Global Governance, Conflict and China
Editor-in-Chief
Zhang Wei
Editorial Board
Bai Guimei – Ban Wenzhan – Chang Jian – Chen Shiqiu – Duan Qinghong – Han Dayuan – Li Buyun – Li Weiwei – Liu Hainian – Luo Yanhua – Shu Guoying – Sun Xiaoxia – Wei Mei – Xia Yinlan – Zhang Aining – Zhang Xiaoling – Zou Xiaoqiao
Chairman of the International Advisory Board
Gudmundur Alfredsson
Members of International Advisory Board
Florence Benoit-Rohmer – Brian Burdekin – Andrew Clapham – Barry Craig – Felipe Gomez-Isa – Jonas Grimheden – Zdzislaw Kedzia – Wayne Mackay – Peter Malanczuk – Fabrizio Marrela – Ineta Ziemele – Tom Zwart
volume 2
The titles published in this series are listed at brill.com/cphr
By
Matthias Vanhullebusch
leiden | boston
Names: Vanhullebusch, Matthias. Title: Global governance, conflict and China / by Matthias Vanhullebusch. Description: Leiden ; Boston : Brill Nijhoff, 2018. | Series: Chinese perspectives on human rights and good governance ; volume 2 | Includes bibliographical references and index. | Identifiers: LCCN 2017052794 (print) | LCCN 2017055352 (ebook) | ISBN 9789004356498 (e-book) | ISBN 9789004356467 (hardback : alk. paper) Subjects: LCSH: International law--China. | China--Foreign relations--1949- Classification: LCC KZ3410 (ebook) | LCC KZ3410 .V36 2018 (print) | DDC 355/.033551--dc23 LC record available at https://lccn.loc.gov/2017052794
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2352-2593 isbn 978-90-04-35646-7 (hardback) isbn 978-90-04-35649-8 (e-book)
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∵
Acknowledgments xi Table of Materials xiii List of Abbreviations xxiv
Introduction 1
1 China, Global Governance and International Law: Towards a Relational Normativity 8 Introduction 8 i China and the Philosophy of Science: Towards a Relational Thought 11 A Western Epistemology and the Conflictual Paradigm 11 B Chinese Epistemology and the Complementarity Paradigm 16 C Chinese Communism and Relational Thought 21 ii China and International Relations: Towards a Relational Governance 25 A Relational Governance and International Relations 25 B China and the Forms of Its Relational Governance 29 C China and the Quality of Its Relational Governance 40 iii China and International Law: Towards a Relational Normativity 44 A Relational Normativity and International Law 44 B China and the Creation and Development of International Law 49 C China and the Interpretation and Application of International Law 52 Conclusion 54
2 China and Collective Security 57 Introduction 57 i China and the Prohibition of Aggression 62 A China and the War of Resistance against Japan 62 B China and the Korean War 68 C China and the Principle of Mutual Non-aggression 75 ii China and the Right of Self-Defence 89 A Individual Self-Defence 90 B Collective Self-Defence 100 C Pre-emptive Self-Defence 104
iii China and the Expanding Grounds on the Use of Force 107 A From Collective to Human Security 107 B Humanitarian Intervention 111 C Responsibility to Protect 116 Conclusion 124
3 China and Peacekeeping 126 Introduction 126 i China and the Principle of Non-interference 132 A Security Council Authorisation 132 B Consent of the Parties 138 C Regional Action 147 ii China and the Principle of Impartiality 156 iii China and the Use of Force 163 Conclusion 171
4 China and Arms Control 174 Introduction 174 i China and the Principle of Sovereign Equality 187 A National Security 187 B Economic Security 200 ii China and the Principle of Non-proliferation 209 A Prevention 209 B Supervision 217 C Disarmament 227 iii China and the Principle of Humanity 241 A Prohibited Use 241 B Restricted Use 248 Conclusion 253
5 China and the War on Terror 256 Introduction 256 i China and the Principle of Non-interference 267 ii China and the Principle of Non-proliferation 278 iii China and the Principle of Humanity 282 Conclusion 287
6 China and Post-conflict Justice 289 Introduction 289 i China and the Principle of Judicial Sovereignty 300
ii China and the Principle of Primacy 329 iii China and the Principle of Complementarity 336 A Negotiating the Rome Statute 336 B Prosecution of Nationals of Non-icc Members 337 C The Proprio Motu Powers of the icc Prosecutor 349 Conclusion 352
Conclusion 354 i Global Governance, Conflict and … the Holy Trinity 354 ii Through Consultation and Process 356 iii Guided by Principles and Consensus 358
Bibliography 363 Author Index 419 Subject Index 429
Acknowledgments
This book project wouldn’t come to fruition without the continued support of my family and my wife Dorothy Zhang in particular whose wisdom and humanist virtues of compromise, tolerance, patience and mutual respect re- minds me everyday that our lives can be more enriching and harmonious and make me hopeful that our ever-complex, divided and violent world can also embrace the unity in its diversity. I have been very fortunate to work in the dynamic and vibrant research en- vironment of the KoGuan Law School, Shanghai Jiao Tong University (sjtu), together with inspiring, talented and kind colleagues and wish to extend my deepest thank to them, especially Robin Chen, Jinhua Cheng, Yuanyuan Fu, Qi Gao, Dan Guttman, Liyang Hou, Jiaxiang Hu, Weidong Ji, Yan Lin, Kang Liu, Xinli Ma, Wei Shen, Huoji Wang, Nan Wang, Xianlin Wang, Donggen Xu, Gui- fang Xue, Li Yang, Dan Liu, Lulu Yang, Yue Yuan, Winston Zee, Yangbo Zhang, Huiyi Zhao, Yibing Zhao, Ge Zheng, Cici Zhou and Jun Zhu. Furthermore, I would like to gratefully acknowledge the generous financial support of sjtu through its Chinese Foreign Expert Grant (2016–2017) as well as Leo KoGuan of the KoGuan Foundation for the KoGuan Youth Legal Schol- arship (2012 – present) that made this research possible. I am indebted to my other friends and colleagues who have been supportive of this project in numerable ways: Antony Anghie (nus), Mashood Baderin (soas), Jean-Marc Blanchard (ecnu), Muin Boas (SOAS), Maria Adele Carrai (Princeton-Harvard), Anthony Carty (Tsinghua), Kay-Wah Chan (Macquarie), John Chao (ncu Taiwan), Weitseng Chen (nus), Yifeng Chen (pku), Matthew Craven (soas), Ignacio De La Rasilla Del Moral (Brunel), Bruno Demeyere (icrc), Jean-Philippe Dequen (Max Planck), Richard Desgagné (icrc), Mat- thew Erie (Oxford), Hiroshi Fukurai (uc Davis), Robin Geiβ (Glasgow), Tom Ginsburg (Chicago), Lyle Goldstein (us Naval War College), Gregory Gordon (cuhk), Jean-Marie Henckaerts (icrc), Bin Jiang (icrc), Jianqiang Guan (ecupl), Andrew Harding (nus), Zhipeng He (Jilin), Bingbing Jia (Tsinghua), Pyoung Keun Kang (Korea University), Victor Kattan (nus), Shen Kui (pku), Raj Kumar (jgu), Courtney Kung (hku), Masahiro Kurosaki (Japan National Defense Academy), Rick Lawson (Leiden), Hee Eun Lee (Handong), June Lee (cuhk), Seokwoo Lee (Inha), Xinyu Leng (cupl), Qiang Li (cupl), Weihai Li (cupl), Michael Liu (ciicj), Sida Liu (Toronto), Jing Men (College of Europe), Setsuo Miyazawa (uc Hastings), Roda Mushkat (John Hopkins Nanjing), Toshi Nakamura (un), Yumiko Nakanishi (Hitotsubashi), Jan Michiel Otto (Leiden), Yaqing Qin (China Foreign Affairs University), Javaid Rehman (Brunel),
Mohammad Shahabuddin (Birmingham), Hongsheng Sheng (supsl), Makoto Tajimi (Hitotsubashi), Carol Tan (soas), Lipin Tien (Taiwan ndu), Nira Wick- ramasinghe (Leiden), William Worster (The Hague University), Sienho Yee (Wuhan), Simon Young (hku), Wen Zhou (icrc), Lei Zhang (ecupl), Miao Zhang (Nanjing), Jun Zhao (Zhejiang), Zhihua Zeng (ecupl), Lu Zhian (Fu- dan), Lijiang Zhu (cupl) and Wenqi Zhu (Renmin). Special thanks to my students at sjtu for their wonderful research assis- tance: Muhemmed Amin, Kogamova Aziza, Dennis Blatt, Siyi Gu, Mengdi Ji- ang, Xiaoying Jiang, Jin Jie, Tooba Khurshid Nong Li, Xiaowen Liu, Xiao Mao, Jing Miao, Haochen Sun, Alia Tian, Emma Wang, Iris Wang, Pingping Wang, Kris Yu and Yi Zhao as well as to John Clark for his excellent proofreading. I would like to thank Oxford University Press too for reproducing here parts of earlier work published in the Chinese Journal of International Law1 and Chi- nese Journal of International Politics.2 Finally, I am particularly grateful to the Series Editors, Ruoyi Li (cupl) and Wei Zhang (cupl), for their constructive feedback and to my colleagues – editors at Brill/Nijhoff, Marie Sheldon, Lindy Melman, Anna Schmitt Nagelbach, Bea Timmer and Prince Xavier (SPi) for their professionalism and for oversee- ing the production of this volume.
Matthias Vanhullebusch 马天赐 Shanghai Jiao Tong University Shanghai, China Summer 2017
1 Matthias Vanhullebusch, “Regime Change, the Security Council and China,” Chinese Journal of International Law 14 (2015): 665–707. 2 Matthias Vanhullebusch, “Governing Asymmetries on the Battlefield: Towards a Relational Normativity,” Chinese Journal of International Politics 9 (2016): 307–348.
(numbers refer to pages in the book)
Treaties
International 1868 Declaration of St. Petersburg 176 1899 Hague Convention (ii) on the Laws and Customs of War on Land 184 1899 Hague Declaration (iv, 2) Concerning Asphyxiating Gases 184 1899 Hague (iv, 3) Declaration Concerning Expanding Bullets 176 1907 Hague Convention (iv) on War on Land and its Annexed Regulations 184–185 1907 Hague Declaration (xiv) on Explosives from Balloons 185 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare 176, 185, 219 1919 League of Nations Covenant 63, 64, 66 1922 Treaty between the United of States of America, Belgium, the British Empire, China, France, Italy, Japan, the Netherlands, and Portugal 64 1928 Treaty between the United States and other Powers providing for the Renun- ciation of War as an Instrument of National Policy 64, 66 1941 Atlantic Charter 66, 269 1942 Joint Declaration by the United States, the United Kingdom, the Union of Soviet Socialist Republics, China, Australia, Belgium, Canada, Costa Rica, Cuba, Czechoslovakia, Dominican Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Poland, South Africa, Yugoslavia 66 1943 Cairo Declaration 67 1945 London Agreement 301 1945 Potsdam Declaration 67 1945 Statute of the International Court of Justice 14 1945 un Charter 58, 61,67, 68, 112, 132, 159, 169, 170, 178, 272, 288, 314, 329, 338, 340, 345 1954 Final Declaration of the Geneva Conference on the Problem of Restoring Peace in Indo-China 84 1956 Statute of the International Atomic Energy Agency (iaea) 178 1963 Convention on Offences and Certain Other Acts Committed On Board Air- craft 258, 265 1966 International Covenant on Civil and Political Rights 107 1966 International Covenant on Social, Economic and Cultural Rights 107
1968 Treaty on the Non-Proliferation of Nuclear Weapons (npt) 175, 177, 185, 194, 196, 387 1970 Convention for the Suppression of Unlawful Seizure of Aircraft 258, 265 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof 185 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 258, 265 1972 Convention on the Prohibition of the Development, Production and Stockpil- ing of Bacteriological (Biological) and Toxin Weapons and on their Destruc- tion (btwc/Biological Weapons Convention) 176, 185, 205, 218, 219, 279 1973 Convention on the Prevention and Punishment of Crimes Against Interna- tionally Protected Persons 258, 265 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts 177 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts 295 1979 International Convention against the Taking of Hostages 258, 265 1980 Convention on the Physical Protection of Nuclear Material 258, 265, 281 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conven- tional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects 176 1980 Protocol on Non-Detectable Fragments (Protocol i) 176 1980 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol ii) 177 1980 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol iii) 177 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Sup- pression of Unlawful Acts against the Safety of Civil Aviation 258 1988 Convention for the Suppression of Unlawful Acts against the Safety of Mari- time Navigation 258 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Plat- forms Located on the Continental Shelf 258, 265 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection 258 1993 Convention on the Prohibition of the Development, Production, Stockpil- ing and Use of Chemical Weapons and on their Destruction (cwc/Chemical Weapons Convention) 177, 178, 185, 207, 208, 218, 219, 228, 230, 231, 235, 241, 242, 243, 254, 279, 397
1995 Protocol on Blinding Laser Weapons (Protocol iv) 177 1996 Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices 177 1996 Comprehensive Nuclear Test Ban Treaty (ctbt) 185, 214, 217–220 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Trans- fer of Anti-Personnel Mines and on their Destruction 177 1997 International Convention for the Suppression of Terrorist Bombings 258, 265 1998 Rome Statute of the International Criminal Court (icc Statute) 118, 289, 292, 293, 297, 298, 300, 339, 345, 346, 349, 350, 351 1999 International Convention for the Suppression of the Financing of Terrorism 258 2003 Protocol on Explosive Remnants of War (Protocol v) 177, 252–253 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 258 2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safe- ty of Fixed Platforms Located on the Continental Shelf 258 2005 International Convention for the Suppression of Acts of Nuclear Terror- ism 258, 265 2005 Amendments to the Convention on the Physical Protection of Nuclear Material 258 2008 Convention on Cluster Munitions 177 2008 Stabilisation and Association Agreement (saa) between the European Com- munities and their Member States, of the One Part, and Bosnia and Herze- govina, of the Other Part 307 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation 258 2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft 258–259 2014 Protocol to Amend the Convention on Offences and Certain Acts Committed on Board Aircraft 259 2017 Treaty on the Prohibition of Nuclear Weapons 177, 281
Bilateral/Regional 1954 Agreement between the Republic of India and the People’s Republic of China on Trade and Intercourse between Tibet Region of China and India 31, 75 1954 Southeast Asia Collective Defense Treaty 85 1963 Limited or Partial Test Ban Treaty (ltbt/ptbt) 219 1967 Additional Protocol ii to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (nwfz Treaty of Tlatelolco) 185, 210, 218, 220
1971 Organisation of American States Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that Are of International Significance 259 1972 Treaty between the United States of America and the Union of Soviet So- cialist Republics on the Limitation of Anti-Ballistic Missile Systems (abm Treaty) 218, 220 1973 Agreement on Ending the War and Restoring Peace in Vietnam 87 1974 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Underground Nuclear Weapon Tests 218 1976 Treaty between the United States of America and the Union of Soviet Socialist Republics on Underground Nuclear Explosions for Peaceful Purposes 218 1977 European Convention on the Suppression of Terrorism, as amended by its Protocol 259 1986 Additional Protocol ii and iii to the South Pacific Nuclear Free Zone Treaty (nwfz Treaty of Rarotonga) 185, 210, 218, 220 1987 South Asian Association for Regional Cooperation (saarc) Regional Conven- tion on Suppression of Terrorism 259 1987 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles 218 1990 Conventional Armed Forces in Europe Treaty (cfe Treaty) 217–219 1991 Treaty between the United States of America and the Union of Soviet Social- ist Republics on the Reduction and Limitation of Strategic Offensive Arms (start i) 217 1992 start i Treaty – Protocol to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms 217 1992 Treaty on Open Skies 218 1995 Southeast Asian Nuclear Weapon Free Zone Treaty (nwfz Treaty of Bangkok) 220 1996 Treaty on Deepening Military Trust in Border Regions 36 1996 Protocol i and ii to the African Nuclear-Weapon-Free-Zone Treaty (nwfz Treaty of Pelindaba) 185, 210, 220 1998 Arab Convention on the Suppression of Terrorism 259 1999 Treaty on Cooperation among the States Members of the Commonwealth of Independent States in Combating Terrorism 259–260 1999 Convention of the Organisation of the Islamic Conference on Combating International Terrorism 260 1999 Organisation of African Unity Convention on the Prevention and Combating of Terrorism 260 2001 Declaration of the Shanghai Cooperation Organisation 36 2001 Shanghai Convention against Terrorism, Separatism and Extremism 260
2001 Treaty of Good-Neighborliness and Friendly Cooperation between the Peo- ple’s Republic of China and the Russian Federation 196 2002 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone 315 2002 Charter of Shanghai Cooperation Organisation 36 2002 Joint Declaration of asean and China on Cooperation in the Field of Non- traditional Security Issues 110, 277 2002 Inter-American Convention against Terrorism 260 2004 Additional Protocol to the saarc Regional Convention on Suppression of Terrorism 260 2004 Convention of the Cooperation Council for the Arab States of the Gulf on Combating Terrorism 260 2004 Protocol to the Organisation of the African Union Convention on the Preven- tion and Combating of Terrorism 260 2004 Additional Protocol on Combating Terrorism to the Agreement among the Governments of the Black Sea Economic Cooperation Organisation Participating States on Cooperation in Combating Crime, in particular in its Organised Forms 260 2005 Council of Europe Convention on the Prevention of Terrorism 260 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism 259, 260 2007 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon 325, 327 2007 asean Convention on Counter-terrorism 260 2010 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Residual Special Court for Sierra Leone 318 2013 Agreement on the New Development Bank 39 2015 Articles of Agreement of the Asian Infrastructure Investment Bank 39
Resolutions
un Security Council un Doc. S/RES/50 (29 May 1948) 132 un Doc. S/RES/300 (12 October 1971) 96 un Doc. S/RES/82 (25 June 1950) 69 un Doc. S/RES/307 (21 December 1971) un Doc. S/RES/83 (27 June 1950) 69 104, 105 un Doc. S/RES/84 (7 July 1950) 69 un Doc. S/RES/303 (6 December 1971) un Doc. S/RES/88 (8 November 1950) 104, 105, 201 70 un Doc. S/RES/316 (22 June 1972) 90 un Doc. S/RES/90 (31 January 1951) 70, un Doc. S/RES/326 (2 February 1973) 97 73 un Doc. S/RES/331 (20 April 1973) 91 un Doc. S/RES/255 (19 June 1968) 210 un Doc. S/RES/332 (21 April 1973) 91
Introduction
When governing the prevention, humanisation and resolution of complex (post-)conflict situations in today’s world, global governance institutions have more than ever encountered obstacles to provide a long-term, sustainable and comprehensive solution. Various institutional and normative responses have been developed to address the complexity of their causes – economic, envi- ronmental, ethnic, ideological, political, and religious alike. They have sought to take into account the multiplicity of (non-)state actors and geographies – international and non-international alike – as well as the material and psycho- logical consequences of armed hostilities – including death and destruction, lack of healthcare, refugee crisis, environmental degradation, erosion of trust and deep-seeded hatred. Along with the continuum of violence internation- al and regional organisations as well as domestic actors – governments and civil society alike – have been competing instead to provide the appropriate answers to prevent, contain and restrain armed hostilities and human suffer- ing and restore peace after conflict. Answers range from peaceful resistance to individual/collective self-defence, humanitarian intervention, fighting op- position/terrorist forces, peacekeeping/-building, the development of (supe- rior) military technology, disarmament, harbouring refugees, protection of victims, development aid, calls for accountability, etcetera. This study will examine the modalities to implement such (post-)conflict objectives and in particular the different regulatory frameworks and regimes that govern the use of force (Chapter 2), peacekeeping (Chapter 3), disarmament and arms con- trol (Chapter 4), the war on terror (Chapter 5) and criminal responsibility for the commission of international crimes including genocide, war crimes and crimes against humanity (Chapter 6). The contested interpretation of those norms on behalf of those different shareholders and stakeholders has rendered the application and development of existing norms as well as the creation of new norms within the following international regimes respectively more challenging. Those regimes are collective security (Chapter 2), peacekeeping (Chapter 3), non-proliferation (Chapter 4), the fight against international ter- rorism (Chapter 5) and criminal justice (Chapter 6). Without a compromise within global governance institutions regarding the interpretation of these very norms that govern the prevention, humanisation and resolution of vio- lence, such institutions will be curtailed in fulfilling their respective man- dates. Not only will distrust reign amongst those decision-makers, but also the conflicts whose prevention, humanisation and resolution they are supposed
© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004356498_002
The geopolitical chessboard of the twenty-first century will be far more complex than the chessboards of the nineteenth and twentieth centu- ries, marked for the first time by the entry of several non-Western major
powers. The decisions that affect the world can no longer be made in a few Western capitals whose cultural parameters in analyzing problems and solutions are essentially similar. Now new cultural and political per- spectives have entered the scene.1
China is one of those players that backed up its support to find those answers to the peaceful resolution of conflicts, yet its entry and increasing role onto the international scene has been viewed with wariness. Indeed, various interpreta- tions have been given to comprehend China’s allegedly contradictory foreign policy arguments, multilateralism and normative behaviour on the interna- tional plane. Those interpretations that are driven by different ideological and methodological premises – realism, liberalism, constructivism or Marxism – offer valuable insights on China’s power, economic interests, its pragmatism, sovereignty-driven attitude and its stance on the international rule of law. Their deconstructivist efforts, however, have not provided the building blocks neces- sary to make sense of China’s apparent inconsequential normative behaviour and rather reaffirmed their predispositions.2 If new cultural perspectives (in- cluding China’s) have entered into the picture, accessing them would require a greater effort beyond the existing disciplinary tools including political/legal history/philosophy, religious studies, (social) anthropology that themselves have developed as Western theories founded upon empirical evidence from a Western praxis. It is submitted here that a new starting point must be found to access such new perspectives, namely one that lies within an Asian epistemo- logical framework that determines how reality is received, perceived and how knowledge on it is processed and diffused differently and how this impacts upon (the study of) international relations as a whole. Although cognitive and cultural psychology has its merits to access a new cultural perspective, it has its limitations too since it might not be able to translate an Asian mind-set into a Western one and the other way around. Would it be better in the first place
1 Kishore Mahbubani, The New Asian Hemisphere: The Irresistible Shift of Global Power to the East (New York: PublicAffairs, 2008), 224. 2 In this regard, Pye noted that these contradictions were not perceived by Chinese themselves, hence the importance of this study to identify those different visions that are determined by different lenses grounded in a different epistemology: “There is again substantial social science research that suggests that Chinese are relatively unperturbed at having to uphold logically inconsistent positions, and there may not be greater inner tensions when belief and fact do not readily coincide. Chinese pragmatism is almost by definition syncretic, based on a readiness to tolerate and accept what others might feel to be irreconcilable doctrines or beliefs.” Lucian W. Pye, “On Chinese Pragmatism in the 1980s,” China Quarterly 106 (1986): 218.
The Chinese perspective is not only used here to test and refine tornil and the latter’s objective to embrace the rich tapestry of “new cultural and political perspectives” – that are part of the fabric of today’s international relations but have not fully come to the surface yet. This new tool can give further agency again to the different actors on the international plane to take joint action within the confines of international law and to make the world a safer and more humane place for all. Furthermore, China’s overall advocacy for its so-called democratisation of international relations and thus more in- clusive participation of states on an equal footing corresponds to allowing the entry onto the scene of “new cultural and political perspectives” – through a gradual long-term rather than revolutionary process. Taking China as a case study here is justified on the grounds of its geography in Asia and its perma- nent membership in the un. A holistic study of China’s normative behaviour in the realm of conflict resolution can establish a historical pattern that, for the purposes of tornil, can facilitate the identification of additional building blocks to understand the very processes that prevent and restore the erosion of the respective regimes discussed in this book. Pending future case studies of other countries’ normative behaviour and international legal argument, tornil has in the meantime the potential to live up to its ambitions to serve as a tool of communication across different “(new) cultural and political per- spectives” and disciplines. The importance of communication and dialogue between actors on the international plane is unquestionably indispensable to the (peaceful) resolution of conflict and alleviation of human suffering in this world. Without communication, no knowledge about the other can be gained nor can compromises be reached, decisions be made, joint actions be pursued, and thus responsibilities be assumed towards the realisation of such humani- tarian goals. Conversely, on the side-lines, anxieties and prejudices about the other can fester, and as a self-fulfilling prophecy produce the same immobility, it accuses others to be(come) genuine agents of their own and shared destiny. The following chapters will introduce tornil (Chapter 1) and apply it to China’s normative behaviour in the realm of conflict resolution in respect of different regimes which are governed at the global level. tornil has been ap- plied to the global regimes of collective security (Chapter 2), peacekeeping (Chapter 3), non-proliferation (Chapter 4), the fight against international ter- rorism (Chapter 5) and criminal justice (Chapter 6). The conclusion will iden- tify a number of key characteristics to China’s normative behaviour within this particular arena of global governance and conflict resolution that can assist in understanding, strengthening and restoring the normativity of international law in other sectors too.
Introduction
The rise of China on the international plane has in recent years triggered a proliferation of academic scholarship from a wealth of disciplines in trying to answer where China comes from and how it will evolve. In particular, amongst international relations scholars, there is a split between offensive and defen- sive interpretations about China’s current position and future role in interna- tional society.1 The latter’s regional and global institutional mechanisms and regulatory frameworks in which China is participating or is reluctant to comply
1 David Shambaugh, China’s Future (Cambridge: Polity, 2016); Xiaoting Li, “Applying Offen- sive Realism to the Rise of China: Structural Incentives and Chinese Diplomacy Toward the Neighboring States,” International Relations of the Asia-Pacific Volume 16 (2016): 241–271; Jacques deLisle and Avery Goldstein, eds., China’s Challenges (Philadelphia: University of Pennsylvania Press, 2015); Ann Kent, “China’s Changing Influence on the Multilateral System: From Adaptation to Assertion,” in Jae Ho Chung, ed., Assessing China’s Power (Basingstoke: Palgrave Macmillan, 2015), 139–161; Xuetong Yan, Shijie Quanli de Zhuanyi: Zhengzhi Ling- dao yu Zhanlue Jingzheng (The Transition of World Power: Political Leadership and Strategic Competition) (Beijing: Beijing Daxue Chubanshe (Beijing University Press), 2015); Stuart Harris, China’s Foreign Policy (Cambridge: Polity, 2014); Olivier Turner, “‘Threatening’ China and us Security: The International Politics of Identity,” Review of International Studies 39 (2013): 903– 924; Martin Jacques, When China Rules the World: The End of the Western World and the Birth of a New Global Order (London: Penguin, 2012); Henry Kissinger, On China (London: Penguin, 2012); David Shambaugh, “Coping with a Conflicted China,” The Washington Quarterly 34 (2011): 7–27; Shaun Breslin, Handbook of China’s International Relations (London; New York: Routledge, 2010); Bates Gill, Rising Star: China’s New Security Diplomacy (Washington, d.c.: Brookings Institution Press, 2010); Jonathan Kirshner, “The Tragedy of Offensive Realism: Classical Realism and the Rise of China,” Europe Journal of International Relations 18 (2010): 53–75; Yaqing Qin, “International Society as a Process: Institutions, Iden- tities, and China’s Peaceful Rise,” Chinese Journal of International Politics 3 (2010): 129–153; Yunling Zhang, Rising China and World Order (Singapore: World Scientific Publishing, 2010); Eva Paus, Penelope B. Prime, and Jon Western, eds., Global Giant: Is China Changing the Rules of the Game? (Basingstoke: Palgrave Macmillan, 2009); Gungwu Wang, and Yongnian Zheng, eds. China and the New International Order (London: Routledge, 2008); Lai-Ha Chan, Pak K. Lee, and Gerald Chan. “Rethinking Global Governance: A China Model in the Making?,” Contemporary Politics 14 (2008): 3–19; David Scott, China Stands up: The prc and the Interna- tional System (London; New York: Routledge, 2007).
© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004356498_003
2 Phil C.W. Chan, China, State Sovereignty and International Legal Order (Leiden: Brill Academ- ic Publishers, 2015); Li Chen, “Universalism and Equal Sovereignty as Contested Myths of International Law in the Sino-Western Encounter,” Journal of the History of International Law 13 (2011): 75–116; Andrew Coleman and Jackson N. Maogoto, “‘Westphalian’ Meets ‘Eastpha- lian’ Sovereignty: China in a Globalized World,” Asian Journal of International Law 3 (2013): 237–269; Jenny Clegg, “China at the Global Summit Table: Rule-taker, Deal-wrecker or Bridge- builder?,” Contemporary Politics 17 (2011): 447–465; Roda Mushkat, “China’s Compliance with International Law: What Has Been Learned and the Gaps Remaining,” Pacific Rim Law and Policy Journal 20 (2011): 41–69; Hanqin Xue, Chinese Contemporary Perspectives on Interna- tional Law: History, Culture and … (The Hague: The Hague Academy of International Law, 2011); Xiaoming Zhang, “A Rising China and the Normative Changes in International Soci- ety,” East Asia 28 (2011): 235–246; David P. Fidler, “Eastphalia Emerging? Asia, International Law, and Global Governance,” Indiana Journal of Global Legal Studies 17 (2010): 1–13; Gregory Chin and Ramesh Thakur, “Will China Change the Rules of Global Order?,” The Washington Quarterly 33 (2010): 119–138; Ann Kent, Beyond Compliance: China, International Organiza- tions, and Global Security (Stanford: Stanford University Press, 2007); Pitman B. Potter, “China and the International Legal System: Challenges of Participation,” China Quarterly 191 (2007): 699–715; Andrew C. Mertha and Ka Zeng, “Political Institutions, Resistance and China’s ‑Harmonization with International Law,” China Quarterly 182 (2005): 319–337; Jacques deL- isle, “China’s Approach to International Law: A Historical Perspective,” asil Proceedings 94 (2000): 267–275; James V. Feinerman, “Chinese Participation in the International Legal Order: Rogue Elephant or Team Player?,” China Quarterly 141 (1995): 186–210; Tiqiang Chen, “The People’s Republic of China and Public International Law,” Dalhousie Law Journal 8 (1984): 3–31; Hungdah Chiu, “Chinese Attitudes Toward International Law in the Post-Mao Era, 1978–1987,” International Lawyer 21 (1987): 1127–1166; Samuel S. Kim, “The People’s Republic of China and the Charter-based International Legal Order,” American Journal of International Law 72 (1978): 317–349; Lazar Focsaneanu, “L’Attitude de la Chine à l’égard du Droit Inter- national à l’Epoque de la Révolution Culturelle,” Annuaire Français de Droit International 14 (1968): 43–86; Lazar Focsaneanu, “Les Grands Traités de la République Populaire de Chine,” Annuaire Français de Droit International 8 (1962): 139–177; Hungdah Chiu, “Communist China’s Attitude Toward International Law,” American Journal of International Law 60 (1966): 245–267. 3 Yongjin Zhang, “China and the Struggle for Legitimacy of a Rising Power,” Chinese Journal of International Politics 8 (2015): 301–322; Suisheng Zhao, “Rethinking the Chinese World Order: The Imperial Cycle and the Rise of China,” Journal of Contemporary China 24 (2015): 961– 982; June Teufel Dreyer, “The ‘Tianxia Trope’: Will China Change the International System?,” Journal of Contemporary China 24 (2015): 1015–1031; Bart Dessein, ed., Interpreting China as a Regional and Global Power: Nationalism and Historical Consciousness in World Politics
Those explanations, however, are deeply rooted in a Western analytical – and epistemological – framework that traditionally problematizes a particular problem in conflicting terms, i.e. along sovereignty v. community lines.4 Evi- dently, such mapping of opposing interests is helpful in understanding norma- tive tensions. Consequently, China’s position on particular norms as well as its participation in international institutions is formulated predominantly as being inherently contradictory. Those ever-returning indeterminacies, how- ever, need a different reading. While Chinese scholars are privileged to shed a different light on this topic, their interpretative framework heavily relies on existing Western theories and models that address China’s foreign policy and contribution to international law and its respective legal orders. Such conflic- tual paradigm can be moved towards another perspective that frames China’s respective position and legal argument within regional and global institutions and legal frameworks in complementary terms instead. Such a complementary approach as will be submitted here is grounded in a Chinese epistemology of relational thought whose units of analysis and points
(Basingstoke: Palgrave Macmillan, 2014); Gilbert Rozman, “Invocations of Chinese Traditions in International Relations,” Journal of Chinese Political Science 17 (2012): 111–124; Gilbert Roz- man, “Chinese National Identity and Its Implications for International Relations in East Asia,” Asia-Pacific Review 18 (2011): 84–97; Xuetong Yan, “International Leadership and Norm Evolu- tion,” Chinese Journal of International Politics 4 (2011): 233–264; Yizhou Wang, Transforma- tion of Foreign Affairs and International Relations in China, 1978–2008 (Leiden: Brill Academic Publishers, 2011); Mingjiang Li, ed., Soft Power: China’s Emerging Strategy in International Poli- tics (Lanham: Rowman & Littlefield Publishers, 2009); Yong Deng and Fei-Ling Wang, eds., China Rising: Power and Motivation in Chinese Foreign Policy (Lanham: Rowman & Littlefield Publishers, 2005); Justin S. Hempson-Jones, “The Evolution of China’s Engagement with In- ternational Governmental Organizations: Toward a Liberal Foreign Policy?,” Asian Survey 45 (2005): 702–721; Zhaojie Li, “Traditional Chinese World Order,” Chinese Journal of Interna- tional Law 1 (2002): 20–58; Michael B. Yahuda, “China and International Relations,” Review of International Studies 14 (1988): 297–302; John King Fairbank, ed., The Chinese World Or- der: Traditional China’s Foreign Relations (Cambridge: Harvard University Press, 1968); Bryon S. Weng, “Communist China’s Changing Attitudes Toward the United Nations,” International Organization 20 (1966): 677–704; Mark Mancall, “The Persistence of Tradition in Chinese For- eign Policy,” The Annals of the American Academy of Political and Social Science 349 (1963): 14–26. 4 Lily H. Ling, “Worlds Beyond Westphalia: Daoist Dialectics and the ‘China Threat’,” Review of International Studies 39 (2013): 549–568; Chih-Yu Shih, Sinicizing International Relations: Self, Civilization, and Intellectual Politics in Subaltern East Asia (Basingstoke: Palgrave Macmillan, 2013); Chengxin Pan, “Understanding Chinese Identity in International Relations: A Critique of Western Approaches,” Political Science 51 (1999): 135–148; Quansheng Zhao, Interpreting Chinese Foreign Policy: The Micro–macro Linkage Approach (Hong Kong: Oxford University Press, 1996).
A Western Epistemology and the Conflictual Paradigm Naturally, social sciences are limited in their description of existing and predic- tion of future human behaviour. Within the realm of international affairs, the disciplines of international relations and international law – whose units of analysis are respectively state and non-state actors and international norms – suffer equally from those inevitable constraints. Yet, their cross-fertilization
5 See for example, David Armstrong, Theo Farrell and Hélène Lambert, eds., International Law and International Relations (Cambridge: Cambridge University Press, 2012); Michael Byers, “International Law,” in The Oxford Handbook of International Relations, eds. Christian Reus-Smit and Duncan Snidal (Oxford: Oxford University Press, 2010), 612–631; Withana, Radhika. Power, Politics, Law: International Law and State Behaviour During International Crises (Leiden: Martinus Nijhoff Publishers, 2008); Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cam- bridge University Press, 2004), 21–34; Gerry Simpson, “The Situation on International Legal Theory Front: The Power of Rules and the Rule of Power,” European Journal of International Law 11 (2000): 439–464; John K. Setear, “An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law,” Harvard International Law Journal 37 (1996): 139–329; Shirley V. Scott, “International Law as Ideology: Theorizing the Relation- ship Between International Law and International Politics,” European Journal of International Law 5 (1994): 313–325; Anne-Marie Slaughter, “International Law and International Relations Theory: A Dual Agenda,” American Journal of International Law 87 (1993): 205–239; Stanley Hoffmann, “The Study of International Law and the Theory of International Relations,” American Society of International Law Proceedings 57 (1963): 26–35. 6 Stanley Hoffmann, “The Study of International Law and the Theory of International Rela- tions,” American Society of International Law Proceedings 57 (1963): 33. 7 Alexander Anievas, Marxism and World Politics: Contesting Global Capitalism (London: Rout- ledge, 2010). Martha Finnemore, “Fights about Rules: The Role of Efficacy and Power in Chang- ing Multilateralism,” Review of International Studies 21 (2005): 187–206; Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford: Oxford University Press, 2005); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princ- eton: Princeton University Press, 2005); China Miéville, Between Equal Rights: A Marxist
Theory of International Law (Leiden: Brill, 2005); Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004); Michael N. Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organi- zation 53 (1999): 699–732; B.S. Chimni, “Marxism and International Law: A Contemporary Analysis,” Economic and Political Weekly 34 (1999): 337–349; Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999); Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International Organization 42 (1998): 887–917; Alexander Wendt, “Constructing International Politics,” In- ternational Security 20 (1995): 71–81; Stephen Gill, ed., Gramsci, Historical Materialism and International Relations (Cambridge: Cambridge University Press, 1993); Robert O. Keohane, “Neoliberal Institutionalism: A Perspective on World Politics,” in Robert O. Keohane, ed., In- ternational Institutions and State Power (Boulder: Westview, 1989), 1–20; Oran Young, Inter- national Cooperation: Building Regimes for Natural Resources and the Environment (Ithaca: Cornell University Press, 1989); Steven D. Krasner, ed., International Regimes (Ithaca: Cornell University Press, 1983); Ralph Miliband, Marxism and Politics (Oxford: Oxford University Press, 1977). 8 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2006); David Kennedy, “The Forgotten Politics of International Governance,” European Human Rights Law Review 2 (2001): 117–125; David Kennedy, “A New Stream of International Law Scholarship,” Wisconsin International Law Journal 7 (1988): 1–49; Duncan Kennedy, “The Structure of Blackstone’s Commentaries,” Buf- falo Law Review 28 (1979): 209–382.
9 Hajime Nakamura, Ways of Thinking of Eastern Peoples: India, China, Tibet, Japan (Hono- lulu: East–west Center Press, 1964); Filmer S.C. Northrop, The Meeting of East and West: An Inquiry Concerning World Understanding (New York: MacMillian, 1946). 10 See 1945 Statute of the International Court of Justice, Art. 38.
B Chinese Epistemology and the Complementarity Paradigm The Chinese epistemological framework varies significantly from the Western one. Rather than focusing on a particular object and the unique characteristics that make it different from another, according to cognitive psychologists, Chinese develop “concrete cognition” since they take into account the envi- ronment in which those objects are situated, as to define the features of such objects. Through the lens of the Chinese epistemological framework, one draws information from the relationships between objects within a given con- text to give meaning to such objects.11 As a result, the centrality of relationships has shaped the perception of reality tremendously for those who look through this lens. The nature of a relationship itself is ever subject to change since the actors that relate to each other within a given context also behave differently over the course of time. Once again time and space continue to play a key role in the actual behaviour of certain actors – domestic and international alike – and more importantly, have an impact on the nature of the relationship be- tween those actors in the first place. While taxonomies for certain actors and norms have fixed their characteristics – pursuant to a Western epistemology – a Chinese epistemol- ogy does not define relationships in such static or even conflictual terms but rather presents them in a complementary fashion. Chinese relational thought thus sees ever-changing and dynamic relationships between actors and their interests influencing their respective identities. Conflicts of interests within such context of relationality are not perceived to be insurmountable or to be settled in favour of one side to the conflict and at the expense of the other. Rather, they are rather conceived as an inherent part of the human condition not for the sake of establishing certain genealogies about their root causes but in order to transcend differences and to seek compromise. Such openness which had once driven the postmodern project – yet excluded human agen- cy from going beyond its deconstruction of opposing interests – would now under a Chinese epistemology situate further responsibility on behalf of the actors affected to solve their problems accordingly for the sake of their rela- tionships which mutually define each other. Cultural and social anthropologists who compared Western and Eastern so- cieties found in their research similar fundamental differences and categorised those societies respectively into individual-oriented or social-oriented ones. As a result, behavioural changes within those societies are either defined by the individual in the case of Western societies or by a network of relationships in
11 Steven D. Cousins, “Culture and Self-perception in Japan and the United States,” Journal of Personality and Social Psychology 56 (1989): 124–131.
Eastern societies.12 Unsurprisingly, ideologies and theories about human and social behaviour in those distinctive parts of the world, as political scientists would argue, have further empowered the individual – hence liberalism – as opposed to a collective (and its relationships within) – hence communism – in their realisation of societal goals. Traditionally, before the introduction of the formal doctrines of Marxism-Leninism, China had developed its own sys- tems of relationships, for example Confucianism as the product of relational thought itself. It was and continues to be the natural law of balancing rela- tionships within the family, society, country and the family of nations whose primary goals is to establish harmony amongst those various actors since that will determine the quality and thus nature of those relationships in the first place.13 Unlike the conflictual paradigm where dialectal reasoning cancels out certain arguments in favour of one and at the expense of others, a Chinese epistemology brings opposing ends in close relationship with each other. The reaffirmation of one argument inherently depends on its inseparable coex- istence with the other one. Complementarity is the inevitable premise and compromise its natural outcome.14 Within such epistemology, both neutral observers and interested actors themselves are bound in their common un- derstanding of relationality. Social anthropology and cultural psychology con- cluded that such particular sets of social ideas and cultural values had been
12 Kuang-Hui Yeh, “Relationalism: The Essence and Evolving Process of Chinese Interactive Relationships,” Chinese Journal of Communication 3 (2010): 76–94; Kuo-Shu Yang, “Chinese Personality and its Change,” in Michael H. Bond, ed., The Psychology of the Chinese People (Hong Kong: Oxford University Press, 1986), 160–170; Francis L.K. Hsu, Americans and Chi- nese: Passage to Differences (Honolulu: University of Hawaii Press, 1981). 13 Kuang-Hui Yeh, “Relationalism: The Essence and Evolving Process of Chinese Interac- tive Relationships,” Chinese Journal of Communication 3 (2010): 76; Jay Goulding, “New Ways toward Sino-Western Philosophical Dialogues,” Journal of Chinese Philosophy 34 (2007): 99; Kwang-Kuo Hwang, “Constructive Realism and Confucian Relationalism: An Epistemological Strategy for the Development of Indigenous Psychology,” in Uichol Kim, Kuo-Shu Yang and Kwang-Kuo Hwang, eds., Indigenous and Cultural Psychology: Understanding People in Context (New York: Springer, 2006), 74; John B. Cobb, “Chinese Philosophy and Process Thought,” Journal of Chinese Philosophy 32 (2005): 163. The cur- rent use of Confucian values has argued by some scholars to be an instrument to ensure respect for the communistic leadership. See Christopher A. Ford, “The Party and the Sage: Communist China’s Use of Quasi-Confucian Rationalizations for One-party Dictatorship and Imperial Ambition,” Journal of Contemporary China 24 (2015): 1032–1047. 14 Charles A. Moore, “Introduction: The Humanistic Chinese Mind,” in Charles A. Moore, ed., The Chinese Mind: Essentials of Chinese Philosophy and Culture (Honolulu: East–west Center Press, 1967), 5.
15 Edward S. Reed, Encountering the World: Toward an Ecological Psychology (Oxford: Oxford University Press, 1997), 182; Jean Lave, “Teaching, as Learning, in Practice,” Mind, Culture, and Activity 3 (1996): 149–164. 16 Kaiping Peng, Naïve Dialecticism and its Effects on Reasoning and Judgment about Contra- diction (PhD diss., University of Michigan, 1997), 75. 17 Amitav Acharya, Rethinking Power, Institutions and Ideas in World Politics: Whose ir? (Abingdon: Routledge, 2014); Amitav Acharya, “Dialogue and Discovery: In Search of In- ternational Relations Theories Beyond the West,” Millennium – Journal of International Studies 39 (2011): 619–637; Armando Geller, “The Use of Complexity-based Models in In- ternational Relations: A Technical Overview and Discussion of Prospects and Challenges,” Cambridge Review of International Affairs 24 (2011): 63–80; Robert Geyer and Steve Picker- ing, “Applying the Tools of Complexity to the International Realm: From Fitness Land- scapes to Complexity Cascades,” Cambridge Review of International Affairs 24 (2011): 5–26; Robbie Shilliam, ed., International Relations and Non-Western Thought: Imperialism, Colo- nialism and Investigations of Global Modernity (London: Routledge, 2011); Amitav Acharya and Barry Buzan, eds., Non-western International Relations Theory (London; New York: Routledge, 2010); Emilian Kavalski, “The Complexity of Global Security Governance: An Analytical Overview,” Global Society 22 (2008): 423–443; Emilian Kavalski, “The Fifth De- bate and the Emergence of Complex International Relations Theory: Notes on the Ap- plication of Complexity Theory to the Study of International Life,” Cambridge Review of International Affairs 20 (2007): 435–454; Stephen Chan, Peter Mandaville, and Roland Bleiker, eds., The Zen of International Relations: ir Theory from East to West (Basingstoke: Palgrave, 2001). 18 See also Yongjin Zhang and Teng-Chi Chang, eds., Constructing a Chinese School of ir: On- going Debates and Sociological Realities (London; New York: Routledge, 2016); Hun Joon
Kim, “Will ir Theory with Chinese Characteristics Be a Powerful Alternative?,” Chinese Journal of International Politics 9 (2016): 59–79; Thuy T. Do, “China’s Rise and the ‘Chi- nese Dream’ in International Relations Theory,” Global Change, Peace & Security 27 (2015): 21–38; Nele Noesselt, “Revisiting the Debate on Constructing a Theory of International Relations with Chinese Characteristics,” China Quarterly 222 (2015): 430–448; Qingling Dong, “Cong Zhongxifang Zhexue Kan Zhongguo Guoji Guanxi Lilun de Chuangsheng (‘Philosophical Foundations of International Relations Theory Building in China and the West’),” Guoji Zhengzhi Yanjiu (The Journal of International Studies) 4 (2014): 59–72; Shengxiang Liu, “Guoji Guanxi Yanjiu Fanshi Ronghe Lunxi (“Analysis of the Convergence of International Relation Paradigm”),” Shijie Jingji yu Zhengzhi (World Economics and Poli- tics) 12 (2014): 95–117; Florian Schneider, “Reconceptualising World Order: Chinese Politi- cal Thought and its Challenge to International Relations Theory,” Review of International Studies 40 (2014): 683–703; Nicola Horsburgh, Astrid Nordin and Shaun Breslin, Chinese Politics and International Relations: Innovation and Invention (New York: Routledge, 2014); Jiangli Wang and Barry Buzan, “The English and Chinese Schools of International Rela- tions: Comparisons and Lessons,” Chinese Journal of International Politics 7 (2014): 1–46; Qiqi Gao, “Lun Xifang Bijiao Zhengzhixue yu Guoji Guanxi Xue Lilun Lujing de Qujin (‘Western Comparative Politics and International Relations: The Congruence of Theo- retical Approaches and Implications for China’),” Shijie Jingji yu Zhengzhi (World Eco- nomics and Politics) 4 (2013): 86–105; Jiangli Wang, “Zhongguo Guoji Guanxi Yanjiu de Lishi Zhuanxiang (‘The Historical Turn of Contemporary ir Study in China’),” Zhejiang Daxue Xuebao (Renwen Shehui Kexue Ban) (Journal of Zhejiang University ((Humanities and Social Sciences)) 43 (2013): 78–92; Yaqing Qin, “ Culture and Global Thought: Chi- nese International Theory in the Making,” Revista cidob d’Afers Internacionals, 100 (2012): 67–90; Shulan Ye, “Zhongguo Zhanluexing Waijiao Huayu Jiangou Chuyi (‘Discussion on the Construction of China’s Strategic Foreign Diplomatic Discourse Right’),” Waijiao Pin- glun (Foreign Affairs Review) 29 (2012): 68–81; Zhiyun Liu, “Interdisciplinary Research on International Relations Theory and International Law in China over the Past 10 Years,” Frontiers of Law in China 6 (2011): 496–523; Daniel Lynch, “Chinese Thinking on the Future of International Relations: Realism as the Ti, Rationalism as the Yong?,” China Quarterly 197 (2009): 87–107; Yaqing Qin, “Development of International Relations Theory in China,” International Studies 46 (2009): 185–201; Yaqing Qin, “Why Is There No Chinese Interna- tional Relations Theory?,” International Relations of the Asia-Pacific 7 (2007): 313–340; Ger- ald Chan, Chinese Perspectives on International Relations: A Framework for Analysis (New York: St. Martin’s Press, 1999); Gerald Chan, “Toward an International Relations Theory with Chinese Characteristics?,” Issues & Studies 34 (1998): 1–28. Michael B. Yahuda, “China and International Relations,” Review of International Studies 14 (1988): 297–302.
19 Other Chinese scholars however have partly engaged with relationality yet criticized Qin’s approach as being unrealistic and building upon a methodological framework that doesn’t have sufficient parameters to measure process and relationships objectively. In addition, they continued that Qin’s theory doesn’t propose a proper classification system or taxonomy either. See Chongwei Yang, “Zai ‘Guanxi Zhili’ shang Gengjin Yibu: Guanxi yu Guocheng – Zhongguo Guoji Guanxi Lilun Pingxi (‘Step Further in “Relation Governance”: Comments on Relation and Process-Cultural Construction on China’s International Re- lations Theory’),” Guoji Guancha (International Review) 1 (2016): 52–65; Shangtao Gao, “Guanxi Zhuyi yu Zhongguo Xuepai (‘Relationalism and the Chinese School’),” Shijie Jingji yu Zhengzhi (World Economics and Politics) 8 (2010): 116–160. 20 Yaqing Qin, “Continuity through Change: Background Knowledge and China’s Interna- tional Strategy,” Chinese Journal of International Politics 7 (2014): 287; Yaqing Qin, Guanxi yu Guocheng: Zhongguo Guoji Guanxi Lilun de Wenhua Jiangou (Cultural Construction on China’s International Relation Theory) (Shanghai: Shanghai Renmin Chubanshe (Shang- hai People Press), 2012); Yaqing Qin, “Guanxi yu Guocheng Jiangou: Jiang Zhongguo Lin- ian Zhiru Guoji Guanxi Lilun (‘Relationality and Processual Construction: Bring Chinese Ideas into International Relations Theory’),” Zhonguo Shehui Kexue (Social Sciences in China) 3 (2009): 69–125. See also a recent contribution that engages with such perspective of relationality in ir theorising: Emilian Kavalski, The Guanxi of Relational International Theory (London: Routledge, 2018). See also Patrick T. Jackson and Daniel Nexon, “Rela- tions before States,” European Journal of International Relations 5 (1999): 291–332; Louiza Odysseos, The Subject of Coexistence (Minneapolis: University of Minnesota Press, 2007).
