no uniform legal provisions regarding implementation and application of treaties in China, and the legislative practices of different fields of law on this issue vary to a large extent. What’s more, there are very few judicial practices in this area in China, and WTO itself and its legal system have their own particularities. So, the following questions about domestic application of the WTO Agreements gloom as the date of China’s accession to WTO approaches:

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22.3.1 Problems Concerning the Ratification of WTO Agreements According to Article 7 of 1990 Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties, there are 6 types of treaties and important agreements that should be ratified by President of China in accordance with the decision on ratification of the Standing Committee of NPC: (1) Treaties of friendship and cooperation, treaties of peace and other treaties of a political nature; (2) Treaties and agreements concerning territory and delimitation of boundary lines; (3) Treaties and agreements relating to judicial assistance and extradition; (4) Treaties and agreements containing stipulations inconsistent with the laws of the People’s Republic of China; (5) Treaties and agreements which are subject to ratification as agreed by the contracting parties; (6) Other treaties and agreements subject to ratification. The first five “treaties and important agreements” aforementioned are clearly defined. However, treaties of WTO Agreements are difficult to be classified into those five categories. Therefore, a series of issues worthy of study have yet been unresolved, such as whether WTO Agreements are to be categorized as “treaty and important agreements” stipulated in 1990 Law on the Procedure of the Conclusion of Treaties? If not, does it mean that, like the US, there is also self-executing agreement or executive agreement in China? If so, WTO Agreements can only (or should) belong to the 6th category above mentioned. This means that the Standing Committee of NPC should first states that the WTO Agreements belong to “treaties and important agreements” that must be ratified; the WTO Agreements can only become effective and applicable after it has been ratified by the President of the State in accordance with the ratification decision of the Standing Committee of NPC. Therefore, if the WTO Agreements are only examined and approved by the State Council or only required by the competent department to report to the State Council for registration, it is bound to be suspected of violating the Constitution and 1990 Law on the Procedure of the Conclusion of Treaties.

22.3.2 Issues on Application (Implementation) of WTO Agreements in China 22.3.2.1

The Issues Related to the Implementation by National Legislature and Government Executive Organs

Is it implemented through direct incorporation? Or is it applied through transformation? Or is it to be maintained the status quo until the dispute occurs, which leaves for revising and supplementing relevant domestic laws according to the rulings of WTO Dispute Settlement Body (DSB)? It is not appropriate to completely adopt any one of the above methods and exclude the other two, with the basis not only of China’s practices on treaties, but also of

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China’s current work on legislation and its trends, and of other WTO Members’ practices. Direct incorporation has the advantage of operating simply and conveniently (the competent authority only needs to publish the WTO Agreements or incorporate the related content in domestic law, or specially provide “when domestic law conflicts with WTO Agreements, the latter shall prevail”). On the other hand, this approach is most favored by the organization and its members, because it can, to the largest extent, avoid the suspicion that China does not comply with the WTO Agreements (at least from the legislative level). The disadvantage is that it is not consistent with China’s reality to directly apply WTO Agreements in a short period, since it still takes time to fully establish the legal system of socialist market economy, while the current system is far from perfect. Therefore, China’s legal system is reckoned to fail to duly safeguard the state’s economic security. The advantage of transformation is that the treaties of WTO Agreements can be applied in combination with the reality of the relevant domestic departments or fields, thereby organically balancing the implementation of international treaties with the establishment and improvement of China’s socialist market economic legal system. The disadvantage is that the method means a large burden on legislature. With the sophisticated content of the WTO Agreements, the work must be arduous and timeconsuming. Additionally, comparing with the original regulation and intention of WTO Agreements, it will occur inevitably. No matter how to apply WTO Agreements, either direct incorporation or indirect transformation, they are considered as positive methods. In contrast, it is a passive method to maintain the status quo and apply the treaties based on the rulings made by DSB, which is the most unwelcomed one by the organization and its members, and seems to be the most undesirable one as well. However, considering the reality of China’s legal system, it is a proper way to some extent to adopt in moderation. Moreover, even claimed to have the perfect legal system, the developed states or groups from Europe and North America constantly rely on rulings made by DSB to modify its relevant national laws, policies or measures (for example, the European Union has modified its relevant regulations more than once because of the famous “banana case”). So how to choose the methods mentioned above to be applied according to the circumstances? The method of incorporation can be employed in the following situations: (1) The basic rules of WTO and its legal system (in fact, China’s foreign trade law has already practiced in this way); (2) The fields and departments with little difficulties to apply WTO Agreements (such as laws, regulations and administrative procedures directly adjusting trade in goods); (3) Laws and regulations that are newly introduced, soon-to-be-promulgated and needed slight modifications only. The method of transformation is suitable for the following situations: (1) The WTO Agreements in question are yet to be completed, at the stages of framework arrangements, transitional arrangements, and principled arrangements (such as Agreement on Rules of Origin, General Agreement on Trade in Services, etc.); (2) The relevant WTO Agreements in question require members to formulate corresponding domestic laws, regulations or administrative measures to ensure the implementation (such as

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Agreement Establishing the World Trade Organization, Anti-dumping Agreement, Agreement on Subsidies and Countervailing Measures, Agreement on Pre-shipment Inspection, TRIPs agreements, and etc.); (3) Departments or fields (such as antidumping, anti-subsidy, and etc.) that need to systematically enact material and procedural regulations in combination of China’s reality. As for the method of amendments and supplements in the future, it is mainly applicable to: (1) provisions in the current domestic laws and measures that will be accused by other WTO Members of being inconsistent with WTO Agreements and must be revised or supplemented according to the rulings of DSB; (2) fields without domestic law or regulations that may be accused by other WTO Members of failing to properly fulfill WTO obligations and must be remedied according to the rulings of DSB. In short, in terms of the method of implementing the WTO Agreements, according to China’s reality and the general practice of other WTO Members, it seems that the combination of the methods of incorporation and transformation should be employed, together with supplementary methods in future cases.

22.3.2.2

The Issues Related to the Application by the Courts and Disputing Parties in Certain Cases

Can the courts and disputing parties directly apply WTO Agreements in specific cases? Can the parties directly invoke the provisions of the WTO Agreements in the court to accuse national law and administrative measures? For the question of whether the courts and disputing parties can directly apply WTO Agreements in specific cases, it shall be decided case by case. Generally speaking, the courts can directly apply those incorporated WTO Agreements, and the parties can directly invoke them in the court; while those WTO Agreements have to be transformed generally are not of direct applicability. It is worth noting that, according to the state or group practices, the courts do have the discretion on whether the WTO Agreements are of direct applicability or not when there are no explicit provisions in the national law. For example, since the 1970s, the European Court of Justice has tried and ruled many cases involving GATT/WTO Agreements,11 and has formed a standard for judging whether the court can directly apply or the parties can directly invoke GATT/WTO Agreements: Analyze the wording, context, and legislative backgrounds of the WTO Agreements to see whether they leave such discretion for members. If not, the rules are deemed to have direct effect, or domestic courts and parties cannot invoke them directly. The approach of the European Court of Justice can be taken by China’s courts for reference.

11 The first famous case is International Fruit Company NV and others v Produktschap voor groenten

en fruit (Case 51-54/71 [1971] ECR 1107).

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It should be particularly pointed out that, according to China’s legal reality, the parties cannot file a lawsuit on the legitimacy of legislation and abstract administrative actions12 (whether it is unconstitutional or conflicts with higher-level legal documents)—the courts are not entitled to accept such cases. Therefore, the parties have not yet been qualified to sue the legitimacy of national legislation or abstract administrative actions for the transformation of WTO Agreements in domestic courts. The US and European States and their scholars believe that this is a shortcoming that China’s administrative law and judicial review system urgently need to fill.13

22.3.3 The Issue of Which Prevails When the WTO Agreements Conflicts with China’s Domestic Laws Generally speaking, there is no conflict exists between international law and domestic law, including WTO Agreements, since states participate in making both national law and international law, and they constantly consider relevant rules of international law when formulating national law, and take relevant rules of national law into account as well when participating in the formulation of international law. Nevertheless, the conflicts may occur. When such a conflict occurs, either the rules of international law or the domestic law must be revised. It is generally believed that the possibility of amending domestic law is relatively larger than that of amending international law. However, with complex factors such as domestic political reality, economy, or legislative procedures, and the revision of domestic laws is no less difficult than the revision of international laws. In this context, the court concerned will inevitably face the conflict between the two legal systems. The author believes that since the possibility of actual conflict between WTO Agreements and domestic law does exist within any WTO member’s territory, the possibility seems to be greater in China. Because China’s legal system of socialist market economy is still developing, it takes time to finish the work of abolition, modification and adjustment of existing domestic laws that are in conflict with WTO Agreements, while the development of new laws that are compatible with WTO Agreements requires a much longer process. Accordingly, China’s courts are deemed to play an important role in resolving the conflicts aforementioned. So, how should the courts resolve them? According to foreign judicial practice and China’s reality, it is believed that the courts should adopt the following principles 12 Abstract administrative action is an administrative legal concept corresponding to specific administrative action. Abstract administrative action refers to the actions of administrative organs to formulate and publish universal codes of conduct, sometimes also called the formulation of administrative normative documents; specific administrative action refers to the actions of administrative organs targeting specific objects and influencing their rights and obligations. Abstract administrative action is the basis for administrative organs to take specific administrative actions (as well as laws and local regulations), and specific administrative action is a specific measure to implement abstract administrative actions. See the editor-in-chief of Songnian (1999), p. 185. 13 See Lubman (2000, June 17).

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during the process: (1) The principle of equal legal effect, namely, the WTO Agreements and China’s general laws are deemed to be of equivalent validity; (2) The principle of WTO rules with priority, namely, the provisions of WTO Agreements shall be preferentially applied where it is clearly provided so in relevant domestic law or treaties of WTO Agreements; (3) The principle lex posterior derogat priori, namely, the legal provisions with later effective date shall apply when neither the domestic laws nor WTO Agreements stipulate the rules of precedence; (4) The principle lex generalis non derogat legi speciali, namely, the court, with the presumption that “the special law is superior to the general law”, regards the WTO rules as special rules and applies them, where neither the domestic law nor the treaties of WTO Agreements stipulates the rules of precedence. Another issue about the rulings of DSB should raise concerns of China’s judicial and theoretical circles. To be specific, the issue concerns the domestic courts’ treatment of the ruling made by DSB, or the legal effect of the panel decisions or the opinions of the Appellate Body (AB) within China. Admittedly, in the GATT/WTO dispute settlement system, both the report of the panel and the opinions of the AB are only binding on the parties to the specific cases, and do not constitute the status of judicial precedents as in common law countries. With a review of the domestic judicial practice of WTO Members from Europe and North America, it seems that there is no state practice that takes the rulings from DSB as legally binding precedents. In the process of hearing the relevant cases, however, the panels, the AB and the judicial organs of European and North American countries, as well as the parties and their agents in specific cases, may refer to the opinions in the precedents to analyze and explain the relevant legal issues. Moreover, with the constant improvement of the authority and reputation of DSB, those opinions of precedents are more frequently referred by domestic and international adjudication agencies around the world. Although China has always taken the position that judicial decisions are not be applied as precedent, and such position is applicable to WTO dispute decisions as well, the courts’ work on timely tracking and systematically researching DSB opinions still needs to attach great importance. Besides, China’s courts should be encouraged to properly refer to those precedents de facto, so as to ensure the correctness of law interpretation and application (relevant domestic law and WTO Agreements) and the impartiality of the judgment.

22.4 Looking Ahead: A Revolution of Chinese Legal System to Adapt to Economic Globalization It can be predicted that China’s accession to WTO will inevitably bring China’s legal system into the fifth revolution, which is considered as a comprehensive and systematic legal reform. The first legal system revolution (1949–1965) was a process of demolishing and establishing; the second one (1966–1976) was a nihilistic reform of substituting politics for rule of law; the third one (1977–1991) is a process of

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recovery; the fourth one (1992–1999) is a process of transition. While the current revolution is drastically different from those previous—this (from the new century) will be a revolution of China’s legal system construction fully adapting to economic globalization, and another major leap of China forward in perfecting socialist market economic system: Firstly, China is ushering in profound changes in legislation. From the perspective of legal review, laws, regulations, and rules related to the market economy will undergo a process of overall clean-up, abolition, modification, adjustment, reorganization, and filling; from the perspective of legal structure, it is believed as reality that laws and regulations consistently substitute for administrative regulations and measures. Now it will be thoroughly improved; from the perspective of regulations, the regulations’ shortcomings, including generality, ambiguity and poor operability, will be overcome. In short, the entire legal system will meet the demands of China’s socialist market economy construction and the objective requirements of economic globalization, which will be highly compatible with the principles, rules, and regulations of WTO. Secondly, China’s legal service mechanism and self-protection mechanism will be greatly strengthened. Industry associations constitute an essential part of China’s legal system, which is one important criterion for assessing the system as well. With the WTO accession, China will, in accordance with the WTO Agreements, intensify the construction of industry self-disciplinary mechanisms and service functions, enhance the industries’ capacity of prosecution and response, and form a self-protection mechanism that meets the requirements of the WTO rules. The measures are deemed to fundamentally change the long-term reality that overemphasizes the power of the government and overlooks the contributions of the industrial associations in the management mechanism. Thirdly, the quality and efficiency of China’s law enforcement and judicial work will be improved in the face of severe challenges. In terms of law application, China’s administrative law enforcement and judicial organs must get familiar with and master the various changes on China’s laws after the accession to the WTO, namely, the process of which is cleaned up, repealed, adjusted, revised, re-formulated and newly formulated. Additionally, the organs must understand the huge and complicated legal system of WTO and its continuous development. In terms of the tasks and functions, the relevant administrative and judicial organs, on the one hand, will receive more cases involving WTO Agreements, and will, on the other hand, exercise the judicial review functions provided by relevant WTO Agreements (such as anti-dumping agreements, countervailing agreements, and etc.). In terms of the judicial and administrative systems, in view of the particularity of economic and trade disputes, it is necessary to make adjustments to China’s current administrative and judicial system, and to establish an independent international trade court to exclusively deal with trade disputes with reference to the practices of some WTO Members. With the continuous expansion of the jurisdiction of WTO and its legal system and the increase in China’s foreign economic and trade interactions, trade disputes, either bilateral or multilateral, intergovernmental or individual-involved (both natural and legal), are

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bound to rise. What’s more, the officers of administrative law enforcement and judicial branches should be prepared to face the new challenges brought to their work in good manners as the WTO accession approaches, timely strengthening their own qualities, so as to continuously improve law enforcement and judicial efficiency. Last but not the least, the overall legal awareness of Chinese people will be unprecedentedly improved. The revolution of the legal consciousness over the nation sees a profound change of the state’s legal system with great practical and profound historical significance in the process of constructing the legal system. The longterm negotiation for China’s accession to WTO marks a process of widely spreading the knowledge of WTO and its legal system, a process fully complying with the requirements of the time, and a process of raising international legal awareness as well. From the officers of the state organs, enterprises and institutions, to individuals of legal and natural persons, Chinese have recognized that the law to abide by includes not only the domestic law, but also international law including the WTO Agreements. China’s accession to WTO connects all aspects of China with WTO Agreements. China’s groups and individuals with such new legal consciousness are bound to increase as well.

References Brownlie I (1998) Principles of public international law, 5th edn. Clarendon Press, London Duan M (1989) International law. Beijing University Press, Beijing Fitzmaurice G (1957) The general principles of international law considered from the standpoint of the rule of law. Collected Courses of the Hague Academy of International Law 92:1–227 Guiyuan J (29 April 2000) Several issues of international law and international treaties. www.peo pledaily.com.cn Liang X (1993) International law. Wuhan University Press, Wuhan Liang X (2000) International law, 2nd edn. Wuhan University Press, Wuhan Lubman S (17 June 2000) China’s accession to the WTO: unfinished business in Geneva. www.chi naonline.com Wang T (1981) International law. Law Press China, Beijing Wang T (1998) Introduction to international law. Beijing University Press, Beijing Ying S (1999) New theory of administrative law, 2nd edn. China Founder Press, Beijing Zhou G (1981) International law, vol 1. The Commercial Press, Shanghai

Chapter 23

Illegality and Negative Impacts of the US Special Safeguard Against Chinese Exported Tires

23.1 Introduction The United States is the largest developed country in the world and China is the largest developing country. In 2008, China was the second largest trading partner of the United States, with a trade volume of USD 40.75 billion. China is also the third largest export market (behind Canada and Mexico of the North American Free Trade Area) and the second largest importer for the United States.1 Trade frictions between the two countries are very common. After China’s accession to the WTO, a total of 23 trade disputes were referred to the WTO, of which 13 were between China and the United States (China was the defendant in 8 cases and the plaintiff in five cases). The US special safeguard on imports of tires in 2009 (US-Tyres) even attracted worldwide attention. On 20 April 2009, the US International Trade Commission (ITC), based a petition filed by the United Steelworkers (USW), initiated a special safeguard investigation on imports of Chinese passenger vehicle and light truck tires to the United States. On 29 June it recommended the imposition of additional tariffs on Chinese tire products for three consecutive years at a rate of 55%, 45% and 35% respectively as preliminary remedy measures. On 11 September 2009, the US President Barack Obama, in spite of the objection from China and some industry players in the US, approved the implementation of punitive tariffs on all imports of Chinese passenger vehicle and light truck tires. In addition to the original 4% duty, the tariff increase was 35% ad

1 Webpage of Office of the US Trade Representative [EB/OL]. http://www.ustr.gov/countries-reg ions/china, 2009-09-19.

The Article was originally written by Prof. Zeng in Chinese, and published in Jiangxi Social Sciences, (1), 2010, pp. 15-21. It was then translated by Dr. Jiao Zhang, and proofread by Assoc. Prof. Yayun Chen.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_23

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valorem in the first year, 30% in the second year, and 25% in the third year, effective on 26 September 2009.2 This was the first special safeguard case, also the one with the largest case value, initiated by the Obama Administration against China. According to China’s statistics, China’s tire exports to the United States in 2008 amounted to approximately USD 2.9 billion. The former Bush Administration launched six special safeguard investigations against China, but ultimately no special safeguard was adopted.3 In contrast, the Obama Administration adopted high punitive tariffs at the end of its first special safeguard investigation on China, which seemed to mean that Obama was trying to adopt protectionism to cope with the US financial crisis. The Wall Street Journal also in an editorial published on 17 September 2009, heavily criticized a series of protectionist measures taken by the Obama Administration, and called Obama “a protectionist President”.4 China expressed firm opposition to the US decision on the special safeguard measures. On 12 September 2009, China’s Minister of Commerce, Chen Deming, said in an interview that the US adopting special safeguard on imports of tires from China had broken relevant commitments, rules, and facts, which would hurt not only China, but also the US itself. He added that the Chinese government would definitely uphold the legitimate interests of its domestic industries and reserved the right to make further responses and take corresponding measures.5 Subsequently, the Chinese government adopted two countermeasures: First, on 13 September, the Ministry of Commerce announced that it recently received applications from domestic industries, stating that some imported vehicle and broiler chicken products originating in the United States entered the Chinese market constitute unfair trade practices such as dumping and subsidies, which had impacted China’s domestic industries, and requiring the Ministry of Commerce to initiate anti-dumping and anti-subsidy investigations. On this ground, China decided, in accordance with Chinese law and WTO rules, to initiate the examination process for building an anti-dumping and

2 Kirk

(2009). this case, China’s Ministry of Commerce and relevant industry associations have taken active responses. The Ministry of Commerce had consultations on remedy measures with the Office of US Trade Representative on 17 July. The Vice Minister of Commerce held talks with the White House Security Council, the US Treasury Department, the Office of US Trade Representative, the US Ministry of Commerce, and the US State Council in the United States from August 17 to 18 to negotiate and consult with the United States on the case of special safeguard on imports of tires from China, expressing the Chinese government’s determined positions and concerns regarding the special safeguard. The website of the News Office of the Ministry of Commerce said that “Vice Minister of Commerce Zhong Shan led a delegation to the United States to negotiate with the relevant US authorities on the case of special safeguard on imports of Chines tires”. See http:// www.mofcom.gov.cn/column/print.shtml?/ae/ai/200908/20090806. Accessed 19 September 2009. World Trade Organization (2009). 4 See http://content.caixun.com/NE/01/j2/NE01J21o.shtm. Accessed 21 September 2009. 5 Chen Deming said that the Chinese government will firmly protect the legitimate rights and interests of the domestic industries. See http://www.mofcom.gov.cn/column/print.shtml?/ae/ai/200909/200 90906. Accessed 21 September 2009. 3 For

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anti-subsidy case on the said products.6 Second, on 14 September, China requested consultations with the United States under the WTO dispute settlement mechanism with regard to the special safeguard taken by the US on imports of tire products from China.7 Yao Jian, spokesman of China’s Ministry of Commerce, said in a statement that such action of the US was a wrong practice that violated the WTO rules and abused trade remedy measures. China’s request for consultations with the US was a legitimate move to exercise the rights as a WTO Member and a practical action to protect its own interests. China hoped that parties involved could understand China’s determination to oppose protectionism, maintain the multilateral trading system, respect the rules of multilateral trade, overcome difficulties, and promote the global economic recovery.8 It followed that although it was difficult to predict whether US-Tyres will trigger a trade war between China and the US, a diplomatic and legal war seemed to be inevitable. This essay attempts to illustrate, from the perspective of international law, the illegality of the US special safeguard on imports of tires from China, and reveal the negative impact of this action in practice.

23.2 US Special Safeguards Against Chinese Exported Tires Violates G20 Summit Document In response to the unprecedented global financial crisis since 2008, the G20 Leaders Financial Summit (G20 Financial Summit) was held three times. The first known as the “Summit on Financial Markets and the World Economy” was held in the US capital, Washington DC, from 14 to 15 November 2008. At this Summit, the leaders reached broad consensus on efforts to strengthen cooperation to promote economic growth, deal with the financial crisis, and avoid similar crises in the future. The Declaration of the Summit then formed emphasized the need to reject protectionism in times of financial instability, and the leaders agreed to refrain from imposing any new export restrictions on investment or trade in goods and services or adopting export incentive measures that were inconsistent with the WTO rules for the next 12 months.9

6 The

MOFCOM initiates the examination process for building an anti-dumping and antisubsidy case on some imported vehicle and broiler chicken products originating in the United State. See http://www.mofcom.gov.cn/aArticle/ae/ai/200909/20090906513600.html?138 8626785=3530326818. Accessed 21 September 2009. 7 Office of the Press Secretary (2009). 8 China requested consultations with the United States under the WTO dispute settlement mechanism with regard to the US special safeguard on imports of tires from China. See http://www.mofcom.gov.cn/aArticle/ae/ag/200909/20090906516117.html?2613429089=353 0326818. Accessed 21 September 2009. 9 G20 London Financial Summit Communiqué. http://big5.china.com.cn/economic/txt/2009-04/03/ content-17549229.htm. Accessed 21 September 2009.

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The second G20 Financial Summit, held as expected in April 2009 in London, UK, adopted the London Financial Summit Communiqué. Special emphasis was given to the section on fighting protectionism and promoting global trade and investment, which stated that “we reaffirm the commitment made in Washington: to refrain from raising new barriers to investment or to trade in goods and services, imposing new export restrictions, or implementing World Trade Organization (WTO) inconsistent measures to stimulate exports. In addition, we will rectify promptly any such measures. We extend this pledge to the end of 2010”.10 The third G20 Financial Summit (on 25 September 2009) reaffirmed in the Leaders’ Statement that all parties would jointly fight protectionism and were committed to bringing the Doha Round to a successful conclusion in 2010.11 Although the document of this Summit did not include specific details for implementation with regard to the protectionist issues concerned by parties, it did restate the commitments to reject protectionism and make efforts to advance the Doha Round negotiations. Apparently, the special safeguard on Chinese tires as announced in Obama’s proclamation violates the commitments made by former US President Bush on behalf of the United States in the Washington Summit Declaration, as well as commitments reaffirmed by Obama himself on behalf of the United States in the London Summit Communiqué. For imposing punitive safeguard tariffs on imports of tires from China is undoubtedly an action of raising “new barriers to” trade and “imposing new export restrictions”, and the time of this action falls within 12 months after the 2008 London Summit and even before the end of 2010 as extended by the Washington Summit Communiqué. Therefore, the US special safeguard on Chinese tires is a serious violation of international law and the international commitments the US has made, which not only harms the authority and legal effectiveness of international legal documents, but also damages the United States’ international image and prestige. There might be some doubts about the legal nature of the documents adopted at above mentioned Financial Summits. These Declaration and Communiqué may be deemed only as political documents rather than treaties, and therefore without legally binding effect. First of all, the political nature of these documents is beyond no doubt. Broadly speaking, they are diplomatic documents between nations. Specifically, they are documents of international conferences, and the commitments thereunder are political commitments made by attending nations. However, it is far more than that in fact. These documents were reached by and among the top leaders of the present nations and the international organization and expressed in writing. More importantly, in the content of these documents the wording of “commitments” with clear time limit was explicitly and repeatedly used. Thus, elements of international legal commitments are met and these documents can be defined as a gentleman’s agreement among leaders of the attending nations and the international organization. These Declaration and Communiqué, even if not a formal treaty or agreement, at

10 Snyder 11 See

(1993), p. 32. http://www.gov.cn/jrzg/2009-09/26/content-1427064.htm. Accessed 28 September 2009.

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least constitute an international soft law that itself may not be legally binding in principle but still have practical effects.12 As described below, should the WTO rules on special safeguard, even if applicable, be inconsistent with the documents adopted by the G20 Financial Summit, the latter shall prevail as it is a rule of international law established later than the WTO rules.

23.3 US Special Safeguards Against Chinese Exported Tires Violates WTO Provisions on Safeguards and Protocol on China’s Accession to WTO In the WTO system, the legality of special safeguard on imports of Chinese tires shall be tested mainly based on two group of legal rules: first, Article XIX of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and the Uruguay Round’s Agreement on Safeguards (SG Agreement); second, safeguard-related provisions under the Protocol on the Accession of the People’s Republic of China to the World Trade Organization (China’s WTO Accession Protocol) and the Report of the Working Party on the Accession of China (Working Party Report). Pursuant to Article XIX of the GATT 1994 and the SG Agreement, a WTO Member applying safeguard shall at least meet the following substantial conditions: in view of emergency actions with respect to sharply increased imports of a particular product, such product is being imported in such increased quantities, absolute or relative to domestic production, and under such conditions as to “cause or threaten to cause serious injury to the domestic industry that produces like or directly competing products.”13 “Serious injury” here means a “significant impairment in the position of a domestic industry”; “threat of serious injury” refers to “clearly imminent” injury that is determined “based on facts and not merely on allegation, conjecture or remote possibility”. The “domestic industry” here should be understood to mean the producers as a whole, or those whose collective output of the like or directly competitive products constitutes a major proportion of the total domestic production of those products.14 12 Agreement

on Safeguards, Article 2(1). on Safeguards, Article 4(1)-c. 14 Paragraph 245 of the Report of the Working Party on the Accession of China only indicates that the representative of China has expressed particular concern about the due process of law and decent standards that WTO Members may use when determine the existence of market disruption or diversion of trade. In particular, with regard to diversion of trade, the representative of China stated that WTO Members need to use objective criteria to determine whether China or another WTO Member can adopt specific-product safeguard to prevent or remedy market disruption that causes significant diversion of trade or threatens to cause significant diversion of trade. The representative of China further emphasized that such standards should include actual or imminent increase in the market share or value of imports from China, the nature or extent of actions taken by China or another WTO Member, and other similar standards. However, these wordings are, after all, the “special concern” and “representation” of the Chinese side, but do not seem to reflect the clear 13 Agreement

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Let’s take another look at US-Tyres. First of all, the import of Chinese tire products to the US has not had a sharp rise since 2007. In 2008, it grew by only 2.2% compared with 2007, and in first half of 2009, it even fell by 16% compared with the first half of 2008. Therefore, there was no “significant increase” or “absolute or relative increase” in the quantity of imports of Chinese tires to the US. Second, there were no industries in the US in competition with Chinese tires. The US tyre market can be divided into high, medium and low grades. Tires imported from China were mainly supplied to the US mid- and low-end markets, while the US self-produced tires targeted the original equipment and replacement market. These two types of tires were not “like or directly competitive products”.15 Since there was no similar or direct competitive relationship between Chinese tires and US-made tires, the former was unlikely to cause “serious injury” or “threaten to cause serious injury” to the latter. Shutting down some factories and production equipment was a voluntary structural adjustment made by relevant US industries for their choice of high-end market, which was not related to the import of Chinese products. Even if the United States stopped importing Chinese tires, it would still have to import such medium- and low-grade tires from other countries.16 Therefore, according to Article XIX of the GATT 1994 and the SG Agreement, the US safeguard on Chinese tires lacks basic support of facts, and thus fails the WTO legal basis. Compared with Article XIX of the GATT 1994 and the SG Agreement, the transitional product-specific safeguard mechanism stipulated in the China’s WTO Accession Protocol and the Working Group Report is distinctive in the following aspects. First of all, there are different standards for the determination of injury. One standard for WTO Members to implement specific safeguard on imports from China is that the increased imports cause “market disruption” or “threat of market disruption” to domestic industries that produce like or directly competitive products, which can be established just with the proof of “a significant cause of material injury or threat of material injury” to the said domestic industries. In other words, even if there are other important factors for the material injury or threat of material injury to the domestic industries, special measures can be taken against Chinese products as long as the increase in imports from China is one of the key reasons. It follows that, in terms of the substantial conditions for the application of safeguard on Chinese products, the transitional product-specific safeguard mechanism has much lower standards than Article XIX of the GATT 1994 and the SG Agreement provide. This means that any WTO Member may apply specific safeguard on products originating in China under relatively softer conditions, without having to take into account such substantial elements as “material injury” or “threat of material injury” and non-discrimination. attitude of other WTO Members in this regard. Moreover, the Working Party Report does not establish specific standards and more detailed procedural requirements for the implementation of the provisions on diversion of trade as it does on market disruption. 15 Will the “US-Tyres” Become First Domino’s Card. Xinhua News. http://www.xinhuanet.com/ world/2009-09/20/content-12081800.htm. Accessed 30 September 2009. 16 China strongly opposes the US special safeguard on Chinese tires. Press Office of the Ministry of Commerce. http://www.mofcom.gov.cn/column/print.shtml?/ae/ai/200909/20090906. Accessed 22 September 2009.

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Furthermore, if a WTO Member’s safeguard on products originating in China results in the increase in the quantity of such products entering another WTO Member, thus causing “a significant diversion of trade” or “a threat of significant diversion of trade” to another Member’s market, such another Member may apply special safeguard as well. It is worth noting that China’s WTO Accession Protocol has no specific definition of “a significant diversion of trade” or “a threat of significant diversion of trade”,17 which leaves Members considerable space for discretion on the application of special safeguard. The existence of the “diversion of trade” provisions will inevitably lead to a chain reaction of other WTO Members to adopt safeguard on imports of Chinese products. At last, the transitional safeguard on China appears to target “specific products” originating in China, rather than “any product”. But it is not the case. Once another WTO Member determines that an increase in the quantity of a certain Chinese product being imported to its territory has caused domestic market disruption or a threat of domestic market disruption, it can define such product as a “specific product” imported from China and then apply safeguards.18 Although the conditions for the transitional product-specific safeguard mechanism set out in the China’s WTO Accession Protocol are much looser, it is still difficult for the US special safeguard on imports of Chinese tires to meet. There is no direct competitive relationship between tires imported from China and those made in the US as they do not fall within the scope of the same market, not to mention imports of Chinese tires cause “market disruption” or “threat of market disruption” to the US tire industry. Moreover, imports of tires from China to the US also does not constitute “a significant diversion of trade” or “a threat of significant diversion of trade”, let alone the fact that the quantity of Chinese tires imported to the US has not increased significantly, but has shown a trend of decline. Therefore, even if the special safeguard provisions under China’s WTO Accession Protocol are applied, it is difficult for the US to justify its special safeguard on imports of Chinese tires both in law and fact.

23.4 Conclusion In summary, the US special safeguard on imports of Chinese tires is a typical case of unilateral protectionism. Although this measure is adopted in accordance with the procedures stipulated by the United States Trade Law, which makes it legal from the perspective of the US domestic law, it apparently constitutes a violation of relevant provisions in the GATT 1994, the SG Agreement, the China’s WTO Accession Protocol, and the Working Group Report, as well as the multilateral commitments

17 The WTO held a “Mini-Ministerial Meeting” in New Delhi, India on 3-4 September and 35 Ministers of Trade attending this meeting reached an unanimously commitment to completing the ongoing Doha Development Agenda in 2010. 18 Lingliang Zeng (2005).

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made by the United States at the G20 Financial Summit, and therefore it is illegal from the perspective of international law. The US-Tyres has brought negative effects in many aspects, not only leading to serious losses to China’s tire manufacturing industry and traders, but also resulting in the injury of US tire importers and sellers and US-funded tire companies in China. It is even likely to cause global domino effects. The latest World Bank report points out that since the G20 Financial Summit in November 2008, 17 countries have implemented trade restriction measures, reflecting the rising trend of protectionism. Furthermore, since the outbreak of the financial crisis, there have been about 78 protectionist measures launched or proposed to be launched by countries around the world, and the number of anti-dumping investigations initiated has increased by 15% compared to that before the global financial crisis.19 Whether from the perspective of the amount and implications of the case itself, or the perspective of the status and role of China and the United States in international trade, undoubtedly the US special safeguard on imports of tires from China has generated the most typical negative impacts, directly undermining the results and effects of the G20 Financial Summit. The United States broke its commitments made at the G20 Financial Summit and arbitrarily adopted special safeguard on Chinese tires. It may trigger the rise of global trade protectionism, and will certainly cast a shadow on the WTO’s plan to complete the Doha Development Agenda in 2010. As the Director-General of the WTO recently admitted, “at this stage I remain cautious in my forecast. It would be premature for me to predict today that the necessary political engagement will in fact take place over the next three months……Clearly the chances of concluding (the Doha Round, author notes) in 2010……depends on your engagement at all levels, multilaterally, plurilaterally and bilaterally, starting now”.20 The US safeguard on imports on Chines tires is a wrong practice that violates the WTO rules and abuses trade remedy measures. It not only lacks basis of fact, constituting a breach of the obligations of the US under the WTO, but also goes against the consensus reached by leaders of the G20 to fight protectionism. If not properly resolved, this action of the US is likely to adversely affect the completion of the Doha Round negotiations as expected. Regardless of China’s diplomatic efforts, it seems difficult to change the US government’s decision on safeguard on imports of Chinese tires because it is operated in accordance with the procedures prescribed by the US trade laws. Nonetheless, China has continued to pressure diplomatically and already resorted to WTO dispute settlement mechanism, which would have a deterrent effect to prevent the US from extending protectionist measures on China to other industries or fields. On 14 September 2009, the Chinese government officially launched the WTO dispute settlement process. On 19 January 2010, the WTO formally established the Panel to exam the case. Now the case has even went to the appeal proceeding. Anyway, China 19 China and the US are expected to focus on trade protectionism in the G20 Summit to be held tomorrow. Xinhua News. http://news.xinhuanet.com/fortune/2009-09/23/content_12099217.htm. Accessed 23 September 2009. 20 Lamy (2009).

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is likely to win this case. However, it should be clearly recognized that it may take at least one year for the case to have a result under the WTO process. It means that China may win the case but lose economic benefits because awards rendered under the WTO dispute settlement mechanism do not involve substantial compensation, only determine the fact whether a WTO Member has violated its relevant obligations and caused damage to and loss of interests to another Member, and give instruction the violating Member to correct its actions.

References Kirk R (2009) White house fulfilling trade enforcement pledge with announcement of remedies in chinese tire case. Office of the United States trade representative. http://www.ustr.gov/aboutus/press-office/press-releases/2009/september/kirk-white-house-fulfilling-trade-enforcementpl. Accessed 19 September 2009 Lamy P (2009) Introductory remarks at informal meeting of heads of delegations in trade negotiations committee. http://www.wto.org/english/news_e/news09_e/tnc_dg_stat_22sep09_e.htm. Accessed 23 September 2009 Office of the Press Secretary (2009) Declaration: summit on financial markets and the world economy. The white house. http://www.g20.org/Documents/g20_summit_declaration.pdf. Accessed 21 September 2009 Snyder F (1993) The effectiveness of european community law, institutions, processes, tools and techniques. Mod Law Rev 56(1):19–54 World Trade Organization (2009) Request for consultations by China, United States-measures affecting imports of certain passenger vehicle and light truck tyres from China (WT/DS399/1, G/L/893, G/SG/D36/1) Zeng L (2005) The effectiveness and rationality of the transitional product-specific safeguard mechanism on Chinese imports. Law Rev 5:63–70

Chapter 24

Tendency of Treaty Interpretation from the Perspective of WTO Appellate Body’s Ruling on the “China-US Publication Market Access Case”

24.1 Introduction Since the formal request for consultations was referred to the WTO dispute settlement mechanism on 10 April 2007, the case brought by the US against China with respect to measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products (hereinafter referred to as the “China-US Publication Market Access Case”), after two years and eight months, was finally settled with the Appellate Body report circulated to WTO Members on 21 December 2009. Objectively speaking, China lost its case as a whole even though its position on certain issues in this case won the support of the WTO Panel and Appellate Body. Of course, the final loss of the case does not necessarily mean that China’s measures at issue violate the relevant WTO rules. It does not even mean that the final decision is fair and reasonable. After all, it is difficult for a group, whether the Panel or the Appellate Body, consisting of only three people to make a fair and reasonable adjudication on such complicated case. In fact, for the reports of the Panel and the Appellate Body, especially the latter, the key is to interpret the WTO rules and apply them to the specific facts of relevant cases. In respect of the interpretation of the WTO rules, the key lies in the methods of legal interpretation adopted by the members of the Panel or the Appellate Body. Although the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) expressly provides that the Panel and Appellate Body shall interpret applicable WTO Agreements in accordance with customary rules of public international law, customary rules have significant uncertainties and need to be applied on a case-by-case basis. Therefore, members of the Panel or the Appellate Body have the flexibility or discretion to certain degree in the process of interpreting treaties pursuant to customary rules of The Article was originally written by Prof. Zeng in Chinese, and published in Law Science, (8), 2010, pp. 12–17. It was then translated by Dr. Jiao Zhang, and proofread by Assoc. Prof. Yayun Chen. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_24

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interpretation of public international law. It is exactly the flexibility or discretion of this method of legal interpretation that ultimately determines the outcome of the case. This essay does not intend to make a comprehensive and systematic comment on the reasoning and decision of the Panel and the Appellate Body on all issues in dispute in this case, but only to comment on the methods adopted by the Appellate Body in its interpretation of the term “sound recording distribution services” as listed in China’s Schedule of Commitments under the General Agreement on Trade in Services (China’s GATS Schedule). Instead of judging whether the Appellate Body’s interpretation and conclusions are right or wrong, this essay aims at, through the analysis and comparison of the WTO dispute settlement body’s decisions on relevant cases and the conclusions made by the International Court of Justice of United Nations (ICJ) in its relevant judgments, illustrating that the evolutionary interpretation or the interpretation based on contemporary meaning is not first adopted in this case, or exclusive to the WTO Panel or Appellate Body, but a new trend in the interpretation of treaty terms by international judicial (or quasi-judicial) bodies today.

24.2 AB’s Interpretation of “Sound Recording Distribution Services” After the Panel Report was circulated to WTO Members on 12 August 2009, the Chinese government notified the WTO on 22 September 2009 of its decision to appeal to the Appellate Body on a series of legal issues involved in the Panel Report and some issues concerning the Panel’s legal interpretation. One of the key issues is whether China’s GATS Schedule on “sound recording distribution services” only applies to physical products or also includes products of electronic distribution. The Panel found that electronic distributions fell with the scope of China’s GATS Schedule and that it constituted a violation of Article XVII of the GATS that China prohibited foreign-invested enterprises from engaging in the electronic distribution of sound recordings in China while imposing no similar restrictions against Chinese service suppliers.1 The Chinese government believed that the above-mentioned conclusions of the Penal based on its misinterpretation of the treaty term “sound recording distribution services” were wrong. China argued that the Panel’s analysis of the object and purpose of WTO Agreements and certain terms was flawed because the Panel failed to take account of the existence of several alternative meanings of “sound recording distribution services”. The Panel failed, in particular, to take account of important principles that would have provided relevant guidance in its interpretation, namely, following the positive-list principle, the reaching of a balance of concessions, and the principle of progressive liberalization. According to China, these elements required the Panel to give careful consideration to: (i) the sovereignty of WTO Members to 1 See

World Trade Organization (2009b), paras. 338–339.

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decide upon the pace and the extent of liberalization of their services markets; (ii) the fact that, absent a specific commitment explicitly inscribing it in a GATS Schedule, a particular service should not be considered as subject to any commitment; and (iii) the fact that the preamble of the GATS explicitly states that progressive liberalization should be achieved through “successive rounds of multilateral negotiations aimed at promoting the interests of all participants on a mutually advantageous basis……, while giving due respect to national policy objectives”.2 China asserted that a proper examination of the object and purpose of the GATS suggested that the meaning to be ascribed to its entry on “sound recording distribution services” should be based on definitions contemporaneous to the conclusion of the treaty. The Panel, however, followed an “evolutionary” approach to treaty interpretation, insofar as it interpreted China’s GATS Schedule based on their contemporary meaning. In China’s view, the principle of progressive liberalization did not allow the scope of the commitments of a WTO Member to be extended based on the “temporal variations in language”.3 Therefore, China believed that treaty terms should be interpreted in accordance with the definition at the time the treaty was concluded, not when the dispute arose. The US agreed with the Panel on its interpretation method on this issue. “…As for the argument that the principle of progressive liberalization would have required the Panel to base its analysis of the relevant terms in China’s GATS Schedule on their meaning at the time of China’s accession to the WTO, the US observes that such an interpretative approach would place a limitation on a Member’s commitment that does not exist in its Schedule, and would not conform to the requirements of the Vienna Convention on the Law of Treaty.”4 The Appellate Body upheld the Panel’s opinions that the electronic distribution of sound recordings was included the commitments made by China. To reach this conclusion, the Appellate Body gave some new perspectives on how to interpret treaty terms (especially when the meaning of treaty terms has changed over time), which is worth our attention and thinking. First of all, the Appellate Body considered that the terms used in China’s GATS Schedule (“sound recording” and “distribution”) were sufficiently generic that what they applied to may change over time. It noted that GATS Schedules, like the GATS itself and all WTO Agreements, constituted multilateral treaties with continuing obligations that WTO Members entered into for an indefinite period of time. Moreover, the Appellate Body further noted that interpreting the terms of GATS specific commitments based on the notion that the ordinary meaning to be attributed to those terms can only be the meaning that they had at the time the Schedule was concluded would mean that very similar or identically worded commitments could be given different meanings, content, and coverage depending on the date of their adoption or the date of a Member’s accession to the treaty. According to the Appellate Body, such interpretation would undermine the predictability, security, and clarity of GATS specific commitments, which were undertaken through successive rounds 2 See

World Trade Organization (2009a), para. 46. para. 47. 4 Ibid., para. 86. 3 Ibid.,

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of negotiations, and which must be interpreted in accordance with customary rules of interpretation of public international law. The Appellate Body also invoked the approach it took in US-Shrimp in the interpretation of the term “exhaustible natural resources” in Article XX(g) of the GATT1994 to further justify the correctness of its conclusions on this case. In US-Shrimp, the Appellate Body pointed out that the words in Article XX(g), “exhaustible natural resources”, were actually crafted more than 50 years ago and they must be read by a treaty interpreter in the light of contemporary concerns of the international community about the protection and conservation of the environment. Meanwhile, the Appellate Body also cited the wording of the “objective of sustainable development” in the Preamble of the Marrakesh Agreement Establishing the World Trade Organization to support the importance and legitimacy of environmental protection as a goal of national and international policy. The Appellate Body then concluded that the generic term “natural resources” in Article XX(g) was not “static” in its content or reference but is rather “by definition, evolutionary”, and it referred to both living and non-living resources.5 The Appellate Body invoked US-Shrimp because such reading of the term “sound recording distribution” in this case was consistent with the approach previously taken in its interpretation of “exhaustible natural resources”.

24.3 Similar Interpretative Method by the International Court of Justice It was extremely rare that the Appellate Body also referred to the ICJ’s interpretation of the term “commerce” in a judgment made in June 20096 to further demonstrate its correctness and rationality of its interpretation with respect to the term “sound recording distribution” in the “China-US Publication Market Access Case”. This ICJ judgment arose out of the case concerning the dispute regarding navigational and related rights (Costa Rica v. Nicaragua). Costa Rica requested the ICJ to rule and declare that Nicaragua’s refusal of the former to exercise its right of free navigation and related rights on the San Juan River violated the latter’s international obligations. In particular, Costa Rica requested the ICJ to rule and declare that Nicaragua’s such acts were in violation of its obligation to allow Costa Rican vessels and their passengers to navigate on and stop along this international river as agreed in the 1858 Treaty of Limits (the Treaty or the 1858 Treaty). The core issue in this dispute between the two parties lies in Article VI of the 1858 Treaty of Limits, which was concluded in Spanish. The ICJ’s translation of this Article into English goes as follows: “The Republic of Nicaragua shall have exclusive dominium and imperium over the waters of the San Juan River from its origin in the lake to its mouth at the Atlantic Ocean; the Republic of Costa Rica shall however have a perpetual right of free navigation on the said waters between the 5 See

World Trade Organization (1998), paras. 129 and 130. Court of Justice (2009).

6 International

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mouth of the river and a point located three English miles below Castillo Viejo and the vessels of both countries may land indiscriminately on either bank of the section of the river where navigation is common, without paying any taxes, unless agreed by both Governments.” The biggest difference between the parties is on the meaning of the words “con objetos de comercio”. For Nicaragua, this expression must be translated into French as “avec des marchandises de commerce” and into English as “with articles of trade”; in other words, the “objetos” in question here are objects in the concrete and material sense of the term. Consequently, the freedom of navigation guaranteed to Costa Rica by Article VI relates only to the transport of goods intended to be sold in a commercial exchange. For Costa Rica, on the contrary, the expression means in French “à des fins de commerce” and in English “for the purposes of commerce”; the “objetos” in the original text are therefore said to be objects in the abstract sense of ends and purposes. Consequently, according to Costa Rica, the freedom of navigation given to it by the Treaty must be attributed the broadest possible scope, and in any event, encompasses not only the transport of goods but also the transport of passengers, including tourists.7 The ICJ, in the first place, affirmed that it shall interpret the provisions of a treaty in the present case in accordance with the customary international law on the subject as reflected in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, in spite of the circumstance that Nicaragua was not a party to the Vienna Convention on the Law of Treaties and the fact that the Treaty which was to be interpreted here considerably predated the drafting of the said Convention.8 In the second place, the ICJ noted that it was not convinced by Nicaragua’s argument that Costa Rica’s right of free navigation should be interpreted narrowly because it represented a limitation of the sovereignty over the river conferred by the Treaty on Nicaragua, that being the most important principle set forth by Article VI. According to the ICJ, “Article VI shows that the Parties did not intend to establish any hierarchy as between Nicaragua’s sovereignty over the river and Costa Rica’s right of free navigation……Nicaragua’s sovereignty is affirmed only to the extent that it does not prejudice the substance of Costa Rica’s right of free navigation in its domain……the right of free navigation, albeit “perpetual”, is granted only on condition that it does not prejudice the key prerogatives of territorial sovereignty.”9 Regarding the meaning of the phrase “con objetos de” as used in Article VI of the Treaty, specifically whether it means “for the purposes of”—as Costa Rica contends—or “with Articles of”—as Nicaragua contends, the ICJ has the following analysis and interpretation. The ICJ observed that the Spanish word “objetos” can, depending on its context, have either of the two meanings put forward. Thus, the context must be examined to ascertain the meaning to be ascribed here. The ICJ, after such examination, considered that the interpretation advocated by Nicaragua cannot be upheld as ascribing 7 Ibid.,

para. 45. para. 47. 9 Ibid., para. 48. 8 Ibid.,

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the meaning “with goods” or “with Articles” to the phrase “con objetos” results in rendering meaningless the entire sentence in which the phrase appears. By contrast, Costa Rica’s interpretation of the words “con objetos” allowed the entire sentence to be given coherent meaning. If the phrase meant “purposes of commerce”, then the immediately following clause, “ya sea con Nicaragua……”, plainly related to “comercio” (“for the purposes of commerce with Nicaragua……”), and the sentence then conveyed a perfectly comprehensible idea.10 In addition, the ICJ also invoked additional cases where the word “objetos” was interpreted and used by these two countries in the practice of other treaties. At last, the ICJ needs to determine the interpretation of the term “trade” or “commerce” in Article VI of the Treaty. In Nicaragua’s view, for purposes of the Treaty, “commerce” covered solely the purchase and sale of merchandise, of physical goods, and excluded all services, such as passenger transport. Nicaragua argued that even if the phrase was translated as “for the purposes of commerce”, the result was the same, because in 1858 the word “commerce” necessarily meant trade in goods and did not extend to services, the inclusion of services being a very recent development. Nicaragua admitted that passengers were already being transported on the San Juan in 1858, and even that this was an especially profitable activity, but it added that this activity did not fall within the scope of what was commonly called “commerce” at that time. As for the transport of tourists, there was no such activity at the time in the area in question. Nicaragua emphasized that the words used in the Treaty shall be given the meaning they had at the time the Treaty was concluded, not their current meaning, which can be quite different, because this was the only way to remain true to the intent of the drafters of the Treaty; and determining that intent was the main task in the work of interpretation.11 Costa Rica argued that “commerce” as used in the Treaty took in any activity in pursuit of commercial purposes and included, inter alia, the transport of passengers, tourists among them, as well as of goods. Costa Rica contended that “commerce” was a broad concept which extended even beyond for-profit activities; in this regard, it cited the nineteenth-century editions of the Dictionary of the Royal Spanish Academy, which gave the word “comercio” the second meaning of communication and dealings of some persons or peoples with others. It follows, argued Costa Rica, that “commerce” includes movement and contact between inhabitants of the villages on the Costa Rican bank of the San Juan River, and the use of the river for purposes of navigation by Costa Rican public officials providing the local population with essential services, in areas such as health, education and security.12 In its interpretation of the term “trade”, however, the ICJ can subscribe to neither the particularly broad interpretation advocated by Costa Rica nor the excessively narrow one put forward by Nicaragua. In respect of the first, the Court observes that, were it to be accepted, the result would be to bring within the ambit of “navigation for the purposes of commerce” all forms of navigation on the river. If that had been 10 Ibid.,

paras. 50–52. Court of Justice (2009), para. 58. 12 Ibid., para. 59. 11 International

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the intent of the parties to the Treaty, it would be difficult to see why they went to the trouble of specifying that the right of free navigation was guaranteed “for the purposes of commerce”. Thus, the language found in Article VI means that the right of free navigation granted to Costa Rica in that provision applies exclusively within the ambit of navigation “for the purposes of commerce” and ceases to apply beyond that ambit; the bounds of which it is now for the ICJ to determine. This determination is without effect on the existence of any right of navigation which Costa Rica may enjoy pursuant to provisions other than Article VI of the Treaty.13 In respect of Nicaragua’s position, the ICJ, on the one hand, agreed that the terms used in a treaty must be interpreted in light of what is determined to have been the parties’ common intention, which is contemporaneous with the treaty’s conclusion. Some relevant judgments were invoked to support this opinion. On the other hand, the ICJ noted that this does not however signify that, where a term’s meaning is no longer the same as it was at the date of conclusion, no account should ever be taken of its meaning at the time when the treaty is to be interpreted for purposes of applying it. The ICJ further illustrated that the subsequent practice of the parties, within the meaning of Article 31(3), (b) of the Vienna Convention, can result in a departure from the original intent on the basis of a tacit agreement between the parties. Furthermore, there are situations in which the parties’ intent upon conclusion of the treaty was to give the terms used a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law.14 The ICJ, with reference to its previous judgment in a relevant case,15 reasons an important principle of interpretation that where the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning. The ICJ concluded that this principle is applicable to the present case because the term “comercio” as used in Article VI of the 1858 Treaty is a generic one, referring to a class of activity and the 1858 Treaty was entered into for an unlimited duration.

