International Law and China
Michelle Ratton Sanchez Badin is a full-time associate professor at the Getulio Vargas Foundation's School of Law in São Paulo (FGV Direito SP) and at its Graduate Program in Law and Development. She is co-coordinator of the institution's Law and Global Development Center and the WTO Chair in Brazil (along with EEESP/FGV and EAESP/FGV). Collaborator of the Jean Monnet Chair in Brazil (FGV Direito Rio). Holds a doctorate (2004) and a bachelor's degree (1998) from the Faculty of Law of the University of São Paulo (USP). Member of the SELA network (Yale Law School Latin American Legal Studies) and current director of the Red Latinoamericana de Derecho Económico Internacional and the International Law Association/Brazil. Founder of the Society of International Economic Law (SIEL). Her research takes on a profile of the critical theory of International Law, in particular, of international economic relations, supported by empirical research. Lattes CV: http://lattes.cnpq.br/6583842525073837.
Pedro Steenhagen. Since the establishment of the People's Republic of China, the country has been increasingly participating in the international society and, therefore, increasing its engagement with legal and political issues in this area. How do you assess China's commitment to international law over the years, particularly at the time of its founding in 1949 and after its formal membership in the United Nations (UN) in 1971 and the World Trade Organization (WTO) in 2001?
Prof. Michelle Ratton Sanchez Badin. International Law has historically been structured as a law between nations and, therefore, subject to the constructions and interpretations of each country in its external relations. In this sense, China, since 1949, has announced the bases of its international relations, under the principles of mutual benefits, non-aggression, non-interference and respect for territorial integrity. Basically, these were enshrined as principles of non-aligned countries at the Bandung Conference in 1955.
Indeed, these principles still guide China's foreign policy and that of many developing countries, including Brazil. The idea that China has increasingly participated in international society involves not only its adherence to existing commitments, as was the case of its engagement with multilateral organizations from the 1970s onwards, including the UN and, thirty years later, the WTO, but also its contributions to new paradigms, whether through reforms or contestation, which has been happening since the 1940s.
Therefore, I have always seen China as a protagonist in international law, either as a promoter of new principles and rules or as a reinforcer of the dominant order. What has changed is China's increasing intensity in expanding its international relations. This is associated both with its political and military projection as with its economic projection, which, it is worth mentioning, has occurred within the ambivalence between movements of contestation and adaptation. Certainly, the nuisance has been with the contestation points, although that does not mean that China is not participating in the international society. I understand that contestation is part of the life of international law.
Pedro Steenhagen. Since the 2000s, and especially the 2010s, China began to play a relevant role in issues related to the environment and climate change. The country was fundamental, for example, in the negotiations which resulted in the Paris Agreement in 2016, and, going further, began to strongly advocate for multilateralism and the reinvigoration of international trade, at a time when Donald Trump's United States was isolated. What were China's main contributions to international law and global governance during this period?
Prof. Michelle Ratton Sanchez Badin. China's leading role in multilateral negotiations has certainly been a highlight of the 21st century, although this is not its only sphere of action and, oftentimes, not even its priority sphere. There are three important dimensions in which China's increased presence has impacted the international system under multilateral governance: (1) relying on its greater commitment to international responsibilities (e.g. accession to the WTO and the Paris Agreement); (2) incorporating China's participation in governance and administration structures (e.g. increasing quota participation in the IFIs and appointing senior positions in the ITU, FAO and WTO); and (3) engender global agendas (e.g. shared leadership in creating the negotiating group on investment facilitation at the WTO).
Having said that, China is very active at multiple levels of global governance, from its bilateral, regional and group action to its coordination of the international level with the national one. Here, the list of contributions to international law is much longer, I suspect. This is because China has a different understanding of law and international law, and these differences gain prominence and attention from its leading role in global governance. Understanding these relationships between different regulatory levels is perhaps the most important exercise, so that these spaces are more coordinated than uncoordinated and, above all, that the weakest or powerless agents in this global space are not the most harmed.
For instance, in the area of environment and climate change, international coordination is important, but each country's internal or domestic actions are fundamental for one to understand global governance. It is not possible to indicate that, due to the commitments made in the Paris Agreement, China has made a contribution to international law, but to global governance, perhaps, insofar as the country assumed more ambitious commitments internationally. Still, I believe China can contribute more: it is important that the country's commitments do not generate negative externalities for other States – for example, the export of its thermoelectric plants and coal to other nations which do not have high carbon reduction targets. Thus, if China takes its contributions to global governance seriously, it may even engender new rules and international commitments, or even national policies that effectively benefit everyone and are not restricted to its particular achievement of goals. A clear example is the financing by Chinese banks of shares in other countries with serious environmental impacts, which can be constrained by national and international rules, or, even better, by coordination between them.
Pedro Steenhagen. Historically, International Law can be considered, both theoretically or academically and practically or institutionally, highly Western and Eurocentric, which is even reflected in its language. Despite the obstacles, in recent decades, new spaces for debate have opened up, and new schools of thought have emerged. With the rise of China and a search for greater democratization of the international system by emerging countries, in your opinion, international law tends to incorporate more elements from the global South, especially from Asia as a whole and from China in particular, throughout the 21st century?
Prof. Michelle Ratton Sanchez Badin. This question is wonderful and launches a research agenda for the future. I see two paths in this debate that complement each other on some points. On the one hand, there is a theoretical movement to understand the boundaries of each cultural approach to the rules of International Law and its institutions. On the other, there is an empirical concern to understand a set of rules that are already used and mobilized, but that are not part of the most widespread doctrine and, therefore, can promote a cultural shock, as if they were disruptive of the current order. In contrast, several of them have been operating for a long time.
What China brings as innovation is not only its rules and other approaches to international law, but also its protagonism. The fact that it assumes relevance as an agent of the international system requires more attention to its innovations for the current system. Part of the literature, then, has been dedicated to understanding what types of rules China tends to bring to the system and to what extent these innovations will change the current system or international order. This is a literature which comes from the social sciences and which helps us to reflect on what the social space of Law is, or even what Law is – foundational questions of International Law Theory.
There is another line of research which seeks to understand what exactly China challenges or changes from the current rules and how it does that. In the economic area, currently, understanding what are the particularities of state-owned companies, for example, requires a review of the private sector, subsidies, public purchases and a series of other issues that were treated separately and that are now part of the same problem. Do we need new rules or do we just need to ensure the implementation of those that are in place? This is a dogmatic question of International Law.
In order to answer your question, I believe that, yes, China is bringing innovations to the international system, and that is why we need different lenses to understand this better. However, if this is going to represent an agenda for the global South, I think we will need to launch another series of interviews.
Interview conducted by: Pedro Steenhagen Translation from Portuguese to English made by: Filipe Porto Date of publication: September 24th, 2021