C Chinese Communism and Relational Thought Ever since the emergence of the Communist Party of China (cpc) in 1927 and its establishment of the People’s Republic of China (prc) in 1949, the Chinese com- plementarity paradigm has undergone a dramatic transformation yet has nev- er abandoned its foundational premises. The introduction of Marxist-Leninist thought as the Party’s and country’s main ideology has given dialectal reason- ing in general and historical materialism, in particular, an important theoreti- cal tool to justify the class struggle aimed at transcending contradiction within Chinese and world society. Despite its Western origins, Marxism-Leninism gained root in China given its methodological approach that exposed conflict within feudal and capitalist world orders. Its dialectal philosophy permitted to examine conflicting ideas for the sake of unveiling the truth based on reason. Its ideological premises, however, namely the advancement of communism and an egalitarian society, would as a self-fulfilling prophecy determine from the outset the direction where conflicting arguments would lead. Beyond those predestined views, historical materialism shares common ground with postmodernism, namely its narration of genealogies that expose the inherently conflictual nature of human behaviour and its repercussions in its relationship with others. Unlike postmodernism, Marxism-Leninism that relies on such method moves forward the choice for the subject under deconstruction to assume responsibility, renounce such conflict and seek to
21 Yaqing Qin, “Rule, Rules, and Relations: Towards a Synthetic Approach to Governance,” Chinese Journal of International Politics 4 (2011): 133.
transcend it through the class struggle. Such agency has ever been present within the Chinese complementarity paradigm that aims to master contradic- tions that are inherently part of the human condition. Given its socio-economic analysis and fundamental premises, Marxist-Leninist ideologies, however, re- serve intrinsically and exclusively the class struggle to be the driving force and eternal justification towards a synthesis of opposing interests. Conversely, tra- ditional Chinese relational thought has less rigid foundations as to perceive contradiction of opposite actors. In this regard, the latter’s evolving interests and identities are ever subject to a transformative process that is itself shaped by the very opposition and thus relationship in which actors find themselves. China’s communist leadership has sought to espouse their own version of Western dialectical reasoning and Chinese relational thought as a means to mark their rupture with pre-revolutionary times and to remind the general populace of its own “scientific” method that underpins its revolutionary ideas. Mao Zedong – who wrote on “On Contradiction” as early as August 1937 – was the first to distinguish the static metaphysical world outlook of the bourgeoisie from the outlook of dialectical materialism. The latter indeed exposed the con- tradictions within the former as Marxist-Leninist historical materialism would claim and used such opposition to define their ever-changing evolution and internal relationship towards each other, as a Chinese epistemology would ad- vance. Yet, to prove its theoretical and methodological novelties from prior sci- entific explanations of the capitalist class, the actual content of such definition was thus in its turn determined by historical materialism.22 Struggle – a matter of revolutionary slang and ideology – would continue to determine the trans- formation of opposing ends towards a revolutionary unity whose achievement and preservation were the justificatory grounds for the cpc to rein over their peoples accordingly. While historical materialism in its Western epistemology has not been able to focus on the actual relationship between certain opposing actors as their unit of analysis, Mao Zedong did not ignore the importance of such relation- ship within his exposé on the Law on Contradiction from the outlook of dialec- tical materialism. In this regard, he borrowed from a popular ancient Chinese saying: “Things that oppose each other also complement each other.”23 From this complementarity paradigm, Maoist thought paid further tribute to the necessity to understand the “internal relations” of actors if one aims to find
22 Mao Zedong, Selected Works of Mao Tse-Tung, Vol. 1 (Beijing: Foreign Languages Press, 1965), 312–313, 345–346. 23 Mao Zedong, Selected Works of Mao Tse-Tung, Vol. 1 (Beijing: Foreign Languages Press, 1965), 343.
24 Mao Zedong, Selected Works of Mao Tse-Tung, Vol. 3 (Beijing: Foreign Languages Press, 1965), 61–62. 25 Liu Shaoqi, Selected Works of Liu Shaoqi, Vol. 2 (Beijing: Foreign Languages Press, 1991), 284. 26 Zhou Enlai, Selected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 38. 27 Deng Xiaoping, Selected Works of Deng Xiaoping, Vol. 3 (Beijing: Foreign Languages Press, 1994), 154.
28 Jiang Zemin, Selected Works of Jiang Zemin, Vol. 1 (Beijing: Foreign Languages Press, 2001), 44; Xi Jinping, The Governance of China (Beijing: Foreign Languages Press, 2014), 31. 29 Hu Jintao emphasized the importance of building harmonious relationship between ac- tors on the international plane. See Hu Jintao “Build Towards a Harmonious World of Lasting Peace and Common Prosperity” (New York, 15 September 2005). Xi Jinping con- tinued that such aspirations are grounded in China’s cultural values that are also claimed to be the foundation for China’s socialist core values. See Xi Jinping, The Governance of China (Beijing: Foreign Languages Press, 2014), 118, 181, 189.
A Relational Governance and International Relations Relational governance has its origins in the realm of the organisational com- pany and business models. It was developed to reduce transaction costs that would have been higher if shareholders and stakeholders involved would rely solely on a set of rules to deal with their respective behaviours in the case of conflict.30 In case that expectations on those rules among the parties could
30 See Adam B. Badawi, “Relational Governance and Contract Damages: Evidence from Franchising,” Journal of Empirical Legal Studies 7 (2010): 743–785; Michael Trebilcock and Jing Leng, “The Role of Formal Contract Law and Enforcement in Economic Develop- ment,” Virginia Law Review 92 (2006): 1517–1580; Laura Poppo and Todd Zenger, “Do For- mal Contracts and Relational Governance Function as Substitutes or Complements?,” Strategic Management Journal 23 (2002): 707–725; Akbar Zaheer and N. Venkatraman, “Relational Governance as an Interorganizational Strategy: An Empirical Test of the Role of Trust in Economic Exchange,” Strategic Management Journal 16 (1995): 373–392; Ian R. Macneil, “Relational Contract: What We Do and Do Not Know,” Wisconsin Law Review 3 (1985): 483–525. Other social scientists have also pursued further study on relational governance within a Chinese business environment and have taken the “guanxi” – liter- ally the interdependent relationship – as their unit of analysis. See Xiaoying Qi, “Guanxi, Social Capital Theory and Beyond: Toward a Globalized Social Science,” British Journal of Sociology 64 (2013): 308–324; Mingming Duan, “The Role of Formal Contracts with Weak Legal Enforcement: A Study in the Chinese Context,” Strategic Organization 10 (2012): 158– 186; Paul S. Hempel and Maris G. Martinsons, “Developing International Organizational Change Theory Using Cases from China,” Human Relations 62 (2009): 459–499; Kevin Zheng Zhou, Laura Poppo and Zhilin Yang, “Relational Ties or Customized Contracts? An Examination of Alternative Governance Choices in China,” Journal of International Business Studies 39 (2008): 526–534; Don Y. Lee and Philip L. Dawes, “Guanxi, Trust, and Long-term Orientation in Chinese Business Markets,” Journal of International Marketing 13 (2005): 26–56; Scott C. Hammond and Lowell M. Glenn, “The Ancient Practice of Chi- nese Social Net-working: Guanxi and Social Network Theory,” Emergence: Complexity and Organization 6 (2004): 24–31; Thomas Gold, Doug Guthrie and David Wank, “An Introduc- tion to the Study of Guanxi,” in Thomas Gold, Doug Guthrie and David Wank, eds., Social
Connections in China: Institutions, Culture, and the Changing Nature of Guanxi (Cam- bridge: Cambridge University Press, 2002), 3–20; Seung-Ho Park and Yadong Luo, “Guanxi and Organizational Dynamics,” Strategic Management Journal 22 (2001): 455–477; Andrew B. Kipnis, Producing Guanxi (Durham: Duke University Press, 1997); Yadong Luo, “Guanxi: Principles, Philosophies, and Implications,” Human Systems Management 16 (1997): 43–51. 31 Sanja Seth, Postcolonial Theory and International Relations: A Critical Introduction (New York: Routledge, 2013); Steven C. Roach, ed., Critical Theory and International Relations: A Reader (New York: Routledge, 2007); Nicholas J. Rengger and Ben Thirkell-White, eds., Critical International Relations Theory After 25 Years (Cambridge: Cambridge University Press, 2007); Christine Sylvester, Feminist International Relations: An Unfinished Journey (Cambridge: Cambridge University Press, Cambridge, 2002); Stephen Hobden and John M. Hobson, eds., Historical Sociology of International Relations (Cambridge: Cambridge University Press, 2002); Stephen Hobden, International Relations and Historical Sociology: Breaking Down Boundaries (New York: Routledge, 1998); Andrew Linklater, Beyond Real- ism and Marxism Critical Theory and International Relations (Basingstoke: Palgrave Mac- millan, 1990). 32 John Bellamy Foster, Naked Imperialism (New York: Monthly Review Press, 2006); John Martinussen, Society, State & Market: A Guide to Competing Theories of Development (New
From a Chinese perspective, the theory of relational governance, as devel- oped by Yaqing Qin, departs from the relation-based approaches found within critical international relations theories as well as from international political economy, respectively, on the grounds of ideology and method. Regarding the ideological stance, the relationship – as the unit and point of departure of his analysis of international relations – is not merely a means but also an end itself. In this regard, while classical realist, liberal and constructivist per- spectives have used the relationship to advance their respective ambitions of power, cooperation and shared ideas and beliefs on behalf of the respective actors on the international plane – their primary unit of analysis, the relation- ship between those actors – regardless of how these different goals are pursued through the relationship – shall in itself be an end, ever subject to changes within the international environment and amongst the respective actors. The relationship itself defines the identity of the actors that interact with each other through the relationship – institutional and governmental (multilateral and bilateral alike). Although critical perspectives on international relations engage with such matters of identity and discourse that determine the nature of the relationship between actors on the international plane, they refute the possibility of trans- forming the relationship upon equal grounds. Absent such agency on behalf of the actors involved in an existing relationship, dependency and world system analysis theories would argue, on the other hand, that such transformation must unfold outside the existing boundaries of that relationship in the first place. The transformative character of any relationship, however, according to Yaqing Qin, would not necessarily be brokered by simply abandoning the relationship – in spite of its current inequalities. Instead, his relational gov- ernance in terms of methodology leans closer to the transactional business model where investment in any relationship must be part of a rational calcula- tion that weighs competing costs and benefits when either calling for eman- cipation through revolution or as a gradual process that levels out in time and in space opposing interests between the actors involved. He further defines
York: Zed Books, 1997); Christopher Chase-Dunn and Thomas D. Hall, Rise and Demise: Comparing World-Systems (Boulder: Westview, 1997); Alvin Y. So Social Change and Devel- opment: Modernization, Dependency and World-System Theories (London: Sage Publica- tions, 1990); Samir Amin, Capitalism in the Age of Globalization (London: Zed, 1997); Frank André Gunder, On Capitalist Underdevelopment (Bombay: Oxford University Press, 1975); Immanuel Wallerstein, The Modern World-System i: Capitalist Agriculture and the Origins of the European World-Economy in the Sixteenth Century (New York: Academic Press, 1974); Paul Baran, The Political Economy of Growth (New York: Monthly Review Press, 1957).
33 Yaqing Qin, “Rule, Rules, and Relations: Towards a Synthetic Approach to Governance,” Chinese Journal of International Politics 4 (2011): 133.
B China and the Forms of Its Relational Governance China’s current membership and participation in international and regional organisations have over the course of its relatively young history taken differ- ent forms and styles which are commensurate with its own internal political, economic and legal parameters and its external role within international soci- ety. The establishment and management of relationships through and within such institutions and legal frameworks would on the long-term serve China’s own agenda of power (i.e. sovereignty), cooperation (i.e. mutual benefit) and shared beliefs and ideas (i.e. harmonious world) as conventional theories of in- ternational relations would argue. Also on an intergovernmental basis, China has pursued those different agendas with other states. China’s own traditional view of international organisations as “a formal arrangement transcending national boundaries that provides for the establishment of institutional ma- chinery to facilitate cooperation among members in the security, economic, social or related fields”34 would – as it gradually socialized with international life – lean closer toward a regime approach where “principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue-area”.35 It was only at a later stage of its development and after it gained further experience from its participation in international organisations and global and regional security and trade arrangements that China initiated its own institution-building and legal frameworks to advance its sovereign and communitarian agendas.36 Upon the establishment of the prc however, the absolutist anti-hegemonic discourse that prevailed during Mao Zedong’s rule alienated the country from the outside world – the Western capitalist powers in particular.37 Its initial
34 Jack C. Plano and Roy Olton, The International Relations Dictionary (Kalamazoo, Mich.: New Issues, 1979), 288. 35 Stephen D. Krasner, “Structural Causes and Regime Consequences: Regimes as Interven- ing Variables,” International Organization 36 (1982): 185. 36 Emilian Kavalski, ed., China and the Global Politics of Regionalization (London: Routledge, 2013); Honghua Men, “Globalization and International Regimes: Theoretical Implications,” in Cai Tao, ed., Chinese Perspectives on Globalization and Autonomy (Leiden: Brill, 2012), 295–308; Suisheng Zhao, “Adaptation and Strategic Calculation: China’s Participation in International Regimes and Institutions,” in Peter Kien-Hong, W. Emily Chow and Shawn S.F. Kao, eds., International Governance, Regimes and Globalization: Case Studies from Bei- jing and Taipei (Lanham: Rowman & Littlefield Publishers, 2010), 69–94; Guoguang Wu and Helen Lansdowne, eds., China Turns to Multilateralism: Foreign Policy and Regional Security (London; New York: Routledge, 2008); Yongjin Zhang, China in International Soci- ety since 1949: Alienation and Beyond (Basingstoke: Palgrave, 1998). 37 Zhou Enlai however further expanded on the purpose of China’s foreign policy, namely to establish friendly relations between all peoples and nations against imperialism and
exclusion from the un had oriented the realisation of China’s foreign policy ob- jectives through primarily intergovernmental links with other communist and like-minded states. Mao’s later adoption of the Three World Theory in 1974 fur- ther set the boundaries where those relationships could be established or not. It divided the world into three categories, where the us and the Soviet Union belonged to the first; Canada, Europe and Japan to the second; and all the rest to the third.38 While this exclusionary model inevitably has not only deter- mined the fate of its own national development, politically and economically alike, it did generate a model for coexistence between capitalist and commu- nist powers39 and cooperation between like-minded states. Such was reflected in the prior adoption of the Five Principles of Peaceful Coexistence in 1954 that would in the first place govern those intergovernmental relationships. Only at a later stage, when China had already joined international organisations, would those principles become more prominent in China’s own future regional institution-building. These principles were enunciated at a time when China and India were fight- ing their revolutionary and colonial struggles respectively both domestically and on the international plane. In this regard, both nations – who had their own disputes concerning the pilgrimage between the Tibet region of China
aggression. Diplomatic and trade ties between the prc and foreign nations were most developed with the Soviet Union with whom it “established the closest fraternal rela- tions”. Negotiating diplomatic relations with capitalist nations has been more compli- cated. In this regard, the uk’s intransigent position regarding its recognition of the kmt representation in the un as well as its colonial administration in Hong Kong were un- acceptable to the prc government. Zhou further warned that the us’ acts of violence and aggression in the Far East ever since the end of the Second World War as well as the refusal of the prc to participate in the un would meet disaster. See Zhou Enlai, Se- lected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 43–47. See also Manjari Chatterjee Miller, Wronged by Empire: Post-imperial Ideology and Foreign Policy in India and China (Stanford: Stanford University Press, 2013). 38 Mao Zedong, Mao Zedong on Diplomacy (Beijing: Foreign Languages Press, 1998). 39 Zhou Enlai also brought further nuances between the nature and quality of foreign rela- tions with capitalist nations. Unlike traditional relational governance, those relationships are based on reciprocity. From the ideological point of view it would be impossible to mend friendships in the early days of the prc as it needs to construct its own nation in political and economic terms. Such has been a fragile process in particular after the Second World War and the consecutive Chinese civil war where outside intervention on behalf of foreign powers have always loomed in the background or even at its doorstep in the case of Korean war. Trust, as the basis and outcome of any relationship, would in this particular context be extremely difficult to achieve. See Zhou Enlai, Selected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 96.
40 Agreement between the Republic of India and the People’s Republic of China on Trade and Intercourse between Tibet Region of China and India. Signed at Beijing, on 29 April 1954, entered into force on 3 June 1954. 41 Russell H. Fifield, “The Five Principles of Peaceful Co-Existence,” American Journal of In- ternational Law 52 (1958): 508. 42 Its language has been paraphrased in international forums such as the un General Assembly which in 1957 was equally divided between the different spheres of influence – hence, the need to develop “friendly and cooperate relations” between all states regard- less of “their divergences or the relative stages and nature of their political, economic and social development”. See un Doc. A/res/1236 (xii) (14 December 1957).
superpowers.43 Against this background of China’s evolving attitude towards the international order, China eventually regained confidence in the Five Prin- ciples of Peaceful Coexistence not only to defend its national interests but also to pursue its egalitarian agenda and unity amongst developing countries. Indeed, the prc’s restoration of its legitimate rights in the un – as the sole representative of Greater China – on 25 October 197144 would not have been possible without the external support of other developing countries as well as from the Soviet Union.45 The nature and purpose of China’s relationship with those First World and Third World countries differed significantly. On the one hand, China’s support to the Soviet Union was confined to matters of self-determination and decolonization – as a precondition to affirm the principle of sovereign equality on behalf of the newly independent states. On the other hand, China aligned with developing countries in the realisation of economic, social and human rights.46 During the 1970s, China supported major foundational documents in the siege of the un General Assembly that gave rise to the exercise of the economic sovereignty of the developing world whose uneven development has been the outcome of colonial and hegemonic forces. The 1974 Declaration on the Establishment of a New International Economic
43 Samuel S. Kim, China, the United Nations, and World Order (Princeton: Princeton Univer- sity Press, 1979), 405–415. 44 un Doc. A/RES/2758 (xxvi) (25 October 1971). 45 India requested repeatedly that the representation of China to be included on the agen- da of the un General Assembly since 1956. See un Doc. A/RES/1108 (xi) (16 November 1956). The India-China delimitation dispute concerning the claims of both nations on the Aksai Chin in 1960 may well explain the end of India’s demands for China’s representa- tion in the un. Instead, the Soviet Union did so in 1960 alone. See un Doc. A/RES/1493 (xv), 8 October 1960. In between 1962 and 1964 this issue was no longer discussed in the un General Assembly. See also Lazar Focsaneanu, “La République Populaire de Chine à l’onu, Problèmes Politiques et de Sécurité,” Annuaire Français de Droit International 20 (1974): 115–152; F.B. Schick, “The Question of China in the United Nations,” International and Comparative Law Quarterly 12 (1963): 1232–1250; Herbert W. Briggs, “Chinese Repre- sentation in the United Nations,” International Organization 6 (1952): 192–209. Only from 1965, the un General Assembly kept repeating its earlier stance on these controversial questions that has left the un undecided until 1970. See un Doc. A/RES/2025 (xx) (17 November 1965). 46 Already since the 1950s, Zhou Enlai stressed the importance of economic in addition to political independence on behalf of African and Asian peoples. The ruling conditions at that time favoured Western powers at the expense of the development of the non- Western nations instead. Complete independence – in particular in economic terms – would be intimately linked with the precondition of sovereign equality in all its facets. See Zhou Enlai, Selected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 156.
Order pointed at the interdependent course of economic well-being and pros- perity of the peoples of developed and developing nations and the need to overcome the disequilibrium through further cooperation between all mem- bers of the international community based on sovereign equality and equity.47 The 1974 Charter of Economic Rights and Duties of Nations further warned that the hegemonic ambitions within economic relationships for the purpose of establishing spheres of influence would compromise “a new system of inter- national economic relations”.48 While the international community on behalf of its newly independent states and developing countries were calling for a new edifice for economic and ultimately political relations outside the current international legal and politi- cal order dominated by developed nations, China’s own political construction internally and externally was still in its own scaffolding. It was not until the end of the 1970s with the ascent to power of Deng Xiaoping that the economic construction both internally and externally could start. Meanwhile, the Cul- tural Revolution domestically and the redefinition of superpower relationship internationally showed evidence of the dual agenda of dialectical materialism and relational governance. Those opposite trends of national revolution and international normalisation resulted in an unexpected turn respectively in the organisation of the political leadership within the prc towards a shared lead- ership with members of the Politburo domestically as well as in a new phase in the political relationships with the us and other capitalist countries. The latter’s economic organisation and capitalist recipes would further guide China’s opening-up to global markets and advance the productive ca- pacities of its peoples since 1978. This new era would further deepen China’s economic construction internally and externally alike. The domestic shift to- wards a market- and export-oriented manufacturing economy would allow it to tap into the global supply chains of various industrial and consumer goods.
47 un Doc. A/RES/S-6/3201 (1 May 1974), para. 4. 48 un Doc. A/RES/29/3281 (12 December 1974), Preamble. In the meantime, China had un- surprisingly further distanced itself from the Soviet Union and intended to normalise its relationships with the us since 1971 as a counterweight to the former’s hegemony. Upon President Nixon’s visit to the prc in 1972, Zhou Enlai noted that despite the countries’ fundamental differences, the very normalization of their relations and relaxation of ten- sion would one day lead to the realisation of the common aspirations of both people. See Zhou Enlai, Selected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 499. Such marked a clear shift in the language and discourse – which departed from the antagonism which drove the dialectical materialist approach – towards a long-term investment in the very relationship without a clear vision of its immediate benefits and outcomes.
Its modernization – even supported by foreign direct investment and intro- duction of overseas technologies – according to Deng Xiaoping could not pos- sibly alienate China from the Third World. China would continue to assume its so-called “international proletarian obligations” vis-à-vis other developing countries. In spite of its great development ambitions, their realisation over the course of time would not change China’s attitude towards hegemony. Under no circumstances would China practice this.49 Conversely, China regretted the us’ attitude towards Taiwan in spite of its recognition of the One China Policy when both countries officially resumed diplomatic relations in 1979.50 Against the background of China’s speedy economic development, Deng Xiaoping gave further reassurances that China would not – at this stage – be a leader for the developing world. The latter has too often been the victim of discord sown by the hegemonic First World powers who sought to expand their spheres of influence across the globe after the period of decolonization. Despite such repeated observations, coordination and cooperation amongst developing countries have been weak. If China were to assume such a coordi- nating role, it would fear to create adversity at the expense of its goals of safe- guarding international peace, which was in the interests of its own economic development in the first place and that of other Third World countries as well.51 Those interdependent goals of peace and development were tailored along two major axes of relationships, respectively West–East and North–South that necessitated further investment in order to realise those common objectives.52 South-South cooperation could incentivise the North–South one too. Yet, dur- ing the Cold War, the world was divided into different spheres of influence and economic/military blocs. Nonetheless, the Five Principles of Peaceful Co- existence according to Deng could possibly transcend those political differ- ences and focus on how they could better handle the relationships between the West–east and South–South respectively on the basis of sovereign equality and mutual benefit instead.53 During the late 1980s, China sought to establish a new international order. Earlier calls for the New International Economic Order (nieo) in the 1970s had not been accomplished, and the gap between developed and developing
49 Deng Xiaoping, Selected Works of Deng Xiaoping, Vol. 2 (Beijing: Foreign Languages Press, 1995), 123. 50 Ibid., 369–372. 51 Deng Xiaoping, Selected Works of Deng Xiaoping, Vol. 3 (Beijing: Foreign Languages Press, 1994), 408. 52 Ibid., 111. 53 Ibid., 102.
54 Ibid., 274–275. 55 Ibid., 341. 56 Jiang Zemin, Selected Works of Jiang Zemin, Vol. 1 (Beijing: Foreign Languages Press, 2001), 468. 57 Ibid., 469. 58 Ibid., 321.
59 Ibid., 302–303; Jiang Zemin, Selected Works of Jiang Zemin, Vol. 2 (Beijing: Foreign Lan- guages Press, 2012), 192. 60 Boao Forum Charter (27 February 2001), Art. 3. 61 Established by the Treaty on Deepening Military Trust in Border Regions (26 April 1996). 62 Established by the Declaration of the Shanghai Cooperation Organisation (15 June 2001). 63 On 26 April 1996 the original Shanghai Five members were China, Kazakhstan, Kyrgyz- stan, Russia and Tajikistan. Uzbekistan became the 6th member of the Shanghai Coop- eration Organisation on 15 June 2001. India’s and Pakistan’s has been approved in July 2015 and will most likely join as formal members of the Shanghai Cooperation Organisation in 2016. 64 Charter of the Shanghai Cooperation Organisation (7 June 2002). 65 See also speech of Chinese ambassador YANG Tao before the Security Council, S/PV.6477 (8 February 2011), 10; speech of Chinese ambassador WANG Min before the Security Council, S/PV.7112 (14 February 2014), 20–21. 66 See also speech of Chinese ambassador LIU Jieyi before the Security Council, S/pv.7926 (18 April 2017), 24.
67 Jiang Zemin, Selected Works of Jiang Zemin, Vol. 2 (Beijing: Foreign Languages Press, 2012), 306, 393. 68 Ibid., 398–399. 69 Manjiao Chi, “China’s Participation in wto Dispute Settlement over the Past Decade: Ex- periences and Impacts,” Journal of International Economic Law 15 (2012): 30. 70 Jacques deLisle, “China’s Approach to International Law: A Historical Perspective,” asil Proceedings 94 (2000): 267.
As a result, China’s growing participation in international institutions – economic and security alike, its early institution-building and regional part- nerships would call into being an ideational principle that would govern all these sets of relationships across the region and the world at large. Some but not all of those relationships have been institutionalised yet and have added a new cornerstone to China’s foreign policy, namely to govern not only through relationships but also through the international rule of law – or even lawfare.71 While the establishment and development of a so-called harmonious world order builds on those existing guiding Five Principles of Peaceful Coexistence, Hu Jintao – unlike his Premier Wen Jiabao – did not underscore the rule of law in his call for world peace, development and cooperation.72 His idea of harmony – regardless whether this could be traced back to Imperial times73 – would rely on a more flexible notion of hierarchy that in its current externali- sation has raised deepening fears about its potential hegemonic content. From such centric perspective, relations by their nature – and pursuant to a Chinese epistemology – change, even for the worst. Such would – as past examples of Vietnam and more recent events in the South China Sea dispute have shown – upset the relationship and result in (less) forceful repercussions on behalf of China to restore the relationship toward its own vision of harmony.74 China’s economic development ever since “opening up” in the late 1970s in general and since it joined the wto in 2001 has been accompanied by increas- ing imbalances in economic terms that have consequences on various political and security matters that affects not only China but also its neighbourhood, Asia and the world. It would not suffice for China to further pursue its relational and rule-based governance respectively in the region and on the international
71 Wen Jiabao, “Carrying Forward the Five Principles of Peaceful Coexistence in the Promo- tion of Peace and Development,” Chinese Journal of International Law 3 (2004): 366. 72 Hu Jintao, “Build Towards a Harmonious World of Lasting Peace and Common Prosperity” (New York, 15 September 2005). 73 For more on tianxia, see Joseph Richmond Levenson, Confucian China and its Modern Fate, Vol. 3 (London: Routledge & Kegan Paul, 1965); John King Fairbank, ed., The Chinese World Order: Traditional China’s Foreign Relations (Cambridge: Harvard University Press, 1968); Rune Svarverud, International Law as World Order in Late Imperial China: Transla- tion, Reception and Discourse (Leiden: Brill, 2007); John Lagerwey, China a Religious State (Hong Kong: Hong Kong University Press, 2010). There are some historians, however, who have argued that the tributary system was a myth and thus a product of “Orientalist ide- ology”. See Peter C. Perdue, “The Tenacious Tributary System,” Journal of Contemporary China 24 (2015): 1002–1014. 74 Chiung-Chiu Huang and Chih-yu Shih, Harmonious Intervention: China’s Quest for Rela- tional Security (Farnham: Ashgate, 2014).
75 Xuetong Yan, “Political Leadership and Power Redistribution,” Chinese Journal of Interna- tional Politics 16 (2016): 1–26. 76 Xi Jinping, The Governance of China (Beijing: Foreign Languages Press, 2014), 103. Such domestic agenda has opposite directions when it comes to the realisation of civil and political rights and rights in the socio-economic and environmental realm. Institution- ally too, much reform other than the anti-corruption campaign has not brought further constitutionalism back into picture nor has it refined the political structure, leadership and relationship of the cpc with the other organs of state power. See Ling Li, “‘Rule of Law’ in a Party-State: A Conceptual Interpretive Framework of the Constitutional Reality of China,” Asian Journal of Law and Society 2 (2015): 93–113; Carl Minzner, “China’s Turn Against Law,” American Journal of Comparative Law 59 (2011): 935–984. 77 Agreement on the New Development Bank (15 July 2013); Asian Infrastructure Investment Bank, Articles of Agreement (29 June 2015). 78 Xi Jinping, The Governance of China (Beijing: Foreign Languages Press, 2014), 315, 321.
C China and the Quality of Its Relational Governance Regardless of the institutional or intergovernmental form of China’s relational governance to pursue its sovereign and communitarian goals in accordance with its communist ideology and Five Principles of Peaceful Coexistence, there are a number of determinants which inform the quality of its relational gover- nance accordingly – even in antagonistic scenarios. They are process-oriented, trust-driven and long-term. The presence and absence of each of these mutually reinforcing – and thus complementary – characteristics define the quality of the relationships that China entertains with its “friends” and “enemies”. From a realist, liberal or constructivist perspective, these conditions have equally proven to be indispensable in the realisation respectively of China’s pursuit of power, its desire to cooperate for its peace and development goals and a harmonious world order whether against, inside, alongside or through other global and regional institutional players or powerful states. Yaqing Qin’s theory on relational governance will be the vantage point to discuss the quality of China’s relational governance.
1 Process-Oriented The negotiation of socio-political arrangements by states on the international plane and within regional settings requires substantial commitment by all par- ties concerned to invest in their relationships towards a common understand- ing of a set of norms whose evolution and practice determine and underscore the reciprocal behaviour of each party towards the creation, development, in- terpretation and application of such norms within a given context. The latter context – in particular from Chinese relational thought – is ever changing and dynamic and on its turn, shapes the identity and thus interactions between various players on the international scene. Such a complementary perspective necessarily embraces transformation as an inherent quality across the differ- ent sets of its units of analysis, namely within the individual actor, the indi- vidual rule and the relationship between actors which underpin the creation, development, interpretation and application of international norms. While such norms are intended to ensure predictability and transparency, their so- called universality from the relational governance perspective has a limit that it seeks to address.
In this respect, unlike rule-based governance that highlights the impor- tance of the static quality of international law to govern actors on the inter- national plane once and for all and everywhere, relational governance stresses the contextualization of international law from the moment of its creation, throughout its consecutive developments, interpretations and applications. This implies an ongoing process of change and continuity of the norm within a given context and moment in history. Those spatial and temporal dimen- sions, which are themselves subject to change, influence how expectations of actors on the international plane converge or rather diverge over the course of time and in different places in this world. Indeed, a human morality which is the cornerstone of the development of norms both before domestic and in- ternational constituencies differs significantly and continues to be the cause of friction between various domestic and international players. Existing and future norms suffer from such divisions – ideological and religious alike – and affect international and regional cooperation, orders and governance. Consequently, from the relational governance perspective, the contextual- ization of cooperation, order and governance resides in relationality. It takes the relationship as the premise that is indispensable to fostering cooperation, order and governance – both as means and sites where relationships come to fruition or are curtailed. Without relationships, none of those can exist and especially the norms which regulate substantive and procedural rights and ob- ligations between sovereigns and vis-à-vis their respective international and regional communities. Without any relationship, actors on the international plane cannot possibly negotiate such arrangements that would determine how rights and responsibilities are to be divided and the extent of those.79 This requires constant coordination and consultation between actors given the changes and uncertainties within their environment and over time that mutu- ally affect themselves and their relationships. Moreover, by virtue of shared ties and participation in an institutional and intergovernmental framework can states increase their communication and thus understanding about each other’s conflicting interests. Those are all process-oriented and -intensive en- deavours that presuppose responsible action of all actors involved and affected to establish, maintain and restore cooperative and qualitative relationships in the first place rather than control them through a fixed set of laws.
2 Trust-Driven On a global and regional scale, reciprocal behaviour is primordial to the out- come of a complex process of negotiation of such arrangements that are built
79 Yaqing Qin, “Rule, Rules, and Relations: Towards a Synthetic Approach to Governance,” Chinese Journal of International Politics 4 (2011): 133.
80 Vincent Charles Keating and Jan Ruzicka, “Trusting Relationships in International Poli- tics: No Need to Hedge,” Review of International Studies 40 (2014): 753–770; Brian Rathbun, “Before Hegemony: Generalised Trust and the Creation and Design of International Secu- rity Organizations,” International Organization 65 (2011): 243–273; Aaron M. Hoffman, “A Conceptualization of Trust in International Relations,” European Journal of International Relations 8 (2002): 377; Akbar Zaheer, Bill McEvily and Vincenzo Perrone, “Does Trust Matter? Exploring the Effects of Interorganizational and Interpersonal Trust on Perfor- mance,” Organization Science 9 (1998): 141–159; Robert L. Swinth, “The Establishment of the Trust Relationship,” Journal of Conflict Resolution 11 (1967): 343. 81 David De Cremer, “Understanding Trust, in China and the West,” Harvard Business Review , 11 February 2015, https://hbr.org/2015/02/understanding-trust-in-china-and-the- west# (accessed 1 June 2017).
3 Long-Term The building, maintenance and restoration of relationships between interna- tional actors demand a great deal of time as to show commitment to the im- portance of the relationship as an end and not merely as a means in itself. The very process-oriented perspective of relational governance implicates a long- term view on the investment of efforts and other resources into relationships. The concept of time in those negotiation processes of arrangements between actors on the international place and within regional contexts presupposes a cyclic pattern like the relationships themselves which are naturally evolving into different directions. The objective to balance opposing interests involves not only an internalization of one party’s own goals but also a deeper under- standing of the other counterpart or opponent of its interests too. The interests on both or all sides may not always converge or have to at a given moment in history or geography. What matters is to master over the course of time those contradictions and seek compromise accordingly. In those long-term processes of relation-building, states can through their increased knowledge about themselves and the other refine, improve and
82 Yaqing Qin, “Rule, Rules, and Relations: Towards a Synthetic Approach to Governance,” Chinese Journal of International Politics 4 (2011): 138–139.
A Relational Normativity and International Law Relational normativity has its origins in legal and political philosophy that study questions regarding the (sources of) normativity of legal orders namely legality and morality which underpin such orders. The domestic norm itself is
83 Yaqing Qin, “Continuity through Change: Background Knowledge and China’s Interna- tional Strategy,” Chinese Journal of International Politics 7 (2014): 287.
84 See Christine M. Korsgaard, The Sources of Normativity (Cambridge: University Press, 1996); Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (Oxford: Oxford University Press, 2013); Jay Wallace, “Reasons, Relations, and Commands: Reflections on Darwall,” Ethics 118 (2007): 24–36. 85 Friedrich V. Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law (Cambridge: Cambridge University Press, 2014); Harlan G. Cohen, “Finding International Law: Rethinking the Doctrine of the Sources,” Iowa Law Review 93 (2007): 65–129; Friedrich V. Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cam- bridge University Press, 1989).
86 Wolfgang Friedmann, The Changing Structure of International Law (New York: Columbia University Press, 1964), 367. 87 Sienho Yee, “The International Law of Co-progressiveness: The Descriptive Observation, the Normative Position and Some Core Principles,” Chinese Journal of International Law 13 (2014): 486, 496; Sienho Yee, “Xiang Gongjin Guojifa Maibu (‘Towards an International Law of Co-progressiveness’),” Xian Zhengzhi Xueyuan Xuebao (Journal of Xian Politics In- stitute) 20 (2007): 55–68. Other Chinese scholars have used Yee’s theory to describe the evolution of the international legal order and in particular with respect to China’s con- tribution of its idea of a harmonious world. See Cungang Wang, “Lun Zhongguo Waijiao Hexin Jiazhi Guan (‘On China’s Diplomatic Core Values’),” Shijie Jingji yu Zhengzhi (World Economics and Politics) 5 (2015): 4–20; Zhipeng He, “Cong ‘Heping yu Fazhan’ dao ‘Hexie Fazhan’: Guojifa Jiazhiguan de Yanjin yu Zhongguo Lichang Tiaoshi (‘From “Peace and Development” to “Harmonious Development”: The Innovation of Mega-Value in Interna- tional Law and the Position of China’),” Jinlin Daxue Shehui (Kexue Xuebao) (Jinlin Univer- sity Journal (Social Sciences Edition)) 51 (2013): 115–123; Jian He and Qi Zhou, “Jianfou Zhuyi Shiye zhong de Gongjin Guojifa yu Hexie Shijie (‘Co-progressive International Law and Harmonious World from the Perspective of Constructivism’),” Dangdai Shijie yu Shehui Zhuyi (Contemporary World & Socialism) 6 (2011): 115–118; Xiumei Wang, “Cong ‘Gongjin Guojifa’ Kan Guojifa de Fazhan Qushi (‘The Trend of International Law in Co-progressive International Law Perspective’),” Lanzhou Daxue Xuebao (Shehui Kexue Ban) (Journal of Lanzhou University (Social Sciences)) 38 (2010): 91–99.
88 While the (New) International Legal Process School has focused on the dynamic decision- making processes within the seat of international bodies and courts and the normative values that have informed the existing norms of international law – as matter of method rather than theory, its purposive interpretation has ascribed (non-) compliance with in- ternational law on behalf of a state to the latter’s degree of internalisation of those values of international society, namely to settle disputes peacefully. Unlike tornil, it does not focus on the relationships between actors on the international plane underpinning (in- terdependently) the normativity of the other sources of international law. See Harold H. Koh, “Internalization through Socialization,” Duke Law Journal 54 (2005) 975–982; Mary Ellen O’Connell, “New International Legal Process,” Studies in Transnational Legal Policy 36 (2004): 79–107; Harold H. Koh, “Why Do Nations Obey International Law?,” Yale Law Journal 106 (1997) 2599–2659; Abram Chayes and Antonia Handler Chayes, The New Sov- ereignty (Cambridge: Harvard University Press, 1995); Abram Chayes, Thomas Ehrlich and Andreas F. Lowenfeld, International Legal Process: Materials for an Introductory Course (Boston: Little Brown, 1968).
B China and the Creation and Development of International Law China’s communist ideology and relational governance approach continue to inform the creation and evolution of international legal norms in general and the international legal order in particular. Since its establishment, the
89 Orde F. Kittrie, Lawfare: Law as a Weapon of War (Oxford: Oxford University Press, 2016), 162–196; Matthias Vanhullebusch and Wei Shen, “China’s Air Defence Identification Zone: Building Security through Lawfare,” China Review 16 (2016): 121–150. 90 Timo Kivimäki, “Soft Power and Global Governance with Chinese Characteristics,” Chi- nese Journal of International Politics 7 (2014): 424.
C China and the Interpretation and Application of International Law China’s differential attitude towards various actors on the international plane has not only shaped how China perceives the creation and evolution of interna- tional legal norms – from its communist agenda and its relational governance perspective; it equally affects its interpretation and application of existing in- ternational laws towards those different actors. Yet, another dimension must be considered regarding the interpretation and application of international law in particular in China’s capacity and permanent membership to the un Security Council. There too, tornil can explain how China is not only con- cerned about the immediate interpretation and application of international law in the seat of the Council but more importantly by its consequences for the parties on the ground whose case has triggered the mandate of the Council to step in and maintain and restore international peace and security accordingly. This is also the case for the decision-making processes in other international and regional organisations where China is a member deciding alone – whether or not through a veto – and with others about the fate of a particular nation and its peoples by virtue of the interpretation and application of international norms that either favour sovereignty and/or community interests. The latter’s contextualization is an essential part of the discussion on the normativity of international law. In order to strengthen the legality and the morality of certain norms in particular in the field of collective security and human rights, relational governance will play an important role at the stage of
Five Principles of Peaceful Coexistence, in particular, can instead support the decision-making processes to overcome such challenges both in time – i.e. un- certainty in the short-term – and in space – i.e. beyond universalism.91 In this regard, acting within a spirit that mutually benefits decision-makers and parties on the ground as well as their interdependent relations per se can strengthen their respective relationships and as a result the normative basis of international norms in the long-term. This flexibility, however, can prevent the erosion of international norms along with a fixed pattern of certain stan- dards and practices that can resist the dynamic forces within an ever-changing international environment. Nonetheless, such openness towards the underly- ing context in which international norms are developing, interpreted and ap- plied may not necessarily jeopardise legal certainty and predictability and “be better suited to the dynamic character of international law-making processes,” as Bianchi points out.92 Therefore, the participation of decision-makers and parties on the ground in the very process of interpreting and applying inter- national law will be crucial to ensuring that norms at those various levels can become internalised by all shareholders and stakeholders and that they can be enforced accordingly.
Conclusion
China’s attitude towards international norms has brought to the surface fears and hopes, assumptions and expectations – all of which are invariably conditioned by particular ideologies, epistemologies, and academic disci- plines. Those dichotomies reflect competing visions about the premises of the international legal and political order and the future of its normative trajec- tory. Through those different lenses, power and law, hegemony and multilat- eralism have more than ever been anchored into the fabric of international relations within various regional and international settings and institutions. They have compromised the prospects to transcend such vicious circles and re-establish communication between the West and the China. Yet, across time and space encounters between actors on the international plane including states, inter- and non-governmental organisations and the members of civil
91 Vaughan Lowe, “The Politics of Law-Making: Are the Method and Character of Norm Cre- ation Changing?,” in Michael Byers, ed., The Role of Law in International Politics: Essays in International Law (Oxford: Oxford University Press, 2000), 215. 92 Andrea Bianchi, “Ad-hocism and the Rule of Law,” European Journal of International Law 13 (2002): 270.
society – whether conflictual or amicable – have been on the rise too. The re- sulting cross-fertilisation of values and ideas in all kinds of sectors of private and public life is not sufficient to promote a better understanding between peoples and their political leadership in particular in times of global uncer- tainties. In the realm of international law, a growing sense of acquiescence towards the relativity of international law’s legality and morality has been creeping in the temporal and spatial gaps that separate nations as well as re- gional and international institutions. China’s international legal behaviour and argument have been exemplary to that effect and have been a growing source of frustration. Western and Chinese international relations and legal scholars have tried to pin down China’s inconsistencies pursuant to their specific taxonomies within their respective disciplinary divides. This thesis argues that one has to update the current approaches so that they can capture the complexity of the evolv- ing relationships between China and other actors on the international plane as well as their impact upon the distinctive processes of international law- making from the creation of norms until their interpretation and application within specific cases and through various decision-making processes. In order to bridge the fundamental differences in the ways reality – including political reality – is perceived and processed, it has sought to unveil the underlying dis- parities within their corresponding Western and Chinese epistemologies. They are the fountainhead of the academic disciplines in the West and in China. Their distinctive units of analysis, respectively the actor and its relationship with others, have an immediate influence on the analysis of China’s behav- iour that is either object-focused or context-oriented. The theory of relational governance has been instrumental in framing China’s participation in interna- tional society and in outlining the essential guarantees to governing stable re- lationships with other actors on the international plane, i.e. process-oriented, trust-driven and long-term. This conception, however, has not been conclusive to enhance legal cer- tainties in an ever-changing international environment that rule-based gov- ernance pursues to secure. Therefore, this thesis develops tornil and inserts relational governance as a means and an end to strengthen the normativity of the sources of international law, i.e. legality and morality. It postulates that the actual relationship is also a third interdependent source of normativity. In this respect, without solid relationships, the application of international norms will not find fertile soil and can adversely affect the relationship as well as their own legality and morality. Such reconciliation has combined the strengths of Western and Chinese epistemologies, international relations and legal theories as well as a rule- and relation-based governance that can offer a
Introduction
Now more than ever, China’s participation in international and regional se- curity organisations and bodies – such as the un Security Council and the Shanghai Cooperation Organisation (sco), has become the subject of scrutiny amongst international law and relations scholars. Such scholars have sought to study and draw conclusions regarding China’s participation in those interna- tional and regional security organisations and bodies, and the positions China has taken regarding the development of regulatory frameworks which govern the mandate as well as the norms on the use of force in international affairs. Their studies have increasingly been used to test the veracity of China’s peace- ful rise, development and harmonious world order. Although China’s military strengths can barely match the capacity of other Western powers, its commit- ment to further invest, modernise and reform its armed forces on land, at sea and in the air, confirms some of the predictions that offensive realists have an- ticipated. Because of the present technological gap that exists between its mili- tary (People’s Liberation Army (pla)) and those of its adversaries, China has utilized international law on the use of force or so-called lawfare – particularly within its neighbourhood – to ensure that its defensive and offensive military capacities can be further projected on the international plane and through the various international institutions – in particular, the Security Council.1
1 Jianwei Wang, “China’s Evolving Attitudes and Approaches Toward un Collective Security,” in Gilford John Ikenberry, Jisi Wang and Feng Zhu, eds., America, China and the Struggle for World Order: Ideas, Traditions, Historical Legacies, and Global Visions (New York: Palgrave Macmillan, 2015), 103–132; Joel Wuthnow, Chinese Diplomacy and the un Security Council: Be- yond the Veto (London; New York: Routledge, 2013); Phil C.W. Chan, “A Keen Observer of the International Rule of Law? International Law in China’s Voting Behaviour and Argumenta- tion in the United Nations Security Council,” Leiden Journal of International Law 26 (2013): 875–907; Christopher Holland, “Chinese Attitudes to International Law: China, the Security Council, Sovereignty, and Intervention,” nyu Journal of International Law & Politics Online Forum (2012): 2–44; Joel Wuthnow, “China and the Processes of Cooperation in un Security Council Deliberations,” Chinese Journal of International Politics 3 (2010): 55–77; Yu Xintian, “China and Northeast Asian Regional Security Cooperation,” Asia-Pacific Review 12 (2005): 30–38; Samuel S. Kim, China, the United Nations and World Order (Princeton: Princeton Uni- versity Press, 1979), 178–241; J.E.S. Fawcett, “China and the Security Council,” International
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In this regard, concerning the discharge of the Security Council’s mandate to maintain and restore international peace and security,2 the members of the Security Council seek to find a balance between military power and collective security. The latter is grounded in an international legal regime that, on the one hand, prohibits aggression against and interference in the domestic af- fairs of sovereign states,3 while, on the other hand, ensures the right of states to individual and collective self-defence.4 The Council’s mission to evaluate, daily, such competing interests is deeply rooted in the historical experiences of the World Wars. After the latter global conflicts, the vision of a future world order had changed once and for all the scourges of war. The new international political order had to take into account international law that would become an inherent part of the institutionalisation and regulation of relationships be- tween states, between states and international/regional organisations as well as between international/regional organisations.5 From then onwards, the Se- curity Council would bear the primary responsibility to guarantee collective security on the international plane.6 Yet, such crisis management had soon met
Law Quarterly 3 (1950): 581–586. Finnemore had also provided a framework on military inter- vention in order to establish the juxtaposing interests amongst the members of the interna- tional community regarding the grounds to use force legitimately, its implications for peace and war as well as the consequences for national sovereignty. See Martha Finnemore, The Purpose of Intervention: Changing Beliefs about the Use of Force (Ithaca: Cornell University Press, 2003). 2 1945 un Charter, Art. 39–51. 3 1945 un Charter, Art. 2(4). 4 1945 un Charter, Art. 51. 5 1945 un Charter, Preamble. 6 Dongyan Li, “Lianheguo yu Guoji Heping yu Anquan de Weihe (‘The United Nations and the Maintenance of International Peace and Security’),” Shijie Jingji yu Zhengzhi (World Econom- ics and Politics) 4 (2015): 4–22; J. Samuel Barkin, International Organization: Theories and In- stitutions (New York: Palgrave Macmillan, 2013), 77–86; Alexander Orakhelashvili, Collective Security (Oxford: Oxford University Press, 2011); Robert Kolb, “The Eternal Problem of Collec- tive Security: From the League of Nations to the United Nations,” Refugee Survey Quarterly 26 (2007): 220–225; Mariano-Florentino Cuellar, “Reflections on Sovereignty and Collective Secu- rity,” Stanford Journal of International Law 40 (2004): 211–258; Hanspeter Neuhold, “Collective Security After ‘Operation Allied Force’,” Max Planck Yearbook of United Nations Law 4 (2000): 73–106; Martii Koskenniemi, “The Place of Law in Collective Security,” Michigan Journal of International Law 17 (1995–1996): 455–490; George Down, ed., Collective Security Beyond the Cold War (Ann Arbor: University of Michigan Press, 1994); Max Andrew Bennett and Joseph Lepgold, “Reinventing Collective Security after the Cold War and Gulf Conflict,” Political Sci- ence Quarterly 108 (1993): 213–237; Josef Joffe, “Collective Security: Wave of the Future or Hol- low Dream?,” Harvard International Review 13 (1991): 25–27; Sally Morphet, “Resolutions and
Vetoes in the un Security Council: Their Relevance and Significance,” Review of International Studies 16 (1990): 341–359; Benjamin V. Cohen, “The Quest for Collective Security,” Proceedings of the American Society of International Law 63 (1969): 55–66; Ernst B. Haas, “Types of Collec- tive Security: An Examination of Operational Concepts,” American Political Science Review 49 (1955): 40–62; Howard C. Johnson and Gerhart Niemeyer, “Collective Security: The Validity of an Idea,” International Organization 8 (1954): 19–35; Charles G. Fenwick, Lester H. Woolsey, Stanley K. Hornbeck, George M. Morris and Ralph E. Flanders, “The Development of Collec- tive Security, 1914–1954,” Proceedings of the American Society of International Law 48 (1954): 2– 22; Norman Kogan, “United Nations: Agent of Collective Security?,” Yale Law Journal 61 (1952): 1–13. 7 David M. Jones and Nicole Jenne, “Weak States’ Regionalism: asean and the Limits of Secu- rity Cooperation in Pacific Asia,” International Relations of the Asia-Pacific 16 (2016): 209–240; Nanako Shimizu, “Contemplating the Future of Collective Security in East Asia,” Korean Journal of International and Comparative Law 1 (2013): 84–91; Richard H. Solomon, “Asian Ar- chitecture: The us in the Asia-Pacific Community,” Harvard International Review 16 (1994): 26–29; Arnold L. Horelick, “The Soviet Union’s Asian Collective Security Proposal: A Club in Search of Members,” Pacific Affairs 47 (1974): 269–285; Alexander O. Ghebhardt, “The So- viet System of Collective Security in Asia,” Asian Survey 13 (1973): 1075–1091; Ernest A. Gross, “Collective Security and American Diplomacy in the 1970s,” Virginia Journal of International Law 12 (1971): 1–34; Josef L. Kunz, “The Idea of ‘Collective Security’ in Pan-American Develop- ments,” Western Political Quarterly 6 (1953): 658–679; D.F. Fleming, “The Soviet Union and Collective Security,” Journal of Politics 10 (1948): 117–130; Hans W. Weigert, “U.S. Strategic Bases and Collective Security,” Foreign Affairs 252 (1947): 250–262; David Nelson Rowe, “Collective Security in the Pacific: An American View,” Pacific Affairs 18 (1945): 5–21. 8 Dongyan Li, “Quanqiu Anquan Zhili yu Zhongguo de Xuanze (‘Global Security Governance and China’s Options’),” Shijie Jingji yu Zhengzhi (World Economics and Politics) 4 (2013): 40–54; Yulia Nikitina “The Collective Security Treaty Organization Through the Looking Glass,” Prob- lems of Post-Communism 59 (2012): 41–52; Barry Buzan and Ole Wæver, Regions and Powers:
The Structure of International Security (Cambridge: Cambridge University Press, 2003); Tarci- sio Gazzini, “nato’s Role in the Collective Security System,” Journal of Conflict & Security Law 8 (2003): 231–263; David S. Yost, “The New nato and Collective Security,” Survival 40 (1998): 135–160. 9 Yi Dai, Lianheguo Jiti Anquan Zhidu Gaige Wenti Yanjiu (Study on un Collective Security Re- form) (Beijing: Zhongguo Shehui Kexue Chubanshe (China Social Science Press), 2014); Sabine Hassler, Reforming the un Security Council Membership: The Illusion of Representa- tiveness (London; New York: Routledge, 2013); Dongxiao Chen, Quanqiu Anquan Zhili yu Lian- heguo Anquan Jizhi Gaige (Global Security Governance and the Reform of un Security Regime) (Beijing: Shishi Chubanshe (Current Affairs Press), 2012); Lauri Mälksoo, “Great Powers Then and Now: Security Council Reform and Responses to Threats to Peace and Security,” in Peter G. Danchin and Horst Fischer (eds.) United Nations Reform and the New Collective Security (Cambridge: Cambridge University Press, 2010), 94–114; Dimitris Bourantonis, The History and Politics of un Security Council Reform (London; New York: Routledge, 2005).