24.4 Conclusion The WTO Appellate Body claimed that it had interpreted the term “sound recording distribution” in the Sino-US Publication Market Access Case in accordance with the principles of Article 31 of the Vienna Convention on the Law of Treaties. However, it’s actually not the case, or at least its interpretation is not strictly consistent with the customary rules of public international law. Because neither the Vienna Convention 13 Ibid.,

para. 61. paras. 63 and 64. 15 See International Court of Justice (1978), p. 32. 14 Ibid.,

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on the Law of Treaties nor the customary rules of interpretation of public international law expressly stipulates that terms used in a treaty shall be interpreted based on their contemporary meaning, instead of the meaning at the time when such treaty was concluded. It should be acknowledged that the then meaning of treaty terms most directly expressed the true intentions of the parties to the treaty and thus directly reflected the meaning of Article 31 of the Vienna Convention on the Law of Treaties. Therefore, in respect of the interpretation of term of “sound recording distribution”, the Chinese government’s arguments have a certain legal basis, and is de facto persuasive and considerably reasonable. In addition, the Appellate Body considers the method of interpretation based on contemporary meaning it adopts in the interpretation of “sound recording distribution” as an enhancement and supplement to the literal interpretation and purpose interpretation of this term, which also seems a bit farfetched and unconvincing. According to the customary rules of interpretation of public international law and Article 31 of the Vienna Convention on the Law of Treaties, where a treaty term or expression is ambiguous, it can be interpreted based on or in connection with the context in which the treaty was concluded and the purpose of the treaty. This context and purpose interpretation is essentially the presumption of the true intention of parties to the treaty. In this case, not only the purpose of the GATS, but also China’s purpose and intention in its GATS Schedule shall be taken into account. The latter is indeed a package of bilateral agreements concluded between China and all other WTO Members. Therefore, to determine whether the term “sound recording distribution” includes electronic distribution, it should be at least embodied the intention of a party to the bilateral treaty, or even be the main aspect of such intention, because China is the party that bears obligations under China’s GATS Schedule. Moreover, to determine the intention at issue, in addition to China’s claims, statements, and defenses in the WTO dispute settlement proceedings, the relevant implementation measures and documents of the Chinese government should also be crucial evidence. However, in the Appellate Body report, it only examines the objective and purpose of the GATS in a contemporary sense, but does not examine or at least overlooks the purpose of China’s GATS Schedule, let alone the original intention of China when it made these commitments. Hence the author believes that the analysis and interpretation of the Appellate Body on this issue, if not wrong, is at least one-sided. As seen from the above analysis, the interpretation of the “sound recording distribution” in this case is not the first time that the Appellate Body holds the method of interpretation based contemporary meaning. There are precedents in the WTO dispute mechanism, and the same or similar interpretation methods adopted by the ICJ. In this case, the Appellate Body has made full use of these precedents and the same or similar methods of the interpretation of treaty terms to justify the legitimacy and lawfulness of its interpretation based on contemporary meaning, which is essentially a dynamic or evolving interpretation, or a method that advances with the times. The method of interpretation based on contemporary meaning seems to indicate the latest trend in the treaty interpretation by international dispute settlement bodies today. In fact, in addition to the WTO Appellate Body and the ICJ, the European Court

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of Justice is also an active advocate and practitioner of this method of interpretation. It has been always using the contemporary meaning in its interpretation of the terms “common commercial policy” and “trade” in Article 133 of the Treaty establishing the European Community (now Article 207 of the Treaty on the Functioning of the European Union) in some related cases in the 1970s and 1990s.16 Although the method of interpretation based on contemporary meaning is sophisticated as it advances with the times, it seems premature to consider it as a customary rule of interpretation of public international law. It still has some doubts or uncertainties. Both the WTO Appellate Body and the ICJ have pointed out that the “generic” character of a treaty term is a prerequisite for the method of interpretation based on contemporary meaning. In practice, it is not clear how to define a “generic” term. Apart from the term itself being “evolutionary” and the relevant treaty “continuing for an unlimited duration”, are there any other conditions? Furthermore, does the method of interpretation based on contemporary meaning apply only to “generic” treaty terms, but not to “non-generic” treaty terms? All in all, to address these remaining questions and uncertainties in respect of the method of interpretation based on contemporary meaning, the clarification and development may only be expected in future judicial practice of the WTO Appellate Body, the ICJ and other international dispute settlement bodies.

References European Court of Justice (1975) Opinion given pursuant to Article 228 (1) of the EEC treaty. European court reports 1975 –01355 European Court of Justice (1979) Opinion given pursuant to the second subparagraph of Article 228(1) of the EEC treaty—international agreement on natural rubber. European court reports 1979–02871 European Court of Justice (1994). Competence of the community to conclude international agreements concerning services and the protection of intellectual property—Article 228 (6) of the EC treaty. European court reports 1994 I–05267 International Court of Justice (1978) Judgement, Aegean sea continental shelf . Greece v. Turkey International Court of Justice (2009). Judgment, Case concerning the dispute regarding navigational and related rights. Costa Rica v. Nicaragua World Trade Organization (1998) Report of the appellate body, United states—import prohibition of certain shrimp and shrimp products (WT/DS58/AB/R) World Trade Organization (2009a) Report of the appellate body, China-measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products (WT/DS363/AB/R) World Trade Organization (2009b) Report of the panel, China-measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products (WT/DS363/R)

16 See

European Court of Justice (1975); European Court of Justice (1979); European Court of Justice (1994).

Part V

China and Tendency of Regional Trade Agreements

Chapter 25

New Tendency of the Regional Trade Agreements and Its Negative Impacts on the Doha Round

25.1 Strong Momentum of Development of RTAs Since the foundation of the World Trade Organization (WTO), the quantity of the Regional Trade Agreements (RTAs) to establish the Free Trade Areas (FTAs) has been consistently on the surge. On the one hand, the Doha Development Agenda has stalled because of the failure of the Cancún Ministerial Conference; on the other hand, the development of RTA negotiations shows a strong momentum, with some features as follows1 : Firstly, there is a dramatic increase of the RTAs at an unprecedented rate. According to the incomplete statistics based on some materials, in the two years from 2001, the start of the Doha Development Agenda, there were 33 notified RTAs, among which 21 RTAs included trade in goods and 13 RTAs included trade in services. In 2003 only, there were 12 RTAs signed, 9 RTAs under negotiation, and 13 RTAs at the proposal stage. Following the proliferation trend, it is estimated that to 2007 the number of RTAs in force may go beyond 300. Secondly, countries from all over the world are keen on negotiating and concluding RTAs. To October 2003, all the 146 WTO Members, except for Mongolia, have joined or are negotiating RTAs. RTAs are originated from and flourish in the Europe. But today, Asia-Pacific region becomes new center of RTA negotiation, although the European-Mediterranean areas still have the largest number of RTAs (more than 100 RTAs in force). Countries and custom territories like Japan, South Korea, China, Hong Kong China, Chinese Taipei, Australia, New Zealand and Singapore, traditionally reliant on the multilateral trade liberalization with the MFN treatment as its 1 World

Trade Organization (2003), pp. 1–8.

The Article was originally written by Prof. Zeng in Chinese, and published in Chinese Journal of Law (Faxue Yanjiu), (5), 2004, pp. 117–128. It was then translated by Ms. Yanrui Zhao, and proofread by Dr. Jiao Zhang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_25

455

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cornerstone, now turn to vigorously seeking to establish bilateral and regional free trade areas. Thirdly, the content of RTAs is expanding. The traditional RTAs aim to reduce and eliminate the tariff, and prohibit or restrict the non-tariff barriers for the trade in goods. But the new RTAs are marching into areas with direct and indirect relations with trade, like rules on investment, competition, environmental policies and labor regulations. A new generation of RTAs is coming into existence. Fourthly, the model of RTAs is growing. Some countries or bloc of countries, full with interests and experience gained from RTAs do not stop there, and they are trying to make breakthrough from the perspective of models of RTAs. First of all, instead of only establishing free trade areas or customs unions with neighboring or regional partners, those countries also make efforts to establish the bilateral free trade areas across regions, continents and oceans, like the RTA concluded by the US and Singapore. Besides, those countries explore to establish oversized free trade area across different continents or regions, like the American free trade area and the European-Mediterranean free trade area which are at proposal stage. Lastly, they are planning to upgrade those elementary RTAs into a regional system with higher level of integration. For example, the EU, by accepting the accessions of 10 Eastern European and Mediterranean countries on 1 May 2004, has transformed the preferential trade arrangements between those new members into a single market. By extending to the new members, the regional integration organization, in spite of the reduced number of RTAs (including the merge of some existing free trade areas), has increased the level of integration and its economic and political influences. The Lomé Agreement, which lasts almost 30 years between the EU and 77 African, Caribbean and Pacific countries, is famous around the world because it is the first agreement to apply the General Preferential System (GPS) into the trade cooperation between the developed and developing countries. Now, the EU is no longer satisfied with the existing GPS. Since September 2002, it has started to negotiate the Economic Partnership Agreement (EPA) including issues on the free trade area, with those developing countries, to replace the existing Cotonou Agreement. The negotiation is expected to be finalized in 2008. It would be a typical upgraded version of the traditional RTAs. Since the latest development of RTAs has gone beyond geographically neighboring countries, the concept of RTAs now and in the future should bear some new characteristics of the new era. It could be a symbol or expression of various kinds of bilateral, plurilateral and regional trade agreements.2 Otherwise, it would be very difficult for us to accurately describe the factual and future development trend of

2A

bilateral trade agreement itself may contain more than two countries when one party of such agreement is a bloc of countries, like the Agreement establishing Association between European Communities (with 15 member states) and Turkey. The Framework Agreement on Comprehensive Economic Co-operation between China and the ASEAN countries also belongs to the bilateral agreements. Plurilateral trade agreement means it consists of more than two parties, like the North American Free Trade Agreement (NAFTA) and the MERCOSUR Agreement. All the bilateral and plurilateral trade agreements within a geographic region belong to the RTAs.

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such preferential trade arrangements. It would be better to use the term “Preferential Trade Agreements” (PTAs) to summarize various RTAs, at least it is more inclusive. All the tendencies listed above have fully shown that the RTAs are becoming a complex network consisting of several chains of rings. Although the world map now and in the future will still be drawn with symbols and curves to show the territories of countries and the natural boundaries of the continents and oceans, all the governments, natural and legal persons have to bear in mind another form of world map consisting of different free trade areas. At least when those legal subjects and international actors commit any act or omission in trade, investment or of any transboundary nature, they have to take into consideration such invisible map of free trade areas. Otherwise, the interests of the State or individual or corporation will be damaged, and it may even lead to certain forms of legal responsibilities.

25.2 Incentives of RTAs Development The rapid increase of the number of the RTAs with different titles across the world must be driven by some underlying factors.

25.2.1 Economic Interests In accordance with the analysis of the 2003 WTO report on the world trade, concluding RTAs is driven by seeking for more market access which would be more easily to be attained at the bilateral or regional level, especially when we consider WTO Members’ lack of willingness to further trade liberalization at the multilateral level. Hence some members claim that the reason for them to positively push forward concluding RTAs is mainly because they want to provide competing stimulus for the trade liberalization at the multilateral level. For example, before the Conference, the US seemed to have anticipated its failure so it put forward the concept of the competitive liberalization. It on one hand paltered with the multilateral trading system, and on the other hand, actively pushed the free trade agreement with Singapore at the bilateral level and started to create the American trade area.3 Some other countries were attracted by the RTAs out of their own interests, because the process for MFN treatment at the multilateral level has been stuck. They chose to take RTAs as a flexible tool for maintain market access. Especially for the less developed countries or countries with weak economy, the RTAs are necessary to maintain their economic interests, because through the RTAs the weaker countries could more easily gain foreign direct investment from the developed members, especially for the weaker

3 Swiss

Institute for International Economics and Applied Economics Research (2004).

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countries with low labor cost, like Mexico in the North American Free Trade Agreement (NAFTA). Therefore, for countries, RTAs seem to act with dual locking function to keep the competition out while the investment in.4 One point that deserves further consideration is that, according to some economists’ analysis, for the importing countries, free trade area will not bring more benefits than the multilateral trade liberalization, and even less. Under the multilateral trading system based on the principle of MFN treatment, one member removing its trade barriers will benefit all importers equally, therefore the increase on the foreign importation will replace its domestic production, instead of any importation from other countries. But under the free trade area, to remove trade barrier will lead to more importation from other members in the free trade area, not only compared with the domestic production, but also compared with the importation from countries other than the free trade area members. The result will be that any increase of the importation from the free trade area members will replace neither the domestic production nor the importation from other countries. Economists call replacing domestic production as trade creation because it leads to net increase of trade. They call replacing importation from other countries as trade diversion because it will not increase the trade on the whole but only divert the present trade. Compared with trade diversion, trade creation is more likely to produce net economic interests. Therefore, for the importing countries, compared to trade creation, trade diversion is less likely to produce economic interests.5

25.2.1.1

Demands from Political and Security Policies

Compared with the economic interests mentioned above, politics and security considerations have distinguished features. Unlike the economic interests which are clearly laid down in the provisions, politics and security factors may be found through comprehensive analysis of factors other than economic interests, like the historical and current situations when negotiating and concluding the RTAs, the status and role of parties of RTAs in the world and regional affairs, geographical location of the concluding parties in the world strategy and their own strength and capacity, and so on. From the perspective of politics and security, parties of RTAs may have considerations as follows: Firstly, for the concluding parties, they have the need to maintain the security of themselves and their region. Take the example of the free trade area established by China and the ASEAN countries.6 From the strategic perspective, the reason why China actively promotes establishing the free trade area with ASEAN countries 4 World

Trade Organization (2003), p. 9. States Congressional Budget Office (2003), pp. 5–6. 6 Before 1990s, China did not establish any formal relations with the ASEAN as a whole, despite of the fact that it had established formal diplomatic relations with most of the individual states of ASEAN. After the establishment of diplomatic relations with Singapore (which was the last ASEAN Country to establish diplomatic relations with China), China began to explore way of cooperation 5 United

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is mainly because new concept of security, which means to promote the multiple polarized world and multilateralism to dilute the unilateral policy of the US in the global and regional affairs.7 In accordance with the new concept of security, China emphasizes that multilateralism and cooperation are the best way to promote Asian peace. Therefore, China actively promote the economic integration of the East Asia, and treat the free trade area with ASEAN countries as the model for the regionalization of the East Asia. Instead of negotiating with individual ASEAN countries, China promoted the free trade area through treating the 10 ASEAN Countries as a whole. Purely from the perspective of economic interests, China may benefit more if it established free trade area with individual ASEAN Countries for some of them are less or even least developed with which China does not have complementarity to establish free trade area when considering economic interests. China’s promise to treat the ASEAN countries as a whole to establish free trade area is undoubtedly more beneficial to the cohesion of ASEAN countries and their close integration with China as a whole. Therefore, on the one hand, to ensure that the ASEAN Countries will not become a security threat for China, and on the other hand, to some extent to contain American unilateralism in this area, and further to make contribution to the peace of Asia or even of the whole world.8 Secondly, for the great and super powers, RTAs is an important legal tool to establish geopolitical coalition to gain wider support from more countries for their global strategy and regional policy. The Congressional Budget Office (CBO) of the US recently issued the “Pros and Cons of Pursuing Free-Trade-Agreements, Economic and Budget Issue Brief”, which articulated the benefits brought by the RTAs on the US politics and foreign affairs.9 The Brief took the free trade agreement between the US and Israel as an example, and claimed that the agreement “was of value to the US almost entirely for reasons of foreign policy”. As for the NAFTA, in spite of the fact that Mexico is a comparable big trading partner of the US, a fair with the ASEAN as a whole. In 1991, China became the Consultative Partner of the ASEAN, which was upgraded as Full Dialogue Partner in 1993. In 1997, China and the ASEAN started the “10 + 1” Informal Summit (also called as the ASEAN + 1 Informal Summit) system. In the 2000 “10 + 3” Summit (also called as the ASEAN + 3 Summit), the Chinese Premier put forward to explore the possibility of establishing free trade area between China and the ASEAN, and in the 2001 Summit he officially made such proposal. In the 2002 Summit, China and the ASEAN signed the Framework Agreement on Comprehensive Economic Co-Operation Between the Association of South East Asian Nations and the People’s Republic of China. The main and core part of the Framework Agreement was to establish free trade area, and the plan would be carried out in two steps: first, before 2010, China would establish free trade area with the 6 founding members (namely Brunei, Indonesia, Malaysia, Philippines, Singapore and Thailand) of the ASEAN, and then they would extend such free trade area to the 4 new members, namely, Cambodia, Laos, Myanmar and Vietnam before 2015. 7 Chinese new concept of security was firstly put forward by Zemin Jiang, the then President of China in the 1996 Meeting of the Shanghai Cooperation Organization, and it was regarded as a landmark for Chinese foreign affairs. The core of the new concept of security are: (1) five principles of peaceful coexistence; (2) reciprocal cooperation in economy; (3) promotion of mutual trust through dialogue;(4) peaceful settlement of disputes. 8 Lijun Sheng (2003). 9 United States Congressional Budget Office (2003), p. 8.

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number of politicians in the US thought that its effect on the US is really low but only can provide political and economic stability for its neighbor on the north side. The Brief also mentioned that the RTAs can provide legal foundations for the economic and political aid given by the US to those small developing countries. For sake of the political and security policies, there is an obvious turn of US’s attitude towards the RTAs. Till now the US only has three RTAs in force, namely, the RTA with Israel, the NAFTA and the RTA with Jordan. In recent years, however, the US signed the RTAs respectively with Singapore and Chile (both remain to be approved) and is negotiating or preparing to negotiate RTAs with countries in those following areas: (1) to establish the US-Central America free trade area with Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua; (2) to establish the American free trade area with more than 30 countries (including Canada, Mexico, Chile and countries in the Central America) like Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Dominica, Dominican Republic, Ecuador, Grenada, Guyana, Haiti, Jamaica, Panama, Paraguay, Peru, Uruguay, Venezuela; (3) to establish the USSouth Africa Free Trade Area with Botswana, Lesotho, Namibia, South Africa and Swaziland); (4) the US-Australia Free Trade Area; (5) the US-Morocco Free Trade Area; (6) the US-Bahrain Free Trade Area.10 Since 2004, there is even stronger enthusiasm for the US to negotiate the agreement to establish the free trade area.11 Lastly, for the large number of developing countries, especially those small ones and least developed countries, political consideration is undoubtedly a significant factor even the only option, in addition to other factors like promoting the trade (especially promoting exportation) from the economic perspective and more foreign direct investment to boost their domestic economy. From the voluntary side, by establishing bilateral, plurilateral and regional free trade areas and customs unions, the small countries may enhance their domestic and regional stability and security, and may have their voice heard as a whole in the international organizations and institutions, for the voice of any single small country may usually be muted or overlooked by great powers. From the compulsory side, for those small countries, in exchange for market access and investment opportunities or economic aids from the developed countries, they have no choice but say yes to the free trade agreement put forward by the developed countries, especially to reluctantly accept those additional political conditions before and after concluding the free trade area agreement. Pick up any free trade area agreement of which developing countries especially small and least developed countries are parties, you can find such political considerations.

10 Ibid.,

p. 3. 15 March 2004, the Office of the United States Trade Representative (USTR) declared that the US & Dominican Republic Concluded Trade Talks Integrating the Dominican Republic into the Central American Free Trade Agreement (CAFTA). On 26 March 2004, the Office declared that the US and Panama would begin FTA Negotiations on 26 April. On 23 March 2004, it declared that US and Colombia began FTA Negotiations on 18 May. On 2 April 2004, the Office released the draft text of the US-Morocco FTA. See www.ustr.gov. Accessed 4 April 2004. 11 On

25.2 Incentives of RTAs Development

25.2.1.2

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Disadvantages of the Multilateral Trading System

The multilateral trading system itself should bear some responsibility for the flooding of bilateral, plurilateral and regional trade agreement. To some extent, the multilateral trading system is caught in a trap of its own making when facing the shock posed by those RTAs. Firstly, from the very beginning the multilateral trading system had laid down the root for growing regional trade agreement in the future. When negotiating and concluding the General Agreement on Tariffs and Trade (GATT) in 1947, the traditional developed countries like the UK and France recognized that those preferential trade arrangements with their colonial countries or overseas territories shall be a legal exception to the MFN treatment in the multilateral trading system, for they managed to maintain those preferential trade arrangements, and to exclude other countries from benefiting from those arrangements. This is the primary background of article 24 in GATT 1947 and 1994. In the Tokyo Round ended in 1979, based on the structural changes and big differences of economic and trade power among various members of the multilateral trading system, the so called “Enabling Clause” permitting the developed countries to grant preferential treatment to developing countries on the tariffs for importation of goods, especially departure from the MFN treatment principle for the trade on goods among developing members and recognized the preferential treatment of tariff concessions. The Uruguay Round ended in 1994, on one hand continued to recognize the existing regulations and measures in the GATT, and on the other hand, had extended the exception of regional agreement into the General Agreement on Services (GATS) in the name of regional integration.12 When we look into what the negotiators intended when drafting the GATT1947, perhaps none of them could have foreseen that the regional trade agreement, originally only serving as the exception to the multilateral trading system, could have become so popular in 50 years and shown even stronger momentum. Secondly, the severe defects of the supervision mechanism of the multilateral trading system on RTAs makes the mechanism almost existing in its name only. Although Article 24 of GATT and Article 5 of GATS both lay down procedural and substantial requirements for the RTAs, the supervision on the RTAs is always weak and inefficient whether in GATT or the WTO. Those WTO Members who join the regional trade agreement only fulfill the obligation of notifying the WTO according to the procedural requirements, as for whether the content and actual operation of those regional agreements is consistent with the substantial terms (like transparency, level of liberalization of internal trade, the neutrality of trade with non-parties of the regional agreement and level of barriers), remain unanswered with various interpretations. Although after the founding of the WTO, in 1996, there was some institutional improvement for reviewing the regional trade agreement, namely establishing the Committee on Regional Trade Agreement (CRTA) to assess those regional trade agreements, the newly established specialized body had enjoyed little success. CRTA did assess over 180 notified RTAs (most of them inherited from the 12 See

Article V of GATS.

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GATT years), but it never came to any conclusion on whether any single RTA is consistent with WTO rules or not, due to various political and legal difficulties.13 It is because of the fact that for a long time the GATT/WTO only assessed but never came to any conclusion for those RTAs, like hot potatoes, that boost the keen interests of those members to take the shortcut of RTAs. Lastly, as the multilateral trade negotiation has become more difficult while the negotiation for RTAs is relatively easier, there is no surprise that members prone to take the advantage while avoid the disadvantage on the path for trade liberalization. Most of us will agree that the multilateral trading system is the best choice to promote global trade liberalization and the open, fair and equal trade order, because under the MFN treatment principle which is unconditional and of automatic reply, any single preferential treatment, whether it is a tariff concession, a limitation on non-tariff barriers or a rule or system for a transparent, fair and equal trade regulation, will be extended to all members in such multilateral system. However, the GATT/WTO practice has fully shown that with the increasingly large quantities of members in the multilateral trading system and the complexity of their situations, it has become more and more difficult to reach a consensus on any single issue. Meanwhile, as the multilateral trading system commits to the global trade liberalization one round after another, the issues of those multilateral trade negotiations have become more and more difficult and politically sensitive so the room for compromise in the negotiation has been nibbled.14 The struggling Doha Round has provided a factual, direct and clear example. In contrast, numbers of the parties in the RTA negotiations are less. These parties either share the borders, have a strong complementarity in economy or a common interest in politics and security, or have the same or similar traditions in history, culture and religion. All these factors can contribute to the consensus on the agendasetting, negotiating and concluding the regional agreement. It is because of those factors that some great powers have laid down provisions in the RTAs for some tricky issues (like environment protection, liberalization on investment, competition policy and labor standard) which they cannot reach consensus in the multilateral trade negotiations. It further clarifies why the EU has always been a keen player for RTAs while the US has a strong interest to catch up with the EU and even go beyond. 13 Such difficulties mainly include:(1) the links between any CRTA consistency judgement and the dispute settlement process; (2) the interpretation of the WTO provisions relating to RTAs;(3) the absence of WTO rules (e.g. on preferential rules of origin) contained in some existing RTAs. See World Trade Organization (2003), pp. 11–12. 14 A Brief issued by the US Congressional Budget Office, clearly stated that this situation was an important reason for US pursuit of FTAs. The Brief declared that, “One reason for the recent US pursuit of FTAs is that progress in multilateral trade negotiations has become more difficult. The increasingly large membership of the GATT/WTO over time means that more countries must reach agreement in each subsequent round of negotiations. The newer members are generally developing countries that their interests as being different from those of the US and other industrialized countries that were more dominant in the earlier rounds. In addition, one might expect countries to agree first (that is, in early negotiating rounds) to eliminate their least politically sensitive trade barriers, leaving the more sensitive ones for later rounds and consequently making those later rounds more difficult.” See United States Congressional Budget Office (2003), p. 7.

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25.3 Negative Impacts of RTAs on Doha Development Agenda The relationship between RTAs and the multilateral trading system and global trade liberalization has long been the critical issue for economics, international law study and international politics. Till now at least there is extensive consensus on the idea that the RTAs have both advantages and disadvantages for the trade liberalization. Therefore, on the Fourth Ministerial Conference in Doha, Ministers of WTO Members recognized that RTAs did play a crucial role for promoting trade liberalization and economic development but they need to coordinate the relationship between those RTAs and the multilateral trading system. Although the side effects of the RTAs on the multilateral trading system and the global trade liberalization were not clearly stated in the Doha Ministerial Declaration, but the expression in the Declaration emphasizing the coordination between the RTAs and the multilateral trading system undoubtedly implied their conflicts. Furthermore, the fact that the CRTA of the WTO, established in 1996, had been committed to coordinating the RTAs and multilateral trading system is another full evidence, in spite of difficulties and slow progress of the Committee’s work. As for a further and more specific issue, namely whether the advantages of the RTAs for multilateral trading system and promoting global trade liberalization outweigh their disadvantages or the opposite is true, has long been a controversial problem without a universal answer so far. Considering the strong momentum of the RTAs now and in the future, and the situation that the Doha Round has been in deadlock and its uncertain future, the author holds that the RTAs brought more disadvantages to the ongoing Doha Development Agenda. Such disadvantages could be analyzed in three aspects, namely, the negotiation process, the development issue and the implementation of the multilateral trade agreements.

25.3.1 Impacts on the Doha Round Negotiation Process The failure of the Cancún Conference is the first evidence of those effects of RTAs on the negotiating process of Doha Round. Notwithstanding, we should not completely attribute the failure of the Ministerial Conference to RTAs, the fact that many WTO Members, especially those great trade powers and union like the US and EU, which directly affect the negotiating process, were not fully prepared and were distracted by the RTAs was definitely a critical factor for the failure. Among all the five Ministerial Conferences since the founding of WTO, both the Seattle Conference and the Cancún Conference are labelled as failure. If we compare the similarities and differences of the reasons for those failures, you may find the evident effects of the RTAs on the latest Conference.

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It was universally recognized that the reason for Seattle Conference’s failure could be summarized both from the inside and outside. From the inside of the WTO, the main reason was the great discrepancy between the developed and developing members on critical issues (like agriculture, textile, anti-dumping, trade-related intellectual property, trade and environment, trade and investment, trade and competition, trade and social clauses, etc.). Furthermore, there was not a general consensus in Geneva before the Seattle Conference, so such consensus could not be possibly reached in very few days during the Seattle Conference. From the outside of the WTO, great pressure imposed by the strong objections of some non-governmental organizations in the US and some other countries against some items of agenda for the Millennium Round, including economic integration (over 100,000 representatives of NGOs protested on the street of the Seattle which delayed the proceeding of the conference) was an important reason. The reasons for Cancún Conference’s failure in September 2003 could be summarized from two aspects as well. One reason is that it is very difficult for the discrepancies between developed and developing members on some critical issues (like agricultural subsidy, cotton subsidy, non-agricultural market access, “Singapore Issues”) to be compromised and there was no general consensus before the conference either. The other reason is that before the Cancún Conference, developed members and some critical or larger developing members invested a lot of manpower and material resources on negotiating and concluding free trade agreement. Especially those members like the US, Japan, South Korea and China which played important roles respectively among the developed countries, the developing countries and in the WTO, started to become keen on establishing free trade area following the example of the EU, departing from their long-standing traditional policy to be loyal to the multilateral trading system. It can be clearly seen that the failure in reconciling the discrepancy between the developed and developing members in the multilateral trading system before and during the sessions contributed to the failure of both Seattle Conference and Cancún Conference. Such discrepancy would no doubt continue during the whole process of the operation of the WTO and global trade liberalization. Meanwhile, the fact that WTO Members turn their backs on the multilateral trading system and go with the RTAs is a new factor for the failure in the Cancún Conference. What’s more worrying is that there have been clear signs showing that after the Cancún Conference, some influential WTO Members declared they would put more expectation of trade liberalization on RTAs. For example, after the Cancún Conference, both the US and EU had claimed that they would be more focused on the bilateral and regional trade agreements. The US Trade Representative, R. Zoellick publicly criticized the multilateral trading system, and sent threatening message to WTO developing members that the US would move from the multilateral front to take bilateral and plurilateral measures to gain market access from the developing countries.15 Not long ago, a session in the United Nations Conference on Trade and Development has shown the similar worries: the failure of Cancún Conference 15 See

Action Aid International (2003), pp. 5–6.

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would weaken the commitment on multilateralism and leave room for protectionist and party interests. And it would also boost the vigorous pursuit for unilateralism, bilateralism and regionalism.16

25.3.2 Impacts on the Doha Development Agenda The threat on the future of Doha Round posed by the surge of RTAs would certainly shock the “development” agenda. Three years ago, the Ministerial Conference officially set the development agenda for the first round of multilateral trade negotiation of the WTO, which turned the disappointment of the developing countries towards the Uruguay Round and the newly found WTO into hope. And the international community applauded the so called “generous concessions” made by the developed countries on the negotiation agenda of the new round and felt gratified for that the WTO could positively deal with the development issues. However, such situation did not last long because the staggering Doha Development Agenda encountered the “ghost in the machine”, namely the RTAs. Indeed, the RTAs based on the free will among developing countries do not have any harm but maybe some benefits. Nevertheless, for developing countries, those RTAs which are proposed and participated in by the developed countries, seem to do more harm than good. Firstly, because of the big gaps of strength between developing and developed countries in politics, military, economy, trade etc. and the limited number of parties in bilateral, plurilateral and regional trade agreements, the developed countries in the RTAs usually managed to achieve what they failed to gain in the multilateral trade agreement. Because the multilateral system had too many developing parties while with limited number of parties, it would be much easier when concluding RTAs to compromise because of dominance of developed parties. For example, in accordance with the Cotonou Agreement, now the EU is negotiating to establish the free trade area with 77 African, Caribbean and Pacific countries, which are all members of the Cotonou Agreement. Some materials have shown that the EU attempts to include the Singapore Issues (like trade and investment, trade and competition, social issues), which were rejected by the Cancún Conference, in negotiating the RTAs. Similarly, in the American Free Trade Agreement, and the US-Central America free trade agreement and bilateral free trade agreements with other countries, the US is also trying to persuade its partners to accept those provisions which were rejected in the Cancún Conference, like issues on investment, government procurement and competition policy. Meanwhile, the US is trying to put stricter rules on intellectual property into those bilateral trade agreements, seemingly overlooking the agreement on accessibility of drugs reached in the Doha Conference, and avoiding to talking about issues like agricultural subsidies and domestic support which are the concerns of developing countries.17 In short, in a bilateral agreement, the stronger party could 16 United 17 See

Nations Conference on Trade and Development (2003). Oxfam (2003).

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always gain much more preferential conditions from its developing partner than in the multilateral trading system.18 Secondly, with the attempt to divide and rule their partners in agreements, the developed countries, by concluding RTAs with developing countries, has disintegrated the union of the developing countries to bargain for their interests in the multilateral trading system. As a good starting point, the developing countries, by establishing their own union in the multilateral trade negotiation, managed to enhance the level of participation as a whole, the ability to argue with the developed countries and the influence on some issues. The Group of 20 (G20), consisting of more than 20 developing countries, led by Brazil, China, India and South Africa, was the typical symbol of the new development.19 The G20 worked as a negotiation coalition on the agricultural issues in the Cancún Conference. Instead of working together to set or stop any agenda in the multilateral negations, the developing countries use the new coalition of the G20 to deal with the issues which had already been set in the multilateral trade negotiation. In the new coalition, the various parties though with different national interests on related issues, with the aim to enhance their negotiating power as a whole and strive for the best outcome, managed to work out a common stance in the negotiation, by seeking common ground while reserving differences. Because of the negotiating strength of the teamwork in the G20, the US and the EU found that, in the Cancún Conference and the following Doha Development Agenda, they have to bargain with an evenly matched negotiating team which consists of the developing countries with more than half of the world population. However, because of the pressure and temptation from the US, El Salvador withdrew from the G20 during the Cancún Conference. And several weeks after the Cancún Conference, another five Latin American countries, namely Colombia, Costa Rica, Ecuador, Guatemala and Peru, declared to withdraw from the G20. All these countries are seeking for negotiating the free trade agreements with the US.20 Thirdly, the developed countries or bloc of developed countries like the US and the EU, by diverting their focus, are likely to make the date when the Doha Round could come to close unpredictable, as well as prolong the Doha Development Agenda. It would be costly for developing countries, especially for those weak developing countries and least developed countries. For example, the core concerns of the developing 18 The Mainland China and Hong Kong or Macao Closer Economic Partnership Arrangements (CEPA) is definitely an exception. From the provisions of CEPA, one could easily see that it accords more favorable treatment to Hong Kong and Macao Special Administrative Regions, because it is an agreement between Mainland China and Hong Kong or Macao Special Administrative Region which are separate customs zones within one single country, in spite of the fact that they are all WTO members, the mainland is much stronger than Hong Kong and Macao, and such arrangement is actually a free trade agreement. 19 The G20 came into existence before the Cancún Conference. It consisted of Argentina, Bolivia, Brazil, Chile, China, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, India, Mexico, Pakistan, Paraguay, Peru, Philippines, South Africa, Thailand and Venezuela. During the Cancún Conference, Egypt, Nigeria and Indonesia joined in while El Salvador withdrew. Someone calls it bloc G21. 20 Hoekman and Newfarmer (2004), p. 9.

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countries in the Doha Round were the rules and practices of the developed countries on issues like anti-dumping, countervailing, agricultural export subsidies and domestic support, textile restrictions. They hoped to eliminate or reduce the export restrictions in those areas imposed on developing countries through the multilateral negotiations. Nevertheless, the talk on those issues in the multilateral negotiations come into a deadlock, while such issues even would not be mentioned in the negotiation of RTAs. Such situation obviously had departed from the development agenda further and had become more and more detrimental to developing countries. Although in those RTAs, the developing countries could still gain some preferential treatment on market access from developed countries, such market access was based on reciprocity and the product coverage and market was much smaller compared with the multilateral trade agreements based on the MFN treatment.

25.3.3 Impacts on the Multilateral Trading System The abnormal prosperity of the RTAs, not only pose a direct threat against the ongoing Doha Development Agenda, but also constitute a historical shock against the multilateral trading system, the matrix of the Doha Development Agenda. The MFN treatment is the most basic principle of the GATT/WTO. Its status as the cornerstone of the GATT/WTO has been repeatedly confirmed in the Dispute Settlement Body and the principle has become the essence of the jurisprudence of the WTO. Just take the example of the appellate reports of three cases in recent years. In the Canada-Certain Measures Affecting the Automotive Industry21 and the United States-Sect. 211 Omnibus Appropriations Act of 1998,22 the Appellate Body, using the same expression, emphasized that: “like the national treatment obligation, the obligation to provide the MFN treatment has long been one of the cornerstones of the world trading system, for more than fifty years, the obligation to provide the MFN treatment in article I of the GATT 1994 has been both central and essential to assuring the success of a global rule-based system for trade in goods.” Again, in a newly issued appellate report (on 7 April 2004), the Appellate Body pointed out that: “it is well settled that the MFN principle embodied in Article I (1) is a cornerstone of the GATT and one of the pillars of the WTO trading system.”23 However, the cornerstone of the MFN treatment now has been riddled with many holes by various bilateral, plurilateral and regional preferential trade agreements. More than fifty years ago, the RTAs could be called the exception to the MFN treatment considering its limited number. But now, since the quantity of RTAs will soon increase to more than 300, with a stronger momentum, it has gone far beyond the status as an exception and is becoming or is going to become a common way of global trade cooperation, at least keeping pace with multilateral trade cooperation system. 21 World

Trade Organization (2000), para. 69. Trade Organization (2002), para. 297. 23 World Trade Organization (2004), para. 101. 22 World

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Originally, the GPS was designed as an un-reciprocally preferential trading system, accorded by the developed countries to the developing countries or between the developing countries. It was an exceptional system of the MFN treatment with significant historical progress, and was an important part of the RTAs as well. However, the practice has proved that, in the implementation, the developed countries, from the perspective of their political and economic interests, often departed from the conditions of the GPS in the multilateral trading system, especially the requirements of being non-discriminatory and general, which were stated in the 1979 Enabling Clause. The European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, which just finished the appellate procedures, was the latest example. The complaining party of this case is India.24 The main issue at stake between India and the European Communities is that the latter accorded to 12 developing countries (mainly Latin American countries) tariff preferences on access to the European Communities single market, with the reason that those 12 beneficiary countries had encountered many difficulties during the fight against crimes like drug production and trafficking. India claimed that such regulation by the European Communities was inconsistent with Article I (1) of GATT 1994, namely the MFN treatment and the non-discrimination requirement of the 1979 Enabling Clause. According to the Indian argument, the developed countries shall obey the non-discrimination principle when granting preferential treatment to products originating in developing countries, which means that the developed countries shall not accord discriminatory treatment among the beneficiary countries enjoying the GPS. The panel report, which overall supported the Indian claim, decided that the differential treatments by the European Communities were inconsistent with the Article I of the GATT 1994 and were not justified by the 1979 Enabling Clause. According to the panel report, the beneficiary countries of such differential treatments should only be the 49 least-developed countries in the world.25 In the light of the Appellate Report issued on April 7, 2004, the Appellate Body reversed the panel’s legal interpretation of the term “nondiscriminatory basis” and the term “developing countries” in the paragraph 2(a) of the Enabling Clause,26 and modified the decision on allocating the burden of proof 24 India started the dispute settlement procedure on March 1, 2002 by submitting the request (WT/DS246); the panel issued the report on 1 December 2003; the European Communities appealed to the appellate body and the latter issued its report on 7 April 2004. Till this essay is finished, the appellate report has not been adopted by the dispute settlement body of WTO. 25 Swiss Institute for International Economics and Applied Economics Research (2004). 26 The panel report decided that, the term “non-discriminatory” in footnote 3[concerning the interpretation of the para. 2(a) of the Enabling Clause] requires that identical tariff preferences under the generalized tariff preferences (GPS) schemes be provided to all developing countries without differentiation, except for the implementation of a priori limitations (see para. 7.161 of the panel report of this case). The Panel also found that the term “developing countries” in the para. 2(a) of the Enabling Clause should be interpreted to mean all developing countries, with the exception that where developed countries are implementing a priori limitations, “developing countries” may mean less than all developing countries (see para. 7.174 of the panel report of this case). However, the Appellate Report concluded that the term “non-discriminatory” in footnote 3 does not prohibit developed-country member from granting different tariffs to products originating in

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in the panel report,27 and decided that it needed not rule on the Panel’s conclusion as to the inconsistency of the measure by the European Communities in the Drug Arrangements with Article I (1) of the GATT 1994.28 But the Appellate Body generally upheld the Panel’s findings as a whole: (1) the Enabling Clause operates as an exception to Article I (1) of the GATT 1994; (2) the Enabling Clause does not exclude the applicability of Article I (1) of the GATT 1994; (3) the European Communities failed to demonstrate that the challenged measure was justified under paragraph 2(a) of the Enabling Clause (in spite of that the Appellate Body provided different reason from that of the Panel).29 The case mentioned above shows that, when granting GPS in the RTAs, the developed countries usually posed “repeated erosion” or “second erosion” to the principle of MFN treatment. The reason why the author calls “repeated or second erosion” is because that the 1979 Enabling Clause has already confirmed the GPS as a new exception to the MFN treatment. The two erosions posed by the GPS share some similarities and differences. Those differences are: the 1979 Enabling Clause is a legislative erosion which is a legal one, just like the Article 24 of GATT 1994 which defines the formation of a customs union or of a free-trade area or the adoption of an interim agreement necessary for such formation as an exception to the MFN treatment. However, the erosion posed by the developed countries when granting the GPS is an erosion in the law enforcement and its legality depends on the decisions of the WTO Dispute Settlement Body based on the case-by-case analysis. According to the findings of the Appellate Body, at least there is one illegal point, that is, the preference-granting country accords differential tariff treatment to similarly-situated beneficiaries receiving the general tariff preferences. The similarity shared by the two erosions is that the nature and actual effect of the GPS constitute erosion on the different GPS beneficiaries, provided that such differential treatment meets the remaining conditions in the Enabling Clause. In granting such differential tariff treatment, however, preference-granting countries are required, by virtue of the term “non-discriminatory” to ensure that identical treatment is available to all similarly-situated GPS beneficiaries. (see para. 173 of the Appellate Report of the case.) The Appellate Report also concluded that, the term “developing countries” in paragraph 2(a) should not be read to mean all developing countries and accordingly, that paragraph 2(a) does not prohibit the preference-granting countries from according different tariff preferences to different sub-categories of GPS beneficiaries. (see para. 175 of the Appellate Report of the case.). 27 The panel decided that the burden of proof rests on the European Communities (the defending party). The Appellate Body concluded that, “it is a generally accepted canon of evidence in civil law, common law and, in fact most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defense.” (see para. 87of the Appellate Report of the case, see also Appellate Report, US-Wool Shirts and Blouses, p.14, DSR 1997: I, at 335). Hence the Appellate Body concluded that both the complaining and the defending parties bear the burden of proof. 28 The author presumed that, the Appellate Body here seems to consistently followed the principle of judicial restraint or judicial economy. Since it has concluded that the 1979 Enabling Clause does not exclude the applicability of Article I (1) of the GATT 1994 and the measure in question is inconsistent with the “non-discriminatory” condition in the 1979 Enabling Clause, then it has become obvious that the measure in question by the European Communities is also inconsistent with the MFN treatment in Article I (1) of the GATT 1994. 29 World Trade Organization (2004), para. 190.

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MFN treatment principle whether analyzed from the legislative exception or the law enforcement. Transparency is another basic principle of the multilateral trading system. However, both the conclusion and implementation of the RTAs are usually operated in “black box”. Still take the GPS as an example. The GPS is wholly operated by the importing developed countries so that they could unilaterally decide the beneficiary countries, product coverage and level of such differential treatment. The practice has fully shown that the developed countries or bloc of developed countries like the US and the EU, often impose various additional political, military and economic conditions and even threaten the beneficiary countries by withdrawing a particular GPS treatment. The developing countries, in order to gain or maintain the tariff preferences to their exporting products, have to swallow such unfair terms. It can be clearly seen that the non-transparent practices by the developed countries in the GPS often force the developing countries to swallow a bitter pill in silence. Nontransparency also exists in other RTAs. It could be presumed that with the increasing prosperity of the RTAs, the operation in the black box in the trade cooperation would spread quickly, so that to significantly dilute the actual effect and influence of the transparency principle in the multilateral trading system. To harmonize the rules of origin has always been what the multilateral trading system is working for, despite the heavy delay of the WTO efforts on such harmonization. However, the implementation of various RTAs has departed from such harmonization much further. As an inherent characteristic of the free trade area, the rules of origin is a basic means for the importing member to determine whether the product in question is qualified to be entitled with the preferential treatment and to stop trade diversion (which means a non-party of a free trade area exports its products from a party of a free trade area with lower tariff to a third country which is a party of a free trade area with higher tariff). Now, every RTA has its own rules of origin, with exception that the European Communities, the European free trade area, central European countries and Baltic countries have established harmonizing system across the Europe on the rules of origin. Accordingly, the amount of the types of the rules of origin in a country just equals to the number of RTAs that the country has joined. Furthermore, based on some research, generally speaking, the rules of origin in the preferential treatment are stricter than those in the non-preferential treatment, and the rules of origin on the textile products are stricter than those on other sectors of products.30 In that case, an exporter from one country, during the foreign trade exportation process, has to frequently adjust his or her products and related documents to meet the various requirements by different kinds of rules of origin. The increasingly diversified rules of origin have brought more disadvantages to the developing countries for their exportations mainly focus on agricultural and textile products and their much less capacities to adapt to complex variations of the rules of origin than the developed countries. In short, the increasing complexity of the rules of origin caused by the RTAs substantially increases the trade cost and significantly hinders the global trade liberalization, which is the basic task of the multilateral trading system. 30 See

Antoni and Suominen (2003). Quoted from World Trade Organization (2003), p. 10.

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25.4 Conclusion Above all, on this article’s topic, the author concludes as follows: Firstly, it should be paid great attention on the large amount and rapid increase of the RTAs after the Cancún Ministerial Conference. As the leader for RTAs, the EU managed to do more focusing on the level and scope of the RTAs, not satisfied with only the absolute advantage in amount. The US, being regarded as an activist on the multilateral trading agreement and remain rather negative towards the RTAs for a long time, has become more interested in RTAs recently and is accelerating to push forward its NAFTA model towards countries in East Asia, Mid-America, Latin America and Mid-Africa. East Asian Countries like China, Japan and South Korea once kept their distance from the RTAs, but now they have been making great efforts to extend the free trade area with the ASEAN countries following the growing trend of the RTAs. Secondly, reasons for this abnormal situation vary from the loophole of the past laws, to the recent considerations on factors like political security, diplomatic strategy and interests on trade and economy. Because of the complexity of RTAs’ creation and development, the efforts by the GATT/WTO trying to establish an appropriate reviewing and monitoring system to keep the RTAs’ positive effects on advancing trade liberalization and to restrict its side effects on the multilateral trading system have never been met. It seems that the RTAs, like a hot potato will long be together with the multilateral trading system. Thirdly, among various reasons for the failure of the Cancún Ministerial Conference, big WTO Members like the US, the EU and others distribute part of their staff to the RTAs negotiation is one of the main reasons. Especially worrying, the US and EU had announced that because of the failure of the Cancún Conference and various disagreements (on issues like agriculture, cotton, market access for non-agriculture, “Singapore Issues”) which cannot be solved, they decided to move to establish RTAs, in order to achieve the goals that they fail to achieve in the multilateral trading system. Several signs have shown that the hope for the negotiation on the development agenda has waned, even with the risks of being delayed indefinitely. Fourthly, although it is hard to have an affirmed answer on the question of RTAs’ positive or negative effects on the multilateral trading system and trade liberalization, its effects that it has imposed, is and is going to impose on the ongoing Doha Development Agenda, from the objective perspective, are mainly negative. The increase and expansion of RTAs’ popularity show that some distinctive WTO Members are losing confidence and patience, which will directly threaten the future of the first round of multilateral trade negotiation after the founding of the WTO and immensely harm the enthusiasm and hope of the developing members towards Doha Development Agenda. From a long perspective, the creation of the RTAs network spanning across different countries, regions and continents, equals to creating the discriminatory trade network in multiple areas around the world. It means that the legal status of RTAs as an exception and MFN as the fundamental principle in the multilateral trading

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system have become meaningful only in literal and theoretical sense, and in reality, the status has been inverted. Fifthly, confronting with the double challenges of multilateralism and bilateralism, China as the late comer for the multilateral trading system and RTAs, cannot only maintain our strength, wait and see. Instead, we should uphold the “walking on two legs” strategy, participate actively in and make full use of the bi-directional advancement model, and in accordance with the new changes of the RTAs and the multilateral trading system to adjust our strategy. On the one hand, China should establish its positive image of advancing the trade liberalization in the WTO and its multilateral negotiations, by fulfilling its international obligations actively, and high-quality and constructive participation and enhance the impression of standing together with developing countries, and foster the capacity for competing with developed countries. On the other hand, since the RTAs will be the future trend, and its legality in the trade legal system and order will not change, China should ensure the successful enforcement of the Framework Agreement on the Comprehensive Economic Cooperation with ASEAN countries, and the Mainland and Hong Kong or Macao Special Administrative Regions Closer Economic Partnership Arrangements. China should learn from all those practices and expand its field of vision, actively explore the feasibility to negotiate and conclude similar RTAs with countries from Asia-Pacific area and other areas of the world. Only in this way, could China be able to catch up with the trend that the globalism is on a par with regionalism, and achieve win-win on both development tracks.

References Action Aid International (2003) Beyond cancún: key issues facing the multilateral trading system. https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.wto.org% 2Fenglish%2Fforums_e%2Fngo_e%2Fpospap38_actionaid_e.doc. Accessed 21 April 2004 Antoni E, Suominen K (2003) Rules of origin: a world map. preliminary draft. http://ctrc.sice.oas. org/trc/Articles/Regionalism/Estevadeordal_Soumin2003.pdf. Accessed 17 March 2004 Hoekman B, Newfarmer R (2004) After cancún: continuation or collapse? world bank, Trade Note 13. http://documents.worldbank.org/curated/en/543871468139499387/pdf/320990TradeN ote13.pdf. Accessed 17 March 2004 Oxfam (2003) From cancún to miami. Oxfam briefing Note. https://www.oxfamamerica.org/exp lore/research-publications/from-Cancún-to-miami/. Accessed 17 March 2004 Sheng L (2003) China-ASEAN free trade area: origins, developments and strategic motivations. institute of South East Asia studies (ISEAS) Working paper: international politics & security issues, Series No. 1. https://www.bilaterals.org/?china-asean-free-trade-area. Accessed 24 April 2004 Swiss Institute for International Economics and Applied Economics Research (2004) Greater transparency in the world trading system. WTO News, No. 10, English Edition. https://www.alexan dria.unisg.ch/15575/2/wton10e.pdf. Accessed 24 April 2004 United Nations Conference on Trade and Development (2003) Review of developments and issues in the post-doha work program of particular concern to developing countries: the outcome of the fifth WTO ministerial conference (TD/B/50/L.7)

References

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United States Congressional Budget Office (2003) Economic and budget issue brief: the pros and cons of pursuing free trade agreements. https://www.cbo.gov/publication/14657. Accessed 24 April 2004 World Trade Organization (2000) Canada-certain measures affecting the automotive industry (WT/DS139/AB/R, WT/DS142/AB/R) World Trade Organization (2002) United States-Section 211 omnibus appropriations Act of 1998 (WT/DS176/AB/R) World Trade Organization (2003) The changing landscape of rtas. regional trade agreements section, Trade policies review division, WTO secretariat, prepared for the seminar on regional trade agreement and the WTO. https://view.officeapps.live.com/op/view.aspx?src=https%3A% 2F%2Fwww.wto.org%2Fenglish%2Ftratop_e%2Fregion_e%2Fsem_nov03_e%2Fboonekamp_ paper_e.doc. Accessed 24 April 2004 World Trade Organization (2004) European communities—conditions for the granting of tariff preferences to developing countries (WT/DS246/AB/R)

Chapter 26

Features of China’s RTAs: Definition, Classification and Implication

26.1 Introduction The practice of modern Regional Trade Agreements (RTAs), originated in 1834, that is, the German Customs Union (Zollverein),1 is over a hundred year earlier than the formation of the multilateral trading system, that is, the former GATT and its successor the WTO. It is natural that there had been not any problem as to the interactions between these two international legal forms of free trade in different geographic scales. Since the GATT 1947 for the first time providing the special legal status of the RTAs within the multilateral trade system, that is, as exceptions to its fundamental principle of MFN, the debates over the impacts of the RTAs on the GATT/WTO have never been ending, mostly between the “building block” advocators and the “stumbling block” scholars.2 However, after the setback of the Cancún Ministerial Conference and repeated delay for concluding the Doha Round, growing proliferation of the RTAs have been making more and more politicians, 1 It

was formed among the majority of the states of the German Confederation in 1834 during the Industrial Revolution to remove internal customs barriers, although upholding a protectionist tariff system with foreign trade partners. The Zollverein had been originally established by Prussia early in the nineteenth century. At first it included only the close neighbors of Prussia, but it gradually expanded to include most of the German states outside of Austria. The Zollverein was initially conceived by its Prussian architects as both a means to cement ties to the surrounding German states, and as a means to ensure the economic consonance of the non-contiguously holdings of the Hohenzollern family. The Zollverein, in retrospect, did much more than simply cement alliances between the various German states as its Prussian architects had intended—it set the groundwork for the unification of Germany under Prussian dominance, achieved less than five decades later, available at: https://en.wikipedia.org/wiki/Zollverein. Accessed 10 October 2008. 2 There have been very rich researches in this aspect and most recently, see Fink and Jansen (10–12 September 2007). 3 See Zeng (2004). The Article was originally written by Prof. Zeng in English. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_26

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observers and academics believe that such a tendency will do nothing positive but harm to the multilateral trade system.3 It is worth noting that the dilemma of the Doha Round and the speedy flourishing of RTAs have been urging some WTO Members who had shown little interest in forming the RTAs before to stir their enthusiasm in negotiating the RTAs with their trade partners. China and Korea might well be described as two examples in this aspect. In strict legal sense, China had not concluded any RTAs with others countries before the twenty-first century. After its accession to the WTO, it immediately commenced the implementation of its “two tracks” strategy,4 e.g., making advantages of both the WTO and RTAs to expand its foreign trade and thus promote its sustained economic development. China has already notified nine RTAs to the WTO, has signed another RTA with New Zealand (though not yet notifying the WTO required) and is negotiating on seven other RTAs or is prepared to negotiate on at least another seven RTAs with its trade partners. Besides, China has also initiated or participated in a number of other regional arrangements.5 Though China has practiced the RTAs very shortly, its new external actions in this regard have been attracting quickly and increasingly attention by other countries in Asian and pacific region and even the whole international society. Since the RTAs so far concluded by China have been showing much of varieties in context, titles, contracting parties and contents, each RTA must bear its own characteristics and implication in addition to the commonness shared by all. Therefore, this Article examines China’s practice of RTAs with clarification of this very concept as a start, then trying to identify them into several types so as to further indicate the Chinese features of the RTAs practice and even further exposing the various importance and significance implied in these RTAs for China in the perspective of trade interest, legal connotation and political strategy and other factors related. Finally, a short conclusion aims at summing up this author’s main observations on the subject matter.

