Tag Archive | "Judge Xue Hanqin"

Old and New China

Part 6: Mianzi, Chinese Perspectives and Chinese Practice

Old and New China

Old and New China

Upon reflection, two divergent themes emerged from Judge Xue’s lectures.  Much of what she said made me realize that Western apprehension over China’s rapid ascension is somewhat misplaced and that the Chinese government is serious about using its power to improve the lives of its people.  It gave me confidence that China is likely to be a constructive addition to the geopolitical balance.  However, as an avid consumer of global news, some of what Judge Xue argued rang hollow against the backdrop of the free media’s coverage of China’s practices.  I attempted to reconcile this discrepancy through the Chinese concept of mianzi.

Mianzi is best translated in to English as “face,” in the metaphorical sense in which a person can “save face.”  Due to my aunt and uncle having lived in Shanghai for over five years, I knew that this translation was not perfect; the concept means slightly different things in China than it does in the West.  Not only is saving face more important in China, but the way in which one saves face is also slightly different.

The clearest example of this discrepancy that I can find concerns a well-fed child carelessly knocking a vase off of the table while his parents are not home.  In the United States, the child would simply blame it on the dog.  If the American boy’s parents found out that he had lied, he would be punished both for breaking the vase and for lying about it.  In China, by contrast, the careless boy would likely tell his parents that, while he did in fact knock down the vase, he did so because he skipped breakfast and a wave of dizziness came upon him.  The Chinese boy is sorry that he forgot to eat breakfast.  If his parents found out that he had indeed eaten breakfast, they would be upset about the vase but would understand why he had fabricated the reason for the accident.  I opened Judge Xue’s closing seminar with a question about whether the concept of mianzi affected China’s behavior with respect to the international community.

Judge Xue began her answer to my question by thanking me for realizing the importance of Chinese culture in its conception of international law.  But to my surprise, rather than openly discuss the differences between the Chinese and Western concepts of face, Judge Xue simply stated that all cultures have this concept and that it was basically a wash when it came to international relations.  Nonetheless, it is my sense that Judge Xue’s lecture, and even her answer to my question, offer some insight into the concept of mianzi.  While China has indeed been misunderstood by the West and criticized in an overly-harsh and unproductive way, where China’s footing is weak from an objective standpoint, is asserts full compliance, maintaining mianzi.

In concluding this six-part series, I will briefly summarize Judge Xue’s position on each major issue discussed in the lecture and discuss the extent to which Western criticism has been either unwarranted or is on point.  I will also discuss areas where it is possible that Chinese denial of fault is based on its desire to keep face in the international community.  I will conclude by suggesting that China’s reliance on mianzi is a cause for Western optimism.

History

When Chinese leaders make policy decisions, they do so not as purely objective actors but as Chinese citizens whose culture and self-identification color the choices they make.  As such, China’s complex history of international relations – that of victim, outside observer, and finally active participant – has lead to a modern China that guards its sovereignty jealously and views the prospect of global governance with a skeptical eye.  China’s historical claim is to be taken seriously and respected by the West.  A globalized world must be able to tolerate state actors who do not share a common history and culture.  This is a baseline criterion if the world is to move forward in a manner that favors peace and respects the rule of law.  This is an area where Chinese perspectives and Chinese practice line up perfectly and Western criticism has been mostly off point.

Sovereignty

Map of the South China Sea

Map of the South China Sea

The Chinese conception of sovereignty is closely related to its history, but China’s contemporary record is more mixed when it comes to its sovereignty and that of its neighbors.  On the one hand, Judge Xue’s pronouncement that sovereignty requires “supremacy internally and independence externally” is the primary basis for the international order and represents a major current of international legal scholarship.  It is an appropriate position that Western countries should not only respect but also see in their own actions.  On the other hand, China outwardly refuses to tolerate any exceptions to this rule while making exceptions of its own in the South China Sea.  China’s official position on the South China Sea is that it has absolute sovereignty over its entirety.  It is clear from a map of China’s claimed territory that such an assertion infringes on the sovereignty of Vietnam, Malaysia, Indonesia, Brunei, and the Philippines.

