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The People’s Republic of China and the Charter-Based International Legal Order

Published online by Cambridge University Press:  27 February 2017

Samuel S. Kim
Samuel S. Kim*
Affiliation:
Political Science at Monmouth College; Center of International Studies, Princeton University
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Extract

The entry of the People’s Republic of China (PRC) into the world community has renewed an old question in a new global setting: Is China a help or a hindrance to international law and order? What impact, if any, has China made upon the evolution of the Charter-based international legal order? Conversely, what impact, if any, has the international legal order had on the Chinese conception and practice of international law? China’s participation for over six years in the activities of the United Nations, the specialized agencies, and UN-sponsored conferences, many of which are engaged in the development and clarification of law, now makes it possible to subject the above questions to a disciplined behavioral analysis.

Type
Research Article
Information
American Journal of International Law , Volume 72 , Issue 2 , April 1978 , pp. 317 - 349
Copyright
Copyright © American Society of International Law 1978

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References

1 Unless otherwise specified, the term “China” throughout this article refers to the People's Republic of China (PRC); this conforms to the UN practice.

2 This article is based on Chapter 8 of China, The United Nations, and World Order, to be published in late 1978 by Princeton University Press. The author gratefully acknowledges his indebtedness to Monmouth College for a faculty creativity grant and the Center of International Studies, Princeton University, for a research travel grant, both of which supported the preparation of this article.

3 For a discussion on the Charter conception of international legal order, see Falk, , The Interplay of Westphalia and Charter Conceptions of International Legal Order, in The Future of the International Legal Order 48-64 (Falk, R. A. & Black, C. E., eds. 1969)Google Scholar.

4 A detailed analysis of the evolution of the Chinese attitude toward the Charter conception of international legal order during the preentry period (1950-1971) is contained in Chapter 8 of China, the United Nations, and World Order, supra note 2. The single most useful reference on this question is the late Chou Keng-sheng's Hsien-tai ying-mei kuo-chi-fa te ssu-hsiang tung-hsiang (Trends in Modern Anglo-American Thought on International Law) (1963).

5 Id.Chou Keng-sheng may be regarded as the dean of Chinese jurists in the 1950's and 1960's. Ch'en Ti-ch'iang, one of the most prominent Chinese scholars on international law, who headed the Division of International Law of the Institute of International Relations of the Chinese Academy of Sciences before he was purged in 1958, was attacked for having failed to grasp the fundamental fact that international law was a legal instrument in the service of Chinese foreign policy.

6 Such leading journals on international law and politics as Cheng-fa yen-chiu (Research on Politics and Law), Kuo-chi wen-t'i yen-chiu (Research on International Problems), Fa-hsiieh (Jurisprudence), and Shih-chieh chih-shih (World Knowledge) were all swept away by the Cultural Revolution in mid-1966 and have not resumed publication.

7 Based on the author's field interviews at UN Headquarters. Interview schedule is compiled in the editor's office for protocol purposes only.

8 There is a confusing array of titles for this department. Donald Klein uses the term, “International Organizations and Conferences and Treaty and Law Department,” while Wolfgang Bartke speaks of “International Organizations and Conferences, Treaties and Laws.” The Chinese themselves have been inconsistent in identification (or translation) of the term for this department. In all the English translations of the list of delegates to the General Assembly or other international conferences, the department has been identified as “Department of International Organizations, Law and Treaty” or “Department of International Organizations, Law and Treaties,” but in the French translation the department is referred to as “Departement des organisations internationales et des traites et lois internationaux.” See the following: D. Klein, The Chinese Foreign Ministry 174 (1974) (unpublished Ph.D. Dissertation, in Columbia University Library); W. Bartke, The Diplomatic Service of the People's Republic of China as of January 1976 (Including Biographies) 7 (1976); UN Docs. A/CoNF.62/lNF.3/Rev.2 (1974); A/CoNF.62/lNF.4/Rev. 1 (1975); Delegations to the General Assembly, 27th Sess., UN Doc. ST/SG/SER.B/26/Rev.’ 1, at 39-42 (1972).

9 For an analysis of geographical and functional departments in the Chinese Ministry of Foreign Affairs, see Klein, supra note 8, Ch. 4.