26.1.1 Conceptual Definition of China’s RTAs: A Comparative Approach Conceptual definition of the RTA is the prerequisite of any further attempts to classify and even further to explore the implication of this very notion. Although the term has been widely used to describe the various practices and phenomena of the kind, there exists no international authoritative definition of the term.6 The legal documents of 4 The

Chinese strategy of carrying out Fats are officially put forward by Hu Jintao. See Hu (2008), Part V, Point 8. 5 Snyder (2009). 6 The term is most briefly and straightforward referred to agreements to remove barriers to trade between nations within a geographic region, available at: https://highered.mcgraw-hill.com/sites/ 0073530123/student_view0/chapter3/chapter_glossary.html. Accessed 12 October 2008.

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the GATT/WTO only define what to be included in this conception by listing some examples, namely: (1) Paragraphs 4–10 of Article XXIV of GATT (as clarified in the Understanding on the Interpretation of Article XXIV of the GATT 1994) providing for the formation and operation of customs unions and free-trade areas covering trade in goods; (2) the so-called Enabling Clause (i.e. the 1979 Decision on Differential and More Favorable Treatment, Reciprocity and Fuller Participation of Developing Countries) referring to preferential trade arrangements in trade in goods between developing country Members; (3) Article V of GATS governs the conclusion of RTAs in the area of trade in services, for both developed and developing countries; (4) other non-generalized preferential schemes, for example non-reciprocal preferential agreements involving developing and developed countries through a waiver from WTO rules by Members.7 Furthermore, even the notion of RTAs within the multilateral trade system itself has been in process of evolution in its past 60 years. If we do a general survey, it is not difficult to find the term RTAS has been almost exclusively used in two kinds of literature: one is the academic outcome of scholars, namely, their monographs, Article, papers, remarks and other forms of presentation; the other is the official outcomes both domestically, regionally or multilaterally, for instances, speeches, statements, declarations, reports and other forms of written documents or oral presentations by State or government agencies or their leader and officials as well as various intergovernmental organizations or NGOs and their related officers. In addition, if the survey goes further in this respect, the term RTAs had been rarely used before the birth of the WTO and thus has become popular only in the most recent 13 years. Since the absent of a uniform and consistent definition on the conception “RTAs”, different users may have different definition either embedded in their wording of express or bore in their minds in order to make their related statements precisely targeted. For example, the GATT/WTO undoubtedly uses the term RTAs strictly, if not exclusively, in the sense of trade in goods and services and their directly related fields or matter. However, its Members, other international organizations and scholars might not follow the same pattern. Apart from using the term RTAs in the sense of regulating trade relations, they may apply this notion in a broader context or beyond the trade areas, such as using it as the equivalence of the term “regional integration”.8 As for China’s practice of the RTAs in recent years and even in the future, this very conception may be better to be defined in both narrow (tight) and broad (loose) perspectives in order to have a whole picture view and comprehensive understanding of them. In the narrow sense, China’s RTAs only include those agreements and their related interim arrangements establishing the free trade areas (FTAs) between China and the other trade partners. The most recent three China’s FTAs with Chile, Pakistan and New Zealand certainly belong to this narrow sense of the RTAs, since either their titles or contents of those FTAs explicitly restrain the scope of free trade in goods and services. Some other RTAs in negotiations or desired to be negotiated will also 7 See

https://www.wto.org/english/tratop_e/region_e/regrul_e.htm. Accessed 12 October 2008. GATS Article V is entitled as “regional integration”, it is used in strict sense of trade in services.

8 Although

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join this narrow category. Compared to the conceptual RTAs within framework of the GATT/WTO, this narrow conception of Chin’s RTAs is even narrower because they, at least currently, do not include agreement on customs unions or their interim arrangements. On the other hand, they could be regarded as broader than the RTAs in the GATT/WTO conception for some of them include a specific chapter on investment, although one may argue that the RTAs in the GATT/WTO notion contains FTAs in services which are unavoidably concerning factors of investment. In the broad and loose sense, China’s conception of RTAs also includes those regional integration mechanisms set up by China and other related parties. Here, the notion regional integration is not the same as that indicated both by its title and provisions of the GATS Article 5 which means in essence the RTAs in services as mentioned above. China’s notion of regional integration is rather in general sense, namely, regional economic integration beyond trade and even beyond economic areas. The two Closer Economic Partnership Arrangements (CEPAs) between Mainland China and Hong Kong SAR and Macao SAR respectively are typical examples in this broad sense of the RTAs. Within the two CEPAs there are separate chapters and lengthy provisions concerning trade and investment facilitation, in addition of coverage of trade in goods and services (further analysis of the CEPAs as a special kind of the RTAs will be made in the following sections).9 The ASEAN-China FTA may also be inserted into this broad notion of the RTAs because of its ambitions and impacts both in trade and outside trade as well as within and beyond the region in which both all parties are involved.10 Besides, China’s conceptual RTAs might be even furtherer extending to include those regional mechanisms either initiated or participated by China, such as the Shanghai Cooperation Organization (SCO), ASEAN+1 (China) and ASEAN+3 (China, Japan and Korea) Dialogues, Asia-Pacific Economic Cooperation (APEC), etc. The conception of the RTAs with Chinese features could be clarified and justified further by way of classification (Sect. 26.3) and implication analysis (Sect. 26.4).

26.1.2 Classification of China’s RTAs: A Further Exploration Although the conceptual survey above already reflects to some extent the features of China’s RTAs in recent years, yet it is rather preliminary and only touches the surface of the subject matter. A subtle exploration of China’s RTAs with an approach of classification might help understand their characteristics in further wideness and depth. 9 For

official texts of the tow CEPAs, see https://www.tid.gov.hk/english/cepa/cepa_overview.html (with Hong Kong) and https://investmentpolicy.unctad.org/international-investment-agreements/tre aty-files/3109/download (with Macao). 10 For official texts of ASEAN-China FTA, see https://asean.org/?static_post=asean-china-freetrade-area-2.

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There seems to be an academic risk of such a classification simply for two interlinked reasons. Firstly, China’s practice of RTAs is less than ten years and only around ten RTAs (in strict and narrow conceptual sense) have been in force. Secondly, there are more than a dozen of China’s RTAs either in negotiations or with the feasibility of being negotiated. Therefore, one could not help doubt that it is pre-matured to make such an academic classification. However, this author would like not to think so mainly for three reasons as follows. Firstly, his author would classify China’s RTAs in the broad perspective and since China’s practice of those RTAs beyond the FTAs could be traced back in this way as early as 1990s at least, the accumulated number of China’s RTAs is much larger than that only its FTAs being calculated. Secondly, though the classification is to be conducted for China’s practice in this respect, the practice of RTAs by other countries and the global academic outcomes thereof have been very rich, on which the classification of China’s RTAs could be based. Thirdly, China’s RTAs have already taken their shapes or already formed their patterns or framework and those potential China’s RTAs will mostly, if not simply, follow up or just fill in the established models, of course, with some appropriate minor adjustments, if necessary. There are various methodologies which could be used to classify China’s RTAs, such as in terms of their titles, contents and objectives as well as the legal identities of their contracting parties and nature and extent of their mutual relations, etc. So, it makes little sense if the classification is made in accordance with only one or some of those parameters. As a result, different scholars interested in China RTAs may present different outcomes of their classification.11 However, this author would identify current China’s RTAs into four broad categories as follows:

26.1.3 RTAs Between China and Its Special Constituents In recent year, officials, observers and scholars in China, it seems to this author, have been trying to avoid mentioning the two CEPAs in the context of RTAs, at least together other RTAs. It is because RTAs are usually a kind of legal forms regulating transnational trade relations to which the two CEPAs definitely do not belong. That is why the two CEPAs were named so instead of being under the crown of FTAs which have long been popular globally.12 Nevertheless, there is no reason, in essence, not to regard the CEPAs as members of the RTAs family. 11 For instance, Francis Snyder, a well-known scholar in EU-China relations, recently concluded that “[T]he RTAs so far concluded by China fall into three broad categories: economic integration agreements, traditional regional trade agreements (RTAs) and bilateral free trade agreements (FTAs)”. See Snyder (2009). 12 In the original proposal made by Hong Kong SAR, the title of FTA was suggested to the Central Government of the Mainland China. Finally, the latter decided to use the newly-created CEPA in order to avoid unnecessary confusion between Mainland China relations with Hong Kong (including Macao and also Taiwan) and its relations with sovereign States and other entities with international legal personalities.

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First and foremost, there is no international law, either in form of treaties or international customs, providing that RTAs or more precisely FTAs could only be concluded between sovereign States, or non-sovereignties have no capacity and competence to conclude RTAs or FTAs with sovereignties and between themselves. As a matter of fact, since the mid-1970s, RTAs between the non-sovereignties and sovereign States have been no longer a kind of new practice since the birth of the first The Lomé Convention between the ACP countries and the EC together with its Member States.13 The key is not whether the specific agreement on the subject matter could be entitled as the FTA or the RTA, but whether the non-sovereignties concerned have legal personality or more precisely this kind of treaty-making competence in general international law or self-contained international law (such as the GATT/WTO law on this subject matter) as well as their domestic law concerned (such as Hong Kong Basic Law and Macao Basic law on this subject matter). The same is true for the creative term CEPA.14 Although the two Special Administrative Regions Hong Kong and Macao are not sovereign entities but constituents of China, they both enjoy full membership separate from that of China in the WTO and their Basic Laws explicitly authorize the two to have external competences with other countries and international organizations “in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, tourism, cultural and sports fields”.15 Secondly, the direct substantive determinant to identify the CEPAs as components of the RTAs is to see whether the objectives and clauses or contents are designed to establish the free trade areas between the contracting parties. The positive assessment could be easily made on this point by reading throughout the texts of the two CEPAs. The objectives contained in their very first Articles are adequately illustrative, stating

13 The Lomé Conventions (5 years for Lomé I, II, and III, and 10 for Lomé IV) set out the principles and objectives of the Union (at the time Community) cooperation with ACP countries. The primary content is the non-reciprocal preferences for most exports form ACP countries to EEC. One of the main amendments introduced in Lomé IV was the respect for human rights, democratic principles and the rule of law become essential elements of the Convention, which means that ACP countries that do not fulfill these criteria risk the retrieval of allocated funds. The Cotonou agreement (2000) between the European Union (EU) member states and the African, Caribbean and Pacific (ACP) states marks five generations of agreements between ACP-EC sovereign states. This special partnership is characterized by its non-reciprocal trade benefits for ACP states including unlimited entry to the EC market for 99% of industrial goods and many other products, especially for the Least Developed Countries (LDCs) which number 39 in the ACP grouping. In addition, aid packages for each ACP country and region are regularly updated, available at: https://ec.europa.eu/development/ geographical/cotonou/lomegen/lomeitoiv_en.cfm. Accessed 14 October 2008. 14 Recently, there have appeared some positive signals between Mainland China and Taiwan since the new leadership of the latter commenced. In such a positive context, Xiao Wanchang, the Vice President of Taiwan, talked to the media that the title CEPA is not unacceptable to be used for the potential agreement on free trade between Taiwan and Mainland China. Previously for a long time, Taiwan Administration including some scholars could not accept the CEPA model which they think would lower the personality of Taiwan. 15 The Basic Law of Hong Kong SAR, Chap. 7, esp. Article 151; The Basic Law of Macao SAR, Chap. 7, esp. Article 136.

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the they are to strengthen trade and investment cooperation and promote joint development by progressively reducing or eliminating tariffs and non-tariffs barriers on substantially all trade between Mainland China and Hong Kong and Macao respectively, progressively achieving liberalization of services trade through reduction or elimination of substantially all discriminatory measures and promoting trade and investment facilitation.16 Thirdly, the fact that the CEPAs are notified to the WTO as the RTAs could be regarded as a kind of procedural test.17 Though this notification is by no means exclusive for such a test of RTAs (because only WTO Members and only those RTAs within the GATT/WTO framework are required to do so, not including those beyond the conceptual scope of the GATT/WTO RTAs), it is certainly an authoritative resource for such justification of the CEPAs as RTAs since as mentioned above the parties of the CEPAs are all WTO Members and the objectives, principles and core contents are all consistent with rules of the WTO, precisely those related to the RTAs. However, it must be stressed that the two CEPAs are not RTAs in ordinary sense, but bear with their own particularity. Such a particularity lies in the dual legal status of Hong Kong and Macao both in international law, especially international economic law and the law of China. On the one hand, the two regions enjoy independent international personality separate from China in certain areas of external relations, as a result of which the treaty-making competence of the two are equivalent to that of China in these areas (such as CEPAs-making competence in this case), although such personality and competence either in terms of nature and scope are by no means on the same foot of China. On the other hand, Hong Kong and Macao are part of China, being defined as Special Administrative Regions not only by the Chinese domestic law (the two Basic Laws as mentioned above), but also by international law, such as the two Joint States Statements between China and the UK and Portugal respectively,18 WTO law and other treaties of which both China and respective Hong Kong and Macao are contracting parties. In a word, the unique dual legal status of Hong Kong and Macao are simply the manifestation of the creative basic principle of “One State, Two Systems” contained in the two Joint Statements and the further two Basic laws.

16 See

Mainland China-Hong Kong SAR CEPA, Article 1; Mainland China-Macao SAR CEPA, Article 1. 17 World Trade Organization (2007). 18 See Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, available at: https://english.gov.cn/2007-06/14/content_649468.htm; Joint declaration of the Government of the People’s Republic of China and The Government of the Republic of Portugal on the question of Macao, available at: https://bo.io.gov.mo/bo/i/88/23/dc/en/. Accessed 14 October 2008.

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26.1.4 RTAs Between China and the Regional Organizations According to the most recent observations made by Professor Snyder, ASEAN-China Framework Agreement, including its consequent related Agreement (ACFTA), is the “standard”19 and “the most ambitious”20 of China’s RTAs. The ACFTA could be justified as a sort of standard or traditional RTAs simply because it resembles all fundamentals of the existing RTAs, especially those brand ones, such as the EEA, EFTA, NAFTA, etc. the so-called standard RTAs not only set up free trade areas both in goods and services plus trade and investment facilities as their core contents, but also aim at establishing and strengthening integration or at least cooperation in broader economic and related social areas, such as agriculture, energy, science and technology, intellectual property rights, environment, etc. In the legal perspective, standard RTAs usually establish permanent mechanisms to continue the implementation, supervision, extension and deepening of the RTAs as well as dispute settlement mechanism with dynamic connection between diplomatic and legal methods or judicial or quasi-judicial methods. As time goes by, there are constantly subsequent agreements between the parties concerned to specify their rights and obligations in areas on matters covered by the primary RTAs, such as tariff concessions, schedules of undertakings in services, rules of origins, safeguards, dispute settlement mechanism, etc. Furthermore, some standard RTAs have even accumulated their own case law or judicial jurisprudence (typical examples are EU, NAFTA and EEA). The ACFTA is called as “the most ambitious” of China’s RTAs on the basis of several most ambitious points therein. Firstly, it sets up the most ambitious objectives as follows21 : (a) Strengthen and enhance economic, trade and investment cooperation between the Parties; (b) Progressively liberalize and promote trade in goods and services as well as create a transparent, liberal and facilitate investment regime; (c) Explore new areas and develop appropriate measures for closer economic cooperation between the Parties; and (d) Facilitate the more effective integration of the newer ASEAN Member States and bridge the developing gaps between the Parties.

19 See

Snyder (2009), p. 15. Snyder (2009), p. 19. 21 Framework Agreement on Comprehensive Economic Co-operation Between ASEAN and the People’s Republic of China, Phnom Penh, 5 November 2002, Article 1, available at: https://www. aseansec.org/13196.htm. Accessed 19 October 2008. 20 See

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Secondly, the ACFTA aims at establishing the most ambitious FTA in sense of geographic coverage and market space.22 The ASEAN-China FTA includes 11 countries in the Southeast and the Far East regions with population of about 1.86 billion, covering total areas of about 1005 million square kilometers.23 It is even the most ambitious FTA globally at least in terms of its coverage of population or number of producers and consumers. Thirdly, the ACFTA is expected to produce the most ambitious economic and social outcomes in Asia and these impacts might even extend beyond the region in which the Parties locate. It is estimated that the ASEAN-China FTA “will create an economic region with 1.7 billion consumers, a regional G.D.P. of about US $2 trillion and total trade estimated at US $1.23 trillion”.24 In addition, Professor Snyder in the same paper identifies the ACFTA as a multilateral RTA in one place25 and resembling “a bundle of bilateral agreements” on another occasion,26 which seems to be mutually contradictory in views and worthy of further clarification. This author would rather classify the ACFTA as a kind of mixed agreement more or less similar to the practice of the EU mixed agreements.27 This view is formed based on the combining analysis of the titles, signatures and contents of the ACFTA. It is self-clear that the title indicates the ACFTA is a kind of bilateral RTA between China and the ASEAN. But the ACFTA was signed by the top leaders of its ten Member States or their governments, which seems to suggest it is an RTA between China and the ASEAN Member States instead of the ASEAN itself. However, arguably it could be still defined as an ASEAN-China RTA because of the dual powers and functions of the ten top leaders: on the one hand, they are undoubtedly the high or the highest representatives of their States both domestically and externally, on the other hand they are collectively the highest decision-makers of the ASEAN. Their joint signature of the ACFTA justifies their collective representation of the ASEAN to conclude this very agreement with China. In addition, the two stages of arrangements for the ASEAN-China FTA, that is, the FTA between China and the ASEAN 6 by 2010 and that between China and the ASEAN new Member States by 2015, are also a kind of joint undertakings under the name or in the framework of the ASEAN, which implies further that the ACFTA is a bilateral RTA between China and the ASEAN

22 The ASEAN-China FTA is to be accomplished with two major steps: the first being the FTA between China and ASEAN 6 Member States (Brunei Darussalam, Indonesia, Malaysia, the Philippines, Singapore and Thailand by 2010; the second being the FTA between China and the ASEAN 4 new Member States (Cambodia, Lao PDR, Myanmar and Vietnam) by 2015. 23 See https://www.aseansec.org/64.htm; https://www.gov.cn/test/2005-08/11/content_27116.htm. Accessed 17 October 2008. 24 AEAN-China Experts Group on Economic Cooperation (2001), point 11, p. 2. 25 Snyder (2009). 26 Snyder (2009), p. 24. 27 Since early 1970s, mixed agreements have become the major forms of treaties between the EU (mostly the EC) and the third States in areas where the EU and its Member States share the external competences and neither of each could sign agreements with the third parties.

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rather than that a multilateral RTA or “a bundle of bilateral RTAs” between China and ASEAN Member States. In addition, the FTAs between China and the Gulf Cooperation Council (the China-GCC FTA)28 and between China and Southern African Customs Union (the China-SACU FTA)29 being negotiated is similar to the ACFTA, thus belonging to this second category.

26.1.5 FTAs Between China and Other Sovereign States After its conclusion of the TWO CEPAs and its establishment of the FTA with the ASEAN, China signed another three FTAs respectively with Chile, Pakistan and New Zealand and has been negotiating FTAs with a number of other countries. Compare with the two categories discussed above, this third kind of China’s RTAs bears some differences as follows: Firstly, these RTAs are being negotiated and to be concluded between China and other parties individually who are neither constituents of China, nor regional organizations but sovereign entities processing inherently full external powers and capacities, including treating-making competences. Secondly, the other parties of these bilateral FTAs are not necessarily China’s neighboring countries, indicating that China has been extending its FTA strategy beyond the Asian regions. Thirdly, among those other parties are not only developing countries, but also developing countries with New Zealand30 as the very first, followed by Australia,31

28 Its six Member States are Saudia Arabia, Bahrain, Kuwait, Oman, Qatar and United Arab Emirates. On 6 July 2004, China and the GCC signed the Framework Agreement on Economic, Trade, Investment and Technological Cooperation and formally launched the negotiations of the China-GCC FTA, available at: https://news.xinhuanet.com/ziliao/2002-12/23/content_667453.htm. Accessed 7 October 2008. 29 Its five Member States are Botswana, Lesotho, Namibia, South Africa and Swaziland. On 28 June 2004, during the official visit in South Africa by the Chinese Vice-Chairman Zeng Qinhong at that time, the two Ministers of the Chinese Ministry of Commerce and the South African Ministry of Trade and Industry jointly declared the commencement of negotiations of the China-SACU FTA, available at: https://fta.mofcom.gov.cn/Article/ftatanpan/southafrica/200809/48_1.html.Acc essed 7 October 2008. 30 New Zealand China Free Trade Agreement, available at: https://chinafta.govt.nz/1-The-agreem ent/2-Text-of-the-agreement/index.php. Accessed 19 October 2008. 31 On 18 April 2005, Australia and China agreed to commence negotiations on a Free Trade Agreement (FTA) following consideration of the joint FTA Feasibility Study. The study was completed in March 2005. So far altogether 12 rounds of negotiations have been accomplished and the most recent one was held from 22 to 26 September 2008, available at: https://www.dfat.gov.au/geo/china/ fta/; https://www.dfat.gov.au/geo/china/fta/081003_subscriber_update.html. Accessed 19 October 2008.

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Norway,32 Iceland,33 Singapore34 and potentially by South Korea,35 and others of the sort, which is certainly of far-reaching significance to China, the other parties concerned as well as the regions connected and even the world in general (see the further discussion in the following section). Finally, these bilateral FTAs in general are more limited in scope and have little implication of further broader and deeper regional integration compare with the CEPAS (as part of the building of “Greater China”) and the ACFTA (as part of economic integration and security cooperation in the region), although the scope of some FTAs of this sort is even broader than the CEPAs and the ACFTA, currently China-Chile FTA being a typical example which in addition to classic FTA areas of trade in goods and services, investment and related facilitation, includes economic cooperation, research and technology, education, labor, social security, environmental cooperation, small and medium-sized enterprises, culture, intellectual property rights, mining industrial cooperation.36

32 On March 26, last year, the Chinese Premier and Norwegian Prime Minister reached a consensus on initiating the China-Norway FTA process. A Joint Feasibility Study on the FTA was then conducted by Chinese and Norwegian officials and experts. The formal negotiation commenced on 18 September 2008 in Oslo. See Speech by Assistant Minister QIU Hong at the launching ceremony of Sino-Norway FTA Negotiation, 18 September 2008 in Oslo, Norway, available at: https://no2. mofcom.gov.cn/aArticle/headnews/200810/20081005816620.html. Accessed 19 October 2008. 33 Iceland is the first European developed country who recognized China’s full market economy status and is the first European country negotiating FTA with China. From 11–12 April 2007, the first round of China-Iceland Free Trade Agreement Negotiation was held in Beijing. So far four rounds of negotiation have been conducted, available at: https://gjs2.mofcom.gov.cn/aArticle/workaffai rcenter/200704/20070404583328.html; https://is2.mofcom.gov.cn/aArticle/bilateralvisits/200805/ 20080505509208.html. Accessed 19 October 2008. 34 Singapore and China announced the launch of negotiations for a bilateral FTA at the 3rd Joint Council for Bilateral Cooperation Meeting in August 2006. Formal FTA negotiations commenced in October 2006 and there have been eight rounds of negotiations. On 4 September 2008, China’s Vice Premier Wang Qishan and Singapore’s Deputy Prime Minister Wong Kan Seng announced the successful conclusion of negotiations for the China-Singapore Free Trade Agreement (CSFTA). The CSFTA is the first comprehensive bilateral Free Trade Agreement concluded by China with an Asian country. Singapore and China hope to sign the CSFTA in October 2008, during Prime Minister Lee Hsien Loong’s visit to Beijing, in conjunction with the 7th Asia Europe Meeting (ASEM) Summit, available at: https://app.sprinter.gov.sg/data/pr/20080904996.htm. Accessed 19 October 2008. 35 In November 2004, presidents of the two countries jointly declared the co-studies of China-Korea FTA by civil societies. Beginning in 2007, both sides launched studies of feasibility of ChinaKorea FTA jointly by officials, industries and scholars from both countries and so far five rounds of talks have been accomplished, available at: https://fta.mofcom.gov.cn/Article/ftayanjiu/korea/200 810/184_1.html; https://fta.mofcom.gov.cn/Article/ftayanjiu/korea/200810/189_1.html. Accessed 7 October 2008. 36 See China-Chile FTA, Articles 194 and 105–113, also Snyder (2009), pp. 29, 31.

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26.1.6 Regional Integration and Mechanism Between China and Other Entities in Asia-Pacific Region If RTAs are defined in strict sense, that is, with the establishment of FTAs or realization of free trade in both goods and services as their primary objectives and core contents, there seems to be no further classification of China RTAs except for those categories presented above, at least no further necessity so far. If the RTAs could be understood in broad sense to which this author prefers, namely, with establishment of FTAs being not necessarily imperative, but instead economic cooperation being part of broad regional integration, there is still another type of China’s RTAs worthy of attention. China commenced this kind of RTAs much earlier than its practice of those RTAs in strict sense and there have been a number of them.37 As a kind of illustration, the following is the brief introduction only to some more influential ones: 1. Central Asia Regional Economic Cooperation (CAREC). The CAREC was set up in 1997 and its primary goal is to improve living standards and to reduce poverty in CAREC countries through more efficient and effective regional economic cooperation. So far it has focused on financing infrastructure projects and improving the region’s policy environment in the priority areas of transport, energy, trade policy and trade facilitation. Currently eight countries in the region are parties of the Program, namely, Afghanistan, Azerbaijan, China, Kazakhstan, Kyrgyz Republic, Mongolia, Tajikistan and Uzbekistan. In addition, invitations to participate are under consideration by Turkmenistan and Russian Federation.38 2. Shanghai Cooperation Organization (SCO). The SCO was created on the basis of the Shanghai Five, which came into being after signing in 1996–97 the agreements among Kazakhstan, Kyrgyzstan, China, Russia and Tajikistan on building military confidence and mutual reduction of military forces in border areas. In January 2001 Uzbekistan requested to join the Shanghai Five as a full member. The Five’s transformation into the SCO happened at a summit in Shanghai on 15 June 2001 when the heads of six countries signed the Declaration on SCO establishment and the Shanghai Convention on combating terrorism, separatism and extremism. The newborn Organization proclaimed “strengthening mutual trust, friendship and good-neighborly relations among the member countries; promoting their effective cooperation in politics, trade and economy, science and technology, culture, education, energy, transportation, ecology and other fields; making joint efforts to maintain and ensure peace, security and stability in the region, to establish a new, democratic, just and rational political and economic international order” as its goals.39 3. The Asia-Pacific Economic Cooperation (APEC). It was established in 1989 to further enhance economic growth and prosperity for the region and to strengthen the Asia-Pacific community. Since its inception, APEC has worked to reduce 37 See

Snyder (2009), pp. 16, 19. https://www.adb.org/carec/. Accessed 7 October 2008. 39 See https://www.sectsco.org/html/00035.html. Accessed 7 October 2008. 38 See

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tariffs and other trade barriers across the Asia-Pacific region, creating efficient domestic economies and dramatically increasing exports. Key to achieving APEC’s vision are what are referred to as the “Bogor Goals” of free and open trade and investment in the Asia-Pacific by 2010 for industrialized economies and 2020 for developing economies, adopted by Leaders at their 1994 meeting in Bogor, Indonesia. APEC also works to create an environment for the safe and efficient movement of goods, services and people across borders in the region through policy alignment and economic and technical cooperation. APEC is the only inter-governmental grouping in the world operating on the basis of non-binding commitments, open dialogue and equal respect for the views of all participants. Unlike the WTO or other multilateral trade bodies, APEC has no treaty obligations required of its participants. Decisions made within APEC are reached by consensus and commitments are undertaken on a voluntary basis. APEC has 21 members—referred to as “Member Economies”.40 4. The Strategic Framework for Action on Trade Facilitation and Investment in the Greater Mekong Sub-Region (GMS). It was launched in 1992. Recognizing the opportunities offered by geographical proximity, resource complementarities and the onset of peace, six countries along the Mekong River—Cambodia, China, Lao PDR, Myanmar, Thailand, and Viet Nam embarked on a program of sub-regional economic cooperation for mutual benefit. As the program enters its second decade, cooperation amongst the six countries in infrastructure development, trade, and investment, in tandem with national reform and market opening measures, has reaped considerable benefits, and the GMS is forging ahead strongly in creating a dynamic and vibrant economic space in central Southeast Asia. At the 11th GMS Ministerial Meeting in September 2002, the GMS countries adopted a 10-Year Strategic Framework, which was subsequently endorsed by the first GMS Summit held in November of the same year. The Framework articulated a shared vision for the GMS: economic growth, equity and prosperity for the sub-region over the long term. The Framework also identified five strategic thrusts in pursuit of the vision: (1) strengthen infrastructure linkages through a multi-sectoral approach; (2) facilitate cross-border trade and investment; (3) enhance private sector participation in development and improve its competitiveness; (4) develop human resources and skill competencies; and (5) protect the environment and promote sustainable use of the sub-region’s shared natural resources.41 5. The Tumen River Area Development Program (TADP) or Greater Tumen Initiative (GTI). It is a joint mechanism of the five member countries: China, the Democratic People’s Republic of Korea, Mongolia, the Republic of Korea and the Russian Federation. The GTI provides a unique multilateral forum for the 40 Namely, Australia; Brunei Darussalam; Canada; Chile; People’s Republic of China; Hong Kong, China; Indonesia; Japan; Republic of Korea; Malaysia; Mexico; New Zealand; Papua New Guinea; Peru; The Republic of the Philippines; The Russian Federation; Singapore; Chinese Taipei; Thailand; United States of America; Viet Nam, https://www.apec.org/apec/about_apec.html. Accessed 8 October 2008. 41 Trade Facilitation Working Group (2005), Sect. 26.1: Introduction.

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member countries to identify and implement regional initiatives that encourage economic growth, improve living standards and contribute to peace and stability in North-East Asia and the Greater Tumen Region. All GTI member countries share a common vision of achieving the Millennium Development Goals by 2015, working together to strengthen economic and technical cooperation and attain greater growth and sustainable development for the people and countries of North-East Asia and the Greater Tumen Region. It is supported by the United Nations Development Program (UNDP) and other donors. At the meeting of the 8th Consultative Commission held in China in September 2005, the member countries identified five key sectors, e.g. transportation, energy, tourism and investment with environment as a cross-cutting sector, as the future directions to generate greater value to Northeast Asia and the Greater Tumen Region in particular.42

26.2 Implication of China’s RTAs: An Even Further Analysis The framework and characteristics of China’s RTAs in recent years are already figured out by way of their conceptual analysis and classification above. But this description of China’s RTAs is still short of something and cannot be just stopped here. It is necessary and more substantially significant to explore the implications of China’s RTAs. Such implications mostly are not expressly and directly provided in those RTAs, but either implied in the wording of them or deduced from the contexts in which they are negotiated, concluded and implemented. Therefore, such implications could not be grasped only in one perspective, saying legal or political or social, but in mixed perspective. Furthermore, such implications could be targeted only to China, or also to the other parties of China’s RTAs individually or as a whole, or even to the region in which they are located, or even beyond the region. The following exploration is mostly focused on implications to China, but closely linked to other targets either individually or collectively. First and foremost, the fast proliferation of China’s RTAs in recent years signals the commencement of China’s new foreign trade and economic development strategy— the “dual tracks strategy”, that is, externally to promote its economic and social development by take a full use of both the multilateral trade system and RTAs as well. It is well-known that China had little interest in RTAs and had not signed a single RTA in strict sense before its accession to the WTO. There have been several incentives urging China to adjust its foreign trade and economic policy since the turning into twenty-first century. First, from the mid-1980s to the beginning of the 42 See

https://www.tumenprogramme.org/. Accessed 8 October 2008. See also Christopher W. Hughes (August 2000), Tumen River Area Development Programme: Frustrated Micro-regionalism as a Microcosm of Political Rivalries (CSGR Working Paper No. 57/00). Available at SSRN: https://ssrn.com/abstract=243558 or https://doi.org/10.2139/ssrn.10.2139/ssrn.243558. Accessed 8 October 2008.

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new Century, China had concentrated itself largely, if not solely, on the very target of resuming its seat in the GATT and then accessing to the WTO. Second, China’s trade partners had not seen the necessity to negotiate RTAs with China as they do now eight years ago although China’s fast economic growth and market potentiality are increasingly drawing the attention from other countries. Third, after its accession to the WTO, China soon realized that it cannot totally rely on this multilateral trade system because of its various obstacles and even setbacks in liberalization global trade. In recent years, the fast-increasing of RTAs by other WTO Members and little progress of current Doha Round stimulate China to seek for RTAs with its trade partners as another way out. Finally, China thinks it is over-costly to accept the obviously discriminatory treatment in the documents of its accession to the WTO (particularly the Transitional Product-specific Safeguard Mechanism and special antidumping/countervailing provisions) and finds that such a loss could be made up to some extent by signing RTAs with other WTO Members. Secondly, if China’s membership in the WTO is a primary milestone for international society to recognize the great success of China’s “Reform and Opening-up” policy for the past thirty years, the fast increasing number of China’s RTAs in recent year including more and more coming into being further implies the enhancement of belief by other countries or regions that China is a sustainable and accountable trade partner. Such sustainability and accountability does not only in trade and economic sense, referring to its sustained economic growth and great consuming and producing or importing and exporting potentiality, but also, even more important, in the perspective of its social stability and outstanding progress in areas of human rights, democracy, the rule of law and good governance, although there is a still long way to go and much to be desired in these aspects. Thirdly, the growing number of China’s RTAs implies that more and more WTO Members turn to recognize China as a full market economy. It is clear that 7 years ago when other WTO Members voted favoring China’s accession to this multilateral trade system, they by no means recognized China’s full market economy status, but rather a market economy in transition. And those special and discriminatory provisions against China in its Accession Protocol and Working Party Report mentioned above are typical justification of this presumption. Now it is definite to mean that those who signed the FTAs with China either in advance or simultaneously granted the latter’s full market economy status. Although those granters do not necessarily have to sign FTAs with China and quite a large number of granters so far have not signed done so, such granting is as a matter of fact the prerequisite required by China for any FTA negotiation with it. Of course, the recognition of China’s full market economy status by the other parties is scarcely explicitly or directly provided in the FTAs concerned, but rather by clauses declaring in more or less similar wording or in the same effect that both parties agreed not to apply in their trade relations as from the date of the signature of the FTAs those discriminatory provisions against China in its WTO accession documents, namely, Sections 15 and 16 of China WTO Accession Protocol and Paragraph 242 of the Working Party Report.43 43 For

instance, ASEAN-China Agreement on Goods, Article 14.

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Last but not the least, China’s ever more active engagement of RTAs is not only of far-reaching significance for strengthening its relations with the other parties of the RTAs, but also of strategic impacts on the regions related. So far as bilateral relations between the parties of China’s RTAs are concerned, these RTAs are a kind of indication of closer and wider trade and economic cooperation than their relations before and compared with China’s trade and economic relations with other trade partners who have not signed RTAs with China. And even more important, they may have potential spillover effects on their further integration in general or at least further closer cooperation in areas beyond trade and economic fields, such as the implication of “Greater China Circle” and even “peaceful unification of China in the two CEPAs, the implication of “good neighborhood” and elimination of “China threat” in the ACFTA, etc. As for the related regions, the strategic impacts of China’s RTAs can never be overemphasized. For example, the ACFTA undoubtedly is of great significance of security and power balance in the Southeast Asia for it soon after produced the flowing-out effect of China’s participation in the Southeast Asia Treaty of Amity and Cooperation with the follow-up by India, Japan, south Korea, North Korea and Russia, etc. Again, the FTA between China and Pakistan is of strategic importance of the two contracting parties for both of them are neighboring India and Central Asia in general.44 In regard to the China-Chile FTA and China-New Zealand FTA, since they are the very first agreements of this kind for China in the regions respectively and they are the very first agreement between China and non-neighboring countries, the latter even being the first for China with developed countries, their significance as a milestone beyond trade and economic fields and beyond the bilateral relations and even beyond the regions related is sufficiently self-proved.

26.3 Conclusion Although China has a long history of civilization, it had always been reluctant to accept new transnational notions which had been created and practiced by western civilizations in different eras since modern times. One may find various reasons of explanation. Internally, the long-rooted self-arrogance or long rest on its laurels and semi-feudal and semi-colonial experience since mid-nineteenth century; constant civil wars and the war combating Japanese invasion since early twentieth century; close-door policies and non-stopped political chaos after 1949, all are fundamental determinants of China’s ignorance of international conceptions such as international law, international organizations (although China was the one of the original Member States of the UN and contracting parties of the GATT), free trade areas, customs unions, regional integration, etc. Externally, the carving-up of spheres of influence by Western powers in China to designate their priorities or exclusive rights in modern

44 Snyder

(2009), p. 30.

26.3 Conclusion

491

times and their hostile and blockade to China after 1949 had prevented China to integrated itself to the world. The initiation of “Reform and Opening-up” policy 30 year ago marked the commencement of China’s gradual adaption to the economic globalization with its successful accession to the WTO as a milestone. China’s increasingly active practice of RTAs in most recent years signals the formation of its even more matured foreign trade and economic policy, the core of which is the “two tracks” strategy, namely, parallel utilization of multilateralism and regionalism. It is only seven years or so for China to taste the FTAs if RTAs are defined in such a narrow sense. However, its participation and even initiation of RTAs in broad sense could be traced as a little bit early as the mid-1990s. Though China’s practice of RTAs is very short in time, they have been growing fast with more than two dozen of them either in negotiations or being ready to be negotiated. Even from the current limited numbers of China’s RTAs, their categories and different features are already shaped, namely, CEPAs with its special administrative regions who enjoy separate memberships in the WTO, RTAs with regional organizations, FTAs with individual sovereign States and regional integration and mechanism with broader objectives. Various determinants could be deduced for the fast proliferation of China’s RTAs. Internally, great achievements in speedy and sustained economic growth, continuous expansion of domestic markets and ever-enhanced democracy, human rights, rule of law and good governance, as a result of “Reform and Opening-up” policy, are deemed to be the core factors. Externally, growing image of China as a responsible large trade partner, legitimate status of RTAs in the WTO, repeated delay of the accomplishment of Doha Round and rapid increase of RTAs by other WTO Members and discriminatory non-market economy treatment contained in China’s WTO accession documents, all are the major incentives either positively or negatively. The significance and implication of the fast growth of China’s RTAs cannot be overestimated for whatever perspectives. And such significance lies in not only potential trade and economic benefits brought by them to China and its other parties of RTAs concerned, but also far-reaching strategic implication in areas beyond trade and economic cooperation between the two parties. What is more, such implication could be presumed to flow over the relations between the parties of China’s RTAs and influence the interest of related regions in particular and even the economic globalization in general. On the whole, China’s RTAs are consistent with the WTO disciplines either in terms of their forms and contents. However, one cannot ensure that with the continuous proliferation of China’s RTAs and their implementation in wideness and depth there will be no disputes happened concerning specific provisions of these RTAs with respective WTO rules between China and other parties or between China and other WTO Members who are non-parties of China’s RTAs. As the WTO dispute settlement mechanism already indicated, such possibilities could hardly be avoided. Therefore, China and its other RTAs parties ought to keep these feasibilities in their minds.

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References AEAN-China Experts Group on Economic Cooperation (2001) Forging closer ASEAN-China economic relations in the twenty-first century. https://www.aseansec.org/asean.chi.pdf. Accessed 5 Oct 2008 Fink C, Jansen M (2007) Services provisions in regional trade agreements: stumbling or building blocks for multilateral liberalization? (First draft). Geneva, Switzerland. https://www.wto.org/ english/tratop_e/region_e/con_sep07_e/fink_jansen_e.pdf. Accessed 12 Oct 2008 Hu J (2007) Report at the 17th National Congress of the Communist Party of China. https://cpc. people.com.cn/GB/64093/67507/6429847.html. Accessed 12 Oct 2008 Snyder F (2009) China, regional trade agreements and WTO law. Journal of World Trade 43(1):1–57 Trade Facilitation Working Group (2005) Strategic framework for action on trade facilitation and investment in the greater Mekong sub-region (Agreed Draft). https://www.adb.org/documents/ events/mekong/proceedings/tfwg-strategic-framework.pdf. Accessed 7 Oct 2008 World Trade Organization (2007) Regional trade agreements notified to the GATT/WTO and in Force. https://www.wto.org/english/tratop_e/region_e/a_z_e.xls. Accessed 14 Oct 2008 Zeng L (2004) The most recent tendency of RTAs and its negative impacts on Doha development agenda. Cass Journal of Law 5:117–128

Chapter 27

Legal Status and Tendency of Regional Trading Arrangements in the WTO and Some Legal Issues in Establishing Free Trade Area Between the Mainland China, Hong Kong and Macao

27.1 Trends of RTAs With the process of China’s accession to the WTO and its official accession, some concepts such as “economic globalization”, “global trade liberalization” and “multilateral trading system” have been well understood in China. Economic globalization, as an objective development trend of today’s international community, has been recognized by the public at a certain level. Tactics and strategies therefore have been taken. By contrast, few people know the concepts and phenomena such as “regional trade agreement (RTA)”, “regional integration”, “regionalism”, “free trade area” and “customs union”, let alone conduct systematic research and take corresponding strategies. In fact, since the second half of the twentieth century, human society has entered two parallel development times: one is the era of Global Trade Liberalization marked by the establishment and improvement of the GATT/WTO multilateral trading system, and the other is the era of Regional Integration characterized by various types of RTAs.1 Modern regional trade agreement or regional integration originates from the Europe during the late 1940s to the early 1960s. For example, the Organization for European Economic Cooperation (OEEC) established in 1948 [later known as the Organization for Economic Cooperation and Development (OECD)], the Council for Mutual Economic Assistance established in 1949, the European Coal and Steel Community (ECSC) established in 1952, the European Economic Community (EEC) and the European Atomic Energy Community established in 1958, and the European Free Trade Association (EFTA) established in 1960. 1 Zeng

(2000).

The Article was originally written by Prof. Zeng in Chinese, and published in Journal of International Economic Law, 7, 2003, pp. 1–16. It was then translated by Assoc. Prof. Yannni Wu, proofread by Assoc. Prof. Yayun Chen, with the assistance of Ms. Qian Zhang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_27

493

494

27 Legal Status and Tendency of Regional Trading Arrangements …

In the following 20 years, various RTAs among developing countries in the Americas, Southeast Asia and Africa originated from integration organizations, such as the Latin American Free Trade Association established in 1960, the Central American Common Market (CACM) established in 1960, the Association of Southeast Asian Nations (ASEAN) established in 1967, the Andean Group established in 1969, the Caribbean Community established in 1973, the Economic Community of West African States (ECOWAS) established in 1975. Since the second half of the 1980s, regional integration agreements have entered a new development stage.2 On the one hand, the original regional integration agreements have been developing vertically and horizontally. For example, the number of countries participating in the European Community has gradually increased from the initial 6 to 9, 10, 12 and 15, and it is expected to reach 27 in the next 10 years; its integration process has developed from free trade area, customs union, common market to monetary union and political union. On the other hand, some new integration organizations or RTAs have been established in the North America and the Asia Pacific Region, such as the North American Free Trade Area (NAFTA) and the Asia-Pacific Economic Cooperation (APEC). In addition, some existing RTAs have formed new regional integration mechanisms, such as the European Economic Area (EEA) established by the European Community and the European Free Trade Association (EFTA) in the early 1990s. In recent years, countries in the Asia Pacific Region have shown unprecedented interest in establishing RTAs. For example, during the 1999 APEC Summit in Auckland, Singapore and New Zealand started negotiating the establishment of a bilateral free trade area, the US, Australia and Chile expressed their willingness to establish a “five-nation free trade area” together with New Zealand and Singapore, while South Korea was trying to hold bilateral free trade negotiations with Japan, Chile and Mexico respectively.3 It is particularly noteworthy that China has also begun to attach importance to RTAs, and has publicly started negotiations with the ASEAN, Hong Kong and Macao to establish a free trade area or closer trade relations. Looking at the RTAs around the world today, we can summarize the following main development trends: Firstly, the number of RTAs continues to grow. According to the statistics of the Committee on Regional Trade Agreements (CRTA) of the WTO on October 10, 2001, there are 239 regional trade agreement notifications to the GATT/WTO successively, among which 206 are notified according to Article XXIV of the GATT, 124 are still in force up to now, 18 are notified according to the “Enabling Clause” of the Tokyo Round, 15 are notified according to Article V (Regional Integration) of the GATS.4 Most of the RTAs were concluded in the past 10 years. Since the establishment of the WTO in 1995, the number of RTAs has increased rapidly. There are more than 100 RTAs notified to the WTO.

2 van

Dijick and Faber (1996), pp. 4–5. (2001). 4 World Trade Organization (2001). 3 Liu

27.1 Trends of RTAs

495

Secondly, more and more countries and regions participate in RTAs. Most countries on all continents around the world are members of regional integration organizations. On average, each country has participated in at least one RTA. According to the statistics of the WTO, nearly 60% of over 200 RTAs filed with the WTO are concluded among European countries, and about 15% of them are concluded among developing countries. Why is the RTA developed in Europe the earliest in time and the largest in number? On the one hand, the geographical proximity and similar economic and social system of such European countries pave the way for their close economic and trade cooperation. On the other hand, promoting economic and social development of all countries, maintaining peace and security in Europe, and enhancing Europe’s position in the international arena are the ultimate goals of establishing various regional integration organizations. Why are more and more countries and regions keen on RTAs? One of the important reasons is that although the GATT/WTO multilateral trading system has made remarkable achievements in reducing tariffs, removing and limiting non-tariff barriers over more than half a century, which plays an indispensable role in promoting global trade liberalization, the numerous members with their complex identities of the multilateral trading system make it impossible to establish close economic and trade cooperation, and the process of trade liberalization has to go slow and step by step. For this reason, the GATT/WTO allows its members to establish RTAs that are contrary to the Most-Favored-Nation (MFN) treatment, and all members seize the opportunity to exercise this right to establish free trade areas and customs unions, etc. for a closer economic and trade cooperation. Thirdly, the forms of regional integration based on RTAs vary from one to another, forming a low-to-high ladder system. Although the free trade area and the customs union are important parts of regional integration, there are other forms of regional integration, such as common market and monetary union. It is true that regardless of the form of regional integration, it is still based on the free trade area. Therefore, viewed from the integration degree, the free trade area is a regional agreement with the lowest integration degree, because the members of the free trade area only remove import/export tariffs and various non-tariff measures, while retain the autonomy of tariff and non-tariff measures in the trade relations with third countries. The free trade area is the most popular form of regional integration so far, because it has less restrictions on foreign trade rights of participating members and is easy to be accepted by countries and regions. The customs union goes even further. Countries participating in such a union not only remove tariff and non-tariff barriers for each other, but also establish a common tariff system for the import/export of third countries. The common market is a regional integration at a higher level established on the basis of the customs union. In this system, participating members also implement common policies in various economic and social fields. The monetary union is a regional integration at the highest level. In addition to the common economic and social policies, participating members must also implement a unified monetary policy until the issuance of a single currency and the establishment of a single central bank. At present, as the most typical representative of regional integration, the European Union (EU) incorporates free trade area, customs union, common market and monetary union.

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27 Legal Status and Tendency of Regional Trading Arrangements …

Fourthly, the scope of regional integration has rapidly expanded from a single product, sector and field in the past to a wider range of trade, economic and social fields. The earlier RTAs were limited to the field of trade in goods and mainly industrial consumer goods. With the emergence of the trade in services and its increasing importance in the national economic and social development, RTAs continue to expand to the field of trade in services. Moreover, some trade-related sectors, such as investment policy, competition policy, environmental protection, labor standards, are becoming new areas of regional integration development. The EEA and the NAFTA are outstanding examples in this regard.

27.2 Legal Status of RTAs in the WTO The RTAs among WTO Members are legal under the multilateral trading system, but they must meet the conditions of the relevant provisions of the WTO, and be subject to the review and supervision of the relevant bodies subordinate to the WTO. Among the WTO law, the core provisions regulating RTAs are Article XXIV of the GATT 1994 and the Understanding on the Interpretation of Article XXIV of the GATT 1994. In addition, the “Enabling Clause” of the 1979 Tokyo Round and the General Agreement for Trade in Services (GATS) concluded in the Uruguay Round specify the legal basis for specific RTAs and regional integration.

27.2.1 Article XXIV of the GATT 1994 and the Understanding on the Interpretation of Article XXIV of the GATT 1994 In 1994, the GATT allowed WTO Members to establish free trade areas, customs unions or transitional agreements thereof. However, free trade areas, customs unions or transitional agreements thereof must satisfy the following conditions: First, the purpose of establishing free trade areas and customs unions must be to promote closer economic integration among participating members, and to facilitate the trade liberalization among free trade areas or customs unions, rather than to add trade barriers among participating members and other WTO Members [Article XXIV (4)]. Second, the tariff rates or other trade regulations imposed on WTO Members outside the free trade area or the customs union shall not be higher or stricter than the corresponding tariffs and other trade regulations [Article XXIV (5)] before the establishment of such free trade area or customs union; if the tariff rates imposed on non-customs-union members are higher than the previous ones, then compensation shall be given [Article XXIV (6)].

27.2 Legal Status of RTAs in the WTO

497

Third, the tariffs or other restrictive trade regulations for trade in goods originated in free trade areas or customs unions shall be substantially eliminated [Article XXIV (8)]. Fourth, any WTO member that decides to establish a free trade area or customs union and the transitional agreement thereof shall notify the WTO of the same forthwith [Article XXIV (7)].

27.2.2 The “Enabling Clause” of the 1979 Tokyo Round At the end of the Tokyo Round, under the strong demand of developing countries, the Decision on Differential and More Favorable Treatment, Reciprocity, and Fuller Participation of Developing Countries was adopted. Because this Decision allows developed countries to grant differential and more favorable treatment to developing countries, and developing countries to establish RTAs which would otherwise violate Article I of the GATT, it is commonly referred to as the “Enabling Clause”. It is worth noting that, unlike Article XXIV of the GATT 1994, the “Enabling Clause” does not directly specify the form of RTAs such as free trade areas or customs unions. It can be seen that RTAs in any form can be established among developing countries and between developed and developing countries, such as the Generalized System of Preferences (GSP) implemented by developed countries for developing countries.

27.2.3 Article V of the GATS Just like the framework of the GATT 1994, the GATS concluded in the Uruguay Round on the one hand stipulates the MFN treatment (Article II), and on the other hand stipulates regional integration agreements as an exception to the MFN treatment in Article V. According to Article V of the GATS, WTO Members may conclude regional integration agreements in the field of trade in services, provided that the following conditions are satisfied: (1) The regional integration agreements in the field of trade in services must have substantial sectoral coverage. In other words, the service sectors involved in regional integration agreements should reach a certain quantity, trade volume and mode of delivery (certain flexibility available for developing countries). (2) There is no discrimination among members participating in the regional integration agreement of trade in services, which could be achieved by eliminating existing discriminatory measures and/or prohibiting new or more discriminatory measures (certain flexibility available for developing countries). (3) For WTO Members outside the regional integration agreement, compared with the application level before the agreement, the overall level of trade barriers of corresponding service sectors or sub-service sectors shall not be increased.