Sovereign equality is an inseparable part of sovereignty, and China must adhere to the UNCLOS boundaries, the only equitable solution to this dispute, if it in fact respects the idea that it claims to hold so dear.  When China advances the notion that it has a sovereign right to the South China Sea that is contrary to the UN Convention on the Law of the Sea, it is pursuing its domestic self-interest and trying to keep face while doing so.  China’s stated position regarding sovereign equality is sound, but Western pressure in the face of Chinese action violating its stated principles is warranted.

Sustainable Development

China’s response to Western criticism of its environmental record is two-fold.  First, China maintains that the West must view Chinese actions in the context of the world’s largest developing country with the world’s fastest growing economy.  Second, China asserts that the West must appreciate the fact that, while China takes sustainable development seriously, it refuses to sacrifice the practical well being of its citizens to satisfy the West’s goals related to protecting the environment.  China bolsters its credibility through an historical record of addressing environmental concerns once they adversely affect the Chinese people.  The West would do well to recognize that China is in a different stage of development than its European and North American counterparts, and only time will tell how China’s state practice surrounding sustainability stand up against its pronouncements.  Every developed country went through a period of rapid industrialization on its way from an agricultural to a manufacturing economy, and if history is any guide, that period is necessarily coupled with a marked increase in pollution.  There is no reason for the West to expect China’s development to proceed any differently.

Nonetheless, there is no guarantee that China will continue to follow the long-term Western historical pattern.  In the Western framework, once an agricultural economy transitions into a manufacturing economy, a middle class begins to form.  Then, a period follows in which industrial expansion and the growth of the middle class occur in lockstep.  Once environmental degradation begins to adversely affect this newly empowered middle class, political pressure leads to environmental protection.  According to Chinese pronouncements, this is exactly what the West should expect – China refusing to acquiesce to Western demands only to meet those same Western expectations in response to the needs of its own people.  However, the Earth Policy Institute recently found that lung cancer is the leading cause of death in China.  This is a highly abnormal phenomenon that can only be attributed to unprecedented air pollution.  The needs of the Chinese people clearly call for an improvement in China’s environmental record.  In this case, the coin is in the air as to whether China will admit that a change in course is needed to adequately protect its people.  The West should give China a chance to live up to its stated expectation but criticize the nation if it fails to do so.

Human Rights

In her lecture on human rights, Judge Xue stressed China’s history of constitutional and administrative improvements as well as changes to the criminal justice system to show the country’s commitment to the promotion of human rights.  Above all, the Judge emphasized the fact that China’s embrace of the market system has lifted 300 million people out of poverty and is a human rights achievement in itself.  While the lack of the direct applicability of the Chinese constitution calls into question the positive effects of constitutional reform, the implementation of a civil system allowing citizens to sue the government and the modernization of the criminal code are real, concrete developments that have improved the humanitarian situation of the Chinese people.  Moreover, it is true that human rights are paper rights without the economic means of enforcing them.  As such it must be said that, in absolute terms, lifting 300 million people out of poverty over the course of 33 years is one of the greatest human rights achievements in modern history.

Dissodent artist Ai Weiwei's Shanghai studio demolished by Chinese Government

Dissodent artist Ai Weiwei's Shanghai studio demolished by Chinese Government

The Chinese have made impressive progress in some human rights areas, and it claims that it is working tirelessly to improve in all areas.  However, an exchange between a colleague of mine and Judge Xue suggests that “steady pursuit of all human rights” may not be an accurate characterization of China’s path forward.  My colleague asked Judge Xue to square her presentation on Chinese perceptions of human rights with news stories coming out of China of imprisoned dissidents, censored internet traffic, and lies about train wrecks.  Judge Xue’s responded that China needed time to develop the capacity to provide for the human rights of all its citizens and that the government reserves the right to allow human rights to develop alongside economic rights.  My colleague then tried to ask a follow up question distinguishing between positive and negative human rights but did not get very far.  Nonetheless, my colleague put his finger on the key distinction between the acceptable and unacceptable aspects of China’s position on human rights.