10 See UN Docs. TD/B/AC.12/2 (1973) and TD/B/AC.12/3 (1974).

11 A comprehensive analysis of these behind-the-scenes negotiations is given in Chapter 7 of China, the United Nations, and World Order, supra note 2.

12 Based on the author's field interviews at UN Headquarters with international civil servants, whose comments were solicited with the assurance that there would be no direct attribution.

13 For discussions of the status and development of international law in China, see Chiu, , Communist China's Attitude Toward International Law, 60 AJIL 2 (1966)Google Scholar and Ogden, , China and International Law: Implications for Foreign Policy, 49 Pacific Affairs 28-31 (1976)CrossRefGoogle Scholar.

14 See Kim, , The People's Republic of China in the United Nations: A Preliminary Analysis, 26 World Politics 316, 328 (1974)Google Scholar.

15 Report of the International Court of Justice, 1 August 1972-31 July 1973, 28 GAOR, Supp. (No. 5 ) 1, UN Doc. A/9005 (1973).

16 See 5 Third UN Conference on the Law of the Sea, Off. Rec 24 (1976). Realizing that the compulsory jurisdiction has received a considerable amount of support from Third World countries, China suggested a compromise solution that the provisions of the compulsory jurisdiction on the settlement of disputes “should not be included in the convention itself but should form a separate protocol so that countries could decide for themselves whether to accept it or not.” Id. .

17 For example, the 1971-1972 annual report amounted to only four and a half printed pages. For the period Aug. 1, 1974 to July 31, 1976, the Court combined two years’ work into one “biennial” report that was no more than three printed pages long.

18 Cf. Report of the International Court of Justice, 1 August 1971-31 JULY 1972, 27 GAOR, Supp. (No. 5) 1, UN Doc. A/7217. (1972); Report of the International Court of Justice, 1 August 1973-31 JULY 1974, 29 GAOR, Supp. (No. 5) 2, UN Doc. A/9605 (1974) and Report of the International Court of Justice, 1 August 1974-31 July 1976, 31 GAOR, Supp. (No. 5) 1, UN Doc. A/31/5 (1976).

19 OR, C.l (1871st mtg.) para. 14 (1972).

20 Art. 108 of the UN Charter.

21 Multilateral Treaties in Respect of which the Secretary-General Performs Depository Functions: List of Signatures, Ratifications, Accessions, Etc. AS AT 31 December 1976, UN Doc. ST/LEG/SER.D/10 (1977), at xviii [hereafter cited as Multilateral Treaties].

22 Id. at iii-iv (emphasis added).

23 26 GAOR, Supp. (No. 29) 2, UN Doc. A/8429 (1971).

24 27 GAOR, C.6 (1327th mtg.) para. 42 (1972).

25 It may be noted here for purposes of comparison that of some 2,000 agreements that the PRC concluded between 1949 and 1967, 49 (or 2.45 percent) represented multilateral agreements involving four or more parties. See D. M. Johnston & H. Chiu, Agreements of the People's Republic of China 1949-1967: A Calendar 275-76 (1968).

26 Res. 3501, adopted without vote. 30 GAOR, Supp. (No. 34) 154, UN Doc. A/10034 (1975). In its Resolution 31/76 of 13 December 1976, the General Assembly noted that “since the adoption by the General Assembly of its resolution 3501 (XXX) of 15 December 1975 the number of States parties to the Vienna Convention on Diplomatic Relations of 1961 has increased.” 31(1) GAOR, Supp. (No. 39) 181, UN Doc. A/31/39 (1976).

27 Multilateral Treaties, supra note 21, at 55.

28 Two examples can be cited here: The International Convention on the Suppression and Punishment of the Crime of Apartheid and the International Convention on the Elimination of All Forms of Racial Discrimination. Multilateral Treaties, supra note 21, at 84, 110; 29 GAOR, C.3 (2061st mtg.) paras. 6-8 (1974); 29 GAOR, SPC (940th mtg.) paras. 2-4 (1974); 30 GAOR, C.3 (2122d mtg.) para. 30 (1975).

29 27 GAOR, C.6 (1327th mtg.) para. 37 (1972).