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27 Legal Status and Tendency of Regional Trading Arrangements …

(4) Service providers of other WTO Members shall be allowed to enjoy various benefits of regional integration, provided that they are engaged in substantive business operations in the territory of regional integration. (5) Any WTO member participating in regional integration agreements for trade in services shall promptly notify the Council for Trade in Services of such agreements, and report periodically to the Council on the implementation thereof. The Council for Trade in Services may, if it deems necessary, establish an expert group to review the report. In general, Article V of the GATS are basically consistent with Article XXIV of the GATT 1994. However, Article V of the GATS uses the concept of “regional integration” rather than “free trade area” or “customs union”. The reason is that tariff and non-tariff measures to build trade barriers of goods have limited or even no effect on trade in services. It is difficult to include the concept of customs union into the field of trade in services.5 Moreover, although the regional integration of trade in services includes the liberalization thereof, this liberalization is limited to a certain extent and specific service sectors. Therefore, on the whole, Article V of the GATS on regional agreements for trade in services are more lenient compared with Article XXIV of the GATT 1994.6

27.2.4 WTO’s Supervision over RTAs All legal systems consist of general rules and exception rules. In the international legal system, the GATT/WTO probably has the largest number of exception rules, which can be called “the maze of exception clauses”.7 In the GATT/WTO system, in a broad sense, exception rules cover anti-dumping, anti-subsidy, balance-of-payments exception, infant industry, safeguard measures, duty exemption, general exception, security exception, regional trade agreement, etc.8 Compared with other exceptions, RTAs, as an exception of MFN, have different characteristics. First, RTAs are durable agreements, while other exceptions are only temporary. Second, the number of RTAs is not only large and keeps increasing, RTAs per se also have various WTO-members participants. It can be seen that the regional trade agreement has a profound influence on the GATT/WTO multilateral trading system. For this reason, it is necessary to establish a review and supervision mechanism for RTAs under the GATT/WTO system.

5 Geiger

and Kennedy (1996), p. 27. Quoted form Chen (1999). (2001). 7 Zeng (1996). 8 Chen (2002). 6 Park

27.2 Legal Status of RTAs in the WTO

499

The GATT 1947 did not specifically provide for the review and supervision of RTAs, although the Dispute Settlement Mechanism could play a role of review and supervision to a certain extent and within a certain range. In the GATT period, the supervision over RTAs was formed in practice. The basic approach is to establish an ad hoc working group to review RTAs (whether consistent with Article XXIV of the GATT or not) submitted to the GATT and then report them to the Council for adoption. For RTAs established among developing countries, the Committee on Trade and Development (CTD) shall preside over the review in accordance with Part IV of the GATT and the 1979 “Enabling Clause”. However, for want of specified legal basis for the GATT’s review over RTAs, the review formed in practice is temporary, and the review over RTAs in the GATT period forms a situation of “review but without decision”. Paragraphs 7–11 of the Understanding on the Interpretation of Article XXIV of GATT 1994 reached in the Uruguay Round systematically provide for the review over customs unions and free trade areas. Article V (7) of the GATS specifies the review procedures for regional integration agreements in the field of trade in services. Although the Uruguay Round provides a specified legal basis for the review over RTAs and improves the procedures thereof, the review over different types of regional agreements is still in a “Balkanized” status, with no unified review standards and procedures and no dedicated review bodies. This obviously does not adapt to the increasing number of various RTAs. After the establishment of the WTO, the General Council decided to establish the Committee on Regional Trade Agreements (CRTA) in February 1996 to review various RTAs. Since the establishment of the CRTA, it has held 30 sessions. At present, 110 RTAs are under review by the CRTA, 96 of which are submitted through the Council for Trade in Goods, 13 through the GATS and 1 through the CTD. As recognized by the CRTA, reviewing such a large number of RTAs is undoubtedly a heavy task for the CRTA. By the end of 2001, the CRTA have completed the substantive review of 69 RTAs, and the relevant draft review reports are in stages of consultation and decision-making. Although the CRTA has made some progress in informal, bilateral and multilateral consultations on the draft review report, there are still prominent differences among the members on the conclusions of the review, and so far, no final review report has been formed on any RTA. In July 2001, the Chairman of the CRTA reported to the General Council its current impasse, while the General Council urged the CRTA to continue its efforts with a view to making progress.9 It can be seen that although the WTO’s review over RTAs has been greatly strengthened in terms of procedures and reviewing bodies, it has not yet broken through the situation of “review but without decision”.

9 World

Trade Organization (2001).

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27.3 Some Legal Issues Related to the Establishment of FTA Between Mainland China, Taiwan, Hong Kong and Macao 27.3.1 The Legal Significance of Establishing the Free Trade Area At the Fifth Session of the Ninth National People’s Congress, held in March 2002, Premier Rongji Zhu highlighted eight aspects of China’s efforts made in 2002 in his Government Work Report. The fourth aspect is “to adapt to the new situation after China’s accession to the WTO and further deepen the opening up”. To this end, Premier Zhu pointed out that we should “carefully study, be fully aware of and exercise the rights that China enjoys as a WTO member, and actively promote and participate in regional economic cooperation”. To this end, in addition to continuing to actively participate in and promote the APEC, a unique regional economic cooperation mechanism,10 China is negotiating a framework agreement on the establishment of a free zone with 10 ASEAN countries. Some experts and media have predicted that once China and the ASEAN establish a free trade area, a unified market of 1.7 billion consumers will come into being, the size of which is larger than any other existing free trade area.11 Almost at the same time, Hong Kong SAR Chief Executive Tung Chee-hwa proposed establishing a free area between Hong Kong and Mainland China. To this end, the central government made a positive response and entrusted the Ministry of Foreign Trade and Economic Cooperation to be responsible for negotiating with the Hong Kong government on specific matters concerning the establishment of closer economic and trade relations between the two regions. It can be predicted that in the next few years, on the one hand, China will actively participate in activities under the WTO multilateral trading system; on the other hand, China will take more proactive measures to innovate the regional economic and trade cooperation. China’s active promotion of and participation in various regional economic cooperation, including free trade areas, are undoubtedly of great political and economic significance.12 Then, what is the legal significance? The author thinks that it is mainly manifested in the following two aspects: 10 The regional economic cooperation mechanism or framework is usually established when all parties have similar development level, similar political concepts or similar geographical location. APEC is obviously different. It covers a wide area and its members differ greatly from each other in politics, economy, development level, history, culture and tradition, which is incomparable to any other regional organization. Diversity is the largest distinction of APEC. See Tang and Shi (2001, October 16). Therefore, some scholars defined APEC as a kind of “open regionalism”. See Park (2001). 11 Reference News (2002). 12 For example, politically, it can help strength the status of China in Asian-Pacific Region and WTO Multilateral Trading System and enhance the good-neighborliness and friendship with other countries participating in regional economic cooperation; economically, it can help establish long-term

27.3 Some Legal Issues Related to the Establishment of FTA …

501

Firstly, the establishment of free trade areas is the embodiment of China’s full exercise of its rights as a WTO member. As mentioned above, although regional economic integration is contrary to the MFN established by the multilateral trading system, the WTO, following the practice of the GATT, has always recognized its lawfulness in the multilateral trading system. Although academic circles have been debating whether regional economic integration is “building blocks” or “stumbling blocks” of trade liberalization,13 most politicians in the world still recognize regionalism as a necessary supplement to the multilateral trading system in promoting trade liberalization. After all, it is an objective reality and development trend that the number of RTAs continues to increase. Therefore, if China only pays attention to participating in the WTO multilateral trading system but neglects to develop RTAs, it will not make full use of the exception rules allowed by the WTO to develop China’s foreign trade. Secondly, the establishment of free trade areas can, to a certain extent, resist the trade protectionism and selective safeguard measures taken by other countries against China’s exports. Although the multilateral trading system has been committed to eliminating and restricting all kinds of trade protectionism, due to the large number of members, the different economic and trade interests and development level of each member, the restriction on trade protectionism is very limited, especially for the unilateral measures of the economic and trade powers. In addition, the Agreement on Safeguards reached in the Uruguay Round stipulates that WTO Members should take safeguard measures on a non-discriminatory basis, that is, “regardless of the origin of products”; and the situation that must be dealt with is that the increase of imported products “causes or threatens to cause serious injury” to the relevant industries of the importing members. However, according to Article XVI of the Protocol on China’s Accession to the WTO, other WTO Members have set up a 12-year transitional product-specific safeguard mechanism against China, and the transitional safeguard measures set out in the Protocol establish that the sole condition under which safeguard measures can be taken against Chinese products is “market disruption” but not necessarily to the point of “cause or threaten to cause serious injury”. It can be seen that the transitional safeguard provisions in the Protocol on China’s Accession to the WTO are discriminatory. If China establishes a free trade area with some members of the WTO, it will not only eliminate trade protectionism from the legal system among the members of the free trade area, but also properly remedy the economic and trade losses caused by trade protectionism or discriminatory safeguard measures taken by other countries outside the free trade area against China to a certain extent. Because the free trade area provides a stable regional market with legal guarantee for Chinese products, it can reduce the dependence on the US and stable export market to avoid or minimize the export losses of China brought by trade protectionism, etc. 13 See Preusse (1994), p. 149.

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Europe markets to a certain extent. In this sense, it seems reasonable for foreign media to call China’s negotiation with the ten ASEAN countries to establish a free trade area as “China is establishing its own WTO”.14

27.3.2 The Legislative Issues of Establishing Free Trade Area Among Cross-Straits Four Regions of China As far as Mainland China is concerned, the domestic legal basis for establishing free trade areas with other countries or regions remains unsolved. The Foreign Trade Law of the People’s Republic of China (hereinafter referred to as the Foreign Trade Law) adopted by the National People’s Congress in 1994 is a basic law for the Chinese government to administer the foreign trade, maintain the order and promote the development of foreign trade. Although the provisions of the GATT 1947 and the practice thereof were referred to in the formulation of the Foreign Trade Law at that time, with the establishment of the WTO and the emergence of new situations after China’s accession to the WTO, modification and supplement to the Foreign Trade Law became necessary. In terms of the establishment of the free trade area among cross-straits four regions of China, the Foreign Trade Law should be improved in at least two aspects: first, principled provisions on the relevant matters concerning the establishment of and participation in free trade areas by China should be made clear; second, the legal standing of the separate customs territory should be properly established. With regard to the establishment of and participation in the free trade area, we suggest that the Foreign Trade Law be amended or supplemented as follows: First, the following provisions were added under Article 6 of the original Chap. 1 General Provisions: In terms of foreign trade, the People’s Republic of China grants preferential treatment to other contracting parties or participants in accordance with the free trade agreement or the closer trade relations agreement it has concluded or acceded to. Second, a chapter is added after the original Chap. 6 and titled as Chap. 7 Free Trade Area or Closer Trade Relations Agreement. Chapter 7 should provide for the definition, the purpose, the scope, the effectiveness and the dispute settlement of the free trade area and the closer trade relations agreement. With regard to the provisions on the legal standing of the separate customs territory, we suggest that the Foreign Trade Law be amended or supplemented as follows: The original Article 43 that “This Law shall not apply to the separate customs territory of the People’s Republic of China” is amended as follows: Unless otherwise specified in this Law, this Law shall not apply to the separate customs territory of the People’s Republic of China.

14 Sars

(2002). Quoted from Reference News (2002).

27.3 Some Legal Issues Related to the Establishment of FTA …

503

As a WTO member, the separate customs territory of the People’s Republic of China enjoys full autonomy in dealing with foreign trade relations and other matters within the multilateral trading system. The central government of the People’s Republic of China may establish free trade areas or closer trade relations with the separate customs territory.

27.3.3 The Issues Concerning the Name of the Free Trade Area Established in Cross-Straits Four Regions of China We have noted that the Chinese government has clearly adopted the concept of “free trade area” both under the APEC framework and in the consultation and negotiation with the ten ASEAN countries. With regard to the proposal by the Hong Kong SAR government to establish a free trade area, the central government made a positive response forthwith with some minor changes in the expression, calling it as “establishing closer trade relations”. In fact, such closer trade relations are a kind of free trade area relations. So why are the closer trade relations among cross-Straits four regions of China not directly expressed as a free trade are? The main concern is probably out of political considerations: Mainland China, Hong Kong, Macao and Taiwan are four separate customs territories under a single country, and the relations among them are of a domestic nature, while the current free trade areas in the world are generally established by countries; if China directly adopts the “free trade area”, it may cause the illusion that the four regions are not a single country, which may even be manipulated by Taiwan’s pro-independence forces. The author believes that the above considerations are prudent and reasonable, but it seems that it is not impossible to directly call the trade relations among Mainland China, Hong Kong, Macao and Taiwan as the free trade area. First of all, it is a fact that Hong Kong and Macao have returned to China. Secondly, although Taiwan has not been unified with Mainland China so far due to the complex reasons within the island and those from the international community; Taiwan as an integral part of China is not only a historical fact, but also widely recognized by the vast majority of countries in the world and intergovernmental international organizations such as the United Nations. Thirdly, if the Taiwan authority is willing to establish a free trade area with Mainland China to facilitate the long-term economic, trade and social development across the Straits, it must abandon the position of “Taiwan Independence” and accept the precondition of “One China”. Fourthly, although the existing free trade areas in the world are generally established by and among countries, neither the general international law nor the WTO law stipulates that free trade areas can only be established by and among sovereign states. Fifthly, if the absence of international precedent for the establishment of free trade areas among separate customs territories or regions in a single country constitutes an obstacle, then what about China’s implementation of the “One Country, Two Systems” and its special legal standing of “One Country,

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Four Seats” in the WTO. Therefore, it can be asserted that the establishment of the free trade area among cross-Straits four regions of China is not only in line with the WTO law, but also is the concrete embodiment of “One Country, Two Systems” and “One Country, Four Seats” in the WTO.

27.3.4 The Dispute Settlement of the Free Trade Area Established in Cross-Straits Four Regions of China After the establishment of the free trade area among cross-Straits three or four regions of China, how to solve the trade disputes among them is an unavoidable and not-to-beavoided problem in the process of negotiating the establishment of the free trade area. In the absence of a free trade area, some scholars have roughly divided the economic and trade disputes among cross-Straits four regions into two categories: those within the WTO system and those outside the WTO system. They also advocate different solutions. Regarding the disputes within the WTO system, as Mainland China, Hong Kong, Macao and Taiwan are independent members of the WTO, their trade disputes are those among WTO Members, which can be solved but not necessarily through the dispute settlement mechanism of the WTO. Regarding the disputes outside the WTO system, as the four regions constitute one sovereign state, their economic and trade disputes fall under the domestic jurisdiction and should be settled through domestic means, such as bilateral consultation.15 The author thinks that FTA-related disputes among cross-Straits three or four regions of China will be a new type of trade disputes, the settlement of which can neither resort to the WTO dispute settlement mechanism, nor can it be simply handled as issues falling under the domestic jurisdiction; China should refer to the practice of existing free trade areas around the world and establish a dispute settlement mechanism suitable for such free trade area. First of all, the exclusive jurisdiction of its dispute settlement should be specified in the free trade agreement, that is, all matters related to the free trade agreement shall be subject to the dispute settlement procedures and methods stipulated in the agreement. Secondly, consultation should be determined as the preferable and basic method for FTA-related disputes settlement. Thirdly, arbitration can be considered as an alternative procedure and method for FTA-related disputes settlement, at least when it comes to legal issues such as the interpretation and application of the provisions of the agreement. Fourthly, the establishment of a free trade area management committee, which is composed of senior trade officials of all contracting parties, shall be considered. The management committee is not only responsible for the implementation of free trade agreements, but also for the final settlement of FTA-related disputes. Fifthly, setting specific time limits for various dispute settlement procedures shall be considered in order to ensure the timely and effective settlement of disputes. 15 Zeng

(2002).

27.4 Conclusion

505

27.4 Conclusion In conclusion, the author emphasizes the following general understanding: Firstly, the parallel development of regional integration and multilateral trading system in the twenty-first century is still the two basic interactive modes of trade liberalization. If China only participates in the multilateral trading system and does not actively promote and participate in regional economic cooperation, including RTAs, it will not fully exercise its legal rights as a WTO member, that is, to utilize the most important exception clause of the MFN, i.e. the RTA, to maximize the protection and development of its own economic and trade interests. Secondly, as long as a certain form of RTAs can bring greater national or regional interests to participating countries or customs territories, and such interests are more important than the differences in political system, values, economic development level, religious belief, culture and other aspects among them, and at the same time are difficult to be realized by a single country or customs territory and multilateral trading system, then Mainland China, Hong Kong, Macao and Taiwan should focus on such interests and actively explore and establish RTAs suitable for the development of all. Thirdly, only when China attaches importance to participating in the multilateral trading system and actively carrying out regional integration and cooperation can it fully benefits from both the multilateral trading system and the regional integration in the twenty-first century, and safeguard the three major markets (i.e. the domestic market, the global market and a certain number of special regional markets—free trade area markets) of China’s products and services from perspectives of policies, laws and mechanisms. Fourthly, although the existing free trade areas in the world are generally established by and among countries, the international law and the WTO law do not prohibit the establishment of free trade areas or closer trade relations similar to the former by and among separate customs territories or regions under a single sovereign state. The establishment of free trade area among cross-Straits three or four regions of China is an important measure to reflect “One Country, Two Systems” and “One Country, Four Seats” in the WTO. If we do not establish the free trade area, then the trade relations among the four regions are just like those of other WTO Members, the huge advantage brought by one country, common ancestry, tradition and language for the economy revitalization will be wasted, and moreover, the establishment of free trade area will undoubtedly contribute to the great reunification of the Chinese nation.

References Chen W (1999) The regulation and supervision of multilateral trading system on RTAs. Master Dissertation, Wuhan University, Wuhan Chen W (2002) Studies on WTO’s exceptions. Doctoral Dissertation, Wuhan University, Wuhan Geiger T, Kennedy D (eds) (1996) Regional trade blocs, multilateralism, and the GATT: complementary paths to free trade? Biddles, Yorkshire, p 27

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Liu C (2001) On the Japan-South Korea free trade area. J World Econ 11:61–68 Park S-H (2001) Regionalism and multilateral in the East Asian context. Academy of International Trade Law in Macao Preusse HG (1994) Regional Integration in the nineties——stimulation or threat to the multilateral trading system? J World Trade 28(4):147–164 Reference News (2002) China and ASEAN jointly build a free trade area. https://www.laoziliao. net/ckxx/2002-05-18-1#570131. Accessed 20 May 2002 Sars I (2002) China is establishing its own WTO. Nezavissimaia Gazeta. Quoted from Reference News (2002). China and ASEAN jointly build a free trade area. https://www.laoziliao.net/ckxx/ 2002-05-18-1#570131. Accessed 20 May 2002 Tang J, Shi G (2001) Actively participate in regional cooperation, accomplish APEC century grand meeting. People’s Daily. https://www.people.com.cn/GB/shizheng/19/20011016/582191. html. Accessed 15 May 2002 van Dijick P, Faber G (eds) (1996) Challenges to the new world trade organization. Kluwer Law International, Leiden World Trade Organization (2001) Report of the Committee on Regional Trade Agreements to the General Council. https://www.wto.org/english/tratop_e/region_e/region_e.htm#work. Accessed 15 May 2002 Zeng H (2002) On the “one country, four seats” practice in WTO. J Xiamen Univ (Philosophy & Social Science) 5:5–14 Zeng L (1996) The law of the world trade organization. Wuhan University Press, Wuhan Zeng L (2000) Impacts of regional integration on multilateral trading system: taking EC as an example. Wuhan Univ J (Philosophy & Social Science) 3:337–343

Chapter 28

Impacts of the Transatlantic Trade and Investment Partnership Under the New Tendency of Regional Trade Agreements

28.1 Recent Trend of RTAs The dispute on advantages and disadvantages of regional trade agreements has never stopped for a long term. Supporters hold that RTA is aimed at accelerating liberalization of global trade, it will take the lead in promoting goods flow, resources allocation in a specific area and even liberalization of service, which will speed up the development of States’ economy and society, improve the living standards in the free trade area and even provide foundation and accumulating experience for the goal of world’s trade liberalization of multilateral trade regime. However, those who deny these hold that RTAs are the obstacle for the liberalization of world’s trade as RTAs violate the MFN, transparency, predictability and other principles of multilateral trade regime, plus the effects of RTAs are trade diversion, not trade creation. However, the long-term theoretical controversies do not stop the constant and rapid development of RTAs. Recently, RTAs have presented new trends and characters in several aspects.1 Firstly, RTAs have been the core of most States’ commercial policies, the main part of which has turned from realization of multilateral trade goal to seek favorable trade arrangement. Some States pay equal attention to multilateral goal and regional goal while more States prefer regional goal. Especially considering the fact that some States which used to favor multilateral trade liberalization are becoming more and more positive in negotiating and concluding RTAs. All WTO Members, except Mongolia, have concluded RTAs nowadays. 1 Crawford

and Fiorentino (2005), pp. 1–2, 16.

The Article was originally written by Prof. Zeng in Chinese, and published in Wuhan University Journal (Philosophy & Social Science) (Wuhan Daxue Xuebao—Zhexue Shehui Kexue Ban), 68(2), 2015, pp. 59–67. It was then translated by Dr. Yang Fan, proofread by Dr. Zhang Jiao and Assoc. Prof. Chen Yayun.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_28

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Secondly, the content of RTAs come to be complicated. First of all, many new RTAs are not limited to liberalization of trade in goods, but also trade in service. Then, the scope of regulation has been much broader, it is beyond the scope of multilateral trade regime, and related to extensive economic policy and social policy, for example investment, energy, environment, labor standards, corporate social responsibility and others, some of these RTAs named itself partnership which has added political and strategic intentions to them. The newly on-going negotiation of Transatlantic Trade and Investment Partnership Agreement (TTIP) is a case in point. A research report issued by the International Centre for Trade and Sustainable Development indicates that it has become and is becoming an issue and content of some RTAs’ negotiations or preparations to deal with climate change and sustainable development strategy. Here are main characters of new generation trade agreements: inserting different kinds of obligation exemption clause into trade rules, otherwise these rules will restrict domestic or international measures aimed at coping with climate change; providing new cooperation mechanisms and methods, including technology transfer, for climate change; strengthen climate-friendly trade in goods and trade in service, such as utilizing trade and investment law to directly encourage the development clean energy.2 Thirdly, mutual preferential trade agreements between developed countries and developing countries have increased while non-equivalent preferential agreements have decreased. The EU and the US have stepped up the pace to conclude free trade areas or partnership agreements with African, Caribbean and Pacific Region Countries and Latin American Countries. These new agreements will gradually take place of old preferential trade agreements. Meanwhile, preferential trade agreements between developing countries, which are aimed at strengthening south-south cooperation, have constantly sprang up. Fourthly, besides preferential trade agreements between neighboring States, transregional preferential trade agreements have also been taking shape rapidly, which mean regional trade agreements have broken through traditional geographical range. Most of newly concluded or on-going negotiating free trade agreements are between trans-regional countries. All of these show that common trade benefits and strategic goals are the key factors rather than traditional geographical bond that determine the success of free trade area or regional integration as the development and convenience traffic and communication technology.

28.2 Incentives of TTIP Negotiations Leaders of the EU and US had reached consensus over establishing Trans-Atlantic Economic and Trade Partnership in 1995. Both sides were worried that this move would affect the function of new-born WTO and the Doha Round launched in 2001, so there was no further negotiation. In EU-US Summit held on 28 November 2011, 2 Markus

et al. (2013).

28.2 Incentives of TTIP Negotiations

509

leaders from both sides directed the Transatlantic Economy Council to establish a High-Level Working Group (HLWG) on Jobs and Growth. The Working Group is tasked to identify policies and measures to increase US-EU trade and investment to support mutually beneficial job creation, economic growth, and international competitiveness. This Working Group issued a final report on 11th February 2013, and came to a conclusion that a comprehensive agreement that addresses a broad range of bilateral trade and investment issues, including regulatory issues, and contributes to the development of global rules, would provide the most significant mutual benefit of the various options we have considered. Based on above suggestions given by HLWG, the US and EU launched the negotiation of TTIP on 8 July 2013. The whole negotiation plan was expected to finish in two years. This Agreement was considered as a giant aircraft carrier on the Atlantic created by the US and EU, the coming EU-US free trade area was regarded as economic version of NATO.3 Currently, the GDP of EU and US accounted half of world’s GDP, trade volume about thirty percent. This agreement will be the largest FTA in the world, it is expected to bring the EU and US 119 billion and 95 billion income respectively. It is foreseeable that the conclusion of this agreement will not only supply strong driving force for the trade, investment and economy of EU and US, but also produce far-reaching influence on China and global trade and economy pattern. There are profound political and economic reasons for the EU and US to conduct negotiation of partnership agreement. We will analysis these reasons from perspectives of the EU, US and WTO hereinafter. In terms of the EU, it has a long history and rich experience in realizing regional countries’ economic and social development, eventually regional peace and security, through regional economic integration. As early as 1870s, the first regional economic integration mode was established in the European Continent, which was the Zollverein. To revive economy and restore peace, the European countries established many regional integration organizations based on free trade areas and customs union after the World War II. Besides establishing European unified market, EU had also pushed forward to establishing comprehensive free trade area with neighboring countries, Mediterranean countries, overseas territories of EU Member States and other countries (some of them was established through association agreement). According to relevant statistics, the EU has concluded FTAs with more than 30 countries, partnership agreement with more than 70 African, Carib-bean and Pacific Region Countries so far. Currently, EU is undertaking FTA negotiations with ASEAN countries, Canada, Gulf Cooperation Council, Russia, Japan, South Common Market and the US. The EU has brought significant interests through its own integration construction and constant free trade area construction since half a century. In economy, EU has not only realized economic recovery rapidly after the World War II, but also sustainable development of economy and society. At the political level, EU has, on the one hand, consolidated common foreign and security policy and defense policy, on the other 3 Ni

(2013).

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hand, set a role of largest trade obligor and economy supporter in front if developing countries. From the US’ perspective, it has been the leader in global trade since Theodore Roosevelt Administration. Since the first free trade agreement concluded with Israel, it has concluded FTAs with Canada in 1988, Mexico in 1994, Jordan in 2001, Australia in 2004, Chile in 2004, Singapore in 2004, Bahrain in 2006, Morocco in 2006, Oman in 2006, Central America countries (Dominican Republic, Costa Rica, Ecuador, Guatemala, Honduras and Nicaragua in 2005, Panama in 2011), Columbia in 2011. Currently, the US is negotiating and preparing negotiating American countries’ free trade area (including all Western Hemisphere), US-Middle East free trade area (including most of Middle East countries), US-EU TTIP, US-Thailand free trade area, US-New Zealand free trade area, US-Indonesia free trade area, US-Kenya free trade area, US-Kuwait free trade area, US-Malaysia free trade area, US-Mauritius free trade area, US-Mozambique free trade area, US-United Arab Emirates free trade area, US-Southern African Customs Union free trade area (including South Africa, Botswana, Lesotho, Swaziland and Namibia), US-Ecuador free trade area, US-Qatar free trade area and US-Taiwan free trade area. The reasons of the US’ enthusiastic on signing free trade agreement with other countries and regional economic entity are obvious. In the first place, it could take this way to achieve the value and interest of bilateral trade liberalization. Especially considering obstacles and difficulties confronted by multilateral trade liberalization, it is at least a replacement and remedy of multilateral trade liberalization method through accumulation of lots of multiple bilateral free trade agreements. Then, the US could constantly preserve the traditional global markets of its goods and service for a long term by signing free trade agreements with other countries, in the meantime, these FTAs could also be used for developing new markets; vice versa, they could also guarantee raw materials for domestic production and goods for consumption. The last but not the least, in the political level, the US could use these FTAs to strengthen the relationship with its allies, consolidate security and stability in American continent, enhance its effects in Asia-Pacific area and Africa. The US and EU have separately established many free trade areas in the world, then why do these two giants launch the negotiation of transatlantic free trade area? Firstly, the direct reason is to get rid of the financial crisis. From 2008 to 2009, the US has experienced the most serious financial crisis and economic recession since 1930s. This crisis has brought serious influences on American economic power and global status. American economy appeared negative growth, its economic power was impaired and the unemployment rate was roughly twice that before the crisis. For the past few years, even if the US has undertaken massive financial support measures and stimulus measures, which indeed have stopped the economy from being worse, and with the help of strong development of China’s economy and other emerging market economies, the US economy have gradually recovered and begin to grow, it has not fully walk out of the dilemma.4 Under this situation, the US push forward

4 Zhang

(2010).

28.2 Incentives of TTIP Negotiations

511

the establishment of transatlantic free trade area and create a new platform for rapid growth of economy. The financial economy derived from the US has also shocked EU seriously. European bank system and financial system are the first to be affected. With the spread of the crisis, the EU’s real economy has also been affected on different levels. The sovereign debt crisis broke out as well after 2010. There had been slumping economy and even negative economy in EU and Eurozone for three years. The unemployment rate had kept in a high level for a long time, for example, it was 9.7% in 2010 and 2011 and then went up to 10.7% in 2012. This crisis had further aggravated the unbalanced development within the EU Member States. The aging tendency of population had accelerated and would undoubtedly increase the EU’s financial burden.5 Under this circumstance, besides making new economic development goal (Europe 2020 strategy), undertaking political system reform, strengthen financial regulation and deepening economic governance, EU should expand foreign trade development space, so it is a wise move for EU to launch the largest free trade area negotiation. Secondly, it is a long-term strategic goal to facilitate US and EU’s competitiveness with emerging economies (China, India and other countries). According to IMF’s statistics, the GDP of 27 Member States (now 28) of EU had decreased from 34.1% in 1980s to 25% in 2011. In terms of exporting, the number had decreased from 22.7 to 13.9%. The US was the same situation. To establish the Transatlantic Free trade area will probably reverse the declining trend. It could improve the admission condition to the other party’s market and consumers, reduce related fees and use them for expansion of economic scale, and at least slow down the decline of competitiveness.6 There was another important reason to negotiate the Transatlantic Free trade area with US for EU. The US has endeavored to establish the Trans-Pacific Partnership, which is TPP, in recent two years. The US is undertaking the Trans-Pacific Partnership Agreement negotiation with 11 Asia-Pacific countries. It is imaginable that trades and investments in this area will enter the US market under favorable terms once this Agreement is concluded, this will, beyond doubts, put EU in a disadvantage position. Consequently, it is imperative for EU to establish the Transatlantic Free trade area with the US. Thirdly, the standstill of the Doha Round is an important external cause. The WTO is consisted of three pillars, which respectively are supervising the enforcement of multilateral trade agreements and plurilateral trade agreements, providing a peculiar dispute settlement body, organizing and hosting multilateral trade negotiation. Since the founding of the WTO in 1995, the third pillar moves forward with difficulties while the first two work properly, it is this pillar that push forward the development of the trade system and promote birth of new rules and agreements. As Azevêdo, the newly elected WTO Director-general, pointed out: the multilateral trading system had experienced a difficult period. Multilateral trading system and the WTO had got into serious stagnation, and hadn’t found a way out. Considering the 2008 financial crisis the trade and global economy had just went through, there were still lots of 5 State

Council of China (2013). and Schmucker (2013).

6 Mildner

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uncertainties, the paralysis of multilateral trade was especially troubling.7 Under the circumstances, the EU and US, by open a new path, move their passion and intellectual resources from multilateral trading system to Transatlantic Free trade area.

28.3 Objectives of TTIP Negotiations According to the HLWG’s final report, there are mainly five aspects in the EU-US negotiation: first, canceling traditional barriers to trade in goods, for instance, tariff and tariff quota; second, canceling, reducing and preventing all kinds of barriers on trade in goods, trade in service and investment; third, strengthen the consistency of regulations and standards; fourth, canceling, reducing and preventing all kinds of unnecessary non-tariff behind border obstacles; fifth, reinforcing the development of regulations and rules on global problems of common concern, including cooperation for realization of shared global economic goals.8 The overall objective of TTIP negotiation could be analyzed from two levels, the inside and outside level.

28.3.1 The Built-In Objective of TTIP It’s undoubtable that the primary and direct goal of negotiation is to realize the freedom of trade and investment between EU and US, and promote the economic and social development through this way. To realize this goal, this negotiation focuses on these specific goals in the following key areas.

28.3.1.1

Zero-Tariff and Reduction of Peak Tariffs

The primary goal is to reduce all tariffs through a package deal if EU and US want to establish a transatlantic free trade area with no tariff barriers.9 A research shows that removing bilateral tariffs on the basis of concession will stimulate trade growth and promote the growth of economy and employment rate. As key members who have led the WTO, the US and EU’s industrial tariffs have been reduced to a very low level through many rounds negotiation, which is 5–7% (3–5% according to other statistics). In other words, the industrial tariff is not an obstacle of their bilateral trade. However, it is another story for agricultural product tariff. The agricultural product tariff between EU and US has maintained on a high level and even at a peak level 7 International

Centre for Trade and Sustainable Development (2013). Level Working Group on Jobs and Growth (2013). 9 Transatlantic Task Force on Trade and Investment (2012). 8 High

28.3 Objectives of TTIP Negotiations

513

as the agricultural product tariff hasn’t been brought into multilateral trading system until Uruguay Round. For example, in EU, the peak tariff especially reflected in agricultural products, which is 205%, in US, it is reflected in textile (42%), clothing (32%), leather and footwear (56%) and others. Besides that, chemical products, transportation equipment and medicines have also maintained at peak level for both sides. To reduce the peak tariff is an important point of negotiation. There are some other important reasons for listing tariff reduction as an important goal of TTIP negotiation.10 First, a large part of transatlantic trade is characterized by trade in goods between companies. Even a very low rate could restrain consumption and production. As the processing of EU and US companies rely largely on imports, such as chemicals and plastic products, the accumulation of low tariffs in the supply chain could also be a great trade barrier. Therefore, the tariff not only impact domestic consumption and products cost for further production, but also consists as a tax bearing of trade in goods between companies. As a matter of result, the tariff reduces the competitiveness of those companies who relies on processing of importing goods and then exporting the final products. For example, the Volvo has more than 40 component suppliers and most of them are European countries. The tariffs not only did not protect European component suppliers’ competitiveness, but on the contrary, increase their costs. Secondly, in terms of operation, elimination of tariffs is much easier in political compared with other trade forms. Tariff is one kind of tangible trade barriers; it is transparent and easy to eliminate or reduce. Moreover, elimination of tariffs through negotiation will be helpful for negotiation in other areas. Thirdly, the zero-tariff of Transatlantic Free trade area means great potential benefits to the EU and US economy. Considering the large scale and high degree of intracompany trade and intra-industry trade, the transatlantic economy will benefit a lot from the elimination of tariffs. According to a recent research, the elimination of tariff will bring about 0.3–0.5% dynamic GDP, nearly 5.8–8.6 billion dollars, to EU, and 1.0–1.3%, nearly 5.9–8.2 billion dollars, to the US these benefits are larger than that of any preferential trade agreements the EU and US could benefit from.11

28.3.1.2

Reduction of Non-tariff and Regulation Barriers

Reduction of non-tariff and regulation barriers, which are also called behind-border barriers, is undoubtedly the second key goal of TTIP negotiation. Non-tariff barrier has long been considered as one of main obstacles to trade liberalization, it has become the overriding obstacle since the zero-tariff is enforced. Here are the reasons: (1) most of non-tariff barriers are restriction measures for production, circulation of goods, establishment and management of companies which are implemented by importing countries and host countries; (2) there hundreds, even thousands of nontariff barriers; (3) there are many kinds of non-tariff barriers and new categories keep 10 High

Level Working Group on Jobs and Growth (2013), p. 20. and Bauer (2010).

11 Erison

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emerging; (4) non-tariff barriers are very flexible and the authorities have considerable discretion in practice; (5) most of non-tariff barriers lack transparency. Both theories and practices have shown that the elimination of non-tariff barriers will promote trade, develop the economy and expand the employment. Therefore, elimination of non-tariff barriers has been the important issue and target for discussion in many multilateral trade negotiations for nearly half a century. There has been studies asserting that, as for the Transatlantic Free trade area, the GDP of EU and US will increase by 0.7% and 0.3% respectively if the bilateral non-tariff barriers are reduced by 50%, it will bring 12.2 billion Euros to EU and 5.3 billion dollars to US.12 Compared to multilateral trade talk, it is much easier to eliminate discriminatory and unnecessary non-tariff barriers existed in specific departments in bilateral talks. Most of European and American public opinions are optimistic about the non-tariff barriers negotiation because it will bring common giant business interests. Consequently, some EU think-tanks suggest that commercial groups and other private stakeholders from different areas should be allowed to join in the negotiation process substantively to make the elimination of non-tariff barriers from different departments more specific and achieve better effects as they have direct and personal experiences of the negative effects on trade and investment resulted from different kinds of non-tariff barrier measures in their respective commercial activities. This is the so-called top-down negotiation motivated by the stakeholders. It should be noticed that it’s more sensitive and difficult for EU and US to eliminate, abolish and prevent all kinds of non-tariff barriers compared with elimination of tariff negotiation. This is because that many behind-border barriers are related to national industrial and social policies and even closely related to State’s culture, religion and tradition, which are of strong political sensitivity. Here are especially sensitive nontariff barriers in the TTIP talk: audio-visual department, foods standards (especially genetically modified food), government procurement, air transport and others.

28.3.1.3

Promoting the Liberalization in the EU-US Trade in Service is the Third Key Objective of the TTIP

On matter in global level or transatlantic level, the trade in service has been increasingly important in the whole trade and economic development. Currently, service account for 76.8% of American GDP, 73.1% of EU GDP. Compared with trade in goods, however, the degree of the opening of trade in service is still very low. Even though how much potential benefits the liberalization of transatlantic trade in service will bring is still uncertain, the characters of barriers with regards to trade in service are prominent, they mainly manifest as market regulations. Some research estimate that more than 20% of EU and US service are regulated by production market regulations, which has seriously hindered the international trade in service, moreover, it’s just one kind of restriction in international trade in service. In EU, the max restriction of service regulations is electric power department, followed by machinery 12 Wymenga

and Tamminen (2009).

28.3 Objectives of TTIP Negotiations

515

leasing, distribution, commercial services, transportation and warehousing, financial services. In the US, the level of restriction is lower than that of EU in whole, financial services, distribution, electronics, postal services and telecommunications are departments which are restricted comparatively higher. It provides both sides with larger space to eliminate regulation barriers to promote liberalization of trade in service as universally existed trade barriers and absence of competitiveness in EU and US service business. Some institutions suggest that negotiations to reduce barriers concerning trade in service should include all service delivery methods, the negotiation process should follow the “bottom-up” model for non-tariff barriers, allowing the stakeholders participate in the process. In view of the universality and particularity of the trade in service industry, the WTO way of regulation can be adopted: in the first place, negotiating and concluding a framework agreement on trade in service, like the GATS, applying to all service sectors; then negotiating specific agreement for specific service sector. However, specific trade in service commitment form should adopt negative listing way rather than positive listing way13 like the GATS. The advantages of negative listing are that it set an open market from the beginning and open to new emerging trade in service sectors and activities automatically unless explicitly set up some kind of barriers.14 In addition to the above three objectives, in terms of investment promotion and protection, intellectual property protection, competition policy, environmental protection, corporate social responsibility and other areas, negotiation and conclusion of an agreement or clause, including high standards, is also an extended goal of the TTIP negotiation.

28.3.2 Spillover Objectives of the TTIP In addition to the above objectives, there are more far-reaching strategic intentions in the TTIP negotiation, which are called spillover objectives. The EU and US could aggregate economic and political power and provide a test for setting up new standards in global trade, investment, competitiveness and other areas or set a new benchmark by establishing transatlantic free trade area. In fact, there have been many precedents for establishing new rules through regional or bilateral preferential trade agreements (such as preferential trade agreements, free trade agreements and customs union agreement). For example, the EU was the first to liberalize the service sector and, eventually, introduced this liberalization to the Uruguay Round of the 13 According to the positive list of commitments under the WTO General Agreement on Services Trade, Members will explicitly include all service sectors or activities that they undertake to provide market access and national treatment into schedules of commitments. Those not listed into the schedules are not open. The negative list is usually used in preferential trade agreements, and the parties promise to provide market access and national treatment to all other departments or activities except those clearly in the list of no market access or maintain discriminatory restrictive departments or activities. 14 High Level Working Group on Jobs and Growth (2013), p. 24.

516

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GATT. Thus, the extension of the transatlantic free trade area negotiations is aimed at exerting influence on the new rules made by the WTO trade negotiations. As noted above, the global economic crisis and the European debt crisis have had a huge negative impact on economies and foreign trade of the EU and US. Even that, the EU and US remain the two giants of the world economy and trade. The hard power and soft power accumulated over the long term in trade in goods, trade in services, technology and innovation, patents and trademarks, multinational enterprises and so on, plus the long-term political and military power, are enough to make the United States and the EU still plays a pivotal role in the formulation of policies and rules for global trade and investment. They hope to improve the current level of regulation or make new standards, and ultimately, transform them into WTO multilateral rules and institutions in the area of market access, investment environment, agricultural products trade, intellectual property protection, competition policies, environmental policies, labor standards, and even human rights protection and so on through the newly built platform of Transatlantic free trade area when the Doha Round is frustrated.

28.4 Impacts of the TTIP First, the Transatlantic free trade area, created by the TTIP, will bring about trade transfers to global trade larger than trade creation. It has long been debated over the effect resulted from regional trade agreement, trade creation or trade transfer, in the economic and trade field. The author thought that there are two preconditions for RTAS to create or promote trade, they were, firstly, multilateral trading system is in a leading position to promote global trade liberalization, and the free trade area established by the regional trade agreement is in the auxiliary and complementary position, this is because the principle of Most-Favored-Nation treatment established by the multilateral trading system is universal in the applicable objects, space and scope, secondly, The trade volumes subject to multilateral trade rules, is occupying absolute advantage of the total global trade volume, while the trade volumes regulated by regional trade rules is relatively small (even though the number is large). The United States and EU are the two largest economic and trade entities in the world. Establishing free trade areas with each other will undoubtedly promote the growth of trade between the two sides of the Atlantic, which in turn lead to investment and job growth and economic development. But this kind of growth will be bound to sacrifice trades of other countries outside this region to both sides of the Atlantic, this is because vast majority of third countries cannot enjoy the relative decrease of tariff and non-tariff barriers brought by the Transatlantic free trade area. Therefore, the TTIP’s impact on global trade is hardly a trade creation, the result was more likely a trade diversion, in which a large portion of the trade between the EU, or the US, and other States are shifted to trade within the Atlantic free trade area. Secondly, the TTIP will depreciate the actual effect of free trade areas established by the EU or US with other States or areas. As mentioned above, the EU and US

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have been concluding or have concluded bilateral free trade area agreements, beyond the Atlantic free trade area, with many States in Africa, the Caribbean, the Pacific, Latin America, Middle East, East Asia and Eastern Europe. However, these bilateral agreements are separately concluded with EU or US alone, they have no direct link to the Transatlantic free trade area, therefore the third State could only enjoy the favor from EU or US, not the other side. Turkey, for example, has established a free trade area (or even a customs union) with the EU, in the absence of such relations with the US, however, the preferential treatment enjoyed by EU products in the US market cannot be enjoyed by Turkey products. The situation of African, Caribbean and Pacific Group of States is the same as Turkey. In turn, Singapore, Australia, Bahrain and Central American countries have respectively concluded bilateral free trade agreements with the United States, but not with EU, therefore their products couldn’t enjoy preferential treatment as products of the US. In total, in the long run, the entry into force of the TTIP is bound to lead to the derogation of actual value of the bilateral free trade agreements concluded with only one side of the Atlantic, which will produce the result that TAFTA (Transatlantic Free Trade Area) swallows bilateral.15 Thirdly, the TTIP is bound to challenge the substantive requirements of the WTO on regional trade agreements. The core principle of multilateral trading system is the Most-Favored-Nation (MFN) treatment, while the TTIP is a regional trade agreement, which is inconsistent with the principle of MFN treatment by nature. Although article 24 of GATT and article 5 of GATS stipulate that regional trade agreements may be an exception to this core principle, but, clearly, at the same time, there are certain conditions. For example, the GATT article 24, paragraph 8, provides that the tariff removal within the free trade area and customs union shall cover “virtually all trade”, the external tariff shall not exceed the level before the conclusion of such agreement. Again, the Article 5 of GATS stipulate that the economic integration of the service sector should have “substantial sectoral coverage”. However, it is not yet clear whether negotiations of the TTIP will eventually include agricultural trade and agriculture-related services trade. In the European Union, subsidies and price controls are at the heart of the common agricultural policy, and opposition to the inclusion of agriculture in the trans-Atlantic free trade area remains high. The leader of Green Party in the Bundestag, for example, argues that agriculture shall be excluded from the Atlantic free trade area. On 23 May 2013, the European Parliament adopted a resolution called for the audiovisual sector to be excluded from trade talks. It is not hard to predict that if the transatlantic partnership agreement, in the end, does not include agriculture and audio-visual sectors, then the established free trade area is hardly in line with the WTO’s substantive requirements for regional trade agreement. It will add new challenges and tests to WTO’s review of RTA’s consistency with WTO. Fourthly, the TTIP will make the complex rules of origin more complex, thereby creating new barriers to trade. The origin of product is the key to preferential market access (tariff reduction), which is only enjoyed by the products produced by the 15 Langhammer

(2008).

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parties of the free trade agreement, the purpose of preferential treatment is to prevent non-parties from obtaining benefits from such preferential treatment. In terms of the rules of origin, in addition to making the rules of origin for general tariffs by countries or regions, each regional trade agreement has its own preferential rules of origin. There are at least 500 kinds of preferential rules of origin around the world. The “spaghetti bowl effect” of the rules of origin is particularly prejudicing small businesses, it will increase the cost of their export trade16 because they have to manufacture products and prepare different evidentiary materials for its origin according to different free trade area standards and requirements. Special preferential rules of origin for the Atlantic Free trade area must be negotiated in the TTIP, which undoubtedly adds new weight to the already existed various principles and regulations, and violates the purpose of trade liberalization. Fifth, the TTIP talks are bound to prolong the stalled Doha Round indefinitely. The international community, especially the broad developing countries have high hopes for the Doha Round, because it sets the agenda for development. The developing countries understand this as that Doha Round will focus on the development of developing countries and improving existing multilateral trade rules so that they can achieve more and more substantive preferential treatments. Developed countries have agreed to regard development as a focus of multilateral trade negotiations in exchange for support from developing countries for the “Singapore Issues” (investment, competition, environment, labor standards). Differences and different expectations between developed and developing countries on the understanding of Doha development issues, coupled with conflicts on agricultural subsidies between the EU and US and between developing countries, market access and regulatory barriers, have led to the Doha round stalled. In this situation, the attitudes of the EU and US to multilateral trade negotiations shifted from being positive to negative, bringing human and intellectual resources from multilateral trade negotiations to the transatlantic free trade area negotiations will undoubtedly affect the propulsion of Doha Round. It’s especially noteworthy that in addition to issues such as tariffs, non-tariff barriers and trade in services, negotiations on the TTIP have included some so-called “trade plus” discussions, such as “additional health and animal and plant quarantine standards” “additional trade technical barriers” and “Singapore Issues”, they will continue to lead multilateral trade negotiations to moving towards their own direction. However, this “roundabout” strategy may not work in the Doha Round since there is no solution to major differences between developing and developed countries. Thus, the TTIP has been used to put pressure on the Doha Round, it is likely to continue to delay the smooth completion of multilateral trade negotiations. Finally, the TTIP will definitely affect China’s trade and investment in both sides of the Atlantic. In recent years, affected by economic and financial crisis, China’s trade and investment with both the EU and US has shown a downward trend, although both remain or will continue to be China’s major export markets and investment destinations. As noted above, the establishment of the Atlantic free trade area will certainly bring about the effect of trade transfers, and in this case, the biggest victims 16 International

Centre for Trade and Sustainable Development (2013).

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of trade diversion will be China, because the top two of China’s foreign trade partners has always been the European Union and the United States in size and volume. The establishment of a transatlantic free trade area is bound to displace a significant portion of China’s exports to the EU or US. To be sure, China will be the one who suffer the most among third countries negatively influenced by the Transatlantic free trade area. This is because China has the biggest trade volume with Europe and America, then the most serious negative effect it has to suffer. A tall tree catches the wind, as people said. More notably, if China does not properly adjust or even change the current foreign trade development strategy and foreign cooperation method, it is difficult to make up or overcome the negative impact of the Transatlantic free trade area, this is because: first, China isn’t in the Transatlantic free trade area and cannot enjoy preferential treatment of trade and investment in the free trade area, this is because this kind of preferential treatment is exclusive, trade between free trade area countries and non-free trade area countries cannot automatically apply the Most-Favored-Nation principle of multilateral trading system; second, China has not entered into a free trade area agreement with the EU, thus unable to use the preferential trade arrangement between China and the EU to offset or at least reduce the negative impact of the transatlantic free trade area; third, China is not participating in negotiations on the Trans-Pacific Partnership (TPP), and have not negotiated free trade area agreement with the US and thus cannot use bilateral trade arrangements or a Trans-Pacific free trade area to offset the negative impact of the Transatlantic free trade area on China’s trade with the US.

28.5 Conclusion In recent years, the rapid development of regional trade agreements has not only been a sharp increase in quantity, but more importantly, it has more content and more extensive, the objectives are more diverse. In addition to eliminating and reducing tariffs and non-tariff barriers to achieve the core content of trade liberalization and traditional targets, it also extends to trade related fields, such as investment facilitation, environmental protection, competition policy, and social provisions. The rapid proliferation of regional trade agreements has various incentives, and the multilateral trading system allows them to be exceptions to the principle of MostFavored-Nation treatment, this provides the legal basis for the vigorous development of the regional trade agreement. Although the WTO established the review body of regional trade agreements, it has done nothing, which actually promote the proliferation of regional trade agreements unbridled. The stalled Doha Round has prompted the EU and US and other Member States to transfer the platform and focus on the conclusion of RTAs. In recent years, the economic crisis and financial crisis have forced Europe and the United States to build trade and investment partnerships to drive economic development, trade and job growth. The rise of emerging economies, such as China, India and Brazil, have compelled the beginning of the Transatlantic

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Free Trade Area negotiation, the United States and Europe wanted to borrow the TTIP to balance the impact and competitiveness of these new economies in the world. The conclusion of the Transatlantic Partnership Agreement can help the EU and US to get rid of the financial crisis and bring positive results to intra-regional trade promotion, employment growth and investment capital facilitation and social welfare. But in the long run, the negative effects cannot be ignored. Its effect is more of trade diversion rather than trade creation, it has added “spaghetti bowl” phenomenon to the regional trade agreement, which has eroded the Most-Favored-Nation treatment. It further complicates the already complicated preferential rules of origin, thus aggravating the cost of foreign trade of small and medium-sized enterprises. More importantly, it will prolong the Doha Round multilateral trade negotiations.

