(By Chinese Embassy in Netherlands)
2006/12/04?
Aula of Campus, The Hague, November 1, 2006
XUE Hanqin
Excellencies,
Ladies and gentlemen:
It is a great honor for me to be invited to give the Fall
Lecture by the International Criminal Law Network (ICLN) at the
Grotius Centre. At the outset, I wish to express my sincere
appreciation to ICLN for providing me with this valuable
opportunity to exchange views on issues of international law with
such a distinguished group of legal experts, and for their general
interest in China.
Being the Chinese Ambassador to the Netherlands, I cannot fail
but to notice that there has been so much discussion about China
these days in Europe. "Where does China see itself in ten years'
time" is one of the most frequently asked questions I have received
from people in this country. Even when I believe that for large
part, China's development has been considerably overestimated in
Europe, and oftentimes unfairly treated, nevertheless, given its
size and potential impact, I do understand the concern about the
role China is going to play in the world affairs, politically,
economically and legally. Therefore, I hope that today's lecture
will serve in a way to promote our mutual understanding.
How does China perceive the current development of international
law? This is a very broad question. In order to manage the topic, I
shall narrow it down to address a few aspects.
I. The Notion of Sovereignty and the Westphalian System
I am fully aware that in the contemporary discourse of
international law, advocacy of respect for sovereignty may not be a
very popular theme to begin with, but as I have also observed that
oftentimes China's adherence to the principle of sovereignty is
simply misinterpreted in the west as a disregard of the development
of international law, or worse still, considered as an excuse to
evade its international responsibility, I think it is pertinent to
explain why China still attaches great importance to the principle.
More importantly, our differences over the notion to certain extent
reflect our perceptions on the changing nature of the international
legal system.
The basic structure of the Westphalian system was a horizontal
system of sovereign states, where balance of power was maintained,
the nature of domestic politics, economics, and society was in
large part not a concern of diplomacy and the law of nations.
Sovereign equality and non-intervention in the domestic affairs of
other states was, thus, a structural and substantive component of
the Westphalian system.[1] The modern international legal system
basically succeeded such a structural arrangement of power balance
and substantive tolerance of domestic autonomy, but on a global
basis. Even after WWII, when international cooperation in the
economic, social and technological fields was greatly expanded and
international protection of human rights enhanced, the legal order
remained essentially the same.
The rapid change of international relations in the post cold-war
era has given rise to serious debates on the changing nature of
international legal order among politicians, international lawyers
and social scientists in general. With the end of cold war, instead
of a long term peace as people generally envisaged, came a much
more complex world. Increasing unilateralism in international
relations and proliferation of international actors and special
legal regimes seem directly challenging the traditional structure
of international legal order. At the core of the issue is the role
of the state. As part of the responses, the role of the collective
security system is being seriously reviewed and the substantive UN
reforms are urgently called for. What has been changed and what is
changing of the existing international legal order is certainly not
a theoretical issue, but a profound social inquiry of the changing
world today. It may not be an over-exaggeration to say that never
before has the existing international legal order faced with so
many complicated issues and with so diverse dimensions; the system
itself indeed needs to be reviewed. Such questions, as "has the
Westphalian system already been dead? "Have we entered the
post-Westphalian era?" are naturally raised as the starting point
for this social debate.
Last year when the European Society of International Law
discussed this issue on the relevance of the Westphalian system
during its annual session in Geneva, I said at the panel that for
Europeans, the system by now is over 360 years old, but for
non-European countries, particularly the Asian and African
countries, it is applicable to them for only 60 years. In the past
60 years, Europe has undergone a profound process of integration,
through which it has achieved economic prosperity and more than
half a century of peace. As more and more competences are being
transferred from national jurisdiction to the regional domain, the
concept of sovereignty is undeniably changing, but not diminishing.
This is so evidently manifested in the referenda on the EU
Constitution last year. Nevertheless, European integration process
has contributed greatly to the current debate.