Within the specific context of collective security, one of China’s Five Princi- ples of Peaceful Coexistence, i.e. the principle of mutual non-aggression, aligns with the legal prohibition to threaten or use force against the territorial integ- rity and political independence of nation states.10 In its role as a permanent member of the Security Council, China has decided conservatively regarding the use of force in international affairs beyond the context of self-defence and without the consent of the target state by another state or a coalition of states – in particular in respect of the operationalization of the Responsibility to Protect (R2P). China has never joined such kind of interventionist measures itself. Nonetheless, China has used force – also beyond self-defence – on the international plane, namely in the Korean War (1950–1953), the Sino-Indian War (1962) – prior to the reinstatement of its un membership in 1971 – and the Sino-Vietnam War (1979). Clearly, from the conflictual paradigm, China’s stance on non-interference and the prohibition on the use of force by others is diametrically opposed with its own behaviour closer at home. As a result, it questions the sincerity of its Five Principles of Peaceful Coexistence and the normative basis of the prohibition of aggression under international law globally – retrospectively and prospectively alike. From the complementarity paradigm, however, the development of the norms that underpin the collective security regime as well as their consecu- tive interpretation and application by global and regional actors – and China in particular – must be further contextualised. Therefore, the normativity of the international law on the use of force on the international plane shall be addressed from tornil. This perspective considers the legality of the prohi- bition of aggression, the right of individual and collective self-defence – and potentially pre-emptive self-defence – as well as the morality to use of force beyond self-defence when operationalizing R2P. It also treats the actual relation- ship between various actors on the international plane – both at the decision- making level and on the battlefield – as one of the three sources of normativity of the law on the use of force, which underpins the collective security regime and international legal and political order. From the perspective of relational governance, the nature of that relationship differs along the spectrum of full equality and inequality between actors on the international plane and must be managed in such a way as to safeguard the sovereign equality between na- tion states in accordance with the un Charter and Five Principles of Peaceful Coexistence – something which was particularly difficult for the world’s su- perpowers to envision during the Cold War. Absent such equal relationship,
10 1945 un Charter, Art. 2(4).
A China and the War of Resistance against Japan The prelude to China’s war of resistance against Japan dated back as early as 18 September 1931 when Japanese armed forces attacked and occupied vari- ous places of strategic interest in the Republic of China’s Southern Manchuria under the pretext of restoring law and order following a staged attack – a false
11 1919 League of Nations Covenant, Art. 11: “Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise the Secretary General shall on the request of any Member of the League forthwith summon a meeting of the Council. It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting interna- tional relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.” 12 League of Nations, “Appeal by the Chinese Government”, Report of the Commission of Inquiry, Geneva, 1 October 1932, Doc. C. 663. M. 320. 1932 vii, 5 (hereinafter 1932 Report of the Lytton Commission). See also Chengting T. Wang, “Japan’s Aggression upon China,” World Affairs 100 (1937): 215; Stephen G. Craft, V.K. Wellington Koo and the Emergence of Modern China (Lexington, ky: University Press of Kentucky, 2004), 98. 13 u.s. Department of State, Peace and War: United States Foreign Policy, 1931–1941 (Washing- ton, d.c.: u.s. Government Printing Office, 1943), 3–8. 14 1932 Report of the Lytton Commission, 97. 15 1932 Report of the Lytton Commission, 71, 127.
Nations Covenant,16 the 1922 Nine-Power Treaty17 and the 1928 Kellogg-Briand Pact instead. The latter prohibits the “recourse namely to war for the solu- tion of international controversies, and [its use], as an instrument of national policy”.18 Those violations as stated earlier on by the Council of the League of Na- tions on 11 March 1932 could not be accepted by any of the members of the League. In this respect, the Assembly of the League of Nations further de- nounced Japan’s refusal to comply with the Council’s resolutions of 30 Sep- tember and 10 December 1931, namely to withdraw its troops from the South Manchuria Railway. In its resolution of 24 February 1933, it adopted the report of the Lytton Commission and implicitly ruled out that Japan’s inaction would be a means to prevent injury to its interests and be a ground for self-defence. The object of Japan’s use of force was clearly different from such goal and as a result constituted aggression.19 The Japanese representative walked out of the Assembly’s meeting that condemned Japan’s aggression. One month lat- er, on 27 March 1933, Japan gave a formal notice of its withdrawal from the League.20 In his final address, the Japanese diplomat, Mr Yosuke Matsuoka, deplored the unanimous condemnation of the members of the Assembly and stressed that – despite Japan’s commitment to world peace – the resolution of Sino-Japanese differences over Manchuria could no longer be resolved within the League. He continued that:
16 1919 League of Nations Covenant, Arts. 11, 12, 13, 15, 16. 17 1922 Treaty between the United of States of America, Belgium, the British Empire, China, France, Italy, Japan, the Netherlands, and Portugal, Art. 1: “The Contracting Powers, other than China, agree: (1) To respect the sovereignty, the independence, and the territorial and administra- tive integrity of China; (2) To provide the fullest and most unembarrassed opportunity to China to develop and maintain for herself an effective and stable government; (3) To use their influence for the purpose of effectually establishing and maintaining the principle of equal opportunity for the commerce and industry of all nations through- out the territory of China. […]” 18 1928 Treaty between the United States and other Powers providing for the Renunciation of War as an Instrument of National Policy, Art. ii. See also 1932 Report of the Lytton Commission, 127. 19 Quincy Wright, “The Concept of Aggression in International Law,” American Journal of International Law 29 (1935): 389. 20 u.s. Department of State, Peace and War: United States Foreign Policy, 1931–1941 (Washing- ton, d.c.: u.s. Government Printing Office, 1943), 3–8.
The Japanese Government will, however, make their utmost efforts for the establishment of peace in the Far East and for the maintenance and strengthening of good and cordial relations with other Powers. I need hardly add that the Japanese Government persist in their desire to con- tribute to human welfare and will continue their policy of co-operating in all sincerity in the work dedicated to world peace, in so far as such co-operation is possible in the circumstances created by the unfortunate adoption of the Report.21
A peaceful resolution of this conflict, however – as pointed out by the Lytton Commission – would have to balance between those international commitments that prohibit aggression on the international plane and the re- spect for the territorial integrity of the Republic of China. The impossibility to restore the territorial sovereignty in its initial shape, i.e. before the establish- ment of Manchukuo, had instilled greater fears not only upon the potential disintegration of the Republic – given the existing conflict at that time be- tween the Kuomintang (kmt) and the communists rebels that could be fur- ther exacerbated by “international rivalries” – but also upon the integrity of the international treaties seeking to maintain international peace and security at the same time.22 In its response to the earlier action of the League of Nations regarding the Manchuria Incident, Japan had also warned about China’s inter- nal division and proneness to fall within the sphere of influence of the ussr. Its intervention was merely aimed to prevent such chaos from unfolding and to restore peace and stability in the Far East.23 Nevertheless, Japan’s imperial ambitions in the Far East came to further fruition with the outbreak of the Second Sino-Japanese War on 7 July 1937 that would last until 9 September 1945 with the formal surrender of Japanese troops in the Republic of China. Prior to the Marco Polo Incident of 7 July 1937 that opened another front between the kmt and Japanese armed forces, the kmt and Communist Party of China (cpc) that had fought each other since the 1920s24 had finally concluded the so-called Sian (Xi’an) Agreement on 24
21 Declaration of the Japanese Government following the Vote of the Assembly on the Re- port submitted by the Committee of Nineteen (Geneva, 24 February 1933). 22 1932 Report of the Lytton Commission, 129. 23 Address Delivered at the Ninth Plenary Meeting of the Assembly (6 December 1932). 24 There have been three episodes in the fight between the kmt and the cpc, namely the First Revolutionary War (1924–1927), the Second Revolutionary War (1927–1937) and the Third Revolutionary War (1945–1949).
December 1936 that put an end – at least temporarily – to their struggle and decided to fight a united front against their common Japanese enemy.25 The restoration of the territorial integrity against the background of internal and external rivalries respectively between the kmt and cpc and against Japan would now become a possibility. Something which could not be envisaged en- tirely before – as the Lytton Commission had reported. Moreover, the joint ef- forts on behalf of the kmt and cpc to face their external enemy would further instil greater confidence in the prospects to repel the Japanese aggression in the first place and reassure future allies to support their struggle on the Eastern front of the Second World War.26 Absent the harmonisation of the relationship between the protagonists on the Chinese side, it would be more difficult to pull the necessary political capital and military resources – domestically and internationally alike – together to ensure compliance with the fundamental rules of the international legal and political order of that time, namely the re- spect for the territorial integrity of the nation state27 and the prohibition of aggression.28 In this respect, as early as 1 January 1942, the Declaration by the United Na- tions29 to which the Republic of China was a signatory party had in more gen- eral terms laid down the commitment of Allied Powers to fight together in the “common struggle against savage and brutal forces seeking to subjugate the world”. It had built upon the earlier commitments of the Atlantic Charter of 14 August 1941 that was concluded between the us and the uk, which both sought to abandon the use of force and establish full disarmament of the ag- gressive nations.30 On 12 February 1943, at the Casablanca Conference between
25 Mao Zedong, Selected Works of Mao Zedong Vol. 2 (Beijing: Foreign Languages Press, 1965), 36; S. Lautenschlager, “China’s War of Resistance and Japan’s Dilemma,” The Indian Jour- nal of Political Science 2 (1941): 306. 26 This was particularly crucial since the League of Nations deferred the appeal of the Chi- nese representative to bring the matter before the eyes of the international community to the Nine-Power Treaty Conference that convened in Brussels from 3–24 November 1937 yet did not bring about any results to stop the Japanese aggression through an interna- tional intervention on behalf of the signatory parties of the Nine-Power Treaty. 27 1919 League of Nations Covenant, Art. 10. 28 1928 Treaty between the United States and other Powers providing for the Renunciation of War as an Instrument of National Policy. 29 1942 Joint Declaration by the United States, the United Kingdom, the Union of Soviet Socialist Republics, China, Australia, Belgium, Canada, Costa Rica, Cuba, Czechoslova- kia, Dominican Republic, El Salvador, Greece, Guatemala, Haiti, Honduras, India, Lux- embourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Poland, South Africa, Yugoslavia. 30 1941 Atlantic Charter.
Allied Powers, decisive actions were taken to further initiate offensive opera- tions against the Japanese invasion of China.31 With the prior u.s. Declaration of the State of War with Japan on 8 December 1941,32 the Cairo Declaration adopted on 1 December 1943 by the us, the uk and the Republic of China reaf- firmed the new coalition’s goal to “restrain and punish the aggression of Japan” and “persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan”.33 Prior to the formal surrender of Japan on 9 September 1945,34 the Allied Powers, i.e. the us, the uk and the Republic of China, gave Japan the opportunity to surrender. With the adoption of their Potsdam Declaration on 26 July 1945, they had made their plans clear about the “new order of peace, security and justice” that could not come into being “until irresponsible [Japanese] militarism [was] driven from the world [while] the alternative for Japan [was] prompt and utter destruction”.35 The failure of the League of Nations – despite earlier appeals of the Chinese government to internationalise Japan’s aggression in 1931 and 1937 before its members in light of the violation of the League’s Covenant, the Kellogg-Briand Pact and the Nine-Power Treaty – had brought the Allied Powers to establish a new international organisation that could ensure the respect for interna- tional norms by virtue of collective security mechanisms. In this regard, at the conclusion of the United Nations Conference on International Organisation, the un Charter was signed in San Francisco on 26 June 1945. The Charter put in place a mechanism for the un Security Council to honour the prohibition of aggression under international law whereby the members of the organisa- tion would contribute through military assistance in the enforcement of the Council’s decision to respond to the illegal use of force – outside the scope of individual and collective self-defence.36 Yet, securing the world in practice, however, has become ever subject to different regional configurations. In the Far East, the us had immediately in the aftermath of the war affirmed its secu- rity presence in the Asia-Pacific and would be the primary guarantor of peace and security in that region.37 Such compartmentalization of a universal collective security regime along regional blocs would in the long-term impede its effectiveness and legitimacy
31 1943 Casablanca Conference. 32 1941 u.s. Declaration of the State of War with Japan. 33 1943 Cairo Declaration. 34 Nazi-Germany had already formally surrendered on 8 May 1945. 35 1945 Potsdam Declaration. 36 1945 un Charter, Art. 45. 37 David Nelson Rowe, “Collective Security in the Pacific: An American View,” Pacific Affairs 18 (1945): 16.
B China and the Korean War During the later phase of the Third Revolutionary War, the cpc had already called upon a united front against the “imperialist aggression” of the us that had replaced fascism after the end of the Second World War. The support of the us to the kmt had only further strengthened the cpc’s resolve to seek for a united front with the ussr to prevent a “new world war” with the us from
38 1945 un Charter, Arts. 23(1), 27(3). 39 Arguably, the ussr has always contested – beyond the capitalist and communist divides – the u.s. approach on the democratisation of the un whereby the us could solicit the sup- port of less important sovereigns to advance its agenda in the un and potentially against the interests of the ussr. The ussr however would rather see the un as an institution where the powerful nations, in particular the Allied Powers, would exercise their powers and where the other nations would comply with their decisions instead. The fact that the ussr had been expelled in 1939 from the League of Nations – which it had joined on 18 September 1934 – since it invaded neighbouring Finland, made it suspicious about membership to any international organisation. The ussr has been the only country that has been expelled from the League. See Denna Frank Fleming, “The Soviet Union and Collective Security,” The Journal of Politics 10 (1948): 127–128.
40 Mao Zedong, Selected Works of Mao Zedong, Vol. 4 (Beijing: Foreign Languages Press, 1965), 109, 285. 41 Jian Chen, China’s Road to the Korean War: The Making of the Sino-American Confrontation (New York: Columbia University Press, 1994), 25–26. 42 Karunakar Gupta, “How Did the Korean War Begin?,” China Quarterly 52 (1972): 699–716; see also Zhihua Shen, “China and the Dispatch of the Soviet Air Force: The Formation of the Chinese-Soviet-Korean Alliance in the Early Stage of the Korean War,” Journal of Strategic Studies 33 (2010): 211–230. 43 un Doc. S/RES/82 (25 June 1950). The ussr was absent in the meeting. 44 un Doc. S/RES/83 (27 June 1950). The ussr was absent in the meeting. 45 un Doc. S/RES/84 (7 July 1950). The ussr was absent in the meeting. 46 Peter Malanczuk, Akehurst’s Modern Introduction to International Law (London; New York: Routledge, 1997), 375; see also Leo Gross, “Voting in the Security Council: Abstention from Voting and Absence from Meeting,” Yale Law Journal 60 (1951): 209–257.
When the un Command led by the us landed in Incheon – outside Seoul – on 15 September 1950, the ussr returned to the Council’s table and threatened to veto future resolutions on the deployment of such a force. As a result, the un General Assembly adopted on 3 November 1950 its notorious Uniting for Peace resolution. It showed proof that the Assembly could also deal with interna- tional peace and security whenever the Council failed to assume its primary responsibility in the first place.47 On 31 January 1951, the Security Council for- mally decided to no longer be seized by the “Complaint of aggression upon the Republic of Korea”.48 Meanwhile, the prc became a belligerent party to the conflict in October 1950. As a matter of reciprocity and loyalty to the North Korean armed forces that had fought on its side in the Chinese civil war and to protect its own in- dustrial heartland in the Northeast,49 China supported them accordingly to repel, in their view, the aggression on behalf of the un Command forces.50 Although the Security Council invited the prc, who was not represented at the un, to participate in discussions regarding the Korean War, questions regard- ing the prc’s later intervening role remained unanswered.51 In any event, the absence of China’s most important communist ally and permanent member of the Security Council would not have changed its suspicion of unilateral actions of the capitalist nations within the siege of the Council. Moreover, in the eyes of the prc, the Council’s decision had led in the first place to such legal char- acterisation of the conflict that ultimately defined North Korea as being the aggressor and in second instance to the deployment of a united front aimed at North Korea and the prc (directly) and the ussr (indirectly). The way in which the General Assembly had sidestepped the Council, according to the Chinese position, would only confirm the intention of the capitalist bloc led by the us to undermine the unity, legitimacy and cred- ibility of the Security Council in the first place. The Assembly’s consecutive
47 un Doc. A/RES/377 (v) (3 November 1950). See Quincy Wright, “Collective Security in the Light of the Korean Experience,” Proceedings of the American Society of International Law 45 (1951): 172; Andrew J. Carswell, “Unblocking the un Security Council: The Uniting for Peace Resolution,” Journal of Conflict & Security Law 18 (2013): 453–480. 48 un Doc. S/RES/90 (31 January 1951). 49 Zhou Enlai, Selected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 60; see also Yufan Hao and Zhihai Zhai, “China’s Decision to Enter the Korean War: His- tory Revisited,” China Quarterly 121 (1990): 104. 50 Mao Zedong, Selected Works of Mao Zedong, Vol. 4 (Beijing: Foreign Languages Press, 1977), 43, 61. 51 un Doc. S/RES/88 (8 November 1950). The representative of the Republic of China how- ever voted three times against the adoption of this resolution. See un Doc. S/PV.520 (8 November 1950).
characterisation of the Chinese military operations in the Koreas itself − given the failure of the Security Council to exercise its primary responsibil- ity – showed further evidence of the capitalist bloc’s intention to denounce and discredit the anti-imperialist struggle within the world’s global meeting place. From 4 December 1950 onwards, the Assembly was also seized by those latest developments of Chinese involvement on the battlefield. It was deeply concerned about the Chinese intervention52 and finally determined that Chi- na through its “direct aid and assistance to those who were already commit- ting aggression in Korea and by engaging in hostilities against United Nations forces there, had itself engaged in aggression in Korea”. The General Assembly further called on China to stop its hostile operations and withdraw from the re- gion. At the same time, it affirmed “the determination of the United Nations to continue its action in Korea to meet the aggression”.53 At the end of the Korean War, it finally honoured the success of the first – and ultimately last – opera- tionalization of the collective security mechanism to “repel armed aggression” and its “proof of effectiveness” for the maintenance and restoration of interna- tional peace and security in the future.54 Conversely, Mao Zedong proclaimed victory against the u.s. aggression and imperialist forces and claimed to have prevented another world war.55 After countless numbers of civilians and military personnel had been in- jured or killed, and the Korean people had experienced the full destruction of the Koreas, the territorial integrity of North and South Korea at the end of the war stayed intact. Their common border along the 38th parallel (North) became further secured into what to this day is the world’s most infamous demilitarized zone. Similarly, to the Manchurian Incident, the Korean War equally juxtaposed international interests that were further exacerbated by a regional conflict. Those interests – as also the Report of the Lytton Commis- sion had suggested before – had to balance between the enforcement of the prohibition of the use of force outside the context of individual and collec- tive self-defence and of the respect of the territorial integrity of the nation state. In this conflict, however, the international rivals, i.e. the capitalist and communist blocs, that sought to solidify their spheres influence and reshap- ing of the regional order in the Far East had undermined a compromise at the level of the implementation of the collective security mechanism. The inabil- ity to manage common expectations amongst the permanent members of the
52 un Doc. A/RES/384 (v) (14 December 1950). 53 un Doc. A/RES/498 (v) (1 February 1951). 54 un Doc. A/RES/712 (vii) (28 August 1953). 55 Mao Zedong, Selected Works of Mao Tse-Tung, Vol. 4 (Beijing: Foreign Languages Press, 1977), 117.
Security Council about the measures required to deal with the issues on the battlefield resulted in the intervention of the General Assembly and a direct confrontation of those major powers. The lack of trust between the relevant domestic, regional and international shareholders and stakeholders from the start and prior to the North Korean invasion had only worsened the consecu- tive course of events and compromised the unity, credibility and legitimacy of the Security Council as well as the normativity of the prohibition of aggression under international law. The misunderstandings in respect of the purpose and functioning of Security Council reached another height in the tension between the ussr and the us. In this regard, at the initial phases of the Korean War, unity could simply not be sought given the absence of the ussr, one of Council’s most important perma- nent members. Because the ussr did no longer participate in the Council’s meet- ings and deliberations – as a way to show its disapproval of the non-recognition of membership of the prc in the Council since early 1950, it opened the door for the us to advance its democratic principles on the functioning of the Council in order to employ the un instrument of collective security at the expense of the ussr’s politics of balance of power.56 As a result, the Council members had free range to adopt measures in defiance of the interests of the ussr whose delega- tion was not there to exercise its veto power in the first place. When the ussr did decide to resume its responsibility in the Council and wanted to challenge the un’s action retroactively to deploy a un Command led by the us to repel the armed attack on North Korea, the stalemate had reinforced. When the General Assembly sidestepped the Council, not only its unity but also its credibility and legitimacy was now also at stake to ever initiate collective security measures of this kind. While strictly speaking, institutionally the rules and procedures have been respected to justify the course of action of the Assembly,57 it had left a per- manent stain on the relationship between Council’s permanent members and thus proper functioning of the Council during the entire Cold War. Regarding the latter, the negative consequences upon the normativity of the prohibition of aggression under international law were more vividly expressed when the prc intervened into the conflict from October 1950 onwards. Since the General Assembly had seized the matter of the conflict on the Korean Peninsula, it continued to pursue the collective measures on behalf of the un through the United Command. It feared that the intervention of North Korea’s
56 Kenneth W. Thompson, “Collective Security Reexamined,” American Political Science Re- view 47 (1953): 772. 57 Norman Kogan, “United Nations: Agent of Collective Security?,” Yale Law Journal 61 (1952): 1–13.
58 un Doc. A/RES/498 (v) (1 February 1951). 59 Leland M. Goodrich, “Korea: Collective Measures against Aggression,” International Con- ciliation 30 (1953): 149. 60 un Doc. A/RES/599 (vi) (31 January 1952). 61 The International Law Commission eventually adopted the Draft Code of Offences against the Peace and Security of Mankind on 28 July 1954. See International Law Com- mission, Yearbook of the International Law Commission (Geneva: United Nations, 1954), 151; see also un Doc. A/2693 (28 July 1954). 62 un Doc. A/RES/688 (vii) (20 December 1952).
63 Howard C. Johnson and Gerhart Niemeyer, “Collective Security: The Validity of an Ideal,” International Organization 8 (1954): 20–21; see also Benjamin V. Cohen, “The Quest for Collective Security,” Proceedings of the American Society of International Law 63 (1969): 55–66. 64 Ernst B. Haas, “Types of Collective Security: An Examination of Operational Concepts,” American Political Science Review 49 (1955): 42; see also Coral Bell, “Korea and the Balance of Power,” Political Quarterly 25 (1954): 17–29.
C China and the Principle of Mutual Non-aggression 1 The Sino-Indian War With the adoption of the Five Principles of Peaceful Coexistence on 29 April 1954,65 the prc and India has set aside their differences regarding the pilgrimage to the Tibet region. One of those principles concerned mutual non-aggression. Although both states shared several interests in their struggles against imperialism and colonialism and had as developing countries sought to improve the socio-economic well-being of their peoples, politically such common denominator was not present. India, on the one hand, had been the leading state of the non-alignment movement and had frequented both the ussr as well as the us.66 China, on the other hand, had just claimed its vic- tory against imperialist forces on the Korean Peninsula whose defeat had not been possible with the support of the ussr. In spite of those ideological differ- ences, India was one of the first nations that recognised the prc government on 30 December 1949 and established diplomatic ties with the latter as early as 1 April 1950. Moreover, India did not have any reservations as to the represen- tation of the legitimate rights of China by the prc government in the un and had instead repeatedly – ever since 1956 – urged this item to be included on the General Assembly’s agenda.67 Nonetheless, the friendly relations between India and the prc however – despite India’s earlier recognition of the communists in Beijing, was stained by the capture of the Tibetan armed forces by the pla on 7 October 1950. The central government of the prc intended to exercise sufficient pressure upon the Lhasa government of Tibet in order for the latter to accept the former’s sovereignty over the region. The military operation was finally concluded on 23 May 1951 with the signing of the Seventeen-Point Agreement in Beijing that finally ratified Chinese sovereignty over the region.68 The prc argued that
65 1954 Agreement between the Republic of India and the People’s Republic of China on Trade and Intercourse between Tibet Region of China and India, signed at Beijing, on 29 April 1954, and entered into force on 3 June 1954. 66 S. Mahmud Ali, Cold War in the High Himalayas: The usa, China, and South Asia in the 1950s (New York: St. Martin’s Press, 1999), 199–200. 67 un Doc. A/RES/1108 (xi) (16 November 1956). 68 Tsering Shakya, The Dragon in the Land of Snows: A History of Modern Tibet since 1947 (New York: Columbia University Press, 1999), 449–452.
69 Shi Zhe, “With Mao and Stalin: The Reminiscences of Mao’s Interpreter,” Chinese Histo- rians 5 (1993): 67–90. See also Zhou Enlai, Selected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 43. 70 “Exchanges between China and India on Tibet and Chinese-Indian Borders, 1950,” 102- 00051-01, in Chinese Foreign Ministry Archive. 71 “Note of the prc Government Delivered by Vice Foreign Minister Zhang Hanfu to Am- bassador Panikkar,” Doc. 102-00051-01 (16 November 1950), in Chinese Foreign Ministry Archive. 72 Steven A. Hoffmann, “Rethinking the Linkage between Tibet and the China-India Border Conflict: A Realist Approach,” Journal of Cold War Studies 8 (2006): 193; John W. Garver, Protracted Contest: Sino-Indian Rivalry in the Twentieth Century (Seattle: University of Washington Press, 2001), 49; 193. 73 Kenneth Conboy and James Morrison, The cia’s Secret War in Tibet (Lawrence: University Press of Kansas, 2002), 26–28, 66–80, 89–91; J. Kenneth Knaus, Orphans of the Cold War: America and the Tibetan Struggle for Survival (New York: Public Affairs/Perseus Books Group, 1999), 184, 190. 74 Wusheng Liu and Hongqi Du, Zhou Enlai Junshi Huodong Jishi (The Chronicle of Zhou En- lai’s Military Activities) (Beijing: Zhongyang Wenxian Chubanshe (Central Party Literature Press), 2000), 497. 75 Zhonggong Zhongyang Wenxian Yanjiushi, ed., Mao Zedong Xizang Gongzuo Wenxuan (Mao Zedong’s Selected Works on Tibetan Affairs) (Beijing: Zhongguo Zangxue Chuban- she (China Tibetology Publishing House) and Zhongyang Wenxian Chubanshe (Central
Direct confrontations between Indian and Chinese armed forces between 25 August 1959 and 21 October 1959 had instilled further distrust between both parties whose friendly relationship and cooperation since the adoption of their Five Principles of Peaceful Coexistence had completely collapsed.76 Such revelations had inevitably brought the matter to the attention of the interna- tional community. In this respect, the un General Assembly condemned the lack of respect for the fundamental rights and freedoms of the Tibetan people in 1959 and its negative repercussions upon the international relations in the region, i.e. between India and China, and the tension between their peoples domestically.77 The General Assembly’s international condemnation was reit- erated in 196178 and 1965,79 yet each time without an explicit reference to the perpetrators of those violations. Those early clashes between the Indian and Chinese armed forces in the aftermath of the Tibetan rebellious actions of March 1959 had further exposed the indeterminacy of the border between both nations. This would have an immediate impact on the determination of the violation of the territorial integrity – both in time and in space – by one or the other party to the con- flict.80 In this regard, Beijing argued that the “McMahon Line”81 – established by the Convention between Great Britain, (the Republic of) China and Tibet in Simla in 1914 that demarcated the boundary between India and China – was illegal since Tibet was not a sovereign state and could not possibly sign such
Party Literature Press), 2001), 186; see also Melvyn C. Goldstein, A History of Modern Tibet, 1913–1951: The Demise of the Lamaist State (Berkeley: University of California Press, 1989), 623. 76 Jian Chen, “The Tibetan Rebellion of 1959 and China’s Changing Relations with India and the Soviet Union,” Journal of Cold War Studies 8 (2006): 89. 77 un Doc. A/RES/1353 (xiv) (21 October 1959). 78 un Doc. A/RES/1723 (xvi) (20 December 1961). 79 un Doc. A/RES/2079 (xx) (18 December 1965). 80 Surya P. Sharma, “The India-China Border Dispute: An Indian Perspective,” American Journal of International Law 59 (1965) 16–47; Alistair Lamb, The China-India Border: The Origins of the Disputed Boundaries (London: Oxford University Press, 1964); Margaret W. Fisher and Leo E. Rose, “Ladakh and the Sino-Indian Border Crisis,” Asian Survey 2 (1962): 27–37; K. Krishna Rao, “The Sino-Indian Boundary Question and International Law,” Inter- national and Comparative Law Quarterly 11 (1962): 375–415; L.C Green, “Legal Aspects of the Sino-Indian Border Dispute,” China Quarterly 3 (1960): 42–58; Alfred P. Rubin, “The Sino- Indian Border Dispute,” International and Comparative Law Quarterly 9 (1960): 96–125. 81 See more Alistair Lamb, The McMahon Line: A Study in the Relations between India, China and Tibet, 1904–1914 (London: Routledge, 1966).
82 Lengxi Wu, Shinian Lunzhan 1956–1966 Zhongsu Guanxi Huiyilu (Ten Years Debate 1965– 1966 Memoirs of Sino-Soviet Relations) (Beijing: Zhongyang Wenxian Chubanshe (Central Party Literature Press), 2014), 212. 83 Ping Li and Zhisun Ma, eds., Zhou Enlai Nianpu 1949–1976 (A Chronological Record of Zhou Enlai, 1949–1976), Vol. 2 (Beijing: Zhongyang Wenxian Chubanshe (Central Party Litera- ture Press), 1997), 280. 84 Neville Maxwell, India’s China War (London: Pantheon, 1970), 221–224.
85 Bo Shi, ed., 1962 Zhongyin Dazhan Jishi (1962 Record of Events in the Big China-India War) (Beijing: Zhongguo Dadi Chubanshe (China Land Press), 1993), 183–184. 86 Xu Yan, Zhongyin Bianjie Zhi Zhan Lishi Zhenxiang (True History of the Sino-Indian Border War) (Hong Kong: Tiandi Tushu Youxiangongsi (Cosmos Books Ltd.), 1993), 106. 87 See John W. Garver, “China’s Decision for War with India in 1962,” in Robert S. Ross and Alastair Iain Johnston, eds., New Approaches to the Study of Chinese Foreign Policy (Stan- ford: Stanford University Press, 2006), 87. 88 Michael Brecher, “Non-Alignment under Stress: The West and the India-China Border War,” Pacific Affairs 52 (1979–1980): 617. 89 John W. Garver, “India, China, the United States, Tibet, and the Origins of the 1962 War,” India Review 3 (2004): 9.
Trust that once was the foundation of their friendly relationship – as em- bodied in the adoption of their Five Principles of Peaceful Coexistence – and the essential ingredient for nations to peacefully cooperate beyond outstand- ing disputes had more than ever been lost between India and China. In this regard, China believed that the lack of respect on behalf of India towards the prc’s new role within the region and the world at large had to be rectified. Such asymmetry within their relationship through a number of external pa- rameters, i.e. the Tibetan rebellion and the Forward Policy, had only brought this closer to the surface. India’s perspective regarding the prc’s policies within Tibet and the border regions instilled greater fears towards its militarily supe- rior neighbour.90 Under those circumstances, a military confrontation had be- come irreversible yet could not possibly restore the trust between them. Trust between the prc and the ussr had equally suffered from this simmering ten- sion and caused a split in their relationship too. Moreover, the ussr and the us found themselves at a critical juncture where the prospects for re-establishing their trust would outweigh the costs of a damaged Sino-Soviet relationship. As a result, China had become more isolated – regionally and globally alike – ever since the aftermath of the Korean War. Against such background of deteriorating relationships between regional and global powers, the normativity of the international law prohibiting the use of force – preventing them from entering into a direct and violent confronta- tion in the first place – had been impaired. It was particularly in such vacuum that China would defend itself against the aggressive Indian outposts.91 Its launch of a so-called “pre-emptive counter-offensive”92 against Indian armed forces had tested the prohibition of aggression under international law as well as the principle of mutual non-aggression pursuant to the Five Principles of Peaceful Coexistence in this respect. Acquiescing in India’s provocations into China’s territory would constitute a violation of the territorial integrity of the nation state whose respect is protected under both sources. The latter’s viola- tion had become the pretext for the pla to respond to India’s actions. Yet, the indeterminacy of the actual border had made it inconclusive whose territory had been crossed in the first place. Furthermore, the skirmishes and exchange of fire between the pla and Indian armed forces with certain losses prior to the military offensive of 20 October 1962 had further complicated and obscured
90 V.B. Karnik, ed., China Invades India (London: George Allen & Unwin, 1963). 91 Allen S. Whiting, The Calculus of Chinese Deterrence, India and Indochina (Ann Arbor: University of Michigan, 1975), 55. 92 Neville Maxwell, “China’s ‘Aggression in 1962’ and the ‘Hindu Bomb’,” World Policy Journal 16 (1999): 111.
93 Only on 14 December 1974, the un General Assembly had adopted a definition of aggres- sion. See un Doc. A/res/3314 (xxix) (14 December 1974).
2 The Sino-Vietnam War With the adoption of his Three World Theory in 1974,94 Mao Zedong had made a description of the asymmetry within world society between the First World, including the ussr and the us, the Second World, including Europe, Japan and Canada, and the Third World of developing countries elsewhere. In addi- tion, in his theory, he formulated possible responses to resist such inequality. The contest between the ussr and the us for global hegemony had increas- ingly subjected the world instability and chaos. The world instead should seek for greater peace and prosperity through mutual cooperation and unity based on the Five Principles of Peaceful Coexistence, as Mao advocated. Such early sense of multilateralism had accompanied the prc’s reinstatement as the sole and legitimate representative of Greater China within the un on 25 October 1971.95 To achieve those common objectives, the prc’s rapprochement with the us – despite their fundamental differences – since the beginning of the 1970s96 could further contribute to restraining the ussr’s expansionism in gen- eral and China’s own containment in particular.97 The latter was evidenced in the ussr’s collective security policy towards Southeast Asia in general and Vietnam98 in particular whereby the ussr and Vietnam had signed their Trea- ty of Friendship and Cooperation on 3 November 1978.99 The latter agreement, however, did not shy China away from launching its Defensive Counterattack against Vietnam (Dui Yue Ziwei Fanji Zhan) on 17 Feb- ruary 1979, when the pla crossed the northern border with Vietnam. China’s bilateral relationship with Vietnam had suffered on various fronts ranging from the treatment and expulsion of Chinese minorities respectively within and outside Vietnam, Vietnam’s closer alliance with the ussr, the dispute over the Paracel and Spratley Islands and other border clashes along their Sino- Vietnamese boundary ever since 1975. The expansive role of Vietnam in its
94 Mao Zedong, Mao Zedong on Diplomacy (Beijing: Foreign Languages Press, 1998). 95 un Doc. A/RES/2758 (xxvi) (25 October 1971). 96 Zhou Enlai, Selected Works of Zhou Enlai, Vol. 2 (Beijing: Foreign Languages Press, 1989), 499–500. 97 Robert S. Ross, The Indochina Tangle: China’s Vietnam Policy, 1975–1979 (New York: Colum- bia University Press, 1988), 253. 98 Alexander O. Ghebhardt, “The Soviet System of Collective Security in Asia,” Asian Sur- vey 13 (1973): 1076; see also Nicholas Khoo, Collateral Damage: Sino-Soviet Rivalry and the Termination of the Sino-Vietnamese Alliance (New York: Columbia University Press, 2011); Nicholas Khoo, “Breaking the Ring of Encirclement: The Sino-Soviet Rift and Chinese Policy toward Vietnam, 1964–1968,” Journal of Cold War Studies 12 (2010): 3–42. 99 Robert A. Scalapino, “The Political Influence of the Soviet Union in Asia,” Donald S. Zago- ria, ed., Soviet Policy in East Asia (New Haven: Yale University Press, 1982), 71.
neighbouring countries like Laos and its most recent invasion of Cambodia – the prc’s closest ally in Southeast Asia – on 25 December 1978 where it forced the Khmer Rouge leadership to leave the capital Phnom Penh on 7 January 1979 was the final trigger for China’s punitive action against Vietnam.100 On 6 March 1979, the Chinese declaration stated that its goals have been accomplished and which led to the final withdrawal of the pla forces from Vietnamese territory on 16 March 1979. In reality, however, the expulsion of overseas Chinese continued, border tensions remained and Vietnam’s stronghold in Laos and Cambodia main- tained. Nonetheless, it did prove that the ussr was not coming to the assis- tance of its Southeast Asian ally in spite of their recent mutual defence treaty and that Vietnam could act without a clear condemnation on behalf of the international community in general101 and the us in particular. Yet, the us did not support China as such against the ussr’s hegemony in Southeast Asia.102 Unmistakably, the us itself would not compromise its relationship with the ussr in particular in light of their Strategic Arms Limitation Talks (salt) on nuclear weapons – that led to the signing of salt ii on 18 June 1979 – for the sake of proving its improved relationship with the prc instead. This had once again proven that the First World interests did not coincide with those of the Third World in general and that the trustworthiness of the prc relationship with the former nations was not a long-term guarantee for global peace and stability in general and in Southeast Asia in particular. This conflictual rela- tionship between the prc and the world’s superpowers could be traced back to its own role in the First as well as the Second Indo-China War. In this regard, on 18 January 1950, the prc recognised the establishment of the communist Democratic Republic of Vietnam – in Northern Vietnam above
100 Eugene K. Lawson, “China’s Vietnam War and its Consequences: A Comment,” China Quarterly 88 (1981): 691. 101 The un General Assembly however condemned the foreign interference into the Demo- cratic Republic of Kampuchea (i.e. Cambodia) without making reference to the author of the intervention, i.e. Vietnam. It further called upon all states to “refrain from all acts or threats of aggression and all forms of interference in the internal affairs of States in South- East Asia”. See un Doc. A/RES/34/22 (14 November 1979). 102 Daniel Tretiak, “China’s Vietnam War and its Consequences,” China Quarterly 80 (1979): 754, 759. This would continue until the end of the Cold War with the break-up of the ussr whose support to Vietnam’s occupation of Cambodia had then disappeared and had re- mained a cause of tension between the prc, the ussr and Vietnam. See Deng Xiaoping, Selected Works of Deng Xiaoping, Vol. 3 (Beijing: Foreign Languages Press, 1994), 170–171. John W. Garver, China’s Quest: The History of the Foreign Relations of the People’s Republic of China (Oxford: Oxford University Press: 2016), 386.
103 Jian Chen, “China and the First Indo-China War, 1950–54,” China Quarterly 93 (1993): 89, 91, 97. 104 u.s. Government, Public Papers of the President of the United States: Dwight D. Eisenhower, 1954 (Washington, d.c., 1958), 381–390. 105 James Cable, The Geneva Conference of 1954 on Indochina (Basingstoke: MacMillan Press, 2000), 35. 106 Nianlong Han, ed., Dangdai Zhongguo Waijiao (Contemporary China Diplomacy) (Beijing: Dangdai Zhongguo Chubanshe (Contemporary China Publishing House), 2009), 56–57. 107 1954 Final Declaration of the Geneva Conference on the Problem of Restoring Peace in Indo-China (21 July 1954), Arts. 4–5.
China had stepped out of its isolation, had acted as a great power amongst the other great nations and had become accepted by international society (friends and enemies alike) – at least for now (the Sino-Indian War had reversed such accomplishment).108 The involvement of the us however in backing South Vietnam against the North had jeopardised its standing once again – one decade after the Korean War.109 In this regard, the Gulf of Tonkin incident of 2 August 1964 was the pretext for u.s. intervention into the renewed conflict in Southeast Asia. With the adoption of the Southeast Asia Resolution by the u.s. Congress on 7 Au- gust 1964, u.s. President Lyndon Johnson was authorised to use military force in the region and assist “any member or protocol state of the Southeast Asia Collective Defense Treaty” or the so-called Manila Pact of 8 September 1954.110 The latter has been the foundation for the establishment of the collective self- defence organisation, the Southeast Asia Treaty Organisation (seato) – nato’s Eastern counterpart, in Bangkok on 19 February 1955. The us was one of the founding members. Its creation has been an immediate reaction to the Geneva Accords that the us refused to sign. The Manila Pact aimed, in particular, to contain communist China in the region.111 Conversely, the liberation of the Republic of Vietnam from u.s. imperialism would not only secure the prc’s own national security, undermine the u.s.-backed anti-communist schemes, such as seato, aimed to contain the prc,112 but also showed further proof of the prc’s credentials in the realm of anti-imperialist struggles regionally and globally alike.113 Ever since the end of the First Indo-China War, the prc had entertained a good relationship with the communist regime in North Vietnam. The latter
108 Jian Chen, “China and the First Indo-China War, 1950–54,” China Quarterly 93 (1983): 110; see also Qiang Zhai, “China and the Geneva Conference of 1954,” China Quarterly 129 (1992): 103–122. 109 Jian Chen, China’s Road to the Korean War: The Making of the Sino-American Confrontation (New York: Columbia University Press, 1994). 110 Joint Resolution “To Promote the Maintenance of International Peace and Security in Southeast Asia”, u.s. Congress, passed on 7 August 1964, enacted on 10 August 1964, Pub. L. 88–40, 78 Stat. 384. 111 See Southeast Asia Collective Defense Treaty (Manila Pact) (8 September 1954), and especially the us understanding annex to the Pact which stipulated that: “The United States of America in executing the present Treaty does so with the understanding that its recognition of the effect of aggression and armed attack […] apply only to communist aggression.” 112 John W. Garver, “The Chinese Threat in the Vietnam War,” Parameters 22 (1992): 75. 113 Qiang Zhai, China and the Vietnam Wars, 1950–1975 (Chapel Hill, nc: University of North Carolina Press, 2000), 5.
114 Jian Chen, “China’s Involvement in the Vietnam War, 1964–69,” China Quarterly 142 (1995): 375. 115 Ke Li and Shengzhang Hao, Wenhua Dageming Zhong De Jiefangiun (The People’s Libera- tion Army during the Cultural Revolution) (Beijing: Zhonggong Dangshi Ziliao Chubanshe (ccp Historical Materials Press), 1989), 341. 116 Jian Chen, Mao’s China and the Cold War (Chapel Hill, nc: University of North Carolina Press, 2001), 237. 117 Jian Chen, “China’s Involvement in the Vietnam War, 1964–69,” China Quarterly 142 (1995): 380, 383–384. 118 The us and North Vietnam armed forces had already invaded Cambodia to defeat the Viet Cong as well as the People’s Army of Vietnam, i.e. the armed forces of North Vietnam, from 29 April till 30 June 1970. 119 See more Evelyn Goh, Constructing the u.s. Rapprochement with China, 1961–1974: From “Red Menace” to “Tacit Ally” (Cambridge: Cambridge University Press, 2005); John W. Garver, China’s Decision for Rapprochement with the United States (Boulder, co: Westview, 1982).
120 John W. Garver, “Sino-Vietnamese Conflict and the Sino-American Rapprochement,” Political Science Quarterly 96 (1981): 456. 121 Agreement on Ending the War and Restoring Peace in Vietnam (27 January 1973). 122 Xiaoming Zhang, “Deng Xiaoping and China’s Decision to Go to War with Vietnam,” Jour- nal of Cold War Studies 12 (2010): 10. 123 Xiaoming Zhang, “China’s 1979 War with Vietnam: A Reassessment,” China Quarterly 184 (2005): 859.
124 un Doc. A/RES/3314 (xxix) (14 December 1974). See also Julius Stone, “Hopes and Loop- holes in the 1974 Definition on Aggression,” American Journal of International Law 71 (1977): 224–246.
The above genealogy of China’s international argument regarding the prohibi- tion of aggression where it has been either the victim of its violation or the perpetrator has shed a new light on China’s view of the normativity of this international norm ever since the start of the Second World War. China’s vari- able and often paradoxical interpretation and application of the prohibition of aggression either under the un Charter or the Five Principles of Peaceful Coexistence whenever its sovereign interests were at stake could be further explained from the perspective of the different sets of relationships between China and its enemies, Japan, us, India and Vietnam. Those different contexts and histories of conflict and animosity show further proof of the contingency regarding the inequality that prevails amongst the members of the interna- tional community that were parties to those conflicts. This inevitably affected how the prohibition of aggression was interpreted and applied by the parties to the conflict and/or enforced on behalf of the Security Council. In those dif- ferent relationships where China is party to the conflict regardless whether it aggresses or not, the identity of its counterpart, i.e. a First or Third World country, will determine whether or not the prohibition of aggression can preserve its normativity under those particular circumstances. The above legal-historical account has identified that the conditions under which the prohibition of ag- gression could resort effect or not depends on the nature of the relationship
A Individual Self-Defence 1 Middle East Upon its reinstatement in the un in 1971, China had been confronted with one of the longest lasting conflicts after the Second World War. The members of the Security Council, including China, had repeatedly discussed the violence in the Middle East in general and the eternal struggle between the Israeli and Arab peoples in particular. The earliest time that China had raised its concern about the ever-returning chapters of violence in the Arab-Israeli conflict was on 26 June 1972 when the Council adopted a resolution condemning Israel’s repeated attacks against Lebanon and its abduction of Lebanese and Syrian military and security forces on Lebanese territory on 21 June 1972.125 The Chi- nese ambassador to the Council regretted that the resolution did not fully make an explicit reference to Israel’s “policies of aggression and war” and nor did it demand Israel to refrain from engaging in “acts of aggression in the fu- ture”. Conversely, he firmly supported the Arab and Palestinian peoples in their united struggle against Israel’s aggression. He continued that such distinction between the aggressor and the victims of aggression had not been made clear in the resolution either.126
125 un Doc. S/RES/316 (26 June 1972). 126 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1650 (26 June 1972), 6.
The following year, on 9–10 April 1973, Israeli armed forces had violated Leb- anon’s territorial integrity again and had raided several targets of the Palestine Liberation Organisation (plo) in Lebanon. Given the complexity of violent actors in the Arab-Israeli conflict ever since June 1967 – the end of the Six Day War, the Security Council mandated the un Secretary-General to update the Council on the un’s efforts to contribute to the resolution of the conflict on 20 April 1973.127 The Chinese ambassador to the Security Council hoped that a comprehensive picture of the Middle East conflict by the Secretary-General could “draw a clear distinction between aggression and the victim of aggres- sion, clearly identifying the responsibility for aggression” in order to assist the Council in better discharging of its mandate and taking the necessary steps towards the resolution of the conflict.128 The next day, however, on 21 April 1973, the Council adopted another resolution condemning the idf’s military attacks of 9–10 April 1973 against Lebanon.129 Once again, the Chinese position disagreed with the language of this resolution that equally made no distinc- tion between the aggressor and the victims of aggression and abstained in the adoption of the resolution as a result.130 Later, on 6 October 1973 when a military coalition of Egypt and Syria jointly launched surprise attacks against Israel’s occupied territories respectively in the Sinai and the Golan Heights, the Security Council responded on 22 October 1973 to this so-called Yom Kippur War that would last until 25 October. It called upon all the fighting parties to immediately stop the fighting and resume ne- gotiations.131 China, however, did not participate in the vote. Yet, the Chinese ambassador issued a statement reiterating that any resolution of this kind should firstly condemn the Zionists’ aggression and support the just and de- fensive action on behalf of Egypt, Syria and the Palestinians in their resistance against their aggressors. A call for withdrawal from the occupied Arab territo- ries would be a precondition to the adoption of this resolution. Instead, the ambassador continued that both First World superpowers, the ussr and us, have proceeded as they have always done in the Arab-Israeli conflict, namely to impose their draft resolution for immediate adoption not permitting all the other members to consult with them and with their respective governments in the first place: “This practice of imposing one’s views on the Security Council
127 un Doc. S/RES/331 (20 April 1973). 128 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1710 (20 April 1973), 6. 129 un Doc. S/RES/332 (21 April 1973). 130 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1711 (21 April 1973), 2. 131 un Doc. S/RES/338 (22 October 1973).