References Crawford J-A, Fiorentino RV (2005) The changing landscape of regional trade agreements. WTO Discussion Paper No. 8 Erison F, Bauer M (2010) A transatlantic zero agreement: estimating the gains from transatlantic free trade in goods. European Centre for International Political Economy. Occasional Paper, No. 4. https://ecipe.org/wp-content/uploads/2014/12/a-transatlantic-zero-agreement-estimatingthe-gains-from-transatlantic-free-trade-in-goods.pdf High Level Working Group on Jobs and Growth (2013) Final Report of the US-EU high level working group on jobs and growth. https://iipdigital.usembassy.gov/st/english/texttrans/2013/ 02/20130213142506.html International Centre for Trade and Sustainable Development (2013) Interview with Azevêdo. Bridge, 1. www.ictsd.org Langhammer RJ (2008) Why a market place must not discriminate: the case against a US-EU free trade agreement. Keil Working Papers, No. 1407 Markus G et al (2013) Climate change and sustainable energy measures in regional trade agreements (RTAs): an overview. ICTSD Program on Global Economic Policy and Institutions, Issue Paper, No. 3. https://www.ictsd.org/sites/default/files/downloads/2013/08/climate-change-andsustainable-energy-measures-in-regional-trade-agreements-rtas.pdf Mildner S-A, Schmucker C (2013) Trade agreement with side-effects? European Union and United States to Negotiate Transatlantic Trade and Investment Partnership. https://www.files.ethz.ch/isn/ 166748/2013C18_mdn_schmucker.pdf Ni Y (2013) The US and the EU Negotiate to Build the World’s Largest Trade Area, and the Economic NATO Reshapes the International Trade Pattern. Discussion papers of IGI (international studies) series of the institute of economics and economics. Chinese Academy of Social Sciences State Council of China (2013) The current situation and prospects of the EU Economy. https:// www.cet.com.cn/wzsy/gysd/857593.shtm Transatlantic Task Force on Trade and Investment (2012) A new era for transatlantic trade leadership. https://www.gmfus.org/publications/new-era-transatlantic-trade-leadership Wymenga P, Tamminen S (2009) Non-tariff measures in EU-US trade and investment: an economic analysis. https://trade.ec.Europa.eu/doclib/docs/2009/december/tra-doc_245623.pdf Zhang B (2010) The US Economy under the impact of the global financial crisis. https://www.ciis. org.cn/chinese/2010-05/07/content_3747318.htm

Chapter 29

Features of Cross-Border Economic Cooperation Zone and Its Legal Framework and Mechanism Construction

29.1 Parallel Development of Regional Economic Integration and Economic Globalization Along with the deepening of interdependence between States and regional cooperation, production elements of the international division of labor becomes increasingly meticulous. Economic and social development of a country or region can’t completely rely on its own human resources and material resources, instead, must use raw materials, technology, equipment, talent, intelligence achievement and management experience of other countries and regions. Nowadays, although the voice and action against economic globalization have never stopped, it is an irresistible trend that economic globalization continues to expand and deepen. In order to adapt to globalization, jointly respond to the challenges and problems in the process of globalization, and maximize the interests and minimize the disadvantages of all regions and countries in the world, various relevant multilateral mechanisms have been established and improved in the core areas of economic globalization, such as trade, investment, intellectual property, environment. The most representative ones are GATT/WTO, World Bank Group, International Monetary Fund, World Intellectual Property Organization, multilateral environmental conventions and organizations and so on. At the same time, the trend of regional economic integration is accompanied by economic globalization.1 Modern regional integration began in Europe.2 Free trade agreements (FTAs) or regional trade agreements (RTAs) are the most common forms 1 Zeng

and Chen (2000).

2 Generally speaking, the German customs union established in the middle of the nineteenth century

is the first regional integration model in modern times. The article was written by Zeng Yan and Prof. Zeng in Chinese, and published in Presentday Law Science, 10(5), 2012, pp. 12–17. It is then translated by Assoc. Prof. Yayun Chen, and proofread by Dr. Jiao Zhang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_29

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of law. Although regional integration organizations or mechanisms already exist on all continents, 60% are concentrated in Europe. Today, the European Union has the highest degree of integration, the widest scope and the greatest influence in the world. It integrates the major forms of regional economic integration, such as the free trade area, customs union, common market economy and monetary union.3 Since the 1990s, the number of regional trade agreements has grown rapidly. According to the latest WTO statistics, as of 15 January 2012, the WTO secretariat has received a total of 511 regional trade agreements submitted by WTO members (trade in goods and trade in services are separately counted), of which 319 have entered into force.4 Compared with the economic globalization organization or mechanism, the regional economic integration organization or mechanism has its own advantages. Within regional integration organizations, members are adjacent, political and social systems are similar, economic and social levels of development are similar, and they share the same or similar historical, cultural or religious traditions. Due to the limited number of members in the region, it is relatively easy for each other to build cooperation platforms or mechanisms of regional integration through agreements for the sake of their own and the whole regional economic and social development. Regional integration usually has distinct levels or degrees of differentiation according to the will of members and the basis and needs within the region, and often has an inherent gradual process from low to high, from small to large, from loose to compact.

29.2 Definition and Characteristics of Cross-Border Economic Zones Cross-border economic zones are a sub-regional economic cooperation model under the trend of regional economic integration. According to the definition of the Asian development bank, it refers to a well-defined, geographically adjacent transnational economic zone comprising three or more countries, which promotes export-oriented trade and investment by taking advantage of differences in factor endowments among member countries.5 Some scholars also define it as the form of economic cooperation between two or more neighboring countries or regions in order to promote the rational allocation of factors of production to complement each other.6 Its essence is that the flow of production factors tends to be liberalized within the geographical scope of the sub-region, thus bringing about the effective allocation of production factors and the corresponding improvement of production efficiency, which is mainly manifested 3 The

European Union was originally the European Community, which started from the free trade area, established the customs union in 1968, and the single market in 1992. It was renamed the European Union through the signing of the Maastricht treaty, and set the highest goal of the European economic and monetary union and the European political union. See Zeng (2007). 4 https://www.wto.org/english/tratop_e/region_e/region_e.htm. 5 Wang (2004). 6 Huang (1996).

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in the trade and investment liberalization within the geographical scope. At present, the sub-regional economic cooperation zones approved by the state council mainly include the Zhuhai-Macao cross-border industrial zone, the Zhuhai-Macao economic zone, the TuMen river economic cooperation zone, the LanCang river Mekong river cooperation zone and the pan-Beibu gulf economic cooperation zone. The first two are sub-regional economic cooperation zones under one country, two systems within the territory of China, while the rest are sub-regional economic cooperation zones of a cross-border nature. In recent years, international sub-regional economic cooperation has been particularly active in southeast Asia and central Asia. In addition to the above examples, more significant are the economic development zones established between Singapore, west Johor in Malaysia and the Riau islands in Indonesia. In recent years, some scholars have advocated the establishment of the Ru-rok sub-regional economic cooperation zone. The purpose is to strengthen the economic cooperation between ShanDong province and Japan and South Korea, and to build an economic growth and cooperation zone along the sea area consisting of the city cluster of ShanDong peninsula, the Kyushu island region of Japan and the western coastal zone of South Korea, which will make this region an efficient zone with high degree of openness, development vitality and strong market competitiveness.7 Although there is no unified model for cross-border sub-regional economic cooperation, the existing sub-regional cooperation in the world shows the following basic characteristics. First of all, it is a form of economic cooperation between neighboring countries, a cross-border cooperation which the geographical space for cooperation is limited to a specific cross-border area, rather than covers entire territories of the cooperation parties. The latter usually becomes free trade area, customs union, common market or economic and monetary union. It is also worth discussing that some scholars refer to the Closer Economic Arrangement (CEPs) signed between the central government of China and the two special administrative regions of Hong Kong and Macao and the Economic Cooperation Framework Agreement (ECFA) signed with Taiwan as subregional economic cooperation. To this, the author does not agree. This is because: although these cooperation frameworks established by the central government and Hong Kong, Macao and Taiwan are also in the economic and trade field, which overlap with the sub-regional economic cooperation model, they are an economic cooperation paradigm between the central government and special local administrative regions within a country, without transnational nature and factors. To be sure, this type of cooperation is rare in other parts of the world. It is a type of economic cooperation with Chinese characteristics, so to speak. Secondly, cross-border sub-regional economic cooperation is a model of crossborder economic cooperation reached between regions under the guidance of the central governments of neighboring countries. The main body of this cooperation model is not the neighboring country or its government, but the relevant local government. The neighboring local government is the subject or protagonist of such cooperation, and the relevant agreements shall be signed and implemented by the neighboring 7 Wang

(2004).

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local government. The jurisdiction of the administrative system of the sub-regional economic cooperation zone and the rights and obligations of natural persons and legal persons in the sub-regional economic cooperation zone in relation to economic activities shall be formulated by the laws and regulations or administrative measures of the neighboring local governments or by special cooperation documents. The main guiding role of the central governments of neighboring countries is as follows: (1) The political will to establish cross-border sub-regional economic cooperation is expressed through certain means (such as the framework agreement of the joint declaration memorandum of understanding, etc.) and corresponding decisions are made. (2) Formulate or adopt policies to encourage the establishment of sub-regional economic cooperation, especially relevant preferential policies. (3) Approve the application submitted by the local government for the establishment of sub-regional economic cooperation and grant the local government with necessary special powers. (4) Addressing issues that need to be addressed by the central government in the process of sub-regional cooperation. Thirdly, the scope and degree of cross-border sub-regional economic cooperation zones have certain flexibility. In terms of the scope of cooperation, trade and investment are generally regarded as the center of cooperation. In the field of trade, on the one hand, it promotes the enrichment and prosperity and even liberalization of trade in goods and services within the sub region. On the other hand, we should promote the development of trade between the sub-regional economic cooperation zones and the countries and regions outside the zones. The core is to establish a bonded area, where import and export processing, international trade, bonded storage and commodity display are exempted from taxation, tax exemption and bonded policies, and the operation mode outside the customs territory is implemented. There are currently 14 bonded areas in China, all of which are located in specific areas of different cities in China.8 It will undoubtedly be a kind of cross-border bonded area if the bonded area established in the envisaged China (Hekou)-Vietnam (Lao Cai), China (Mohan)-Lao (Bo Ten), China (Jiegao)-Myanmar (Mu Se) cross-border economic cooperation zones. Fourthly, some important sub-regional economic cooperation zones have received support from relevant international organizations. For example, the greater Mekong sub-region economic cooperation jointly established by China, Myanmar, Thailand, Cambodia, Vietnam and other six countries was established under the initiative and support of the Asian Development Bank. For another example, the China-Vietnam cross-border economic cooperation project is supported by the United Nations development program. The special support given by international organizations to crossborder economic cooperation zones is aimed at promoting the realization of the 8 Since

1992, the state council has successively approved the establishment of 14 free trade zones and one economic development zone enjoying the preferential policies of free trade zones, namely, Tianjin Port, Dalian, Zhangjiagang, Shenzhen, Sha Tau Kok, Shenzhen, Futian, Fuzhou, Haikou, Xiamen, Xiangyu, Guangzhou, Qingdao, Ningbo, Shantou, Shenzhen, Yantian Port, Zhuhai free trade zone and Hainan Yangpu economic development zone. https://zhidao.baidu.com/question/ 850339.

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UN millennium goals and contributing to the eradication of poverty and economic development in these areas.

29.3 Legal and Mechanism Construction of Cross-Border Economic Zones 29.3.1 Legal Construction of Cross-Border Economic Cooperation Zones Any cross-border economic cooperation zone must be established on the basis of law and its operation must be guaranteed by law. The legal framework of the crossborder economic cooperation zone should be composed of three levels: the intergovernmental agreement concluded by countries or regions establishing the zone, the laws and regulations formulated by the local governments establishing the zone, and the management measures of the cooperation zone itself. As far as cross-border economic cooperation zones are concerned, the laws at these three levels are in different layers. The agreements reached and signed by relevant countries or governments on specific sub-regional economic cooperation are of an international nature. It is in the top layer in the legal framework of the sub-regional economic cooperation zone. Laws and regulations related to the economic zone issued by relevant countries or governments shall be formulated according to this agreement and shall not conflict with it, otherwise, it shall bear the corresponding liability for breach of agreement. In general, such agreements are structured in such a way as to record the political will of the parties expressing their willingness to establish the economic zone, while at the same time committing themselves to a number of important and fundamental matters in the economic zone. These items mainly include: (1) the purpose and principles of establishing the economic cooperation zone of the sub-region; (2) geographical scope of the economic cooperation zone; (3) the legal status of the economic cooperation zone; (4) main contents of the activities of the economic cooperation zone; (5) the administrative body of the economic cooperation zone; (6) duration of interpretation, validity of the text, dispute settlement, etc., of the economic cooperation zone agreement. Laws and regulations related to the economic zone formulated by the local government where the cross-border economic cooperation zone is located belong to the median layer. Laws at this layer play a central role in the construction of crossborder economic cooperation zones and are directly related to the success or failure or effectiveness of relevant cross-border economic cooperation zones. Laws at this leyer usually specify the above-mentioned bilateral agreements and the policies and laws issued by the central governments of the two sides, and directly provide a set of preferential measures and management measures to encourage and promote the construction of cross-border economic cooperation zones. These measures and

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method mainly involves cross-border economic zones within their respective regions, the area of the management mechanism of import and export tariff reduction and or convenient customs clearance procedures, the establishment of the bonded warehouse, the establishment of a logistics center, the transportation convenience, or open, investment promotion measures, ecological and environmental protection, import and export, personnel and so on. The management measures of the cross-border economic cooperation zone belong to the lower layer in the legal framework of the cross-border economic cooperation zone. The legal measures at this layer are made according to the above-mentioned upper law and middle law and their own characteristics and needs. Although measures at this level is at the lowest layer, direct regulation of the specific operation of such areas is the code of practice for the operation of such areas. Therefore, under the premise of the authorization of upper and middle methods, the method at this level should strive to be detailed and specific, and the more operable it is, the better.

29.3.2 Institutional Guarantee of Cross-Border Economic Cooperation Zones Appropriate and sound mechanisms must be established to ensure the orderly operation of cross-border economic cooperation zones and the normal operation of activities. Such a mechanism could consist of the following three levels:

29.3.2.1

Mixed Committee

The agency’s full name is the mixed committee of cross-border economic cooperation zones. It shall be the highest decision-making body of the cross-border economic cooperation zone and shall be composed of senior representatives of the local governments of the parties to the cross-border economic cooperation zone. In general, the mixed committee shall adopt a co-chairmanship system, in which the highest-level representatives of the parties co-chair each session of the mixed committee, or a rotating system, in which the chief representatives of the parties take turns chairing the meetings of the mixed committee. No matter which system is adopted, it embodies the principle of equality of all parties. The mixed committee shall meet regularly once a year. Special meetings may be held when necessary on the proposal of either party and with the consent of the other party. The mixed committee, as the highest deliberative and decision-making body, may consider and decide on any major issues relating to cross-border economic cooperation zones, mainly including: (1) interpretation of the agreement on the establishment of cross-border economic cooperation zones; (2) any problems in the implementation of the cross-border economic cooperation zone agreement; (3) scope and expansion of cross-border economic cooperation zones;

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(4) settlement of disputes related to the implementation of the agreement on crossborder economic cooperation zones; (5) to examine the report on the activities of the economic cooperation zone and the work of the management committee of the crossborder economic cooperation zone. The topics to be discussed at each session shall be proposed by the co-chairmen or rotating chairmen, or by the proposal of one side with the consent of the other, or by the management committee of the cross-border economic cooperation zone. The decision of the mixed committee shall be made by consensus and shall be legally binding on all parties and the whole cross-border economic cooperation zone.

29.3.2.2

Management Committee

The management committee is the executive body of the agreement on cross-border economic cooperation zones and is directly and concretely responsible for the daily management of the zones. The management committee shall be composed of an equal number of personnel selected by each party. The chairman or director of the management committee shall be jointly held by both parties or in rotation held by each party. As the permanent administrative body of the economic cooperation zone, the management committee shall be established in the economic cooperation zone to facilitate timely understanding of the activities of the zone and to solve the specific problems in the operation of the zone. The management committee shall hold an exception once a week; When necessary, the chairman of the management committee may call a working meeting at any time. The decision of the management committee shall be adopted by consensus; Once adopted, the decision becomes binding throughout the economic cooperation zone. The main responsibilities of the management committee are as follows: (1) specific implementation of the provisions of the cross-border economic cooperation zone; (2) to implement in detail the resolutions adopted by the mixed committee and the matters entrusted to it; (3) to handle any specific matters within the jurisdiction of the administrative committee raised by natural persons and legal persons in the economic cooperation area; (4) import and export management of personnel in the economic cooperation zone; (5) regularly report to the mixed committee on the activities of the economic cooperation zone and the work of the management committee (monthly report or quarterly report shall be in written form, and annual report shall be in both written and oral form). According to the needs of the economic cooperation zone and its development, the Management Committee may set up several sub-committees, which are specifically responsible for specific management matters in a certain field or aspect, such as the warehouse and logistics center construction committee, the investment and financing committee, the energy, transportation and environment committee of the customs tariff and customs clearance facilitation committee, and so on.

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29.3.2.3

Dispute Settlement Body

After the cross-border economic cooperation zone agreement comes into force, disputes are inevitable as activities in the zone unfold. Disputes can be broadly divided into four categories: first, disputes concerning the interpretation and implementation of the cross-border economic cooperation zone agreement itself; The second is the commercial disputes arising from the economic activities of businessmen or legal persons engaged in production, processing, operation, trade and investment in the region; Third, disputes between the personnel in the region and the administrative committee of the cross-border economic cooperation zone; The fourth is the ordinary civil disputes and criminal cases occurred in the region; The fifth is disputes between personnel in the region and the administrative committee of the cross-border economic cooperation zone. First of all, it must be pointed out that the cross-border economic cooperation zone is a specific cross-border economic cooperation zone. From the perspective of territorial jurisdiction, it is not a separate territory, but a territory still belonging to each party of the cooperation zone. Therefore, neither party’s domestic judicial institutions have the right to exercise full jurisdiction over the entire economic cooperation zone. Second, the establishment of an independent court of special jurisdiction within a cross-border economic zone seems to be the ideal choice, but in practice it may not be the right choice. The cross-border economic cooperation zone is not an independent legal area. There is no independent and perfect legal system in the zone, so it is not necessary to establish an independent judicial institution. There are also great difficulties in the selection and appointment of judges. Moreover, if such an institution were to be established, it would have to be a complete judicial system providing complete judicial relief to parties in the region, which would result in a bloated and costly judiciary. In view of the complexity of disputes in cross-border economic cooperation zones, the following different dispute settlement bodies or different dispute settlement methods should be established for different types of disputes or cases. (1) Disputes concerning the interpretation and implementation of the agreements concerning cross-border economic cooperation zones may be settled through consultation through a mixed committee, in accordance with the usual practice in bilateral economic and trade agreements. Further provision may be made that if negotiations fail, such dispute shall be submitted to arbitration. Arbitration can either be explicitly assigned to the jurisdiction of the cross-border economic cooperation zone arbitration tribunal (if established) or to any international arbitration institution trusted by both parties. It may also be stipulated in the agreement that both parties shall, after the occurrence of a dispute, adopt a provisional arbitral tribunal. (2) For economic and trade disputes between investors, producers, traders or other business operators in the cross-border economic cooperation zone, it may be considered to establish a specialized cross-border economic zone arbitration tribunal and grant it exclusive jurisdiction. Instead, such disputes would be

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settled by contract between businessmen or legal persons in the region, as stipulated in cross-border economic co-operation zone agreements. Disputes between the local businessmen and legal persons and the administrative committee may be regulated to be under the jurisdiction of the arbitration institution. In terms of the application of law, if there is no clear law governing cross-border economic zones in a certain situation or issue, the arbitral tribunal may make an award in accordance with the principles of general law or fairness and good faith. (3) For criminal cases in cross-border economic zones, the cross-border economic zone agreement may specify the principle of territorial jurisdiction or the principle of personal jurisdiction. In accordance with the principle of territoriality, the contracting parties are responsible for the jurisdiction of criminal cases that occur in the part of the territory belonging to the state within the crossborder economic zone, that is, in accordance with their respective domestic criminal laws and criminal procedure laws. In accordance with the principle of personhood, criminal cases in cross-border economic zones are subject to the jurisdiction of the judicial organs of the state of origin of the victim in accordance with the national jurisdiction. However, it is necessary for the contracting parties to include provisions on extradition and criminal judicial assistance in the cross-border economic cooperation zone agreement, whether it applies the principle of dependency or of person, to ensure the smooth judicial process.

29.4 Legal Issues of China-Vietnam, China-Myanmar and China-Laos Cross-Border Economic Zones As the Yunnan High People’s Court provides the relevant background materials,9 although the central governments of China, Laos and Myanmar have clearly expressed their willingness to establish cross-border economic cooperation zones in specific areas along the border of the three countries, the relevant local governments of the three countries, especially those of China have taken a more active stance and even introduced some relevant policies and measures, there is still a long way to go to the actual establishment of cross-economic zones. In particular, with regards to the legal and mechanism construction, the absence, or at least the imperfection of the situation is evident and prominent. It is not difficult to predict that the establishment of cross-border economic cooperation zones will not make substantial progress unless the relevant legal and institutional issues are resolved in a timely and effective manner. Even if formally established, it is difficult to effectively carry out activities to achieve the desired goals. First of all, from the perspective of cross-border or international perspective, it is only in the sub-regional economic cooperation of the greater Mekong region at present that six countries, including China, Myanmar, Thailand, Cambodia, 9 Refer

to Yunnan High People’s Court: Seminar on Legal Issues of Cross-Border Economic Cooperation Zone, annex 3, compiled on 14 May 2012.

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Laos, Vietnam, have established relatively sound mechanisms. For example, regular leaders’ meetings, ministerial meetings, bureau-level executive meetings, forums and working groups were formed, and the Naypyidaw declaration and the strategic framework for the new decade of greater Mekong sub region economic cooperation were adopted at the fourth leaders’ meeting held in December 2011. However, the central governments of the three countries have not signed a special agreement on the three proposed cross-border economic cooperation zones. Despite three crossborder economic cooperation in the economic activities of the specific content of the project, even mechanism can completely by China and the related three processing by means of agreement between local governments, but the cross-border cooperation zone after all economic activities involving many elements. According to their respective domestic constitutions, some of them do not belong to the jurisdiction of local governments, but belong to the authority of the central government, which must be settled through an agreement between the central governments of the three countries, especially concerning judicial jurisdiction and judicial assistance. Therefore, Yunnan province should, in conjunction with relevant local governments of Vietnam, Myanmar and Laos, urge their central governments to sign special agreements on the establishment of cross-border economic cooperation zones, so as to avoid or make up for the absence of the upper law of cross-border economic cooperation zones. Secondly, although the three countries have expressed their encouragement and support for the establishment of cross-border economic cooperation zones in different ways and on different occasions, the existing relevant policies and laws mainly involve border trade, the opening of border cities, border economic and technological cooperation zones, and economic and technological cooperation zones outside the border. It lacks of a special system of fiscal and tax investment, trade policies and legal measures. Such a situation is bound to bring uncertainty and instability to the construction of cross-border economic cooperation zones. Therefore, relevant local governments of the four countries should request their respective central governments to formulate and improve policies, laws or administrative measures to support cross-border economic cooperation zones as soon as possible. Finally, as far as relevant local governments are concerned, they are the direct subjects of the construction of cross-border economic cooperation zones, which are crucial to the institutional construction and legal perfection of such zones. However, due to the imperfection of policies and legislation at the central level and the absence of bilateral agreements, the measures issued by relevant local governments mainly focus on the geographical delineation of cross-border economic cooperation areas, the determination of their basic positioning, the formulation of their construction blueprints or plans, the establishment of their strategic objectives and the determination of their key tasks or projects. No operational approach has yet been developed for the management system of cross-border economic zones and the management of tax investment, transportation environment and society involved in its operation, as well as dispute resolution. All this remains to be done by the local governments involved in cross-border economic co-operation zones.

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29.5 Conclusion In a word, neighboring countries (especially those with backward economies) should reach an agreement to set up economic cooperation zones in specific cross-border regions on a voluntary basis through equal consultation, which is in line with two major trends in the world economy. At the same time, this trend and economic globalization develop in parallel and form complementary advantages. However, compared with the traditional regional economic integration model (for example, free trade area, customs union, common market, economic and monetary union), the cross-border economic cooperation zone is a relatively new form of sub-regional economic cooperation with its own characteristics. First, from a geographical or spatial perspective, cross-border economic cooperation zones do not cover the entire territory of the countries concerned, but only refer to specific local areas adjacent to each other. Secondly, the establishment and development of cross-border economic cooperation zones will not only promote the local economic and social development of relevant countries, but also meet the millennium development goal of poverty eradication and development set by the United Nations, because such zones are generally located in economically and socially underdeveloped areas. Thirdly, the fields or tasks of economic activities in cross-border economic cooperation zones may vary according to the wishes and objective conditions of relevant countries. However, trade promotion (logistics) and investment are the two core areas, and other cooperation projects are usually complementary extensions or extensions of these two core areas. At present, judging from the situation of the cross-border economic cooperation zones to be built or under construction by the relevant Chinese provinces (autonomous regions) and specific local governments of the neighboring countries, although the official political will is clear, the planning is ambitious, and some progress has been made, they are still at the level of preliminary plans on the whole and the substantive progress is slow. In particular, the legal framework, management system, dispute settlement mechanism and other substantive issues or problems in cross-border economic zones still need to be studied and designed carefully by relevant parties, and there is still a long way to go.

References Huang S (1996) Development of Asia-pacific economic cooperation and China’s strategic choice. J Tianjin Normal Univ (Social Science) 1:24–29 Wang J (2004) Thoughts on strengthening the sub-regional economic cooperation between Shandong and South Korea to promote the growth of Shandong’s foreign trade. Shandong Econ 6:18–20 Zeng L (2007) General theory of European Union law with the European constitutional treaty as a new perspective. Wuhan University Press, Wuhan Zeng L, Chen W (2000) The impact of regional integration on the multilateral trading system in the 21st century from the perspective of the European community. J Wuhan Univ (Philosophy & Social Science) (3):337–343

Part VI

Legal Issues in China-EU Relations

Chapter 30

Dual Legal Positions of the EU and Its Member States in WTO and Their Influence on China

30.1 Introduction: Why One of the Bilateral Negotiators of China’s Accession to the WTO is the European Communities Other Than Its Member States? The European Communities (EC)1 along with the United States (US), Japan and Canada are the so called “Four Giants” of the WTO. It is still remembered that one of the reasons for the lingering issues in the Uruguay Round negotiations is that the European Communities and the US had a tough time to reach an agreement upon the subsidies maintained on agricultural products. It is also noticed that the most trade disputes settled by whether the previous GATT or the current WTO were brought by and between the EC and the US. The recent outbreak of a “Banana Trade War” between the EC and the US, and its development, have attracted much attention. It has 1 The

European Communities or the EC has been generally called as the European Union or the EU. These two names, however, have different meaning as, strictly from the perspective of law, though the EU has realized the integration of the three Communities, each of them still has its own independent legal personality while the EU does not have one. The EU, though established on the basis of the three Communities, which are one of the three pillars of the EU (the other two are the Common Foreign and Security Policy and judicial and the Police and Judicial Co-operation in Criminal Matters), cannot replace them. The Agreement establishing the World Trade Organization (the WTO Agreement), therefore, has expressly provided that it is the European Communities (the “European Communities” in plural form refers to the three Communities other than just the “European Community”, in single form, which has replaced the name of the previous European Economic Community), other than the European Union, that enjoys the official membership of the WTO. In the elucidation of the foreign economic and trade relations of the European Communities, including the one with the WTO, the European Communities cannot be replaced with the European Union. The Article was originally written by Prof. Zeng in Chinese, and published in Law Review, (2), 1999, pp. 38–45. It was then translated by Dr. Zhang Jiao, with the assistance of Ye Xingxing and Wu Qiaofang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_30

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been deeply understood that the EC is and will always be one of the key negotiators in the process of China’s accession to the WTO. Without an agreement reached with the EC, it is almost impossible for China to access to the WTO. Why does the EC enjoy such high status and have such major role in the multilateral trade system? It has been diversely answered by scholars in different disciplines from various perspectives. Observing from the politics and economy, the status and role of the EC in the WTO relies on the triangular (or quadrangular) political and economic force it has formed with the USA, Japan (or Canada) in international trade and economic relations, and the recognition of such force by countries around the world. From a legal perspective, however, such status of the EC depends on two distinct but closely related legal systems, i.e. the sui generis EC law and general international law. In terms of EC law, should the Treaties establishing the European Communities (the EC Treaty) have not established the legal personality of the EC and its competence in areas of external trade and economic, or its judicial body has not established the exclusiveness of such competence, it is impossible for the EC to enjoy an equal status as sovereign State Members within the WTO system and even to play a stronger role than the latter in respect of certain issues. In terms of general international law, the special legal personality of the EC would be practically meaningless if pertinent international treaties did not confirm or countries around the world as the whole international community did not recognize the practice of it acting in some cases on behalf of and in other cases jointly with its Member States when participating in international affairs and international legal relations. It comes down to the fact that the special status of the EC in the WTO system is invested by sovereign states as its Member States and those without its membership. On the one hand, therefore, its Member States permit it to negotiate and enter into trade and economic cooperation agreements including affairs related to China’s accession to the WTO; on the other hand, third countries at large recognize and acknowledge such fact and practice of representation without any doubt.

30.2 Special Relationship Between the European Communities and the GATT It is necessary to briefly illustrate the special relation that the EC and its Member States established with the GATT in the past before elucidating the legal status of them within the WTO since, to some extent, the relationship of the EC and its Member States with the WTO must be the continuance and development of that with its predecessor, the GATT. The GATT, with provisional application starting from 1948 and existing as a de facto international organization till 1994, came out earlier than the EC in history. The Member States, before the establishment of the EC, had already been members of the GATT, and, after that, still hold such membership respectively while the EC,

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in accordance with Articles of the EC Treaty (Articles 113 and 228, etc.), gradually replaced its Member States in the GATT system and became the “de facto member” of the GATT as its Member States only being a “de jure member”.2 From the perspective of the EC, first of all, the European Commission has represented Member States of the EC in multilateral or bilateral negotiations with other members of the GATT in all GATT Rounds since the early 1960s. Secondly, most of the multilateral agreements generated by multilateral Rounds since the Kennedy Round have been signed and concluded by the European Communities alone while only few of them (such as the agreement on technical barriers to trade and the agreement on trade in civil aircraft in the Tokyo Round) have been concluded by the EC and its Member States as mixed contracting parties.3 Thirdly, the EC has participated in activities of almost all GATT organs except for particular ones (such as the Committee on Budget) and in decision-making procedures concerning various issues which consensus is required. At last, in disputes involving EC Member States, the EC has acted as the disputing party in most cases, and has always acted as the disputing party since 1974. From the perspective of the Member States of the EC, their full memberships of the GATT mainly embody the following aspects: First of all, the Member States participate in decision-making concerning certain matters, such as accession of new members or waiver of a member’s obligation(s), requiring vote of members. The decision on these issues must be made through voting by the participation of Member States of the EC, since the EC was not a full member of the GATT. Furthermore, they are fully involved in the works of the Committee on Budget as it is the Member States that bear the contributions to the GATT. Moreover, as mentioned above, both the Member States and the EC, as joint contracting parties, participate in relevant agreements reached in multilateral Rounds since part of the matters involved therein fall into the competence of the EC while another part of the matters fall into the competence of the Member States. In short, the EC and its Member States enjoyed special status in the GATT. The EC, though never being a full member of the GATT from the beginning to the end, did have substantially replaced its Member States in almost all areas and activities; the full membership of the Member States, though never being undermined due to a vast loss of rights to the EC, was, however, legally nominal. It is such special legal relations between the EC and its Member States and the GATT formed in over thirty years that lays the foundation of their dual legal positions in the WTO for the international community.

2 See

Zeng (1992a), p. 260. Agreement is a special “scenery” brought by the European Communities to the theory and practice of the modern treaty law. The practice of mixed agreements, though, has been existed before, such as the Soviet Union concluding the Charter of the United Nations with Ukraine and Belarus, it is a result of a sovereign state together with its subdivisions accessing to international treaties. By contrast, the mixed agreements brought by the European Communities to the international community is produced by the joint conclusion of an international organization and its member states. See O’Keeffe and Schermers (1983), pp. 154–156.

3 Mixed

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30.3 Dual Positions of the EC and Its Member States in the WTO 30.3.1 OPINION 1/94 and the Competence of the EC and Its Member States to Conclude the WTO Agreement On the eve of signing the Final Act of the Uruguay Round (The Final Act embodying the results of the Uruguay Round of Multilateral Trade Negotiations), the Commission, under Article 228(6) of the EC Treaty, sought the opinion of the Court on the competence of the EC to conclude the WTO Agreement,4 in particular, whether the EC has the power to, under Article 113 of the EC Treaty (Common Commercial Policy), exclusively conclude relevant multilateral agreements included in the Final Act and annexed to the WTO Agreement, in particular the Multilateral Agreement on Trade in Goods, the General Agreement on Trade in Services (the GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPs), or whether such agreements shall be concluded in accordance with Article 100a (Consultation Provision) and Article 235 (necessary for the objectives of the Communities) of the EC Treaty. It was the Council, the European Parliament and 8 Member States that had participated, early or late, in this judicial advisory procedure as the request submitted by the Commission involves the competence of the EC and its Member States to conclude package of multilateral agreements of the WTO, which made a record of the amount of third parties participating in the proceedings and advisory procedures of the European Court of Justice.

30.3.1.1

The Competence to Conclude the Multilateral Agreements on Trade in Goods

In general, the Commission, the Council involved in this advisory procedure and relevant Member States all recognized the exclusive competence of the EC to conclude the multilateral agreements on trade in goods resulting from the Uruguay Round as it fell within the realm of Common Commercial Policy under Article 113 of the EC Treaty. Furthermore, the Council and Member States also found in favor of the application of the exclusive competence of the EC to the atomic energy products since there was nothing to prevent the EC from extending such exclusive competence to atomic energy products as Article 232(2) of the EC Treaty stated that the provisions of the Treaty “shall not derogate from those of the Treaty establishing the European Atomic Energy Community (the Euratom Treaty)”, which involved no provision of external trade particularly. The Commission and other participators, however, did have some differences on certain issues. For instance, the Council and relevant Member States considered that such exclusive competence of the EC shall not cover products involved in the Treaty Establishing 4 European

Court of Justice (1994), p. 20.

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the European Coal and Steel Community (the ECSC Treaty) since Article 71 stipulated that “the power of the Government of Member State in matter of commercial policy shall not be affected by this Treaty…” and Article 232(1) of the EC Treaty provided that the provisions thereof shall not affect the provisions of the ECSC Treaty. Nevertheless, the Court of Justice found that since the ECSC Treaty was drawn up at a time when the EC Treaty was not yet in existence, Article 71 of that Treaty can only have reserved competence to the Member States as regards agreements related to coal and steel products. On the other hand, the EC had sole competence pursuant to Article 113 of the EC Treaty to conclude an external agreement of a general nature, that was to say, encompassing all types of goods, even those goods including coal and steel products. Therefore, the EC shall enjoy exclusive power when certain products were included in a multilateral agreement with more extensive applicability. Also, the Council and the UK contended that Article 43 of the EC Treaty must be adopted as the basis for its decision to conclude the Agreement on Agriculture and the Agreement on the Application of Sanitary and Phytosanitary Measures resulting from the Uruguay Round, since these two agreements concerned not just the commercial measures applicable to international trade in agricultural products but also, and above all, the internal rules on the organization of agricultural markets, which was exactly a matter that the EC and its Member States shared competences over. The Court of Justice, though, thought otherwise: the fundamental purpose of Article 43 was to realize common agricultural policy while the objectives of the Agreement on Agriculture and the Agreement on the Application of Sanitary and Phytosanitary Measures were, on a worldwide basis, to establish “a fair and market-oriented agricultural trading system” and “a multilateral framework of rules and disciplines to guide the development, adoption and enforcement of sanitary and phytosanitary measures in order to minimize their negative effects on trade” around the world. These two agreements thus can be concluded by the EC on the basis of Article 113 alone. It is also worth noting that the Netherlands contended that the Agreement on Technical Barriers to Trade resulting from the Uruguay Round, like the one from the Tokyo Round, shall be concluded jointly by the EC and its Member States as complete harmonization of the EC had not been achieved in this field while its Member States still reserved certain competences. The Court of Justice found this argument unacceptable since the Agreement on Technical Barriers to Trade, the provisions of which were designed merely to ensure that technical regulations and standards and procedures for assessment of conformity with technical regulations and standards did not create unnecessary obstacles to international trade, exactly fell within the ambit of the Common Commercial Policy. The Court of Justice, therefore, held that the EC has exclusive competence, pursuant to Article 113 of the EC Treaty to conclude Multilateral Agreements on trade in goods resulting from the Uruguay Round.

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30.3.1.2

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The Competence to Conclude the GATS

The competence to conclude the General Agreement on Trade in Services (the GATS) had been vigorously disputed by the Commission and the Council, the European Parliament and the eight Member States participating in this procedure. And the Court of Justice had adopted a reasoning method completely different from that above to demonstrate its opinions. First of all, the Court of Justice considered whether trade in services in general falls within the Common Commercial Policy under Article 113. It, relying on the Opinion 1/74 and Opinion 1/78, held that trade in services cannot immediately, and as a matter of principle, be excluded the scope of Common Commercial Policy since the enumeration in Article 113, though without explicit provision on trade in services, was in fact non-exhaustive, and the role that trade in services played in global economy had been undergoing fundamental changes compared with that at the time Article 113 was stipulated. The Court, however, also found that it did not mean the overall scheme of the GATS can be included in Article 113. Then the Court of Justice presented a comparison analysis between the EC Treaty system and the definition of trade in services given in the GATS in order to make its conclusion more specific. Under Article 1(2) of the GATS, trade in services was defined, for the purposes of that agreement, as comprising four modes of supply of services: (1) cross-border supply not involving any movement of persons; (2) consumption abroad, which entails the movement of the consumer into the territory of the WTO member country in which the supplier is established; (3) commercial presence, i.e. the presence of a subsidiary or branch in the territory of the WTO member in which the service is to be rendered; (4) presence of natural persons from a WTO member, enabling a supplier from one member country to supply services within the territory of any other member country. From the point of view of the Court, only the first mode of service (not involving any movement of persons), like trade in goods, is covered by Article 113 while the other three all involves movement of persons, which under the EC Treaty system cannot be regarded as falling within the Common Commercial Policy in Article 113. In addition, the Court separately pointed out that international agreements in transport matters were not covered by the exclusive competence of the EC since services in transport were the subject of Title IV, distinct from Title VII on the Common Commercial Policy.

30.3.1.3

The Competence to Conclude the TRIPs

The Commission’s argument in support of its contention that the EC has exclusive competence under Article 113 to conclude the TRIPs is essentially that the rules concerning intellectual property rights therein are closely linked to trade in the products and services to which they apply. It has been noted by the Court, first, that Section 4 of Part III of the TRIPs, which concerned the means of enforcement of intellectual property rights, contained specific rules as to measures to be applied at border crossing. This section has its counterpart

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in the provisions of Council Regulation (EEC) No. 3842/86 laying down measures to prohibit the release for free circulation of counterfeit goods. In as much as that regulation concerns the prohibition of the release into free circulation of counterfeit goods, it was rightly based on Article 113 as it closely relates to measures to be taken by the customs authorities at the external frontiers of the EC. The Court, therefore, concluded that since measures of that type can be adopted autonomously by the institutions of the EC on the basis of Article 113, it was for the EC alone to conclude international agreements on such matters. As regards provisions of the TRIPs on other matters, the Commission’s arguments were decisively denied by the Court based on the following reasons: Firstly, though there is a connection between intellectual property and trade in goods (Intellectual property rights enable its holder(s) to prevent third parties from carrying out certain acts. The power to prohibit the use of a trade mark, the manufacture of a product, the copying of a design or the reproduction of a book, a disc or a videocassette inevitably has effects on trade), intellectual property rights affect internal trade just as much as, if not more than, international trade. Second, the primary objective of the TRIPs is to strengthen and harmonize the protection of intellectual property on a worldwide scale, nevertheless to facilitate the liberalization of trade also being an expected purpose. Third, at the level of internal legislation, the EC is competent, in the field of intellectual property, to harmonize national laws pursuant to Articles 100 and 100a and may use Article 235 as the basis for creating new intellectual property rights superimposed on national rights (such as the EC trade mark under the Council Regulation (EC) No. 40/94). Nevertheless, those measures are subject to procedures and voting rules that require an unanimity vote of the Council (Articles 100 and 235), or consultation of the Parliament (Articles 100 and 235), or even the joint decisionmaking procedure (Article 100a). Measures applicable under Article 113, however, which are different from the foregoing, only require a qualified majority vote of the Council and not necessarily with consultation of the Parliament. If the EC was to be recognized as having exclusive competence to enter into agreements with third countries to harmonize the protection of intellectual property and, at the same time, to achieve harmonization internally, the Communities institutions would be able to escape the internal constraints to which they are subject in relation to procedures and voting rules. It is also pointed out, at last, that in the event of the Court rejecting its main contention that the EC had exclusive competence to conclude the GATS and TRIPs pursuant to Article 113, the Commission further invoked the theory and practice of implied competence in the alternative that the Communities’ exclusive competence to conclude these two agreements, which the Court had also rejected.

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30.3.2 The EC and Its Member States and the Organization Structure of the WTO 30.3.2.1

Membership

Article XI of the WTO Agreement expressly states that “the contracting parties to GATT 1947 as of the date of entry into force of this Agreement, and the European Communities, which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO”. It is of great significance. First of all, it means that the EC, ending being a de facto member of long term in the GATT system, fully participate in activities of this new organization with a position equal to other members from the very beginning. On the other hand, its 15 Member States do not lose their memberships of the WTO due to original membership that the EC has. Furthermore, it marks a new development of the theory and practice of the modern international organization law. The WTO, though as an intergovernmental organization, have such full members as the EC and other separate custom territories. These two types of non-sovereign members, however, are of distinct nature: the EC is an organization of regional integration comprising several sovereign States while separate custom territories are historical special administration regions, and are parts of a sovereign State. More importantly, the aforesaid provision is a groundbreaking practice of an intergovernmental organization and its Member States being full member of another intergovernmental organization. Though the EC has enjoyed a full member status in the management body of several international commodity agreements, it remains controversial that whether such management body is a formal international organization, let alone its scope of activities and actual influences are much less significant than those of the WTO, the “Economic United Union”.

30.3.2.2

Voting Right

The dual membership of the EC and its Member States in the WTO has brought major impact on the decision-making procedure of the WTO. Article IX of the WTO shall continue the practice of decision-making by consensus followed under GATT 1947. Pursuant to this provision, where no member present in meetings of relevant decisions brings formal objection to proposed decision, such decision will be deemed as being made by consensus. It embodies that decision-making by consensus is the primary method of decision-making in the WTO.5

5 See

Zeng (1996), p. 91.

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Nevertheless, Article IX further provides that where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. Furthermore, Article IX, X and XII have specified certain matters of the WTO that require decisionmaking by voting, such as the interpretation and amendment of the WTO Agreement and multilateral trade agreements, waiver of a member’s obligations, accession of new members. It can be anticipated that under circumstances of mandatory voting, a double voting situation is inevitable since the EC and its 15 Member States are all members of the WTO, creating an inequality of voting rights among all members thereof. For the purpose this, Article IX stipulates in particular that: “at meetings of the Ministerial Conference and the General Council, each Member of the WTO shall have one vote. Where the European Communities exercise their right to vote, they shall have a number of votes equal to the number of their Member States, which are Members of the WTO.” And under no circumstance may the votes of the EC and its Member States exceed the total number of votes of the Member States of the EC. This provision has precluded the occurrence of double voting right from the perspective of organization law.6

30.4 Effects of EU’s Double Membership in WTO on China Given all that said, the special legal positions of the EC and its Member States in the WTO cannot be more obvious. The EC and its Member States, from the perspective of organization, are members of the WTO respectively, i.e. dual membership. On the other hand, however, they have to act as joint members in the decision-making of the WTO and the EC participates in most of activities thereof. For the purpose of the conclusion of a series of multilateral trade agreements under the WTO, the European Communities, in accordance with relevant opinions of the Court of Justice, shall have exclusive competence to conclude all the multilateral trade agreements other than the GATS and TRIPs, which shall be concluded by the EC and its Member States as mixed contracting parties. The legal positions and rights and obligations of the EC and its Member States seem to be clearly separated. But the truth is otherwise. Such particularity might bring significant influence on other members of the WTO. As for China, who is in the process of accession to the WTO, such potential impact exists as well. First of all, China has to not only directly negotiate with the representatives of the EC but also take the stand of Member States of the EC into consideration in 6 It

could be presumed that those provisions of the WTO are developed from the precedent practice of organizations under some international commodity agreements. For instance, the International Sugar Organization (ISO) has explicitly excluded the voting right of the European Communities but allowed it to vote in the name of its Member States while each of the latter no longer has separate voting right. Another example, in the International Wheat Council (IWC), the voting right of the European Communities and its Member States is directly conferred to the former other than the latter, even though both of them are mixed contracting parties of the IWC. See Konstadinidis (1996), pp. 84–85. Also see Zeng (1992b), pp. 272–276.

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respect of bilateral negotiations for the accession to the WTO. It is better for the representatives of China, as well as those of the EC, to have a clear map over what fields or matters that both of the EC and its Member States concerns for avoidance of unnecessary distrust and delay. It is common knowledge that the negotiation of China’s accession to the WTO is a dual mode: the first is the multilateral negotiation between China and members of the WTO focusing on the formation of relevant accession instruments; the second is the bilateral negotiations between China and individual member of the WTO on such bilateral issues as market access, non-tariff measures, trade in services and intellectual property rights, which lays the foundation of the multilateral protocol to be signed by these members for China’s accession to the WTO. For the purpose of bilateral negotiations, whether and when China will access to the WTO largely depends on the development and results of the bilateral negotiations between China and the EC and its Member States. There remain certain differences between China and the EC, even in the best time of their relations with great development having been achieved regarding the negotiation of China’s accession to the WTO, at least in such matters as tariff concession, the fields and scope of reserved national trade, investment measures, technical barriers to trade, safeguard measures, anti-dumping, market access of trade in services. On the basis of the Opinion 1/94, the foregoing matters of differences, other than trade in services that shall be negotiated by and between China and the EC, with no doubt, shall be negotiated by and between China and the EC and its Member States (even mainly the Member States). In practice, however, all relevant negotiations are conducted between China and the EC with no involvement of its Member States. Then the following questions inevitably arise: Can the representatives of the EC in lieu of its Member States negotiate with China on the access of trade in services and reach an agreement thereof? Or will the Member States recognize the validity of the bilateral agreements on trade in services reached by and between the EC and China? Not only the EC side, but also China, shall figure out these questions above to ensure no prejudice to the results of relevant negotiations brought by the delimitation of competence of the EC and its Member State. Of course, under no circumstance can the EC overturn agreements already reached on the grounds of internal competence issues.7 What’s more, China, even having accessed to the WTO, may, like other WTO Members, will also be confronted with problems brought by the dual legal positions of the EC and its Member States, which will most likely occur in the dispute settlement mechanism of the WTO. The WTO dispute settlement mechanism established in the Uruguay Round is an integrated one, i.e. the Understanding on Rules and Procedures Governing the Settlement of Disputes shall not only apply to dispute settlement concerning the WTO Agreement, but also those arising out of the agreements of trade in services, agreements of trade in goods and trade-related aspects 7 Pursuant

to Article C(2), Article J.1(4) of the Treaty on European Union and Article 5 of the EC Treaty, the European Communities and its Member States shall ensure the cooperation and consistency of their external relations at the international level.

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of intellectual property rights listed in Appendix 1 thereto, and with an extension to those in connection with the plurilateral trade agreements listed in Appendix 4 to the WTO Agreement. For the purpose of the legal relations between the EC and its Member States, there remain the following questions at every least in this integrated mechanism of dispute settlement: Firstly, who will act as the disputing party to relevant dispute when the EC and its Member States are mixed contracting parties to the agreement involved (e.g. the GATS and TRIPs)? The EC only, or just the Member States, or both of them as joint parties? Secondly, where the Dispute Settlement Body of the WTO rules against the EC and its Member States in a dispute involving an agreement that they have concluded as mixed contracting parties, to whom should the relevant WTO member as the complainant claim for compensation? Thirdly, even in respect of disputes involving agreements under which the EC enjoys exclusive competence, if the rulings of Dispute Settlement Body authorize the injured member related to take retaliation measures in the same sectors and cross-retaliation in other different sectors as well, may such injured member carry out cross-retaliation in sectors of trade in services and intellectual property right for serious violation of agreements concerning trade in goods by the EC? Likewise, can the injured member take cross-retaliation in sector of trade in goods against the EC for serious violation of the GATS and the TRIPs by some of its Member State(s)? The same question also exists from another point of view: when the EC is allowed by the Dispute Settlement Body to cross-retaliate against relevant members of the WTO, may it take such retaliations in sectors of trade in services and intellectual property rights for its damages it suffered in respect of trade in goods? Or can its Member States cross-retaliate in sector of trade in goods for its losses incurred in trade in services and intellectual property rights? Admittedly, the questions mentioned above are still assumptions and anticipations. As the WTO only has been established for less than three years, such new sectors as trade in services, never covered in the GATT in the past, and just being provided in a framework under agreements resulting from the Uruguay Round, have yet to be regulated by specific agreements and protocols reached through organizational negotiations on related service sectors in the routine work of the WTO. Therefore, the disputes accepted and settled by the WTO are limited to those of trade in goods and related matters, which fall within the realm of exclusive competence of the EC under the EU system. Nevertheless, the possibility of the occurrence of such problems presumed and envisaged above cannot be overlooked. For purpose of precaution, it is advisable for the EC and its Member States, the WTO and its members, and countries with intention to access to the WTO, including China, and jurisprudential circle home and abroad to study a series of issues and problems brought to the globalism by the regionalism of the current trade system with an active and positive attitude. The writer considers that a statement issued by the EU might be a great resolution to the aforesaid problems. This statement, which might be made at EU’s own discretion on the basis of its procedure rules, or be submitted by the EU to the WTO

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Secretariat as a decision passed by the Ministerial Conference or the General Council authorized thereby urged the EU to do so, shall not only specify the one acting as the complainant or the respondent in disputes of trade in services and intellectual property rights, but also provide a list of allocation of right and duties, indicating the matters under the competences of the EC and its Member States respectively in case of mixed agreements.8 Moreover, explicit commitments concerning cross-retaliation involved in sectors under each competence shall also be included in this statement. In conclusion, the EC and its Member States, though enjoying independent membership, do not have full capacity for rights and conduct as other members of the WTO do since relevant matters and activities of the WTO falling within the exclusive competence of the EC could be only participated thereby while those under the competence of its Member States, such as the contributions to and budget of the WTO, shall be handled by the Member States only, and those involving both the competence of the EC and its Member States, shall be dealt with by them jointly (or the one fully representing both of them in accordance with related agreements already reached and notified the WTO and other members). In any case, it is impossible either for the EC and its Member States to separately participate in all activities of the WTO, or for the delimitation of competences of them to affect the normal operation of the WTO mechanism and the rights and interests that other WTO Members enjoy thereunder.

References European Court of Justice (1994) Request by the Commission of the European Communities for an opinion pursuant to Article 228(6) of the Treaty establishing the European Community. Official J Eur Commun (C218) Konstadinidis SV (eds) (1996) The legal regulation of the European Community’s external relations after the completion of the internal market. Dartmouth, Aldershot O’Keeffe D, Schermers HG (eds) (1983) Mixed agreements. Kluwer Law and Taxation Publishers, Deventer 8 The European Communities is unwilling to introduce a list of powers under general circumstances

since it has no obligation to provide such list as the competence of an international organization is determined by its organization instruments and practice in accordance with the 1986 Vienna Convention on the Law of Treaties. The European Communities also contended that it was impossible to provide a permanent list of powers in respect of certain mixed agreement being an integrated organization with changing competence and the list of powers applicable now may be no loner appropriate then. The European Communities, however, in order not to miss the opportunity to access to relevant treaties and international mechanism, had to make concessions due to the insistence of other WTO members. Taking the United Nations Convention on the Law of the Sea (the UNCLOS) as a typical example, the European Communities did submit a statement containing a list of powers in writing when signing the UNCLOS on 7 December 1984 in accordance with Article 2 of Annex IX thereto that “at the time of signature an international organization shall make a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to that organization by its member States which are signatories, and the nature and extent of that competence”. See United Nations (2006), pp. 16–19. Also see Zeng (1992b), pp. 272–276.