30 Multilateral Treaties, supra note 21, at 73 and UN Doc. A/PV.2202 at 103 (1973).

31 Chinese delegates repeatedly invoked the Geneva Conventions of 1949 in support of their position on the Bangladesh and Middle East questions. Even Jen-min jih-pao (People's Daily) cited the Geneva Conventions in legitimizing the Chinese position. For the references to the Geneva Conventions, see PEKING REV., Aug. 18, 1972, at 12- 13; Sept. 1, 1972, at 7; Dec. 8, 1972, at 9; Jen-Min Jih-Pao (ed.) Aug. 28, 1972, at 1; 27 GAOR, SPC (853rd mtg.) para. 53, (1972); id (2105th plen. mtg.) para. 82; 30 GAOR, SPC (988th mtg.) para. 37 (1975).

32 Schachter, , The Evolving International Law of Development, 15 Col. J. Trans. L. 1 (1976)Google Scholar.

33 See S. S. Kim, The Maoist Image of World Order (1977).

34 Res. 3201 & 3202, 6 Sp. GAOR, Supp. (No. 1) 3, UN Doc. A/9559 (1974), 13 ILM 715 (1974) and GA Res. 3281, 29 GAOR, Supp. (No.31) 50, UN Doc. A/9631 (1974), 69 AJIL 484 (1975), 14 ILM 251 (1975).

35 [1966] ICJ Rep. 170.

36 See O. Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966); J. Castaneda, Legal Effects of United Nations Resolutions (1969); H. Chiu, The Capacity of International Organizations to Conclude Treaties, and the Special Legal Aspects of the Treaties so Concluded (1966); I. Detter, Law making by International Organizations (1965); L. Di Qual, Les Effets Des Resolutions Des Nations-Unis (1967); Falk, , On the Quasi-Legislative Competence of the General Assembly, 60 AJIL 782-91 (1966)CrossRefGoogle Scholar; R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963); id, The United Nations and Lawmaking: The Political Organs, 64 ASIL Proc, 37-48 (1970); Schachter, supra note 32; E. Yemin, Legislative Powers in the United Nations and Specialized Agencies (1969)

37 Judge Tanaka's Dissenting Opinion in the South West Africa cases in [1966] ICJ Rep. 291. An argument along the same line has also been advanced by a prominent international lawyer regarding the establishing of international environment law. See Sohn, , The Stockholm Declaration on the Human Environment, 14 Harv. Int. L. J. 514 (1973)Google Scholar.

38 2 J. A. Cohen & H. Gnu, People's China and International Law, 1230-38 (1974)

39 5 SCOR, (527th mtg.) 4 (1950).

40 Kim, supra note 14, at 301.

41 5 GAOR, Supp. (No. 20) 10, UN Doc. A/1775 (1950).

42 5 GAOR, Supp. (No. 20A) 3, UN Doc. A/1775/Add. 1 (1951).

43 GA Res. 2765, 26 GAOR, Supp. (No. 29) 97, UN Doc. A/8429 (1971).

44 2 6 GAOR (1984th plen. mtg.) para. 92. See also UN Doc. S/PV. 1825, at 38-40 (1975); 30 GAOR, C.4 (2159th mtg.) para. 9.(1975).

45 Art. 2(7) of the UN Charter.

46 Kuo Ch'un, Lien-Ho Kuo (The United Nations) 15 (1956).

47 Based on the author's field interviews at UN Headquarters.

48 Supra note 23, (emphasis added).

49 Huang Hua Urges UN and All Related Organizations to Cease Immediately All Contacts with Chiang Kai-shek Clique, NCNA-English United Nations (Jan. 13, 1972), in Survey of China Mainland Press, No. 5062, Jan. 26, 1972, at 127.

50 For a further discussion, see China, The United Nations, and World Order, supra note 2, Ch. 7.

51 27 SCOR (1656th mtg.) para. 92 (1972). See also UN Doc. S/PV. 1825, at 38-40 (1975); 30 GAOR, C.4 (2159th mtg.) para. 9 (1975).

52 28 GAOR, C.3 (2007th mtg.) para. 35 (1973).

53 Supra note 34.

54 6 Sp. GAOR, AC.166 (13th mtg.) para. 27 (1974).

55 24 GAOR, Supp. (No. 25) 11, UN Doc. A/7630 (1969).

56 2 Third UN CONF. On the Law of the Sea, Off. Rec. 37 (1975).