China’s basic human rights argument is twofold.  First, there is the economic argument that China has a sovereign right to spend its limited resources as its sees fit, putting economic development ahead of the promotion of human rights.  Second, there is the cultural argument, says that because China is a collectivist society, Chinese citizens are willing to go without if doing so means that their children and grandchildren can live in a more prosperous country.  This second argument is not really testable, but if it is true that the Chinese people have a strong collectivist mentality, China’s treatment of positive human rights should not offend the vast majority of the its citizenry.  These two arguments may be successful when positive rights are at issue, but they fail with respect to negative rights.

These arguments hold with respect to positive human rights, which are rights with a corresponding obligation that something be given to the right-holder.  Providing for rights such as education, health care, and protection from crime requires substantial resources, and China has a sovereign right to prioritize the way in which it uses those resources.  China has chosen to focus on improving its economy and has proven that promoting economic development leads to the subsequent development of positive human rights for those benefitting from economic expansion.  With respect to positive rights, China’s stated position is economically sound and appears to be culturally acceptable.

However, the both Chinese arguments fails with respect to negative human rights, which are rights with a corresponding obligation that something not be done to the right-holder.  Filtering the internet, enforcing house arrests, and punishing dissidents not only deny Chinese citizens the negative human right not to be persecuted for peaceful expression nor denied access to information, they actually cost money to enforce.  China’s economic argument is nonsensical when negative human rights are at issue.  Their cultural argument also fails where negative rights are concerned.  If China is truly a collectivist society, exposure to a small amount of dissident information should not change thousands of years of cultural tradition and end in riots on the street.  And even if it does, do the Chinese people not have the undeniable right to change what they believe?  While China should be free to pursue the positive rights of its citizens as it sees fit, the fact that it uses the same argument to justify deprivations of negative rights is pursuing mianzi in its most destructive form.

Concluding Remarks

In closing her lecture on sovereignty, Judge Xue stated that the central question for the international community is, “How should states with different systems and values interact with one another on the international stage?”  She is right.  The emergence of China as an international player may have prompted that question, but other developing nations such as Brazil and India will eventually join the fray.  Most, if not all, of the values in the human rights regime of international law that emerged after World War II are universal, despite the fact that they were created by a group of individuals that was not demographically or culturally representative of the global population.  However, history has made it clear that philosophy is not the sole driver of geopolitical developments.  If the West ever wants the universality of these hard fought for norms to be realized, it must afford the international system the flexibility of incorporating other cultures’ current conceptions of those norms.

This will only happen if the West shows respect and deference to different histories and cultures of developing nations, letting reason trump both fear and prejudice.  But developing countries must follow suit, and, while China should continue to center its positions on international law around the Five Principles of Peaceful Coexistence, it should realize that the principle mutual non-interference does not shield China from international pressure and that, under certain circumstances, the principle of “equality and mutual benefit” might require such pressure.

Mianzi plays a significant role in China’s pronouncements on international law.  In the Western view, this assertion may carry a connotation of deceitfulness and untrustworthiness.  That would be the wrong conclusion to reach and draws attention to the importance of cultural understanding in a diverse international community.  The careless son lied because he cared what his mother thought about him.  In a similar (though much less subservient) way, China seeks to keep face because it realizes that an interconnected world is one in which reputations matter.  That fact alone is reason for the West to be optimistic as we enter this new, interconnected, and complex global order.

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Protester in China

Chinese Perspectives Part 5: Human Rights

Protester in China

Protester in China

Like sustainable development, Chinese promotion of human rights is seen as both a cause and a process – one that should be pursued at all times, but with an incremental approach resulting in changes that will be slow in coming.  In the past three decades, China’s process of opening up has lifted 300 million people out of poverty.  This is as much a human rights achievement as it is an economic one.  China’s economic success combined with constitutional and administrative reforms, increased participation in UN human rights activities, and developments in the Chinese criminal justice system suggests that the nation is serious about making improvements to its human rights record.  However, China is adamant that its perspective is in some ways intractably different from that of the west with regards to human rights.