References

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United Nations (2006) Bulletin of the law of the SEA. https://www.un.org/Depts/los/doalos_public ations/LOSBulletins/bulletinpdf/bulletin62e.pdf Zeng L (1992a) The European Communities and the modern international law, 1st edn. Wuhan University Press, Wuhan Zeng L (1992b) The European Communities and the modern international law, 2nd edn. Wuhan University Press, Wuhan Zeng L (1996) The world trade organization law, 1st edn. Wuhan University Press, Wuhan

Chapter 31

Changes of EU External Competences After Lisbon Treaty and Their Impacts on Its Partners

31.1 Introduction: Definition and Evolution of EU External Competence It is necessary to preliminary define the concept of EU external competence because of its peculiarity. Its definition shall be based on the identification of two groups of related but different basic concepts: diplomatic relation and diplomatic competence, and external relation and external competence. Generally speaking, external relations and diplomatic relations are respectively broad and narrow concept of the communication, cooperation (or, sometimes accompanied with combat), action and reaction of actors of international law or international actors (mainly States). The broad concept, i.e. external relation, includes relations of all areas between actors of international law, such as politic, diplomatic, military, economic and trade, science and technology, cultural and education, environment, energy, human rights, the rule of law, and other social areas. The narrow concept, i.e. diplomatic relation, is a constituent part and a chief part of external relation, which refers to actors of international law establishing a formal relationship through certain legal forms (such as sign a treaty, issue a joint statement, diplomatic note, exchange note, etc.). Since the diplomatic relation is a kind of official relationship based on legal forms, it would generally produce certain political and legal results, such as signing a treaty, mutually establishing permanent diplomatic missions, etc. The broad external relation does not necessarily have legal results. It can be realized through unilateral action of representation of international actors in local, regional or multilateral conferences or mechanisms, such as attending conferences, participating in activities of international organizations, delivering speeches in international mechanisms, or making a statement with regards to a foreign or international issue, etc. The article was originally written by Prof. Zeng in Chinese, and published in Journal of Xiangtan University, (2), 2011, pp. 31–37. It is then translated by Dr. Zhang Jiao, and proofread by Prof. Wu Qiaofang. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_31

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External competence refers to the duty and competence authorized by the internal supreme law (Constitution of a State or Charter of an international organization) of an actor of international law to its specific organs and departments to lay down and implement external policies as well as exercise external activities. Diplomatic competence refers to the duty and competence authorized by the supreme law of an international actor to its specific organs and departments to lay down and implement diplomatic policies as well as carry out diplomatic activities. As a sui generis international organization, the external competence (not the diplomatic competence)1 of the EU is evolving with the deepening of its integration. External competence of the EU started to operate in the area of coal and steel. The express external competence of the EU was limited to areas of Common Commercial Policy (CCP) and association agreements with third countries before the Single European Act. Besides, the Treaty of Rome also regulated that the Commission should maintain appropriate relations with the United States and keep close relationships with the Council of Europe and the OECD. Beginning with 1970s, the EU external competence has been significant developed in the following four aspects. First, an implied competence, the principle of “parallel development” has been developed by the jurisprudence of the European Court of Justice (ECJ), which extended the external competence to all the EU internal common policy areas. Second, the ECJ also established the competence to conclude “mixed agreement”, i.e. the EU may conclude international agreements together with its Member States in areas covered by shared competence. Third, the European Political Cooperation (EPC) has been established outside but closely related to the EC, which finally developed into the EU Common Foreign and Security Policy (CFSP). Fourth, several permanent delegations of the EU Commission have been gradually established in third countries and international organizations. The Single European Act taken into effect in the mid of 1980s incorporated environmental protection and scientific cooperation into the common policy of the EC. It also incorporated EPC into the operation of the EC from an institutional perspective. The EU external competence has been further systematized and normalized from the Treaty of Maastricht to the Treaty of Nice. Firstly, the “three Pillar” structure has been established, which was composed of EC, CFSP and Police and Judicial Cooperation in Criminal Affairs (PJCC). Within this “three Pillar” structure, the EC is the core of the EU external competence. External competences to legislate, to conclude international agreements with third countries, to participate in activities of international organizations and international dispute settlement mechanisms mainly fall within the areas of the EC. Secondly, the purposes and tasks of the EU external actions are explicitly defined by the Preamble of the Treaty on the EU and the “common provisions”. The EU is 1 Reasons for adopting the “external competence” instead of the “diplomatic competence” are based

on the following considerations: (1) basic treaties of the EU, such as the Nice Treaty and the Lisbon Treaty, adopt the idea of “external competence; (2) most documents of the EU, judgments of the ECJ and literatures of the EU scholars also use the expression of “external competence”.

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“resolved to implement a common foreign and security policy including the progressive framing of a common defence policy … thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world”. For this, the Union shall “in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies”.2 Thirdly, apart from the implied external competence, areas that the EU may exercise external competence have been explicitly established, which include (1) Pillar I: CCP, Development Cooperation and Economic, Financial and Technical Cooperation with Third Countries3 ; (2) Pillar II: formulation and implementation of common objectives, strategies, guiding principles, positions, and actions of the CFSP (including defence policy)4 ; (3) Pillar III: international cooperation in area of police and judicial cooperation in criminal affairs.5 Fourthly, external competences of the EU main organs, especially the European Council, the Council of Ministers, the Commission, the Parliament, the Court of Justice have been further clarified. Measures with different legal forms adopted in different external relation areas have also been clarified. Fifthly, exclusive external competence and the shared external competence of the EU have been further clarified too. The shared external competence is mainly reflected in the “mixed agreement” and “double membership” in international organizations (e.g. WTO). The Lisbon Treaty, which was entered into force on 1 December 2009, keeps the original rules and practices, and further develops the EU external competence in many aspects.

31.2 Changes of EU External Competences Under Lisbon Treaty 31.2.1 Legal Personality: From Ambiguous to Clear In the 17 years from the 1992 Treaty of Maastricht to the Lisbon Treaty, the legal personality of the EU, especially the international legal personality, has been a controversial and questioned issue. Opponents believe that no basic Treaties from the Maastricht to the Nice provided legal personality for the EU but the legal personality of 2 See

2006 consolidated versions of the Treaty on European Union and of the Treaty Establishing the European Union, Preamble, Articles 2 and 3. 3 See consolidated version of the Treaty Establishing the European Community, Title IX, Title XX and Title XXI. 4 2006 consolidated versions of the Treaty on European Union and of the Treaty establishing the European Union, Title V. 5 2006 consolidated versions of the Treaty on European Union and of the Treaty establishing the European Union, Title VI, Article 37.

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EC is clearly confirmed in these treaties. While proponents say that the EU enjoys inherent legal personality since its birth in spite of no explicit provision in basic Treaties. This kind of legal personality is implied in the provisions of purposes and duties of the EU. It is inconceivable that an entity without legal personality can effectively perform the duties given by the basic Treaties to realize its purposes. The doctrine of implied personality raised by the proponents has been supported by the judicial decisions or judicial opinions in general international law and the law of the EU. The International Court of Justice (ICJ) has made very clearly in the 1949 Reparation Case that an international organization is a legal personality provided that it is established in accordance with international law (an agreement between/among two or more States), establishes its own organs and purposes in accordance with this agreement, and has the ability to act independently of its Member States. The international legal personality of an international organization may even go beyond the scope of its statute and exercise the competence required to enable its functions to be effectively discharged.6 The ECJ also made clearly in the 1970 ERTA Case7 (the first case that the ECJ decided on the external competence of the EC) that “the Community enjoys the capacity to establish contractual links with third countries over the whole field of objectives. Such authority arises not only from an express conferment by the Treaty but may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions”. Judging from the practice of the EU’s foreign relations in the past 17 years, it was hard to confirm the legal personality of the EU. On the one hand, overwhelming majority of the bilateral and multilateral treaties among the EU, the third countries and other international organizations were concluded not by the EU but by the EC. Membership in international organizations was named the EC, not the EU. Locus standi in the international dispute settlement mechanism was endowed to the EC, not the EU. On the other hand, although the number was limited, several agreements with the third countries or international organizations were concluded by the EU in the second and third pillars. According to Article 23 and Article 38 of the Treaty on the European Union (Nice Treaty), the Council may authorize the rotated presidency State to conclude international agreements with third countries or international organizations in areas of the second and third pillars. For example, agreement between the EU and the Former Yugoslav Republic of Macedonia (FYRM) regarding the EU observation mission was signed in 2001, agreement between the EU and Romania concerning the participation of Romania into the EU mission in FYRM was signed in 2003, agreement between the EU and Norway concerning the participation of Norway into the EU Police Mission (EUPM) in Bosnia and Herzegovina was signed in 2003, agreement between the EU and USA on extradition and judicial assistance was signed in 2003, etc. Besides, the EU permanent delegations in capitals of third

6 International 7 European

Court of Justice (1949), pp. 174 et seq. Court of Justice (1971), p. 263.

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countries and some international organizations were also established in the name of the European Commission. The Lisbon Treaty explicitly states that the EU enjoys the legal personality.8 It ends the ambiguity of the legal personality of the EU in the past years and the debates between EU legal community and International Law community. It is worth noting that Article 335 of the Treaty on the Functioning of the European Union (TFEU) keeps the rules of legal personality laid down in Article 282 of the Treaty on the European Community. The difference is that the subject of this legal personality changed from the EC to the EU. It may be assumed from this that the legal personality of the EC has been replaced by the EU since the Lisbon Treaty. This can be demonstrated from Article 1 of the Treaty on the European Union (TEU) amended by the Lisbon Treaty, which says, the EU shall replace and succeed the EC.

31.2.2 The Framework of External Actions: From the “Three Pillars” to the Unified Framework As mentioned above, in the past 17 years, external relations of the EU were based on the “Three Pillars” structure, i.e. CCP, CFSP and PJCC. Each Pillar has its own objectives, principles, legal bases, legal forms, and procedures for action. The external competence of the Three Pillars was operated in a unified organizational structure, i.e. EU institutions and organs, however, external relations of the Three Pillars were operated separately without uniform purposes and principles. Legal bases for action are laid down in various chapters and provisions of the two basic Treaties, like “a three-colored platter”. The new TEU and TFEU achieved a certain leap in the construction of a unified framework for EU external relations. Firstly, the Title 1 of Part Five of the new TEU entitled as “General Provisions on the Union’s External Action”, specifically and systematically regulates the general principles and objectives of the EU external relations. Under Article 21(1) of the new TEU, the Union’s action on the international scene shall be guided by the following principles that it seeks to advance in the wider world: “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the UN Charter and international law”. It is followed that “the Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations.”9

8 See

2008 consolidated version of the Treaty on the European Union, Article 47; consolidated version of the Treaty on the Functioning of the European Union, Article 335. 9 2008 consolidated version of the Treaty on the European Union, Article 21(2). Note of the translator: The author also translated all the sub-provisions (a–h) into Chinese in the original Article for an introduction. These are deleted by the translator based on the consideration that it is unnecessary to put the whole Provision in the English version since the Treaty originally has an English version.

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The new TEU also emphasizes on the coordination, cooperation and consistency of the EU external relations in general. It requires the Union to respect the principles and pursue the objectives mentioned above in the development and implementation of the different areas of the Union’s external action10 ; to ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy (hereinafter, the “High Representative”), shall ensure that consistency and shall cooperate to that effect.11 Second, the new Treaties systematically set up the scope of EU external competence and main fields of the EU external relations. Title II to Title VII of Part Five of the TFEU regulates orderly on the CCP, Cooperation with Third Countries and Humanitarian Assistance (including development cooperation, economic, financial and technical cooperation with third countries, and humanitarian assistance), Restrictive Measures (complete or partial interruption or reduction of economic and financial relations with third countries), International Agreements (types, negotiation and conclusion), Relations with International Organizations and Third Countries, and the EU Delegations, and Solidarity Clause (the Union and its Member States shall act jointly in a spirit of solidarity preventing the terrorist threat and protecting democratic institutions and the civilian population from any terrorist attack). In addition, Chap. 2 of the Title V of the new TEU systematically regulates and enhances the CFSP. Article 23 of the TEU emphasizes the integration of the CFSP and the Union’s entire external relations. It regulates that action in areas of the CFSP shall be guided by the principles, shall pursue the objectives of, and be conducted in accordance with, the general provisions on the Union’s external action. Article 24, previously Article 11, of the new TEU explicitly regulates that the Union’s competence in matters of CFSP includes the progressive framing of a common defence policy that might lead to a common defence. And, the Union’s action in the CFSP shall take the legal form of “decision”, i.e. apart from maintaining “general guidelines” and “systematic cooperation” that strengthen the cooperation between the Member States, actions of the EU in the CFSP shall be defined in the form of “decision”, and the arrangements for the implementation of the decisions shall also take the form of “decision” (Article 25). Besides, the new TEU also enhances the competence of the newly established High Representative (Article 27) as well as enhances the protection of the right of citizens by the diplomatic and consular missions of the Member States and Union delegations in third countries (Article 35) through amending or adding a series of provisions. Third, there are some explicit provisions concerning the types and nature of EU external competence. Based on the decades of practices of the ECJ, the new TFEU succeed the Constitutional Treaty that it systematically clarifies the types and nature

10 2008 11 Ibid.,

consolidated version of the Treaty on the European Union, Article 3(1). Article 3(2).

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of the EU competence in Title I.12 These types and nature also apply to external actions of the EU based on the “principle of parallel”.13 The EU competence can be categorized into exclusive competence, shared competence, and complementary competence.

31.2.2.1

Exclusive Competence

According to Article 3 of the TFEU, the Union shall have exclusive competence in the following areas: (a) customs union; (b) the establishing of the competition rules necessary for the functioning of the internal market; (c) monetary policy for the Member States whose currency is the euro; (d) the conservation of marine biological resources under the common fisheries policy; (e) common commercial policy. Besides, the Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.

31.2.2.2

Shared Competence

According to Article 4 of the TFEU, the Union shall share competence with the Member States mainly in the following areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters. Besides, it also regulates that “in the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement Programs; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs”. Similarly, in the areas of development cooperation and humanitarian aid, “the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs”. These provisions tell that the competences of the EU and of the Member States are co-existing in these areas.

31.2.2.3

Complementary Competence

The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these 12 Zeng 13 Zeng

(2007), pp. 63–71. (1992). pp. 61–64.

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policies. Similarly, the Union shall also take measures to ensure coordination of the employment policies and social policies (Article 5, TEU). Besides, the Union shall carry out actions to support, coordinate or supplement the actions of the Member States in the following areas: (a) protection and improvement of human health; (b) industry; (c) cultural; (d) tourism; (e) education, vocational training, youth and sport; (f) civil protection; (g) administrative cooperation.

31.2.3 Enhancement and Improvement of Institutional Structure in the External Dimension In the past structure, main organs for carrying out EU external relations were the Council and the Commission, while the European Parliament and the European Council may carry out certain external competence within their respective functions and capacities. In the new structure under the new TEU and TFEU, the institutional structure in external dimension has been enhanced and improved. The EU now has a separate international identity from its Member States in international affairs. Firstly, the permanent president of the European Council is set up as the image and representative of EU external action. Before the Lisbon Treaty, presidency of the European Council was set up by rotation, the term was 6 months. According to Article 15(5) of the new TEU, the European Council shall elect its President for a term of two and a half years, renewable once. The first President was Herman van Rompuy, the former Prime Minister of Belgium. Since the Presidency is permanent, it has been called by the media as the “President” of the EU. According to Article 15(6), internal tasks of this “President” shall (a) chair the European Council and drive forward its work; (b) ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council; (c) endeavor to facilitate cohesion and consensus within the European Council; (d) present a report to the European Parliament after each of the meetings of the European Council. The external competence is to, at his level and in that capacity, ensure the external representation of the Union on issues concerning its CFSP. To this end, some commentators believe that the position of the President of the European Council is more of an image than real competence. Secondly, the High Representative and the European External Action Service (EEAS) are set up as the “Foreign Minister” and the “Ministry of Foreign Affairs” of the Union. Although the High Representative was established before the Lisbon Treaty, the position was actually served by the Secretary-General of the Council.14 Besides, the function is to assist the Council in matters coming within the scope of the CFSP through contributing to the formulation, preparation and implementation of policy decisions. And, it may only conduct policy dialogue with third parties, acting on behalf of the Council at the request of the Presidency.15 According to 14 See 15 See

Consolidated Version of Nice Treaty, Article 18(3). Consolidated Version of Nice Treaty, Article 26.

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the new TEU, the name is changed from the “High Representative of Common Foreign and Security Policy” to the “High Representative for EU Foreign Affairs and Security Policy”. Although it is only a minor adjustment in its wording, the meaning is far reaching, indicating that the position is no longer limited to the CFSP, but extends to the general foreign affairs of the EU instead. Moreover, the “High Representative” also serves as the Vice-President of the European Commission, thus becoming the deputy head of the EU “cabinet”. Apart from participating in the work of the European Commission and coordinating external actions [Article 18(4)], the High Representative shall also work for the European Council [Article 15(2)], contribute to the development of the CFSP and shall ensure implementation of the decisions as mandated by the Council [Article 18(2), Article 27(1)], preside over the Foreign Affairs Council [Article 18(3)], represent the Union for matters relating the CFSP through conducting political dialogue with third parties and pay visits to international organizations and attend international conferences. The EEAS was set up to assist the High Representative to fulfil his/her duties, which shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States [Article 27(3)]. The EEAS is actually the “Foreign Ministry” of the EU. Thus, either viewed from the title and status of this position or from the actual authority, the High Representative is more than an image of the EU, and is called the EU “Foreign Minister” by the media and the public. Thirdly, EU external competence becomes more intensive and more explicitly distributed. The Lisbon Treaty not only adds external organs, enhance external competence, but also makes the external competence more centralized. The external representation is now concentrated in the High Representative and the daily foreign affairs are now concentrated in the newly established EEAS. Under the previous TEU, the European Council, the Council, the Commission and the European Parliament have relatively clear distribution in EU external actions, and they have established relatively stable cooperative procedures. The new TEU and TFEU, through amending or adding new provisions, further clarify the distribution of external competence of main external organs and intensify the balance and coordination among them.

31.2.4 A Single Set of Rules and Procedures Concerning Negotiation and Conclusion of International Agreements In the Treaty of Nice and its previous basic treaties, the provisions on the competence and procedures for concluding international agreements are decentralized and focused primarily on the EC. The legal basis for the EC’s exercise of concluding competence and the areas or matters involved mainly include the followings: (1) CCP under Article 133(1) of the EC Treaty; (2) Development and Cooperation Agreement

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under Article 177; (3) Association Agreement under Article 310; (4) implied competence under Article 308, i.e. the international agreement proved necessary to attain one of the objectives of the Community, although the EC Treaty has not proved the necessary powers; (5) procedures for concluding various international agreements under Article 300, i.e. the Commission shall conduct negotiations (as authorized by the Council, by its own or together with representatives of Member States), based on the consultation or consent of the European Parliament, the Council may conclude an agreement (or together with the Member States). The old TEU did not express the general concluding competence of the EU, but authorize the Presidency to conclude an agreement with one or more States or international organizations in areas of CFSP and PJCC respectively in Article 24 and Article 38. Differently, the new TFEU specifically has a Part V for unifying and systematically stipulating the competence to conclude international agreements and corresponding procedures. According to Article 216, as a general principle, the EU not only enjoys express competence for concluding international agreements, but also has implied competence to conclude an international agreement where the conclusion of an agreement is “necessary” in order to achieve one of the objectives of the EU. Agreements concluded by the Union are binding upon institutions of the Union and on its Member States. What’s more attractive is that Article 218 is composed of a set of complete and concrete provisions regulating procedures for the EU to conclude international agreements as well as corresponding competence of relevant institutions. Key points are as the following: (1) The Council shall authorise the opening of negotiations, and nominate the Union negotiator or the head of the Union’s negotiating team depending on the subject of the agreement envisaged; (2) The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy (where the agreement envisaged relates exclusively or principally to the CFSP) shall submit recommendations to the Council; (3) The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously for association agreements and for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms. (4) In the following cases, the consent of the European Parliament shall be obtained: (a) association agreements; (b) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms; (c) agreements establishing a specific institutional framework by organising cooperation procedures; (d) agreements with important budgetary implications for the Union; (e) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.

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31.2.5 A Separate Heading and Provision on the Cooperative Relations with International Organizations and the EU Delegations in the Third Countries Before the Lisbon Treaty, it was the EC instead of the EU that was assigned to maintain relations and cooperate with other international organizations. And, it was specifically assigned to the Commission to take the charge.16 Besides, provisions concerned were located in Part Six “General and Final Provisions” in the EC Treaty. While in the new treaty, Title VI of the Part Five of the TFEU specifically deals with “the Union’s relations with international organizations and third countries and Union delegations”, which highlights the importance of such relations and makes it a constituent part of the EU external relation. Article 220 reads that the High Representative and the Commission shall be instructed to establish all appropriate forms of cooperation with the organs of the UN and its specialized agencies, the Council of Europe, the Organization for Security and Cooperation in Europe and the OECD. And, Article 221 regulates that Union delegations in third countries and at international organizations shall represent the Union, and shall be placed under the authority of the High Representative. These are very different from the past practices. Union’s delegations in third countries and at international organizations were in the name of the European Commission and directly under the authority of the Commission.

31.3 Effects of Changes of EU External Competence on Third States and Other International Organizations To sum up, the EU external competence has changed greatly under the Lisbon Treaty. These changes include supplementing to substantive areas and enhancing procedure matters. Such changes leave us some deep impressions. With the enlargement and deepening of the EU integration, the EU attaches more importance to the development of its external relations and the improvement and strengthening of its competence than ever before. The new TEU and TFEU clearly define the legal personality of the EU, and intensively lay down the rules concerning external actions including main organs, basic contents, constituent levels, scope of competence as well as procedure requirements. This fully reflects that the rule of law in EU external actions tends to be more enhanced. Great developments have been achieved in EU external competence, from the establishment of the legal personality of the European Union, the permanent presidency of the European Council, the High Representative and the EEAS, to the systematization of the competence and procedures for the conclusion of international

16 See

Consolidated Version of Nice Treaty, Articles 302-304.

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agreements, the establishment of the representative status of the EU in its permanent missions in third countries and at other international organizations, etc. Since the Lisbon Treaty confers the legal personality to the EU instead of the EC, and the actor of EU external relations is the EU rather than the EC, the name of the EU external action must be changed accordingly. As a contractor to international agreements, within the scope of EU basic treaties, international agreements in all fields, whether based on express competence or implied competence, should not be negotiated and concluded in the name of EC and EU respectively according to three different pillars, but should be negotiated and concluded with third countries or international organizations in the name of the EU. In terms of permanent missions, permanent missions sent in the name of the European Commission to capitals of a third State or headquarters of an international organization in the past should be renamed “permanent missions of the European Union to a State or an international organization”. In terms of participating in activities of international organizations, whether as a formal member or as an observer or a provisional member, it must be in the name of the EU. With regards to participation in international dispute settlement mechanisms or procedures, whether as a party to a case in question (claimant or respondent) or as a third-party, it also must be in the name of the EU instead of the EC. Generally speaking, adjustments, changes and development of the EU external competence, in essence, belong to its internal constitutional and institutional affairs. But such changes deem to have impacts towards the third countries and international organizations, because the EU external actions must be conducted in the context of international relations, must take the international society as their fora and the third countries and international organizations as their partners. The possible impacts are mainly as follows: First, third parties have to fully and timely understand all the changes under the Lisbon Treaty concerning external organs, competences, procedures and related fields. Second, third parties have to get familiar with the new EU “President” and the “Foreign Minister” who represent the EU at the international level. What the third parties need to know is not only the competence of these two new EU positions, but also their religion, style and personality, etc., so as to have a clear idea about them and cooperate with them smoothly. Third, with regards to changes in the EU external competence, the biggest change lies in the establishment of the High Representative, its outstanding competence and the relatively narrowing of the external competence of the European Commission. The most obvious example is that the negotiation of the international agreements was within the competence of the European Commission solely, while it is now shared between the Commission and the High Representative according to the fields and matters covered by the negotiation. Besides, permanent missions in third countries and at international organizations were designated by the Commission, while they are in the charge of the High Representative now. Thus, the third countries and international organizations must be accustomed to the adjustment and change of

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competence between these two organs, such as the change in the name of permanent missions, exchange letters and files, etc. Last, some international organizations have to revise the related provisions of the Charter or other legal documents concerning the EU membership, changing the identity of the membership from the “European Community” to the “European Union”. Similarly, when the European Union is a party or a third party to the case of an international dispute settlement mechanism, the original “European Community” must be changed to “European Union” in the registration, trial procedures, files and documents of the case. WTO is a typical example. After the Lisbon Treaty takes into effect, the membership of the European Community in the WTO and its dispute settlement mechanism should now be replaced by the “European Union”. It should be noted that in cases which the EU is a disputing party, WTO dispute settlement mechanism is now using the name of the EU instead of the EC. However, relevant provisions concerning the membership in the Agreement Establishing the WTO have not been amended yet. Similarly, although names of permanent missions of the European Commission in third countries and at international organizations have been changed to “the EU”, relevant contents on websites of these delegations still keep it as it was. Perhaps the complete adjustment of these names and contents will take some time, but they will come sooner or later.

References European Court of Justice (1971) Judgment, Commission of the European Communities v Council of the European Communities (European Agreement on Road Transport) (Case 22-70) International Court of Justice (1949) Advisory opinions, reparation for injuries suffered in the service of the United Nations Zeng L (1992) European community and contemporary international law. Wuhan University Press, Wuhan Zeng L (2007) General introduction to the EU law: through the new perspective of the constitutional treaty. Wuhan University Press, Wuhan

Chapter 32

Reform of the EU GSP in Context of European Sovereign Debt Crisis and Its Impacts on China

32.1 GSP: A Special Trade Preferential Policy The Generalized System of Preferences, or GSP for short, was initiated by 77 developing countries (Group 77) during the first Conference of the United Nations Conference on Trade and Development (UNCTAD) in 1964, requiring developed countries to grant more preferential tariff treatment to developing countries on the basis of Most-Favored-Nation (MFN) treatment. After several rounds of consultations, the UNCTAD adopted in 1968 the Resolution on Preferential Tariff or Non-Tariff to Products or Semi-Products from Developed Countries to Developing Countries, which marked the formal establishment of the principle of GSP. Contracting parties of the General Agreement on Trade and Tariff (GATT) adopted the resolution in 1964 adding a Part IV to GATT, entitled “Trade and Development” the core of which is to promote the economic development of less developed countries by granting preferential treatment to the import trade of these countries. On this basis, the GATT Convention in 1971 adopted a 10-year resolution on MFN exemption to implement the GSP. Eight years later, GATT adopted ‘Enabling Clause’ in 1979,1 thereby making MFN exemption permanent. Pursuant to the above Clause, preferential trade arrangements granted by developed contracting parties (now developed members of WTO) to developing countries or the preferential trade agreements among developing countries became the great exceptions to the principle of MFN in the multilateral trading

1 See

GATT Contracting Parties (1979).

This Article is the paper that the author was invited to submit to the 2012 Annual Conference of Chinese Society of International Economic Law, and to the 2012 Annual Conference of EU Legal Studies Association of Chinese Association for European Studies. It was then translated by Dr. Jiao Zhang, with the assistance of Lingyuxiu Zhong.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_32

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system. There are currently 13 national GSP schemes notified to the UNCTAD secretariat, namely Australia, Belarus, Bulgaria, Canada, Estonia, the European Union, Japan, New Zealand, Norway, Russia, Switzerland, Turkey and the United States.2 However, neither UNCTAD nor GATT/WTO has developed specific rules or guides on how to implement the GSP. Thus, in practice, the developed countries (groups) as granting countries have implemented the GSP in different ways. At present, the EU, the United States and Canada are the main granting countries of the GSP, whose conditions and requirements are not consistent in rules of origin, types and the range, and access standards of the products under the GSP. For example, in terms of the types of products, some countries have given a relatively broad range, while some others narrow, often excluding the so-called ‘sensitive products. There are many constraints in the implementation of the GSP. For example, the EU and the United States have both implemented market-distorting subsidy programs for agriculture, which undoubtedly and objectively limits the growth of agricultural exports of the least developed countries. Besides, they limit the full implementation of the GSP by gradually raising tariffs, or through ‘graduation mechanism’ and complex rules of origin. In addition, the US and the EU have excluded specific products of comparable advantage or competitiveness of the least developed countries from the GSP. Also, the EU, the US and other granting countries apply the annual review system to the GSP, which largely affected the stability of the GSP. It will make investors have a sense of uncertainty on the future trade interests, thereby affecting their decisions on further investment. To sum up, the GSP initiated by the UNCTAD and followed up by GATT/WTO has certainly played a positive role in promoting export, economic and social developments in developing countries, especially the least developed countries. However, the developed countries (groups) have set up heavy obstacles in the process of granting preferences, making the GSP, which looks and sounds like a positive and wonderful scheme, much less preferential.3 More importantly, considering the non-economic trade factors, some developed countries have excluded specific developing countries in the implementation of the GSP from the beginning. For example, since the US has consistently determined that China is not a market economy country and due to the ideological difference, the US has never included China in the list of beneficiary countries. Some granting countries even suspend or withdraw the GSP towards specific countries, e.g. the EU has withdrawn the GSP toward Bangladesh and suspended that toward Myanmar; recently, in view of the political changes in Myanmar, the EU has resumed the GSP treatment to Myanmar. The practice of withdrawing or terminating the GSP treatment to specific developing countries and even least developed countries for non-economic and trade reasons makes it hard to say that there is no deviation from the original purposes and principles of the GSP initiated by the UNCTAD and WTO. Among developed countries (group), the EU is the first to implement the GSP to developing countries, whose GSP is regarded as the one with the largest scale

2 See 3 See

https://unctad.org/en/Pages/DITC/GSP/About-GSP.aspx. Nguyen (2008).

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and the broadest range to date.4 In 1971, the European Community (EC) began to implement GSP schemes for the imports from developing countries. At beginning, the EC GSP was not targeted at all developing countries, but was limited to colonies or overseas territories of the EC Member States. Later, along with the worldwide development of decolonization movement and the collapse of the colonial system, the focus of the EC GSP was gradually shifted to the vast number of developing countries, and its aim was adjusted from promoting the economic development in developing countries to the sustainable development of a wider scope. In 1992, in the context of the Maastricht Treaty, the objective of the EU GSP was more comprehensive and extensive, that is, promoting the economic, social, cultural and political reform of beneficiary countries.5 The EU GSP is adjusted every 10 years with every 3-year execution period as a term of adjustment. In October 2004, the European Commission proposed a GSP reform scheme. On June 23th 2005, the EU Member States approved this scheme and decided to implement the new GSP since 1 January 2006, of which the 10-year implementation period was 2006–2015. The first implementation term (2006–2008) was established by Council Regulation (EC) No. 980/2005; the second implementation term (2009–2011) was established by Council Regulation (EC) No. 732/2008; 2012 is the beginning year of the third term (2012–2014) of the current 10-year reform scheme.

32.2 Characteristics of EU GSP Scheme (2006–2015) The current 10-year scheme (2006–2015) was developed to adapt to the changing circumstance of the multilateral trading system. The first implementation term (2006– 2008) was established by Council Regulation (EC) No. 980/2005, and the second implementation term (2009–2011) by Council Regulation (EC) No. 732/2008. The current third implementation term (2013–2014) consists of three types of arrangements: (a) the general GSP or “overall GSP Scheme” (overall scheme) or “Standard GSP Scheme”, that is automatically granting trade preferential treatment to 176 developing countries and territories; (b) Special Incentive Arrangement for Sustainable Development and Good Governance, or the “GSP+ ” for short, providing additional preferential treatment in order to support vulnerable developing countries to approve and implement international conventions related to these fields; (c) the Everything But Arms Arrangement (EBA), namely providing the least developed countries with zero tariff treatment to export products with the exception of arms. However, since May 2011, the EU has embarked on the reform of the current GSP and planned to implement the reformed GSP scheme in 2014.

4 Directorate-General 5 Engelsman

for Trade (2010). (2008), p. 2.

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32.2.1 The Arrangement of the General GSP According to the current 10-year GSP scheme, the general arrangement covers 6244 tariff items, benefiting 176 developing countries or territories.6 The products involved are divided into two categories: non-sensitive products and sensitive products. Nonsensitive products (nearly 3200, more than half of the products covered) are granted zero tariff treatment; sensitive products (mainly related to agricultural products, textiles, clothing, decorations, carpets and footwear) are granted ad valorem tariff, 3.5% less than the standard MFN rate of tariff, or are entitled to reduce 30% of the tariff rate based on unit rate calculation, while for textile and clothing, the reduction ratio is 20% of MFN ad valorem tariff. In view of countries covered, during the 3-year execution period, the countries not classified by the World Bank as high-income countries and whose exports are less diversified belong to tariff beneficiary countries under the general arrangement. The so-called “less diversified exports” means that the value of top 5 EU GSP imports from the country to the EU is more than 75% of the total value of the GSP imports from this beneficiary country to the EU.

32.2.2 The “GSP+ ” Arrangement The “GSP+ ” covers 6336 tariff items, including textiles, clothing, vegetable products and food products, and grants the so-called ‘vulnerable countries’ additional treatment, which is more preferential than that granted to standard GSP countries. The prerequisite is that these countries should ratify and implement international standards concerning human rights, core labor standards, sustainable development and good governance, namely 16 UN/ILO conventions concerning core labor standards and human rights and 11 conventions relating to environment and good governance listed in Appendix III of Council Regulation (EC) No. 732/2008. UN/ILO conventions concerning core labor standards and human rights are: (1) International Covenant on Civil and Political Rights; (2) International Covenant on Economic, Social and Cultural Rights; (3) International Convention on the Elimination of All Forms of Racial Discrimination; (4) Convention on the Elimination of All Forms of Discrimination Against Women; (5) Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; (6) Convention on the Rights of the Child; (7) Convention on the Prevention and Punishment of the Crime of Genocide; (8) Convention concerning Minimum Age for Admission to Employment (No 138); (9) Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (No 182); (10) Convention concerning the Abolition of Forced Labor (No 105); (11) Convention concerning Forced or Compulsory Labor (No 29); (12) Convention concerning Equal 6 For

176 countries or territories enjoying the EU GSP, see Council of the European Union (2008), Appendix I.

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Remuneration for Men and Women Workers for Work of Equal Value (No 100); (13) Convention concerning Discrimination in Respect of Employment and Occupation (No 111); (14) Convention concerning Freedom of Association and Protection of the Right to Organize (No 87); (15) Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively; (16) International Convention on the Suppression and Punishment of the Crime of Apartheid. Conventions related to the sustainable development, environment and good governance listed in Appendix III of Council Regulation (EC) No. 732/2008 include: (1) Montreal Protocol on Substances that Deplete the Ozone Layer; (2) Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal; (3) Stockholm Convention on Persistent Organic Pollutants; (4) Convention on International Trade in Endangered Species of Wild Fauna and Flora; (5) Convention on Biological Diversity; (6) Cartagena Protocol on Biosafety; (7) Kyoto Protocol to the United Nations Framework Convention on Climate Change; (8) United Nations Single Convention on Narcotic Drugs (1961); (9) United Nations Convention on Psychotropic Substances (1971); (10) United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988); (11) United Nations Convention against Corruption. ‘Vulnerable countries’ enjoying the EU GSP+ should meet three conditions. First, the candidate country has not been classified by the World Bank as high-income countries during the 3-year execution period; second, the value of top 5 EU GSP imports from the country to the EU is more than 75% of the total value of the GSP imports from this beneficiary country to the EU; third, the value of GSP imports from this country to the EU is less than 1% of the total value of imports covered by the EU GSP.

32.2.3 The “Everything But Arms” (EBA) Arrangement This is a special arrangement specifically made for the least developed countries. Among the EU GSP beneficiary countries, those recognized by the UN as the least developed countries can enjoy such special treatment, and a total of 49 developing countries are included currently. The particularity of this arrangement is that all the products exported to the EU by those 49 countries are exempt from customs duties, except for weapons and ammunition. In practice, this particular arrangement is flexible. When a country is removed from the list of least developed countries by the UN, the country is no longer a beneficiary of the special EU GSP. Special GSP arrangements have a 3-year transition period at least, and the decisions of revocation and transition period are made by the European Commission in accordance with the procedures stipulated by the GSP regulations of the Council of the EU.

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32.2.4 GSP Graduation Mechanism The EU GSP graduation mechanism only applies to the general GSP and “GSP+”, excluding EBA. When a country’s performance in the EU market during the 3year execution period is beyond the threshold set by the EU, the EU will immediately launch the graduation mechanism for the country, revoking the country’s GSP treatment or re-establishing the preferential tariff treatment to the country. The specific calculation is carried out in accordance with the ‘Product Sections’ set up in the International Convention for Harmonized Commodity Description and Coding System.7 According to the EU GSP scheme, the EU launches the graduation system only if the beneficiary countries are sustainably competitive in a wide range of products and are competitive against products exported to the EU market from other countries, thus eliminating the need for the GSP to promote their exports to the EU. The purpose of this mechanism is to ensure that the GSP is granted to the countries who are greatest in need to enhance their sustainable development through the participation in international trade. Under this mechanism, when a product section imported by the EU from a beneficiary country over the 3-year execution period exceeds 15% of all the same products imported under the GSP (12.5% for textile and clothing), the EU will immediately trigger the GSP graduation mechanism for the country. However, if any product section exported to the EU from a GSP beneficiary country exceeds 50% of the country’s total value of imports under the GSP, the graduation mechanism is not applicable.

32.2.5 Temporary Withdrawal of GSP The temporary withdrawal of the EU GSP applies to the general GSP and GSP+ . For the general GSP beneficiary countries, the main factor for the EU to temporarily revoke its preferential treatment is the serious and systematic violation of the abovementioned conventions concerning human rights, core labor rights, rule of law, good governance, environment and sustainable development by the beneficiary countries concerned. Other factors include the implementation of unfair trade practices by beneficiary countries, or the serious deficiency of their customs controls. As for GSP+ beneficiary countries, the factor for the EU to temporarily revoke its preferential 7 This Convention, the signature of which is presided by the World Customs Organization, currently

has 138 contracting parties, but applies to more than 200 tariff administrative regions in the world. It has established “The Harmonized Commodity Description”, a multipurpose international description which is often used by contracting parties to fix respective tariffs and collect economic data. The European Union is the contracting party of this Convention and has established “The Combined Nomenclature of the European Union” according to the “The Harmonized Commodity Description” established by this Convention. See https://ec.europa.eu/taxation_customs/customs/ customs_duties/tariff_aspects/harmonised_system/index_en.htm.

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treatment is that such beneficiary countries do not establish legislation to implement the above-mentioned conventions or fail to implement them effectively. The EU is responsible for investigating the temporary withdrawal of the GSP and submits recommendations to the Council of the EU based on the available evidence and the information provided by the relevant international organizations (such as the UN, the ILO, etc.). The Council of the European Union will decide whether to withdraw the GSP temporarily. During the investigation, the EC may, if necessary, engage in dialogue and communication with relevant beneficiary countries on related issues.8

32.2.6 Reform of Rules of Origin The rules of origin are the core elements in the GSP implementation process. For a long period of time, the EU’s rules of origin and recognition procedures are quite complex, which results in the developing countries’ failure to fully enjoy the EU GSP treatment in practice. In order to simplify the rules of origin and rules of procedures for developing countries to understand and master the EU GSP rules more easily, thus promoting more products to enter the EU market, and in order to enhance the prevention and control of fraud, the EU issued a new regulation on the amendment of the GSP rules of origin on 18 November 2010,9 of which the rules of origin would enter into force on 1 January 2011, and the rules of procedure were planned to be implemented in 2017. The new rules of origin give appropriate consideration to the specific characteristics of different production sectors, especially the special processing requirements. Special provisions are made for products produced by the least developed countries, allowing them to claim originality for more products processed on their territories, even if the raw materials of these products are not derived from their territories. For example, if Nepal manufactures some plastic product and exports it to the EU, even if 70% ingredients of the product are derived from foreign countries, the product can still be deemed by the EU as originating from Nepal. There is no doubt that these special rules of origin are more conducive to expanding the export trade of the least developed countries and promoting their economic development. The new rules of procedure on the issuance of certificates of rules of origin have strengthened the responsibility of product manufacturers and exporters. From 2017, the current certificate of origin issued by the third-country authority will be replaced by that of exporters directly registered through the electronic system. These new rules have prompted the authorities of the exporting countries to simplify the cumbersome procedures of certificate of origin and to re-aggregate their resources to deal with fraud and abuse involving certificate of origin.10 8 Directorate-General

for Trade (2010). Commission (2010). 10 See https://ec.Europa.eu/taxation_customs/customs/customs_duties/rules_origin/preferential/ Article_777_en.htm. 9 European

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32.3 Recent Reform of EU GSP Scheme In view of the continuous fermentation of European debt crisis and the rise of global emerging economies, the EU has started to reflect on its current GSP policy, and embarked on a series of reforms in recent years. Following the revision of the GSP rules of origin, the EU issued a notice on 10 May 2011, formally putting forward the suggestion of overall reform of the GSP. The suggestion refers to an integrated package proposal consisting of two sub-suggestions: one is that the ‘rollover’ of the present GSP remains until the end of 2013. Allegedly, the “rollover” is designed to avoid the suspension of the GSP like that happened in the US (the US government was waiting for the Congress to approve the new GSP, resulting in the suspension of the implementation of the GSP), and to facilitate the GSP candidate countries to submit “GSP+ ” applications; the other is the suggestion of formulating a modification scheme, namely the ‘review’, which is planned to take effect on 1 January 2014. ‘Rollover’ was immediately approved by the European Parliament and the Council of the EU and publicized in the same May. The new review proposed by the European Commission has set up three basic objectives: (1) focus the GSP on beneficiary countries in most need; (2) enhance the implementation of “GSP+ ” as an incentive for good governance and sustainable development; (3) promote the transparency, stability and predictability of GSP implementation. The newly revised GSP scheme leads to the adjustment and enhancement of three existing EU GSP arrangements (the general GSP arrangement, the “GSP+ ” and the special arrangement of the least developed countries) to varied extent. To sum up, the new scheme has the following main features11 : First, reducing the number of GSP beneficiary countries and focusing beneficiaries on selected countries. In the new scheme, the range of GSP products and preferential tariff rates have not changed though, a number of original beneficiary countries have been removed from the list. Three types of countries are excluded from the beneficiary list: (1) according to the World Bank classification, high-or uppermiddle-income countries, such as Saudi Arabia, Qatar, Belarus, Russia, Brazil and Kuwait; (2) countries the preferential treatment to whose exports to the EU is equivalent to or better than the GSP treatment, including the treatment under a Free Trade Agreement or an autonomous special trade system; (3) oversea countries and territories enjoying an alternative access arrangement to the developed market. According to the recommendations of the European Commission, the number of beneficiary countries and regions will be reduced from 176 to 80. Second, enhancing the incentives for the least developed countries to respect the core human rights and labor rights, the rule of law, good governance, environment and sustainable development standards by implementing the GSP+ . Third, enhancing the efficiency and effectiveness of market access of the least developed countries to the EU by implementing the EBA. The EU believes that reducing the number of GSP beneficiary countries means to reduce the competitive pressure on the exports of the least developed countries so that they can enjoy 11 Directorate-General

for Trade (2010).

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more practical preferential treatment. The EU proclaims that no GSP of any other developed countries can be comparable to its special GSP arrangement for the least developed countries. Fourth, enhancing the transparency, stability and predictability of GSP implementation. The EU GSP will be an open system. Although, at present, it has to be reviewed and assessed every three years, it will be easier to attract the EU importers to purchase goods from the GSP beneficiary countries. In addition, the GSP implementation process will be clearer and more transparent, and be regulated by more established legal principles. On 13 June 2012, the European Parliament approved the EU new GSP arrangement which will be implemented since 2014 at first-reading. The arrangement reduced the number of beneficiary countries from 176 to 75; the total value of preferential imports has been reduced from 60 billion euros in 2009 to about 37.7 billion euros. Later, on 4 October 2012, the Council adopted the resolution of amending the current EU GSP Regulations12 This Resolution basically maintained the Commission’s initiative and the supportive position previously expressed by the European Parliament. At the same time, the Resolution reaffirms and especially emphasizes the following aspects: First, the EU GSP reform aims to adapt the EU GSP to a changing global landscape and make it more transparent, predictable and more generous to the countries in greatest need. In recent years, under the impact of the global economic crisis and European debt crisis, not only Europe, the United States and other developed countries continue to slump in the economy, but also a vast number of developing countries have suffered continuous economic recession. Against this backdrop, the EU believes that it is necessary to adjust the GSP scheme in a timely manner. Second, the key point and core of the EU GSP reform is to focus its GSP measures on the least developed countries and low- and middle-income countries. The new GSP scheme will select beneficiary countries based on the economic income of developing countries. Under the new scheme, countries that have concluded free trade agreements with the EU and are entitled to preferential treatment are excluded from the GSP beneficiary countries. And, the countries under autonomous arrangements will be excluded from the scheme either. The adjusted number of GSP beneficiary countries will be reduced by about 50%. Finally, the new program will maintain the structures of three existing subschemes, namely the general GSP arrangement and two special GSP arrangements. The general GSP arrangement applies to all developing countries that are not on the World Bank’s list of high- and upper-middle-income countries, respectively granting the treatment of tariff reductions or suspensions for these countries in accordance with different categories of their products exported to the EU. The first special GSP arrangement is the GSP+ , which applies to developing countries that join the socalled ‘flagship’ for promoting human rights, providing them with further tariff reduction treatment based on the general GSP. The so-called ‘flagship’ countries refer to 12 The Council’s resolution was passed directly without discussion on the conference of its employment, social policy, health and consumer affairs committees.

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those who have signed, ratified and effectively implemented above-mentioned 27 conventions, established by the UN and the ILO, concerning core human rights and labor standards, environmental protection, rule of law, good governance and sustainable development. Another special GSP arrangement entitled the ‘EBA’ arrangement, is specifically set up for the least developed countries. This special arrangement continues to maintain such arrangements as the EU has implemented since 2004, and is not changed under the new Regulation. In short, the revision on the EU GSP arrangement following the reform mainly involves five aspects: country coverage; performance margins and product coverage; product graduation, “GSP+ ” and special safeguards.13 At this point, the EU decisionmaking and executive institutions have basically completed legislative procedures of the GSP reform. The new scheme will be officially published in the Official Journal of the EU by the end of 2012 and is due to apply as of 1 January 2014.

32.4 Impacts of EU GSP Reform on China Since 2012, the vicious cycle of the EU economic recession and the sovereign debt crisis has been accelerating. On 6 September 2012, the European Central Bank announced to reduce its forecast for Eurozone economic growth to −0.6 to 0.2% in 2012, −0.4 to 1.4% in 2013. In this context, there is an obvious downward trend in the trade and investment between China and the EU. In terms of trade, the data released by the General Administration of Customs of China on 10 September 2012 shows that China’s total volume of import from and export to the EU in the first eight months of 2012 is $365.045 billion, dropping by 1.9% year on year. And the export volume is $222.242 billion, declining by 4.9% year on year, while the import volume is $142.803 billion, increasing by 3.1%. It is worth noting that the predicament of China’s export to the heavily indebted countries in the southern Europe has become more obvious. Data shows that in the first 8 months of 2012, China’s total volume of import from and export to Italy is $28.669 billion, decreasing sharply by 19% year on year, while the export volume even slumps by 26%. In terms of investment, data of the Ministry of Commerce of China indicates that the EU has invested $39.7 billion in China from January to July in 2002, a decrease of 2.7% year on year. The EU also plans to amend the trade defense system it set up 16 years ago, namely, it will directly initiate trade investigations in trade without the application from the industry. Recently, the European Parliament and the Council have adopted resolutions to amend the existing GSP scheme, indicating that the EU’s foreign trade policy is tightening.14 As to whether the EU GSP reform has a negative impact on China’s exports to the EU or to what extent the impact is, there is no agreement between Chinese academia and relevant industry sources. The point was made that the EU GSP has limited 13 See 14 See

Council of the European Union (2014). Chen (2012).

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impact on China, because the EU has reduced the beneficiary imports from China three times since 1996. China’s exports to the EU are mostly industrial products, which have been ‘graduated’ as early as 2006. Currently, products covering 90% of shares have already been excluded from the GSP, and only 17 categories of export products, such as fresh meat and other primary products, still enjoy GSP benefits, taking up insignificant share.15 However, most people believe that the EU GSP reform will undoubtedly have a negative impact on China’s exports to the EU, especially on major export products. In fact, this negative impact has already been manifested during the EU GSP execution period (2009–2011): toys, textiles, shoes, furniture, lamps, jewelry and artificial jewelry, electric equipment, clocks and watches, etc. have been declared being ‘graduated’ from the GSP.16 My personal view is that the impacts of the EU GSP reform on China’s exports to the EU is without doubt. This effect, especially on those exports to the EU with long-term market strength, will become more and more obvious over time. Such impacts can be confirmed or illustrated from the following aspects: Firstly, data from the General Administration of Customs of China clearly shows the slowdown trend in the EU-China trade, particularly exports to the southern Europe. Although the main cause is undoubtedly the continuous European debt crisis and EU’s trading measures towards Chinese products in anti-dumping, countervailing and safeguard cases, frequent adjustments of the EU GSP is an important cause as well. Although China is still the beneficiary of the EU GSP, a large number of Chinese exports to the EU lose the EU GSP treatment, as GSP reforms have sharply reduced the categories and the quantity of beneficiary products. As a consequence, Chinese exports will no longer have price advantage in the EU market and have to face competitive pressures in three dimensions: pressures from EU-produced products, from the products of third countries within the GSP, as well as from the products of third countries who are not GSP beneficiaries. Secondly, lowering the threshold for entry into GSP “graduation” standard is bound to affect the Chinese exports to the EU. As mentioned earlier, under the EU GSP graduation mechanism, when a product or product category exceeds 15% of all the same products imported under the EU in 3-year execution period, that product could no longer enjoy the preferential treatment, while the threshold for graduating textile and clothing is 12.5%. This mechanism is extremely unfavorable to China. Since textile, clothing, shoes, hats and toys have long been traditional major exports of China to the EU, the Chinese exports could easily exceed the 15 or 12.5% “threshold”, thus the EU could easily launch “graduation” mechanism to Chinese products. Finally, the EU “GSP+ ” seems attractive, however China is bound to hardly enjoy this special preferential treatment because of its strict or nearly ‘harsh’ qualifications and requirements. More importantly, these qualifications are rather political than economic and trade requirements, that is, requiring beneficiary countries to sign and ratify nearly 30 international conventions concerning human rights, labor, rule of law, good governance and sustainable development. And even though beneficiary 15 See 16 See

Qin (2010). Yang (2009).

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countries have participated in these numerous conventions, the EU will cancel the special preferential treatment to a country once it discovers the country has not effectively implemented the conventions. Although China has acceded to majority of these conventions, after all, there are some conventions China has not joined yet. Besides, it takes time for China to ratify some conventions (e.g. the United Nations Covenant on Civil and Political Rights). Even if China ratifies all those conventions, the EU could suspend the GSP+ treatment to China any time once it confirms that China has not effectively implemented those conventions. It can be seen that China is not able to join the rank of ‘flagship’ countries in terms of human rights, rule of law, good governance and environmental protection for a certain period of time.

32.5 Conclusion The original aim of the GSP launched by the UNCTAD and GATT/WTO is to increase the export income, promote the industrialization and speed up the economic growth of the developing countries. However, since its establishment and implementation are not based on equality and reciprocity, but on unilateral basis, the developed granting countries could impose conditions on beneficiaries in practice. The conditions include both economic and non-economic requirements. Thus, the GSP treatment granted by developed countries (groups) to developing ones achieves not only economic goal, but also political one, which is even more important. The current EU GSP reform has resulted in a significant reduction in the number of beneficiary countries and in the categories and range of beneficiary products, which is said to give more focus on developing countries that are more in need, especially the least developed countries, but as a matter of fact it uplifts the GSP threshold. More significantly, these thresholds are completely beyond the economic category, but are purely political and social. The EU has long been complacent about being the first to implement the GSP, and is the largest provider in the world. The EU is even more self-delighted that it uniquely implements the “GSP+ ” and the “EBA” Arrangement. But, in practice, many poor countries could hardly be qualified to enjoy these special GSP arrangements because of their domestic limitation in political, economic and social fields in a relatively long period. It means that the EU GSP seems to be a ‘delicious cake’, and in fact the developing countries, especially the least developed countries could hardly taste, namely, “feed on illusions’. Not only scholars in developing countries, many Western scholars have also seen through the essence of the EU GSP reform. Recently, a member of the European Parliament has rightly pointed out in a speech that the EU often shows off its measures on eliminating poverty and contributions thereto, one of which is the implementation of the GSP and its reform. But one can hardly imagine that developing countries have to cross many thresholds to enjoy these special preferential treatments, that is, the necessity to sign, ratify and effectively implement up to 27 so-called core treaties concerning human rights, rule of law, good governance, environmental protection and sustainable development. Developing countries must pay high price to fully

32.5 Conclusion

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meet these requirements of the EU. Even some of the EU Member States have not accessed to these treaties so far. The behavior of demanding others to do the things you yourself have failed to do is ‘colonialism by another name’. The EU has been China’s largest trading partner for eight consecutive years and China is the second largest trading partner and the biggest origin of imports for the EU. The rapid development of China-EU trade, of course, results from numerous positive factors. Apart from that, an important incentive is that China has long been the beneficiary country of the EU GSP. In the current context of global economic crisis and the European debt crisis, the economy has suffered continuous recession, even negative growth. Against such backdrop, the EU launches the GSP reform, reducing sharply the number of beneficiary countries and categories and range of products. Although the EU claims to shift the focus of the GSP to the countries in greatest need, it might unavoidably be regarded as a kind of trade protectionism by outsiders, which will undoubtedly impose negative impacts on Chinese economy and trade. It can be anticipated that with the implementation of the new scheme of the EU GSP, more and more China’s exports to the EU would be excluded from the GSP treatment and the chances to apply for the EU “GSP+ ” arrangement are even fewer. The EU has also strengthened the defense system against China’s exports since 2012. As a response, China should promptly adjust its trade strategies, actively explore new export markets, appropriately diversify export destinations, and also take countermeasures against the EU trade defense measures (anti-dumping, countervailing and safeguard measures).