From the viewpoint of the developing countries, however,
international law is based on a foreign legacy. After their
independence from colonial rule, mostly after WWII, these new
states accepted international law as the normative framework to
conduct their international relations. They did so not only because
as a condition for recognition they had to, but also because they
did consider fundamental principles of the legal system as
enshrined in the UN Charter reflected certain values they had been
fighting for: sovereignty, equality, democracy, and
self-determination. International law entitled them to maintain
political independence and territorial integrity, and empowered
them to establish the political system of their own choice, which
are of fundamental importance to these new nations.
Today when sovereignty issue may be a matter of little concern
in the west, it still relates to almost everything under the agenda
of the developing countries, from foreign policy to internal
development plan. It should be noted that either during or after
the cold war, controversy over the principles of sovereignty and
non-intervention often occur between countries of different
ideology, political system, religious belief or cultural
background, particularly in the areas where western liberalism and
values dominate. More often than not, international law provides
the last resort for the developing countries to defend their
political system, economic policy or social stability. Of course,
this does not mean that international law is perfect. On the
contrary, the legal system in practice often fails to live up to
the expectations of states. As is analyzed, "sovereignty is a
concept to describe a pre-existing reality, a scheme of
interpretation, used to organize and structure our understanding of
political life"[2]. International legal system was not and cannot
be designed; it is only the result of international reality. If we
understand that such political life is built upon the diversity of
autonomous political communities, the concept of sovereignty is not
only meaningful but also essential. If, however, we come to
understand that such political life should exist only in one single
social model, the notion then becomes pointless and irrelevant.
As a developing country, China attaches great importance to the
role of international law and believes that international law will
contribute to peace, stability and development. In its
international relations, China strongly upholds the principle of
sovereignty, because it believes in diversity and mutual respect in
international political life. This position rests both upon its
historical past as well as its vision of the future world order. It
is well known that ever since the founding of the People's Republic
of China, China has adopted a foreign policy of independence and
peace. Based upon the Five Principles of Peaceful-Co-existence as
proclaimed by China together with some other Asian countries in the
1950s, this position has never been changed in China's foreign
relations. The Five Principles of Peaceful Co-existence, which by
and large reiterate the fundamental principles of international law
as provided in the Purposes and Principles of the UN Charter,
always serve as the political and legal basis for China to
establish diplomatic relations with other countries and to conduct
its foreign affairs. Of the five principles, the essence is the
principle of sovereignty.
Today international law has definitely undergone profound
changes, but given what have happened in Asia and in Africa in the
past 15 years, we have to admit that the role of the state remains
at the centre for any success of economic development and social
progress. I think that the current change is mainly twofold,
namely, multiplicity of international actors and fragmentation of
international law. In this regard, the post-Westphalian theory
holds that as economic and social sectors through economic
globalization and proliferation of NGOs across national borders
keep bypassing their governments and increasingly challenge the
authority of decision-making by states, the traditional form of
diplomacy with states at the center is being gradually replaced by
"overlapping and competing competencies, ?Legal pluralism is said
to be the logical corollary of this situation." [3] Consequently,
the notion of sovereignty is getting less relevant, if not
obsolete.
On the multiplicity of actors, we agree that the business sector
with transnational corporations in particular and the civil society
with NGOs as the main forces have directly entered the world stage.
Their participation in the treaty negotiations and implementation
are now well accepted, generally respected and sometimes even
called for by states. I remember when I first in the Chinese
delegation presented our national implementation report to the U.N.
experts committee on the prevention of discrimination against women
in the early 1980s, the NGOs only stayed behind in the so-called
"shadow", but now the experts committee listens to their views in
session meetings. I also recall that I brought our peasants as the
grass-roots representatives to the U.N. conferences on the
Convention on Combating Draughts and Dissertification and they were
warmly received by the delegates. We all know that NGOs are one of
the driving forces in the negotiations on the Climate Change
Convention and the Rome Statute. These new players have indeed
greatly influenced the decision-making process, both domestically
and internationally. However, to what extent such influence has
changed the basis of decision-making is questionable. What we have
seen is that national interests remain a determinate factor for
international cooperation. This is even true for the most
integrated region, for example, the EU, where the communal
interests of the Union are greatly substantiated, but, if I
understand it correctly, national interests in the final analysis
are still decisive in the policy-making of the Union. Globalized
economic relations and the cross-border civil actions have
intensified enormously contacts and interactions between states,
but not fundamentally changed the state centric pattern of
international politics. The legal system reflects this fact. With
regard to the emerging legal pluralism, it is related to a topic
currently very popular among scholars-the fragmentation of
international law.