57 C/.A/1 Sea-Bed Committee Ends Session, Peking Rev., Aug. 25, 1972, at 11.

58 Id., July 8, 1977, at 24.

59 For the text of the resolution, in which a reference to GA Res. 377(A) is made, see 26 SCOH, RES. & DEC. 10 (1971).

60 GA Res. 2793, 26 GAOR, Supp. (No. 29) 3, UN Doc. A/8429 (1971), adopted by a roll-call vote of 104 to 11, with 10 abstentions.

61 One of the preambular paragraphs of the resolution reads: “Mindful of the purposes and principles of the Charter and of the General Assembly's responsibilities under the relevant provisions of the Charter and of Assembly resolution 377(A) of 3 November 1950.“

62 UN Doc. S/PV.1750, at 6 (1973).

63 Id.

64 Id.,at 7-10.

65 27 GAOR, C.5 (1536th mtg.) para. 50 (1972)

66 For a comprehensive statement made by Chinese representative Wang Wei-tsai in the Fifth Committee on this question, see 28 GAOR, C.5 (1604th mtg.) paras. 60-66 (1973). For repetition of Wang Wei-tsai's exposition in subsequent discussions, see UN Doc. A/PV. 2303, at 76-80 (1974); 29 GAOR, C.5 (1654th mtg.) para. 16 (1974); UN Doc. A/PV. 2389, at 16 (1974); 30 GAOR, C.5 (1725th mtg.) 3; id. (1752dmtg.)12 (1975); UN Doc. A/31/PV.41, at 6(1976); UN Doc. A/C.5/31/SR.14, at 13 (1976).

67 G Res. 3101, 28(1) GAOR, Supp. (No. 30) 122, UN Doc. A/9030 (1973).

68 28 GAOR, C.5 (1604th mtg.) para. 66 (1973).

69 GA Res. 992, 10 GAOR, Supp. (No. 19) 49, UN Doc. A/3116 (1955).

70 GA Res. 2697, 25 GAOR, Supp. (No. 28) 127, UN Doc. A/8028 (1970); GA Res. 2968, 27 GAOR, Supp. (No. 30) 116, UN Doc. A/8730 (1972).

71 29(l) GAOR, Supp (No. 31) 148, UN Doc. A/9631 (1974).

72 GA Res. 3499, 30 GAOR, Supp. (No. 34) 152, UN Doc. A/10034 (1975).

73 UN Doc. A/C.6/31/SR.47, at 9 (1976). The Soviet position summarized in this article is based on the following: Report of the Ad hoc Committee on the Charter of the United Nations, 30 GAOR, Supp. (No. 33) 88-95, UN Doc. A/10033 (1975) [hereinafter cited as Rep. Ad Hoc Comm.] and UN Docs. A/AC.182/SR. 11, at 2-5 and A/C.6/31/SR.47, at 7-11 (1976).

74 Rep. Ad Hoc Comm., supra note 73, at 27-30 and UN Doc. A/AC.182/SR.8, at 3-6 (1976).

75 Rep. Ad Hoc Comm., supra note 73, at 96-101.

76 Chairman of Chinese Delegation Chiao Kuan-hua's Speech, Peking Rev., Oct. 13. 1972, at 10.

77 Operative paragraph 1 of GA Res. 2968 (supra note 70) “requests the Secretary- General to invite Member States that have not already done so to submit to him, before 1 July 1974, their views on the desirability of a review of the Charter of the United Nations and their actual suggestions in this respect.” For the Chinese position paper, see UN Doc. A/9739, at 3-4 (1974).

78 29 GAOR, C.6 (1513th mtg.) para. 37 (1974).

79 30 GAOR, C.6 (1569th mtg.) para. 32 (1975).

80 UN Doc. A/PV.2440, at 77 (1975).

81 29 GAOR, C.6 (1462d mtg.) para. 31 (1974).

82 30 GAOR, C.6 (1565th mtg.) para. 28 (1975). See also UN Doc. A/C.6/31/ SR.47, at 4 (1976) and Rep. Ad Hoc Comm., supra note 73, at 10-11.

83 UN Doc. A/C.6/31/SR.47, at 11 (1976).

84 Art. 108 of the UN Charter.

85 A Just Demand of the Third World Countries, Jen-Min Jih-Pao, Mar. 24, 1977, at 6.

86 See30 GAOR, C.6 (1569th mtg.) para. 36 (1975) and UN Doc. A/C.6/31/SR.47, at 3 (1976).

87 UN Doc. A/C.6/31/SR.47, at 3 (1976).

88 A detailed analysis of Chinese voting behavior in the Security Council is contained in Chapter 4 of China, the United Nations, and World Order, supra note 2.