[was] most unreasonable”.132 It undermined the normativity of the resolution adopted in its siege. Prior to the First Gulf War between Iran and Iraq (22 September 1980 till 29 August 1988), a border incident between the nations in 1974 was brought to the attention of the Security Council that praised the determination of both coun- tries to resolve their conflict peacefully and de-escalate the situation when withdrawing their troops along their common border.133 The Chinese ambas- sador welcomed the readiness of Iran and Iraq to solve their disagreements through negotiations yet did not accept that the un got involved “in any form in the boundary dispute between two countries” and did not participate in the voting when the resolution was adopted.134 Such peaceful resolution of the conflict was scattered with Iraq’s invasion of the Islamic Republic of Iran on 22 September 1980. Shortly after the hostilities, the Security Council had adopted a resolution on 28 September 1980 that called upon the fighting parties to re- frain from using further force and settle their conflict peacefully instead.135 The Chinese ambassador was deeply concerned about the armed conflict between two Third World countries that both had a friendly relationship with China. He favoured that such differences ought to be settled without resorting to force and only through peaceful means instead. The ambassador further hoped that the efforts of another regional organisation, namely the Organisation of the Islamic Conference, would achieve the same result.136 The Council had re- mained seized of the matter and repeatedly called upon the conflicting parties to cease their fire and withdraw their troops accordingly until the end of the war.137 The Chinese ambassadors had repeatedly stressed the importance of a peaceful resolution and warned about the direct threat that this conflict posed to the Gulf and the Middle East.138
132 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/pv.1747 (22 October 1973), 12. 133 un Doc. S/RES/348 (28 May 1974). 134 Speech of Chinese ambassador CHUANG Yen before the Security Council, un Doc. S/PV.1770 (28 May 1974), 4. 135 un Doc. S/RES/479 (28 September 1980). 136 Speech of Chinese ambassador LING Qing before the Security Council, un Doc. S/PV.2248 (28 September 1980), 8. 137 un Doc. S/RES/514 (12 July 1982); un Doc. S/RES/522 (4 October 1982); un Doc. S/RES/582 (24 February 1986); un Doc. S/RES/588 (8 October 1986); un Doc. S/RES/598 (20 July 1987); un Doc. S/RES/619 (9 August 1988); un Doc. S/RES/631 (8 February 1989); un Doc. S/RES/642 (29 September 1989). 138 Speech of Chinese ambassador LING Qing before the Security Council, un Doc. S/PV.2248 (12 July 1982), 3.
Meanwhile, after the start of the Iran-Iraq War, on 7 June 1981, Israel pre- emptively launched an attack on an Iraqi nuclear reactor that was firmly condemned by the Security Council.139 One month later, the Security Council adopted another resolution condemning Israel’s attack against plo objectives in Lebanon thus violating the latter’s sovereignty and territorial integrity again on 17 July 1981.140 While the Chinese ambassador did not issue a statement regarding Israel’s attack on the nuclear facilities in Iraq, it did respond to the Lebanon attacks. He expressed again China’s support for the struggle of the Pal- estinian people as well as its indignation regarding Israel’s “policy of aggression and expansion” that not only curtailed the rights of the Palestinian people but also the sovereignty and territorial integrity of Lebanon. He continued that the role of the superpowers was to be denounced once again given their support to Israel that could exonerate itself for its misconduct and the negative conse- quences upon the complexity of the Arab-Israeli conflict.141 Those earlier incursions led to another full-scale military attack on behalf of Israel against Beirut on 4 June 1982 that introduced the beginning of the First Lebanon War. On 5 June 1982, the Security Council called upon the conflicting parties, i.e. the plo and Israel, to cease their military activities along the border with Israel and Lebanon and within Lebanon itself in the preparation of their open confrontation.142 On 6 June 1982, the Council repeated its earlier call to all parties to the conflict and demanded Israel to withdraw its troop from South- ern Lebanon.143 The Chinese ambassador condemned the “massive act of ag- gression against Lebanon, thereby violently trampling upon the sovereignty and territorial integrity of Lebanon” and supported the Lebanese Government in its “just struggle against aggression and in defence of independence, sov- ereignty and territorial integrity” as well as to the Palestinian people in “their just struggle to restore their national rights and recover their lost territories”.144 The day after the assassination of Lebanese President Bashir Gemayel, Israel occupied West Beirut on 15 September 1982. The Security Council condemned the Israeli incursions that violated the ceasefire agreements, demanded the withdrawal of Israeli forces and called again for the respect of the territorial
139 un Doc. S/RES/487 (19 June 1981). 140 un Doc. S/RES/490 (21 July 1981). 141 Speech of Chinese ambassador LING Qing before the Security Council, un Doc. S/PV.2293 (21 July 1981), 17. 142 un Doc. S/RES/508 (5 June 1982). 143 un Doc. S/RES/509 (6 June 1982). 144 Speech of Chinese ambassador LING Qing before the Security Council, un Doc. S/PV.2375 (6 June 1982), 11.
2 Africa On the African continent, China had raised its voice before the Security Coun- cil on several protracted conflicts where the territorial integrity of African na- tions was violated and that justified the right of self-defence. South Africa’s aggression against a number of its neighbours had brought the capitalist and communist struggle again to the foreground of the debates before the Coun- cil regarding the nation’s behaviour on the international plane. In this regard, upon the independence of Angola from Portugal on 11 November 1975, a civil war broke out between the People’s Movement for the Liberation of Angola (mpla) and the National Union for the Total Independence of Angola (unita) respectively supported by the ussr and Cuba (mpla) on the one hand and the us and South Africa (unita) on the other hand. South Africa launched in- cursions against the People’s Republic of Angola from neighbouring Namibia where it had equally solidified its apartheid regime. The Security Council con- demned South Africa’s acts of aggression in its operational clause and recalled
145 un Doc. S/RES/520 (17 September 1982). 146 Speech of Chinese ambassador LIANG Qing before the Security Council, un Doc. S/PV.2375 (6 June 1982), 3. 147 un Doc. S/RES/1701 (11 August 2006). 148 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5511 (11 August 2006), 13.
149 un Doc. S/RES/387 (31 March 1976). 150 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1906 (31 March 1976), 28–29.
Two years later in 1978, the Security Council was once again seized by the Angolan conflict where South Africa launched a new armed invasion from Namibia into Angola on 4 May 1978 in violation of the latter’s territorial integ- rity, air space and sovereignty. The Council condemned South Africa’s military invasion, demanded the immediate withdrawal of its troops from Angola and praised the support of the Angolan government to the legitimate struggle of national liberation of the Namibian people against South Africa’s illegal oc- cupation of their “international Territory”.151 The Chinese ambassador further denounced the latter situation and stated that South Africa’s “latest barbarous act of armed aggression” against Angola from Namibia – in defiance of the world’s condemnation – would only bring about greater resolve and resistance on behalf of the Namibian people in their fight for independence. He contin- ued that only a united front could prevent the unwanted interference of the superpowers.152 The latter front against South Africa’s racist regime in Namibia had repeat- edly been under pressure. In this regard, the Security Council condemned South Africa’s new attacks against Angola, and yet further support was ex- tended to the coalition of states in their struggle to liberate the Namibian people.153 China also felt indignant about South Africa’s persistent aggression against those front-line states including Angola and Zambia in their common struggle that would “certainly frustrate all the evil acts and conspiracies on the part of the South African racist authorities and win final victory for national independence and liberation”.154 As early as October 1971 South Africa had violated for the first time the ter- ritorial integrity and sovereignty of Zambia – one of the front-line states in the liberation of the Namibian people. On 12 October 1971, the Security Council – prior to the reinstatement of the prc – had adopted its first resolution on the conflict and condemned South Africa’s action and called for its respect for the territorial integrity and sovereignty of Zambia instead.155 After this first
151 un Doc. S/RES/428 (6 May 1978). One year later, the Security Council would adopt anoth- er resolution against South Africa’s renewed armed invasions into Angola and in support of the fight for self-determination of the Namibian people against South Africa. See un Doc. S/RES/447 (28 March 1979). The Chinese ambassador did not express his govern- ment’s view during the debate on the adoption of that resolution. 152 Speech of Chinese ambassador CHEN Chu before the Security Council, un Doc. S/PV.2078 (6 May 1978), 5. 153 un Doc. S/RES/454 (2 November 1979). 154 Speech of Chinese ambassador CHOU Nan before the Security Council, un Doc. S/PV.2170 (2 November 1979), 7. 155 un Doc. S/RES/300 (12 October 1971).
156 un Doc. S/RES/393 (30 July 1976). 157 un Doc. S/RES/326 (2 February 1973); un Doc. S/RES/424 (17 March 1978); un Doc. S/RES/445 (8 March 1979); un Doc. S/RES/455 (23 November 1979). 158 Speech of Chinese ambassador CHEN Chu before the Security Council, un Doc. S/PV.2171 (23 November 1979), 6. 159 un Doc. S/RES/403 (14 January 1977). 160 un Doc. S/RES/411 (30 June 1977). 161 un Doc. S/RES/466 (11 April 1980). 162 un Doc. S/RES/527 (15 December 1982).
163 Speech of Chinese ambassador LING Qing before the Security Council, un Doc. S/PV.2407 (15 December 1982), 12. 164 un Doc. S/RES/580 (30 December 1985). 165 Speech of Chinese ambassador LI Luye before the Security Council, un Doc. S/PV.2639 (30 December 1985), 38. 166 un Doc. S/RES/475 (27 June 1980); un Doc. S/RES/545 (20 December 1983); un Doc. S/RES/546 (6 January 1984); un Doc. S/RES/567 (20 June 1985); un Doc. S/RES/571 (20 September 1985); un Doc. S/RES/574 (7 October 1985); un Doc. S/RES/577 (6 December 1985); un Doc. S/RES/602 (25 November 1987); un Doc. S/RES/606 (23 December 1987). 167 Speech of Chinese ambassador LI Luye before the Security Council, un Doc. S/PV.2607 (20 September 1985), 8. 168 un Doc. S/RES/568 (21 June 1985).
He continued that the Security Council “should adopt effective measures to put an end to South Africa’s trampling underfoot the Charter of the United Na- tions and the norms of international law”.169 Finally, in the Horn of Africa, Eritrea launched armed attacks against Ethio- pia on 6 May 1998. A border conflict that would last until 25 May 2000. On 26 June 1998, the Security Council condemned the use of force by both parties, called for a cessation of their hostilities and urged them to settle their dispute peacefully.170 On 29 January 1999, the Council welcomed the regional initia- tives towards such resolution yet reminded the conflicting parties “to exercise maximum restraint and to refrain from taking any military action”.171 Shortly after, violence resumed and the Council condemned such resource to military action and demanded an end to the hostilities.172 The Council had repeated its message several times-yet in vain.173 The Chinese ambassador did not give any statement on this conflict.
3 Europe The Turkish invasion of Cyprus on 20 July 1974 was the first occasion for China to make its view clear regarding the violation of the territorial integrity of the Republic of Cyprus and its right of self-defence. The Security Council adopted its resolution unanimously on the same day of the invasion and called upon all states to respect the territorial integrity, independence and sovereignty of the island nation. It urged the conflicting parties to cease their fire and demanded the end of occupation in violation of the territorial integrity of Cyprus and the withdrawal of the Turkish troops.174 The Chinese ambassador to the Security Council expressed its firm support to the Cypriot people in their “just struggle” to defend their territory, independence and sovereignty against Turkish “ag- gression and subversion against Cyprus by all foreign forces”. He once pointed out that the ussr and the us are high-jacking the Cypriot crisis to their own advantage and by sowing discord they would strive for hegemony in the Medi- terranean. He warned that the world should be vigilant against and oppose such “iniquitous acts”.175
169 Speech of Chinese ambassador QIAN Yongnian before the Security Council, un Doc. S/PV.2599 (21 June 1985), 7. 170 un Doc. S/RES/1177 (26 June 1998). 171 un Doc. S/RES/1226 (29 January 1999). 172 un Doc. S/RES/1227 (10 February 1999). 173 un Doc. S/RES/1297 (12 May 2000); un Doc. S/RES/1298 (17 May 2000). 174 un Doc. S/RES/353 (20 July 1974). 175 Speech of Chinese ambassador CHUANG Yen before the Security Council, un Doc. S/PV.1781 (20 July 1974), 8.
In the Caucasus, the Armenian-Azerbaijan conflict over Nagorno-Karabakh – an enclave in Azerbaijan with an ethnic majority of Armenians-that had started under the Soviet period on 20 February 1988 was brought to the atten- tion of the Security Council when both nations were admitted to the un as new members in 1992, namely after the end of the Cold War. On 30 April 1993, the Council condemned the occupation of the Keldajar district in Azerbaijan that connected Armenia with Nagorno-Karabakh by Armenians forces and urged a cessation of the armed hostilities and withdrawal of the occupying troops.176 On 29 July 1993, the Council further condemned the Armenian occupation of the Agdam district and repeated its earlier demands.177 On 12 November 1993, the Council condemned the renewed violence and occupation of the new ter- ritory of Azerbaijan by Armenian armed forces in violation of their ceasefire agreement and demanded the withdrawal of those forces and a cessation of the hostilities.178 The Chinese ambassador did not issue any statement on the inter-state armed conflict. With the dismemberment of the Yugoslavia after the end of the Cold War into different independent nations (Bosnia and Herzegovina, Croatia, Mace- donia, Slovenia and the Federal Republic of Yugoslavia), another conflict in Eastern Europe that was once internal had become internationalized by the continued fighting between former parts. On 30 June 1992, the Security Coun- cil had urged the conflicting parties to cease their hostilities and solve their disputes peacefully under the un Peacekeeping Plan.179 The Chinese ambassa- dor had opposed outside interference in particular in Bosnia and Herzegovina and the use of force to settle unresolved differences since the break-up.180
B Collective Self-Defence For the first time in its history, the Security Council had authorised the interna- tional community to repel Iraq’s aggression against and invasion of Kuwait that had started on 1 August 1990. This authorisation for a collective self-defence action – adopted under Chapter vii of the un Charter – against the armed at- tack of an individual member state, i.e. Iraq, against another member state, i.e. Kuwait, would fall under the scope of Article 51 of the un Charter. Accordingly, the Council could take such enforcement measures to maintain and restore
176 un Doc. S/RES/822 (30 April 1993). 177 un Doc. S/RES/853 (29 July 1993). 178 un Doc. S/RES/884 (12 November 1993). 179 un Doc. S/RES/762 (30 June 1992). 180 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3082 (30 May 1992), 10–11; see also un Doc. S/RES/757 (30 May 1992).
international peace and security.181 Prior to such measures, the Security Council had condemned on 2 August 1990 the “Iraqi invasion of Kuwait” and demanded its immediate withdrawal of troops from Kuwait.182 The Chinese ambassador regretted the “incident” and called upon the parties to cease their hostilities immediately and settle their dispute peacefully.183 Consecutively, on 6 August 1990, the Council affirmed the “inherent right of individual or collec- tive self-defence, in response to the armed attack by Iraq against Kuwait, in ac- cordance with Article 51 of the Charter”.184 The Chinese ambassador expanded on China’s consistent position regarding the relationship between states that ought to be based on the Five Principles of Peaceful Coexistence and those principles laid down in the un Charter. He continued that those “norms gov- erning international relations [had to] be maintained and that resort to force or threat of force by any country to violate the sovereignty and territorial in- tegrity of another country [had to] be opposed”. Furthermore, he called upon “all parties concerned […] to refrain from taking steps that would aggravate the situation”.185 As a result, every response to such violations of international law must be contextualised and further respect international law itself. In the course of events following the invasion, the Security Council further condemned Iraq’s acts of aggression, its illegal annexation of Kuwait and called for the end of its occupation.186 The Chinese ambassador called upon Iraq to immediately withdraw its occupying forces from Kuwait and feared that “mili- tary involvement by the great Powers [was] not conducive to the settlement of the present crisis”.187 He continued that such involvement might aggravate the crisis though he understood the demands on behalf of Arab nations “for strengthened capabilities to defend themselves”.188 While China voted in fa- vour of resolution 667 of 16 September 1990 that condemned the violation by Iraq of international laws that protected diplomats on Kuwaiti territory, the
181 un Doc. S/RES/678 (29 November 1990). 182 un Doc. S/RES/660 (2 August 1990). 183 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2932 (2 August 1990), 23. 184 un Doc. S/RES/661 (6 August 1990). 185 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2933 (6 August 1990), 29–30. 186 un Doc. S/RES/662 (9 August 1990); un Doc. S/RES/664 (18 August 1990); un Doc. S/RES/667 (16 September 1990); un Doc. S/RES/678 (29 November 1990). 187 Speech of Chinese ambassador YU Mengjia before the Security Council, un Doc. S/PV.2937 (18 August 1990), 13. 188 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2938 (25 August 1990), 52–53.
Chinese ambassador had made reservations as to the possibility for the Coun- cil “to take further concrete measures […] in response to Iraq’s continued vio- lation of the Charter of United Nations, of resolutions of the Security Council and of international law”.189 He found that the potential implications of such formulation were “too wide and [might] not be conducive to the efforts of all parties in seeking a political settlement”.190 In this regard, the Chinese ambassador – upon the adoption of resolution 670 of 25 September 1990 that imposed the air embargo191 – reiterated the need for a peaceful resolution of the conflict despite “necessary defensive steps taken by some Gulf countries out of consideration for their own security”. He believed that such measures might not ease the tension – rather on the con- trary and so would the “military involvement in the Gulf by big Powers”. Such brought the international community, according to the Chinese ambassador, to “ponder the question: what kind of order should be established in the world so that peace can be preserved?” He argued that this order ought to be based on the Five Principles of Peaceful Coexistence rather than on “military might and the use or threat of force” and that the solution to the Gulf crisis “should be guided by the observance and defence of these norms” in the first place. He concluded that “force should be avoided and no efforts should be spared to achieve a peaceful settlement”.192 In this regard, on 29 October 1990, the Chinese ambassador the Council praised the efforts of the Secretary-General and other Arab and Gulf nations to seek for “an early and peaceful settlement of the Gulf crisis”.193 Finally, as a sign of good will, the Security Council further extended to Iraq a final opportunity to comply with previous resolutions of the Council and put an end to its illegal occupation. Unless such demands were not met by Iraq “on or before 15 January 1991” the member states were authorised “to use all neces- sary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”.194 The Chinese ambassador abstained in the adoption of resolution 678
189 un Doc. S/RES/667 (16 September 1990). 190 Speech of Chinese ambassador JIN Yongjian before the Security Council, un Doc. S/PV.2940 (16 September 1990), 17. 191 un Doc. S/RES/670 (25 September 1990). 192 Speech of Chinese ambassador QIAN Qichen before the Security Council, un Doc. S/PV.2943 (25 September 1990), 50–51. 193 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2951 (29 October 1990), 76–77. 194 un Doc. S/RES/678 (29 November 1990).
195 Speech of Chinese ambassador QIAN Qichen before the Security Council, un Doc. S/PV.2963 (29 November 1990), 61–63. 196 un Doc. S/RES/686 (2 March 1991). 197 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2978 (2 March 1991), 51. 198 un Doc. S/RES/687 (3 April 1991). 199 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2981 (3 April 1991), 97. See more on the Security Council’s measures regarding Iraq: Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford: Oxford University Press, 2013); Michael Byers, “The Shifting Foundations of In- ternational Law: A Decade of Forceful Measures against Iraq,” European Journal of Inter- national Law 13 (2002): 21–41; Bardo Fassbender, “Uncertain Steps into a Post-Cold War World: The Role and Functioning of the un Security Council after a Decade of Measures against Iraq,” European Journal of International Law 13 (2002): 273–303.
C Pre-emptive Self-Defence Ever since its reinstatement in the un, the prc was soon confronted in the Security Council with a clash between its closest ally in South Asia, Pakistan, and India. On 3 December 1971, Pakistan had pre-emptively attacked Indian air bases with air strikes that led to India’s direct involvement in the war of independence of East Pakistan against West Pakistan. Ever since the internal armed conflict broke out between the two Pakistans on 26 March 1971 (and which would last until 16 December 1971), India had given substantial eco- nomic and military support to the Bangladeshi nationalist forces. The Secu- rity Council however – in the absence of unanimity amongst the permanent members – failed to assume its primary responsibility to maintain and restore international peace and security and deferred the dispute on 6 December 1971 to the General Assembly who would consider the case and take the necessary measures accordingly200 – in line with a practice established since the Korean War, i.e. with the adoption of the Uniting for Peace resolution.201 On the same day, the General Assembly adopted – without a vote – a resolution that only dealt with the humanitarian situation of refugees and did not touch any lon- ger on the determination of the acts on behalf of Pakistan whether they con- stituted a breach of international peace or an act of aggression.202 Yet, from 21 December 1971, the Security Council seized the matter again once the war between India and Pakistan had come to a close and where it called upon the parties to respect their ceasefire agreements accordingly.203 The Chinese ambassador, speaking before the Security Council, made a striking comparison with China’s own historical experience during the first meeting of 6 December 1971. In this regard, he denounced the rhetoric of the Soviet and Indian ambassadors that were calling upon the international com- munity to accept the existence of a new nation, i.e. Bangladesh. China, he ar- gued, had similarly faced such claims on behalf of Japan regarding the estab- lishment of Manchukuo – the so-called puppet regime of Japanese militarists – that would soon find recognition amongst other Axis Powers, including Nazi-Germany and Fascist-Italy. He continued that the League of Nations had missed the opportunity to stop Japanese imperialism and rather encouraged the other Axis Powers to pursue their world hegemony in Europe. Under those circumstances, the Chinese position could not but warn that India’s war of ag- gression against Pakistan with the support of the ussr aimed to create such a
200 un Doc. S/RES/303 (6 December 1971). 201 un Doc. A/RES/377 (v) (3 November 1950). 202 un Doc. A/RES/2790 (xxvi) (6 December 1971). 203 un Doc. S/RES/307 (21 December 1971).
“neo-‘Manchukuo’ government” in East Pakistan and thus in violation of the territorial integrity of the entire Pakistan. India’s expansionism, as well as the ussr’s ambitions, could not be any more obvious: “gain control over the sub- continent, encircle China and strengthen its position in contending with the other super-Power for world hegemony”.204 After the Council had seized the matter again on 21 December 1971, the Chinese ambassador – while China voted in favour of the adoption of the resolution – was firmly dissatisfied with the outcome. In this respect, the res- olution failed to identify which nation was the aggressor and who defended itself accordingly and thus made a mockery of the Council to assume its re- sponsibility in the first place. The resolution ought to have condemned India’s expansionist aggression and the ussr’s support to that effect that caused the dismemberment of Pakistan in the first place. He continued that “the Chinese Government and people have consistently opposed aggression, subversion and interference by the imperialist, colonialists and neo-colonialists against other countries and firmly support the people of all countries in the defence of their sovereignty, territorial integrity and national unity”.205 While China’s normative behaviour regarding the right of individual self- defence by other states and/or colonial peoples differed in terms of its voting behaviour, i.e. non-participation, abstention or an affirmative vote, it had not differentiated regarding the fundamental conditions and purposes to exercise such right of individual self-defence. China’s normative stance on those had not changed. It urged during the debates on the legitimate right of self-defence before the Security Council that an explicit reference had to be made to the relationship that was inherently affected by such exercise in the first place. In this regard, without a clear identification of the aggressor state, the grievances and entitlements of the victim of aggression were to be claimed in a legal and political vacuum. China had repeatedly raised its concern about the role of the superpowers to give a distorted interpretation due to such indeterminacy – something which the prc had also experienced before in the Korean War (in the absence of an international definition of aggression) and which was fur- ther evidenced in respect of China’s analogy with Japanese aggression to the debates on pre-emptive self-defence on the Asian subcontinent. As a result, the normativity of the right of self-defence, according to the Chinese perspective, has been undermined by the pervasive and indirect
204 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1608 (6 December 1971), 13–14. 205 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1621 (21 December 1971), 3.
aggression of the superpowers through their proxy warfare. An explicit refer- ence to such illegal interference into the domestic affairs of states would ex- pose the unequal application of the right of self-defence in the first place. Of course, such mentioning would not suffice to restore the normativity of the norm. That is why, China had repeatedly stressed that only a united front be- tween developing nations – despite the continuous efforts of the superpowers to undermine and demoralise such unity – could give proper content again to the right of self-defence on the battlefield, namely for the purposes of the emancipation of colonial peoples and respect for the territorial integrity and political independence of the (newly) independent states. In this manner could the unequal application of the right of self-defence be rectified and its normativity restored based on the stronghold of the relationships between developing countries against the unwarranted (in)direct intervention on be- half of Western nations. Inevitably, those conditions on the battlefield would equally affect the relationship between China and the other permanent mem- bers of the Security Council. Their decision-making processes that would ap- prove or disapprove of the right of self-defence on behalf of a certain colonial people or a sovereign state would affect the normativity of the right of self- defence respectively towards its more equal or unequal application. China was equally concerned about those relationships within the Security Council in light of the debates on the right of collective self-defence during the Iraq-Kuwait war as well as about the relationship between the aggressor state (Iraq) and the aggressed nation (Kuwait) and between all those parties to the conflict (Iraq, Kuwait and participating countries in Operation Desert Storm) and the regional countries of the Gulf. The exercise of the right of collective self-defence was, according to the Chinese position, conditioned by the Five Principles of Peaceful Coexistence. As a result, the Security Council’s mandato- ry measures to repel Iraq’s aggression against and occupation of Kuwait had to be limited in time in order for the ties between the affected nations – Iraq and Kuwait in the first place, the countries of the region as well as the members of the multinational military operation led by the us – to be restored towards a peaceful coexistence. Such level of proportionality was a major point of res- ervation for China upon the deployment of the coalition forces given China’s priorities to heal the broken relationships in the Middle East and rebuild their trust as soon as possible. Nonetheless, when China noticed that countries from the region relied on the extended security presence of the coalition – in light of their earlier demands for strengthened military capability to confront the violence at their doorstep, it no longer feared that this would undermine the normativity of the right of collective self-defence. In this regard, the sovereign
A From Collective to Human Security The introduction of the human security paradigm in the 1994 un Human Development Report has redefined the purpose of the exercise of the sover- eignty of states. It was no longer seen as an extension of its power towards the other members of the international community but rather as a prerogative to enhance the protection of its citizens in their respective territories. National security that has the state as its primary reference has thus moved towards human security that honours the protection of the individual and its diverse sets of human rights entitlements in the civil-political, socio-economic and cultural as well as environmental sphere.207 Evidently, the degree of the pro- tection of the respective human rights by states will largely depend on their formal commitments under the various human rights treaties as well as the ex- tent of their socio-economic and political development to secure those rights in practice. States would remain independent, both in political and economic terms, to freely determine how such human rights were to be protected within their domestic jurisdiction.208 While the end of the Cold War would mean the return to the equality of sovereigns within the international legal and political order which was until then dominated by two superpowers and their respective spheres of influence
206 For more on expansive interpretations regarding the use of force, see Yoram Dinstein, War, Aggression and Self-Defence (Cambridge: Cambridge University Press, 2005); Thomas Franck, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2002); Anthony Clark Arend and Robert J. Beck, Interna- tional Law and the Use of Force (London; New York: Routledge, 1993); Derek W. Bowett, Self-defence under International Law (Manchester: Manchester University Press, 1958). For more on restrictive interpretations regarding the use of force, see Olivier Corten, The Law against War (Oxford: Hart, 2010); Christine Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2008); Ian Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963). 207 un Development Programme, Human Development Report (Oxford: Oxford University Press, 1994). 208 See for example, 1966 International Covenant on Civil and Political Rights, Art. 1; 1966 International Covenant on Social, Economic and Cultural Rights, Art. 1
under which states belonged to accordingly, the vacuum of power was soon filled by the us whose hegemony would further divide states no longer on the basis of divergent ideologies – or thoughts – but on the basis of differentiated sovereignty, i.e. in their very existence. Unsurprisingly, over the course of his- tory Western nations have already determined the conditions to become a member of the family of nations through their divisive conceptual tools such as civilizational standards209 and self-determination in the first place and nowadays on the basis of the exercise of state sovereignty, namely in favour of human security and human rights protection.210 Such developments were in line with the liberal international legal dis- course ruling at that time whose “most basic principle of international law is the equal claim to integrity of all states regardless of their political or social ideology”, according to Friedmann.211 Yet, this discourse had developed and refined new distinctions with respect to the membership of such international liberal order based on the deliverance of human rights entitlements of indi- viduals within different states through democratic and good governance.212 Unlike the principle of sovereign equality which underpins the un Charter and which defines the relationship between states, such focus on the human rights of individuals has moved equality out of the equation.213 Instead, these condi- tionalities and shifts in normativity as well as agency at the international level have transformed much of the decision-making processes within international
209 Gerrit W. Gong, The Standard of “Civilization” in International Society (Oxford: Clarendon Press, 1984); David P. Fidler, “The Return of the Standard of Civilization,” Chicago Journal of International Law 2 (2001): 137–157. 210 Andrew Hurrell, “Power, Institutions, and the Production of Inequality,” Michael Barnett and Raymond Duvall, eds., Power in Global Governance (Cambridge: Cambridge Univer- sity Press, 2004), 40; Winston P. Nagan and Craig Hammer, “The Changing Character of Sovereignty in International Law and International Relations,” Columbia Journal of Inter- national Law 43 (2004): 141–188; Richard Steinberg, “Who Is Sovereign?,” Stanford Journal of International Law 40 (2004): 329–345. 211 Wolfgang Friedmann, “Intervention, Civil War and the Role of International Law,” Richard Falk, ed., The Vietnam War and International Law (London: Oxford University Press, 1968), 151. 212 See for example, Thomas Franck, “The Emerging Right to Democratic Governance,” Amer- ican Journal of International Law 86 (1992): 46–91; Fernando R. Tesón, “The Kantian The- ory of International Law,” Columbia Law Review 92 (1992): 53–102; Anne-Marie Slaughter, “International Law in a World of Liberal States,” European Journal of International Law 6 (1995): 503–538; Branwen Gruffydd Jones, “‘Good Governance’ and ‘State failure’: Genealo- gies of Imperial Discourse,” Cambridge Review of International Affairs 26 (2013): 49–70. 213 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004), 81.
institutions, the balance of powers amongst its members as well as different forms of cooperation between like-minded states – most notably with respect to humanitarian intervention and the doctrine on R2P.214 China remained particularly cautious about such development and the impact of those humanitarian discourses that it conspicuously treated as Western inventions serving their particular security agendas. Their scrutinis- ing efforts – often accused of double standards – however, were partly inter- nalized within China’s own domestic comprehensive security doctrines that sought to consider both traditional security and non-traditional security threats.215 The latter would require other than non-military approaches to ad- dress threats that undermine the economy, the environment, social stability and public health. Those answers – including (renewable) energy policies, so- cial security measures and counter-terrorism – were almost exclusively framed and justified from the strategic perspective of enhancing national sovereignty and the legitimacy of the leadership to be empowered to tackle such common problems that equally affect the well-being of individual Chinese citizens at home and abroad.216 The interaction between traditional and non-traditional security would, ac- cording to Hu Jintao, require a comprehensive response of all nations to ad- dress threats common to all.217 China’s methods towards tackling both types of security challenges of a trans/international character still rely on its Five Principles of Peaceful Coexistence yet their recalibration of human security has not undermined the dominance of national security in the course of those joint actions with other states. Their relationships could not possibly be af- fected by various country-specific approaches to human security.218 Nonethe- less, within a regional context, China together with East Asian and Southeast
214 Christian Reus-Smit, “The Politics of International Law,” in Christian Reus-Smit, ed., The Politics of International Law (Cambridge: Cambridge University Press, 2004), p. 34. 215 Shaun Breslin, “Debating Human Security in China: Towards Discursive Power?,” Journal of Contemporary Asia 45 (2015): 243–265. See also J. Samuel Barkin, International Orga- nization: Theories and Institutions (New York: Palgrave Macmillan, 2013), 67–76; Brendan Howe, The Protection and Promotion of Human Security in East Asia (New York: Palgrave Macmillan, 2013); Hitoshi Nasu “Revisiting the Principle of Non-Intervention: A Structural Principle of International Law or a Political Obstacle to Regional Security in Asia?,” Asian Journal of International Law 3 (2013): 25–50. 216 State Council Information Office, White Paper on China’s National Defense in 2008. 217 Hu Jintao, “Unite as One and Work for a Bright Future,” Statement at the General Debate of the 64th Session of the un General Assembly (New York, 23 September 2009). 218 Jia Li and Xiaofeng Yu, “Human Security: China’s Conceptual Aproaches and Policymak- ing Patterns,” William T. Tow, David Walton and Rikki Kersten, eds., New Approaches to
Asian countries have sought to cooperate more closely together and enhance dialogue on those various security challenges.219 Within the Asia-Pacific, the Asia-Pacific Economic Cooperation’s (apec) meeting of 2004 had prompted China to include human security in its official discourse. Major threats it con- sidered were related to public health, including epidemics and terrorism.220 Outside the region, a common understanding regarding the advancement of human security remained subject to the diverse interpretations of developed and developing countries that would respectively treat human security as an independent or dependent goal of national security concerns in the first place. They equally differ about the role of the state and civil society in the realisa- tions of such objectives. Furthermore, their divergent stance on the nature of the threat to human security as an infringement of economic and social poli- cies, from the perspective of developing nations, and of individual political rights, from the perspective of developed countries, would render cooperation at the international level more difficult and affect the effectiveness of global governance.221 It is within the latter realm that the contestation regarding the violation of individual political rights as manifested in the violation of other hu- man rights – including torture, cruel treatment and other forms of (political) oppression – has compromised the ability of developed and developing states to find a common agreement in facing such threats to human security and whose effects may have further consequences for international peace and security. Under the collective security regime of the United Nations, the latter’s quali- fication by the Security Council pursuant to Article 39 of the un Charter, would against such background inevitably face opposition and put increasingly more
Human Security in the Asia-Pacific: China, Japan and Australia (Farnham: Ashgate, 2013), 20–21. 219 Jiadong Zhang and Xin Zheng, “Human Security in China: A New Approach,” William T. Tow, David Walton and Rikki Kersten, eds., New Approaches to Human Security in the Asia-Pacific: China, Japan and Australia (Farnham: Ashgate, 2013), 45. See for example, the Conference on the Interaction and Confidence-building Measures in Asia (cica) and the Northeast Asia Cooperation Dialogue. The Shanghai Cooperation Organisation (sco) specifically tackles extremism, separatism and terrorism. China and asean had signed a Joint Declaration of asean and China on Cooperation in the Field of Non-traditional Security Issues (4 November 2002). 220 Xiao Ren and Yanxing Li, “A Return to People: China’s Approach to Human Security,” William T. Tow, David Walton and Rikki Kersten, eds., New Approaches to Human Security in the Asia-Pacific: China, Japan and Australia (Farnham: Ashgate, 2013), 30. 221 Guoguang Wu, “Human Security Challenges with China: Why and How the Rise of China Makes the World Vulnerable,” in Guoguang Wu, ed., China’s Challenges to Human Security: Foreign Relations and Global Implications (New York: Routledge, 2013), 1–27.
B Humanitarian Intervention Ever since the enunciation of the doctrine of human security, the international community had taken in a number of instances the responsibility to act ac- cordingly. In this respect, where the Security Council had found that an inter- national threat to international peace and security existed, it had authorised the deployment of multinational military operations with a humanitarian mandate that was carried out by a coalition of states or a regional organisa- tion.222 Their mandates aimed to secure the particular needs of the civilian populations that had suffered from humanitarian crises that are the result of (trans)national armed conflicts. Yet, in a number of instances, such authorisa- tion on behalf of the Security Council was not granted and had undermined the normativity of a potential new norm that would support the use of force for those diverse humanitarian purposes beyond the use of individual and col- lective self-defence. Furthermore, they had compromised the ability of the
222 Christian Henderson, “Authority without Accountability? The un Security Council’s Au- thorization Method and Institutional Mechanisms of Accountability,” Journal of Conflict and Security Law 19 (2014): 489–509; Norrie MacQueen, Humanitarian Intervention and the United Nations (Edinburgh: Edinburgh University Press, 2011), 1–41; James Pattison, “Legitimacy and Humanitarian Intervention: Who Should Intervene?,” International Jour- nal of Human Rights 12 (2008): 395–413; Dan Sarooshi, The United Nations and the De- velopment of Collective Security: The Delegation by the un Security Council of its Chapter vii Powers (Oxford: Oxford University Press, 2000); Niels Blokker, “Is the Authorization Authorised? Powers and Practice of the un Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing’,” European Journal of International Law 11 (2000): 541–568.
Security Council to take future action whenever faced with such humanitarian crises where it had exercised its mandate before pursuant to the un Charter. Such intransigence was not necessarily a new phenomenon ever since the col- lective security regime was established in the aftermath of the Second World. Its roots are equally grounded in the absence of sufficient communication and dialogue that would enhance trust between the decision-makers and the per- manent members of the Security Council in the first place.223 One of the earliest examples of humanitarian interventions – prior to the doctrine of human security, was the deployment of the United Task Force (uni- taf) that was set up during the Somalian civil war of the 1990s. On 3 December 1992, the Security Council had authorised unitaf under Chapter vii of the un Charter224 to protect the delivery of humanitarian relief operations that were taking place under the auspices of the United Nations Operation in Somalia (unosom) – a un peacekeeping operation – that was facing serious security threats.225 The absence of a precise timetable and the lack of control remained a point of concern for China that favoured an explicit approval of the Security Council on the terms of the multinational military operation. It did not have any objection per se to the mandate, namely to protect humanitarian relief operations, but about the potential use of force beyond the securitization of the environment for such purposes.226 Within Central Africa, another humanitarian mission was deployed, namely the French-led Opération Turquoise that was set up on 22 June 1994 during the ongoing genocide in Rwanda that had started since early April 1994. In this regard, the Security Council had authorised that this military operation
223 Christine Gray, “A Crisis of Legitimacy for the un Collective Security System?,” Interna- tional and Comparative Law Quarterly 56 (2007): 157–170; Daphné Richemond, “Norma- tivity in International Law: The Case of Unilateral Humanitarian Intervention,” Yale Hu- man Rights and Development Journal 6 (2003): 45–80 Adam Roberts, “The So-called Right of Humanitarian Intervention,” Yearbook of International Humanitarian Law 3 (2000): 3–51; David Campbell, “Why Fight: Humanitarianism, Principles, and Post-structuralism,” Millennium – Journal of International Studies 27 (1998): 497–521; Inger Österdahl, “By All Means Intervene! The Security Council and the Use of Force under Chapter vii of the un Charter in Iraq (to Protect the Kurds), in Bosnia, Somalia, Rwanda and Haiti,” Nordic Jour- nal of International Law 66 (1997): 241–271; Fernando R. Tesón, “Collective Humanitarian Intervention,” Michigan Journal of International Law 17 (1995–1996): 323–371. 224 un Doc. S/RES/794 (3 December 1992). 225 unosom was established by the Security Council on 24 April 1992. See un Doc. S/RES/751 (24 April 1992). 226 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3145 (3 December 1992), 17.
227 un Doc. S/RES/922 (22 June 1994). 228 unamir was established by the Security Council on 5 October 1993. See un Doc. S/RES/872 (5 October 1993). 229 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3392 (22 June 1994), 4. 230 un Doc. S/RES/1078 (9 November 1996); un Doc. S/RES/1080 (15 November 1996). 231 un Doc. S/RES/1097 (18 February 1997). 232 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3713 (15 November 1996), 13.
The notorious Kosovo bombing campaign led by nato from 24 March until 10 June 1999 has been the textbook example of humanitarian intervention. The absence of a Security Council authorisation had severely affected the legal- ity and more importantly the legitimacy of the mission. The latter proved to be particularly necessary whenever developing a new norm that would per- mit the use of force beyond self-defence and whose operationalization was not possible within the siege of the Security Council at that time. Prior to the nato intervention, China was deeply concerned with the Kosovo question and argued from the beginning that such remained an internal question of the Federal Republic of Yugoslavia whose sovereignty and territorial integrity should be respected in the process of peaceful negotiation between the parties concerned.233 Meanwhile, on 13 October 1998, the Council of nato authorised air strikes in response to the deteriorating humanitarian situation in Kosovo and the risk it would pose to other neighbouring countries.234 They were even- tually called off when nato and President Milosevic reached an agreement on 15 October 1998235 where the latter promised to respect the requirements of Security Council resolution 1199 that demanded the parties to the conflict to respect the ceasefire and alleviate the humanitarian situation in Kosovo.236 China opposed the unilateral interference in the internal affairs of the Federal Republic of Yugoslavia on behalf of nato without it having consulted with the Security Council or having sought its authorisation. The Chinese ambassador continued that such violation of international law would undermine the au- thority of the Security Council in particular and the United Nations in general and as a result “has created an extremely dangerous precedent in international relations”. He further reserved that the resolution to which China abstained should not have been adopted under Chapter vii of the un Charter – thus making it possible to enforce the respect of the agreement between nato and the Federal Republic of Yugoslavia of 15 October – and be read to authorise use of force or threats thereof in case it would not be respected.237 When the bombing campaign started, China opposed the use of force not only as a matter of principle in international relations but more specifically in
233 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.3868 (31 March 1998), 11. 234 nato, “nato’s Role in Relation to the Conflict in Kosovo,” http://www.nato.int/kosovo/ history.htm (accessed 1 June 2017). 235 un Doc. S/RES/1203 (24 October 1998). 236 un Doc. S/RES/1199 (23 September 1998). 237 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3937 (24 October 1998), 14.
Kosovo where it found that such use showed proof of “the power politics of the strong bullying the weak”.238 The attack against the Chinese embassy in Bel- grade on 7 May 1999 reinforced the condemnation “of this barbaric action”.239 The Chinese ambassador further deplored that “in the name of humanitari- anism” the nato war had created a far more humanitarian disaster and vio- lated the law of war.240 He warned that the violation of the un Charter has “undermined the authority of the Security Council, thus setting an extremely dangerous precedent in the history of international relations”. Forsaking the peaceful resolution of conflict – regional and international alike – and using force instead, according to the Chinese delegation, would prevent the prin- ciples and purposes of the un Charter to become a reality namely where “all States live in harmony achieve common development”. Power politics instead, the ambassador continued, would make peace impossible and “damage the sovereignty and independence of countries”. He added that such human rights hegemonism violated the un Charter.241 In the aftermath of the popular referendum in East Timor on 30 August 1999, violent clashes between supporters of independence for East Timor and the Indonesian government’s armed and security forces triggered a massive dis- placement of the civilian population of East Timor. Attacks against the United Nations Assistance Mission in East Timor (unamet)242 – a un peacekeeping operation – made humanitarian assistance very difficult in such insecure en- vironment. As a result, on 15 September 1999, the Security Council authorised under Chapter vii of the un Charter the establishment of a multinational mil- itary force to restore the security in East Timor accordingly and to “facilitate
238 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3989 (26 March 1999), 9. 239 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.4000 (8 May 1999), 2. 240 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.4003 (14 May 1999), 7. 241 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.4011 (10 June 1999), 8–9. See more on China and humanitarian intervention, Aglaya Snetkov and Marc Lanteigne, “‘The Loud Dissenter and its Cautious Partner’ – Russia, China, Global Governance and Humanitarian Intervention,” International Relations of the Asia-Pacific 15 (2015): 113–146; Chiung-Chiu Huang and Chih-Yu Shih, Harmonious Inter- vention: China’s Quest for Relational Security (Farnham: Ashgate, 2014); Jonathan E. Davis, “From Ideology to Pragmatism: China’s Position on Humanitarian Intervention in the Post-Cold War Era,” Vanderbilt Journal of Transnational Law 44 (2011): 217–283. 242 unamet was established by the Security Council on 11 June 1999. See un Doc. S/RES/1246 (11 June 1999).
C Responsibility to Protect The international community has, ever since the Kosovo crisis, and the global war on terror further refined its position concerning its responsibility rather than its right to intervene in the domestic affairs of states. The Security Council traditionally mandated to maintain and restore international peace and secu- rity has done so extensively but has received other tools of the international community and the General Assembly, in particular, to frame its obligations to interfere under a specific set of conditions. Those were defined and shaped by
243 un Doc. S/RES/1264 (15 September 1999). 244 un Doc. S/RES/1497 (1 August 2003). 245 unmil was established by the Security Council on 19 September 2003. See un Doc. S/RES/1509 (19 September 2003). 246 Speech of Chinese ambassador ZHANG Yishan before the Security Council, S/PV.4803 (1 August 2003), 6.
247 un Doc. A/RES/60/1 (24 October 2005), paras. 138–139. See more on R2P: Miodrag A. Jovanović, “Responsibility to Protect and the International Rule of Law,” Chinese Journal of International Law 14 (2015): 757–776. Diana Amnéus, “Responsibility to Protect: Emerg- ing Rules on Humanitarian Intervention?,” Global Society 26 (2012): 241–276; Chao Huang, “Kuangding Zhanlue yu ‘Baohu de Zeren’ Guifan Kuosan de Dongli (‘Framing Strategy and the Dynamics of R2P Norm Diffusion’),” Shijie Jingji yu Zhengzhi (World Economics and Politics) 9 (2012): 58–72; Touko Piiparinen, “Norm Compliance by Proximity: Ex- plaining the Surge of Regional Actors in Responsibility to Protect,” Conflict, Security and Development 12 (2012): 387–415; Daniel Baer, “The Ultimate Sacrifice and the Ethics of Humanitarian Intervention,” Review of International Studies 37 (2011): 301–326; Tara Mc- Cormack, “The Responsibility to Protect and the End of the Western Century,” Journal of Intervention and Statebuilding 4 (2010): 69–82; Cristina G. Badescu and Linnea Bergholm, “The Responsibility To Protect and the Conflict in Darfur: The Big Let-Down,” Security Dialogue 40 (2009): 287–309; Hitoshi Nasu, “Operationalizing the ‘Responsibility to Pro- tect’ and Conflict Prevention: Dilemmas of Civilian Protection in Armed Conflict,” Journal of Conflict and Security Law 14 (2009): 209–241; James Pattison, “Whose Responsibility to Protect? The Duties of Humanitarian Intervention,” Journal of Military Ethics 7 (2008): 262–283; Carlo Focarelli, “The Responsibility to Protect Doctrine and Humanitarian In- tervention: Too Many Ambiguities for a Working Doctrine,” Journal of Conflict and Secu- rity Law 13 (2008): 191–213; Carsten Stahn, “Responsibility to Protect: Political Rhetoric or Emerging Legal Norm,” American Journal of International Law 101 (2007): 99–120; Shoup- ing Li, “‘Baohu de Zeren’ yu Xiandai Guoji Falu Zhixu (‘“Responsibility to Protect” and International Legal Order’),” Zhengfa Luntan (Zhongguo Zhengfa Daxue Xuebao) (Tribune of Political Science and Law (Journal of China University of Political Science and Law)) 24 (2006): 99–153; Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to Responsibility to Protect (New York: Cambridge University Press, 2006); S. Neil MacFarlane, Carolin J. Thielking and Thomas G. Weiss, “The Responsibility to Protect: Is Anyone Interested in Humanitarian Intervention?,” Third World Quarterly 25 (2004):
unequivocally supported the doctrine of R2P formulated from the beginning. Its first manifestation in Libya, however, has caused reluctance on behalf of China to insert itself in this humanitarian logic, and as a result, it has reposi- tioned itself concerning the international legal framework and its own Five Principles of Peaceful Coexistence. In this regard, the operationalization of R2P with a civilian protection man- date in Libya authorised by the Security Council in March 2011 was initially hailed as a victory over inaction that has plagued the international community ever since the humanitarian crisis in Kosovo.248 Rather than being preoccupied with the internal affairs of Libya, the Security Council would act responsibly in the face of international crimes committed by the Kaddafi regime against its civilian population rather than supporting the rebel forces who were fighting against the Kaddafi troops – though in practice the former covertly received training, logistical and intelligence support from some Western countries, in- cluding France and the uk.249 The nato aerial bombing campaign to enforce the no-fly zone has ultimately led to a forceful regime change of the Kaddafi government that was replaced by the rebel forces.250 China had major reservations as to the absence of clarity concerning such use of force advanced in resolution 1973 and as a result abstained from its adop- tion. Instead, it furthered that the international community should “respect the sovereignty, independence, unification and territorial integrity of Libya, and help resolve the current crisis in Libya through peaceful means”.251 In fur- therance of the Security Council Open Debates on the Protection of Civilians
977–992; Siobhán Wills, “Military Intervention on Behalf of Vulnerable Populations: The Legal Responsibilities of States and International Organizations Engaged in Peace Sup- port Operations,” Journal of Conflict & Security Law 9 (2004): 387–418. 248 un Doc. S/RES/1973 (17 March 2011). 249 Jason D. Meyer, “From Paralysis in Rwanda to Boldness in Libya: Has the International Community Taken ‘Responsibility to Protect’ from Abstract Principle to Concrete Norm under International Law,” Houston Journal of International Law 34 (2011): 105 (87–107). Prior to the adoption of resolution 1973, the Security Council adopted resolution 1970 that endorsed the concept of R2P and acknowledged the urgency of the Libyan situation. The same resolution referred the Libyan situation to the icc. See un Doc. S/RES/1970 (26 February 2011). 250 Matthias Vanhullebusch, “Regime Change, the Security Council and China,” Chinese Jour- nal of International Law 14 (2015): 665–707; Mehrdad Payandeh, “The United Nations, Military Intervention, and Regime Change in Libya,” Virginia Journal of International Law 52 (2012): 355–403. 251 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6498 (17 March 2011), 10.
252 Speech of Chinese ambassador LI Baodong at the Security Council Open Debate on the Protection of Civilians in Armed Conflict, un Doc. S/PV.6531 (10 May 2011), 20–21. 253 Speech of Chinese ambassador LI Baodong at Security Council Open Debate on Protec- tion of Civilians in Armed Conflict, un Doc. S/PV.6650 (9 November 2011), 24–25. 254 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6620 (16 September 2011), 4–5. See also Xuetong Yan, “How Assertive Should a Great Power Be?,” The New York Times, 31 March 2011. 255 unsmil was established by the Security Council on 11 September 2001. See un Doc. S/RES/2009 (11 September 2011).