II. The Fragmentation of International Law
During the current term of the UN International Law Commission,
a study group was established by the Commission with Mr. Martti
Koskenniemi, the Finnish member, as its chairman. It conducted
in-depth studies from several aspects to examine the issue of
fragmentation, such as conflicts between special law and general
law, conflicts between successive norms, hierarchy in international
law and systemic integration of treaty interpretation. The outcome
of the study is as thick as a big book, well elaborating on the
subject. As a collective piece of work, I would place emphasis on
the conclusions of the work of the study group.[4]
In review of the presumably conflicting rules under specialized
regimes, the study group felt that international law requires a
systemic examination. Today as a result of the rise of specialized
legal regimes on trade, environment, human rights and so on,
answers to legal questions very much depends on whom you ask and
what legal regime you focus on. Meanwhile, there is a proliferation
of international legal institutions, which give rise to concerns of
forum-shopping and conflict of international jurisprudence. The
study recognizes that given the nature of international law,
normative conflicts are inherently unavoidable, and new rules and
legal regimes emerge as responses to new preferences, and sometimes
out of conscious effort to deviate from preferences as they existed
under old regimes. In its conclusion, the study holds the view that
the emergence of special treaty-regimes has not seriously
undermined legal security, predictability or the equality of legal
subjects, but the deepening complexity of the social changes both
at national and international levels did undermine the homogeneity
of the nation-State. The real concern over fragmentation is the
continued viability of traditional international law. In addressing
the question of the coherence of international law, the study
focuses on the techniques of legal reasoning as proposed solutions
to potential normative conflicts.
Personally I think that the study is a very useful and timely
effort and share the conclusions reached by the study group. Here I
would like to add a few remarks on the question of
fragmentation.
First of all, we recognize that the proliferation of special
treaty regimes concluded by states as responses to the growing
demand for international cooperation and coordination in the areas
such as trade, environment, human rights, public health, etc, is a
positive development of international law. With more and more
issues being addressed at global level, States are more than ever
interdependent and as a result, the traditional domain for strictly
domestic autonomy is narrowed down; national governments in
attending their domestic affairs have to constantly take their
international aspects into account. Take China for example, since
the launch of its economic reforms in late 1970s, China has become
party to over 300 multilateral treaties, covering most of the
special regimes in various areas. In regard to international
operations, since 1990, in Africa alone, China has taken part in 12
UN peace-keeping operations, sending out over 4000 people. At the
moment, there are still around 1300 people involved in 6 operations
there. In its opening process, while defending its national
sovereignty to choose its own course of development, China has
aligned substantially its national laws and regulations with
international standards, either under treaty obligations, or by
general practice of sates. Through our experiences, however, we
feel that the emerging legal pluralism does not mean that such
special regimes are completely separate legal systems with no link
between each other. On the contrary, they are still operating
within the framework of the legal system; where fundamental
principles of international law, customary international law and
general principles of law continue to apply. However proliferating
special regimes are, they still bear the feature of the law of
nations, which relies largely on governments' initiative and
implementation. Even though the idea of global governance is very
popular nowadays, its legal connotation is rather vague. The
advocacy of legal pluralism, in my opinion, does not seem to menace
the viability of traditional international law as such, but its
fundamental principles as its basis.
On the substantive side, we may say that the current legal
pluralism to varying degrees is the result of western liberal
influence on international law, as, by and large, it is driven by
the growing force of non-state actors, and reinforced in the wake
of the cold war. For instance, human rights law is an outgrowth of
Western liberal constitutionalism, [5]such liberal substance, is
also contained, if not dominant, in any other special regime as
well. According to the Yearbook of International Organizations, out
of more than 16,000 NGOs, over 80% of them come from European and
the North American regions. Therefore, some scholar commented that
instead of being called the international civil society, it may be
better called the transatlantic civil society. On the other hand,
we also notice that today international law-making process has
changed a great deal, very different from the traditional pattern
of treaty making. Their fragmented approach has become even more
difficult for the developing countries to make an impact on the
process. Taking climate change for instance, unlike the past
practice, where negotiation process would come to an end with the
signing of the Convention, negotiations on climate change are an
ongoing process throughout the entire implementation stage. Thanks
to the financial assistance from many developed countries,
developing countries, with the least developed countries in
particular, are often sponsored to take part in the process.