References Chen L (2012) The EU tightening policy: sharp reduction of GSP countries. https://finance.sina. com.cn/world/ozjj/20120620/062012358130.shtml Council of the European Union (2008) Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences from 1 January 2009 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007. Off J Eur Commun (L211) Council of the European Union (2014) EU human rights guidelines on freedom of expression online and offline. https://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/ foraff/132729.pdf Directorate-General for Trade (2010) The European Union’s generalized system of preferences. European Union. https://ec.europa.eu/trade/policy/countries-and-regions/development/ generalised-scheme-of-preferences/index_en.htm Engelsman F (2008) WTO compatibility of the EC 2006–2015 generalized system of preferences. Public Policy and Human Development. https://arno.Unimaas.nl/show.cgi?fid=15217 European Commission (2010) Commission Regulation (EU) No 1063/2010 of 18 November 2010 amending Regulation (EEC) No. 2454/93. Off J Eur Commun (L307) GATT Contracting Parties (1979) Differential and more favorable treatment, reciprocity and fuller participation of developing countries. https://www.wto.org/english/docs_e/enabling1979_e.htm Nguyen J (2008) The generalized system of preferences. The George Washington University. https:// internationalecon.com/students/JNguyen.pdf

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Qin F (2010 May) The EU GSP reform has limited impacts on China’s exports. https://finance.sina. com.cn/j/20110513/02199834794.shtml Yang X (2009) The influence of the adjustment of the EU rules of origin on China and the treatment. China Bus Update (8)

Chapter 33

Non-market Economy Issues in Sino-EU Relations: A Purely Technical Matter or Beyond?

33.1 Introduction In the past two decades or so, with the fast development of Chinese economy and evergrowing volumes of Chinese trade of exports, Chinese exporting products have been more and more frequently suffering from trade remedy measures taken by importing countries or entities, with antidumping measures as the most frequent cases in which the EU has been the leading complainant.1 Fearing the negative impacts of Chinese exports in their respective industries or even the overall economy, pre-existing WTO Member, led by the US and EU, Japan and Canada may be also added up, had pressed China hard to agree on certain discriminatory provisions specifically to Chinese products in negotiations of its accession to the WTO. As a compromise, China, it might well be said as a loser to certain extent, accepted 15 years of transitional arrangements in Chinese Accession protocol2 which in essence endorsed the internal acts of the EU and the US and other WTO Members concerning the treatment of China as a non-market economy. 1 Among

124 EU antidumping investigations from 2000 to 2004, 23 cases had targeted China (18.5% of the total); 12 cases within the single year 2006; since the send half of 2007, another wave of antidumping investigations again China has been rising and 9 cases already launched until February 2008, available at: https://www.cacs.gov.cn/cacs/news/xiangguanshow.aspx?Articl eld=28894; https://business.sohu.com/20070402/n249149604.shtml; https://www.bx.yfzs.gov.cn/ gb/info/WTOyfz/LTXX/2008-02/25/0914221115.html. 2 See Protocol on the Accession of the People’s Republic of China, Article 15. As for detailed and critical comments, see Zeng (2005). The original version was written by Prof. Zeng in English. See Zeng Lingliang and Zhang Ying, “Non-Market Economy Issues in Sino-EU Relations: A Purely Technical Matter or Beyond?”, in Paulo Canelas de Castro (ed.), The European Union at 50: Assessing the Past, Looking Ahead, Macao: University of Macao, August 2010, pp. 355–380. Thanks to Mr. Zhou Xinliang for re-typing the whole Article.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_33

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However, the Chinese government soon realized that it was too costly for it to accept those special and specific clauses of non-market economy status in the Protocol on its accession to the WTO. In order to make certain remedies for its previous false undertakings, the Chinese government decided to take two new strategies: one was to negotiate and conclude regional trade agreements with other WTO Members,3 the other was to strive for the recognition of its full market economy status by other WTO Members through bilateral diplomacies. As for the latter, China has so far gained the positive recognition by roughly 50% of WTO Members,4 the majority of which is developing country Members. Though some developed country Members such as New Zealand, Norway, Australia, Switzerland, etc. have joined this team of recognition, still no same positive responses for the most influential Members such as the US and the EU, Japan and Canada, etc. Accompanying with the ever-increasing anti-dumping cases against China and different official views on China’s full market economy status among WTO Members, academic discussions, debates and comments on the subject matter have been abundant. This paper is not going to repeat or even sum up the existing analysis and comments on the issue, but try to explore the subject matter in a different perspective, namely with a mixed macro politics-economics-rule-oriented analysis. The incentive of this methodology is that these authors do not agree with the official and academic conclusion mad by the EU and some scholars that China’s Full Market Economy Status is a purely technical matter in anti-dumping investigations against Chine exports. On the contrary, we hold the view that the EU’s identification of China as a Non-Market Economy, in spite of its self-clear technical purpose in calculating margins between normal values and exporting prices of targeted products in antidumping investigations, has profound general political and economic implications. This presumption could be well justified, to start with, by looking into the origins and evolution of this very conception of Non-Market Economy (Sect. 33.2), exploring various non-technical considerations of the EU for its reluctance to recognize China’s FMES (Sect. 33.3) and evaluating those non-technical connotations and effects of both recognition and non-recognition of China’s FMES by all other WTO Members (Sect. 33.4).

3 China

so far has notified nine regional trade agreements (with six different partners) to the WTO https://www.WTO.org/english/tratope/regionelaze.xls,detailed comments see Snyder (2009). 4 According to Ministry of Commerce, the People’s Republic of China, there had been 77 countries recognizing China’s full market economy status by 27 February 2008, available at: https://english. people.com.cn/90001/90776/90883/6363589.html.

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33.2 Strong Political Implication in the Conceptual Origins of Non-market Economy Since the Chinese government first formally requested the EU to recognize its full market economy status in 2003,5 the EU officials or spokesman have repeatedly and consistently stated that the EU’s non-recognition of China’s full market economy status is purely a technical matter in determination of normal values of specific products imported from China in anti-dumping investigations.6 This statement, though it may true on the surface and even to certain extent, is questionable putting several factors into combined consideration. The breakthrough may first be made from the historical context in which the concept “Non-Market Economy” was produced and developed. The EU is the first among WTO Members formally using the Non-Marker Economy as a legal concept contrast to Market Economy in its internal legislation. That was Council Regulation 1681/79 which in its Article 3(2)(c) provided: In the case of imports from non-market economy countries and, in particular, those to which Regulations (EEC)No 2532/78 and (EEC)No 925/79 apply, normal value shall be determined in an appropriated and unreasonable manner on the basis of one of the following criteria: (aa) the price at which the like product of a market economy third country is actually sold; (i) for consumption on the domestic market of that country, or (ii) to other countries, including the Community; (bb) the constructed value of the like product in a market economy third country; or (cc) If neither price nor constructed value as established under (aa) and (bb) above provides an adequate basis, the price paid or payable in the Community for the like product, duly adjusted, if necessary, to include a reasonable profit margin.

As systematically and profoundly exposed by Professor Snyder, the concept of Non-Market Economy in the EC anti-dumping law was deeply rooted in political context of Cold War.7 In more concrete description this new concept was “developed partly through relations among different sites in a world of global legal pluralism” … “the most important sites were the United States, the GATT, the EC, the Soviet bloc of Central and Eastern European countries (with the Soviet Union in the background), and China”.8 As a well-known history, the globe soon entered into the Cold War after World War II between the two big powers: one was the United States leading the capitalist camp signaled as market economy countries, while the other was the Soviet Union leading 5 China lodged its request for Market Economy Status (MES) in June 2003 and provided supporting

documentation in September 2003. Additional information was submitted in the course of 2004. The Commission undertook to provide the Chinese authorities with a preliminary assessment of their MES request by the end of June 2004. See https://trade.ec.europaeu/doclib/docs/2004/june/ tradoc117795.pdf. 6 Rémond (2007). 7 See generally Snyder (2001). 8 Ibid., p. 374.

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the communist camp described as plan economy countries with state monopoly of foreign trade. The envisaged Charter of the International Trade Organization (ITO) once had a special section called “Expansion of Trade by Complete State Monopolies of Import Trade” requiring State Trading Members to import minimum amount of goods from other Members. Since ITO failed to be established and the Soviet Union, then the only target, did not become the GATT Contracting Party, the special provision on State Trading Countries was eventually crossed out from the GATT 1947.9 As a result, the free-trade- oriented GATT was designed as a provisional multilateral trading agreement with all of its original Contracting Parties being market economy entities. Accordingly, the primary version of provisions on antidumping and countervailing measures in GATT Article VI (its wording has been maintained till now) did not make explicit differences between market economy countries and state trading countries (not to mention the concept of non-market economy) in providing the imposition of anti-dumping and countervailing duties. Instead, Article VI (1) of GATT set up three uniform comparators for determining normal values of exporting products regardless of its origins, namely, (1) domestic price for the like product in the exporting country; or in the absence of such domestic price, (2) the highest comparable price for the like product exported to any third country, or (3) the construed price in the country of origin, that is, the cost of production plus reasonable selling costs and profit.10 Since 1950s increasing trade took place not only with each of the two political camps, but also between the Eastern bloc and the Western bloc. At the same time, Czechoslovakia who had belonged to the Western camp upon its accession to the GATT suddenly shifted itself to the Eastern camp. Such economic and political changes urged the US and the Western European countries to reconsider the appropriateness of GATT Article VI and their respective domestic antidumping law in their application to imports from Eastern European countries. Again, echoing the strong voice of the US, an interpretative note was added to Article VI (1) of GATT in the 1954–55 Review Session (well-known as “the 1955 Interpretative Note”) which stated as follows11 : It is recognized that, in the case of imports from a country which has complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1, and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such a country may not always be appropriate.

Then, how do we evaluate the significance or impacts of this historical Note in the evolution of international legal regulation in antidumping and countervailing measures in spite of doubts about its legal status12 ? At least, the following points might not be neglected: 9 Detlof

and Fridh (2007). Article VI(I), GATT 1947. 11 This supplementary provision is endorsed by the Anti-Dumping Agreement in the Uruguay round. 12 See Snyder (2009), p. 383. 10 See

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Firstly, although the Note did not directly use the concept of “non-market economy”, it for the first time in international documents created the new concept of “a country which has complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State”. Therefore, it opened the international legal window for importing countries to apply different methodologies in determination of normal values of the alleged dumped product from a non-market economy country. Secondly, the Note, however, by no means indicated that Article VI (1) of GATT would be denied completely in application for alleged dumped products from those countries with monopoly of trade and control of domestic prices.13 Instead, it only illustrated the “Special difficulties” in determining normal price of the product concerned and its inappropriateness in making compatibility price in some cases of anti-dumping investigations for this newly identified kind of countries. Thus, the possibility of using domestic price of the like product in the alleged non-market economy country still was not excluded. Thirdly, the Note, though it predicted such “special difficulties” and inappropriateness and “possibility” of “necessary” consideration, did not further provide with solution of the issues in these special circumstances. Thus, much discretion has since been left for importing countries to set up their own criteria either by national law or administrative measures in determination of normal values of the alleged dumped products from non-market economy countries. Since then, to select the domestic price of the like product in the third market economy country as the normal value of products manufactured in a state-trading county has been become a general practice, especially by the U.S and the EU.14 Commenced with the late 1950s, another important political motivation further stirred up the normalization of discriminatory treatment for state-trading countries in antidumping/countervailing investigations, that is, the application of several Eastern European countries (Poland, Romania and Hungary, etc.) to accede to the GATT. As a result, the different approach was established in the Report of Working Party in Poland’s accession to the GATT (known as “Poland Model”) and followed by other working parties in their respective reports.15 The core of the “Poland Model” was that it relinquished any use of the domestic prices in state-trading countries, instead, “it offered importing counties the possibility of not using prices in the state-trading country of exportation” and “it permitted the construction of normal value”, thus “greatly increased the scope for administrative discretion”.16 13 Trommer

(2007), p. 591. first antidumping investigation concerning a state-trading economy county by the US was in 1960, that is, Federal Reserve System (1960), quoted from Snyder (2001), p. 384. See also Horlick and Shuman (1984), p. 815. 15 The “Report of Working Party on Accession of Poland” was adopted on 26 June 1967; the “Report of Working Party on Accession of Romania” was adopted on 6 October 1971; the “Report of Working Party on Accession of Hungary” was adopted on 30 July 1973. See detailed comparative analysis in Snyder (2001), footnotes 126–131, pp. 393–394. 16 See Council of Representatives (1967), para. 13. See also the critical comments, Snyder (2001), pp. 392–393. 14 The

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The “Poland Model” has far-reaching impacts on the evolution of discriminatory approaches to state-trading countries by importing countries in antidumping/countervailing investigations and decisions. It created a precedent in the multilateral trade system to set up different criteria towards state trading applicant countries by means of accession protocols between themselves and other Contracting Parties, thus making the previous unilateral practices by the US and Interpretative Note 1955 further into bilateral or even multilateral undertakings. However, this “Poland Model” had not been adopted again for almost 30 years until the Protocol on Chinese Accession to the WTO.17 The unfairness of the Protocol in this specific aspect is obvious since currently China, though its market economy might not be perfect or might even be doubted by some of its trade partners, could not in any case be identified as a state-trading country or “a country with complete or substantially complete monopoly of trade”. Though its commencement of its differential treatment towards non-market economy countries both in legislation and administration was much later than the US and the GATT, the EU, in terms of this specific aspect, could never tear itself away from the political context of the Cold War. This is not only because the EC started its special provisions of antidumping law (including its early revisions) for non-market economy countries right in the process of the Cold War, but more importantly these special treatments have been developed in line with those initiated by the US in its domestic legislation and administration as well as in the multilateral trade system under the atmosphere of the Cold War. Tracing the origins and evolution of the discriminatory treatment of non-market economy countries with China as the most heavily targeted, it is not difficult to be impressed that though these countries are no longer in any sense the same statetrading or plan economy countries, the system of treatment of so-called non-market economy countries has not substantially changed, but rather maintained status quo.18 In spite of technical considerations, we cannot avoid thinking that the Cold War, though it may be over in political fields, still has its shadows in international trade relations, including EU-China trade relations.

33.3 Non-technical Incentives of EU Non-recognition of China’s Full Market Economy Status In order to justify the technical nature of its reluctance to recognize China as a full market economy, the EU has adopted two mutually connected steps as a kind of friendly and positive gesture to China’s request: one was to deal with antidumping

17 See 18 See

World Trade Organization (2001), para. 15. Detlof and Fridh (2007), p. 11.

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complaints against China case by case,19 the other is to establish specialized criteria20 of evaluation which has been conducted twice.21 No matter how the EU emphasizes the technical nature of this specific policy,22 its non-technical incentives and intentions are not at all difficult to be presumed, combined with other closely relevant events and factors.

19 As a result of two amendments to the EC basic antidumping regulation, a third kind of countries called “special economy countries”, has been introduced, namely, Kazakhstan, the People’s Republic of China, Russia, Vietnam and any other WTO nonmarket economy members at time of the initiation of an antidumping investigation. Accordingly, if antidumping investigations concerning with imports from these new categorized countries, individual exports concerned have chances to apply successfully for treatment of market economy provided they meet the criteria and procedures set out in Article 2(7) (b)of the EC basic antidumping regulation. See Council of the European Union (1998). Council of the European Union (1998), pp. 18–19, and Council of the European Union (2000), pp. 2–3. See more detailed analysis in Trommer (2007), p. 571. 20 These five criteria are: (1) decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labor, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values, (2) firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes. (3) the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to deprecation of assets, other write-offs, barter trade and payment via compensation of debts, (4) the firm concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and (5) exchange rate conversions are carried out at the market rate. See Council of the European Union (1998). Council of the European Union (1998), 18–19, Article 2(7)(e). 21 China’s first request to the EU was made in June 2003 for the first time. In June 2004 the EU Commission issued a negative assessment concluding that although China had made “significant progress”, it was decided, for the moment, not to grant the status of market economy for the purpose of anti-dumping investigations. Hong Kong Trade Development Council (2006). In June 2007 the EU presented China with an updated assessment of China’s progress towards Market Economy Status, in which it is concluded that China has met one of the five technical criteria for MES, and proposed steps to China that will help make progress on the remaining four criteria. See EU Business (2007). 22 In its most recent assessment presented to China, the EU Commission once again stressed that “[T]his assessment is a technical exercise within a limited context: MES is only relevant for some practical aspects of anti-dumping Investigations. No judgment is passed on China’s economy as such”. See https://www.eubusiness.com/trade/chiNa-eu-trade.

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33.3.1 The EU’s Granting China a Special Market Economy Status, It Seems to these Authors, Is Not a Progressive Step on Its Roadmap of Recognizing China’s Full Market Economy Status, But as a Matter of Fact an Enhanced Discriminatory Treatment of China as a Non-market Economy in Antidumping Investigation The EU antidumping law, instead of stipulating what constitute a non-market economy, lists a number of non-market economy countries and further divided them into 3 groups. In Group I are those which have undertaken substantial reforms resulting in the emergence of firms for which market economy factors might prevail.23 At present, China, Vietnam and Kazakhstan are within this group. Group II includes those non-market countries which are WTO Members at the date of the initiation of antidumping investigation. So far, Albania, Armenia, Azerbaijan, Georgia, Kyrgyzstan, Moldova and Mongolia are listed in this group. Other non-market economy countries are put into Group III, namely Belarus, North Korea, Tajikistan, Turkmenistan and Uzbekistan. Individual companies in the first two group countries may apply for “market economy treatment” or “special market economy treatment”, meaning that their normal values of the alleged dumped exports will be possibly calculated in accordance with the domestic prices of the like products in their home country.24 At first glance, this limited or conditional recognition of China’s market economy status seems to be better than nothing since at least some Chinese exporters may have the possibility of being treated the same as an exporter from a market economy country in antidumping investigation. “As a main benefit, the exporter receives an individual anti-dumping duty, as opposed to facing the residual duty calculated for the entire country, which is established on the basis of domestic prices in the exporting market. Such individual duties are generally lower than the residual duty determined on the basis of analogue country or even best information available practice”.25 In substance, this sub-categorization does not alter the discriminatory nature and political and ideological prejudice in the EU antidumping investigations against China and other counties concerned. In the first place, this sub-categorization does not generally change the non-market economy status of those special market economy countries including China. Only those individual companies in individual cases may have chances to enjoy the market economy treatment in calculating normal values. This further means that event the same individual company may be treated differently in different antidumping proceedings. 23 Council

of the European Union (1998) and Council of the European Union (2000). Detlof and Fridh (2007), pp. 12–13. 25 Trommer (2007), p. 571. 24 See

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585

In the second place, this sub-categorization is a kind of conditional recognition of China’s special market economy status. This individual granting of special economy treatment is by no means automatic and only those companies who have applied for such a treatment and shown that their operation and management are under market economy conditions could enjoy the so-called special economy status. In the third place. this sub-categorization makes companies in non-market economy countries bear even higher costs and more burdens and time-consuming. According to one observer, “[I]n the case of special market economies, the exporters of the country under investigation are subject to several additional procedural requirements if they want to receive the same treatment”.26 For instance, they have to fill up and submit special market economy treatment claim form which “contains detailed questions about the companies’ activities related to the five-market economy treatment”.27 “Many firms cannot cope with the detailed financial and operational data requested by the EU”.28 The even worse is that if they fail to obtain market economy treatment status, an analogue country will be selected for the calculation of the normal values of their exports, which means that they have to do additional preparations for comments with regard to the selection of analogue countries by the EU. Thus, they are “subject to even more extensive procedural requirements not only than the market economy exporters but also compared with exporters from traditional non-market economy countries”.29

33.3.2 Anxiety of Threats by The Chinese Ever-Increasing Exports to the EU is One of the Very Factors Behind Pushing It not to Give Its Recognition of China’s Full Market Economy Status Both the EU and China have become the two biggest markets in the world. In 2006, China remained the EU’s 2nd largest trading partner and the latter is the first of the former. However, the balance of the Sino-EU trade for the past over two decades has changed dramatically. “Whereas the EU enjoyed a trade surplus with China at the beginning of the 1980s, trade relations are now characterized by a sizeable and widening EU deficit with China (approximately e128 billion in 2006). This represents the EU’s largest bilateral trade deficit”.30 Therefore, “European companies, while gaining from China’s growth, continue to face serious barriers to access China’s market. There is a growing risk that the EU-China trading relationship will

26 Ibid.,

p. 576.

27 Ibid. 28 Green

(2004), p. 5. (2007), p. 577. 30 See https://ec.europa.eu/trade/issues/bilateral/countries/chinal/index_en.htm. 29 Trommer

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not be seen as genuinely reciprocal”.31 As a conclusion, the EU side defines the EU-China trade relation as a combination of both “competition and partnership”.32 Understandably, rebalancing trade relationship between the two sides, greater accession to the Chinese market for European firms and further enhanced enforcement of intellectual property rights are among all the top priorities in the EU’s agendas concerning China. During his most recent visit to Beijing for the Tenth EU-China Business Summit, President Barroso clearly stated that though he himself “want[s] to make things in a way that European citizens view China positively and in no way as a threat … the considerable and growing trade deficit is adding to EU citizens’ anxiety about globalization, and is growing in political importance. Indeed, there is a risk that the economic emergence of China is seen by Europeans as a threat”.33 At this same updated EU-China Business Summit, Commissioner Peter Mandelson further listed a number of frustrations in the present situation of the EU-China trade relations, namely, “Frustration at the fact that European businesses lose an estimated 55 million euros a day in trade opportunities because of remaining barriers in the Chinese market … Frustration at Europe’s exploding trade deficit with China. Frustration that Europe still sells more to the 7.5 million people who live in Switzerland than the 1.3 billion people who live in China. Frustration that in spite of the legislation put in place, and the efforts made by the State Council, European businesses operating in China still have serious problems with intellectual property theft”.34 In order to overcome these “frustrations”, relinquish the “anxiety” and even “threat” views by European companies and citizens and realize the purposes of rebalancing EU-China trade based on genuine reciprocity, the EU must have to adopted parallel approaches both externally and internally. Externally, the following measures have been constantly adopted at both bilateral and multilateral levels. At bilateral level, annual EU-China Summit, regular EU-China Business Summit and various irregular meetings of EU-China high trade officials and dialogues are the most frequently-used approaches. Of course, the negotiations already in process of the new EU-China Partnership and Cooperation Agreement (EU-China PCA) are the most direct bargaining platforms targeting the issues of imbalance of trade and market access, etc. Simultaneously, the EU will continue to adequately use the WTO, especially its current Doha Agenda and dispute settlement mechanism, to gain trade interest and Chinese market access at maximum. For instance, most recently (18 March 2008), the EC formally brought a case against China concerning its measures affecting financial information services and foreign financial information suppliers.35 Internally, it is not difficult to assume that the EU will continue the full and even stricter use of its existing unilateral trade remedies against Chinese exports so as to provide a maximum protection of its related industries. Among its trade remedies, 31 European

Commission (2006), p. 15.

32 Ibid. 33 Barroso

(2007). (2007). 35 World Trade Organization (2008). 34 Mandelson

33.3 Non-technical Incentives of EU Non-recognition …

587

one of the most frequent and effective is the special antidumping/countervailing regime against China (the other is perhaps the special safeguard measures against China). The reasons could be easily deduced in both legal and practical perspectives. From a legal point of view, there is no legal danger for the EU to persist in its implementation of this discriminatory antidumping regime against China. In other words, it does not fear any complaints of its legality that might be brought by China at whatever levels at least before the year 2016 because it is also explicitly fixed or granted in the Protocol of Chinese accession to the WTO.36 From a practical point of view. since this discriminatory antidumping mechanism whose legality could not be successfully challenged yet, has proved to be the most forceful and efficient way to restrain or slow down to certain extent the increasing volume of Chinese exports to the EU market, there is no overriding ground for the EU to abolish this grey trade protectionist means at least till the mid-2010s. Otherwise it might well be blamed internally as a foolish bureaucracy. Therefore, it is not optimistic at all, it seems to these authors, that China would win the EU’s recognition of full market economy status before the deadline set up in the Protocol of Chinese Accession to the WTO. As one commentator recently observed, “considerations of a more political nature seem to enter the EU’s calculations. Thus, there are signs that the EU may be using the MES issue as a lever to obtain some concessions in a number of areas which, though not directly linked to it, are also meant to promote further reforms of China’s economy and secure better access to its market”.37

33.3.3 The Suspicion Cannot be Easily Excluded that the EU Intends to Use Its Recognition of China’s Full Market Economy Status as a Bargaining Chip to Force China Even to Meet Its Other Requests Beyond Trade and Economic Areas In addition to the issues of trade deficits, market access and intellectual property rights, democracy, human rights, rule of law and good governance in China have constantly been concerned by the EU. Although all these aspects are not directly relevant to exports, investment or industrial interests of the EU, they are always highlighted both in its internal integration and external relations. Even though the EU has never linked its assessment of China’s market economy status to these issues which are highly politically sensitive it is nevertheless not certain that the EU officials have not kept these concerns in their minds in their granting determination. As a commonly used technique of diplomacy, international actors in their bilateral relations or at multilateral levels always make their advantageous position in one area 36 See World Trade Organization (2001), section 15: Price Comparability in Determining Subsidies

and Dumping. (2007), p. 346.

37 Rémond

588

33 Non-market Economy Issues in Sino-EU Relations …

into a full play in other areas in which they are either at disadvantageous position or they want to push certain values or standards that they think are dominant in the society. Owing to the mixed history of both its glory civilization and disastrous two world wars, Western Europe has become a leading force to promote democracy, human rights, rule of law and good governance not only domestically, but also regionally and even globally. The EU, since its three pillars took the shape in 1992, has gradually manifested democracy, human rights, rule of law and good governance as its core values to be respected and promoted. In the present basic EU Treaty, the Contracting parties not only confirm in its preamble their attachment to “the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law,38 but also explicitly set these principles as the very foundation of the EU.39 It is worthy of further notice that the updated Treaty of Lisbon even more highlights these fundamentals by the following innovating approaches. Firstly, it changes the key word “principles” into “values” to define these fundamentals.40 Secondly, it lifts up the position of these fundamental contents in structure of the Treaty Articles by asserting a new Article I(a) to replace the content of Article 6 (1) of the present EU Treaty (with some revisions).41 Thirdly, it uses Article 6 to further enhance the attachment to the EU to respect for human rights and fundamental freedoms by providing: (1) “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties”; (2) “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”; (3) “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.42 Externally, provision of “democracy and human rights” has turned to be an imperative and model clause in the new type of Partnership and Cooperation Agreements (PCAs) concluded between the EU and a number of third countries, such as Lomé Convention IV bis and the Cotonou Partnership Agreement between the EU and the ACP Countries,43 and the PCAs between the EU and Members of Commonwealth of Independent States (CIS).44 Therefore, it seems to be not surprised at all 38 See

Consolidated Version of the Treaty on European Union, Preamble. Consolidated Version of the Treaty on European Union, Article 6(1). 40 See Treaty of Lisbon, Article I (3). 41 See Consolidated Version of the Treaty on European Union, Article 6 (1) and Treaty of Lisbon, Article 1 (3). 42 See Treaty of Lisbon, Article 1(8). 43 See Hadfield (2007). 44 See particularly the PCAs between the EC and its Member States with Georgia, Article 71; with Uzbekistan, Article 68; with Azerbaijan. Article 71; and with America, Article 68. https://ec.europa.eu/external_relations/ceeca/pea/pea_georgia.pdf; https://ec.curopa. eu/external_relations/ceeca/pea/pea_uzbekistan.pdf; https://ec.europa.eu/external_relations/ceeca/ pea/pea_azerbaijan.pdf; https://ec.europa.eu/external_relations/ceeca/pea/pca_armenia.pdf. 39 See

33.3 Non-technical Incentives of EU Non-recognition …

589

that the EU will strive for inserting this model clause in the pending negotiation of the EU-China PCA and use its granting of full market economy status as the bargaining chip to realize its purpose. The most recent “3.14 unrest in Tibet” and the strong condemning reflection by the European Parliament thereafter45 may further strengthen the determination of the EU at this very point.

33.3.4 The Different Attitudes Towards China and Russia and Ukraine Adopted by the EU in Terms of Recognition of Their Market Economy Status Reveal Strong Political and Ideological Prejudice It seems to these authors that symbolic significance is much more weighted than the trade and economic interests for the Chinese government to strive for the recognition of its full market economy status by the EU and other trade partners since only a small percentage of Chinese exports have been subject to antidumping measures. For instance, in 2003, only 0.5% of Chinese exports of goods to the EU were subject to the latter’s antidumping duties.46 This is because China regards the matter as a kind of sovereign equality and as a test whether the EU and other developed trade partners could objectively and fairly treat China’s achievements in economic reforms and construction of socialist market economy.

45 In its Resolution on the Situation in Tibet adopted on 10 April 2008, the European Parliament stated that the “recent events in Tibet show that China continues to commit serious violations of human rights and minority rights and leads the way in supporting all totalitarian regimes in the world, from Burma to Belarus and Sudan, which is a result of a passive and incoherent policy toward China by the EU and USA”. It “[F]irmly condemns the brutal repression by the Chinese security forces against Tibetan demonstrators, [Calls] on world leaders to boycott the opening ceremony of the Olympic Games in Beijing unless the Chinese authorities exercise restraint in dealing with the Tibetan independence movement and open talks with the Dalai Lama”. https://www.europarl.eur opa.eu/epliveexpert/hotlist_page/20080408SHL26179/default_en.htm. Chinese Foreign Ministry spokeswoman Yu Jiang said the European parliamentarians had “rudely interfered in China’s internal affairs”, “seriously hurt the feelings of the Chinese people” and “confounded black and white”, Reported by Xinhua news agency on Saturday. See https://www.abc.net.au/news/stories/2008/04/ 12/2215108.htm. 46 European Commission (2004).

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33 Non-market Economy Issues in Sino-EU Relations …

However, that the EU and also the US granted their recognition of market economy status to Russia47 and Ukraine48 made China really upset, if no angry. It is wellknown that China started its economic reforms much earlier than the two countries and its achievements in constructing market economy and market access are much greater than the latter two.49 China commenced its negotiation of accession to the GATT/WTO early in mid 1980s and has been a full Member of the WTO for seven years which is universally known for market economy as its foundation and orientation. In contrast, Russia did not apply for the WTO Membership until 1993 and has not yet completed the negotiations of its accession to this multilateral trade system.50 Ukraine made its application to the multilateral trade system in November 1993, and only until 5 February 2008, did the WTO General Council clear the path for Ukraine’s membership in the WTO by approving the package of agreements which spell out the terms of Ukraine’s accession. Ukraine will have to ratify the deal by 4 July 2008 and become a member 30 days after notifying the WTO Secretariat of this ratification.51 Judging from the brief comparison, one cannot help have the impression that the EU, of course including the US, adopts double standards in its recognition of market economy status claimed by China as well as Russia and Ukraine. It is quite obvious that the EU “is much stricter in its assessment” for China than “for Russia”52 and Ukraine. It could hardly be self-explained that the EU’s assessment and granting of market economy status with such dual standards is purely a technical consideration. Far more beyond and profound! The differential decisions of the EU in these cases could only find their logical explanation from political and even ideological grounds.

47 At the EU-Russia Summit held on 29 May 2005, European Commission President R. Prodi took the unprecedented step of announcing that the EU would be granting Russia the formal status and treatment of a fully-fledged “market economy”, in recognition of the major reforms it has successfully undertaken in recent years. https://ec.europa.eu/external_relations/russia/summit0502/ ip02775.htm. The United States, on 7 June 2002, announced that it recognized Russia as a market economy, a distinction that Moscow said should provide a tremendous boost to Russian exports and the economy. See https://www.themoscowtimes.com/stories/2002/06/07/001.html. 48 On 1 December 2005, U. K. Prime Minister Tony Blair, whose country was holding presidency of the European Council, in the EU-Ukraine Summit announced that the EU recognized Ukraine as a market economy. See https://www.rferl.org/featuresArticle/2005/12/be95f42f-e9304f68-8ebc-f8d6afe21b23.html. As it was announced on February 17, 2006 by Ukrainian mass media, US Commerce Deputy Secretary David Sampson announced in Kiev after his meeting with the Ukrainian government to discuss US-Ukraine bilateral trade and investment relations that Ukraine was then a market economy. The status was recognized to be market one starting from 1 February 2006. See https://www.qarea.com/news_pages/news28/news-details.php. 49 According to a study (which used the market economy criteria adopted by the Europe and the US in antidumping and international Economic Freedom Index) on China’s market economy development, China’s marketization level had reached 73.8% in 2003, already exceeding the market economy “critical level” of 60%. See https://www.chinadaily.com.cn/english/doc/2005-08/19/con tent470566. 50 Russia made its application to the GATT in June 1993 and its applications was taken up by the WTO in 1995. See https://www.WTO.org/english/theWTOelacce/alrussiee.htm. 51 See https://www.WTO.org/english/theWTO_e/acc_e/al_ukraine_e.htm. 52 See Rémond (2007), pp. 348 and 354.

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591

For the EU, whether or not and when it is to grant China and Russia as well as Ukraine market economy status is sort of politically strategic decision. Russian exports depend largely on raw materials which are rather supplementary and supportive than competitive to the industries of the EU, whereas “China’s exports are more diverse and concentrated in manufactured goods, a profile that threatens European firms much more”.53 Not to mention the geopolitical role played by the Russia in Europe, especially in the Eastern Europe and the Balkan region. The reasons behind of Ukraine’s easy and quick attainment of the EU’s recognition of its market economy status are perhaps even more politics and ideology oriented than Russia, in addition to the similar exporting characteristics with the latter. It is well-known that the “orange revolution”54 happened in Ukraine between the late November 2004 and January 2005 had been supported by the EU and the US and the latter two appreciate very much the pro-Western policies adopted by the Yushchenko Administration, such as its privatization scheme and immediate application of the NATO and the EU. It is worthy of further notice that Ukraine was listed from the very beginning as one of the participants in the EU’s European Neighborhood Policy (ENP)55 which could only be enjoyed by specific EU’s neighboring countries.

53 Green

(2004). Quoted from Rémond (2007), p. 354. Orange Revolution was a series of protests and political events that took place in Ukraine from late November 2004 to January 2005, immediately after the run-off vote of the 2004 Ukrainian presidential election which was compromised by massive corruption, voter intimidation and direct electoral fraud. Nationwide democratic revolution which was highlighted by a series of acts of civil disobedience, sit-ins, and general strikes organized by the opposition movement succeeded when the results of the original run-off were annulled, and a revote was ordered by Ukraine’s Supreme Court for 26 December 2004. Under intense scrutiny by domestic and international observers, the second run-off was declared to be “fair and free”. The final results showed a clear victory for Yushchenko who was declared the official winner, and with his inauguration on 23 January 2005 in Kiev, the Orange Revolution peacefully reached its successful conclusion. See https://en.wikipediaorg/wiki/ orange_revolution. Accessed 15 April 2008. 55 The European Neighborhood Policy (ENP) was developed in 2004, with the objective of avoiding the emergence of new dividing lines between the enlarged EU and its neighbors and instead strengthening the prosperity, stability and security of all concerned. The EU offers its neighbors a privileged relationship, building upon a mutual commitment to common values (democracy and human rights, rule of law, good governance, market economy principles and sustainable development). The ENP goes beyond existing relationships to offer a deeper political relationship and economic integration. The central element of the European Neighborhood Policy is the bilateral ENP Action Plans agreed between the EU and each partner which set out an agenda of political and economic reforms with short and medium-term priorities. The EU lists the following countries as its immediate neighbors: Algeria, Armenia, Azerbaijan Belarus, Egypt, Georgia, Israel, Jordan, Lebanon, Libya, Moldova, Morocco, Occupied Palestinian Territory, Syria, Tunisia and Ukraine. See https://ec.europa.eu/ world/enp/policy_en.htm. Accessed 16 April 2008. 54 The

592

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33.4 Non-technical Connotations of Divided Positions Among WTO Members on China’s Full Market Economy Status Since China’s launching diplomatic campaign to gain international recognition of its full market economy status, it has been positively responded by around 50% of the WTO Members, though another 50% still holds the negative view. This half -to-half phenomenon itself explains well that the recognition of China’s full market economy status is by no means at all a technical matter though the very concept is applied in the specific technical context of antidumping investigation, namely in determination of normal value of the targeted import. On the contrary, it is a kind of political decision with both pre-political deliberation and pro-political effect for China and all of its trade partners involved. From its perspective, China has never regarded such recognition as a purely technical issue. After its accession to the WTO, it soon realized that it lost too much of its interest in those special or additional undertakings (including 15 years of discriminatory treatment in determining subsidies and dumping from China) made by itself in the accession protocol. On 22 May 2003, in his letter to EU Commissioner Lamy, the head of the Chinese Ministry of Commerce for the first time requested the EU to Grant China full market economy status in its investigation of trade remedies. At the same time, the Chinese government commenced intensive efforts to gain the same recognition for other countries. On 14 April 2004, New Zealand became the first country to satisfy China for this purpose.56 It is reported that the most attractive bait offered by China is its conclusion of Free Trade Agreements (FTAs) with those who grant it a full market economy status.57 As a result, on 7 April 2008 New Zealand became the first developed country to sign the FTA with China.58 Previously, China had successfully completed the conclusion of FTAs between itself and the ASEAN countries, Chile and Pakistan respectively with their recognition of China’s full market economy in advance. There have been an increasing number of countries (about 30 so far) who either already started or are prepared to conduct the FTAs negotiations with China, which means they either already granted their recognition of China’s full market economy or ready to do so. Besides, China has set such recognition as the precondition in its bilateral negotiations with those WTO potential members. Last but not the least, in most recent years talks on recognition of China’s full economy status has become one of the core agendas not only at ministerial or high official levels, but also at summits between China and the EU and other trade partners. 56 See

https://www.peopledaily.co.jp/gb/jingji/1045/2607626.html. Accessed 21 April 2008. https://www.peopledaily.cojp/gb/jingji/1045/2607626.html. Accessed 21 April 2008. 58 Chinese Premier Wen Jiabao highly appreciated New Zealand, saying it owns the four “first” titles in its relations with China, namely, in addition to the first to negotiate and then signed the FTA among developed countries, being the first to grant China a full market economy status and to complete bilateral negotiations in the process of China’s accession to the WTO. See https://news. xinhuanet.com/newscenter/2008-04/07/content_7935268.htm. Accessed 21 April 2008. 57 See

33.4 Non-technical Connotations of Divided Positions Among WTO Members …

593

It is quite clear for the very beginning that economic and trade interest as a result of the non-market economy treatment by the EU and other trade partners is not the main concern, at least not the sole major concern of the Chinese government. There is no otherwise sound explanation of why it has put the recognition of full market economy status as one of the priorities of its diplomatic agendas in recent years, but the following: considering the subject matter as being directly relevant to its international image, as a symbol of international recognition of the great achievements resulted from continuous deepening and widening of its “open-up and reform” policies for the past 30 years and as a test of whether the EU and other major economic and trade powers could genuinely treat its socialist market economy equally with capitalist market economies or whether ideological prejudice still plays the key role in granting of such a market economy status. Let us turn to a little further analysis of the EU’s repeated statement that its reluctance to recognition of China’s market economy status is technical in antidumping investigation and is irrelevant to overall evaluation of the Chinese economic system. Such a claim can hardly be self-persuasive. First, the “five criteria” assessments are economical and technical on the one hand and political on the other, though they are now used on individual instead of overall basis for Chinese firms. For instance, since there are no detailed operational rules, subjective factors in which political prejudice is most likely to be embedded are unavoidable to evaluate the decisions of Chinese firms concerned regarding prices, costs and inputs, etc., “without significant State interference”. Furthermore, whether the exchange rate conversions are carried out at the market rate or not involves directly to the Chinese policy of foreign currencies and their exchanges and it is totally beyond the capacities of companies themselves. Therefore, the EU’s so-called individual assessment with “five criteria” is technical just for the first sight and it deems to be a political judgment in substance as it inevitably touches the whole economic policy of China. Second, once a Chinese firm fails to justify its application for market economy treatment, its targeted products are consequently treated as being of non-market economy origin and the domestic or exporting price of an “analogue country” will be used by the EU authority as the normal value of the targeted products imported from that Chinese firm. The selection of the so-called “analogue country” is totally artificial since there are no set criteria in this aspect. As the case it is, how one could guarantee only technical factors and no political elements play in such artificial selection of analogue countries by the EU officials. “The fact that EU officials can in practice use whatever price system they deem appropriate in investigations against non-market economy countries has far-reaching implications indeed under the pressure of strong domestic industrial lobbies, they often select analogue countries where the prices are relatively high, without any regard to their actual level of development, the quality of the goods they produce and their comparative advantages and disadvantages”.59 That is why prices of developed countries (the US, Japan, etc.) or developing countries with high costs (such as India) are often used as normal values in antidumping 59 Rémond

(2007), p. 347.

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investigations products from China60 and why the Chinese firms can hardly win the case as a result. Judging from those who have granted China a full market economy, their decisions on this point seem to be far beyond a sort of technical and even economic assessment. For some, the subject matter might be not so important in terms of economic and trade interest because they are short of certain products in their domestic markets or there are no like or competitive industries domestically, thus no necessity of using antidumping measures against Chinese goods, not to mention using discriminatory treatment in this regard. For others, though the subject matter is meaningful in protecting their respective industries, they might have more significant incentives in their minds, such as aiming at building a long-term bilateral strategic partnership or enhancing bilateral cooperation beyond trade areas or within multilateral mechanisms, etc. The profound political implication of those who positively recognized China’s full market economy could be further deduced. Firstly, that they openly hold an opposite view against those of major trade and economic powers on the subject matter illustrates that there is no uniform or single tests of market economy internationally and it is mainly a kind of self-judgment which deems to be influenced by political determinants or foreign policies of the granters. Secondly, their positive reflection to such request of the Chinese government illustrates their political and legal endorsement of the achievements made by China in its implementation of the “reform and open-up” policy in the past three decades. As a result, the practical effect of dividing positions and decisions among granters as to China’s claims of full market economy status is not only technical in any sense and even not limited to trade and economic interest (imports and exports, investment and profits therein, etc.), but also of political impacts on long-term relations or strategic partnership between China and its trade partners as mentioned above. As one of these authors predicted elsewhere, recognition of China’s full market economy status is undoubtedly one of the key and tough issues in the negotiations of the EU-China Partnership and Cooperation Agreement, as well as one of the key determinants of the fate of this new framework agreement.61 As for those developing countries, their formal offering of China’s market economy status must be rebated by the latter with political undertakings such as providing security assurance, development assistance, financial aids, establishment of FTAs, etc. (the ASEAN Member States, Pakistan, Chile, the six Member States of the Gulf Cooperation Council and other Asian, African and Latin American Countries concerned). So far as those developed countries are concerned, their granting the full market economy treatment to China must be followed up with their establishment (or negotiations) of FTAs with the latter (for instances, New Zealand, Australia, Korea, Switzerland). 60 However,

there is another explanation, saying “[F]inding a surrogate firm hard. Those firms in developing countries are likely to be direct competitors of the firm under investigation. It is their interest to refuse to be used as surrogates, forcing investigators to use developed country firms”. Green (2004), footnote 7, p. 3. 61 See Zeng (2008). Its Chinese version was published on Chinese Social Sciences, No 3, 2008.

33.5 Conclusion

595

33.5 Conclusion Through the multiple analysis of the subject matter in three sections above, it seems to be not difficult, in the views of these authors, to reach the conclusion that whether or not, when and how the EU recognizes China as a full market economy as requested by the latter is not a purely technical matter or issue. It is not as simple and straight forward as the EU officials repeatedly have clarified and emphasized on various occasions. It has much more contexts, incentives and implications beyond the socalled technical claim and justification. Though non-market economy conception could be said to be only used technically in the anti-dumping/countervailing investigations, it was created with inherent discriminatory nature which originated from the geopolitical distinction between communism and capitalism in the Cold War.62 Owing to the ambiguous and incomplete provisions of non-market economy conception as well as absence of its definition in the GATT/WTO, developed countries have much discretion to enact unilateral legislation and to enter into special arrangements with the target states. The administrative authorities of the importing countries enjoy great discretionary powers in antidumping investigation, especially in selection of the analogue countries to determine the normal value of exports from a non-market economy like China. Since political consideration could not be excluded in use of such discretionary powers in antidumping proceedings, it is much easier for exporting companies of non-market economies to be targeted and lose the case in the end than those of market economies. Undoubtedly, Chinese exporters have been suffering the most since their country is still crowned as the biggest non-market economy in spite of its decades of economic reform and great achievements made therein. Just as sharply observed by Professor Snyder, “The concept of ‘non-market economy’ has had—and continues to have—significant negative consequences for international trade relations between the EU and China. Increasingly, its costs outweigh any benefits. At best it is misleading, and at worst it is a serious obstacle to any real understanding of how best to manage the developing trade relations between the EU and China”.63 To minimize this “negative consequence”, abolish this longtime “misleading” concept and move out this man-made “obstacle” really need the boldness, determination, wisdom and flexibility of leaders at both sides, especially at the EU side. The pending negotiation and conclusion of the EU-China Partnership and Cooperation Agreement (EU-China PCA) might be a good chance and appropriate platform for both sides to solve this “full market economy status” issues once for a long run. Since the Cold War context in which the concept of non-market economy emerged diminished, its continuous existence will produce more harms than benefits for all trade partners or positive development of international trade. China may even regard such non-recognition of its full market economy status as a more spiritual hurt than 62 Snyder 63 Ibid.,

(2001), p. 421. p. 372.

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economic lost. Maintaining the concept of non-market economy and its application in anti-dumping and countervailing investigations could only deepen and widen mutual non-trustiness and increase the risk of trade wars or even hint or least cause uncertainty in political and social cooperation between the two sides. Even further, one could not help imagine the continuous existence of the Cold War in the era of the twenty-first century. Therefore, in order to avoid such a misunderstanding and unnecessary negative trade and even political impacts, it is strongly advisable for the EU and other developed WTO Members to recognize China’s full market economy status and apply those general provisions of the WTO on anti-dumping/countervailing measures and other trade remedies equally applicable to all WTO Members because they are all adequate enough to various kinds of unfair trade behaviors regardless of their origins.

References Barroso JM (2007) The EU and China: shaping the future together, speech at Chinese Communist Party Central School, Beijing. https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_ 07_759 Council of Representatives (1967) Report of the working party on accession of Poland (L/2806). GATT, Basic Instruments and Selected Documents. https://docs.wto.org/gattdocs/q/GG/L3799/ 2806.PDF Council of the European Union (1998) Council Regulation (EC) No 905/98 amending Regulation (EC) No 384/96. Off J Eur Commun (L128) Council of the European Union (2000) Council Regulation (EC) No 2238/2000 amending Regulation (EC) 384/9. Off J Eur Commun (L257) Detlof H, Fridh H (2007) The EU treatment of non-market economy countries in anti-dumping proceedings. Glob Trade Customs J 2(7/8):265–281 EU Business (2007) China-EU trade-background. https://www.eubusiness.com/trade/chinA-eultrade European Commission (2004) China-market economy status in trade defence investigations. Brussels. https://trade.ec.europa.eu/doclib/docs/2004/june/tradoc_117795.pdf European Commission (2006) Commission working document accompanying COM (2006) 631 final: closer partners, growing responsibilities-a policy paper on EU-China trade and investment: Competition and Partnership (COM (2006) 632 final). https://trade.ec.europa.eu/doclib/ docs/2006/october/tradoc_130791.pdf Federal Reserve System (1960) Bicycles from Czechoslovakia. Fed Reg 25:3762–3767 Green S (2004) China’s quest for market economy status. China Brief 4(16) Hadfield A (2007) Janus advances? An analysis of EC development policy and the 2005 amended Cotonou partnership agreement. Eur Foreign Aff Rev 12(1):39–66 Hong Kong Trade Development Council (2006) EU still refusing market economy status for mainland China. Business Alert-EU. https://info.hktdc.com/alert/eu0620e.htm Horlick C, Shuman S (1984) Non-market economy trade and U.S. Antidumping/Countervailing Duty Law. Int Law 18(4) Mandelson P (2007) Growing trade, shared challenges (speech at EU-China Business Summit, Beijing). https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_07_758 Rémond M (2007) The EU’s refusal to grant China “market economy status” (MES). Asia Eur J 5:345–356

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Snyder F (2001) The origins of the “nonmarket economy”: ideas, pluralism and power in EC anti-dumping law about China. Eur Law J 7(4):369–434 Snyder F (2009) China, regional trade agreements and WTO Law. J World Trade 43(1):1–57 Trommer SM (2007) Special market economy: undermining the principles of the WTO? Chin J Int Law 6(3):565–599 World Trade Organization (2001) Protocol on the accession of the People’s Republic of China to the WTO (WT/L/432). https://view.officeapps.live.com/op/view.aspx?src=http%3A%2F%2Fwww. mofcom.gov.cn%2Ftable%2Fwto%2Flaw01.doc World Trade Organization (2008) China-measures affecting financial information services and foreign financial information suppliers (DS372). https://www.WTO.org/english/tratope/dispue/ cases/ds372e.htm Zeng L (2005) The legal effectiveness and appropriateness of transitional product-specific safeguard mechanism against China. In: Gao H, Lewis D (eds) China’s participation of the WTO. Cameron May, London, pp 97–112 Zeng L (2008) Perspective on the negotiations of the European Union People’s Republic of China partnership and cooperation agreement. Jean Monnet Seminar Series. University of Macao

Chapter 34

Significance of China-EU Investment Agreements in the Construction of China-EU Comprehensive Strategic Partnership

34.1 Introduction The negotiation of a China-EU Investment Agreement has been initiated on the occasion of the 16th EU-China Summit on 21 November 2013. So far, the negotiations have been carried out for two rounds and are planned to be completed within two years. There have been reports and discussions in the political, economic, business, academic and media circles at home and abroad on the significance of the Agreement to expand investment for China and the EU in order to promote bilateral trade, economic and social development. This paper attempts to discuss the significance of the Agreement from the perspective of the construction of China-EU comprehensive strategic partnership. Since China and the EU announced to establish a comprehensive strategic partnership in 2003, the two parties have carried out various cooperation in areas of trade and economy, energy and transportation, science and technology, intellectual property rights, peace and security, human rights, rule of law, legal training, higher education, EU studies, etc. Corresponding mechanisms for cooperation have been set up in a range of areas, and several agreements or instruments in specific cooperation areas have been signed. However, from the perspective of the rule of law, the China-EU comprehensive strategic partnership is still under construction and has not yet accomplished. The basic view of this paper is that the China-EU Investment Agreement under negotiation, together with the China-EU Trade and Economic Cooperation Agreement and the China-EU Partnership and Cooperation Agreement, the negotiation of which were initiated earlier, constitute the three treaty pillars of China-EU comprehensive strategic partnership. Once the three treaties are concluded, it will mark The Article was originally written by Prof. Zeng in Chinese, and published in the Conference Proceedings of the 8th Annual Conference of EU Legal Studies Association of Chinese Association for EU Studies held in November 2014 in Shanghai, China. It was then translated by Dr. Zhang Jiao.

© Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6_34

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the transformation of China-EU comprehensive strategic partnership from “towards maturity” to “complete maturity”. The paper will firstly elaborate the comprehensive strategic partnership and its core symbols between States or States and international organizations, in conjunction with China’s diplomatic practice. Based on this, it will identify core symbols and current status of the China-EU comprehensive strategic partnership. It will be followed by an analysis on the position of the aforementioned Agreements in constructing the China-EU comprehensive strategic partnership, and a discussion on the significance of the China-EU Investment Agreement, especially its spill-over effect on enhancing China’s discourse and influence in international investment rule-making. Finally, it summarizes a general understanding of the viewpoints and arguments of this paper.