256 Haitao Huang, Ganshe de Beilun Lengzhan hou de Rendao Zhuyi Ganshe Yanjiu (The Para- dox of Intervention Humanitarian Interventions in the Post-cold War Era) (Tianjin: Nan- kai Daxue Chubanshe (Nankai University Press), 2015); Aidan Hehir and Robert Murray, Libya, the Responsibility to Protect and the Future of Humanitarian Intervention (New York: Palgrave Macmillan, 2013); Daniel Silander, “R2P: Principle and Practice? The unsc on Libya,” Journal of Applied Security Research 8 (2013): 262–284; Elizabeth O’Shea, “Respon- sibility to Protect (R2P) in Libya: Ghosts of the Past Haunting the Future,” International Human Rights Law Review 1 (2012): 173–190; Pierre Thielbörger, “The Status and Future of International Law After the Libya Intervention,” Goettingen Journal of International Law 4 (2012): 31; Yonghong Yang, “Lun Baohu Zeren dui Libiya zhi Shiyong (‘Responsibility to Protect Applied to Libya’),” Faxue Pinglun (Law Review) 2 (2012): 120–126; Yunling Zhang, Xifang Xin Guoji Ganyu de Lilun yu Xianshi (Theory and Reality of New Western Internation- al Intervention) (Beijing: Shehui Kexue Wenxian Chubanshe (Social Science Academic Press), 2012); Jennifer Welsh, “Civilian Protection in Libya: Putting Coercion and Contro- versy Back into RtoP,” Ethics and International Affairs (2011): 1–8; Paul R. William and Col- leen Popkent, “Security Council Resolution 1973 on Libya: A Moment of Legal and Moral Clarity,” Case Western Journal of International Law 44 (2011): 225–250. 257 See also Christine Gray, “A Crisis of Legitimacy for the un Collective Security System?,” International & Comparative Law Quarterly 56 (2007): 167–168. A split between developed and developing nations has already been present and accentuated in previous debates on the operationalization of R2P – a tool at the disposal of powerful states to interfere within the domestic affairs of the countries of the South. Such underlying motivations have ever since influenced the decision-making process within the Security Council. 258 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6627 (4 October 2011), 5. This was the first out of six vetoes which China has casted in the Syrian crisis. See also Gerrit Kurtz and Philipp Rotmann, “The Evolution of Norms of Protection: Major Powers Debate the Responsibility to Protect,” Global Society 30 (2016): 3–20; Aglaya Snetkov and Marc Lanteigne, “‘The Loud Dissenter and its Cautious Partner’ – Russia, China, Global Governance and Humanitarian Intervention,” International Relations of the Asia-Pacific 15 (2015): 113; Zhipeng He, “Baohu de Zeren: Fazhi Liming haishi Baozheng Chongxian? (‘Responsibility to Protect: Dawn of Rule of Law or Recurrence of Tyranny?’),” Dangdai Faxue (Contemporary Law Review) 1 (2013): 145–153; Ramesh Thakur, “R2P after Libya and Syria: Engaging Emerging Powers,” The Washington Quarterly 36 (2013): 63.
Any measures in defiance of the un principles on behalf of a Security Council resolution would rather complicate the resolution of the conflict if the Council would decide to pressurise the Syrian regime in one way or another.259 China repeated that it was “against any interference in internal affairs in the name of humanitarianism”.260 Moreover, China expressed once again its deep concern about the disunity within the Council that jeopardized the role, authority and thus functioning of the Council as such. According to China, the world could not afford to slide back into its Cold War rhetoric.261 Alternatively, China has increased its commitment to seek for diplomatic solutions within the Middle Eastern region with the different stakeholders in- cluding the Assad government, the united opposition and the Arab League.262 It kept emphasising the importance of the international community to con- tinue to support the mediation efforts of the un-Arab League Special Envoys Mr Kofi Annan and Mr Lakhdar Brahimi in finding a resolution through politi- cal means.263 While the disconnect persisted between the so-called consensus of the international community to seek for an inclusive dialogue and political process in resolving the Syrian crisis and the actual dire humanitarian real- ity on the ground, China argued to have acted equally in a “consistent and re- sponsible” fashion in the face of such stalemate on the battlefield and in the Security Council. It firmly “oppose[d] any externally imposed solution aimed
259 Speech of Chinese Ambassador LI Baodong before the Security Council, un Doc. S/PV.6711 (4 February 2012), 9–10. This is the second time that China vetoed a draft resolution on the Syrian crisis. It should be noted that China also opposed the adoption of a resolu- tion of the un Human Rights Council that condemned the Syrian government for having “manifestly failed in their responsibility to protect the Syrian population”. See un Doc. A/HRC/19/L.38/Rev. 1 (22 March 2012). 260 Speech of Chinese Ambassador LI Baodong before the Security Council, un Doc. S/PV.6734 (12 March 2012), 19. 261 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6810 (19 July 2012), 13–14. This is the third time that China vetoed a draft resolution on the Syr- ian crisis. See also Xi Jinping, The Governance of China (Beijing: Foreign Languages Press, 2014), 299. 262 Along the efforts of the international community, China pursued a number of proposals to solve the Syrian crisis, namely: the Six-Point Propositions, “A Leading Official of the Foreign Ministry Makes Remarks to Further Elaborate on China’s Position on the Political Resolution of the Syrian Crisis,” 5 March 2012; the Four-Point Proposals, “China Elaborates Proposals on a Political Resolution to the Syrian Conflict, Ministry of National Defense of the People’s Republic of China,” 1 November 2012; and the Five Principles, “China Stands for Five Principles in a Political Settlement of the Syrian Issue,” 21 January 2014. 263 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6816 (25 July 2012), 18.
264 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6826 (30 August 2012), 33. 265 Statement by the President of the Security Council on “The Situation in the Middle East”, un Doc. S/PRST/2015/15 (17 August 2015), 1. See also Courtney J. Fung, “Global South Soli- darity? China, Regional Organisations and Intervention in the Libyan and Syrian Civil Wars,” Third World Quarterly 37 (2016): 33–50; Christo Odeyemi, “Re-emerging Powers and the Impasse in the unsc over R2P Intervention in Syria,” Strategic Analysis 40 (2016): 122–149; Tom Ruys, “Of Arms, Funding and ‘Nonlethal Assistance’: Issues Surrounding Third-State Intervention in the Syrian Civil War,” Chinese Journal of International Law 13 (2014): 13–53; Anders Henriksen and Marc Schack, “The Crisis in Syria and Humanitarian Intervention,” Journal on the Use of Force and International Law 1 (2014): 122–147; Carsten Stahn, “Between Law-breaking and Law-making: Syria, Humanitarian Intervention and ‘What the Law Ought to Be’,” Journal of Conflict & Security Law 19 (2014): 25–48; Philippa Webb, “Deadlock or Restraint? The Security Council Veto and the Use of Force in Syria,” Journal of Conflict & Security Law 19 (2014): 471–488; Thomas G. Weiss, “Military Humani- tarianism: Syria Hasn’t Killed It,” The Washington Quarterly 37 (2014): 7–20; Carsten Stahn, “Syria and the Semantics of Intervention, Aggression and Punishment: On ‘Red Lines’ and ‘Blurred Lines’,” Journal of International Criminal Justice 11 (2013): 955–977; Xing Qu: “Lian- heguo Xianzhang, Baohu de Zeren yu Xuliya Wenti Yanjiu (‘un Charter, Responsibility to Protect and Syria Issues’),” Guoji Wenti Yanjiu (International Studies) 9 (2012): 6–18. 266 un Doc. S/RES/2118 (27 September 2013). 267 Speech of Chinese ambassador WANG Yi before the Security Council, un Doc. S/PV.7038 (27 September 2013), 9.
Laurent Gbagbo by French armed forces. The latter refused to resign and hand over power after the democratic victory of its opponent Mr Alassane Ouattara. This power struggle went hand in hand with physical violence against the ci- vilian population supporting either side. Unlike the unpronounced intentions of the Libyan intervention,268 the Security Council in the case of Ivory Coast was crystal-clear.269 China’s rhetorical commitments to a political and inclu- sive settlement of the disputes have once again been reiterated. The impartial support of unoci should further “help to peacefully settle the crisis […] and avoid becoming a party to the conflict”.270 China’s principled attitude towards the development and operationaliza- tion of the doctrine of R2P has shown proof of great reluctance towards the normative basis for such action within the un Charter without violating the principle of non-interference and respect for the political independence and territorial integrity of nations.271 An enormous weight lay on the shoulders of
268 Anastasia Shesterinina and Brian L. Job, “Particularized Protection: unsc Mandates and the Protection of Civilians in Armed Conflict,” International Peacekeeping 23 (2016): 240– 273; Sean Butler, “Separating Protection from Politics: The un Security Council, the 2011 Ivorian Political Crisis and the Legality of Regime Change,” Journal of Conflict and Security Law 20 (2015): 251–276; Christian Henderson, “International Measures for the Protection of Civilians in Libya and Côte d’Ivoire,” International and Comparative Law Quarterly 60 (2011): 772–773. 269 un Doc. S/RES/1975 (30 March 2011), 1: “Urges all the Ivorian parties and other stakehold- ers to respect the will of the people and the election of Alassane Dramane Ouattara as President of Côte d’Ivoire, as recognized by ecowas, the African Union and the rest of the international community, expresses its concern at the recent escalation of violence and demands an immediate end to the violence against civilians, including women, chil- dren and internally displaced persons.” 270 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6508 (30 March 2011), 7. 271 Andrew Garwood-Gowers, “China and the ‘Responsibility to Protect’: The Implications of the Libyan Intervention,” Asian Journal of International Law 2 (2012): 388 (375–393). See also Tim Dunne and Sarah Teitt, “Contested Intervention: China, India, and the Respon- sibility to Protect,” Global Governance 21 (2015): 371–391; Tiewa Liu, Baohu de Zeren: Guoji Guifan Jiangou zhong de Zhongguo Shijiao (The Responsibility to Protect: Chinese Perspec- tives on International Norm Building) (Beijing: Beijing Daxue Chubanshe (Peking Univer- sity Press), 2015); Tiewa Liu and Haibin Zhang, “Debates in China about the Responsibility to Protect as a Developing International Norm: A General Assessment,” Conflict, Security and Development 14 (2014): 403–427; Yahua Luo, “‘Baohu de Zeren’ de Fanzhan Licheng yu Zhongguo de Lichang” (“The Development of ‘the Responsibility to Protect’ and ‘China’s Positions’),” Guoji Zhengzhi Yanjiu (The Journal of International Studies) 3 (2014): 11–25; Shuming Wang, “‘Baohu De Zeren’ He Zhongguo De Xuanze (‘R2P and China’s Choice’),” Guoji Luntan (International Forum) 16 (2014): 36–40; Jochen Prantl and Ryoko Nakano, “Global Norm Diffusion in East Asia: How China and Japan Implement the Responsibility
Conclusion
Over the course of history, the normativity of the international laws on the use of force, namely the prohibition of aggression and the right of individual, collective and pre-emptive self-defence had to cope with competing interests of imperialist and developed countries on the one hand and of developing na- tions on the other hand. China’s principled stance – prior to its reinstatement to the un in 1971 – had sought to expose the long-term and unsustainable con- sequences of the unequal relationship that inevitably led to a differentiated
to Protect,” International Relations 25 (2011): 204–223; Nicola P. Contessi, “Multilateral- ism, Intervention and Norm Contestation: China’s Stance on Darfur in the un Security Council,” Security Dialogue 41 (2010): 323–344; Daniel Large, “China’s Sudan Engagement: Changing Northern and Southern Political Trajectories in Peace and War,” China Quar- terly 199 (2009): 610–626; Sarah Teitt, “Assessing Polemics, Principles and Practices: Chi- na and the Responsibility to Protect,” Global Responsibility to Protect 1 (2009): 208–236; Zeray Yihdego, “Darfur and Humanitarian Law: The Protection of Civilians and Civilian Objects,” Journal of Conflict and Security Law 14 (2009): 37–69; Eric Reeves, “Shame With- out End: Darfur and ‘the Responsibility to Protect’,” Yale Journal of International Affairs 3 (2008): 51–59. 272 Speech of Chinese ambassador WANG Yi before the Security Council, un Doc. S/PV.7038 (27 September 2013), 9. 273 Frank Ching, “The Era of Abstention by China is Gone,” New Strait Times, 16 February 2012.
Introduction
Under the un framework of collective security and in the exercise of its mandate to maintain international peace and security, the un Security Coun- cil has from the very beginning taken the initiative to establish peacekeep- ing operations. Over the course of history, the nature and objectives of such peacekeeping operations have transformed from traditional peacekeeping to peacebuilding, peace support, and peace enforcement operations. The grad- ual process of capacity-building and professionalisation of un peacekeepers as well as the needs on the ground have shaped such alterations accordingly.1
1 Joachim Koops, Norrie MacQueen, Thierry Tardy and Paul D. Williams, eds., The Oxford Handbook of United Nations Peacekeeping Operations (Oxford: Oxford University Press, 2015); John Karlsrud, “The un at War: Examining the Consequences of Peace-Enforcement Mandates for the un Peacekeeping Operations in the car, the drc and Mali,” Third World Quarterly 36 (2015): 40–54; Dan Liu, Lianheguo Weihe Xingdong de Kunjing ji Qianjing (The Di- lemma and Prospect of the un Peacekeeping Operation) (Beijing: Shishi Chubanshe (Current Affairs Press), 2015); Thomas G. Weiss and Martin Welz, “Military Twists and Turns in World Politics: Downsides or Dividends for un Peace Operations?” Third World Quarterly 36 (2015): 1493–1509; Alex J. Bellamy and Paul D. Williams, Providing Peacekeepers: The Politics, Chal- lenges, and Future of United Nations Peacekeeping Contributions (Oxford: Oxford University Press, 2013); Philip Cunliffe, Legions of Peace: un Peacekeepers from the Global South (London: Hurst & Company, 2013); Håkan Edström and Dennis Gyllensporre, Political Aspirations and Perils of Security Unpacking the Military Strategy of the United Nations (Basingstoke: Palgrave Macmillan, 2013); Ian Johnstone, The Power of Deliberation: International Law, Politics and Organizations (Oxford: Oxford University Press, 2011), 138; Hitoshi Nasu, International Law on Peacekeeping: A Study of Article 40 of the un Charter (Leiden: Martinus Nijhoff Publishers, 2009); Lise Morjé Howard, un Peacekeeping in Civil Wars (Cambridge: Cambridge University Press, 2008); Susan C. Breau, “The Impact of the Responsibility to Protect on Peacekeeping,” Journal of Conflict and Security Law 11 (2006): 429–464; Norrie MacQueen, Peacekeeping and the International System (London: Routledge, 2006); Ying Sun, Lianheguo Weihe Xingdong We- ifa Zeren Yanjiu (un’s Responsibility in Peacekeeping Operations) (Beijing: Zhishi Chanquan Chubanshe (Intellectual Property Publishing, 2006); Earl Conteh-Morgan, “Peacebuilding and Human Security: A Constructivist Perspective,” International Journal of Peace Studies 10 (2005): 69–96; James D. Fearon and David Laitin, “Neotrusteeship and the Problem of Weak States,” International Security 28 (2004): 5–43; Francis Fukuyama, State-building: Governance and World Order in the 21st Century (Ithaca: Cornell University Press, 2004).
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Peacekeeping has become an indispensable tool on behalf of the un (Security Council) to carry out its ambitions to assist nation states in resolving their in- ternational and internal disputes, both peacefully and towards a sustainable and long-term solution, one that is acceptable to all parties to the conflict – state and non-state alike. The resources put a the disposal of such un peace- keeping missions have changed from exclusively military personnel to civilian police, administrators, to prosecutors, judges and engineers whose mandates have increasingly ensured a greater interaction across and collaboration be- tween civil and military sectors, in particular in the areas of training and secu- rity sector reform.2 The diverse nature of the different kinds of expertise which are needed to set up, support and sustain un peacekeeping operations within more and more complex conflict situations has further highlighted the need for sensibil- ity and ability on behalf of civilian and military personnel sent by participat- ing un member states to confront such conflicts. Beyond the importance of training, guidelines as well as operational principles – also known as the Three Hammarskjöld Principles,3 namely consent of the host state, impartiality and non-use of force except for self-defence, the cooperation with regional actors
2 Kofi Nsia-Pepra, un Robust Peacekeeping: Civilian Protection in Violent Civil Wars (New York: Palgrave Macmillan, 2014); Bethan K. Greener, “The Rise of Policing in Peace Operations,” In- ternational Peacekeeping (2011) 18: 183–195; Roland Paris and Timothy D. Sisk, Managing Con- tradictions: The Inherent Dilemmas of Postwar Statebuilding (New York: International Peace Academy, 2007); Lisa A. Hall MacLeod, Constructing Peace: Lessons from un Peacebuilding Operations in El Salvador and Cambodia (Lanham: Lexington Books, 2006); Benjamin Reilly, “Elections in Post-conflict Societies,” Edward Newman and Roland Rich, eds., The un Role in Promoting Democracy: Between Ideas and Reality (Tokyo: United Nations University Press, 2006), 113–134; Charles T. Call, Institutionalizing Peace: A Review of Post-conflict Peacebuilding Concepts and Issues for dpa (New York: United Nations, 2005); Simon Chesterman, You, the People: The United Nations, Transitional Administration and State-building (Oxford: Oxford University Press, 2005). 3 See International Civil Service Commission, Standards of Conduct for the International Civil Service (New York: United Nations, 2013); United Nations Department of Peacekeeping Op- erations, un dpko/dfs Civil Affairs Handbook (New York: United Nations, 2012); United Nations Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines (New York: United Nations, 2008); Ten Rules of Code Personal Code of Conduct for Blue Helmets; We Are United Nations Peacekeepers. See also Jun Nie, Chongtu zhong de Shouwang Lianheguo Weihe Xingdong Chenggong Tiaojian Yanjiu (Keeping Watch in the Conflicts a Study of Conditions for Successful Un Peacekeeping Operations) (Beijing: Shijie Zhishi Chubanshe (World Affairs Press), 2011); Nicholas Tsagourias, “Consent, Neutrality/ Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension,” Journal of Conflict and Security Law 11 (2006): 465–482.
4 Cedric H. de Coning, John Karlsrud and Linnéa Gelot, eds., The Future of African Peace Opera- tions: From Janjaweed to Boko Haram (London: Zed Books, 2016); Isiaka A. Badmus, The African Union’s role in Peacekeeping: Building on Lessons Learned from Security Operations (New York: Palgrave Macmillan, 2015); Abou Jeng, Peacebuilding in the African Union: Law, Philosophy and Practice (Cambridge: Cambridge University Press, 2012); Ademola Abass, Protecting Human Security in Africa (Oxford: Oxford University Press, 2010); Frederik Naert, International Law Aspects of the eu’s Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict (Antwerpen: Intersentia, 2010); Robert P. Barnidge, “The United Nations and the Af- rican Union: Assessing a Partnership for Peace in Darfur,” Journal of Conflict and Security Law 14 (2009): 93–113; Giovanni Grevi, Damien Helly and Daniel Keohane, eds., European Security and Defence Policy: The First Ten Years (1999–2009) (Paris: European Union Institute for Secu- rity Studies, 2009). 5 For more on the numbers of the prc’s participation in un peacekeeping operations: http:// un.org/DEPTS/dpko (accessed 1 June 2017). 6 Courtney J. Fung, China’s Troop Contributions to un Peacekeeping – Peacebrief 212 (Wash- ington d.c.: United States Institute of Peace, 2016); Courtney J. Fung, “Explaining China’s Deployment to un Peacekeeping Operations,” International Relations of the Asia-Pacific 16 (2015): 409–441; Janka Oertel, China and the United Nations: Chinese un Policy in the Areas of Peace and Development in the Era of Hu Jintao (London: Bloomsbury, 2014); Marc Lan- teigne and Miwa Hirono, eds., China’s Evolving Approach to Peacekeeping (London: Rout- ledge, 2012); Miwa Hirono and Marc Lanteigne, “Introduction: China and un Peacekeeping,”
International Peacekeeping 18 (2011): 243–256; Miwa Hirono, “China’s Charm Offensive and Peacekeeping: The Lessons of Cambodia – What Now for Sudan?” International Peacekeep- ing 18 (2011): 328–343; Chin-Hao Huang “Principles and Praxis of China’s Peacekeeping,” In- ternational Peacekeeping 18 (2011): 257–270; Shogo Suzuki, “Why Does China Participate in Intrusive Peacekeeping? Understanding Paternalistic Chinese Discourses on Development and Intervention,” International Peacekeeping 18 (2011): 271–285; Courtney J. Richardson, “A Responsible Power? China and the un Peacekeeping Regime,” International Peacekeeping 18 (2011): 286–297; Marc Lanteigne, “A Change in Perspective: China’s Engagement in the East Timor un Peacekeeping Operations,” International Peacekeeping 18 (2011): 313–327; Lei Zhao, “Two Pillars of China’s Global Peace Engagement Strategy: un Peacekeeping and Interna- tional Peacebuilding,” International Peacekeeping 18 (2011): 344–362; Jianxiang Bi, “Limited Sovereignty: Chinese Peacekeeping Operations in Africa,” Jing Men and Benjamin Barton, eds., China and the European Union in Africa: Partners or Competitors? (Surrey: Ashgate, 2011), 167–184; Bates Gill and Chin-Hao Huang, “China’s Expanding Role in Peacekeeping,” sipri Policy Paper, 25 November 2009; International Crisis Group, China’s Growing Role in un Peacekeeping (Asia Report No. 166, 17 April 2009); Stefan Stähle, “China’s Shifting Atti- tude Towards United Nations Peacekeeping Operations,” China Quarterly 195 (2008): 631–655; Yin He, China’s Changing Policy on un Peacekeeping Operations (Stockholm: Institute for Se- curity and Development Policy, 2007); Zhongying Pang, “China’s Changing Attitude to un Peacekeeping,” International Peacekeeping 12 (2005): 87–104; M. Taylor Fravel, “China’s At- titude toward u.n. Peacekeeping Operations since 1989,” Asian Survey (1996) 36: 1102–1121. From a critical perspective, some have argued that peacekeeping operations on behalf of the un have been tools to keep the non-Western periphery at bay. Such may also explain why China has been particularly hostile in the beginning to this initiative. See Michael Pugh, “Peacekeeping and Critical Theory,” International Peacekeeping 11 (2004): 39–58; Roland Paris, “International Peacebuilding and the ‘Mission Civilisatrice’,” Review of International Studies 28 (2002): 637–656. 7 “Zhongguo Yuanxiang Pai Yizhi Zhuangjiabing Canjia Lianheguo Zhuli Weihe Budui” (“China Dad First Planned to Send Military Troops to Participate in United Nations Peacekeeping Mission in Lebanon”), Xinhua News, 28 September 2006. See also Nongyi Du, Hui Zhou and Kai Yang, Xinzhongguo Junshi Waijiao yu Guoji Weihe Yanjiu (Military Diplomacy of New China and International Peacekeeping) (Beijing: Guofang Daxue Chubanshe (National De- fence University Press), 2015); Lei Zhao and Xinman Gao, Zhonguo Canyu Lianheguo Weichi Heping Xingdong de Qianyan Wenti) (The Cutting-edge Issues of China’s Participation in un Peacekeeping Operations) (Beijing: Shishi Chubanshe (Current Affairs Press), 2011); Lei Zhao and Xinman Gao, Zhongguo Canyu Lianheguo Weichi Heping Xingdong de Qianyan Wenti (The Forefront of China’s Participation in the un Peacekeeping Operations) (Beijing: Shishi
Chubanshe (Current Events Publishing), 2011); Lei Zhao, Jianshe Hexie Shijie de Zhongyao Shijian_Zhongguo Canyu Lianheguo Weichi Heping Xingdong Yanjiu (Important Practice of Building Harmonious World_Study on China’s Participation in un Peacekeeping) (Bei- jing: Zhonggong Zhongyang Dangxiao Chubanshe (Party School of the Central Commit- tee of c.p.c Press), 2010); Junyi Li, Biange yu Hezuo: Zhongguo Canyu Lianheguo Weihe Xingdong zhi Yanjiu (Transformation and Cooperation: A Study of China’s Participation in un Peacekeeping Operations) (Taipei: Xiuwei Zixun Keji Gufen Youxian Gongsi (Showwe Information Limited Liability Company), 2009); Shogo Suzuki “Seeking ‘Legitimate’ Great Power Status in Post-Cold War International Society: China’s and Japan’s Participation in unpko.” International Relations 22 (2008): 45–63. 8 Sheng Guofang, “Statement at the Fourth Committee of the 56th Session of the Gen- eral Assembly on Agenda Item 89: Comprehensive Review of the Whole Question of Peacekeeping Operations in all their Aspects,” 20 November 2001, www.china-un.org/ eng/21244.html (accessed 1 June 2017). See more on “democratization of international relations” in the political report of Communist Party of China’s 16th National Congress (8–14 November 2002). 9 Alex J. Bellamy and Paul D. Williams, Providing Peacekeepers: The Politics, Challenges, and Future of United Nations Peacekeeping Contributions (Oxford: Oxford University Press, 2013). 10 Sarah Teitt, “The Responsibility to Protect and China’s Peacekeeping Policy,” Marc Lan- teigne and Miwa Hirono, eds., China’s Evolving Approach to Peacekeeping (London: Rout- ledge, 2012), 56–70; Sarah Teitt, “The Responsibility to Protect and China’s Peacekeeping Policy,” International Peacekeeping 18 (2011): 298–312; Robert G. Weiss and Steven Hill, “China as Peacekeeper: Implications for the Law and Politics of Humanitarian Interven- tion,” Yale Journal of International Affairs 6 (2011): 137–139; Bates Gill and James Reilly, “Sovereignty, Intervention and Peacekeeping: The View from Beijing,” Survival: Global Politics and Strategy 42 (2000): 41–60.
11 See Principles of un Peacekeeping, http://www.un.org/en/peacekeeping/operations/ principles.shtml (accessed 1 June 2017).
A Security Council Authorisation The earliest case where the prc participated – since its reinstatement to the un in 1971– in the Security Council’s deliberations on un peacekeeping op- erations concerned the operation of the United Nations Truce Supervision Organisation (untso).13 Following deliberations, on 23 October 1973, the Se- curity Council authorised the deployment of military observers to untso in the aftermath of the Yom Kippur War between Egypt and Syria on one side and Israel on the other (6 October–25 October 1973).14 The day before, the Coun- cil adopted resolution 338 that called upon the warring parties to stop their conflict and resume peace talks.15 With the adoption of resolution 339, China
12 1945 un Charter, Art. 53. 13 untso was set up by the Security Council on 29 May 1948 in order to monitor the truce at the end of the first hostilities between the Arab states and Israel that followed the procla- mation of the Declaration of the Establishment of the State of Israel on 14 May 1948. See un Doc. S/RES/50 (29 May 1948). 14 un Doc. S/RES/339 (23 October 1973). See also Chapter 2 China and Collective Security, A Individual Self-defence, 1 Middle East. 15 un Doc. S/RES/338 (22 October 1973).
16 un Doc. S/RES/339 (23 October 1973). 17 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1748 (23 October 1973), 12. 18 Speech of Chinese ambassador CHIAO Kuan-hua before the Security Council, un Doc. S/PV.1748 (23 October 1973), 12. 19 un Doc. S/RES/338 (22 October 1973). 20 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1799 (23 October 1974), 2.
intervention on behalf of the un and controlled by the superpowers would only meet more resistance from the “hundreds of millions of Arab people”.21 With the adoption of a resolution on the Cypriot crisis before the Security Council on 1 August 1974,22 China once again abstained from participating in the vote. China would not participate in a vote until December 1981.23 The Chi- nese ambassador reiterated that the hegemonic power struggle pervaded in Cyprus too. China saw the ussr’s proposal to deploy a un special mission as yet another attempt by the ussr to gain control over the eastern part of the Mediterranean. The ambassador continued that “wherever there is contention between the two super-Powers, there will be no tranquillity and the issue there will be further complicated” and therefore supported the independence of Cy- prus and opposed any schemes of outside interference, in particular on the part of the us or ussr.24 With the deployment of the United Nations Disengagement Observer Force (undof),25 China made the same reservations about un peacekeeping forces and did not participate in the vote setting up the force on 31 May 1974, nor did it participate in later votes regarding resolutions authorising undof’s re- newal. Nonetheless, from May 1982 onwards China has lent its support to the undof.26 However, it was only on 30 June 2011 that the Chinese ambassador would issue a statement regarding the renewal of the undof’s mandate. He praised the role of the force to maintain regional stability, which was now more important than ever given the eruption of the Syrian conflict in March 2011. The ambassador warned though that those were two distinct issues and that the Council should treat them differently, to anticipate and avoid any
21 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1750 (25 October 1973), 2; see also speech of Chinese ambassador CHUANG Yen be- fore the Security Council, un Doc. S/PV.1752 (27 October 1973), 1–2; speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1821 (17 April 1974), 7–8; speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/PV.1833 (24 July 1975), 5–6. See also Chapter 2 China and Collective Security, I China and the Prohibition of Aggression, B China and the Korean War. 22 un Doc. S/RES/355 (1 August 1974). 23 un Doc. S/RES/495 (14 December 1981). 24 Speech of Chinese ambassador HUANG Hua before the Security Council, un Doc. S/ PV.1789 (1 August 1976), 2. 25 undof was established by the Security Council on 31 May 1974 after the conclusion of the Agreement of Disengagement between Israel’s and Syria’s armed forces and intended to supervise their disengagement of the Golan Heights accordingly. See un Doc. S/RES/350 (31 May 1974). 26 See un Doc. S/RES/506 (26 May 1982).
politicisation of the undof and renewal of its mandate.27 The Syrian crisis had indeed further sown divisions as witnessed before during the Cold War’s struggles between the superpowers. In a similar vein, China had adopted in the past the same attitude regarding the Security Council’s authorisation of the United Nations Interim Force in Lebanon (unifil) on 19 March 197828 that would “pave the way for super-Power interference”.29 Also from August 1982 onwards, China supported the renewal of the mandate of unifil.30 Meanwhile, on the African continent, the world’s superpowers’ power struggle for hegemony reached its high point during negotiations to end South Africa’s illegal occupation of Namibia.31 The Security Council authorised the United Nations Transition Assistance Group (untag) on 27 July 1978 to monitor the withdrawal of South African forces from Namibian territory.32 China was suspicious that the us, as a close ally of South Africa, would not respect South Africa’s commitment to withdraw from Namibian territory and respect the Namibian people’s sovereignty. As with the Palestinian people’s fight against Zionist aggression, as the Chinese ambassador would argue, the Namibian people’s struggle for self-determination against the South African racist regime could not possibly be served by this resolution. In this respect, the ambassador continued that the establishment of un peacekeeping force would be compromised from the beginning since South African armed forces might take “advantage of the said circumstances to manipulate the elections and carry on sabotage” during the transitional process towards Namibia’s in- dependence. Without an immediate, total and unconditional end of the ille- gal occupation, the road to genuine independence, according to the Chinese position, would be fraud. Instead, according to the Chinese ambassador, the continued military presence of South Africa in Namibia and the outside in- terference of the ussr would render the mandate of untag superfluous from
27 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6572 (30 June 2011), 5. 28 unifil was established by the Security Council on 19 March 1978 following the with- drawal of Israeli armed forces from Southern Lebanon in order to secure peace and secu- rity and assist the Lebanese government in effectively controlling that area. See un Doc. S/RES/425 (19 March 1978). 29 Speech of Chinese ambassador LAI Ya-li before the Security Council, un Doc. S/PV.2074 (19 March 1978), 2; speech of Chinese ambassador CHOU Nan before the Security Council, un Doc. S/PV.2076 (3 May 1978), 2. 30 un Doc. S/RES/519 (17 August 1982). 31 See also Chapter 2 China and Collective Security, A Individual Self-defence, 2 Africa. 32 un Doc. S/RES/431 (27 July 1978).
33 Speech of Chinese ambassador CHEN Chu before the Security Council, un Doc. S/PV.2082 (27 July 1978), 14–15. 34 un Doc. S/RES/435 (29 September 1978). See also speech of Chinese ambassador CHEN Chu before the Security Council, un Doc. S/PV.2087 (29 September 1978), 18. 35 un Doc. S/RES/745 (28 February 1992). 36 See Final Act of the Paris Conference on Cambodia, un Doc. A/46/608 (30 October 1991). 37 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3057 (28 February 1992), 19–20. 38 Letter dated 30 September 1991 from the Permanent Representatives of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Island and the United States of America to the United Nations Addressed to
The practice of United Nations peace-keeping operations over the years has shown that such operations can succeed only when they adhere strictly to the purposes and principles of the Charter and to princi- ples that history has proved effective. In our view, such principles in- clude, primarily, respect for the sovereignty of the countries concerned; non-interference in their internal affairs; the non-use of force except in self-defence; observance of strict neutrality by refraining from involve- ment in internal disputes and conflicts; and obtaining the countries’ consent and cooperation. Furthermore, United Nations peace-keeping operations should be carried out in light of the current realities and the actual capabilities of the United Nations. Any operation that deviates from these principles will suffer setbacks or failures.41
the Secretary-General, un Doc. S/23104 (1 October 1991), Annex “Statement issued on 27 September 1991 by the Ministers for Foreign Affairs of the Five Permanent Members of the Security Council following a Meeting with the Secretary-General”. 39 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3542 (9 June 1995), 8. 40 unamir was established by the Security Council on 5 October 1993. See un Doc. S/RES/872 (5 October 1993). 41 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3542 (9 June 1995), 8.
As the Chinese have repeatedly emphasised, respect for those operational principles can only be guaranteed if the process towards adherence takes into account the interests and viewpoints of each member of the Security Council during each stage of the negotiation of a resolution authorising the deploy- ment of a un peacekeeping operation to a particular nation or region. The inevitability of power politics and hegemonic ambitions of the world’s super- powers during the Cold War and more recently in the post- Cold War era – especially regarding the renewal of the mandate of undof – has shown that it can compromise the support of all members of the Council – not only per- manent members – and its ability to take concerted action in the interest of those nations and their peoples who must benefit from the deployment of a un peacekeeping operation in the first place. In this process towards a com- mon position on such authorisation, compromises have to be sought. That necessarily requires sufficient time and other resources from the Council’s members and the parties concerned and affected by a conflict so they can each present their views and vest sufficient trust in the process as well as in the decision-makers to come up with a proposal for a peacekeeping mission whose mandate respects the principle of non-interference in the internal affairs of sovereign states.
B Consent of the Parties While the authorisation of a un peacekeeping operation requires a prior agreement of the members of the Security Council as outlined above to sustain the normativity of the principle of non-interference, the principle is primarily concerned with the consent of the state that will host the un peacekeeping operations in its territory. There are however a number of conditions that ac- cording to the Chinese position would have to be met to obtain consent and to make it possible for the state to freely give such consent in the first place. The earliest case where China has raised its concerns about the host state giv- ing its consent to host peacekeepers was in the aftermath of the international armed conflict between Iraq and Kuwait in 1991.42 In this respect, China em- phasised the need to have a “formal cease-fire in the region” before the de- ployment of the United Nations Iraq-Kuwait Observation Mission (unikom) in April 1991.43 The Chinese ambassador argued that the conditions under which unikom would have to be established to monitor the withdrawal of the armed forces of the us-led multinational military coalition against Iraq should have been made clear: without a specific timeframe for such withdrawal, he
42 See also Chapter 2 China and Collective Security, B Collective Self-defence. 43 un Doc. S/RES/689 (9 April 1991).
continued, the implementation of a ceasefire agreement would be problem- atic.44 This prerequisite would favour the prospects to restore the territorial integrity of Iraq and Kuwait and their bilateral relationship in the first place, but more importantly, allow for Iraq to reassume its sovereign will and agree to the deployment of a un peacekeeping operation in its territory accordingly. In the same year, it became apparent that beyond the Security Council’s au- thorisation of untac to monitor the implementation of the Paris Agreements of October 1991 other matters had to be taken into account in the process of the actual deployment of the un peacekeeping mission in Cambodia from Febru- ary 1992 onwards. The Chinese ambassador pointed out that there would in- evitably be differences, which should be resolved by the Cambodian Supreme National Council and untac using dialogue and consultation to “dispel misun- derstandings and achieve common understanding”. Antagonism and contra- dictions ought to be avoided at all costs, the ambassador continued, so that the “momentum of the peace process” could prevail to implement the Paris Agree- ments in the first place. The “joint efforts” of the parties in Cambodia were a precondition to such successful implementation.45 The Chinese position made clear that such resolve required both patience and determination and that all Cambodian parties should be treated impartially and equally. For those rea- sons, it abstained in the vote to impose sanctions upon some of the Cambodian parties that prevented the implementation of the Paris Agreements since those sanctions could, according to China, undermine the comprehensive and im- partial implementation of the agreements. Instead, the Chinese ambassador argued that this could only “increase differences and further contradictions” and would equally violate the principle of non-interference.46 Therefore, China urged that untac should take such measures that could enhance a “neutral political environment” for the organisation of future elec- tions but also emphasised that the national parties pay their fair share to such end.47 After the elections of May 1993, China repeated its position and stated that the resolution for the Cambodian issue lay with the Cambodians themselves and in their efforts to reach national reconciliation. The Chinese
44 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2981 (3 April 1991), 97. 45 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3099 (21 July 1992), 8. 46 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3143 (30 November 1992), 3–4. 47 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3181 (8 March 1993), 9–10; speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3213 (20 May 1993), 11–12.
ambassador continued that outside inference on behalf of third states or the international community as a whole – even through sanctions – should be avoided in order to establish a united, peaceful and independent Cambodia.48 After the withdrawal of untac, the Chinese delegation found that the un – in its continued activity in Cambodia – should always “first and foremost fully solicit and respect the opinions of” the government and the Cambodian King Sihanouk. China supported such post-untac assistance in particular in the realm of mine clearance.49 The Chinese perspective on the successful establishment of peacekeeping missions has ever since been based on the idea that there must exist political will and sincerity on behalf of all the conflicting parties to find a solution and seek national reconciliation. Such was the case with the Security Council’s au- thorisation of the United Nations Observer Mission in El Salvador (onusal) on 20 May 1991.50 Here, the Chinese ambassador argued that “only through the parties to a conflict that the root cause of the conflict can be genuinely removed”. A un peacekeeping mission could only complement and promote such transitional process. Despite the absence of geographical proximity, the ambassador continued that China would continue to support the Security Council’s “unswerving efforts to restore peace and stability in these war-torn countries”.51 onusal’s role, however, was limited to the verification of the implementation of the peace agreement between the parties to the conflict on whose request the un was invited in the first place.52 With the successful end of the mission, the Chinese ambassador summarised the elements that secured this:
First, to persevere in the peaceful settlement of conflicts through negoti- ation and dialogue; secondly, to stick to the agreement once it is reached; thirdly, to strive to achieve national reconciliation and turn conflicting parties into partners of cooperation; and, fourthly, to have the full sup- port of the international community, including the Security Council. Of
48 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3270 (27 August 1993), 3. 49 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3303 (4 November 1993), 7–8; see also un Doc. S/RES/880 (4 November 1993). 50 onusal was established by the Security Council on 20 May 1991. See un Doc. S/RES/693 (20 May 1991). 51 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3381 (26 May 1994), 3. 52 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3465 (23 November 1994), 10.
the four elements, national reconciliation is fundamental. Outside help will be of no use if the internal cause is not brought into full play. The political will for peace of the parties in El Salvador is the solid basis for the settlement of the conflict in El Salvador. This is also the prerequisite for onusal’s success.53
Indeed, the role of the un within post-conflict situations must take into ac- count the fragile and volatile national and local dynamics of the political land- scape and try to avoid interfering with in such process in particular during the run-up towards the organisation of national elections and in their aftermath. Such was the case with the organisation of the elections in Mozambique after the conclusion of the General Peace Agreement of October 1992 by the gov- ernment of Mozambique and Resistencia Nacional Mocambicana (renamo). Various difficulties had compromised the implementation of the agreement. The Chinese ambassador hoped that both parties could resolve their disputes and comprehensively implement the General Peace Agreement using consul- tation and negotiations.54 The establishment of the United Nations Operation in Mozambique (onumoz) in December 199255 also met obstacles, such as the delay in signing the Status of Force Agreement (sofa) between the re- spective parties that could consent to onumoz’s operation on Mozambique’s territory.56 According to the Chinese position, onumoz could not but create only those conditions that were favourable for national reconciliation and eco- nomic development in post-conflict Mozambique.57 Those “outside effort”, the Chinese ambassador continued, could “only help promote the process” whose success ultimately depended on Mozambicans themselves58 and that where there was a political will difficulties could be overcome.59
53 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3528 (28 April 1995), 8–9. 54 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3198 (14 April 1993), 43–44. 55 un Doc. S/RES/797 (16 December 1992). 56 un Doc. S/RES/818 (14 April 1993). 57 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3198 (14 April 1993), 44. 58 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3305 (5 November 1993), 18. 59 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3338 (23 February 1994), 20; speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3375 (5 May 1994), 10.
China particularly emphasised such local ownership in light of the Security Council’s authorisation of the United Nations Stabilisation Mission in Haiti (minustah) on 1 June 2004.60 The respect for such ownership under the prin- ciple of non-interference was not an one-sided obligation for third states or the international community. According to the Chinese ambassador, the repeated renewals of minustah’s mandate have created for Haiti a situation of long- term dependence on the international community. However, Haiti’s stability and developmental progress would have to depend primarily on its own ef- forts. He continued that such would also be a reciprocal obligation on behalf of Haiti towards the international community whose continued support ought to be seen in the light of the Haitian people to reassume “ownership over their own country” in the long-term instead.61 When the Security Council decided upon minustah’s withdrawal on 13 April 2017,62 the Chinese ambassador was confident that Haiti could now assume its responsibilities to maintain peace and security and develop its own economic opportunities.63 In a similar vein, China supported the establishment of the United Nations Transitional Administration in East Timor (untaet) on 25 October 1999.64 The Chinese ambassador hoped that such assistance towards self-reliance and independence would help the East Timorese people to develop their own economic future, restore security and entertain friendly relationships with its neighbours. He further underscored – in the absence of a national government that could legitimately represent the East Timorese people – the following: “the principle of the East Timorese people’s involvement as principal actor must be upheld and its wishes and choices respected. To the greatest extent feasible, locals should be fully involved and play their due role.”65 China’s perspective on such broad involvement of a not yet independent people whose voices needed to be heard, is reminiscent of China’s support for fights against colonialism – in particular those that have been waged against not only the colonial powers but against the hegemonic ambitions of the world’s
60 minustah was established by the Security Council on 1 June 2004. See un Doc. S/RES/1542 (1 June 2004). 61 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5631 (15 February 2007), 3. 62 un Doc. S/RES/2350 (13 April 2017). 63 Speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7924 (13 April 2017), 7. 64 untaet was established by the Security Council on 25 October 1999. See un Doc. S/RES/1272 (25 October 1999). 65 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.4057 (25 October 1999), 13.
66 See un Doc. S/RES/339 (23 October 1973). 67 See un Doc. S/RES/338 (22 October 1973). 68 Speech of Chinese ambassador CHUANG Yen before the Security Council, un Doc. S/PV.1765 (8 April 1974); see un Doc. S/RES/338 (22 October 1973); un Doc. S/RES/339 (23 October 1973); un Doc. S/RES/340 (25 October 1973); un Doc. S/RES/346 (8 April 1974); un Doc. S/RES/371 (24 July 1975); un Doc. S/RES/378 (23 October 1975); un Doc. S/RES/396 (22 October 1976). 69 Speech of Chinese ambassador CHUANG Yen before the Security Council, un Doc. S/PV.1774 (31 May 1974), 3–4. See un Doc. S/RES/350 (31 May 1974). Yet only from 26 May 1982 did China participate again in the vote and supported the renewal of the mandate of undof until the present day. See un Doc. S/RES/506 (26 May 1982). 70 See un Doc. S/RES/872 (5 October 1993). 71 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3288 (5 October 1993), 24. 72 Speech of Chinese ambassador HE Yafei before the Security Council, un Doc. S/PV.3640 (8 March 1996), 10.
Also with the Security Council’s authorisation of the third un Angola Verifi- cation Mission (unavem iii) on 8 February 1995,73 China praised the support of both parties to the former conflict, namely the Angolan government and the rebel group unita, to unavem iii and the action of the international com- munity to consolidate the peace process in the country accordingly. Here too, China brought the matter back to the essence of the mandate of a un peace- keeping mission, namely cooperation and assistance. According to the Chinese ambassador, the post-Cold War era would offer new opportunities to truly ad- dress the situation within countries in transition, in particular in Africa, where the needs were more pressing and where outside interference other than coop- eration and assistance – bilaterally and multilaterally alike – was warranted.74 After the Security Council’s authorisation of the United Nations Observer Mis- sion in Angola (monua) on 30 June 1997,75 unita forces further delayed the implementation of the Lusaka Protocol. The Security Council in its turn ad- opted sanction measures on 28 August 1997 that would further place responsi- bility on unita in upholding the peace process and carrying out its obligations under the Protocol – something that China supported though it “reiterate[d] that sanctions [were] not an end in themselves, but [were] a means which had to be resorted to for the advancement of the peace process in Angola”.76 Those latter reservations were uttered again in the context of the Darfur crisis in Sudan that reached its peak in 2005. There, the Security Council au- thorised the deployment of the United Nations Mission in Sudan (unmis) on 24 March 2005. unmis’ mandate was to monitor the implementation of the Comprehensive Peace Agreement that was signed earlier on by the govern- ment of Sudan and the Sudan People’s Liberation Movement/Army (splm/a) on 9 January 2005.77 China voted in favour of the establishment of unmis yet
73 unavem iii was established by the Security Council on 8 February 1995 to assist the par- ties to the conflict in Angola, i.e. the government and unita forces, following the signing of the Lusaka Protocol to restore peace and achieve reconciliation on a national scale. See un Doc. S/RES/976 (8 February 1995). 74 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3499 (8 February 1995), 11. 75 monua was established by the Security Council on 30 June 1997. See un Doc. S/RES/1118 (30 June 1997). 76 un Doc. S/RES/1127 (28 August 1997); un Doc. S/RES/1135 (29 October 1997); see also speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.3827 (29 October 1997), 11. 77 unmis was established by the Security Council on 24 March 2005. See un Doc. S/RES/1590 (24 March 2005).
78 un Doc. S/RES/1591 (29 March 2005). 79 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5153 (29 March 2005), 5; see also speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5423 (24 April 2005), 3. 80 un Doc. S/RES/1706 (31 August 2006). 81 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5519 (31 August 2006), 5. 82 unamid was established by the Security Council on 31 July 2007. See un Doc. S/RES/1769 (31 July 2007).
The international community has deepened its thinking on the Darfur issue and has gradually formed consensus on basic approaches such as the dual-track strategy and the tripartite mechanism. The core of that ap- proach is to give equal emphasis to the political process and the deploy- ment of peacekeepers in an effort to establish a political mechanism of mutual trust and cooperation among United Nations, the African Union and the Sudanese Government, with particular emphasis on promot- ing the Sudanese Government’s cooperation initiative. Those successful mechanisms have been important for the progress made so far and, thus, should be fully respected and supported by all parties.84
Such degree of consultation and cooperation with regional partners, state and non-state alike, was further evidenced by the resolution on the 2006 conflict between Israel and Lebanon. Here, the Security Council discussed to expand the scope of responsibilities of unifil in the aftermath of the war.85 The Chi- nese ambassador reiterated the importance of having all parties to the conflict, i.e. Israel, Lebanon and other Arab countries, to be supportive of such new foundation that could achieve the long-term goals of a political solution to the bilateral conflict between Israel and Lebanon.86 Unsurprisingly, China adopted a similar stance to other long-lasting and transnational armed conflicts in Europe, West Africa and the Horn of Africa. Regarding the extension of the mandate of unprofor to use force under Chapter vii of the un Charter ever since February 1993,87 China had also made prior reservations relating to the absence of consent of the parties on the ground. With the Security Council’s adoption of resolution 871 on 4 Octo- ber 1993,88 the Chinese ambassador finally welcomed the consent of the host
83 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.5727 (31 July 2007), 10. 84 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5947 (31 July 2008), 5–6. 85 un Doc. S/RES/1701 (11 August 2006). 86 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5511 (11 August 2006), 13. 87 un Doc. S/RES/807 (19 February 1993). 88 un Doc. S/RES/871 (4 October 1993).
C Regional Action The Security Council’s authorisation of numerous un peacekeeping opera- tions has often been accompanied by various mediation and peacekeeping efforts of regional organisations that have laid down the groundwork for the Council to assume its responsibility in maintaining and restoring international and regional peace and security. Such involvement of (sub)regional actors and their member states have given further depth to the normativity of the princi- ple of non-interference beyond the mere authorisation of the Security Council and the consent of the host state. As a result, from the perspective of the relational normativity of this principle of non-interference, those underlying relationships between the Security Council – including its members – and other regional organisations – including its members, on the one hand, and the relationship between regional organisations – including its members – and the (future) host nation on whose territory the un/regional peacekeeping op- eration shall operate, on the other hand, can establish sufficient trust between all shareholders and stakeholders in the resolution of the conflict within a par- ticular country and beyond. The commitment on behalf of regional organisa- tions and their members has been fundamental to the success of past, ongoing and future un peacekeeping operations. Their involvement in the resolution
89 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3286 (4 October 1993), 8. 90 unomsil was established by the Security Council on 13 July 1998. See un Doc. S/RES/1181 (13 July 1998). 91 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.3902 (13 July 1998), 9. 92 unosom was established by the Security Council on 24 April 1992. See un Doc. S/RES/751 (24 April 1992). 93 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3060 (17 March 1992), 43–44.
94 See speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7196 (11 June 2014), 21; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7228 (28 July 2014), 16–17; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7343 (16 December 2014), 23–24. 95 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3057 (28 February 1992), 19. 96 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3060 (17 March 1992), 43–44. 97 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3334 (4 February 1994), 16. 98 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3280 (22 September 1993), 11. 99 See also speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.33317 (18 November 1993), 21. 100 unmih was established by the Security Council on 23 September 1993. See un Doc. S/RES/867 (23 September 1993).