However, as we observe, even if being present, many developing
countries are lack of necessary technical capacity and human
resources to back up their negotiations. While we may well
appreciate that international law has become more specialized and
focused, we tend to ignore one simple fact, that is, specialists
are not just available for each and every country. For any society
that can afford such specialized human resources, it requires a
sophisticated level of social science studies and advanced
scientific and technological capability. We may say that this has
always been the case with international law-making, but the
situation may be getting even worse with the fragmentation of
international law. Even though differentiated responsibilities are
provided for in some cases to take care of the concerns of the
developing countries, and legal substances of special regimes are
generally shared by all states, due respect for the special needs
and social conditions of developing countries is not sufficient.
Therefore, I would say instead of fragmented law, perhaps we should
worry more about the fragmented interests.
III. The Responsibility to Protect
Any discussion on the notion of sovereignty would be incomplete
if without mentioning the new concept "the responsibility to
protect".[6] Instead of sovereign rights, today we hear more about
sovereign responsibility, a term that I have carefully chosen to
distinguish it from the traditional concept of state
responsibility. It is logical to say that if a state enjoys
sovereign rights, as a corollary, it should also bear
responsibility. Traditionally this understanding was never being
questioned or challenged, but now we have to inquire more. What
responsibilities states owe? To whom such responsibilities are
owed? In its report on Threats, Challenges and Change submitted to
the U.N. Secretary-General, the High-level Panel pointed out, "In
signing the Charter of the United Nations, States not only benefit
from the privileges of sovereignty but also accept their
responsibilities. Whatever perceptions may have prevailed when the
Westphalian system first gave rise to the notion of state
sovereignty, today it clearly carries with it the obligations of a
State to protect the welfare of its own peoples and meet its
obligations to the wilder international community."[7] As a
political statement, the assertion is very clear in its policy
objective. In legal terms, however, it could lead to different
interpretations.
By the notion of sovereignty, a state, internally, is
accountable for the economic and social development of the country
as well as the welfare of its citizens, and at the same time,
externally it must fulfill its international obligations to which
it has committed itself under international law. This understanding
has never given rise to any doubt. The challenge we face now is
that if a state could not fulfill such responsibilities, or if the
state concerned turned into a so-called "failed or failing state
'," what would be the responsive actions on the part of the
international community, or on the part of other states,
individually or collectively? Recent research studies and policy
papers conducted by European institutions have quite a focus on the
issue.
In a normal situation, if a state breaches its international
obligation, state responsibility rules would apply. Although some
of the articles on state responsibility as adopted by the ILC are
considered as progressive development of international law and may
still need the test of state practice, they present little problem
as secondary rules. More complicated is the situation where there
is no breach of specific international obligations on the part of
the state, but the internal situation of the country is seriously
deteriorating or facing great difficulties, either in terms of its
political stability, or economic and social development; or where
the country is in total chaos, with its government paralyzed or out
of control, the so-called "failing " or "failed" state. Under this
kind of circumstances, should international action be taken, who
should take such action, what legal procedure for the approval of
such action is necessary and on what legal ground such action
should be placed? This is a hot issue at the UN, an issue whether
the United Nations, especially the Security Council, has the legal
responsibility to protect. In the ILC, we also came across the
topic while considering the responsibility of international
organizations. I notice some studies suggest that in case of failed
or failing state, human rights conventions could serve as the legal
basis for constructing grounds for international action, for
instance, Article 2 of the International Covenant on Economic,
Social and Cultural Rights, because under these conventions, states
have an obligation to endeavor to prevent human rights
violations.[8] This is a very general ground.
However, we must be careful with the proposition in legal terms.