There are four principal constitutional developments that have taken place over the last two-and-a-half decades that have the potential to improve human rights in China.  First, a 1988 amendment to the Chinese constitution legitimizing the private economy resulted in an improvement in the humanitarian situation, at least for those able to take part in the subsequent economic expansion.  This development was bolstered in 1993, when the Chinese constitution was amended to formally endorse a market economy.  The third important constitutional change took place in 1999 when the rule of law was officially enshrined in the constitution.  Finally, in 2004, China expressly endorsed human rights as such when a provision was added to the constitution saying, “The state respects and protects human rights.”

From these four developments, Judge Xue concluded that human rights are now a fundamental principle of the Chinese legal system.  However, the Chinese constitution can never be applied directly; the Chinese legislature, the National People’s Congress (NPC), must promulgate all laws dealing specifically with rights.  Thus, the Chinese legislature can essentially insert a “Notwithstanding the constitution” clause into pieces of legislation that directly contravene the constitution itself.  This legislative feature makes the above-mentioned constitutional developments much less satisfying than they would be had they been contained in a constitution operating as the supreme law of the land.

Chinese administrative developments, on the other hand, seem to have produced much more concrete results.  In 1982, China passed its law on civil procedure, which marked the beginning of the Chinese administrative law regime.  The civil procedure law allowed citizens to sue state organs.  Since the adoption of the law, there have been over 900,000 suits against the state.  According to Judge Xue, 40 percent of these suits end with the state losing, and 25 percent of the suits end with the state paying damages.  This administrative system provides for a mechanism to expose inefficiency and corruption, which in turn leads to a government more able to further the human rights of its citizens.

Judge Xue also cited an increase in participation in United Nations human rights activities as evidence that China is committed to human rights.  Despite its history of being excluded from the international community, China has ratified most international treaties and conventions related to human rights.  It is a state party to the Convention Against Corruption and even initiated the Treaty on the Rights of Persons with Disabilities.  To ensure continued compliance with these international agreements, China submits regular reports to monitoring bodies.

Of all the areas mentioned by Judge Xue in her lecture of human rights, she was most open about the shortcomings of the Chinese criminal justice system.  Though she noted that China has made substantial progress in this area, especially as it relates to the criminal code and capital punishment, she acknowledged that the criminal justice system “remains under criticism, both at home and abroad.”

The first positive development in the Chinese criminal justice system came in the form of the modernization of the Criminal Code that took place in 1997.  The 1997 amendments to the code replaced the practice of “crime by analogy” with the more positivist principle of nulla crimen sine lege – the notion that “without the law, there is no crime.”  Additionally, through the modernization of the code, the Chinese government embraced the ideas of proportionality between the crime and the punishment and equality before the law and sought to embody these two principles throughout the Criminal Code.

Similarly, developments related to capital punishment suggest that the Chinese government takes human rights into consideration when making laws.  In 2007, the NPC passed a law requiring all death penalty cases to be reviewed by the Supreme Court, hopefully minimizing erroneous executions.  In the last several years, thirteen crimes have been removed from the list of capital offenses, and capital punishment has been abolished altogether for persons over the age of 75.  These developments were a direct response to changes popular opinion with regards to human rights – an opinion to which Judge Xue would argue the Chinese government is finely tuned and highly responsive.

However, Judge Xue finished her discussion of capital punishment with a statistic, which calls into question the nature of the Chinese government’s relationship to public opinion when she stated that a Chinese study found that 99 percent of the Chinese population was against abolishing the death penalty.  That statistic more closely resembles propaganda from the politburo than sound social science, as there are few policy positions with which 99% of people are in agreement.  An issue as controversial as the death penalty is not likely to be one of them.  Citing this statistic marked the only time that I, and many of my colleagues at the Academy with whom I spoke, questioned the veracity of Judge Xue’s presentation.

This questionable statistic aside, Judge Xue made an accurate assessment of the differences between the Chinese and western approaches to human rights and offered a legitimate criticism of the western perspective.

Judge Xue distinguished what she sees as the difference between the Chinese and Western approaches to human rights when she said that the Chinese government believes that “human rights is not a heavenly principle, but an actual set of policies.”  In her view, the western treatment of human rights is akin to a frequently misstated quotation falsely attributed to Marie Antoinette during the French Revolution that “If [the peasants] have no bread, let them eat cake.”  Despite the historical misrepresentation, the idea behind the quote is that the west, unable to sympathize with the realities of a developing country, calls for instantaneous improvements in what it sees as an unacceptable human rights situation from an uninformed and unrealistic position.  It simply does not make sense to condition international recognition on full realization of human rights because no country has fully realized all human rights for all of its citizens.  Indeed, such a full realization may not even be possible.