American States and other Latin American nations to the peaceful resolution of the conflict in Haiti. He continued that their views should continue to be so- licited and their role should come further into play.101 With the establishment of one of the other follow-up mission to unmih, namely the United Nations Transition Mission in Haiti (untmih),102 China underscored that the prior re- quest of Haiti as well as the wishes of Caribbean and Latin American countries to deploy such operation “as a transitional measure” would give further legiti- macy to the mission.103 Beyond the mere aspects of legitimacy, the very active involvement of a regional organisation in the realisation of the political goals of national reconciliation – during the different phases of the (post-)conflict – together with un peacekeeping operations would ensure those objectives. ecowas has been exemplary to this effect. In particular, after the signing of the Peace Agreement in Cotonou between the interim-government of Liberia and the non-state armed groups (the National Patriotic Front of Liberia (npfl) and the United Liberation Movement of Liberia for Democracy (ulimo)) on 25 July 1993, which ended the three-year long civil war in Liberia, the Security Council decided to establish the United Nations Observer Mission in Liberia (unomil) on 10 August 1993 to su- pervise the agreement.104 The Chinese ambassador praised the support of the regional organisations, namely ecowas and the oau, to make such progress in reaching a ceasefire agreement that could lead towards national reconcilia- tion. He hoped that unomil could further facilitate the ongoing endeavours of ecowas to achieve a final political solution.105 Moreover, China hoped that
101 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3293 (16 October 1993), 17–18; see also speech of Chinese ambassador LI Zhaox- ing before the Security Council, un Doc. un Doc. S/PV.3397 (30 June 1994), 4; speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3413 (31 July 1994), 10; speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3430 (29 September 1994), 6; speech of Chinese ambassador LI Zhaoxing be- fore the Security Council, un Doc. S/PV.3470 (29 November 1994), 4–5; speech of Chi- nese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3559 (31 July 1995), 7; speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3638 (29 February 1996), 11; speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3676 (28 June 1996), 6. 102 untmih was established by the Security Council on 30 July 1997. See un Doc. S/RES/1123 (30 July 1997). 103 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3806 (30 July 1997), 9. 104 unomil was established by the Security Council on 10 August 1993. See un Doc. S/RES/856 (10 August 1993). 105 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3263 (10 August 1993), 22–23; see also speech of Chinese ambassador QIN Huasun
before the Security Council, un Doc. S/PV.3549 (30 June 1995), 7; speech of Chinese am- bassador QIN Huasun before the Security Council, un Doc. S/PV.3694 (30 August 1996), 8–9; speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3757 (27 March 1997), 6; speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/PV.4803 (1 August 2003), 6. 106 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.3281 (22 September 1999), 14. 107 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/ PV.3489 (13 January 1999), 3–4. 108 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/ PV.3577 (15 September 1995), 10; see also speech of Chinese ambassador QIN Huasun be- fore the Security Council, un Doc. S/PV.3592 (10 November 1995), 5. 109 See un Doc. S/RES/1181 (13 July 1998). 110 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.3902 (13 July 1998), 9–10. 111 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/ PV.3986 (11 March 1990), 13.
112 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3288 (5 October 1993), 24. 113 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3377 (16 May 1994), 9. 114 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3392 (22 June 1994), 4. 115 un Doc. S/RES/794 (3 December 1992). 116 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3145 (3 December 1992), 16–17. 117 un Doc. S/RES/929 (22 June 1994). See speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3392 (22 June 1994), 4.
10 July 1999 between the drc, Angola, Namibia, Rwanda, Uganda, Zambia and Zimbabwe.118 When the Council decided to expand monuc’s mandate on 24 February 2000,119 China welcomed it and praised the prior efforts of African na- tions to solve the conflict within the drc whose territorial integrity had been violated by external actors – state and non-state alike.120 monuc would from then onwards assist in the implementation of the Lusaka Ceasefire Agreement. The Chinese ambassador further stressed the importance to cooperate with the parties to the conflict – within the drc and outside – to ensure the success of the mission as well as its security.121 Almost eight years later, the Chinese am- bassador further supported the efforts of African nations and regional organisa- tions to mediate and offer their good offices towards a comprehensive settle- ment of the problems in the Eastern part of the drc.122 The Security Council equally endorsed China’s appreciation of a regional initiative, support and action to conflict resolution and national reconciliation under various peace and ceasefire agreements. In fact, in the past, the Council had empowered such regional action by mandatory measures under Chapter vii of the un Charter. In light of the crisis within the military of the Central African Republic, whose resolution of the conflict led to the conclusion of the Bangui Agreements of 25 January 1997, an Inter-African Mission to Monitor the Implementation of the Bangui Agreements (misab) was set up on 31 January 1997 upon the initiative of the Presidents of Burkina Faso, Chad, Gabon and Mali. Its tasks included the disarmament of individuals, militia and former rebel groups. On 6 August 1997, the Security Council welcomed those regional efforts and authorised mandatory measures under Chapter vii for “Member States participating in misab and those States providing logistical support to ensure the security and freedom of movement of their personnel”.123 On 27 March 1998, the Security Council authorised the follow-up mission to misab, namely the United Nations Mission in the Central African Republic (minurca) that would assist the government of the Central African Republic to
118 monuc was established by the Security Council on 30 November 1999. See un Doc. S/RES/1279 (30 November 1999). 119 un Doc. S/RES/1291 (24 February 2000). 120 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/PV.4104 (24 February 2000), 6. 121 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/PV.4104 (24 February 2000), 6. 122 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.6055 (22 December 2008), 8; see also speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6943 (28 March 2013), 8. 123 un Doc. S/RES/1125 (6 August 1997).
124 un Doc. S/RES/1159 (27 March 1998). 125 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.3867 (27 March 1998), 10–11. 126 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3499 (8 February 1995), 11. 127 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3795 (30 June 1997), 20. 128 unomig was established by the Security Council on 9 July 1993. See un Doc. S/RES/849 (9 July 1993).
129 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3332 (31 January 1994), 13. 130 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3535 (12 May 1995), 11; speech of Chinese ambassador WANG Xuexian before the Se- curity Council, un Doc. S/PV.3680 (12 July 1996), 8; speech of Chinese ambassador CHEN Xu before the Security Council, un Doc. S/PV.4029 (30 July 1999), 9. 131 unmot was established by the Security Council on 16 December 1994. See un Doc. S/RES/968 (16 December 1994). 132 Speech of Chinese ambassador CHEN Xu before the Security Council, un Doc. S/PV.3544 (16 June 1995), 6. 133 un Doc. S/RES/1138 (14 November 1997). 134 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3833 (14 November 1997), 12. 135 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.3879 (14 May 1998), 5.
136 See un Doc. 1706 (31 August 2006). 137 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5519 (31 August 2006), 4–5. 138 un Doc. S/RES/1769 (31 July 2007). 139 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6597 (29 July 2011), 5. 140 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7475 (29 June 2015), 3. 141 See also speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7802 (7 November 2016), 24–25.
conflicting parties and communities. Only such type of service could make sustainable peace possible. China has made such long-term vision about peo- ples’ ownership over transitional processes clear in particular with reference to the resolution of the (trans)national armed conflicts in the former Yugoslavia. In that context, the Chinese ambassador argued that ultimately the peoples of the region alone could achieve such objectives and that the un in general and the United Nations Protection Force (unprofor)142 in particular could “only play a supplementary role” to that effect.143 ii China and the Principle of Impartiality
In the course of the deployment of a un peacekeeping operation, the mission should respect the principle of impartiality – not to take sides in the ongoing (post-)conflict – which ought not to be confused with the principle of neutral- ity, namely to treat all parties to the (post-)conflict equally.144 The concept of impartiality was firstly addressed in the 2000 Report of the Panel on un Peace Operations as chaired by Mr Lakhdar Brahimi.145 As a result, in the context of un peacekeeping operations, impartiality adhered to the principles of the un Charter and to the mandate laid down in the respective Security Council reso- lutions that authorised their deployment. In light of the international com- munity’s failure to prevent the Rwandan genocide in 1994 and pursuant to the Security Council’s resolution 1296 on 19 April 2000 that considered “deliberate targeting of civilian populations or other protected persons [to] constitute a threat to international peace and security” (which triggered the mandate of the Council to take “appropriate steps”),146 the Report stipulated that in the
142 unprofor was established by the Security Council on 21 February 1992. See un Doc. S/RES/743 (21 February 1992). 143 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3356 (31 March 1994), 10. On 7 September 2000, Chinese President Jiang Zemin equally pointed out that un peacekeeping was not a panacea and that the underlying causes to the con- flict had to be addressed simultaneously. See speech of Chinese President JIANG Zemin before the Security Council, un Doc. S/PV.4194 (7 September 2000), 7–8. 144 See more Emily Paddon Rhoads, Taking Sides in Peacekeeping: Impartiality and the Future of the United Nations (Oxford: Oxford University Press, 2016); Dominick Donald, “Neutral- ity, Impartiality and un Peacekeeping at the Beginning of the 21st Century,” International Peacekeeping 9 (2002): 21–38; Shyla Vohra, “Impartiality in United Nations Peace-keeping,” Leiden Journal of International Law 9 (1996): 63–85. 145 un Doc. A/55/305 & S/2000/809 (21 August 2000). 146 un Doc. S/RES/1296 (19 April 2000).
147 un Doc. A/55/305 & S/2000/809 (21 August 2000), para. 50. See also speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7109 (12 February 2014), 17; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7464 (17 June 2015), 12. 148 Report of the Panel on United Nations Peace Operations (“Brahmini Report”), un Doc. A/55/305 & S/2000/809 (17 August 2000), 9.
149 unsmis was established by the Security Council on 21 April 2012. See un Doc. S/RES/2043 (21 April 2012). 150 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6756 (21 April 2012), 8. 151 un Doc. S/RES/2043 (21 April 2012).
152 un Doc. S/RES/1118 (30 June 1997). 153 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3795 (30 June 1997), 20. See S/RES/1118 (30 June 1998); see also speech of Chinese am- bassador CUI Tainkai before the Security Council, un Doc. S/PV.3850 (27 January 1998), 10. 154 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3542 (9 June 1995), 8.
155 un Doc. S/RES/925 (8 June 1994). 156 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3388 (8 June 1994), 12; speech of Chinese ambassador LI Zhaoxing before the Securi- ty Council, un Doc. S/PV.3400 (1 July 1994), 7; speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3473 (30 November (1994), 6. 157 See un Doc. S/RES/925 (8 June 1994). 158 un Doc. S/RES/849 (9 July 1993).
159 un Doc. S/RES/1077 (22 October 1996). 160 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3707 (22 October 1996), 2. 161 un Doc. S/RES/1020 (10 November 1995). 162 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3592 (10 November 1995), 5. 163 See also State Council Information Office, White Paper on China’s National Defense in 1998; State Council Information Office, White Paper on China’s National Defense in 2000. 164 unprepep was established by the Security Council on 31 March 1995. See un Doc. S/ RES/983 (31 March 1995).
responsibilities. Those concern the financial burdens that such missions car- ried with them and the needs for the un to consider of those regions that re- quire more peacekeeping resources, according to the Chinese ambassador.165 Nonetheless, when Macedonia had requested for the extension of the mandate of unprepep, the Chinese ambassador supported the extension of unprepep on 4 December 1995 in order to prevent the conflict in the former Yugoslavia from spilling over to Macedonia.166 It must be noted that Macedonia estab- lished diplomatic ties with Taiwan on 27 January 1999 and may further explain that the mainland’s earlier veto against the renewal was not only considering fairness and accountability towards the limited resources of the un Depart- ment of Peacekeeping Operations. Accountability for the (in)action of a specific un peacekeeping operation is equally necessary to enhance and maintain the consent and cooperation of the parties to the conflict while the mission is still deployed within a par- ticular nation but also to establish new accountability strategies for future un peacekeeping operations in order to secure such consent and cooperation. In particular, in the aftermath of the Rwandan genocide of April-July 1994, China supported the Independent Inquiry into the United Nations Actions that would look into the past response of the un and unamir during the conflict. The Chinese ambassador acknowledged that the international community had failed to prevent the genocide but believed that the report of the Inquiry could provide valuable lessons to improve un peacekeeping operations ac- cordingly and to enhance the capacity of the Council to respond and deal more effectively with future crises.167 Trust into the un as an organisation to alleviate the suffering of the civilian populations that are often at risk in (post-) conflict situations had been eroded and needed to be restored at the various levels of the decision-making – from the Security Council at headquarters to the un commander of the mission in the field. A more bold response from the peacekeeping contingents would necessitate an extension of the mandate of un peacekeeping operations. Such would indeed require a realignment of views amongst the (permanent) members of the Security Council regarding
165 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3982 (25 February 1999), 7; see also speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7802 (7 November 2016), 24–25. 166 un Doc. S/RES/1142 (4 December 1997); speech of Chinese ambassador QIN Huasun be- fore the Security Council, un Doc. S/PV.3839 (4 December 1997), 5. 167 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/PV.4127 (14 April 2000), 16–17.
Traditionally, un peacekeeping operations have to respect the principle on the non-use of force. Under exceptional circumstances, however, troop- contributing countries could use force to defend themselves. Gradually, the Security Council had also authorised the use of force beyond self-defence, namely to defend the mandate of the mission. The extension of the un peace- keeping operations’ responsibility – from initially safeguarding the delivery of humanitarian assistance to protecting the civilian populations from armed hostilities – would inevitably be accompanied with the possibility to use force under those conditions. There remains a difference however whether or not those measures were authorised under Chapter vi or vii of the un Charter. Under Chapter vi, the consent of the host state would be sought whereas for the authorised use of force under Chapter vii such consent would not be a precondition to the deployment of the un peacekeeping operation in the host state.168 Either way, the use of force as a matter of self-defence or in the defence of the extended mandate of the un peacekeeping operation must seek further to comply with the principles of non-interference and impartiality. In this re- gard, whenever un peacekeeping operations and troop-contributing nations are caught into hostilities, they may become an actual party to the conflict thus triggering the application of international humanitarian law to their conduct.169 Depending on whose side and against whom they are fighting – either in self-defence or in defence of the mandate, the conflict may become internationalised by their intervention if they are engaged in armed hostilities against the government’s armed forces and be governed by the laws pertaining to the regulation of an international armed conflict. If they are fighting against
168 Mats Berdal and David H. Ucko, “The Use of Force in un Peacekeeping Operations,” The rusi Journal 160 (2015): 6–12; John Karlsrud, “The un at War: Examining the Consequenc- es of Peace-enforcement Mandates for the un Peacekeeping Operations in the car, the drc and Mali,” Third World Quarterly 36 (2015): 40–54; James Sloan, “The Evolution of the Use of Force in un Peacekeeping,” Journal of Strategic Studies 37 (2014): 674–702; Hikaru Yamashita, “‘Impartial’ Use of Force in United Nations Peacekeeping,” International Peace- keeping 15 (2008): 615–630. 169 See Secretary-General’s Bulletin on the Observance by United Nations Forces of Interna- tional Humanitarian Law, un Doc. ST/SGB/1999/13 (6 August 1999).
non-state armed groups that are challenging the central government of the host nation, they are involved in a non-international armed conflict instead. In both scenarios, the principle of neutrality would be compromised and the relationship with either the host nation, the non-state parties to the conflict and other regional actors (including third states and regional organisations) could be adversely affected and backfire upon the legitimacy and credibility of the un peacekeeping operation in particular and the un in general. Further- more, such unforeseen conditions on the battlefield may have further political consequences for parties to the conflict, whose national reconciliation goals are under pressure, but also upon the relationship amongst the (permanent) members of the Security Council to take further action with respect to this par- ticular un peacekeeping operation whose impartiality has been questioned but also regarding the authorisation of future operations that may similarly get (unexpectedly) involved as parties to the conflict in very complex (post-) conflict environments. Divergent views on behalf of the members of the Coun- cil, in particular, China, regarding the use of force, may be driven by different interpretations concerning the variable degree of importance attached to the relationship between the un (peacekeeping operation) and the various share- holders and stakeholders on the ground. Moreover, the fragile relationship between the un and the host state could face additional difficulties whenever a regional organisation, members or a group of members thereof have ambitions to steer the political process with- in a particular country or region by virtue of a military intervention and/or presence, either with or without the consent of the country in question. Re- gional multinational military operations of this kind have exercised similar mandates as un peacekeeping operations where their potential use of force was equally justified to protect the delivery of humanitarian assistance or the civilian population in a particular host nation that had granted prior consent to its deployment on its territory. If indeed, the Security Council decides to reach out to such regional initiatives, it must reassess the relationship between such regional operation and the un mission on the ground. The involvement of additional international actors – un and regional alike – will inevitably transform the outcome of the conflict and the national reconciliation goals in particular when the Security Council endorses their cooperation with manda- tory enforcement powers – where the consent of the host state is no longer required. China has been particularly concerned with how the principles of non-interference and impartiality by virtue of such close and often blurred collaboration between the un and other regional operations – despite their realisation of common objectives – may be misperceived by the parties to the (post-)conflict on the ground and how such confusion could undermine in its turn the normativity of those principles in the first place.
The first time that the Security Council would extend the use of force of a peacekeeping operation beyond self-defence concerned the conflict in the former Yugoslavia. On 21 February 1992, the Council authorised unprofor that would operate within Croatia, Bosnia and Herzegovina, Macedonia and Montenegro and Serbia.170 With the later adoption of resolution 770 under Chapter vii of the un Charter, on 13 August 1992, the Security Council called upon the member states to take “any further measures that may be necessary to ensure unimpeded delivery of humanitarian supplies”.171 Furthermore, reso- lution 771 adopted under Chapter vi of the un Charter – on the same day, added that “all parties [must] do all in their power to facilitate such access”.172 China voted in favour of the latter (resolution 771) and abstained regarding the adoption of the former (resolution 770). The Chinese ambassador argued that the authorisation to use force – under the present reading of “any further measures” – would further complicate the political efforts to find a solution to the Yugoslav problems. Furthermore, he added that such “a blank check” would lead to uncontrollable situations “with serious consequences for which the United Nations and the Security Council [would] be held responsible, and the reputation of the United Nations [might] suffer as a result”.173 The Chinese ambassador continued if other external actors – in particular members of nato – would respond affirmatively to the Security Council’s call for resolution 770 and got involved militarily to guarantee humanitarian assis- tance, the exercise of unprofor’s own mandate to secure humanitarian relief would become more difficult at the same time. If indeed such force would be authorised, the mandate of unprofor had to be changed too – something which did not happen and which the Chinese ambassador further regretted. Without such coordination, he posited that the safety and security of the mis- sion and other un staff would be at risk.174 Eventually, the Security Council decided to extend the mandate of unprofor, namely to support the delivery of humanitarian relief militarily to Bosnia and Herzegovina.175 The Chinese ambassador, however, abstained in the vote on this latest resolution 776 (ad- opted under Chapter vi of the un Charter) because unprofor would receive indirectly the enforcement powers of resolution 770 to which resolution 776
170 unprofor was established by the Security Council on 21 February 1992. See un Doc. S/RES/743 (21 February 1992). 171 un Doc. S/RES/770 (13 August 1992). 172 un Doc. S/RES/771 (13 August 1992). 173 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3106 (13 August 1992), 51. 174 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3106 (13 August 1992), 52. 175 un Doc. S/RES/776 (14 September 1992).
176 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3114 (14 September 1992), 11–12. 177 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3114 (14 September 1992), 11–12. 178 un Doc. S/RES/781 (9 October 1992). 179 Speech of Chinese ambassador JIN Yongjian before the Security Council, un Doc. S/PV.3122 (9 October 1992), 7; see also speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3133 (10 November 1992); speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3191 (31 March 1993), 22. 180 un Doc. S/RES/807 (19 February 1993); un Doc. S/RES/815 (30 March 1993).
181 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3174 (19 February 1993), 21. 182 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3189 (30 March 1993), 16; see also speech of Chinese ambassador LI Zhaoxing before the Se- curity Council, un Doc. S/PV.3286 (4 October 1993), 8–9; speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3356 (31 March 1994), 10; speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3367 (21 April 1994), 55; speech of Chinese ambassador ZHANG Awn before the Security Council, un Doc. S/PV.3369 (27 April 1994), 5; speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3461 (19 November 1994), 7. 183 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3228 (4 June 1993), 49. 184 uncro was established by the Security Council on 31 March 1995. See un Doc. S/RES/981 (31 March 1995). 185 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3512 (31 March 1995), 28. 186 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3600 (30 November 1995), 3.
187 The Implementation Force (ifor) and the Stabilisation Force (sfor) were respectively authorised by the Security Council on 15 December 1995 and 12 December 1996. See un Doc. S/RES/1031 (15 December 1995); un Doc. S/RES/1088 (12 December 1996). 188 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3607 (15 December 1995), 14–15; see also speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3723 (12 December 1996), 15. 189 untaes was established by the Security Council on 15 November 1996. See un Doc. S/RES/1079 (15 November 1996). 190 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3619 (15 January 1996), 9. 191 un Doc. S/RES/751 (24 April 1992).
192 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3145 (3 December 1992), 17. 193 un Doc. S/RES/814 (26 March 1993). 194 Speech of Chinese ambassador CHEN Jian before the Security Council, un Doc. S/PV.3188 (26 March 1993), 22. 195 un Doc. S/RES/837 (6 June 1993). 196 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3229 (6 June 1993), 14. 197 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3317 (18 November 1993), 21.
198 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3334 (4 February 1994), 17; see also speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3385 (31 May 1994), 5–6; speech of Chinese ambassa- dor LI Zhaoxing before the Security Council, un Doc. S/PV.3347 (4 November 1994), 12. 199 un Doc. S/RES/918 (17 May 1994). 200 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3377 (16 May 1994), 9. 201 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/PV.4127 (14 April 2000), 16–17.
South African Development Community (sadc) that was led by South Africa and that had intervened separately within the Eastern drc since February 2013 and with the consent of the government of the drc. When the Security Council authorised the extension of the mandate of the United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo (monusco)202 on 28 March 2013, this so-called Intervention Brigade of sadc had been inte- grated within monusco.203 As opposed to the prior inability of monusco to protect the civilian popu- lation and avert the destabilisation of Eastern drc by various armed groups, it was hoped that the Intervention Brigade would turn the tide. The Chinese ambassador reminded the Council that the Three Hammarskjöld Principles should further guide the special Intervention Brigade within monusco in the execution of its mandate to protect the civilian population and neutral- ise armed groups. The Chinese ambassador continued that such new type of peacekeeping mandate would not be a precedent for future un peacekeep- ing operations, such Intervention Brigade would be an exceptional measure, and its deployment under the un flag could not divert from the peacekeeping principles.204 The latter process of integration would, according to the Chinese perspective, have been exemplary since the prior consent of the host nation to the nif would facilitate the relationship between monusco and the drc on the one hand as well as between the troop-contributing countries of the future Intervention Brigade and monusco on the other hand. Such conver- gence of interests had been made possible through the prior consent of the host state. In its turn this would enhance the normativity of the principles of non-interference and impartiality even when force would have been used on behalf of the Intervention Brigade under a un flag – and that ought to be regu- lated by international humanitarian law whenever monusco became a party to the conflict.
Conclusion
The normativity of the operational principles of un peacekeeping, namely the consent of the parties, the principle of impartiality and the non-use of force,
202 monusco was established by the Security Council on 1 July 2010. See un Doc. S/RES/1925 (1 July 2010). 203 un Doc. S/RES/2098 (28 March 2013). 204 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6943 (28 March 2013), 8.
Introduction
Threats to and breaches of international peace and security are not only determined by the nature of the parties to an armed conflict, whether they be state or non-state. Nor, are they only determined by the geographical scope of those armed hostilities – national, transnational and global alike, but also by the means deployed or threatened to be used in hostile situations. Military technology has further pushed the boundaries of contemporary warfare both in its temporal and spatial dimensions.1 While the speed and range of modern
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the Security Council Role in Blocking the Spread of Nuclear Weapons,” Transnational Law and Contemporary Problems 2 (1992): 586–603; Michael T. Klare, “Controlling the Trade in Conventional Weapons,” Transnational Law and Contemporary Problems 2 (1992): 493–515; James F. Leonard, “Strengthening the Treaty on the Non-Proliferation of Nuclear Weapons,” Transnational Law and Contemporary Problems 2 (1992): 385–397; Janne Nolan, “Technology and Non-Proliferation in a Changing World Order,” Transnational Law and Contemporary Problems 2 (1992): 399–434; Brad Roberts, “Controlling Chemical Weapons,” Transnation- al Law and Contemporary Problems 2 (1992): 435–452; Lawrence Scheinman, “The Role of Multilateral Regimes in Non-Proliferation,” Transnational Law and Contemporary Problems 2 (1992): 569–586; Jacqueline R. Smith and Lewis A. Dunn, “Overview: The Main Prolifera- tion Risks,” Transnational Law and Contemporary Problems 2 (1992): 331–355; Susan Wright, “Prospects for Biological Disarmament in the 1990s,” Transnational Law and Contemporary Problems 2 (1992): 453–492; George H. Quester, “The Nuclear Nonproliferation Treaty and the International Atomic Energy Agency,” International Organization 24 (1970): 163–182; Mason Willrich, “The Treaty on Non-Proliferation of Nuclear Weapons: Nuclear Technology Con- fronts World Politics,” Yale Law Journal 77 (1968): 1447–1519. 2 Mika Hayashi, “Reacting to the Use of Chemical Weapons: Options for Third States,” Journal on the Use of Force and International Law 1 (2014): 80–121; James E. Doyle, “Why Eliminate Nuclear Weapons?” Survival 55 (2013): 7–34; Jack Garvey, Nuclear Weapons Counterprolif- eration: A New Grand Bargain (Oxford: Oxford University Press, 2013); Daniel H. Joyner and Marco Roscini, eds, Non-proliferation Law as a Special Regime: A Contribution to Fragmen- tation Theory in International Law (Cambridge: Cambridge University Press, 2012); Green Owen and Nicholas Marsh, eds., Small Arms, Crime and Conflict: Global Governance and the Threat of Armed Conflict (London: Routledge, 2011); Daniel H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty (Oxford: Oxford University Press, 2011); Sverre Lodgaard, Nuclear Disarmament and Non-Proliferation: Towards a Nuclear-Weapon-Free World? (London; New York: Routledge, 2010); William Boothby, Weapons and the Law of Armed Conflict (Oxford: Oxford University Press, 2009); Daniel H. Joyner, International Law and the Proliferation of Weapons of Mass Destruction (Oxford: Oxford University Press, 2009); Jianqun Teng, Guoji
Regulatory answers have been initially framed to address the specific production, use, and stockpiling of certain weapons3 and their
Junbei Kongzhi yu Caijun Gailun (Introduction to International Arms Control and Disarma- ment) (Beijing: Shijie Zhishi Chubanshe (World Affairs Press), 2009); Maya Brehm, “The Arms Trade and States’ Duty to Ensure Respect for Humanitarian and Human Rights Law,” Journal of Conflict and Security Law 12 (2008): 359–387; Jianqun Teng, “Dang dai GuoJi Heca- ijun Xingshi he Qianjing (‘The Current Situation of International Nuclear Disarmament and Its Prospect’).” Guoji Wenti Yanjiu (International Studies) 5 (2008): 34–40; Jack M. Beard, “Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weap- ons Convention,” American Journal of International Law 101 (2007): 271–321; Barry Kellman, Bioviolence: Preventing Biological Terror and Crime (Cambridge: Cambridge University Press, 2007); Orde F. Kittrie, “Averting Catastrophe: Why the Nuclear Nonproliferation Treaty Is Losing its Deterrence Capacity and How to Restore It,” Michigan Journal of International Law 28 (2007): 337–430; Michael Quinlan, “Abolishing Nuclear Armouries: Policy or Pipe- dream?” Survival 49 (2007): 7–15; Geir Ulfstein (ed.), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge: Cambridge University Press, 2007); Bin Li, Junbei Kongzhi Lilun yu Fenxi (The Theory and Analysis of Arms Control) (Beijing: Guofang Gongye Chubanshe (National Defence Industry Press), 2006); Zhonghai Zhou, “Shengwu Keji Xiang- guan Falu Wenti yu Jinzhi Shengwu Wuqi Gongyue (‘Interrelated Law Issues about Biotech- nology and Convention on the Prohibition of the Development Production and Stocking of Bacteriological and Toxin Weapons and on Their Destruction’),” Henan Caijing Zhengfa Daxue Xuebao (Journal of Henan University of Economics and Law) 1 (2006): 66–71; Masahiko Asada, “Arms Control Law in Crisis? A Study of the North Korean Nuclear Issue,” Journal of Conflict and Security Law 9 (2004): 331–355; David P. Fidler, “International Law and Weapons of Mass Destruction: End of the Arms Control Approach,” Duke Journal of Comparative and International Law 14 (2004): 39–88; John Freeman, “Is Arms Control Law in Crisis?,” Journal of Conflict and Security Law 9 (2004): 303–313; Lori F. Damrosch, “The Permanent Five as En- forcers of Controls on Weapons of Mass Destruction: Building on the Iraq ‘Precedent’?” Euro- pean Journal of International Law 13 (2002): 305–321; Dieter Fleck, “Developments of the Law of Arms Control as a Result of the Iraq-Kuwait Conflict,” European Journal of International Law 13 (2002): 105–119; Rein Müllerson, “The abm Treaty: Changed Circumstances, Extraor- dinary Events, Supreme Interests and International Law,” International and Comparative Law Quarterly 50 (2001): 509–539; Guido den Dekker, The Law of Arms Control: International Supervision and Enforcement (Leiden; Boston: Martinus Nijhoff Publishers, 2001); Tracy M. Keith, “The United Nations Register of Conventional Arms: Increasing Transparency for Four Years,” The Nonproliferation Review 4 (1997): 82–103. 3 1868 Declaration of St. Petersburg; 1899 Hague (iv, 3) Declaration Concerning Expanding Bullets; 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (btwc); 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects; 1980 Protocol on Non-Detectable Fragments (Protocol i); 1980
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol ii); 1980 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol iii); 1993 Convention on the Prohibition of the Development, Production, Stockpil- ing and Use of Chemical Weapons and on their Destruction (cwc); 1995 Protocol on Blinding Laser Weapons (Protocol iv); 1996 Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices; 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruc- tion; 2003 Protocol on Explosive Remnants of War (Protocol v); 2008 Convention on Cluster Munitions. 4 1968 Treaty on the Non-Proliferation of Nuclear Weapons (npt). 5 See Rules 73–76 in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary Internation- al Humanitarian Law, Vol. 1 (Cambridge: Cambridge University Press, 2005), 256–267. 6 On 7 July 2017, at the un Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons, Leading towards their Total Elimination (16 February 2017, 27–31 March 2017, 15 June–7 July 2017), the Treaty on the Prohibition of Nuclear Weapons was adopted by vote – yet, nuclear weapons states including China did not participate in the Conference. The treaty is the first international treaty that prohibits the development, testing, produc- tion, manufacturing, acquisition, possession, stockpiling, use and the threat of use of nuclear weapons. 7 See Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, International Court of Justice, Advisory Opinion, 8 July 1996, icj Reports 1996, paras. 78–79. 8 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (ap i), Art. 36.
Nations Disarmament Commission (undc),9 United Nations Office for Dis- armament Affairs (unoda),10 as well as other non-un fora and bodies, such as the Conference on Disarmament,11 the Organisation on the Prohibition of Chemical Weapons (opcw)12 and the International Atomic Energy Agency (iaea),13 have pursuant to their respective mandates urged members of the international community and/or signatory parties of particular conventions to respect international norms on the proliferation and use of conventional and non-conventional weapons.14 Furthermore, they have sought to establish confidence-building measures between conflicting parties and the interna- tional community as a whole in an ultimate effort to disarm the world. The latter ideal could be realised if resources15 – material and non-material alike – could be concentrated towards the development of peaceful relationships between states and their peoples in line with the purposes and principles of the un Charter.16
9 The undc was established by the un General Assembly on 11 January 1952. See un Doc. A/RES/502 (vi) (11 January 1952). In 1978, the undc was re-established as a subsidiary organ of the un General Assembly on its first special session on disarmament. See un Doc. A/S-10/2 (30 June 1978), para. 118. 10 unoda was established upon recommendation of the un General Assembly in 1982 during the latter’s second special session on disarmament. See un Doc. A/S-12/32 (9 July 1982), para. 62. 11 The Conference on Disarmament is the only multilateral forum that regularly meets in Geneva to negotiate disarmament issues. It was set up pursuant to the un General Assembly resolution S-10/2 as one of the mechanisms to deal with such matters. See un Doc. A/S-10/2 (30 June 1978), para. 120. 12 The opcw was set up pursuant to the Final Report of the Preparatory Commission that had laid down the groundwork to operationalise the 1993 Convention on the Prohibi- tion of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction from the moment the latter had entered into force on 29 April 1997. See Final Report of the Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons to the First Session of the Conference of the States Parties of the Organisation for the Prohibition of Chemical Weapons and to the First Meeting of the Executive Council of the Organisation for the Prohibition of Chemical Weapons, Doc. PC-XVI/37 (15 April 1997). 13 The iaea was established on 29 July 1957 following the entry into force of the Statute of the iaea (adopted by the Conference of States Parties on the Statute of the iaea on 23 October 1956). 14 See 1993 cwc, Art. 8; 1956 Statute of the iaea, Arts. 2–3. 15 For more statistics on global, regional and national military expenditures, see the Military Balance of the International Institute of Strategic Studies, http://www.iiss.org/ en/publications/military-s-balance (accessed 1 June 2017). 16 1945 un Charter, Chapter i.
In reality, however, the world has been deeply divided over the peaceful development of nuclear energy. Since the end of the Second World War, the ideological competition between the world’s superpowers, the us and ussr, had extended into an unbridled race for the development and production of nuclear warheads. Military doctrine on both sides prescribed that mutu- ally assured destruction of their opponent was a deterrent effect which would ensure military stability on the international plane. Institutional responses towards nuclear control under the iaea’s safeguard agreements and disarma- ment have often been elusive. Only at the bilateral level, could initiatives be undertaken towards a rapprochement on such common idea. Yet, such nuclear military capability has been further expanded across the globe and has caused increasing tensions within particular regions, including the Middle East (involving Iran, Israel and Saudi Arabia), in South Asia (involving China, India and Pakistan) and East Asia (involving North and South Korea, China, Japan, the us and Russia). While the laws pertaining to the regulations on testing and proliferation of nuclear weapons have gained steady support on behalf of the members of the international community, their enforcement has remained problematic. This was the case between the superpowers during the Cold War and continues to be the case between multiple actors competing for regional power.17
17 Feng Liu, “China’s Security Strategy Towards East Asia,” Chinese Journal of International Politics 9 (2016): 151–179; Mark Fitzpatrick, “Iran: A Good Deal,” Survival 57 (2015): 47–52; Michael Wahid Hanna and Dalia Dassa Kaye, “The Limits of Iranian Power,” Survival 57 (2015): 173–198; Liming Hua, “Yilang Hewenti yu Zhongguo Zhongdong Waijiao (‘The Iran Nuclear Issue and China’s Middle East Diplomacy’),” Alabo Shijie Yanjiu (Arab World Studies) 6 (2014): 4–16; Jina Kim, The North Korean Nuclear Weapons Crisis: The Nuclear Taboo Revisited? (New York: Palgrave Macmillan, 2014); Gregory J. Moore (ed.), North Korean Nuclear Operationality: Regional Security and Nonproliferation (Baltimore: Johns Hopkins University Press, 2013); Paul Carroll, “The Mouse that Keeps Roaring: The United States, China and Solving the North Korean Challenge,” Yale Journal of International Affairs 7 (2012): 57–67; Mikael Weissmann, The East Asian Peace: Conflict Prevention and Informal Peacebuilding (New York: Palgrave Macmillan, 2012); Mingjiang Li and Dongmin Lee (eds.), China and East Asian Strategic Dynamics: The Shaping of a New Regional Order (Lanham: Lexington Books, 2011); Harsh Pant, The us-India Nuclear Pact: Policy, Process and Great Power Politics (New Delhi: Oxford University Press, 2011); Gilbert Rozman, Stra- tegic Thinking about the Korean Nuclear Crisis Four Parties Caught between North Korea and the United States (New York: Palgrave Macmillan, 2011); Jooyoung Song, “Understand- ing China’s Response to North Korea’s Provocations,” Asian Survey 51 (2011): 1134–1155; Xiaobo Wang and Jinquan Song, “Chaohe Wenti: Neizai Luoji yu Zhongguo de Waijiao Zhengce Xuanze (‘The North Korea Nuclear Issue: The Internal Logic and China’s Foreign Policy Choice’),” Guoji Guancha (International Review) 3 (2011): 50–57; Jiegen Zhang,
Moreover, general matters of disarmament have been complicated during the Cold War and in the processes of the struggles for decolonisation. The
“Yindu Hezhanlue dui Zhongguo Anquan Huanjing ji Nanya Zhengce de Yingxiang (‘The Impact of India’s Nuclear Strategy on China’s Security and Policy Towards South Asia’),” Tongji Daxue Xuebao Shehui Kexueban (Tongji University Journal Social Science Section) 4 (2011): 65–72; Daniel H. Joyner, “Why Less is More: Law and Policy Considerations on the Iranian Nuclear Issue,” Harvard Law and Policy Review 4 (2010): 1–12; Eric Yong Joong Lee, “The Complete Denuclearization of the Korean Peninsula: Some Considerations un- der International Law,” Chinese Journal of International Law 9 (2010): 799–819; Michael S. Malley and Tanya Ogilvie-White, “Nuclear Capabilities in Southeast Asia,” The Nonprolif- eration Review 16 (2009): 25–45; Scott D. Sagan, Inside Nuclear South Asia (Stanford: Stan- ford University Press, 2009); Marco Roscini, “Something Old, Something New: The 2006 Semipalatinsk Treaty on a Nuclear Weapon-Free Zone in Central Asia,” Chinese Journal of International Law 7 (2008): 593–624; Lian Wang, “Lun Daguimo Shashangxing Wuqi yu Zhongdong Diqu Anquan (‘On Weapons of Mass Destruction and Middle East Security’),” Alabo Shijie Yanjiu (Arab World Studies) 1 (2008): 52–61; Orde F. Kittrie, “Emboldened by Impunity: The History and Consequences of Failure to Enforce Iranian Violations of In- ternational Law,” Syracuse Law Review 57 (2007): 519–549; Dong Sun Lee, “A Nuclear North Korea and the Stability of East Asia: A Tsunami on the Horizon?” Australian Journal of International Affairs 61 (2007): 436–454; Guofu Li, “Yilang Hewenti de Zhengjie yu Zhong- guo de Lichang (‘The Crux of The Iran Nuclear Issue and China’s Position’),” Dangdai Shi- jie (Contemporary World) 10 (2007): 23–26; Xuelian Liu and Xuehui Huo, “Zhongguo Zai Chaoxian Bandao de Diyuan Anquan Zhanlue Fenxi (‘An Analysis of China’s Geopolitical Security Strategy in the Korean Peninsula’),” Dongbeiya Luntan (Northeast Asia Forum) 9 (2007): 50–56; Jian Cai, “Zhongguo Zai Chaohe Wentishang de Youxian Zuoyong (‘China’s Limited Role on the Korean Nuclear Issue’),” Guoji Guancha (International Review) 3 (2006): 55–61; Liru Cui, “Chaoxian Bandao Anquan Wenti: Zhongguo de Zuoyong (‘The North Korea Regional Security: The Role of China’),” Xiandai Guoji Guanxi (Contemporary International Relations) 9 (2006): 42–47; Lowell Dittmer (ed.), South Asia’s Nuclear Secu- rity Dilemma: India, Pakistan, and China (Armonk, ny: M.E. Sharpe, 2004); Michael Ryan Kraig, “The Political and Strategic Imperatives of Nuclear Deterrence in South Asia,” India Review 2 (2003): 1–48; Victor D. Cha, “The Second Nuclear Age: Proliferation Pessimism Versus Sober Optimism in South Asia and East Asia,” Journal of Strategic Studies 24 (2001): 79–120; John W. Garver, “The Restoration of Sino-Indian Comity Following India’s Nuclear Tests,” China Quarterly 168 (2001): 865–889; Li Zhang, “Yindu Heshi Yilai de Zhongyin Guanxi (‘Sino-Indian Relations since Nuclear Tests Conducted by India in 1998’),” Nanya Yanjiu Jikan (South Asian Studies Quarterly) 1 (2001): 39–48; Russell Ong, “North Korea’s Enduring Importance to China’s Security Interests in the Post-Cold War Era,” Asian Jour- nal of Political Science 8 (2000): 47–64; Thérèse Delpech, “Nuclear Weapons and the ‘New World Order’: Early Warning from Asia?” Survival 40 (1998): 57–76; Wade Huntley, “The Abolition of Extended Nuclear Deterrence in Northeast Asia,” Pacifica Review: Peace, Security & Global Change 9 (1997): 39–56; Gary Milhollin, “Stopping the Indian Bomb,” American Journal of International Law 81(1987): 593–609.
18 For more statistics on sales of weapons, see the Arms Transfer Database of the Stockholm International Peace Research Institute, https://www.sipri.org/databases (accessed 1 June 2017). 19 See more about the broad influence of the military industrial complex upon domestic democratic processes, 1961 Military-Industrial Complex Speech, Dwight D. Eisenhower, http://avalon.law.yale.edu/20th_century/eisenhower001.asp (accessed 1 June 2017). 20 Anthony H. Cordesman and Steven Colley, Chinese Strategy and Military Modernization in 2015: A Comparative Analysis (Washington, d.c.: Center for Strategic and Internation- al Studies, 2015); Anthony H. Cordesman, Ashley Hess and Nicholas S. Yarosh, Chinese Military Modernization and Force Development: A Western Perspective (Lanham: Rowman & Littlefield, 2013); Ning Pu, Diyuan Zhanlue yu Zhongguo Anquan Huanjing de Suzao (Geopolitical Strategy and the Construction of China’s Security Environment) (Beijing: Shishi Chubanshe (Current Affairs Press), 2009); Richard D. Fisher, China’s Military Mod- ernization: Building for Regional and Global Reach (Westport, ct: Praeger Security Inter- national, 2008); David Shambaugh, “China’s Military Modernization: Making Steady and Surprising Progress,” in Ashley J. Tellis and Michael Wills (eds.), Military Modernization in an Era of Uncertainty (Seattle: The National Bureau of Asian Research, 2005–2006), 67–69; Tian Qin, “Zhonguo Jueqi Jinchengzhong de Junshi Anquan Fenxi ji Duice Sikao (‘Analy- sis of Military Security in the Process of China’s Rise and Relative Countermeasures’),”
weaponry, the China threat thesis has gained further grounds when it comes to making predictions about the consequences of China’s military ambitions and capabilities for the status quo within its immediate neighbourhood, the region and the world as a whole.21 The opacity of China’s military spending has only further corroborated with other revelations about its inadequate compli- ance with reporting duties and granting of access to nuclear facilities within the framework of international agreements. Suspicion on behalf of Western nations regarding the alleged transfer of nuclear and other weapons technol- ogy to China’s allies – Iran, North Korea and Pakistan – has deepened distrust in China’s international commitments. Also, regarding its arms trade, China has been accused of having a lax attitude towards sales to governments that have poor human rights records and criticised for its unwillingness to join
Meiguo Yanjiu (Chinese Journal of American Studies) 4 (2005): 25–37; Xuetong Yan, “Zhong- guo Jueqi de Shili Diwei (‘The Position of Strength of China’s Rise’),” Guoji Zhengzhi Kexue (Science of International Politics) 2 (2005): 1–25; Guangkai Xiong, “Lun Shijie Xinjunshi Biange Qushi he Zhongguo Xinjunshi Biange (‘On the Trend of New Military Reform in the World and the New Military Reform in China’),” Waijiao Xueyuan Xuebao (Journal of China Foreign Affairs University) 6 (2004): 8–16; Shiping Tang, “Zhongguo de Jueqi yu Diqu Anquan (‘China’s Rise and Regional Security’),” Dangdai Yatai (Journal of Contemporary Asia-Pacific Studies) 3 (2003): 14–18; Chong-Pin Lin, “Chinese Military Modernization: Perceptions, Progress, and Prospects,” Security Studies 3 (1994): 718–753; Thomas W. Robinson, “Chinese Military Modernization in the 1980s,” China Quarterly 90 (1982): 231–252. 21 Mark Schneider, “Minimum Deterrence and Russian and Chinese Threat Developments,” Comparative Strategy 33 (2014): 193–204; Manjari Chatterjee Miller, Wronged by Empire: Post-imperial Ideology and Foreign Policy in India and China (Stanford: Stanford Univer- sity Press, 2013); Jonathan Holslag, Trapped Giant, China’s Problematic Military Rise in Asia (London: Routledge, 2012); Baohui Zhang, “us Missile Defence and China’s Nuclear Posture: Changing Dynamics of an Offence-Defence Arms Race,” International Affairs 87 (2011): 555–569; Jonathan Holslag, “The Persistent Military Security Dilemma between China and India,” Journal of Strategic Studies 32 (2009): 811–840; Bonnie S. Glaser and Liang Wang, “North Korea: The Beginning of a China-u.s. Partnership?” Washington Quarterly 31 (2008): 165–180; Christopher P. Twomey (ed.), Perspectives on Sino-American Strategic Nuclear Issues (New York: Palgrave Macmillan, 2008); Bates Gill, Rising Star: China’s New Security Diplomacy (Washington, d.c.: Brookings Institution Press, 2010); David Sham- baugh, Modernizing China’s Military: Progress, Problems, and Prospects (Berkeley; Los Angeles: University of California Press, 2002); Evan A. Feigenbaum, “Soldiers, Weapons and Chinese Development Strategy: The Mao Era Military in China’s Economic and Insti- tutional Debate,” China Quarterly 158 (1999): 285–313; Alice Langley Hsieh, “Communist China and Nuclear Warfare,” China Quarterly 2 (1960): 1–15.