This is because, first, should the responsibility to protect derive
from the notion of sovereignty, it would be tantamount to say that
any state or states could individually or collectively take
measures to prevent or redress human rights violations wherever it
occurs. In other words, any state could step in and take action
against another state when, the situation, in its opinion,
constitutes a violation of human rights in the territory of the
latter state. Obviously this would be even more intrusive than the
traditional theory of humanitarian intervention. Secondly, should
international action mean those actions that are authorized either
by the UN organs under the Charter or by the relevant regional
organization, such notion of responsibility to protect then does
not add much to the existing law. Thirdly, even if certain
categories of situations are defined as deserving international
protection, procedural guarantee should always be first provided
for to ensure proper actions. Any unduly broad and unlimited claim
for responsibility to protect may only result in undesired
intervention.
Responsibility to protect is a novel concept. It calls on state
governments, especially the leadership to be more conscious of its
accountability for the welfare of its people and also implies more
proactive international interventions be taken in troubled areas.
In principle, the concept bears a number of positive aspects. In
practice, nevertheless, a cautious approach is still necessary.
Generally speaking, international actions should be subject to
the decisions undertaken through multilateral mechanisms. Of
course, this does not mean that international organizations,
particularly the Security Council, have the legal duty to exercise
protection in each and every case. As is rightly observed,
multilateral institutions normally operate alongside national,
regional and sometimes civil society actors, and are most effective
when there efforts are aligned to common goals. Therefore, the
decision should be made collectively through multilateral
mechanism, and whenever possible, in consultation with the state
and other parties directly concerned in the event. The question
that whether a particular state is failing or failed should not be
left to the individual judgment of a state or state group to
decide, even if it bears the responsibility to protect under human
rights treaties. Only within such legal embrace, can the
responsibility to protect be a tenable claim under the notion of
sovereignty.
IV. International Criminal Jurisdiction
Lastly, I would like to say a few words about international
criminal law, an area that this institution focuses on.
The current development of international criminal law is the
continuous efforts of international community for many decades in
pursuing law and justice against most serious international crimes.
Such efforts gained great momentum after WWII with the two
international military tribunals recognizing individual criminal
responsibility for most serious crimes in international law, but
they suffered serious setback due to the cold war. Consequently,
for a long time international criminal law is mainly developed to
coordinate different national jurisdictions against crimes that a
single state cannot cope with under its jurisdiction, with a view
to preclude "safe heaven" for criminal fugitives. In the past
twenty years or so, China has concluded about 70 bilateral and
multilateral treaties on mutual legal assistance in criminal
matters and on extradition with other countries. In fight against
terrorism, out of 13 relevant conventions, China has joined 11 of
them. The latest entry is the Convention against Financing of
Terrorism. Through our experience, we feel that in fighting against
international crimes, international efforts in this field should be
further enhanced.
We all know that criminal jurisdiction is one of the most
important and sensitive areas of national sovereignty. Differences
in penal philosophy and concerns about sovereignty often constitute
the main obstacles for international cooperation in criminal
matters. Such classified jurisdictional bases as territorial,
national, protective, sui generis, and universal, represent
different aspects of state sovereignty, whereas requests for
judicial assistance, extradition, transfer of sentenced persons
equally involve the sovereign rights of other states. The creation
of the two ad hoc criminal tribunals by the Security Council for
former Yugoslavia and Rwanda respectively and the establishment of
the International Criminal Court have opened a new chapter in
international law development. This development, however, also
poses fundamental challenges to the existing legal order. By
exposing their domestic criminal justice systems to the external
review and possible intervention by the ICC[9], states no longer
enjoy absolute sovereignty in deciding how to pursue criminal
justice against certain most serious crimes. With Article 12 (2) of
the Rome Statute, ICC may exercise jurisdiction over nationals of
non-state parties under some circumstances. Although certain state
has over-reacted to the article, disregard of state's consent is
most likely to cause conflicts between states and the court, and
thus impede judicial proceedings. This potential concern is not
negligible. In fighting against impunity, we believe jurisdictional
sovereignty of states should be strengthened rather than
compromised.
Today human rights protection has become one of the pillars of
the United Nations, alongside security and development. It is the
common task of the international community as a whole to put a stop
to atrocities and other forms of grave and massive violation of
human rights. On many an occasion, China makes it very clear that
it supports the efforts to build a just, impartial and effective
international criminal court. It hopes that such a legal
institution will meet its objectives in promoting peace, justice
and the rule of law in international relations. It is in this
spirit that China appreciates the dialogue that has been carried
out between its jurists and these institutions in the field of
international criminal law.