89 UN Doc. A/AC.182/SR.20, at 15 (1977). What infuriated the Soviet representative was that the Committee—through a roll-call vote of 30 (including China) to 8 against (the USSR, the United Kingdom, the United States, Belgium, Czechoslovakia, France, German Democratic Republic, and Poland), with 5 abstentions—annexed to the Committee report two papers containing suggestions for revising the Charter andstrengthening the Organization's role. One paper (A/AC.182/L.12/Rev.l (1977)) was submitted by 16 countries and the other (A/AC.182/L.15 (1977)) by Italy and Spain. For details, see UN Doc. A/AC.182/SR.20, at 1-17 (1977). For the Chinese reaction, see A Just Demand of the Third World Countries, Jen-Min Jih-Pao, Mar. 24, 1977, at 6.

90 GA Res. 3314, 29 GAOR, Supp. (No. 31) 142, UN Doc. A/9631 (1974).

91 For detailed analyses of the definition, see V. Cassin, et al, The Definition of Aggression 16 Harv. Int. L. J. 589 (1975) and Stone, J., Hopes and Loopholes in the 1974 Definition of Aggression, 71 AJIL 224 (1977)CrossRefGoogle Scholar.

92 Supra note 42.

93 It may be recalled here that the Soviet Union was the first state to propose adefinition of aggression in 1933 and has been active ever since on this question in its multilateral diplomacy. For the text of the Soviet proposal on aggression submitted to the 1933 Conference for the Reduction and Limitation of Armaments, see 7 GAOR, Annexes (Agenda Item No. 54) 34-35, UN Doc. A/2211 (1957).

94 2 9 GAOR, C.6 (1503rd mtg.) para. 11 (1974). Following the adoption of the resolution by the plenary on December 14, 1974, Chinese representative An Chih-yiian again made China's position clear by stating that his delegation would not have participated in the vote, if the resolution had been pressed to a roll-call or recorded vote. See UN Doc. A/PV.2319, at 32-35 (1974).

95 For my discussion of the conceptual problems in equating aggression and war, see Kim, , The Lorenzian Theory of Aggression and Peace Research: A Critique, 13 J. Of Peace Research 253-76 (1976)CrossRefGoogle Scholar.

96 28 GAOR, C.6 (1442d mtg.) para. 73 (1973).

97 1. L. Claude, Jr., Swords into Plowshares 266 (4th ed. 1971) (emphasis in original). For a more extensive discussion on the concept of collective security in comparison with other concepts of power management in international relations, see I. L. Claude, Jr., Power and International Relations (1962).

98 28 GAOR, C.6 (1442d mtg.) para. 74 (1973).

99 Id. para. 76

100 Id. para. 77

101 Id. para, 75

102 Id.

103 29 GAOR, C.6 (1475th mtg.) para. 14; id (1503rd mtg.) para. 9 (1974).

104 29 GAOR, C.6 (1475th mtg.) para. 15 (1974).

105 See Park, , Oil Under Troubled Waters: The Northeast Asia Sea-Bed Controversy, 14 Harv. Int. L. J. 212 (1973)Google Scholar and The Sino-Japanese-Korean Sea Resources Controversy and the Hypothesis of a 200-Mile Economic Zone, 16 id. 27 (1975).

106 29 GAOR, C.6 (1475th mtg.) para. 16 (1974).

107 S/RES. 418 (1977).

108 UN Doc. A/32/58/Add.l, at 2 (1977).

109 Falk, supra note 3, at 43.

110 Falk, , The Domains of Law and Justice, 31 INT. J. 2 (1976)Google Scholar. In a similar'vein, Inis Claude, Jr. has argued “that the function of legitimization in the international realm has tended in recent years to be increasingly conferred upon international political institutions” and that “it is a fact of present-day international life that, for whatever reasons of whatever validity, statesmen exhibit a definite preference for a political rather than a legal process of legitimization.” Claude, , Collective Legitimization as a Political Function of the United Nations, 20 Int. Org. 370-71 (1966)Google Scholar.