This fundamental misunderstanding between the developing and developed worlds has led to what Judge Xue described as a “politicization” of human rights.  This politicization is evidenced by the fact that, while “no western country has ever been sanctioned” by the United Nations for human rights violations, eleven motions have been tabled against China.  Zero of the eleven tabled motions were passed, suggesting, according to Judge Xue, that the motions were the result of domestic political pressure.

Judge Xue argued that western countries recognize China’s participation in the field of human rights, but they take a western view as to the substance of that participation, seeing China as a challenge to heretofore-dominant western values.  This position in wrongheaded, she continued, because China’s position on cultural relativism is not a challenge to western values, but rather an assertion that what may be perfect for one culture will be imperfect for others.

China is committed to moving forward in the area of human rights by adhering to a balanced approach between human rights and duties to society and emphasizing local conditions.  China asserts its right to develop in the realm of human rights, which encompass economic, social, and cultural rights and involve all aspects of Chinese society.  It insists on doing so in a way that works in the context of Chinese culture and history.  In concluding her lecture, Judge Xue implored her audience to bear in mind the unchallenged fact that the development of human rights standards is highly correlated to the wealth of a nation.  As such, the west can expect an increase in human rights protection in the future.

 

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The Great Wall of China

Chinese Perspectives Part 3: Sovereignty

“In the Five Principles of Peaceful Coexistence, the principle of sovereignty ranks first.  It is the main principle to which the other four principles are related.  It is linked to territorial integrity and supplemented by the principles of non-intervention and non-aggression.  Equality and mutual benefit is the concrete expression of the sovereignty of a State, while peaceful coexistence is premised upon the respect of the sovereignty of states.”

This passage from Wang Tieya’s 1984 course illustrates the primacy of sovereignty in the Chinese model.  It comes as no surprise that China guards its sovereignty so jealously, considering its history of international relations.  China sees its sovereignty as being threatened by Western powers and considers this threat to be an affront to the fundamental principles of international law.  The theme of sovereignty was just as manifest in Judge Xue’s 2011 lecture as it was in Professor Wang’s 1984 version.

As Judge Xue stated in her lecture, sovereignty is a “perpetual theme for China, both theoretically and practically.”  China adheres strictly to this principle and its contents, which require “supremacy internally and independence externally.”  In China’s view, sovereignty is and should remain the basis of the world order.

The Great Wall of China

The Great Wall of China

According to Judge Xue, the concept of sovereign equality rejects the existence of supranational bodies.  Thus, the European focus on regional organizations and supranational governance is evidence of a paradigmatic shift away from sovereign equality in favor of world government.  But the attack of sovereignty does not stop at the border of the European Union.  The west’s treatment of developing nations further suggests to Judge Xue that sovereignty is under attack worldwide and requires protection.

Judge Xue stated a belief that the west’s attempts to retain dominance in the formation of international norms and control of international structures are a threat to the sovereignty of developing nations.  This phenomenon, according to Judge Xue, explains the focus on human rights and global governance, the frequent use of intervention to achieve these goals, and a weakening of sovereign equality on the whole.  From the Chinese perspective, intervention of this sort has its historical roots in overt imperialist goals and continues to this day under a different name.  Humanitarian intervention of a failed state has become the norm, regardless of whether the failure is the result of internal armed conflict, economic issues, or human rights violations, as they are properly understood.

From Judge Xue’s criticism of intervention – that it is employed to counter internal armed conflict, economic crises, and human rights violations alike – one can infer that the Chinese issue with the status quo does not lie in the existence of intervention but the indiscriminate use of such intervention.  While human rights violations, “properly understood,” may require third party intervention, countries should be left to handle internal armed conflicts and economic crises as they see fit.  What constitutes a “proper” understanding of human rights violations is a highly contentious question – one that will be left for Part 5 of this series.