At the moment, one of the most controversial issues with
international criminal law is the question of universal
jurisdiction. Under traditional international law, states establish
universal jurisdiction over certain international crimes by treaty
terms except for one case, piracy. In other words, regardless of
general jurisdictional grounds on territory, nationality,
protection and so on, states establish national criminal
jurisdiction over certain offences simply by the physical presence
of the alleged suspect. In exercising such criminal jurisdiction,
not only judicial assistance is assured between the state parties
under the relevant treaty, rules of sovereign immunity are also
respected under general international law. The early conventions on
human rights are vague on the point, but state practice and
international court decisions support this position. In the
"Pinochet case", although the British House of Lords declined to
embrace one Lord's opinion grounding extradition on international
custom regarding universal jurisdiction, its ruling did affect the
doctrine of act of state as practiced in the past. By pronouncing
what constitutes or does not constitute an act of state of another
state, or by national legislation to establish absolute universal
jurisdiction, national courts would likely exercise jurisdiction
over cases that may lead to international disputes by unduly
encroaching upon the domestic affairs of other states. So far state
practice shows over-extended national jurisdiction, either civil or
criminal, is not conducive to promoting international efforts in
suppressing international crimes, nor to maintaining international
peace and stability.
The universal jurisdiction established by ICC is different from
that by national courts. Based on positive law, its terms are clear
and specific. Even so, we should still emphasize the importance of
the complimentarity principle, under which ICC would not exercise
jurisdiction unless the state concerned is unable or unwilling to
prosecute. On this point, we do see eye to eye with the state
parties that such a principle would definitely enhance the role of
states in effectively combating international crimes. Indeed,
without such a provision, it is hard to imagine how many states
would be ready to ratify the Rome Statute.
As ICC has already started its substantial work, we may wish to
point out that the ultimate success of the court does not lie in
the number of cases it tries, but in the effectiveness and fairness
it demonstrates. To pronounce a state unable or unwilling to
prosecute worse crimes may not be a simple statement of facts, but
a judgment on its political and legal systems. We appreciate the
cautious approach so far the court and its prosecutor are taking
and sincerely hope that its role in promoting peace and justice
will eventually win the confidence of all states.
In conclusion, I would like to emphasize that China attaches
great importance to the role of international law in international
relations. Despite the differences we have, with shared
responsibilities, we stand together to face the challenges and
opportunities of the new era, and with our common interests,
together we stand to build a better world.
--------------------------------------------------------------------------------
[1] David Fidler, "Revolt Against or From within the West?
TWAIL, The Developing World, and the Future Direction of
International Law
In Chinese Journal of International Law, 2003, vol. 2, No. 1,
pp. 35-36
[2] Wouter. G. Werner, "State Sovereignty and International
Legal Discourse", in Governance and International Legal Theory,
edited by Ige F. Dekker and Wouter G. Werner, Martinus Hijhoff
Publishers, (2004), p. 155
[3] Jorg Friedrichs, "The Neomedieval Renaissance: Global
Governance and International Law in the New Middle Ages", in
Governance and International Legal Theory, edited by Ige F. Dekker
and Wouter G. Werner, Martinus Hijhoff Publishers, (2004), p.3
[4] See UN Document A/CN.4/L.682/Add.1.
[5] Footnote 3, p.31.
[6] The Responsibility to Protect, Report of the International
Commission on Intervention and State Sovereignty, Ottawa, 2001,
Synopsis, pp. XI-XIII; Failing States, A Global Responsibility,
Report of the Advisory Council on International Affairs (AIV
Report), the Netherlands, No. 35, May 2004.
[7] "A More Secure World", Report of the High-level Panel on
Threats, Challenges and Change, U.N. General Assembly Document,
A/59/565.
[8] AIV Report, p. 30
[9] Rod Jensen, "Globalization and the International Criminal
Court: Accountability and A New Conception of State", in Governance
and International Legal Theory, edited by Ige F. Dekker and Wouter
G. Werner, Martinus Hijhoff Publishers, pp. 159-183.