22 Shirley A. Kan, “China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues,” us Congressional Research Service Report, 5 January 2015; Yihong Tang and Xianguo Qi, “Quanqiu Junpin Maoyi Zhengce Bianqian ji Dui Woguo de Qishi (‘Change in Global Arms Trade Policy and its Enlightenment to China’),” Guoji Maoyi (Intertrade) 3 (2015): 25–31; Chunsi Wu, “Heanquan Fenghui, Quanqiu Hezhixu Jianshe yu Zhongguo Juese (‘Nuclear Security Summit, Global Nuclear Order and the Role of China’),” Guoji Anquan Yanjiu (Journal of International Security Studies) 2 (2015): 40–60; Wei Zhang, “Lun Junhuo Maoyi de Guojifa Guizhi Jiqi dui Woguo Junhuo Maoyi Zhengce de Yingxiang (‘On Regulation of Arms Trade in International Law and its Influence on China’s Arms Trade Policy’),” Kexue Jingji Shehui (Science Economy Society) 2 (2014): 104–109; Jianwei Liu, “Zhongguo Hebukuosan Zhengce he Xingwei Bianhua: Yizhong Guifan Hefaxing de Jiedu (‘Changes in China’s Nuclear Non-Proliferation Policy and Behavior: An Understanding of Norms Based on Legitimacy’).” Dangdai Yatai (Journal of Contemporary Asia-Pacific Studies) 4 (2011): 128–143; Wyn Q. Bowen, Ben Rhode and Dingli Shen, “How China Can Strengthen International Nuclear Security,” Survival 52 (2010): 11–17; Xiangli Sun, “Zhong- guo Junkong de Xintiaozhan yu Xinyicheng (‘New Challenges and Agendas on China’s Arms Control’);” Waijiao Pinglun (Foreign Affairs Review) 3 (2010): 10–21; Liping Xia, “Lun Zhongguo Hezhanlue de Yanjin yu Goucheng (‘On The Structure and Evolution of China’s Nuclear Strategy’),” Dangdai Yatai (Journal of Contemporary Asia-Pacific Studies) 4 (2010): 113–127; Mincai Yu, “China’s Position on the Proliferation Security Initiative and Its Reap- praisal,” Journal of East Asia and International Law 1 (2010): 49–66; Hui Zhang, “China’s Perspective on a Nuclear-Free World,” Washington Quarterly 33 (2010): 139–155; Longbiao Zhong, “Zhongguo Guoji Junbei Kongzhi Zhengce Yanbian Lunxi (‘Analyses of the Evolu- tion of China’s Policy Concerning International Arms Control’),” Dangdai Zhongguoshi Yanjiu (Contemporary China History Studies) 5 (2009): 225–232; Wendy Frieman, China, Arms Control, and Proliferation (London: Routledge, 2004); Baogen Zhou, “Zhongguo yu Guoji Hebukuosan Jizhi de Yizhong Jiangou Zhuyi Fenxi (‘Constructivist Analysis of China and the World Nuclear Non-Proliferation Regime’),” Shijie Jingji yu Zhengzhi (World Economics and Politics) 2 (2003): 23–27; Liping Xia, “Guoji Junbei Kongzhi Lilun de Yan- bian yu Jianli You Zhongguo Tese de Junkong Lilun (‘The Evolution of International Arms Control Theory and the Establishment of Arms Control Theory with Chinese Character- istics’),” Guoji Zhengzhi Yanjiu (Studies of International Politics) 2 (2002): 73–81; Shaojun Li, “Zhongguo yu Hebukuosan Tizhi (‘China and the Nuclear Non-Proliferation Regime’),” Shijie Jingji yu Zhengzhi (World Economics and Politics) 10 (2001): 60–65; Gary Klintworth, “China and Arms Control: A Learning Process,” Journal of East Asian Affairs 14 (2000): 84–116; Mohan Malik, “Nuclear Proliferation in Asia: The China Factor,” Australian Journal of International Affairs 53 (1999): 31–41; Mingquan Zhu, “The Evolution of China’s Nuclear Nonproliferation Policy,” The Nonproliferation Review 4 (1997): 40–48; Richard Fieldhouse, “China’s Role in Proliferation,” Transnational Law and Contemporary Problems 2 (1992): 537–557; David I. Salem, “On-Site Verification in the People’s Republic of China: Prob- lems and Prospects,” asils International Law Journal 7 (1983): 1–40; Shao-Chuan Leng,
Conversely, China has raised its own legitimate concerns to those allega- tions that have been framed to hold China’s potential military assertiveness in check in its attempt to challenge the status quo within those different geographies and pursue regional hegemony. Its fear of containment by the us further fuelled the conspiracies on both sides to strengthen their military readiness to respond to new sources of conflict within the Asia-Pacific region, invest accordingly in new military technologies and seek military alliances. With such atmosphere of vicious mutual distrust, the road for a new weapons race and competition between regional and global powers is open again. At the same time, the threats emanating from non-state actors – in particu- lar, terrorist organisations – within the Middle East, Central Asia and South Asia have added further regional and global distress to the possibility that certain national governments may lose control over their weapons of mass destruction, which could fall into the wrong hands.23 Those non-state actors have changed the nature of threats to international peace and security. Within the realm of arms control, they are a source of regional and global instability, preventing peaceful relationships between states and peoples. According to international law scholars, the means to dissipate the complexity of those tensions emanating from state and non-state sources is to advance and strengthen the regulatory frameworks pertaining to the regulation of produc- tion, use, proliferation and disarmament of conventional and non-conven- tional weapons instead. Their analysis is rather limited in its subject matter. Namely, it focuses on the international norms almost exclusively without pay- ing sufficient attention to the global and regional governance structures and mechanisms in which those norms operate. Nonetheless, China’s institutional response and participation within those mechanisms have served various aims: advance China’s own interests more effectively regarding the development of certain regulations in the realm of arms control; cooperate with other nations through those governance bodies; or represent the voice of the developing countries whose national security interests have often been subdued by other Western technologically more advanced military powers.24
“Communist China’s Position on Nuclear Arms Control,” Virginia Journal of International Law 7 (1967): 101–116. 23 See also Chapter 5 China and the War on Terror. 24 China is a state party to the following weapons conventions: 1899 Hague Convention (ii) on the Laws and Customs of War on Land (since 12 June 1907); 1899 Hague Decla- ration (iv, 2) Concerning Asphyxiating Gases (since 21 November 1904); 1899 Hague Declaration (iv, 3) Concerning Expanding Bullets (since 21 November 1904); 1907 Hague
Through global governance, those tensions can be mediated and sufficient room can be created to instil and restore confidence between nations owning certain conventional and non-conventional weapons for self-defensive and preemptive action or mere deterrence. Balance, however, must be struck between competing values of sovereignty and community, respectively advancing the defensive attitude of states on the one hand and
Convention (iv) on War on Land and its Annexed Regulations (since 10 May 1917); 1907 Hague Declaration (xiv) on Explosives from Balloons (since 27 November 1909); 1925 Pro- tocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (since 13 July 1952); 1972 Convention on the Prohibi- tion of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (btwc) (since 15 November 1984); 1980 Con- vention Prohibiting Certain Conventional Weapons (ccw) (since 7 April 1982); 1980 ccw Protocol (i) on Non-Detectable Fragments (since 7 April 1982); 1980 ccw Protocol (ii) Prohibiting Mines, Booby-Traps and Other Devices (since 7 April 1982); 1980 ccw Pro- tocol (iii) Prohibiting Incendiary Weapons (since 7 April 1982); 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (cwc) (since 25 April 1997); 1995 ccw Protocol (iv) on Blinding Laser Weapons (since 4 November 1998); 1996 Amended ccw Protocol (ii) Prohibiting Mines, Booby-Traps and Other Devices (since 4 November 1998); 2001 Amended Article 1, Convention Prohibiting Certain Conventional Weapons (since 11 August 2003); 2003 ccw Protocol (v) on Explosive Remnants of War (since 10 June 2010). China is also a state party to the following arms control and non-proliferation treaties in the nuclear field: 1967 Ad- ditional Protocol ii to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (nwfz Treaty of Tlatelolco) (since 2 June 1974); 1968 Treaty on the Non-Proliferation of Nuclear Weapons (since 9 March 1992); 1971 Treaty on the Prohibi- tion of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof (since 28 February 1991); 1986 Additional Protocol ii and iii to the South Pacific Nuclear Free Zone Treaty (nwfz Treaty of Rarotonga) (since 21 October 1988); 1996 Protocol i and ii to the African Nuclear- Weapon-Free-Zone Treaty (nwfz Treaty of Pelindaba) (since October 1997); 1996 Com- prehensive Nuclear Test Ban Treaty (ctbt) (signed on 24 September 1996). Together with the us, they are the only two nuclear weapon states that have not ratified the ctbt. Fur- thermore, without the ratification of China, the us, India and Pakistan, ctbt has not yet entered into force. Nevertheless, China and the us have promised support to the ctbt’s early intro into force. See us-China Joint Statement (19 January 2011). Furthermore, since 14 December 2016, on a voluntary basis, China had finally and formally accepted one of its monitoring stations in Lanzhou under the ctbt Organisation’s (ctbto) verification and monitoring system. Such certification could complete China’s contribution to these multilateral efforts and be a possible step closer for China to ratify the convention and fulfil its international obligations accordingly. Meng Jie, “Interview Certification of First Monitoring Station in China a Milestone: ctbto Chief,” Xinhua News, 14 December 2016.
A National Security The fundamental basis upon which global disarmament and arms control efforts rests is the principle of non-interference that safeguards the sovereignty of a state to protect its national security from various traditional and non- traditional security threats – respectively from state and non-state actors (including organized armed groups, pirates and terrorists) – that are under- mining it. In order to give an effective response, states often have within their own jurisdiction, advanced a military strategy to crush a rebellion or terrorist organisation operating within and from their territory. Other states have sup- ported the struggle of the former with its consent and, accordingly, have assist- ed militarily in defence of the former’s state’s territorial integrity and political independence. In the face of such national insecurities, the sale, transfer or proliferation of arms was not only taking place on the side of the governmental party to such non-international armed conflicts but also secured on the side of the non-state armed actors that have either received support from other states – often in violation of the principle of non-interference in the first place or in case those non-state armed groups are acting on behalf of third states – or from other transnational actors including terrorist organisations. The protracted nature of such non-international or even internationalised armed conflicts, especially in Africa and the Middle East, and the abundance of weapons in those conflicts have rendered the prospects for restoring the territorial integrity and political independence or moving towards a peace- ful settlement elusive. Where the principle of non-interference once served to protect the national security of the state in question that is confronted with traditional and non-traditional security threats on its territory and in its neighbourhood, the proliferation and easy access to weapons have resulted in negative regional and international consequences for the maintenance of peace and security. The principle of non-interference is not defended within a political vacuum. The nature of the armed conflict, the state and non-state parties involved/ affected and the use of particular means of warfare have inevitably triggered the attention of the international community as well as regional actors to contain the threats within a particular nation-state and/or prevent it from spilling-over to its neighbourhood. China has been particularly convinced that traditional and non-traditional security threats are interdependent and necessitate a comprehensive approach on behalf of all shareholders and stakeholders in not only addressing them but also tackling their root causes including poverty, a lack of rule of law,
25 Chinese Ministry of Foreign Affairs, White Paper on Peaceful Development (6 September 2011); State Council Information Office, White Paper on China’s Endeavors for Arms Control, Disarmament and Non-Proliferation (1 September 2005). 26 Speech of Chinese ambassador liu Zhenmin before the Security Council, un Doc. S/ PV.5881 (30 April 2008), 18; State Council Information Office, White Paper on China’s Endeavors for Arms Control, Disarmament and Non-Proliferation (1 September 2005). See also speech of Chinese ambassador WANG Qun before the First Committee on Disarma- ment of the un General Assembly, un Doc. A/C.1/66/PV.15 (18 October 2011), 21. 27 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6288 (19 March 2010), 19. 28 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5127 (17 February 2005), 14. See also un Doc. S/PRST/2002/30 (31 October 2002).
29 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.4623 (11 October 2002), 8. The Chinese ambassador put forward his position with ref- erence to Recommendation 12 of the un Secretary-General in his report on small arms that called upon states to “enhance transparency in armaments” and “undertake other confidence-building measures in defence and security matters”. See un Doc. S/2002/1053 (20 September 2002), 7. 30 Regulations of the People’s Republic of China on Administration of Arms Export (Pro- mulgated by Decree No. 234 of the State Council of the People’s Republic of China and the Central Military Commission of the People’s Republic of China on 22 October 1997, and revised in accordance with the Decision of the State Council and the Central Military Commission on Amending the Regulations of the People’s Republic of China on Admin- istration of Arms Export on 15 October 2002), Art. 5. 31 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7036 (26 September 2013), 17; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7442 (13 May 2015), 6.
32 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.7447 (22 May 2015), 8. See also un Doc. S/RES/2220 (22 May 2015). 33 Chinese Ministry of Foreign Affairs, “National Report of the People’s Republic of China on the United Nations Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, and of the International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons” (July 2010). 34 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5127 (17 February 2005), 14. 35 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5390 (20 March 2006), 8.
Accordingly, China had provided financial, technological and training resourc- es bilaterally or within multilateral organisations and/or settings at the global and regional level, such as the un, the Shanghai Cooperation Organisation, asean, the Organisation of American States and the Forum on China-Africa Cooperation.36 China has been generally supportive of such confidence-building mea- sures including the un Conventional Arms Register and encouraged greater participation thus leading to its universal acceptance as “an authoritative mechanism on confidence building measures”. Yet, China was not immune either to the use of the un Conventional Arms Register by the us when it re- ported its weapon sale to Taiwan. As a result, China refused to submit its an- nual reports ever since 1996 until 2007.37 There is a thin line between national security interests and the benefits of transparency regarding arms control, where the latter may result in more secretive measures on behalf of certain states to conceal and enhance their capability to defend their national secu- rity and other core interests. Another important strategy to fight illicit trade in salw is the International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons.38 China argued that such measures on behalf of the international community could not exclude the transfer of such weapons to non-state actors including terror- ists and found that all states should cease transfers to those actors in the first place – something which was eventually not included in the text establishing the International Tracing Instrument.39
36 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7036 (26 September 2013), 17. 37 “prc Response to Provide Information on Resolution 66/39 on Transparency in Arma- ments,” https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/assets/ convarms/infoCBM/docs/CBM/CBM_2013/2013_China-ICBM_etc_report.pdf (accessed 1 June 2017); see also speech of Chinese ambassador CHENG Jingye at the Plenary Meet- ing of the Conference on Disarmament, 1081st Session, Doc. CD/PV.1081 (4 September 2007), 4; Letter Dated 6 September 2007 from the Permanent Representative of China to the Conference on Disarmament Addressed to the Secretary-General of the Confer- ence Transmitting Remarks of 2 September 2007 by the Spokesperson of the Ministry of Foreign Affairs of the People’s Republic of China on China’s Participation in the un Military Transparency Mechanism, Doc. CD/1830 (13 September 2007). 38 See un Doc. A/CONF.192/15 (8 December 2005). 39 Speech of Chinese delegation before the General Assembly before the First Committee on Disarmament, Second Session of the Programme of Action on Consideration of the Implementation of the International Tracing Instrument (17 June 2014).
The Security Council, however, could reconsider its weapons embargoes through the respective Sanctions Committees based on the voluntary reports of the targeted nations in the un Conventional Arms Register and on the general capacity of those countries to implement the different measures that accom- pany such embargoes, including the marking and tracing of weapons, their recording, the enhancement of security at national borders, the development of control systems for import and export of weapons and the strengthening of rule of law institutions.40 The Chinese ambassador to the Security Council stressed that the Council should fully take into account the different causes and symptoms of armed conflict in the world if it decides to strengthen or impose an arms embargo.41 Such international measures would indeed aim to enhance confidence between the targeted nation and the international com- munity but as pointed out above they may not reach the same effect regard- ing the restoration of trust between the domestic protagonists to the armed conflict(s).42 Yet, on 23 August 2006, the Chinese ambassador to the Conference on Disarmament made certain reservations regarding transparency measures in armaments if those were to compromise or jeopardize the right of individ- ual and/or collective self-defence. He continued that transparency, including the un Conventional Arms Register, was not a remedy but could have positive effects on the maintenance of international peace – yet not automatically – and would rather serve as a confidence-building measure alone.43 The negotiation of the Arms Trade Treaty – to which China is not a signatory party – was equally subjected to such inherent tension. According to China, the treaty’s ambition to govern illicit arms trade, not only for salw, ought to have further taken into account the geopolitical, economic and security interests of trading nations. From the Chinese perspective, without a proper consensus of all states concerned, involved and affected by arms trade, a universal treaty would suffer from discrimination especially where the national security needs of a country to defend its territorial integrity and political independence were
40 un Doc. S/RES/2220 (22 May 2015), para. 13. 41 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc.S/ PV.4623 (11 October 2002), 8. 42 China has made its assistance available to other nations in countering illicit trade in salw when sharing its management experiences to inventorise weapon stocks in order to destroy excess of ammunition that could prevent illicit trade of such stockpiles. See speech of Chinese delegation before the First Committee on Disarmament of the un General Assembly, Second Session of the Programme of Action on Stockpile Management, including Physical Security Measures (16 June 2014). 43 Speech of Chinese ambassador CHENG Jingye at the Plenary Meeting of the Conference on Disarmament, 1036th Session, Doc. CD/PV.1036 (23 August 2006), 23.
44 Speech of Chinese ambassador WANG Qun before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/65/PV.5 (7 October 2010), 4. 45 Speech of Chinese ambassador WU Haitao before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/68/PV.4 (8 October 2013), 20. 46 Speech of head of Chinese delegation WU Haitao before the First Committee on Disar- mament of the un General Assembly, General Debate, 68th Session (8 October 2013); speech of head of Chinese delegation WU Haitao before the First Committee on Disarma- ment of the un General Assembly, General Debate, 69th Session (9 October 2013). 47 Speech of head of Chinese delegation WU Haitao before the First Committee on Disar- mament of the un General Assembly, Thematic Debate on Conventional Weapons, 68th Session (29 October 2013).
48 China noted that disarmament, arms control and non-proliferation are inextricably a part of the collective security framework governed under the auspices of the Security Council. Yet, they allow for “universal participation of all countries on an equal footing”. See speech Chinese ambassador HU Xiaodi before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/59/PV.3 (5 October 2004), 3; speech of Chinese ambassador WU Haitao before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/69/PV.4 (9 October 2014), 13. 49 Since its first nuclear test on 16 October 1964, China established its non-first use nuclear policy and which has repeatedly been restated ever since. See Working Paper Submitted by China on Nuclear Disarmament and Reduction of the Danger of Nuclear War, Pre- paratory Committee for the 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Doc. NPT /CONF.2005/PC.I/WP.6 (12 April 20002); State Council Information Office, White Paper on China’s Endeavors for Arms Control, Disarmament and Non-Proliferation (1 September 2005); State Council Information Office, White Paper on China’s National Defense in 2008 (January 2009); State Council In- formation Office, White Paper on China’s National Defense in 2009 (January 2010); State Council Information Office, White Paper on China’s National Defense in 2010 (31 March 2011); State Council Information Office, White Paper on China’s Military Strategy (May 2015); State Council Information Office, White Paper on China’s Nuclear Emergency Pre- paredness (January 2016). 50 China’s National Statement on Security Assurances, Letter dated 6 April 1995 from the Per- manent Representative of China to the United Nations addressed to the Secretary-Gener al,
understood such demand on behalf of non-nuclear weapons states – or those who intend to develop or acquire them – to have such security assurances in the face of international threats in order to address their national security concerns in the first place. In this manner, trust could be restored between the (non-)nuclear weapons states and the international community as a whole. China considered that such security assurances ought to be part of a broader process towards the adoption of an international convention that complete- ly prohibited such weapons as has been the case with the conclusion of the Biological and Chemical Weapons Conventions. It further called upon the other nuclear weapons nations to join those “unremitting efforts” towards the conclusion of such international instrument. Meanwhile, however, Chi- na would be prepared to respond appropriately to nuclear attacks against such states by giving them assistance and imposing sanctions on the attack- ing nation. Such commitment and security assurances vis-à-vis non-nuclear weapons countries, could, according the Chinese ambassador to the Security Council, not be construed to endorse “the use of nuclear weapons” as such in the first place.51 In the absence, however, of a treaty that prohibits nuclear weapons and their (first) use between the nuclear weapon states,52 China has been equally preoc- cupied with the actual threat on the use of nuclear weapons uttered by some nations as a matter of deterrence to defend their respective national security and which should at the same time be reduced too.53 According to China, the reduction of the threat on the use of nuclear weapons could be achieved if the very role of nuclear weapons, within the respective national security strat- egies of the countries which possess or seek to possess them, was lessened.
un Doc. S/1995/265 (5 April 1995); see also Letter dated 6 April 1995 from the Head of the Delegation SHA Zukang of the People’s Republic of China to the Conference Addressed to the President of the Conference on Disarmament Transmitting the Text of China’s Na- tional Statement on Security Assurances, Doc. CD/1309 (7 April 1995); speech of Chinese President HU Jintao before the Security Council, un Doc. S/PV.6191 (24 September 2009), 11; speech of Chinese ambassador ZHANG Junan before the First Committee on Disarma- ment of the un General Assembly, un Doc. A/C.1/66/PV.11 (13 October 2011), 8. 51 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3514 (11 April 1995), 23–24; see also speech of Chinese ambassador CHENG Jingye at the Plenary Meeting of the Conference on Disarmament, 1031st Session, Doc. CD/PV.1031 (3 August 2006), 24. 52 Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, International Court of Justice, Advisory Opinion, 8 July 1996, icj Reports 1996, p. 226. 53 Speech of Chinese counsellor of the Chinese delegation KANG Yong before the First Committee on Disarmament of the un General Assembly, Thematic Debate on Nuclear Disarmament, 64th Session (14 October 2009).
Yet, a nuclear weapons state’s security strategy, as it argued, was ultimately conditioned on the abandonment of the nuclear deterrence on behalf of the other nuclear weapons states that were responsible to reduce the risk of nu- clear weapons to be used on their behalf in the first place.54 China’s identifi- cation of such interdependent traditional security threats and risks discussed within various forums, including the Security Council, the General Assembly and the Conference on Disarmament, has at the same time redefined the re- lationship between nuclear weapons states themselves and vis-à-vis non-nu- clear weapons states in such a way as to (re)align national and international security interests. While those relationships are at the cornerstone of any ef- forts towards arms control and disarmament – without a process and dialogue between the relevant parties, commitments towards those interdependent se- curity interests will remain elusive. Furthermore, China considered that “con- ventional disarmament measures should be undertaken in conjunction with nuclear disarmament measures”.55 In practice, China’s departure from the deterrence logic and its repercus- sions for conventional and nuclear disarmament efforts has not persuaded all nuclear weapons states to follow suit.56 As a result, the latter’s national security
54 Speech of Chinese ambassador ZHANG Junan before the First Committee on Disarma- ment of the un General Assembly, un Doc. A/C.1/68/PV.11 (18 October 2013), 23–24. 55 Letter dated 21 June 1982 from the Permanent Representative of China to the United Nations addressed to the Secretary General, “Proposal on the Essential Measures for an Immediate Halt to the Arms Race and for Disarmament”, un Doc. A/S-12/AC.1/23, Annex ii, 6. This was submitted during the second special session on disarmament before the un General Assembly (7 June–10 July 1982). See speech of Chinese ambassador HUANG Hua before the General Assembly, un Doc. A/S-12/PV.8 (11 June 1982), 112–113; see also speech of speech of Chinese ambassador pan Guoxiang before the First Committee on Disarma- ment of the un General Assembly, un Doc. A/C.1/42/PV.6 (15 October 1987), 27–28. 56 On 16 July 2001, however, China and Russia had signed their Treaty of Good-Neighborli- ness and Friendly Cooperation between the People’s Republic of China and the Russian Federation. Its Article 2 reaffirmed “their commitment that they will not be the first to use nuclear weapons against each other nor target strategic nuclear missiles against each other”. Already in September 1994, the then Chinese President Jiang Zemin and Russian President Boris Yeltsin gave a joint statement where both nations reaffirmed their com- mitment to the non-first use of nuclear weapons and that their respective nuclear weap- ons were not targeting each other. This statement was issued with the hope that it would be followed by a similar commitment amongst all nuclear weapons states. See 1995 National Report of the People’s Republic of China on the Implementation of the Treaty on the Non-Proliferation of Nuclear Weapons, Doc. NPT/CONF.1995/18 (17 April 1995). In this respect, China and the other nuclear weapons states issued a joint statement in May 2000 where they declared that their nuclear weapons would not target any particular
state. See State Council Information Office, White Paper on National Defense in 2000 (16 October 2000). 57 Speech of Chinese ambassador HU Xiaodi at the Plenary Meeting of the Conference on Disarmament, 989th Session, Doc. CD/PV.989 (7 July 2005), 5.
In this respect, the kind of measures adopted by the Security Council should aim to establish trust between the nuclear weapons states/permanent members of the Council and the state subjected to its measures. Confidence could be restored when clarity and transparency would be offered by means of inspections about the nature of certain weapon or nuclear enrichment programme on the one hand. On the other hand, the nuclear weapons states and their respective allies within the region concerned could equally offer security guarantees pertaining to their defensive and aggressive nuclear capabilities so that the concerned state’s national security interests would no longer be compromised by such perceived external threats. Failures, however, to offer such security guarantees and transparency on both sides could rein- force the divide and lead to more stringent enforcement measures on behalf of the Security Council that could sanction that particular country through embargoes, freezing of assets, travel bans, etcetera. Such measures ought to be evaluated on a regular basis in order to leave sufficient room for dialogue and communication to move all relevant shareholders and stakeholders out of their stalemate and restore their respective relationship in the interest of the different national and international security agendas on the one hand and for the sake of the restoration of the various norms that underpin those agendas on the other hand based on a common understanding about the moral values that have been at stake in their conflict, namely peace, humanity and account- ability. China has been keen to hold “extensive consultations” with all relevant parties before the un Security Council where international cooperation and dialogue regarding the non-proliferation of weapons of mass destruction – that may end up in the hands of non-state actors – must take place on the basis of sovereign equality and trust in respect of international law.58 Provocations, however, according to China, on both sides to a particular dispute, would not serve the national security interests of either party. The nuclear dispute on the Korean Peninsula would be the primary example at hand. While from the national security perspective, non-conventional weapons have served their deterrent purpose to avoid mutual aggression, from the international security perspective, the international community is rather focused on avoiding mutual destruction. From each point of view, they have directly and indirectly been concerned with the preservation of international peace and security. From a humanitarian perspective, however, it would be rather difficult to reconcile the survival of the state – as a matter of military
58 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.4956 (28 April 2004), 6; speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7837 (15 December 2016), 23–24.
necessity – with the humanitarian consequences of the indiscriminate nature of such weapons and their potential to annihilate the entire human species on this globe. In order to hold actors on the international plane accountable for such scenarios, the principle of non-proliferation has restrained both nuclear and non-nuclear weapons states. Yet, the very inequality of the lat- ter relationship has been a source of disagreement on whether such principle of non-proliferation could truly play its role as long as total disarmament of those weapons of mass destruction has not been accomplished. Such under- mines the very principle of sovereign equality which, by certain states being deprived of such weapons, would be challenged in order to overcome military and technological inferiority. Against such background, a state’s national security interests would be served when developing nuclear technologies that would confront the monopoly of nuclear weapons states and bridge the gap towards sovereign equality in title and in arms. In spite of the efforts on behalf of nuclear weapons states to decrease the gap on their side, the almost total ownership over nuclear weapons by the us and Russia would render such dis- armament initiatives elusive. Such perpetual asymmetry defeats the principle of sovereign equality and would be difficult to redress on the latter basis and towards mutual trust. Regarding the use of conventional weapons, national and international security perspectives also fundamentally differ. While the state aims to protect and defend its territorial integrity and political independence against inside and outside, traditional and non-traditional threats, the international commu- nity is concerned that an abundance and proliferation of such weapons could cause a spill-over of national and regional conflicts affecting domestic, regional and international peace and security alike. From a humanitarian perspective, the illicit trade of conventional weapons is the cause of protracted violence in some countries and regions and has supported certain war economies. None- theless, importing and exporting countries of conventional weapons have been further given responsibility under various arms control mechanisms and humanitarian treaties that would respectively restrain the trade of such weapons when human rights violations would take place as a result of their use, on the one hand, and prohibit the use of certain of those weapons when violate the principle of distinction and cause unnecessary suffering and super- fluous injury to the parties of the conflict, on the other hand. As a result, the humanitarian and economic interests respectively driven by the prohibited use of conventional weapons and their proliferation through trade – illicit and legal alike – could bring importing and exporting countries in closer proximity and ultimately restore the principle of sovereign equality which ought to have governed their relationship in the first place.
B Economic Security National security not only envisages the protection of the security of the nation state against traditional and non-traditional security threats directly, it also seeks to secure the economic well-being of a nation state. The nexus between national and economic security are intimately linked from a developmental perspective. In this regard, states have sought to mobilise and invest those natural and human resources at home and overseas towards the economic development of their nation. Developing countries that may have an abun- dance of each of those resources have equally pursued an independent and sovereign economic agenda that also includes the production and develop- ment of nuclear energy, bio- and chemical technologies to sustain the growing energy, health, agricultural and industrial demands of their national econo- mies. The exercise of such sovereign right to development has long been com- promised by colonial domination and exploitation. In the aftermath of anti- colonial struggles for self-determination that culminated in the establishment of newly independent states, economic independence and ownership over natural resources has not been entirely achieved. The economic inequalities between developed and developing countries would have to be bridged in or- der for all nations to participate in global trade and contribute to each other’s development. Liberalising the global trade system as well as the rules govern- ing the former has not equally distributed fair opportunities for developing countries to become economically more self-sufficient in their particular en- ergy, health, agricultural and industrial needs. Against the background of the international debates on the right to devel- opment59 and the ongoing arms race during the Cold War, the un General Assembly, on behalf of the international community adopted a resolution on 8 December 1977 that called for greater forms of international cooperation to advance an even economic development across the world as well as for a reorientation of military expenditures towards the latter economic target. In this regard, the un General Assembly promoted the transfer of nuclear technologies to developing nations for peaceful purposes to advance their socio-economic development. It further declared that the iaea should not only promote such peaceful application of nuclear technology by means of its technical support, but also control under the existing safeguard agreements of the Non-Proliferation Treaty the very exercise of the sovereign right of nations
59 See Declaration on the Establishment of a New International Economic Order (nieo), un ga Res. 3201/2 (S-vi), un Doc. A/9559 (1 May 1974); Charter on the Economic Rights and Duties of States, un ga Res. 3281 (xxix), un Doc. A/RES/29/3281 (12 December 1974).
“in accordance with the principle of sovereign equality […] in order to prevent effectively proliferation of nuclear weapons”.60 Almost three years after the General Assembly adopted the Charter on the Economic Rights and Duties of States on 12 December 1974, the un Secretary- General submitted his report on the “Economic and Social Consequences of the Armaments Race and its Extremely Harmful Effects on World Peace and Security”61 following the earlier request of the General Assembly on 11 December 1975.62 The General Assembly had repeatedly called upon the cessation of the nuclear arms race given its absorption of vast amounts of natural and human resources away from the economic development of the new nations. Further- more, it would undermine, according to the Assembly, the establishment of the nieo which aimed to promote the economic independence of developing nations and international cooperation that would give such developing nations access to technologies from developed countries and promote their transfer to developing nations. The Secretary-General’s report argued along the same lines. Yet, at the end of the General Assembly’s Tenth Special Session in June 1978, which for the first time dealt with specific matters of disarmament,63 it requested a working group to examine the nexus between development and disarmament – but more detailed than the Secretary-General’s earlier report.64 The report on the “Relationship between Disarmament and Development” was finally submitted by governmental experts on 3 September 1981. The experts confirmed that economic development and an arms race “are in a competi- tive relationship” not only regarding material and human resources but also in terms of attitudes.65 Even nowadays this tension continues to affect develop- ing nations who openly wish to acquire weapons of mass destruction. During the first special session on disarmament before the General Assem- bly (23 May–30 June 1978), China voiced its broader concerns regarding the nuclear arms race by the superpowers who instead of pursuing disarmament, continued to advance their hegemonic agendas. In this regard, the Chinese rep- resentative argued that under the pretext of the non-proliferation of nuclear weapons, the superpowers aimed to prevent all other nations from developing
60 un Doc. A/RES/32/50 (8 December 1977). 61 un Doc. A/32/88 (12 August 1977). 62 un ga Res. 3462 (xxx), un Doc. A/RES/32/80 (11 December 1975). See also earlier resolu- tions on this topic: un ga Res. 2667 (xxv) (7 December 1970); un ga Res. 2831 (xxvi) (16 December 1971); un ga Res. 3075 (xxviii) (6 December 1973). 63 The un General Assembly has held three special sessions on disarmament: 23 May–30 June 1978; 7 June–10 July 1982; 31 May–26 June 1988. 64 un Doc. A/S-10/2 (30 June 1978). 65 un Doc. A/36/356 (3 September 1981), para. 391.
66 Speech of Chinese ambassador HUANG Hua before the General Assembly, un Doc. A/S-10/PV.7 (29 May 1978), 140–141. Also during the second special session on disarma- ment before the General Assembly (7 June–10 July 1982), China voiced the same concerns. See speech of Chinese ambassador HUANG Hua before the General Assembly, un Doc. A/S-12/PV.8 (11 June 1982). 67 International Conference on the Relationship between Disarmament and Development (New York, 24 August–11 September 1987), un Doc. E.87.IX.8 (30 September 1987). 68 China’s Note Verbale to the Secretary-General of the International Conference on the Relationship between Disarmament and Development, un Doc. A/CONF/130/34 (11 September 1987). 69 Speech of Chinese ambassador PAN Guoxiang before the First Committee on Disarma- ment of the un General Assembly, un Doc. A/C.1/42/PV.6 (15 October 1987), 33.
At the third (and so far, the last) special session on disarmament before the General Assembly (31 May–26 June 1988), China further emphasised the importance of disarmament for the sake of peace and development which it considered to be the dominant theme of today’s world (already at that time). The Chinese ambassador continued that the economic inequalities between developed and developing nations were translated into unequal development which itself adversely affected international and regional peace and security. Finally, China added that technology ought to benefit mankind rather than destroy it.70 Every nation’s right to peacefully develop technology and science should be guaranteed.71 Sharing of dual-use technology between developing nations for peaceful purposes could give, according to China, full expression to the “legitimate rights”72 of all countries – developing and developed alike. Only on the basis of the mutual respect for the principle of sovereign equality, could the security and development agendas transform the economic, political and security relationship between nation states. Conversely, such new relationship between developing and developed countries through disarmament could further the nieo at the same time. As economic security is thus ensured, states could prosper and develop new technologies for peaceful purposes alone. On its turn, the national security interests of states would no longer be jeopardised. Non-proliferation would be key to achieving those national and economic security goals. It is within this context that China had reaffirmed the need to take into account the legitimate rights of all countries to peacefully develop nuclear energy. This became clear in 2003, in the aftermath of the us inva- sion of Iraq. The inclusion of the view of developing countries, according to China, and the respect for their legitimate right to development, namely to share and use dual-use materials, had to be respected in order for non- proliferation to work in the interest of all nations – developed and developing alike.73 In regard to the Iranian nuclear crisis, according to China, Iran should
70 Speech of Chinese ambassador QIAN Qichen before the General Assembly, un Doc. A/S-15/PV.4 (2 June 1988), 64–65. 71 Speech of Chinese ambassador HU Xiaodi before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/58/PV.3 (7 October 2003), 7. 72 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.4956 (28 April 2004), 6; speech of Chinese ambassador WU Haitao before the Secu- rity Council, un Doc. S/PV.7837 (15 December 2016), 24. 73 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.4950 (22 April 2004), 6; see also speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.4956 (28 April 2004), 6; speech of Chinese ambassador ZHANG Yesui before the Security Council, un Doc. S/PV.6015 (19 November 2008), 13. With the adoption of resolution 1540, the Security Council had established a
Committee – within the Council and consisting of its members – that would during a pe- riod of 2 years report on a regular basis on the progress of this resolution that called upon states to commit themselves to the non-proliferation of weapons of mass destruction in particular in light of their potential use by non-state actors. See un Doc. S/RES/1540 (28 April 2004). The Committee’s mandate was consecutively renewed by resolutions 1673, 1810, 1977, 2055 and 2325 of the Security Council. See un Doc. S/RES/1673 (27 April 2006); un Doc. S/RES/1810 (25 April 2008); un Doc. S/RES/1977 (20 April 2011); un Doc. S/RES/2055 (29 June 2012); un Doc. S/RES/2325 (15 December 2016). 74 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6737 (21 March 2012), 6; speech of Chinese ambassador ZHANG Junan before the Security Council, un Doc. S/PV.6888 (13 December 2012), 12. 75 China and Iran Joint Communiqué (22 June 2000), http://en.people.cn/english/200006/22/ eng20000622_43708.html (accessed 1 June 2017). 76 Speech of Chinese President HU Jintao before the Security Council, un Doc. S/PV.6191 (24 September 2009), 11. 77 Speech of Chinese ambassador SHA Zukang at the Plenary Meeting of the Conference on Disarmament, 1000th Session, Doc. CD/PV.1000 (31 January 2006), 12–14; speech of Chinese ambassador WANG Qun at the Plenary Meeting of the Conference on Disarma- ment, 1163rd Session, Doc. CD/PV.1163 (19 January 2010), 17. 78 Speech of Chinese ambassador LI Yang at the Plenary Meeting of the Conference on Dis- armament, 1032nd Session, Doc. CD/PV.1032 (10 August 2006), 9. In respect of China’s sup- port to draft a new Fissile Material Cut-off Treaty (fmct), it argued that it should also
China had advanced the same argument about the peaceful development of biotechnology for medical purposes and the need to strengthen further co- operation with other international bodies such as the World Health Organisa- tion (who) and United Nations Educational, Scientific and Cultural Organisa- tion (unesco) in accordance with the 1972 Biological Weapons Convention as well as exchange between the states parties – developed and developing nations alike.79 Therefore, China along with other developing nations have strongly supported the negotiation of an additional protocol to the Biological Weapons Convention that clearly defines how states can engage in such tech- nological activities, cooperation, exchange and trade that not only serve the legitimate rights of those countries but also promote trust towards compliance with the treaty. According to China, only a “fair transparent and multilateral export regulation mechanism within the future Organization for the imple- mentation of the Protocol” could deliver on both ends.80 Given the failure to adopt the Protocol, China supported cooperation on national implementation of the Convention instead at various levels, namely internationally, regionally and sub-regionally. Only on the basis of sovereign equality and mutual respect could the treaty’s effectiveness be (re)assured. In this regard, China favoured the establishment of the Implementation Support Unit that would deepen
be “economically viable” – another reference to the balance between economic develop- ment and security interests of states. See speech of Chinese ambassador SHEN Jian at the Plenary Meeting of the Conference on Disarmament, 1341st Session, Doc. CD/PV.1341 (26 February 2015), 19. 79 1972 btwc, Art. x; speech of head of Chinese delegation FAN Guoxiang at the Second Re- view Conference of the Parties to the 1972 btwc, Doc. BWC/CONF.II/SR.05, 5th Meeting (19 September 1986), paras. 45, 48; see also China’s Working Paper on “Position of Principle of the Chinese Delegation on the Biological Weapons Convention and its Third Review Conference” at the Third Review Conference of the Parties to the 1972 btwc, Doc. BWC/ CONF.III/18 (20 September 1991), paras. 3, 5; China’s Working Paper on “Specific Measures to Strengthen Implementation of Article x of the btwc” at the Ad Hoc Group of the States Parties to the 1972 btwc, Doc. BWC/AD HOC GROUP/WP.135, 6th Session (11 March 1997); Working Paper of China, Cuba, India, Indonesia, Iran, Libya, Mexico, Pakistan and Sri Lanka at Fifth Review Conference of the Parties to the 1972 btwc, Doc. BWC/CONF.V/ COW/WP.9 (26 November 2001); speech of head of Chinese delegation WU Haitao at the Meeting of Experts of the 1972 btwc (16 July 2012); speech of head of Chinese delegation WU Haitao at the Meeting of States Parties of the 1972 btwc (10 December 2012); speech of head of Chinese delegation WU Haitao at the Meeting of States Parties of the 1972 btwc (1 December 2014). 80 Working Paper of China, Cuba, India, Indonesia, Iran, Libya, Mexico, Pakistan and Sri Lanka at the Ad Hoc Group of the States Parties to the 1972 btwc, Doc. BWC/AD HOC GROUP/WP.452, 23rd Session (7 May 2001), para. 2.
81 Speech of head of Chinese delegation CHENG Jingye at the Meeting of Experts of the 1972 btwc (20 August 2007); China’s Working Paper on “National Implementation and Regional Cooperation on Implementation of the Biological Weapons Conventions” at the Meeting of Experts of to the 1972 btwc, Doc. BWC/MSP/2007/MX/WP.17 (21 August 2007); speech of head of Chinese delegation WANG Qun at the Meeting of States Parties of the 1972 btwc (10 December 2007). 82 Speech of head of Chinese delegation WANG Qun at the Meeting of States Parties of the 1972 btwc (7 December 2009); see also China’s Working Paper on “China’s Views on Strengthening the Effectiveness of the bwc” at the Seventh Review Conference of the States Parties to the 1972 btwc, Doc. BWC/CONF.VII/WP.24 (5 December 2011), para. 11. 83 Speech of head of Chinese delegation FU Cong at the General Debate of the Eight Review Conference of the States Parties to the 1972 btwc (7 November 2016). 84 Speech of head of Chinese delegation FU Cong at the Meeting of Experts of the 1972 btwc (10 August 2015); speech of head of Chinese delegation FU Cong at the First Session of the Preparatory Committee of the Eight Review Conference of the States Parties to the 1972 btwc (26 April 2016). 85 Speech of head of Chinese delegation FU Cong at the Meeting of Experts of the 1972 btwc (10 August 2015); speech of head of Chinese delegation FU Cong at the First Session of the Preparatory Committee of the Eight Review Conference of the States Parties to the 1972 btwc (26 April 2016). 86 Chinese Ministry of Foreign Affairs, White Paper on Peaceful Development (6 September 2011); see also Chinese National Development and Reform Commission, Ministry of
Therefore, for China, cooperation aimed to break down the development barriers between the North and the Global South so that biotechnology could benefit all states but warned that sharing bio-resources/-information under the pretext of cooperation between developed and developing countries could not be used to the former’s sole technological advantage. As those barriers would gradually disappear, according to China, one ought to balance between supervision and development objectives under the treaty in order to avoid misuse of biotechnology in the first place. In such process, equity played an important role for China since the legitimate rights and national conditions of developing states had to be taking into account in order to achieve such objectives so that the treaty’s implementation would be equitable and thus sustainable in the long-term. Through mutual assistance, according to China, a proper answer to bio-security incidents could be ensured with international players such as the who, World Organisation for Animal Health (oie) and the Food and Agriculture Organisation (fao).87 Regarding the 1993 Chemical Weapons Convention, China considered that this treaty could also enhance international cooperation in the realm of chemical technologies whose various applications – research, medical, agricul- tural, industrial, etcetera – would benefit developing nations in particular and would promote their “sustainable economic development”.88 With its ratifica- tion of the 1993 Chemical Weapons Convention, China declared that this treaty should function as the legal basis for governing trade amongst state parties and promote technological and scientific collaboration and exchange in the sector of the chemical industry. It added that the supervision of the imple- mentation of the Convention could not compromise the national – including economic – security interests of the state party.89 China together with other developing countries of the Non-Aligned Movement have made reservations as to the implementation of the cooperation obligations amongst states par- ties to the Convention which they claimed to have hampered the technologi- cal and economic development of developing countries. Furthermore, the “undue restrictions” in respect of the exchange of equipment, materials and technology for peaceful purposes were in violation of the spirit and letter of the treaty and would negatively affect its viability and undermine the trust
Foreign Affairs and Ministry of Commerce, Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road (28 March 2015). 87 Speech of head of Chinese delegation FU Cong at the Meeting of Experts of the 1972 btwc (10 August 2015). 88 China’s Position Paper at the First Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-1/NAT.1 (15 April 2003), para. 7.1. 89 1993 cwc, China’s Declarations, paras. 3, 5. (25 April 1997).
90 Statement of Dr. José Diaz Duque, Deputy Minister of the Ministry of Science, Technology and Environment of the Republic of Cuba, on Behalf of the States Parties of the Non-Aligned Movement to the Chemical Weapons Conventions and China, at the Second Review Conference of the States Parties to the 1993 cwc, Doc. RC-2/NAT.5 (7 April 2008), 3. 91 Position Paper Submitted by the Delegation of the Republic of Cuba on Behalf of the Member States of the Non-Aligned Movement that Are States Parties to the Chemical Weapons Convention and China to the Second Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-2/NAT.17/Rev.1 (15 April 2008), paras. 33–36, 39; see also Statement by H.E.M.M. Akhondzadeh, Deputy for International Affairs of the Ministry of Foreign Affairs of the Islamic Republic of Iran on Behalf of the Member States of the Non-Aligned Movement that Are States Parties to the Chemical Weapons Convention and China at the Third Review Conference of the States Parties to the 1993 cwc (8 April 2013); see also speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/ PV.7985 (28 June 2017), 19. 92 Speech of head of Chinese delegation CHENG Jingye at the Second Review Conference of the States Parties to the 1993 cwc (8 April 2008); see also Working Paper Submitted by the Non-Aligned Movement that Are States Parties to the Chemical Weapons Convention and China on the “Proposal for a Plan of Action on the Full Implementation of Article xi of the Chemical Weapons Convention” at the Third Review Conference of the States Parties to the 1993 cwc (8 April 2013).
A Prevention While economic security could overcome a clash of national and international security interests through economic and technological exchange and coop- eration between developed and developing countries, security measures – on behalf of the international community that do not discriminate between peaceful and dangerous use and development of nuclear, biological and chemical technologies – as well as the exclusive club of nuclear weapons states itself, would complicate the process towards the respect of the principle of non-proliferation if the principle of sovereign inequality were continue to be infringed upon by such double standards and the very inherent inequality that distinguishes nuclear weapons states from others. Therefore, from a preven- tive perspective, China has claimed to persistently advocate other nations to build “a global security environment of cooperation and mutual trust, seeking universal improvement of international relations and achieving security for all. This is the best way to eliminate the danger of proliferation as well as the prerequisite for a smooth non-proliferation process.” According to China, through diplomatic and political means – dialogue/cooperation rather than confrontation/pressuring – could proliferation problems be addressed and en- sure the maintenance of international peace and security at the same time.93 Existing international treaties already operate on such basis where positive and negative security considerations could enhance compliance thereof. In this regard, the 1968 Non-Proliferation Treaty prescribes the states parties to the treaty to negotiate in good faith on such measures that can effectively con- tribute to the “cessation of the nuclear arms race” and encourages states to conclude regional arrangements towards total abolition of nuclear weapons
93 State Council Information Office, White Paper on China’s Endeavors for Arms Control, Disarmament and Non-Proliferation (1 September 2005).
94 1968 npt, Arts. vi, vii. See also Security Council resolutions: un Doc. S/RES/255 (19 June 1968); un Doc. S/RES/984 (11 April 1995). China is a state party to three of such regional ar- rangements, namely: in Latin America – the 1967 nwfz Treaty of Tlatelolco (since 2 June 1974), in the South-Pacific – the 1986 nwfz Treaty of Rarotonga (since 21 October 1988) and in Africa – the 1996 nwfz Treaty of Pelindaba (since October 1997). China supported the treaty of the nuclear-weapon-free zone in Central Asia and has signed it – together with the other nuclear weapons states on 6 May 2014 (yet has not ratified it). See speech of Chinese ambassador CHENG Jingye at the Plenary Meeting of the Conference on Dis- armament, 1042nd Session, Doc. CD/PV.1042 (9 September 2006), 5; speech of Chinese ambassador FU Cong at the Plenary Meeting of the Conference on Disarmament, 1350th Session, Doc. CD/PV.1350 (10 March 2015), 11. Also before the First Committee on Disar- mament of the un General Assembly, China underscored the central role of the un and other organisations since they allow for a broad participation and cooperation between all states and were “a guarantee for impartiality and sustainability”. See speech of the Chinese ambassador HU Xiaodi before the First Committee on Disarmament of un Gen- eral Assembly, un Doc. A/C.1/57/PV.3 (1 October 2002), 14. 95 Thilo Marauhn, “Dispute Resolution, Compliance Control and Enforcement of Interna- tional Arms Control Law,” in Geir Ulfstein (ed.), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge: Cambridge University Press, 2007), 252. 96 State Council Information Office, White Paper on China’s Endeavors for Arms Control, Disarmament and Non-Proliferation (1 September 2005).
97 Speech of Chinese ambassador HU Xiaodi at the Plenary Meeting of the Conference on Disarmament, 989th Session, Doc. CD/PV.989 (7 July 2005), 5; speech of Chinese ambas- sador CHENG Jingye at the Plenary Meeting of the Conference on Disarmament, 1031st Session, Doc. CD/PV.1031 (3 August 2006), 24; speech of Chinese ambassador LI Chijiang at the Plenary Meeting of the Conference on Disarmament, 1204th Session, Doc. CD/ PV.1204 (10 February 2010), 23. 98 Speech of Chinese ambassador CHENG Jingye at the Plenary Meeting of the Conference on Disarmament, 1008th Session, Doc. CD/PV.1008 (2 March 2006), 15. Since the 1980s, China and Russia have taken the lead within the Conference on Disarmament to negoti- ate a new legally binding international instrument that would prevent the weaponisa- tion and arms race of outer space – a concern that has remained until after the Cold War. See also speech of Chinese ambassador CHENG Jingye at the Plenary Meeting of the Conference on Disarmament, 1024th Session, Doc. CD/PV.1024 (8 June 2006), 2–5. Confidence-building measures, according to China, would enhance mutual trust and per- mit for cooperation in respect of the peaceful uses of outer space by all countries – a model which follows the other multilateral arms control and disarmament treaties. See speech of Chinese ambassador ZHANG Junan at the Plenary Meeting of the Conference on Disarmament, 1025th Session, Doc. CD/PV.1025 (13 June 2006), 7. Yet, on 11 January 2007, China conducted its own anti-satellite missile test (which destroyed one of its own satellite – causing sufficient debris that would affect other satellites too), but it argued that it was not directed at any country whatsoever and would not conflict with its stance on the prevention of an arms race in outer space. See speech of Chinese ambassador CHENG Jingye at the Plenary Meeting of the Conference on Disarmament, 1048th Ses- sion, Doc. CD/PV.1048 (24 January 2007), 21; speech of Chinese ambassador CHENG Jingye at the Plenary Meeting of the Conference on Disarmament, 1052nd Session, Doc. CD/PV.1052 (13 February 2007), 32. On 12 February 2008, China and Russia submitted their first draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects to the Conference on Disarmament. See speech of Chinese ambassador LI Yang at the Plenary Meeting of the Conference on Disarmament, 1089th Session, Doc. CD/PV.1089 (12 February 2007), 8–9. Before the First Committee on Disarmament of the un General Assembly, China kept stressing the importance of confidence-building measures and transparency in outer space in order to prevent its weaponization. See speech of Chinese ambassador WANG Qun before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/65/PV.18 (25 October 2010), 11. Also in the context of the 1980 ccw, China warned about the devel- oping of lethal autonomous weapon systems that could be linked to other weapons in the outer space and that an arms race ought to be avoided in the first place. See speech of head of Chinese delegation JI Haojun at the Meeting of the States Parties to the 1980 ccw, 3rd Meeting, Doc. CCW/MSP/20015/SR.3 (13 November 2015), para. 19.
According to China, demands on behalf of non-nuclear weapons states “for legally binding security assurances are entirely legitimate and reasonable”.99 Yet, the lack of consensus during the Review Conferences of the Non- Proliferation Treaty has its repercussion upon the Conference on Disarma- ment too.100 China regretted “the growing tendency to stress non-proliferation while playing down nuclear disarmament”. Furthermore, according to China, such split of priorities has created a vacuum where unilateral approaches have given “way to counter-proliferation characterized by such military means as pre-emptive strikes and interdictions”. As a result, China urged nuclear weapons states to fulfil in good faith their disarmament obligations which complements the obligations of non-nuclear weapons states to prevent their proliferation – otherwise the Non-Proliferation Treaty’s indefinite extensions would undermine its authority and effectiveness.101 According to China, only
99 Speech of Chinese ambassador WU Haitao at the Plenary Meeting of the Conference on Disarmament, 1261st Session, Doc. CD/PV.1261 (12 June 2012), 13; speech of Chinese am- bassador WU Haitao at the Plenary Meeting of the Conference on Disarmament, 1284th Session, Doc. CD/PV.1284 (26 March 2013), 12. 100 Thus far, 9 Review Conferences have taken place, namely in 1975 (5–30 May 1975), 1980 (11 August–7 September 1980), 1985 (27 August–21 September 1985), 1990 (20 August–14 September 1990), 1995 (17 April–12 May 1995), 2000 (24 April–19 May 2000), 2005 (2–27 May 2005), 2010 (3–28 May 2010) and 2015 (27 April–22 May 2015). China started partici- pating from the fifth (1995) review conference onwards since it acceded to the 1968 npt on 9 March 1992. 101 Speech of Chinese ambassador HU Xiaodi at the Plenary Meeting of the Conference on Disarmament, 986th Session, Doc. CD/PV.986 (25 June 2005), 8; speech of Chinese am- bassador WU Haitao at the Plenary Meeting of the Conference on Disarmament, 1258th Session, Doc. CD/PV.1258 (22 May 2012), 7. See also speech of Chinese ambassador LI Yang before the First Committee on Disarmament of the un General Assembly, A/C.1/65/PV.11 (15 October 2010), 10. Another platform where China together with the other P5 nuclear weapons states has sought to fulfil those good faith negotiations advanced were their six joint conferences where the P5 have confirmed their intention towards such goals and called upon the non-nuclear weapons states to do the same thing. Confidence-building measures and verification mechanisms had, according to their joint statements, and would continue to be met with challenges regarding compliance with those objectives. See First P5 Joint Statement on Disarmament and Non-Proliferation Issues (London, 4 September 2009); Second P5 Joint Statement on Follow-up Meeting to the 2010 npt Re- view Conference (Paris, 1 July 2011); Third P5 Joint Statement on Implementing the npt (Washington, dc, 29 June 2012); Fourth P5 Joint Statement on Way to the 2015 npt Review Conference (Geneva, 19 April 2013); Fifth P5 Joint Statement on Enhancing Strategic Confidence and Working Together to Implement the Nuclear Non-Proliferation Review Outcomes (Beijing, 15 April 2014); Sixth P5 Joint Statement on Implementing the npt (London, 5 February 2015).