34.2 Core Indicators in Construction of China-EU Comprehensive Strategic Partnership Relationships between States or between States and international organizations (hereinafter referred to as “relationship between States”), can be categorized into the following different levels from the perspective of international rule of law, according to the breadth and depth or closeness of the cooperation. The basic relationship between States is the “diplomatic relationship”. It can be formally established through issuing joint statements or communiques in written form and sending each other permanent diplomatic missions. The establishment of diplomatic relationship means that the parties recognize the legality of each other from the perspective of international law as well as its subject as an international actor. It also expresses the willingness of the parties to carry out exchanges and cooperation in their mutual relations. The breadth and depth of exchanges and cooperation are subject to common willingness, actual needs, and objective conditions. Generally speaking, the normal communication and trade and economic cooperation are commonly reflected in a diplomatic relationship. As for whether exchanges and cooperation are carried out in a wide range of fields such as politics, security, military, social, and international affairs, and to what extent, the two sides need to establish further cooperation on the basis of normal diplomatic relationship. Since 1949, China has established diplomatic relationship with 172 countries and the EU.1 Permanent missions and delegations of China have been sent to the United Nations (UN), organs of the UN in Vienna and other international organizations, organs of the UN set up in Geneva, World Trade Organization (WTO), Association of Southeast Asian Nations, etc.2 A deeper relationship based on “diplomatic relationship” is “partnership”. It is a relationship only second to alliance (political alliance, military alliance or economic alliance). According to the breadth and depth of the cooperation, partnership can 1 Ministry 2 Ministry

of Foreign Affairs, https://www.fmprc.gov.cn/mfa_chn/ziliao_611306/2193_611376/. of Foreign Affairs, https://www.fmprc.gov.cn/mfa_chn/wjb_602314/zwjg_603776/.

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be further divided into cooperation partnership, constructive cooperation partnership, comprehensive cooperation partnership, strategic partnership, strategic cooperation partnership, comprehensive strategic cooperation (coordination) partnership, etc. Until now, China has established various levels of partnership with 58 countries (including the EU). Among them, the one with Russia and the one with the EU are comprehensive strategic coordination partnership and comprehensive strategic partnership.3 Among all these partnerships, the comprehensive strategic (coordination) partnership is certainly the highest level of relationship. This highest level of relationship is composed of four core symbols. First, the establishment of bilateral diplomatic relationship is the precondition and the basis for constructing the comprehensive strategic partnership. Without normal diplomatic relations between countries, it is impossible to establish friendly cooperative relations or partnership in the general sense in specific fields, let alone comprehensive strategic partnership. Second, cooperation under a comprehensive strategic partnership must be an all-dimensional, covering broad fields such as bilateral politics, security, military, economic, trade, finance, human rights, rule of law, science and education, environment, energy as well as major regional and global issues. Third, cooperation should have strategic significance, that is, cooperation goes beyond the general affairs or technical aspects, and more attention is paid to consultation, coordination and common response strategies and solutions to major issues in the field of cooperation. Fourth, regular, longterm and multi-level cooperation mechanisms should be established correspondingly. Finally, a solid legal foundation has been established for all areas of cooperation, thereby making the comprehensive strategic partnership firm, stable and sustainable. A basic evaluation of the China-EU comprehensive strategic partnership may be given based on the aforementioned four core symbols. China and the EU established formal diplomatic relationship as early as in 1975 and established embassies and permanent missions in each other’s capital and headquarters, which laid the premise and foundation for constructing China-EU comprehensive strategic partnership. Since then, despite the ups and downs in China-EU relations in the late 1980s and early 1990s, trade frictions and differences in human rights and other fields have occurred from time to time, the areas of cooperation continued to expand, and all-round cooperation was achieved in 2003. The mixed Committee has been established by the 1985 China-EU Trade and Economic Cooperation Agreement to carry out regular consultation and deal with issues concerning trade and economic cooperation. Mechanism for the leaders to have regular meeting yearly has been established since 1998. Currently, various regular dialogues have been established in areas of politics, security, human rights, environment etc. However, viewing from the legal basis, the construction of China-EU comprehensive strategic partnership still has its shortcoming. Until now, only agreements and Memorandums of Understanding in trade area and some specific scientific cooperation areas have been signed and

3 Xinhua

News, https://news.xinhuanet.com/mil/2014-07/25/c_126795222_2.htm. Accessed 25 July 2014.

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concluded. The agreements in trade area are already outdated. What’s more important is that cooperation in political, security, social and other areas is relied on joint statements and policy documents issued by the two sides respectively. The majority of these documents fall within the category of “soft law”. From the perspective of international rule of law, the China-EU comprehensive strategic partnership has not yet been fully established. It is still under construction. Thus, the China-EU Trade and Economic Agreement, the China-EU Partnership and Cooperation Agreement and the China-EU Investment Agreement, which are under negotiation now, have far-reaching significance in the construction of China-EU comprehensive strategic partnership.

34.3 Three Treaty Pillars of China-EU Comprehensive Strategic Partnership 34.3.1 Treaty Pillar I: China-EU Trade and Economic Cooperation Agreement The Joint Statement issued at the 9th EU-China Summit held in September 2006 announced the launch of negotiation on the China-EU Partnership and Cooperation Agreement (PCA). The first task of the negotiation is to amend and upgrade the 1985 China-EC Trade and Economic Cooperation Agreement (TECA). The new TECA would be a constituent part of the PCA, and would be implemented independently.4 The 1985 TECA is the first pillar of constructing the comprehensive strategic partnership. It is actually the only comprehensive treaty in force between China and the EU until now, although its contents are limited to trade and economic cooperation. The contents are of course not able to adapt to the fast development of China-EU trade and economic relations. Thus, China and EU started to amend and upgrade the TECA first since 2007. The TECA or the possible future China-EU Free Trade Agreement constitutes the first pillar of China-EU comprehensive strategic partnership is because of its special status and role. On the one hand, the European Community, the predecessor of the EU, was originally a regional economic integration organization. Although it has gradually developed into the European Union integrating economic union, monetary union and political union, the most extensive, centralized and so-called “supranational” factors in its internal and external competences have always been the Common Commercial Policy and the Monetary Union. Thus, in EU’s relations with third countries, trade and economic agreements are always the fundamental and core legal instruments. Even among the various association agreements and partnership and cooperation agreements concluded between the EU and third countries, trade 4 See

the Ninth EU-China Summit Joint Statement, 9 September 2006, available at: https://www. chinanews.com/other/news/2006/09-09/787465.shtml. Accessed 25 July 2014.

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and economic cooperation has the largest number of provisions, which are the most systematic and detailed. On the other hand, viewed from the history and current situation of China-EU relations, trade and economic cooperation has always been the most important areas in bilateral relations. The 1978 China-EEC Trade Agreement and its amended and upgraded version—the 1985 TECA continuously serve as the basic and the fundamental legal bases for trade and economic cooperation between China and the EU. The Mixed Committee set up by the 1985 TECA has been working as the main organ for dealing with different issues and disputes in China-EU trade and economic cooperation. There is no doubt that the construction of the China-EU comprehensive strategic partnership is led by the China-EU TECA. It is worth paying close attention to the fact that in the past two years, no matter whether it is the EU or China, little information has been published on the progress of the China-EU Trade and Economic Cooperation Agreement. The author believes that there are three possibilities as follows: The first possibility is that the economic and trade relations between China and the EU are of vital importance, and the issues involved are extensive and complex. Moreover, there may be major differences between the two Parties on issues of China’s market economy status, market access, national treatment, transparency, safeguard measures, intellectual property rights, etc. These issues require more time for communication, negotiation and compromise. The second possibility is that both China and the EU are important members of the WTO. The EU is one of the four magnates of this “trade club”—the WTO, while China is the biggest developing country. Both parties have prominent roles in WTO’s multilateral trade negotiation. However, the “Doha Round” has been a long and protracted process, which to a large extent hinders the negotiation of an expanded and upgraded version of the China-EU TECA because the terms or standards of the new Agreement must be consistent with the new standards of the multilateral trading system. For this reason, the birth of the new TECA depends on the success of the Doha Round. The third possibility is that over the past few years, with the Doha Round still stalled, WTO Members, especially some important members, have moved away from the multilateral negotiation and “moved on” to negotiate and conclude bilateral or regional free trade agreements. China and the EU are considering to replace the TECA by a free trade agreement. On 25 September 2014, when meeting with the Spanish Prime Minister, Premier Li Keqiang made it clear that the two parties should accelerate the negotiation of China-EU investment agreement and the feasibility study of China-EU free trade agreement (FTA), jointly promote trade and investment liberalisation and facilitation, and oppose protectionism. There is a possibility that China and the EU may consider to start the FTA negotiation in some years later. During the China-EU Summit in Beijing in November 2013, people in the diplomatic circle said that as long as the negotiation of the investment agreement is successful, it is expected

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to reach a FTA in the medium and long term.5 The voice of academia concerning the possibility of a FTA seems to be higher. If such forecasts and suggestions are put into action, the future of China-EU economic and trade relations will surely be even better!

34.3.2 Treaty Pillar II: China-EU Partnership and Cooperation Agreement PCA is a kind of new agreement signed between the EU and the third countries concerned. It is different from traditional trade and economic cooperation agreement. Apart from provisions concerning trade and economic cooperation, it also includes provisions relating to cooperation in areas of politics, human rights, rule of law, education, science and technology, transportation, environment, energy, justice, police cooperation, etc. This new type of agreement has larger scope of cooperation and more closeness in bilateral relations than the trade and economic cooperation agreement does, just second to the Association Agreement (or quasi-member agreement) or European Neighbourhood Agreement. Thus, it is a comprehensive agreement, and can be deemed as a signal of EU’s intention to build a comprehensive partnership with a certain third country.6 Since 1990s, the EU has successively concluded such comprehensive cooperation agreements with countries of the Common Wealth of Independent States (CIS), countries of the African, Caribbean and Pacific Group of States (ACP) and some Asian countries. There is rare information concerning the progress of the China-EU PCA. What can the public know is that the Summits, high-level political dialogues and human rights dialogue have been continuously and regularly held. This seems to indirectly indicate that the negotiation on the China-EU PCA is still at the stage of mutual understanding and political consensus formation, and has not entered the stage of negotiating specific provisions. Until now, there is no specific schedule for the negotiations. To be sure, there are many factors that make the negotiation of this Agreement complicated and time-consuming. As mentioned above, the negotiation of the PCA cover all aspects of ChinaEU relations. It requires one-to-one and repeated consultations between relevant authorities of the two parties, as well as coordination of some cross-cutting issues. Besides, the negotiation of the PCA focus on interests, positions and cooperation in areas of politics, security, human rights, rule of law, and environment, etc. These areas are traditionally sensitive ones with regards to the sovereignty. The differences in political systems, levels of economic and social development, value orientations and major interests concerned between China and the EU will inevitably make the 5 It

was reported by the Frankfurter Allgemeine Zeitung, a German newspaper, that China wants to establish an economic union with the EU, available at: https://intl.ce.cn/sjjj/qy/201311/23/t20131 123_1796882.shtml. Accessed 21 November 2013. 6 Sautenet (2007); see also Zeng (2009).

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negotiation more difficult. For example, a large number of evidences obtained by Chinese public security organs through careful investigation showed that Ilham Tohti, a former Uighur professor of Minzu University of China, colluded with hostile forces at home and abroad and engaged in a series of activities to split the country. Thus, the police arrested and prosecuted him in accordance with the law. The Xinjiang Intermediate People’s Court, in a public trial, sentenced Ilham Tohti to life imprisonment, deprived him of political rights for life, and confiscated all his personal property. From investigation, arrest to trial, they are all conducted in accordance with Chinese law. However, the EU has made two quick and fierce reactions. A spokesperson for the EU issued a statement on 6 August 2014, asking China to release the suspect immediately, to provide the suspect with appropriate medical treatment, and to fully guarantee his rights and freedoms, including the international human rights promised by China and the due process and freedom of speech and movement granted by the Constitution of China.7 On 23 September, the EU issued another Statement condemning the judgment made by the Chinese court, asking China to release Ilham Tohti and his accomplices unconditionally and immediately, and asking Chinese government to guarantee the rights and freedom of speech of all ethnic minorities.8 Thus, the key of whether the negotiation of China-EU PCA can be carried forward step by step and finally reach a formal agreement lies in whether the two parties are able to settle such highly sensitive political differences, which requires common sincerity, determination, wisdom and efforts of both China and the EU. In addition, rules on competence and procedures in EU basic Treaties to conclude a PCA are stricter than those in the areas of Common Commercial Policy. For the latter, negotiation is authorized by the Council, and is negotiated by the Commission with the third country concerned, and finally formally concluded by the Council by a qualified majority vote.9 PCA covers extensive areas, the competence to conclude provisions concerning these areas may be different, and procedures to conclude are very strict. For example, in the areas of development cooperation,10 economic, financial and technical cooperation,11 humanitarian aid,12 economic monetary union,13 competence to conclude is shared between the EU and its Member States. Accordingly, the agreement concluded would be in the form of “mixed agreement”. With regards to the procedure, decision on some specific issues within the PCA requires 7 Statement

by Spokesperson on the Indictment of Respected Uighur Academic Professor Ilham Tohti, 6 August 2014, available at: https://www.eeas.europa.eu/archives/delegations/china/press_ corner/all_news/news/2014/20140806_en.htm. 8 Statement by Spokesperson on the Sentencing of Respected Uighur Academic Professor Ilham Tohti, 23 September 2014, available at: https://www.eeas.europa.eu/archives/delegations/china/ press_corner/all_news/news/2014/20140923_en.htm. 9 Consolidated Version of the Treaty on the Functioning of the European Union, Articles 207 (3) and (4). 10 Consolidated Version of the Treaty on the Functioning of the European Union, Article 209(2). 11 Consolidated Version of the Treaty on the Functioning of the European Union, Article 212(3). 12 Consolidated Version of the Treaty on the Functioning of the European Union, Article 214(2). 13 Consolidated Version of the Treaty on the Functioning of the European Union, Article 219(4).

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unanimity of the Council, such as issues in the fields of trade in service and the commercial aspects of intellectual property, foreign direct investment, trade in cultural and audio-visual services,14 etc. According to Article 218(6) of the Treaty on the Functioning of the European Union (TFEU), the concluding of the agreement should also obtain the consent of the European Parliament, if the PCA covers the following aspects: (a) establishing a specific institutional framework by organizing cooperation procedures; (b) with important budgetary implications for the Union; (c) covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. Apart from the European Parliament, other main organs of the EU may also be involved or even lead the negotiation of some specific issues of the PCA. For example, in the areas of foreign affairs and security, the negotiation with third countries should be led by the High Representative for Foreign Affairs and Security Policy.15 And, for the negotiation of agreements involving foreign exchange, the European Central Bank plays a pivotal role.16 It is undoubtedly that the China-EU PCA is a treaty pillar, or even the most important pillar, in constructing the China-EU comprehensive strategic partnership. It is not only because that provisions and contents of the PCA cover all aspects of the China-EU relations, what’s more important is that, as the framework agreement that lays the foundation for China-EU comprehensive strategic partnership, it not only lays down provisions concerning rights and duties in different cooperation areas, but also stipulates the basic principles for the two parties to implement the comprehensive strategic partnership. Therefore, the PCA will pool the greatest political wisdom of China and the EU, and express their common political will and solemn legal commitment to the greatest extent.

34.3.3 Treaty Pillar III: China-EU Investment Treaty Constructing of a comprehensive strategic partnership in economic area focuses on trade and investment. The establishment, maintenance and promotion of comprehensive economic cooperation require the establishment of a solid legal basis in the area of trade and investment, namely, trade agreement and investment agreement. These two agreements not only regulate their respective fields independently, but also support each other in the steady development of the regulated fields. A comprehensive strategic partnership would not be “comprehensive” without either trade or investment agreement. Thus, the China-EU Investment Treaty is an indispensable treaty pillar within the China-EU comprehensive strategic partnership.

14 Consolidated

Version of the Treaty on the Functioning of the European Union, Article 207(4). Version of the Treaty on the Functioning of the European Union, Article 218(3). 16 Consolidated Version of the Treaty on the Functioning of the European Union, Article 219(3). 15 Consolidated

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As the EU Trade Commissioner Karel De Gucht said that “investment is a key engine of any economy and a tool for generating growth and job creation”.17 However, compared to the rapid increase in China-EU trade, investment cooperation is far behind the expectation of the two sides. Official statistics of the EU show that investment from China only accounts for 1% of EU’s inward foreign investments, while investment from US accounts for 21% in the EU market. EU’s investment in China only accounts for 2–4% of China’s inward foreign investment, while investment from US accounts for 30%. Thus, in order to promote the steady development of EU-China trade and to widen and deepen the bilateral economic cooperation, development and cooperation mode must be changed from the long-term trade-led mode to investment + trade driven mode.18 The unsatisfactory status of China-EU investment relations, on the one hand indicates that there are still various legal and administrative restrictions on Foreign Direct Investment (FDI) from the other side; on the other hand, it also means that opportunities and challenges coexist in the negotiation of the China-EU Investment Treaty. To this end, the first two rounds of negotiations are at a stage of getting familiar with each other’s situations and proposals, namely, enhancing mutual understanding of the investment environment, understanding each other’s positions and preliminary exchange of views. On 10 August 2014, the Beijing-based office of a prominent international law firm, commissioned by the Directorate-General for Trade of the EU, submitted a report on China’s restraints on foreign direct investment.19 The measures examined in the report include both relevant Chinese laws and regulations as well as relevant administrative measures. The report identifies China’s “restraints” on foreign direct investment not only in the words and phrases of the measures, but also in determining whether the results are at least better for domestic investors. The Report presents various legal measures restraining foreign investment in China from following perspectives: First, the Report identifies Chinese measures restraining foreign investment by governments at national and provincial level respectively. According to the Report, there are 80 central government agencies that can promulgate laws, regulations, and other measures. Of these 80, 27 agencies can promulgate measures affecting foreign investment horizontally. In addition, measures of 12 agencies may affect foreign investment in the ten selected industry sectors. Altogether, these 39 government agencies had promulgated 141 measures containing horizontal restraints, and 220 measures containing sectoral restraints for the ten sectors. The report also reviews the five-selected provincial-level governments. Results tell that there are 351 measures containing horizontal restraints and 129 measures containing sector restraints for the 10 selected industry sectors. 17 Xinhua News, Investment agreement with China key to boost trade ties, 8 October 2014, available at: https://www.chinadaily.com.cn/business/2014-03/25/content_17376706. Accessed 25 July 2014. 18 Chen (2014). 19 Covington & Burling LLP (2014).

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Second, the Report divides Chinese measures to restrain foreign investment into three categories according to the treatment that the government agencies provide to different types of investors: (a) restraints that favor domestic investors or investments over foreign investors or investments; (b) restraints that favor state-owned investors or investments over privately-owned (including foreign-owned) investors or investments; and (3) restraints that possibly favor domestic investors or investments over foreign investors or investments, depending on whether foreign-invested enterprises established in China would be regarded as “Chinese” entities and therefore deemed eligible to receive, on an equal basis, benefits made available to such entities. Finally, the Report categorizes Chinese restraining measures into another three groups according to different investment stages that these measures regulate: (a) preestablishment restraints that impede market access for foreign investment, including discriminatory local partner/equity requirements, market entry restrictions, approval process restraints, and technology transfer-related measures; (b) post-establishment restraints that treat foreign-invested entities less favorably, including differentiated treatment through targeted enforcement, government financial support, and government procurement; (c) broad policy statements that potentially result in less favorable treatment for foreign investors and investments during both the pre-establishment and post-establishment stages. Even though they do not mandate specific discriminatory treatment in and of themselves, they may disadvantage foreign investors and investments. The Report adopts a broad definition of “administrative practices” of China. It refers to the practices of agencies and officials in all branches and at all levels of government, including those engaged in legislative and judicial as well as executive functions. “Administrative restraints” in this Report means those administrative practices sometimes used to restrain foreign investments and impose conditions on foreign investments, especially those practices that are not explicitly authorized or compelled by published rules. Administrative practices are seen by many foreign companies as matching or even trumping published rules as a source of investment restraints. Citing the report of US Chamber of Commerce, the Report believes China’s approval process for inbound foreign direct investment shows three restraints on market access and national treatment that foreign companies are concerned about: (a) The formulated industrial policies explicitly support domestic industrial development and create domestic enterprise leadership; (b) Officials explicitly direct the approval of foreign direct investment projects to facilitate the achievement of their industrial policy objectives; and (c) foreign investors, though believing that the approval authorities’ actions do not comply with WTO commitments or China’s own regulations, tolerate the frustration out of difficulties in providing evidence and fears of retaliation from the approval authorities.20

20 United

States Chamber of Commerce (2012).

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In addition, it has been explicitly mentioned by the EU trade commissioner Karel De Gucht that the EU wishes to negotiate the treaty based on the negative list plus (preentry) national treatment, and negotiate on both investment protection and market access.21 Compared with EU’s detailed investigation on China’s restraining measures on foreign investment as well as targeted negotiation objectives, Chinese competent departments have done much less. There is no evidence (or public information) to show that competent departments have commissioned a systemic study of EU’s restraints on foreign investment by a specialized institute for government negotiators to refer to. However, China’s assessment of EU’s investment environment and China’s basic position and objectives in negotiations of the China-EU investment treaty can be understood in the speeches and interviews of Chinese leaders and officials of Ministry of Commerce. With regards to the general objectives, China expects that, based on this China-EU investment treaty, the EU may provide Chinese investors and investments a stable, fair competition environment. In term of investment access, it is expected that the EU may guarantee the greatest degree of market openness to Chinese investment; in terms of investment treatment, the EU should give national treatment to Chinese investment in the whole process, including both pre-entry and post-entry phases; in terms of visas and work permissions for Chinese investors to carry out investment in the EU, the EU should ensure maximum convenience and do not set up artificial discriminatory barriers. It is suggested by the author that Chinese negotiators should keep a close eye on the progress of EU’s negotiation on other investment treaties, especially the Transatlantic Trade and Investment Partnership (TTIP). Negotiations on provisions concerning the “twenty-first century agenda” or “social clause” should be paid a particular attention so as to ensure that the standards of relevant “social clause” in the China-EU investment treaty would be in line with the level of China’s economic and social development to the greatest extent.

34.4 Significance of the China-EU Investment Agreement 34.4.1 Providing China-EU Trade Development with New Driven Mode As mentioned above, trade and economic cooperation has always been the leading and main area of China-EU relations. Since the two sides have decided to construct a comprehensive strategic partnership in 2003 and China’s accession to the WTO, China-EU trade has been developing rapidly in spite of some occasional trade frictions. At present, the EU is China’s largest trading partner, and China is the EU’s second largest trading partner. According to the official statistics of the EU, the average daily trade volume between China and the EU exceeds 100 million euros. In 21 World

Economic News Report (2014).

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2013, the bilateral trade volume in goods reached 42.81 billion euros, but the trade in services was only 4.99 billion euros (statistics of 2012).22 Obviously, the main factor restricting the development of China-EU trade in services is the limitation of the two sides’ share in each other’s investment market. Investment is involved in all of the four modes of trade in services, namely cross-border supply, consumption abroad, commercial presence, and movement of natural persons, and even plays a decisive role in some modes (such as commercial presence). It is not hard to imagine that China-EU trade in services would not have a great development when the investments from China accounts for only 1% of EU FDI market and the investment from the EU accounts for only 2–4% of China’s FDI market. Thus, opening investment market to each other is necessary for promoting China-EU trade in services. The economic development of the country mainly depends on the continuous expansion of domestic demand and the continuous growth of foreign trade. In the trend of economic globalization, in addition to providing capital, equipment, raw materials, technology, labor force and other material resources and human resources, trade is the main way to promote the contribution and role of investment to the development of a country or social economy. Therefore, promoting trade liberalization and facilitation has become the main thrust of each country’s trade policies and multilateral trading system. At the legal and regulatory level, countries and international organizations achieve trade liberalization and facilitation by formulating the principles and rules such as tariff reduction and exemption, reduction and even elimination of various non-tariff measures, and strengthening the transparency of trade regulations. It has been proved that the traditional mode of trade growth and economic development driven by “trade rules” is not effective. Thus, the Uruguay Round gave birth to the Agreement on Trade-related Investment Measures (TRIMs), which opened the way of “trade + investment rule driven”. However, the WTO’s “trade + investment rule driven” mode has its limitations. The TRIMs focuses on the application of national treatment and Most-FavoredNation treatment, rarely involves other issues of investment. And, it is limited to investment measures related to trade in goods, excluding trade in services. In recent years, trade and investment have been included in the negotiations on Trans-Pacific Partnership (TPP) led by the US and the TTIP between the EU and the US with equal emphasis. The negotiation of the China-EU investment treaty should be compatible with this new trend, adopting the “trade + investment driven” mode, which would surely bring a broader future to the China-EU trade and economic relations.

22 See

https://ec.europa.eu/trade/policy/countries-and-regions/countries/china.

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34.4.2 Unifying and Upgrading Current Standards and Levels of Investment Treaties Between China and EU Member States Prior to the Lisbon Treaty, the EU had not signed any bilateral investment treaty with third countries, although economic and trade cooperation agreements, partnership and cooperation agreements, or association agreements contained more or less provisions for investment. The fundamental reason is that the EU was not conferred with competence to conclude investment treaties by its previous basic Treaties. Investment treaties were negotiated and concluded between third countries and EU Member States. Among the current 28 Member States, China has concluded bilateral investment treaty with 26 Member States of the EU, except for Ireland and Croatia. The Lisbon Treaty introduces the foreign direct investment into the Common Commercial Policy. According to Article 207 of the Treaty on the Functioning of the European Union (TFEU), the EU enjoys exclusive competence in the area of foreign direct investment. This means that the EU may independently negotiate and conclude investment treaties with third countries. The Regulation establishing transitional arrangements for bilateral investment agreements between Member States and third countries has been adopted by the European Parliament and the Council on 12 December 2012, stipulating that current bilateral investment treaties (BITs) concluded by the EU Member States should remain in force until they are replaced by EU investment agreements. In fact, China has been listed as a potential partner for negotiating and concluding an investment agreement in the Communication “Towards a Comprehensive European International Investment Policy” issued by the Commission in 2010. The two parties agree to initiate the negotiation during the 14th EU-China Summit held in February 2012. This common will was further confirmed at the 15th EU-China Summit held in September 2013.23 The Lisbon Treaty provides explicit competence for the EU to sign and conclude the ChinaEU investment treaty, and the Joint Statements issued by the EU-China Summit provide the strongest political impetus for initiating the negotiation for the China-EU investment treaty. Undoubtedly, once the China-EU investment treaty is successfully negotiated, it will inevitably replace the original BITs between China and individual Member States of the EU. It also means that the China-EU investment treaty will automatically apply to Ireland and Croatia, thus extending the application of the new investment treaty to the whole EU.

23 In

addition to China, the EU is now also negotiating investment under FTA negotiations with Canada, India, Japan, Malaysia, Mercosur (Argentina, Brazil, Uruguay, Paraguay), Thailand and Vietnam. Since December 2011, countries which are negotiating with the EU on investment under deep and comprehensive FTA negotiations are also including Egypt, Jordan and Tunisia. TTIP that negotiated between the EU and the US also includes investment provisions. See the Press Release entitled “Commission proposes to open negotiations for an investment agreement with China”, 23 May 2013, European Commission, Brussels, available at: https://europa.eu/rapid/press-release_IP13-458_en.htm. Accessed 25 July 2014.

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What is more important is that, compared to previous BITs concluded between China and EU Member States, the new China-EU investment treaty will definitely open the investment markets to a larger extent, strengthen the fair treatment and national treatment, and unify the investment dispute settlement mechanisms. BITs between China and EU Member States were concluded during 1980s and 1990s. These BITs followed a traditional simple logic, that is to provide a legal framework for protecting investments from developed countries in developing countries so as to stimulating investments. Core provisions of these treaties were to prohibit discrimination and unfair treatment to investors from developed countries, to ensure the free movement of capital, to regulate the direct and indirect expropriation of capital-importing countries. Besides, in dispute settlement, the provisions intended to provide investors with multiple choices. It can be expected that the new ChinaEU investment treaty would change the traditional logic, focus on two-way rather than one-way opening of the investment markets, and emphasize equal treatment in financing, taxation, resource allocation, capital transfer, product sales, expropriation, etc. In sum, the China-EU investment treaty should be the expanded and upgraded version of BITs concluded between China and EU Member States. It will be a high-level and wide-ranging investment treaty that will provide a unified legal framework for enterprises to enter the markets of both sides, create a stable and predictable legal environment, and thus effectively promote China-EU trade and economic cooperation.

34.4.3 Influencing the Formation of Multilateral Investment Rules For a long time, countries promote and protect FDI through concluding bilateral investment treaties. Traditional BITs focus on investment protection. Especially in 1990s, developed countries took the lead in concluding a large number of BITs to protect their overseas investments. A basic reason is that Agreement on Trade-Related Investment Measures (TRIMs), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), and General Agreement on Trade and Services (GATS) adopted by the Uruguay Round only partially or fragmentally regulate on investment. They can neither provide sufficient protection for investors, nor strictly control over host country’s regulation on multi-national companies. Under this background, the OECD tried to adopt a comprehensive multilateral investment treaty from 1995 to 1998 and drafted the Multilateral Agreement on Investment (MAI). This drafted Agreement breaks through the limit of traditional BITs. It is a multilateral investment agreement that aims to open the market, vigorously promote the investment liberalization, and emphasize on both investment liberalization and investment protection. However, the draft, which places too much emphasis on the liberalization of investment markets and the protection of the interests of multinational corporations, has not only failed to achieve consensus within the OECD, but has been opposed by many

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other countries, and has been opposed particularly by the global non-governmental organizations (NGOs). The NGOs found that the Agreement may threaten the human rights protection, labor and environmental standards, and the sovereignty of leastdeveloped countries. Especially, they thought that it may result in a kind of “race to the bottom competition” among countries which are willing to lower down labor and environmental standards for attracting foreign investments.24 Although the drafted MAI has not become a formal treaty, it was a meaningful endeavor fsor the future international economic order. After the establishment of the WTO, the United States, Canada and EU Member States have been continuously trying to include the investment in the “Doha Round” negotiations. However, due to the large differences among WTO Members, there has been no substantial progress in the negotiations. The United States and the European countries have changed their strategies in the context of the frustration of advancing global investment rules in international organizations such as the OECD and the WTO, turning from multilateral platforms to bilateral and regional platforms. The most influential negotiations are the TPP negotiation between the United States and 11 Asia–Pacific countries, and the TTIP negotiation between the United States and the European Union. The immediate goal of these two negotiations is to realize trade liberalization cross-oceans (the world’s two largest free trade areas) and investment liberalization, and the more far-reaching goal is to provide the orientation and lead the global trade and investment rule-making. Although the United States, the EU, and China have formed a tripartite pattern in the world’s trade and investment landscape, China’s role in the trade and investment rule-making is trapped by the TPP and TTIP, and restrained by various bilateral FTAs and BITs dominated by the United States and the EU respectively.25 China may negotiate and conclude BITs and even FTAs with the United States and the EU to form a “EU-US-China triangular power structure” in the formulation of future global trade and investment rules, thereby enhancing China’s voice in international trade and investment rule-making.

34.5 Conclusion While discussing the substantial and far-reaching significance of the negotiation and conclusion of the China-EU investment agreement, we cannot ignore the background, which includes the following four aspects. The first is the setback of the multilateral investment agreement. The second is the stagnation of the WTO’s “Doha Round” negotiations, including the negotiations on investment rules. The third is that various bilateral and regional FTAs and BITs are in the ascendant. The fourth is, although China has already concluded BITs with EU Member States, these investment rules are not unified and they focus more on investment protection than liberalization.

24 Tieleman 25 See

(2000) and Cohn (2002). Zeng (March 2015).

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We should also be highly aware of the importance of the China-EU investment agreement from the perspective of constructing the China-EU comprehensive strategic partnership. It is a common understanding of China and the EU and even the international society that this agreement will stimulate the trade and investment between China and the EU and will further promote the economic and social development of both parties and even of the international society. However, the importance of this agreement is not only limited to trade and economic. A comprehensive coverage of cooperation, a continuous and stable multi-level cooperation mechanism, and coping strategies for major bilateral and multilateral issues are of course the core indicators of a comprehensive strategic partnership. However, a strong and solid legal basis is essential. From the perspective of international rule of law, the China-EU investment agreement, together with the China-EU Trade and Economic Cooperation Agreement or the future China-EU free trade agreement, and the China-EU Partnership and Cooperation Agreement would constitute the three treaty pillars for the China-EU comprehensive strategic partnership. Although they operate independently, they complement each other. We should also understand the importance of the China-EU investment treaty from the strategic perspective of enhancing China’s voice in international rule-making. From the perspective of China’s long-term strategy of foreign trade and investment, the successive negotiations and conclusion of the China-EU investment agreement and a possible subsequent China-EU free trade agreement will largely reduce the impacts by the TPP and TTIP as well as other FTAs dominated by the US and the EU. Moreover, through negotiating and concluding the investment treaties, and even the FTAs with the EU and the US respectively, China is naturally at the forefront of shaping the future rules for global trade and investment. It has strategic importance for China to enhance its voice in the international rule-making. At present, the China-EU relationship is at its best in history and is increasingly closer. However, from the perspective of international rule of law, although the ChinaEU comprehensive strategic partnership has been launched for 11 years, it has not been fully formed and is still under construction. Negotiations on the three pillar treaties that underpin the China-EU comprehensive strategic partnership have been initiated and are proceeding in an orderly manner, nevertheless, the complexity and difficulty of the negotiations are obvious. In short, the blueprint for the China-EU comprehensive strategic partnership has been drawn up, the framework has been formed, and the goals have been determined, and the future will depend on the common sincerity, wisdom and efforts of both China and the EU!

References Chen J (2014 April) Investment to become the new engine of China-EU cooperation. People’s Daily Online. https://english.peopledaily.com.cn/98649/8597264.html Cohn TH (2002) Global political economy: theory and practice. Longman, New York

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Covington & Burling LLP (2014) Measures and practices restraining foreign investment in China prepared for the European Commission Directorate-General for Trade Sautenet A (2007) The current status and prospects of the “strategic partnership” between the EU and China: towards the conclusion of a partnership and cooperation agreement. Eur Law J 13(6):699–731 Tieleman K (2000) The Failure of the Multilateral Agreement on Investment (MAI) and the Absence of a Global Public. Retrieved March 24, 2014 United States Chamber of Commerce (2012) China’s approval process for inbound foreign direct investment: impact on market access, national treatment, and transparency (prepared by Covington & Burling LLP). https://www.uschamber.com/china’s-approval-process-inbound-for eign-direct-investment-impact-market-access-national-treatment World Economic News Report (2014) China-EU investment treaty negotiation: the EU proposes negative list approach. https://www.northnews.cn/2013/1028/1433152.shtml Zeng L (2009) Negotiation of the China-EU partnership and cooperation agreement: problems, suggestions, and prospects. Soc Sci China (2):121–135 Zeng L (2015) Negative effect of the transatlantic trade and investment partnership and China’s countermeasures. Wuhan Univ J (Philos Soc Sci) 68(2):59–67

Appendix

Main Publications of Professor Zeng Lingliang I. Books 1.

Lingliang Zeng and Jiehan Feng (eds.), Annual Report on China’s Practice in Promoting the International Rule of Law (2015) (English version), Beijing, Social Sciences Academic Press, 2016. 2. Lingliang Zeng et al., The Implementation of International Human Rights Treaties and China’s Practice, Wuhan, Wuhan University Press, 2015. 3. Lingliang Zeng and Jiehan Feng (eds.), Annual Report on China’s Practice in Promoting the International Rule of Law (2014) (English version), Beijing, Social Sciences Academic Press, 2015. 4. Lingliang Zeng et al., Study on Forefront and Major International Legal Issues in China’s Peaceful Development, Beijing, Economic Science Press, 2011. 5. Xi Liang (ed.), Lingliang Zeng (editor for the revised version), International Law, Wuhan, Wuhan University Press, 2011. 6. Lingliang Zeng and Deming Huang (eds.), Fifty Years of Rule of Law in the EU: Recalling and Looking ahead, Hubei, Hubei People’s Press, 2011. 7. Lingliang Zeng, General Introduction to EU Law: from a New Perspective of the Treaty Establishing a Constitution for Europe, Wuhan, Wuhan University Press, 2007. 8. Lingliang Zeng (ed.), Legal English, Wuhan, Wuhan University Press, 2007. 9. Ian Brownlie, Principles of Public International Law, Lingliang Zeng and Minyou Yu et al. (trs.), Beijing, Law Press China, 2007. 10. Lingliang Zeng and Yongping Xiao (eds.), Wuhan University Lectures on International Law, Wuhan, Wuhan University Press, 2006. 11. Lingliang Zeng (ed.), International Law in the Early 21st Century and China, Wuhan, Wuhan University Press, 2006. 12. Lingliang Zeng and Geping Rao (eds.), International Law, Beijing, Law Press China, 2006. © Springer Nature Singapore Pte Ltd. 2021 L. Zeng, Contemporary International Law and China’s Peaceful Development, Modern China and International Economic Law, https://doi.org/10.1007/978-981-15-8657-6

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13. Lingliang Zeng and Minyou Yu (eds.), The Foundations, Structure and Challenges of International Law at the Age of Globalization, Wuhan, Wuhan University Press, 2005. 14. Lingliang Zeng and Minyou Yu (eds.), International Law: Arguments, Laws and Regulations, and Cases, Beijing, Law Press China, 2006. 15. Lingliang Zeng (ed.), International Law, Beijing, People’s Court Press and China Social Sciences Press, 2003. 16. Lingliang Zeng, World Trade Organization Law, Wuhan, Wuhan University Press, 1997. 17. Lingliang Zeng, European Community and Modern International Law, Wuhan, Wuhan University Press, 1992. II. Journals and Articles 1.

Lingliang Zeng, “Conceptual Analysis of China’s Belt and Road Initiative: A Road towards a regional Community of Common Destiny”, Chinese Journal of International Law, Vol. 15, Issue 3, 2016. (Article written in English) 2. Lingliang Zeng, “International Rule of Law and Rule of Law Construction in China”, Social Sciences in China, Issue 10, 2015. 3. Lingliang Zeng, “Negative Effect of The Transatlantic Trade and Investment Partnership under the New Tendency of Regional Trade Agreements and the Responses of China”, Wuhan University Journal (Philosophy & Social Sciences), Vol 68, Issue 2, 2015. 4. Lingliang Zeng, “Issues of International Law Concerning Crimea’s Independence from Ukraine and Merging with Russia”, Chinese Review of International Law, Issue 2, 2015. 5. Lingliang Zeng, “On the Improvements of the Law of the People’s Republic of China on the Procedure of the Conclusion of Treaties”, Political Science and Law, Issue 9, 2014. 6. Lingliang Zeng, “Modernization of State Governance with International Rule of Law”, Law and Social Development, Vol. 20, Issue 5, 2014. 7. Lingliang Zeng, “The Sonorous Work Song of an Old Helmsman of International Economic Law—Some Reflections and Thoughts after Reading The Voice from China: An CHEN on International Economic Law”, Journal of International Economic Law, Vol. 21, Issue 4, Peking University Press, 2014, pp. 21–30. 8. Lingliang Zeng, “Professor Xi Liang and International Law”, Wuhan University International Law Review, Vol. 16, Issue 2, Wuhan University Press, 2014, pp. 1–19. 9. Lingliang Zeng, “The Status and Application of Good Faith in International Law”, Modern Law Science, Vol. 36, Issue 4, 2014. 10. Lingliang Zeng, “Implementation Mechanism of United Nations Human Rights Treaties: Status, Problems and Strengthening”, Jianghan Tribune, Issue 7, 2014. 11. Lingliang Zeng, “International Law Perspective of Reform and Opening in the New Era”, Prosecutorial View, Issue 11, 2014.

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12. Lingliang Zeng, “Global Governance and Time Characteristics of International Law”, in Chinese Society of International Law (ed.), Chinese Yearbook of International Law (2013), Law Press China, 2014. 13. Lingliang Zeng, “The Close Interconnection between Law-Based China and International Rule of Law”, Law and Social Development, Vol. 19, Issue 5, 2013. 14. Lingliang Zeng, “EU Reform on the Generalized System of Preferences in the Context of European Debt Crisis and Its Implications for China”, Law Review, Issue 3, 2013. 15. Lingliang Zeng, “On the Elements of ‘Excellent’ of the Cultivation of Excellent Legal Talent in international Affairs”, China University Teaching, Issue 1, 2013. 16. Yan Zeng and Lingliang Zeng, “Features of Cross-Border Economic Cooperation Zone and Its Legal Framework and Mechanism Guarantees”, Presentday Law Science, Vol. 10, Issue 5, 2012. 17. Lingliang Zeng, “The 30th Anniversary of Wuhan University Institute of International Law: Review and Prospect”, Wuhan University International Law Review, Vol. 14, Issue 2, Wuhan University Press, 2011, pp. 139–153. 18. Lingliang Zeng, “The Contemporary Construction of Chinese International Law Discourse”, Social Sciences in China, Vol. 32, Issue 4, 2011. (Article written in English) 19. Lingliang Zeng, “Analysis about the Major Challenges Confronted by WTO Rule of Law and Its Responses”, Law Science Magazine, Issue 9, 2011. 20. Lingliang Zeng, “The Chinese Practice of International Rule of Law: Great Progress in the Past Thirty Years and Growing Challenges Ahead”, Wuhan University International Law Review, Vol. 14, Issue 1, Wuhan University Press, 2011, pp. 1–24. 21. Lingliang Zeng, “WTO: A Self-Contained Model of International Rule of Law”, Journal of International Economic Law, Vol. 17, Issue 4, Peking University Press, 2010, pp. 36–64. 22. Lingliang Zeng, “The Role of the United Nations in Promoting the Construction of International Rule of Law”, Studies in Law and Business, Issue 2, 2011. 23. Lingliang Zeng, “The Changes of the EU Competence in Its External Relations after the Lisbon Treaty: In the Legal Perspectives”, Journal of Xiangtan University (Philosophy and Social Sciences), Issue 2, 2011. 24. Lingliang Zeng, “The Contemporary Construction of Chinese International Law Discourse”, Social Sciences in China, Issue 2, 2011. 25. Lingliang Zeng, “On the New Trend of Treaty Interpretation from the Report of the Appellate Body on the Case of ‘China—Publications and Audiovisual Products’”, Legal Science, Issue 8, 2010. 26. Lingliang Zeng, “The Illegality and Adverse Effect of US Special Safeguard Measure on Tires from China”, Jiangxi Social Sciences, Vol. 7, Issue 1, 2010. 27. Lingliang Zeng, “Legal Status of Economic Cooperation Framework Agreement under the WTO Framework”, Presentday Law Science, Issue 6, 2009.

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28. Lingliang Zeng, “A Book Review on the European Union and China, 1949– 2008: Basic Documents and Commentary by Prof. Francis Snyder”, Chinese Journal of European Studies, Vol. 27, Issue 4, 2009. 29. Lingliang Zeng, “Negotiation of the EU-China Partnership and Cooperation Agreement (PCA): Issues, Suggestions and Prospects”, Social Sciences in China, Issue 2, 2009. 30. Lingliang Zeng, “A Preliminary Perspective of Negotiations of EU-China PCA: A New Bottle Carrying Old Wine or New Wine or Both?”, European Law Journal, Vol. 15, No. 1, 2009. (Article written in English) 31. Lingliang Zeng, “Non-Market Economy Issues in Sino-EU Relations: a Purely Technical Matter or Beyond?”, Proceedings of the 2008 Annual Meeting of the European Legal Research Institute of the Chinese Association for European Studies, 2008. 32. Lingliang Zeng, “The Pluralistic EU Governance Structure and Its Impacts on China’s Peaceful Development”, Chinese Journal of European Studies, Issue 3, 2008. 33. Lingliang Zeng, “The Harmonious World in the Perspective of Modern International Law”, Law Review, Issue 2, 2008. 34. Lingliang Zeng, “A Review of the DPRK Nuclear Test from the perspective of International Law”, World Economics and Politics, Issue 1, 2007. 35. Lingliang Zeng, “Trends towards Humanization in Contemporary International Law”, Social Sciences in China, Issue 1, 2007. 36. Lingliang Zeng, “Remarks by the Host of the Column ‘China’s Peaceful Development and International Law’”, Wuhan University Journal (Philosophy & Social Sciences), Issue 6, 2006. 37. Lingliang Zeng, “On the Mutual Influence and Effect of China’s Peaceful Development and International Law”, China Legal Science, Issue 4, 2006. 38. Lingliang Zeng, “Multilateral Trade System Accompanied by Adversities and Glories: Achievements, Problems and Improvements”, Wuhan University International Law Review, Vol. 5, Issue 2, Wuhan University Press, 2006, pp. 94–117. 39. Lingliang Zeng and Hua Zhang, “Making Appropriate Use of General Exceptions of the Principle of National Treatment: China’s Countermeasures Based on Comprehensive Considerations”, China WTO Tribune, Issue 5, 2006. 40. Lingliang Zeng, “On the Validity and Rationality of the Transitional Safeguard Mechanism”, Law Review, Issue 5, 2005. 41. Lingliang Zeng, “The Trend of Regional Trade Agreements and Its Adverse Effect on Doha Development Agenda”, Cass Journal of Law, Issue 5, 2004. 42. Lingliang Zeng, “The Dilemma and Outlet of Doha Development Agenda”, The Theory Monthly, Issue 7, 2004. 43. Lingliang Zeng, “Great Importance Should be Attached to the Innovation of WTO Legal Talents Cultivation System: Another Call from a Scholar”, WTO Law and Chinese Forum—Proceedings (II) of the Annual Meeting of the WTO Law Research Society of China Law Society, 2003.

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44. Lingliang Zeng, “On the Relationship and Development of the European Union Law Court and Its Member Countries’ Law Courts”, Journal of Guangxi Normal University (Philosophy and Social Science Edition), Vol. 39, Issue3, 2003. 45. Lingliang Zeng, “On the Legal Status and Development Trend of Regional Trade Arrangements under the WTO System and on Legal Issues Concerning the Establishment of Free Trade Zones in Chinese Mainland, Hongkong, Macao and Taiwan”, in Journal of International Economic Law, Vol. 7, Law Press China, 2003, pp. 1–16. 46. Lingliang Zeng, Lingliang Zeng and He Jiang, “Trade Liberalization and Environmental Protection in Perspective of Jurisprudence”, Wuhan University Journal (Philosophy & Social Science), Issue 4, 2003. 47. Lingliang Zeng and Sheng Yin, “Globalization of Terrorism Tendency and International Law Control”, Law and Social Development, Issue 4, 2003. 48. Lingliang Zeng, “On the Relationship Between the EEC Law and the Law of Its Members”, Legal Forum, Issue 1, 2003. 49. Lingliang Zeng and Yanxia Yao, “EU Law Studies in China: Past, Present and Future”, Law Review, Issue 4, 2002. 50. Lingliang Zeng, “Unified Judicial Examination and the Orientation of China’s Legal Education Development: Reflections on China’s Initiating Multilevel Legal Education”, Law Review, Issue 1, 2002. 51. Lingliang Zeng and Weidong Chen, “On the General Exception Clause (Article 20 of the GATT) and China’s Countermeasures”, Legal Forum, Issue 4, 2004. 52. Lingliang Zeng and Zhen Han, “On the WTO Agricultural Products Trade Arrangement and Developing Countries and on the Implications of Chinese Accession to WTO for China’s Agriculture and Countermeasures”, Law Review, Issue 4, 2001. 53. Lingliang Zeng, “Chinese Accession to WTO and Chinese Judicial Review System Improvement”, Wuhan University Journal (Philosophy & Social Science), Issue 3, 2001. 54. Lingliang Zeng, “Development Trends of Trade in Legal Services in the 21st Century and Reforms on China’s Legal Talents Cultivation”, Law Review, Issue 1, 2001. 55. Lingliang Zeng and Zhixiong Huang, “The Application of WTO Agreements in China and the Revolution on China’s Legal System Construction”, Chinese Legal Science, Issue 6, 2000. 56. Lingliang Zeng, “On the Structure of International Law and International Order in the 21st Century”, in Li Long (ed.), Luo Jia Jurists’ Forum, Vol. 1, Wuhan University Press, 2000. 57. Lingliang Zeng, “Impacts of Regional Integration on Multilateral Trading System: Taking EC as an Example”, Wuhan University Journal (Philosophy & Social Science), Issue 3, 2000. 58. Lingliang Zeng, Lingliang Zeng, Dayuan Han and Xingliang Chen, et al., “Thinking in front of the New Century: A Set of Articles on Learning the Inscription of the Central Leadership, Congratulating the Rename of This Journal and Welcoming the New Millennium”, Legal Forum, Issue 1, 2000.

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Appendix

59. Lingliang Zeng, “Rebuking NATO’s Barbaric Bombing of Chinese Embassy in Yugoslavia in the Perspective of Customary International Law”, Journal of Ideological & Theoretical Education, Issue 7, 2000. 60. Lingliang Zeng, “The Dual Status of EC and Its Member States in WTO and Its Influence on China”, Law Review, Issue 2, 1999. 61. Lingliang Zeng, “After Reading the Fourth Revised Edition of ‘The Law of International Organizations’ by Prof. Liang Xi”, Law Review, Issue 2, 1999. 62. Lingliang Zeng, “On the Subsidiarity Principle in EU Law”, Wuhan University Journal (Philosophy & Social Science), Issue 2, 1999. 63. Lingliang Zeng, “A Historic Breakthrough in International Law Development: Remarks on the Rome Statute of the International Criminal Court”, Social Sciences in China, Issue 1, 1998. 64. Lingliang Zeng, “On the State Sovereignty in the Post-Cold-War Era”, China Legal Science, Issue 1, 1998. 65. Lingliang Zeng, “The Advisory Jurisdiction of the ICJ and the Development of Modern International Law”, Law Review, Issue 1, 1998. 66. Lingliang Zeng, “On the WTO Legal System”, Legal Review, Issue 2, 1996. 67. Lingliang Zeng, “WTO: Past, Present and Future”, Encyclopedia Knowledge, Issue 10, 1995. 68. Lingliang Zeng, “A Masterpiece on the Development of Law of International Organizations in China: Remarks on ‘Law of International Organizations’ by Prof. Liang Xi”, Wuhan University Journal (Philosophy & Social Science), Issue 3, 1995. 69. Lingliang Zeng, “Remarks on ‘International Law’ Edited by Prof. Liang Xi”, Law Review, Issue 4, 1994. 70. Lingliang Zeng, “GATT and Its Relationship with China”, The Theory Monthly, Issue 9, 1992. 71. Lingliang Zeng, “European Community and External Missions”, Law Review, Issue 4, 1992. 72. Lingliang Zeng, “European Community’s External Relations and Western Europe Integration”, Wuhan University Journal (Philosophy & Social Science), Issue 5, 1993. 73. Lingliang Zeng, “Common Commercial Policy of the European Community”, Law Review, Issue2, 1992. 74. Lingliang Zeng, “European Political Cooperation and the European Community”, Wuhan University Journal (Philosophy & Social Science), Issue 3, 1991. 75. Lingliang Zeng, “The European Community and the Recognition in International Law”, Law Review, Issue 4, 1988. 76. Lingliang Zeng, “Analyses about EC’s Judicial Review System”, Wuhan University Journal (Philosophy & Social Science), Issue 2, 1988. 77. Lingliang Zeng, “On the Eligibility of GATT’s Contracting Parties: Issues Concerning the Recovery of China’s Position as a Contracting Party”, Law Review, Issue1, 1987.

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III. Newspaper Articles 1. Lingliang Zeng, “Building Socialist Science of International Law with Chinese Characteristics”, Guangming Daily, June 29 2016, p. 16. 2. Lingliang Zeng, “Promoting the Innovation of International Law Concepts and Principles”, People’s Daily, March 28 2016, p. 16. 3. Lingliang Zeng, “A Call for New International Law from a Harmonious World”, People’s Daily (Overseas Edition), July 13 2007, p. 1. 4. Lingliang Zeng, “Great Importance Should Be Attached to the Cultivation of China’s WTO Legal Talents”, Legal Daily, January 8 2007. 5. Lingliang Zeng, “Strengthening the Cultivation of WTO Talents”, People’s Court Daily, January 28 2004.