None of this is to say that China sees its role in the international community as that of an autonomous outsider.  As Judge Xue rightly noted, no state can act alone, and all states, including China, are bound by treaties that that must be followed in good faith.  Moreover, China interprets the term “treaty” broadly to include memoranda of understanding, joint communiqués, and other instruments lacking the formality of a typical treaty.  China sees an important role for international law in the area of serious international crimes and has made significant contributions in that area.

However, China strongly prefers to deal bilaterally as opposed to multilaterally and insists on negotiating with a state with which it is in conflict before the international community steps it.  It sees international organizations as trying to reshape the international law creation process, silencing the voices of developed countries.

Judge Xue framed the central issue correctly when she said, “The question is, how should states with different systems and values interact with one another on the international stage?”  For her, and for China, the answer to that question lies in sovereignty, which consists of substantive equality free from superpowers, respect for internal political decisions, and mutual agreement on freedom, equality, respect for the environment, and respect for human rights.

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Judge Xue Hanqin

Chinese Perspectives Part 1: Introduction

Judge Xue Hanqin

Judge Xue Hanqin

In 1984, the People’s Republic of China’s preeminent scholar of international law, Wang Tieya, taught a Special Course at the Hague Academy of International Law called “International Law in China: Historical and Contemporary Perspectives.” As and a key advisor to the PRC on such matters, Professor Wang discussed international law in ancient China, political developments related to the Chinese conception of international law, and the guiding principles of international law in modern China. According to Professor Wang, the three animating factors of the Chinese international legal perspective were the “five principles of peaceful coexistence1,” the concept of sovereignty, and the rule of pacta sunt servanda2. By surveying China’s past and present, Professor Wang’s course offered an early look at how China would interact with the world in the future.

In 2011, Her Excellency Judge Xue Hanqin picked up where Professor Wang left off 27 years earlier in her Special Course at The Hague Academy of International Law entitled, “Contemporary Chinese Perspectives on International Law.” Judge Xue became a member of the International Court of Justice on June 29, 2010. She received her legal education at Peking University (diploma in international law) and Columbia University (LL.M and J.S.D.) and served as China’s Ambassador to the Netherlands as well as China’s first ambassador to Association of Southeast Asian Nations (ASEAN) before being selected as a member of the ICJ.

Throughout the week of her Special Course, Judge Xue did more than merely deliver a comprehensive presentation. She was willing to stay in the corridors of the Academy, sometimes an hour after her lectures, to answer students’ questions and respond to their concerns. Judge Xue honored us with her presence and shone a great deal of light on the Chinese perspective. While Judge Xue did not speak for the Chinese government, her service as an ambassador and a representative to the International Court of Justice suggests that her views closely track the official views of the PRC. Over the next few weeks, I hope to share my understanding and impressions of the contemporary Chinese perspective on international law as expressed by Judge Xue.

This six-part series will proceed as follows: Part 2 will give a brief overview of Chinese history as it relates to international law; Part 3 will focus on the Chinese notion of sovereignty and how China’s history has colored that notion; Part 3 will focus on sustainable development, the environment, and climate change; Part 4 will discuss China’s conception of human rights, focusing on constitutional, legislative, administrative, and jurisprudential developments, and; Part 5 will conclude by offering some commentary on and criticism of the Chinese model and Chinese state practice.

China has become a central player on the international stage, and its importance will only deepen and broaden in the future. As such, it is essential for those interested in international law and foreign affairs to gain appreciation for the Chinese worldview. Hopefully, this six-part series will paint an accurate and informative portrait of contemporary Chinese perspectives on international law.

  1. Announced in the Preamble of the Agreement between the PRC and the Republic of India on the Trade and Intercourse Between the Tibet Region of China and India of April 29, 1954, the Five Principles of Peaceful Coexistence are: 1) mutual respect for each other’s territorial integrity and sovereignty; 2) mutual non-aggression; 3) mutual non-interference with each other’s internal affairs; 4) equality and mutual benefit, and; 5) peaceful coexistence.
  2. This phrase, literally translated as “agreements must be kept,” reflects the notion that all treaties must be signed, ratified, and kept in good faith.

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