102 Speech of Chinese ambassador WANG Qun at the Plenary Meeting of the Conference on Disarmament, 1119th Session, Doc. CD/PV.1119 (22 January 2009), 5; see also speech of Chinese ambassador FU Cong at the Plenary Meeting of the Conference on Disarma- ment, 1359th Session, Doc. CD/PV.1359 (7 July 2015), 7–8. 103 Speech of Chinese Minister of Foreign Affairs YANG Jiechi at the Plenary Meeting of the Conference on Disarmament, 1151st Session, Doc. CD/PV.1151 (12 August 2009), 5; speech of Chinese ambassador WANG Qun at the Plenary Meeting of the Conference on Dis- armament, 1216th Session, Doc. CD/PV.1216 (17 March 2011), 10–12; speech of Chinese ambassador WU Haitao at the Plenary Meeting of the Conference on Disarmament, 1262nd Session, Doc. CD/PV.1262 (14 June 2012), 17; speech of Chinese ambassador WANG Qun before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/70/PV.3 (9 October 2015), 16. 104 Speech of Chinese ambassador WANG Qun at the Plenary Meeting of the Conference on Disarmament, 1126th Session, Doc. CD/PV.1226 (26 May 2011), 10. 105 Joint communiqué adopted during the meeting of the Ministers for Foreign Affairs of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern
6 June 1998.106 The permament members’ statement sought to demonstrate the aligned position of the nuclear weapons states regarding the non-proliferation of nuclear weapons by other nations, including India and Pakistan, and their willingness to find a solution for the outstanding territorial disputes between the countries through “confidence and security-building measures” and the res- toration of peace and stability in the sub-continent. The Chinese ambassador to the Security Council found that the Council should create “a favourable external climate in which India and Pakistan can resolve their differences peacefully”. The latter two countries, according to China, should show self- restraint, avoid an arms race and respect the npt and ctbt “immediately and unconditionally” although they have not signed the latter two treaties.107 The asymmetrical relationship between recognised nuclear weapons states and non-recognised nuclear weapons states, including India and Pakistan, could hardly be amended as long as the latter are not bound by the non- proliferation obligations under the npt. Calls of the Security Council to that effect could possibly strengthen the non-proliferation regime on a voluntary basis. The lack of enforcement measures on behalf of the Security Council fur- ther demonstrated the weakness of the international community to impose such legal obligations on the one hand or rather its careful strategy to engage with two nuclear powers on an equal basis that was conditioned on the sover- eign will of both countries to accede to the npt and ctbt on the other hand. Rather than isolating those South Asian nations, the Council in general and China in particular showed sufficient openness towards those nations in terms of their national security concerns yet favoured those to be best served in an international non-proliferation legal framework – not merely to restrain their nuclear ambition as such but to engage themselves as responsible nuclear power states into the prevailing deterrence logic that underpins international peace and security for all nuclear and non-nuclear weapons states instead. The realisation of the international security agenda really depended on the resolu- tion of the conflicting national security interests between India and Pakistan that were at the root cause of their nuclear tension. Not only states are responsible for the proliferation of weapons of mass destruction. The illicit trafficking of weapons of mass destruction and other materials on behalf of non-state actors raised additional concerns on how
Ireland and the United States of America (Geneva, 4 June 1998), un Doc. S/1998/473 (5 June 1998). 106 un Doc. S/RES/1172 (6 June 1998). 107 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3890 (6 June 1998), 11–12.
108 Speech of Chinese ambassador LI Song before the Security Council, un Doc. S/PV.5097 (9 December 2004), 10. 109 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc.S/ PV.5635 (23 February 2007), 11–12; see also speech of head of Chinese delegation LI Baodong at the Ninth Review Conference of the Parties to the 1968 npt (27 April 2015). 110 See Joint Statement on Promoting Full and Universal Implementation of United Nations Security Council Resolution 1540 (2004), 2014 Nuclear Security Summit (The Hague, 24 March 2014). 111 Chinese Ministry of Foreign Affairs, Statement by H.E. Xi Jinping President of the People’s Republic of China at the Nuclear Security Summit (25 March 2009).
112 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6753 (19 April 2012), 10; see also speech of Chinese Minister of Foreign Affairs TANG Jianxian before the General Assembly, un Doc. A/57/PV.5 (13 September 2002), 15–16; speech of Chinese ambassador WANG Qun at the Plenary Meeting of the Conference on Disarmament, 1084th Session, Doc. CD/PV.1084 (25 January 2008), 4–5; speech of head of Chinese delegation ZHANG Yan at the Seventh Review Conference of the Parties to the 1968 npt (3 May 2005); speech of Chinese President HU Jintao before the Security Council, un Doc. S/PV.6191 (24 September 2009), 11; speech of head of Chinese delegation LI Baodong at the Eighth Review Conference of the Parties to the 1968 npt (4 May 2010). 113 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7169 (7 May 2014); speech of Chinese ambassador SUN Lei before the Security Council, un Doc. S/PV.7319 (24 November 2015), 5; see also speech of Chinese President HU Jintao before the Security Council, un Doc. S/PV.6191 (24 September 2009), 11. See more in Chinese Ministry of Foreign Affairs, China’s Policies on Asia-Pacific Security Cooperation (11 January 2011). 114 Speech of Chinese ambassador SHEN Jian at the Plenary Meeting of the Conference on Disarmament, 1336th Session, Doc. CD/PV.1336 (10 February 2015), 14; speech of Chinese ambassador SHEN Jian at the Plenary Meeting of the Conference on Disarmament, 1338th Session, Doc. CD/PV.1338 (13 February 2015), 8.
B Supervision Arms control and disarmament have been in constant flux. Various processes of negotiations in different international and regional bodies and fora have culminated in the adoption of a number of important bilateral115 and multilat- eral legal instruments since the 1990s.116 Such shift towards so-called legalism in the realm of arms control only announced the beginning of the true pro- cess of supervision, control and compliance mechanisms. Their effectiveness would be ultimately tested on the basis of the resolution of regional and global security problems that are partially caused by the presence of certain arsenals and weaponry.117 Transparency by virtue of notification, verification, reporting and inspection procedures can enhance the most needed trust between state parties to commit themselves to the terms of the agreements made towards the disarmament and arms control. External enforcement on behalf of the un Security Council would not necessarily ensure the respect for those objectives but rather compromise the prospects that confidence can be built without its enforcement measures.
115 1991 Treaty between the United States of America and the Union of Soviet Socialist Re- publics on the Reduction and Limitation of Strategic Offensive Arms (start i); 1992 start i Treaty – Protocol to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offen- sive Arms. 116 1990 Conventional Armed Forces in Europe Treaty (cfe Treaty); 1996 ctbt. 117 Thilo Marauhn, “Dispute Resolution, Compliance Control and Enforcement of Interna- tional Arms Control Law,” in Geir Ulfstein (ed.), Making Treaties Work: Human Rights, En- vironment and Arms Control (Cambridge: Cambridge University Press, 2007), 244.
Therefore, a number of conditions should be present to safeguard compli- ance under the arms control laws that can reconcile the idealist aims of those conventions and the political realities in which matters of compliance are discussed internationally, regionally and nationally alike. Developing nations view control mechanisms on export of nuclear materials as tools of developed countries to protect their economies rather than instruments of global security. Despite the integration of such export control regime into arms control con- ventions such as in the Chemical Weapons Convention,118 it had not removed those questions of legitimacy in particular in light of the ambitions of develop- ing nations and emerging economies to bridge the technological gap with their developed counterparts.119 Nonetheless, there are positive incentives provided within those arms control treaties in particular with respect of the terms of cooperation in the economic and technological sphere.120 Without transparency however in the process of inspection and verification procedures, distrust cannot be reduced and nor confidence can be built. It pres- surises and incentivises the parties’ compliance with and better coordination of their activities under the respective arms control treaties on the one hand and deter violations given the risk of discoveries on the other hand. Fact- finding can remove some of the doubts and misperceptions that rule amongst the conflicting parties and clarify the nature of their disputes in the first place and has become an indispensable tool towar ds a comprehensive approach of conflict management. Those are unilateral national technical means of verifi- cation (ntms),121 institutionalised notification,122 reporting123 and verification
118 1993 cwc, Parts vii and viii. 119 Andrew Latham and Brian Bow, “Multilateral Export Control Regimes: Bridging the North–South Divide,” Canadian Institute of International Affairs International Journal 53 (1998): 465. (465–486). 120 1972 btwc, Art. x; 1993 cwc, Art. 11. 121 1972 Treaty between the United States of America and the Union of Soviet Socialist Re- publics on the Limitation of Anti-Ballistic Missile Systems (abm Treaty), Arts. XII(1), XII(2), XII(3); 1974 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Underground Nuclear Weapon Tests (Threshold Test Ban Treaty), Art. II(1), II(2); 1976 Treaty between the United States of America and the Union of Soviet Socialist Republics on Underground Nuclear Explosions for Peaceful Purposes (Peaceful Nuclear Explosions Treaty), Arts. IV(1), IV(2); 1987 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (inf Treaty), Art. xii; 1990 cfe Treaty, Art. xv; 1991 start Treaty, Art. ix; 1992 Treaty on Open Skies, Appendix 1 to Annex D; 1996 ctbt, Arts. IV(5), IV(6). 122 1959 Antarctic Treaty, Art. VII(5); 1985 nwfz Treaty of Rarotonga, Art. 9(2); 1987 inf Treaty, Art. ix; 1990 cfe Treaty, Art. xiii. 123 1967 nwfz Treaty of Tlatelolco, Arts. 14, 15; 1985 nwfz Treaty of Rarotonga, Art. 9(1).
124 1993 cwc, Arts. iii, iv and Part iv of the Verification Annex. See Julian Perry Robinson, “The Verification System for the Chemical Weapons Convention,” in Daniel Bardonnet (ed.), The Convention on the Prohibition and Elimination of Chemical Weapons: A Break- through in Multilateral Disarmament (Dordrecht: Martinus Nijhoff Publishers, 1995), 489–507. Other regulatory frameworks have also an institutional verification mecha- nism, namely for the 1968 npt (i.e. the iaea), the 1990 cfe Treaty, the 1996 ctbt (i.e. the ctbto). This was missing for the 1972 btwc. Not all weapon treaties have a supervision mechanism, such as the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poi- sonous or Other Gases, and of Bacteriological Methods of Warfare and the 1963 Limited or Partial Test Ban Treaty (ltbt/ptbt). 125 1972 btwc, Art. vi. 126 1956 iaea Statute, Art. xii, Part C; 1993 cwc, Art. XII(4); 1996 ctbt, Art. V(4). 127 1972 btwc, Art. vii. 128 1993 cwc, Art. X(7). 129 1993 cwc, Art. IV(12), IV(11), VII(2). 130 According the Permanent International Court of Justice, a dispute was defined as a “dis- agreement on a point of law or fact, a conflict of legal views or interests between two persons”. See Mavrommatis Palestine Concessions Case (Greece v. uk) (Jurisdiction), Per- manent International Court of Justice, 30 August 1924, pcij Reports 1924, date, Series A No. 2 (1924), pp. 11–12; South West Africa Cases (Preliminary Objections), International Court of Justice, 21 December 1962, icj Reports 1962, p. 328.
131 See 1972 abm Treaty, Art. xiii that provides for a Standing Consultative Commission; 1987 inf Treaty, Art. xiii that provides for a Special Verification Commission. 132 1967 nwfz Treaty of Tlatelolco, Art. 25; 1995 Southeast Asian Nuclear Weapon Free Zone Treaty (nwfz Treaty of Bangkok), Art. 21; 1996 nwfz Treaty of Pelindaba, Art. 15. 133 1996 ctbt, Art. VI(6); 1995 nwfz Treaty of Bangkok, Art. 10; 1996 nwfz Treaty of Pelind- aba, Art. 12. See also James D. Fry, Legal Resolution of Nuclear Non-Proliferation Disputes (Cambridge: Cambridge University Press, 2013). It should be noted that China has not declared to recognise the compulsory jurisdiction of the icj, nor have France, Russia and the us amongst the other P5. 134 iaea, Board of Governors, Report by the Director General on the Implementation of the npt Safeguards Agreement in the Islamic Republic of Iran, Doc. GOV/2005/67 (2 Septem- ber 2005); iaea, Board of Governors, Report by the Director General on the Implementa- tion of the npt Safeguards Agreement in the Islamic Republic of Iran, Doc. GOV/2006/15 (27 February 2006); iaea, Board of Governors, Report by the Director General on the Implementation of the npt Safeguards Agreement in the Islamic Republic of Iran, Doc. GOV/2006/27 (28 April 2006). Iran is a state party to the npt since 1 July 1968 and has signed the npt Safeguards Agreement on 13 December 1974 as well as the latter’s Addi- tional Protocol on 4 March 2016. 135 un Doc. S/RES/1696 (31 July 2006).
136 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5500 (31 July 2006), 5–6. 137 un Doc. S/RES/1737 (23 December 2006); un Doc. S/RES/1747 (24 March 2007); un Doc. S/RES/1803 (3 March 2008). 138 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5612 (23 December 2006), 7–8; speech of Chinese ambassador WANG Guangya be- fore the Security Council, un Doc. S/PV.5647 (24 March 2007), 11–12; speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5848 (3 March 2008), 17; speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5973 (11 September 2008), 6; speech of Chinese ambassador KANG Yong before the Security Council, un Doc. S/PV.6036 (8 December 2008), 5.
The Chinese ambassador emphasised the general importance to resolve the nuclear issue in Iran since its bore upon the “international nuclear non- proliferation regime” and “international energy security”.139 The iaea’s central role in the resolution and peaceful negotiation of the nuclear issue in Iran has been further complemented by the work of the 1540/1737 Committee on the Non-proliferation of Weapons of Mass Destruction. In this regard, China had urged that patience and restraint remained prerequisites to move diplo- matic endeavours forward if only sufficient space and time were granted.140 According to the Chinese ambassador, progress could be made if “more flexible and pragmatic policies” could be adopted, as for example in light of the discus- sion to find a consensus to supply nuclear energy to Iran’s research reactor in Teheran – so it would avoid enriching its own nuclear fuel.141 Furthermore, the Chinese ambassador called upon all the “members of the international com- munity to implement the resolution [1929] comprehensively and in good faith”. The Council, he added, should fulfil its mandate in such a way as to maintain the npt regime and Iran’s obligations thereunder, to restore peace and security in the Middle East and to “promote the current momentum towar ds global economic recovery and not affect the day-to-day lives of the Iranian people or normal international trade and transactions”. Therefore, according to the Chinese ambassador, the Council’s sanctions must be targeted and imple- mented incrementally in line with the specific practices of Iran in this nuclear realm. Here too, he added that sanctions were just a means to resume negotia- tions and the earlier agreement on the use of nuclear energy for the research reactor could be seen as a stepping stone to find a peaceful solution to the nu- clear issue in Iran. The unity of the Security Council was also here, according to China, of primordial importance to solve the problem. “Hasty action” would, according to China, adversely affect that unity that required more efforts on behalf of all members to maintain this.142 Moreover, a wilful expansive in- terpretation of the Security Council’s sanctions regime, according to China, should be avoided143 and could upset the unity as a result.
139 Speech of Chinese ambassador LA Yifan before the Security Council, un Doc. S/PV.6142 (15 June 2009), 5. 140 Speech of Chinese ambassador ZHANG Yesui before the Security Council, un Doc. S/ PV.6235 (9 December 2009), 7. 141 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.6280 (4 March 2010), 8. 142 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6335 (9 June 2010), 11; see also speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6737 (21 March 2012), 6. 143 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.6442 (10 December 2010), 5.
While China was calling for unity within the Council, it hoped that the parties concerned would continue to talk in respect of each other’s position and on the basis of sovereign equality. China was convinced that “especially outside the Security Council” diplomatic endeavours should be pursued towar ds a peace- ful resolution of the Iranian nuclear issue.144 The deal concluded between Iran, Brazil and Turkey on the research reactor in Teheran has shown proof that such external initiatives could pave the way to comprehensively address the concerns of the international community under the non-proliferation regime. According to China, the dialogue and peaceful negotiation inherently depended on such momentums and the joint efforts of all parties to the negoti- ating table, be it at the Security Council, with the European Union, through the iaea and other regional powers. Yet, as with the North Korean nuclear issue, China found that the Security Council’s measures should not adversely affect the economic development of Iran and “the normal life of the Iranian people” nor impede its diplomatic and trade relationships with other nations.145 In this light, those relationships also serve the very purpose of giving sufficient time and space for all parties concerned – directly and indirectly – to gain the trust of Iran and conversely to build confidence into the peaceful nature of Iran’s nuclear programme. Through those cooperative relationships with Iran in those different realms, according to China, “mutual confidence, dialogue and negotiation will make headway”.146 China would contribute to this end not only unilaterally but also together with other nuclear weapons states, including Russia and India. In this regard, those three nations had adopted a joint statement on 15 November 2010 that recognised Iran’s right to use and develop “nuclear energy for peaceful purposes and the need to intensify the diplomatic efforts to solve the issue peacefully and through dialogue”.147 On 23 June 2011, the Chinese ambassador to the Security Council added that – in the context of the renewal of the Panel of Experts’ mandate under the 1737 Committee148 – “dialogue and negotiations
144 Speech of Chinese ambassador DU Xiaocong before the Security Council, un Doc. S/PV.6344 (28 June 2010), 6. See also un Doc. S/RES/1929 (28 June 2010). 145 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6384 (15 September 2010), 4. 146 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6502 (22 March 2011), 12. 147 Chinese Ministry of Foreign Affairs, “Joint Communiqué of the Tenth Meeting of the For- eign Ministers of the People’s Republic of China, the Russian Federation and the Republic of India,” http://www.fmprc.gov.cn/mfa_eng/wjdt_665385/2649_665393/t769170.shtml, para. 22 (accessed 1 June 2017). 148 The 1737 Committee was established by the Security Council on 23 December 2006 to sanction Iran’s failure to stop its nuclear enrichment programme of uranium and to
ban nuclear-sensitive technologies that could improve such programme. See un Doc. S/RES/1737 (23 December 2006). This Panel of Experts was established by the Security Council on 9 June 2010 and its mandate was renewed on 9 June 2011. See respectively, un Doc. S/RES/1929 (9 June 2010); un Doc. S/RES/1984 (9 June 2011); un Doc. S/RES/2224 (9 June 2015). The Panel of Experts would operate under the direction of the 1737 Com- mittee and assist the latter accordingly in its mandate as well as examine, analyse relevant information of other states, un bodies regarding the implementation of those Security Council resolutions on the enrichment of nuclear fossils in Iran’s nuclear programme and give further recommendations to the Council, the 1737 Committee or other states con- cerned on their course of action towards the peaceful resolution of the Iranian nuclear issue. See un Doc. S/RES/1929 (9 June 2010), para. 29. 149 Speech of Chinese ambassador YANG Tao before the Security Council, un Doc. S/PV.6563 (23 June 2011), 5; see also speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6607 (7 September 2011), 7; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6697 (21 December 2011), 10–11; speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6753 (19 April 2012), 10. 150 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7082 (13 December 2013), 4. 151 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6786 (12 June 2012), 13. 152 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6839 (20 September 2012), 7; speech of Chinese ambassador ZHANG Junan before the Security Council, un Doc. S/PV.6888 (13 December 2012), 12. 153 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6930 (6 March 2013), 4; speech of Chinese ambassador WANG Min before the Se- curity Council, un Doc. S/PV.6999 (15 June 2013), 6; speech of Chinese ambassador
WANG Min before the Security Council, un Doc. S/PV.7028 (5 September 2013), 4. Also before the First Committee on Disarmament of the un General Assembly, China op- posed “unjustifiable sanctions under the pretext of non-proliferation” and other forms of discrimination/double standards in order to ensure a state’s cooperation with and participation in the international community. See speech of Chinese ambassador HU Xiaodi before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/58/PV.3 (7 October 2003), 7. 154 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7082 (13 December 2013), 4; see also speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7265 (15 September 2014), 4. 155 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7211 (25 June 2014), 4. 156 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7211 (25 June 2014), 4. 157 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7350 (18 December 2014), 4.
158 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7412 (24 March 2015), 3. 159 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7469 (23 June 2015), 5. 160 The Joint Comprehensive Plan of Action – or the so-called Iranian nuclear deal – that was reached on 14 July 2015 was adopted on 18 October 2015 and implemented on 16 January 2016. 161 un Doc. S/RES/2231 (20 July 2015). 162 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7488 (20 July 2015), 4–5; see also speech of Chinese ambassador HU Haitao before the Security Council, un Doc. S/PV.7990 (29 June 2017), 12. 163 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7522 (15 September 2015), 4.
interference” should, according to China, be eliminated to ensure a lasting and successful implementation of the agreement – one year after its first steps to that effect.164 Since economic and national security objectives can often collide with international security concerns and scrutiny, supervision of a nation state’s nuclear, biological and chemical technological developments on behalf of the international community through its different control and verification mecha- nisms and bodies is inherently intrusive and may be perceived by the state subject to such control as a violation of the principle of non-interference and of its right to development. The risk for a vicious circle of distrust between the state in question and the international community in general and some members in particular would equally undermine the decision-making process on behalf of those international institutions, such as the Security Council and the iaea, to take appropriate measures to restore such trust. The preserva- tion of the unity within those bodies would be a precondition for their proper functioning and thus ability to assume their mandates and balance between those competing national and international security interests. Removing the pressure of some of those institutions – given the tense relationship between some of its members due to disagreement about the implementation of certain intrusive measures and the respect for the principle of non-interference – to other bodies, fora or bilateral/multilateral negotiations between the targeted states and other nations could permit to effectively enhance the trust, unity and thus collaboration with those institutions in the first place to effectively fulfil their mandates.
C Disarmament China has been one the earlier victims of biological and chemical warfare during the Second World War. The use of chemical and biological weapons by the Japanese armed forces on Chinese soil has until today been an important factor to understand China’s consistent position regarding the international community’s efforts towards non-proliferation, disarmament and complete destruction of such weapons arsenals and explains why it has claimed – at least officially – that it has never developed, produced and used any of such weapons.165 Furthermore, with its ratification of the 1972 Biological Weapons Convention, China had declared that the treaty did not go far enough when
164 Speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7865 (18 January 2017), 13. 165 Speech of head of Chinese delegation FAN Guoxiang at the Second Review Conference of the Parties to the 1972 btwc, Doc. BWC/CONF.II/SR.05, 5th Meeting (19 September 1986),
para. 46; speech of head of Chinese delegation SHA Zukang at the Fifth Review Confer- ence of the Parties to the 1972 btwc (19 November 2001). 166 1972 btwc, China’s Declaration Made upon Accession in London, Moscow and Washington, paras. 1–2 (15 November 1984). The Final Declaration, however, of the 1996 Fourth Review Conference of States Parties to the 1972 btwc considered the use of such weapons to be a violation of the treaty in spite of its absence in Article i. See Final Docu- ment of the Fourth Review Conference of States Parties to the 1972 btwc, Doc. BWC/ CONF/IV/9 (6 December 1996), at 14. 167 Speech of head of Chinese delegation FAN Guoxiang at the Second Review Conference of the Parties to the 1972 btwc, Doc. BWC/CONF.II/SR.05, 5th Meeting (19 September 1986), para. 44; see also China’s Working Paper on “Position of Principle of the Chinese Delega- tion on the Biological Weapons Convention and its Third Review Conference” at the Third Review Conference of the Parties to the 1972 btwc, Doc. BWC/CONF.III/18 (20 September 1991), para. 7; speech of head of Chinese delegation HOU Zhitong at the Third Review Conference of the Parties to the 1972 btwc, Doc. BWC/CONF.III/SR.08, 8th Meeting (27 September 1991), para. 41. 168 China’s Working Paper on “Position of Principle of the Chinese Delegation on the Biologi- cal Weapons Convention and its Third Review Conference” at the Third Review Confer- ence of the Parties to the 1972 btwc, Doc. BWC/CONF.III/18 (20 September 1991), para. 8. 169 Working Paper of China, India and Iran at the Special Conference of the States Parties to the 1972 btwc, Doc. BWC/SPCONF./WP.15 (23 September 1994), para. 6.
170 China’s Working Paper on “The Issue of Export Control” at the Ad Hoc Group of the States Parties to the 1972 btwc, Doc. BWC/AD HOC GROUP/WP.453, 23rd Session (8 May 2001), para. 1. 171 Speech of head of Chinese delegation HU Xiaodi at the Meeting of States Parties to the 1972 btwc (10 November 2003); see also speech of head of Chinese delegation HU Xiaodi at the Meeting of Experts of the 1972 btwc (13 June 2005). 172 Speech of head of Chinese delegation HU Xiaodi at the Meeting of Experts of the 1972 btwc (19 July 2004). See also resolution of un General Assembly on Chemical and Biolog- ical Weapons, un Doc. A/RES/42/37 (22 December 1987); report of un Secretary-General on Chemical and Biological Weapons, un Doc. A/44/561 (4 October 1989). See also speech of head of Chinese delegation LI Yang at the Meeting of Experts of the 1972 btwc (23 August 2010); speech of head of Chinese delegation WU Haitao at the Meeting of Experts of the 1972 btwc (4 August 2014); speech of head of Chinese delegation WU Haitao at the Meeting of States Parties of the 1972 btwc (1 December 2014). 173 Speech of head of Chinese delegation HU Xiaodi at the Meeting of Experts of the 1972 btwc (18 August 2003). 174 Statement by the Delegation of Malaysia on Behalf of the Group of Non-Aligned Move- ment and other States Parties to the Biological Weapons Conventions at the Preparatory for the Sixth Review Conference of the States Parties to the 1972 btwc (26 April 2006).
175 Speech of head of Chinese delegation HE Yafei at the Seventh Review Conference of the States Parties to the 1972 btwc (5 December 2011); see also speech of head of Chinese delegation WU Haitao at the Meeting of Experts of the 1972 btwc (16 July 2012); speech of head of Chinese delegation WU Haitao at the Meeting of States Parties of the 1972 btwc (10 December 2012). 176 Speech of head of Chinese delegation SHEN Jian at the Meeting of Experts of the 1972 btwc (12 August 2013); speech of head of Chinese delegation WU Haitao at the Meeting of States Parties of the 1972 btwc (9 December 2013); speech of head of Chinese delega- tion WU Haitao at the Meeting of Experts of the 1972 btwc (4 August 2014). 177 Speech of head of Chinese delegation FU Cong at the General Debate of the Eight Review Conference of the States Parties to the 1972 btwc (7 November 2016). 178 Speech of head of Chinese delegation CHENG Jingye at the Second Review of the Confer- ence of the States Parties to the 1993 cwc (8 April 2008).
179 China’s Position Paper at the First Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-1/NAT.1 (15 April 2003), paras. 5.2, 6.2. 180 China’s Position Paper at the First Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-1/NAT.1 (15 April 2003), para. 8.1. 181 China’s “Report on the Implementation of the Chemical Weapons Convention in China” at the First Review of the Conference of the States Parties to the 1993 cwc, Doc. RC- 1/NAT.2 (15 April 2003), 6; China’s “Report on the Implementation of the Chemical Weap- ons Convention in China” at the Second Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-2/NAT.1 (25 March 2008), 6; Position Paper Submitted by the Delegation of the Republic of Cuba on Behalf of the Member States of the Non-Aligned Movement that Are States Parties to the Chemical Weapons Convention and China to the Second Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-2/NAT.17/ Rev.1 (15 April 2008), para. 9. 182 China’s Position Paper on “Challenge Inspection” at the Second Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-2/NAT.2 (25 March 2008), paras. 3–4. 183 Position Paper Submitted by the Delegation of the Republic of Cuba on Behalf of the Member States of the Non-Aligned Movement that Are States Parties to the Chemical Weapons Convention and China to the Second Review of the Conference of the States Parties to the 1993 cwc, Doc. RC-2/NAT.17/Rev.1 (15 April 2008), para. 44.
184 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.2981 (3 April 1991), 96. As early as early as 1974, there were repeated calls to have a nuclear weapons free zone in the Middle East but – unlike other regions in the Global South – has never come into being. See un Doc. A/RES/3263 (xxix) (9 December 1974). 185 unscom was established by the Security Council on 3 April 1991. See un Doc. S/RES/687 (3 April 1991). 186 un Doc. S/RES/707 (14 August 1991); un Doc. S/RES/1060 (12 June 1996); un Doc. S/RES/1115 (21 June 1997); un Doc. S/RES/1134 (23 October 1997); un Doc. S/RES/1137 (12 November 1997); un Doc. S/RES/1194 (9 September 1998); un Doc. S/RES/1205 (5 November 1998). 187 Speech of Chinese ambassador WANG Xuexian before the Security Council, un Doc. S/PV.3672 (12 June 1996), 3. 188 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3792 (21 June 1997), 6. 189 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.3826 (23 October 1997), 7. China abstained in the vote on the adoption of resolution 1134. See un Doc. S/RES/1134 (23 October 1997).
190 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3831 (12 November 1997), 15. 191 Speech of Chinese ambassador QIN Huasun before the Security Council, un Doc. S/PV.3939 (5 November 1998), 9. 192 unmovic was established by the Security Council on 17 December 1999. See un Doc. S/RES/1284 (17 December 1999). unmovic succeeded the un Special Commission (unscom) that was established by the Security Council on 3 April 1991. See un Doc. S/RES/687 (3 April 1991). unmovic was further enhanced by the Security Council on 8 November 2002. See un Doc. S/RES/1441 (8 November 2002). While China abstained in the adoption of resolution 1284 that established unmovic, it voted in favour of the en- hanced version of unmovic.
193 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/PV.4644 (8 November 2002), 12–13. 194 Speech of us Secretary of State Colin Powell before the Security Council, un Doc. S/PV.4701 (5 February 2003), 17. 195 Speech of Chinese Minister of Foreign Affairs TANG Jiaxuan before the Security Council, un Doc. S/PV.4701 (5 February 2003), 18.
196 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.4950 (22 April 2004), 6; see also speech of Chinese ambassador WANG Guangya be- fore the Security Council, un Doc. S/PV.4956 (28 April 2004), 6. 197 Speech of Chinese ambassador FU Cong at the Plenary Meeting of the Conference on Disarmament, 1349th Session, Doc. CD/PV.1349 (9 March 2015), 7. 198 Speech of head of Chinese delegation SHA Zukang at the Plenary Meeting of the Confer- ence on Disarmament, 1000th Session, Doc. CD/PV.1000 (31 January 2006), 12–14; see also speech of Chinese ambassador LI Yang at the Plenary Meeting of the Conference on Dis- armament, 1083rd Session, Doc. CD/PV.1083 (23 January 2008), 9; speech of Chinese am- bassador WU Haitao at the Plenary Meeting of the Conference on Disarmament, 1269th Session, Doc. CD/PV.1269 (28 August 2012), 1; speech of Chinese ambassador WU Haitao at the Plenary Meeting of the Conference on Disarmament, 1335th Session, Doc. CD/ PV.1335 (4 February 2015), 19–20; speech of Chinese ambassador FU Cong at the Plenary Meeting of the Conference on Disarmament, 1349th Session, Doc. CD/PV.1349 (9 March
2015), 6. See also speech of Chinese ambassador WANG Qun before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/66/PV.7 (7 October 2011), 23. 199 Speech of Chinese ambassador FU Cong at the Plenary Meeting of the Conference on Disarmament, 1349th Session, Doc. CD/PV.1349 (9 March 2015), 7. 200 See un Doc. S/RES/1695 (15 July 2006). It should be noted that North Korea intended to withdraw from the npt on 12 March 1993, yet it suspended it one day before its withdraw- al would take effect. The suspension was lifted by North Korea on 10 January 2003. On 11 May 1993, the Security Council urged North Korea to reconsider its decision to withdraw from the npt. See un Doc. S/RES/825 (11 May 1993). The Chinese ambassador abstained and argued that the conflict was a matter of concern to separate sets of relationships, i.e. North Korea and the iaea, North Korea and the us, and North Korea and South Korea and ought to be resolved within those respective relationships. He continued that the in- volvement of the Security Council would only complicate the resolution of the respective conflicts between the respective parties. See speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/PV.3212 (11 May 1993), 38–39. 201 China had started those talks where the parties concerned, i.e. North Korea, South Korea, China, Japan, the us and Russia, came together to negotiate the denuclearisation of the Korean peninsula. The first round started in August 2003. It was predicted to be a long journey towards a peaceful resolution of the outstanding conflicts. See also Concluding Remarks by Foreign Minister LI Zhaoxing at the Closing Ceremony of the Second Round of Six-Party Talks (Beijing, 28 February 2004). 202 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5490 (15 July 2006), 5.
On 9 October 2006, however, North Korea carried out its first nuclear test that was widely condemned by the international community203 and the Se- curity Council on 14 October 2006.204 The Chinese ambassador to the Council believed that the Security Council ought to take a firm yet flexible position towards the peaceful resolution of the conflict through dialogue and negotia- tion between the parties concerned and in particular through the Six-Party Talks. Nonetheless, he disagreed about the effectiveness of the sanctions that have been put in place and rather urged the nations concerned to respond prudently and responsibly and in any event refrain from any provocation, in- cluding the use of force, which could intensify the tensions.205 Moreover, he referred back to Joint Statement of the Fourth Round of the Six-Party Talks that China had released on 19 September 2005 where all states concerned agreed upon the peaceful and verifiable denuclearisation of the peninsula, namely the so-called Statement of Principles.206 China condemned North Korea once again when it had carried out a second nuclear test on 25 May 2009 in full “disregard of common objection of the international community”.207 Such violation of prior Security Council resolu- tions has damaged the npt’s effectiveness as well as regional peace and secu- rity. With the adoption of resolution 1874 by the Security Council on 12 June 2009,208 the Chinese ambassador endorsed the opposition of the international community of North Korea’s nuclear test but also its positive message, namely for North Korea to resume the dialogue and peaceful negotiation on the nucle- ar issue. He continued that, if North Korea would act responsibly to this effect,
203 See statement by ambassador Volodymyr Yelchenko, Chairperson of the Preparatory for the Comprehensive Nuclear-Test Ban Treaty Organization, https://www.ctbto.org/ press-centre/press-releases/2006/statement-by-ambassador-volodymyr-yelchenko -chairperson-of-the-preparatorycommission-for-the-comprehensive-nuclear-test -bantreaty-organization/?Fsize=gdpqcetmdcbiosmq (accessed 1 June 2017). 204 un Doc. S/RES/1718 (14 October 2006). 205 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5541 (14 October 2006), 4. 206 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5541 (14 October 2006), 4; see also Joint Statement of the Fourth Round of the Six- Party Talks (19 September 2005), http://www.state.gov/p/eap/regional/c15455.htm (ac- cessed 1 June 2017). 207 Speech of Chinese ambassador ZHANG Yesui before the Security Council, un Doc. S/PV.6141 (12 June 2009), 3; see also speech of Chinese ambassador WANG Qun at the Plenary Meeting of the Conference on Disarmament, 11137th Session, Doc. CD/PV.1137 (26 May 2009), 19. 208 un Doc. S/RES/1874 (12 June 2009).
209 Speech of Chinese ambassador ZHANG Yesui before the Security Council, un Doc. S/PV.6141 (12 June 2009), 3. The Chinese ambassador to the Security Council did not give any further statements in his support of the adoption of the consecutive resolution that condemned North Korea’s third nuclear test on 12 February 2013. See un Doc. S/RES/2094 (7 March 2013). See also speech of Chinese ambassador WU Haitao at the Plenary Meeting of the Conference on Disarmament, 1276th Session, Doc. CD/PV.1276 (12 February 2012), 21. 210 The Asia-Europe Meeting is an interregional forum between Asian and European coun- tries as well as two regional organisations, namely asean and the eu, aimed at strength- ening the political, economic and cultural ties between both regions. China is also one of the participating members. See more on asem, http://www.aseminfoboard.org (accessed 1 June 2017). 211 Chinese Ministry of Foreign Affairs, “Statement of the 9th asem Foreign Ministers’ Meet- ing on the Nuclear Test Conducted by the dprk on May 25th, 2009,” http://www.fmprc .gov.cn/mfa_eng/wjdt_665385/2649_665393/t575971.shtml (accessed 1 June 2017).
212 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7353 (22 December 2014), 2; see also speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7575 (10 December 2015). 213 Joint Statement from the Nuclear Weapons States, Sixth P5 Conference Reviewing the Progress of the Commitments of the 2010 npt Review Conference (London, 6 February 2015). 214 un Doc. S/RES/2270 (2 March 2016).
South Korea would not only harm the strategic interests of China and Russia, it would also aggravate the tension with North Korea and thus “seriously under- mine the efforts of the international community to find a political solution”.215 With North Korea’s fifth nuclear test on 9 September 2016, the Secu- rity Council once more condemned North Korea’s provocative actions and strengthened the sanctions against the North Korean regime on 30 November 2016.216 China’s ambassador to the Security Council firmly opposed North Korea’s “development of nuclear missile programmes” which went against China’s earlier objectives to resolve the nuclear issues peacefully with renewed negotiations on the one hand and to replace the existing armistice between both Koreas with a peace treaty on the other hand. On the latter grounds, last- ing security and peace would be possible, according to China. Converesely, the countermeasures, namely the deployment of the thaad system, according to China, continued to undermine all these processes and should be stopped as soon as possible.217 On 28 April 2017, the Chinese Minister of Foreign Affairs added during a special Security Council session that thaad undermined China’s strategic security and that of other countries and directly damaged the “trust and cooperation among the parties in connection with the peninsula issue”. He continued that the agenda of denuclearisation and a peaceful reso- lution could not be reached under such conditions and was also dependent upon the “double suspension” of North Korea’s nuclear ambitions and missile activities on the one hand and of the us-South Korean military exercises. The Minister stressed that China itself could not be the focal point for the resolu- tion of this conflict either and called upon the respective states to act respon- sibly and move towards the negotiating table instead.218 With the unanimous adoption of Security Council resolution 2371 on 5 August 2017 that imposed further sanctions upon North Korea,219 China continued to lend its support since those measures sought to realise the peaceful resolution of the conflict
215 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7638 (2 March 2016), 6–7. 216 un Doc. S/RES/2321 (30 November 2016). 217 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7821 (30 November 2016), 7. 218 Speech of Chinese Minister of Foreign Affairs WANG Yi before the Security Council, un Doc. S/PV.7932 (28 April 2017), 7–9; see also speech of Chinese ambassador LIU Jieyi be- fore the Security Council, un Doc. S/PV.7958 (2 June 2017), 3; speech of Chinese ambas- sador LIU Jieyi before the Security Council, un Doc. S/PV.7996 (5 July 2017), 13. See also Joint Statement by the Russian and Chinese Foreign Ministries on the Korean Penunsula’s Problems (4 July 2017). 219 un Doc. S/RES/2371 (5 August 2017).
A Prohibited Use Not only has international law been strategically concerned with the preven- tion, supervision and disarmament of weapons of mass destruction under the operationalisation of the principle non-proliferation, it has equally governed from a humanitarian perspective the prohibition on the use of certain weapons under the principle of humanity. In this regard, the 1925 Geneva Protocol on Poisonous Weapons, the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention respectively prohibit the use of poison(ed),
220 See speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.8019 (5 August 2017), 5–6.
biological and chemical weapons. Under customary humanitarian law, their use in times of armed conflict is equally prohibited221 on the basis that the deployment of such weapons violates the prohibition of indiscriminate attacks – i.e. weapons that cannot distinguish between a civilian and military objective222 – and of unnecessary suffering, i.e. weapons that cause superflu- ous injury or unnecessary suffering to the fighting parties to the conflict that is disproportionate to the concrete and direct military advantage anticipated.223 In spite of their prohibition under treaty and customary law, such weapons have been used in a number of armed conflicts which have drawn the atten- tion of the international community in general and the Security Council in particular. The earliest case where the prohibited use of weapons of mass de- struction has been discussed in the seat of the Security Council concerned the First Gulf War between Iran and Iraq (22 September 1980 till 29 August 1988). The Council deplored the use of chemical weapons – whose use was prohib- ited at that time under the 1925 Geneva Protocol on Poisonous Weapons and in violation of ihl.224 The Chinese ambassador to Council had repeated its consistent position regarding the prohibited use of chemical, bacteriological and other toxic weapons “at any place and time” in general and by the parties to this conflict in particular.225 The second time when the Council was faced with chemical weapons concerned its use in the non-international armed con- flict in Syria which broke out in March 2011. Two years into the conflict, on 19 March 2013, chemical weapons were reported to have been deployed in Khan Al Asal (in Aleppo). In response to such allegations, the un Secretary-General Ban Ki-Moon established the un Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on 21 March 2013. Around the same time, the Third Review Conference on the 1993 Chemical Weapons Convention convened in The Hague (8–19 April 2013) and the Non-Aligned Movement together with China issued a joint statement regarding the poten- tial use of chemical weapons in Syria. They were concerned about their po- tential use that “by anyone under any circumstances would be reprehensible” .
221 See Rules 72, 73–76 in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary In- ternational Humanitarian Law, Vol. 1 (Cambridge: Cambridge University Press, 2005), 251–253, 256–262. 222 See Rule 71 in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (Cambridge: Cambridge University Press, 2005), 244–250. 223 See Rule 70 in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (Cambridge: Cambridge University Press, 2005), 237–244. 224 un Doc. S/RES/582 (24 February 1986). 225 Speech of Chinese ambassador LIANG Yufan before the Security Council, un Doc. S/PV.2666 (24 February 1986), 29–30.
They further supported the Secretary-General’s investigation with the assis- tance of the opcw.226 Later in August, another chemical attack was reported in the Ghouta area within Damascus on 21 August 2013. Ban Ki-Moon decided that the un Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic – which had just arrived in Syria after the latter government’s approval on 18 August 2013 – would conduct its interviews and in-site inspections in Ghouta shortly after the attack. The Head of the Mission Åke Sellström submitted his first report on 13 September 2013.227 The un Sec- retary-General believed that an effective investigation into the alleged use of chemical weapons could serve as a deterrent not only in the context of the ongoing hostilities in Syria but beyond.228 The un Mission worked closely to- gether with the opcw and the who as well as with various member states to ascertain the facts objectively and impartially pursuant to strict protocols and investigation methods.229 On 14 September 2013, the un Secretary-General – as the depository of the 1993 Chemical Weapons Convention – received the accession instrument of Syria to the latter Convention that entered into force vis-à-vis Syria on 14 October 2013. On the same day (14 September 2013), the us and Russia agreed upon the Framework for Elimination of Syrian Chemical Weapons.230 Only on 27 September 2013, the Security Council determined that “the use of chemical weapons anywhere constitutes a threat to international peace and security” and condemned the Ghouta attack. Welcoming the decision of the Execu- tive Council of the opcw231 of the same day to proceed with an “expeditious
226 Statement by H.E.M.M. Akhondzadeh, Deputy for International Affairs of the Ministry of Foreign Affairs of the Islamic Republic of Iran on Behalf of the Member States of the Non-Aligned Movement that Are States Parties to the Chemical Weapons Convention and China at the Third Review Conference of the States Parties to the 1993 cwc (8 April 2013). 227 Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013, un Doc. A/67/997–S/2013/553 (16 September 2013). 228 Note of Secretary-General, Report of the United Nations Mission to Investigate Allega- tions of the Use of Chemical Weapons in the Syrian Arab Republic on the Alleged Use of Chemical weapons in the Ghouta Area of Damascus on 21 August 2013, un Doc. A/67/997–S/2013/553 (16 September 2013). 229 Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the Alleged Use of Chemical weapons in the Ghouta Area of Damascus on 21 August 2013, un Doc. A/67/997–S/2013/553 (16 September 2013), paras. 6–14. 230 Doc. EC-M-33/NAT.1 (17 September 2013). 231 Doc. EC-M-33/DEC.1 (27 September 2013).
destruction” of Syria’s chemical weapons arsenals and programmes, the Secu- rity Council further urged that the Syrian government ought to cooperate with the opcw and un to those ends.232 The Chinese ambassador the Security Council praised the ability of the Se- curity Council to finally take concerted action on the Syrian issue after one year stalemate which now represented a “new opportunity to find a political settlement to the issue” that ought to be resolved peacefully through dialogue. Accordingly, China supported the resolution which would show proof of the Council’s responsibility vis-à-vis the Syrian people and the world at large and that would pass the test of history. The Chinese ambassador continued that China had equally suffered from the use of chemical weapons and that anyone using them should be strongly condemned.233 Also during the meeting of the General Assembly’s First Committee on Disarmament, China welcomed the Executive Council of the opcw’s decision and the Security Council’s resolu- tion on Syria’s chemical weapons and found that the international community should join their efforts in creating those conditions which would be favour- able to their implementation.234 On 13 December 2013, the un Secretary-General submitted the final report of the un Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic to the President of the General Assembly and Se- curity Council.235 The Fact-finding Mission of the opcw in Syria – established by the Executive Council of the opcw on 29 April 2014 – submitted its various reports to the opcw that the Security Council continued to follow closely in the meantime.236 In this regard, with the adoption of resolution 2209 by the Security Council on 6 March 2015 – condemning again the use of chemical weapons in Syria and calling upon all parties to the conflict to refrain from using, developing, producing, acquiring, stockpiling, retaining or transferring such weapons,237 the Chinese ambassador to the Council repeated its call for
232 un Doc. S/RES/2118 (27 September 2013). 233 Speech of Chinese Minister of Foreign Affairs WANG Yi before the Security Council, un Doc. S/PV.7038 (27 September 2013), 9–10. 234 Speech of head of Chinese delegation WU Haitao before the First Committee on Dis- armament of the un General Assembly, Thematic Debate on Chemical Weapons, 68th Session (25 October 2013). 235 Final Report of the United Nations Mission to Investigate Allegations of the Use of Chem- ical Weapons in the Syrian Arab Republic, un Doc. A/68/663–S/2013/735. 236 un Doc. S/RES/2209 (6 March 2015). 237 un Doc. S/RES/2209 (6 March 2015). Future violations of this resolution and the prior one (resolution 2118 of 27 September 2013) would necessitate enforcement measures under Chapter vii of the un Charter.
238 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7401 (6 March 2015), 3. 239 un Doc. S/RES/2235 (7 August 2015). 240 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7501 (7 August 2015), 5. 241 un Doc. S/RES/2319 (17 November 2016). 242 Speech of Chinese ambassador SHEN Bo before the Security Council, un Doc. S/PV.7815 (17 November 2016), 5–6. 243 un Doc. S/2017/172 (28 February 2017).
244 Third Report of the Organisation for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism, un Doc. S/2016/738 (24 August 2016); Fourth Re- port of the Organisation for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism, un Doc. S/2016/888 (21 October 2016). 245 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7893 (28 February 2017), 9–10. 246 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7893 (28 February 2017), 9–10.
247 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7915 (5 April 2017), 7. 248 Michael R. Gordon, Helene Cooper and Michael D. Shear, “Dozens of u.s. Missiles Hit Air Base in Syria,” New York Times, 6 April 2017. 249 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7919 (7 April 2017), 10.
B Restricted Use In light of the Security Council’s primary responsibility to maintain and restore international peace and security, the Council had often been confronted with the humanitarian impact of small arms upon existing and potential sources of conflict across the world and in particular in Africa. Following the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects and the members’ adoption of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (9–20 July 2001), the Chinese ambassador to the Security Council highlighted the serious impact of small arms and their trafficking and illegal
250 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7922 (12 April 2017), 6; see also speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7921 (12 April 2017), 9.
251 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/PV.4355 (2 August 2001), 14; speech of Chinese Ambassador LI Baodong before the Secu- rity Council, un Doc. S/PV.6760 (24 April 2012), 11. 252 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/PV.5127 (17 February 2005), 15. 253 See un Doc. A/CONF.192/15 (8 December 2005). 254 Chinese Mission to the un, “Statement by H.E. Ambassador WANG Guangya, Head of the Chinese Delegation and Permanent Representative of the People’s Republic of China to the un at the un Conference to Review Progress Made in the Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in salw in All
In its 2010 national report on China’s implementation of the said Pro- gramme of Action, China stressed the importance to regulate lawful manu- facture and transfer of salw and combat illicit trade and trafficking of salw in order to protect the civilian population in the countries affected, promote socio-economic progress and fight against terror and organised transnational crime. It reiterated the role of the un in promoting international assistance and cooperation and of the developed nations in providing technical and financial support and training in order to advance the fight against illicit trade of salw and management of surplus conventional ammunition stockpiles.255 Yet, within the siege of the Security Council, China has not always fully supported the resolutions of the Council on the fight against illicit trade of salw in its Open Debate on Small Arms. On 22 May 2015, it has argued that – although those arms caused “bodily harm and death to innocent civilians” – the views of African countries which were immediately faced with such illicit trade and humanitarian consequences have not been properly heard in the consultation rounds prior to the adoption of resolution 2220 so that it could have been ad- opted unanimously.256 In this regard, two – out of three – African countries on the Council deplored the absence of reference to the proliferation of salw by non-state actors in the first place which in their view constituted a threat to international peace and security similarly as once defined by resolution 1540 of 28 April 2004 in respect of the proliferation of weapons of mass destruction by non-state actors. These countries argued that their particular experience had to be addressed in order to design a strategy against illicit trade by those actors too.257 Already on 2 August 2001, during a previous Open Debate on Small Arms, China had called upon the Security Council to “listen carefully to views
Its Aspects” (New York, 26 June 2006); see also speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/PV.4896 (19 January 2004), 16; speech of head of Chinese delegation WU Haitao before the First Committee on Disarmament of the un General Assembly, Thematic Debate on Conventional Weapons, 68th Session (29 October 2013). 255 Chinese Ministry of Foreign Affairs, National Report of the People’s Republic of China on the United Nations Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, and of the International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (July 2010), 1–4. 256 un Doc. S/RES/2220 (15 May 2015); speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7447 (15 May 2015), 8. 257 Speech of Angolan ambassador Gaspar Martins before the Security Council, un Doc. S/PV.7447 (15 May 2015), 4–5; speech of Chadian ambassador Cherif before the Security Council, un Doc. S/PV.7447 (15 May 2015), 5.
258 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/PV.4355 (2 August 2001), 14. 259 1980 Protocol (ii) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices. 260 On 14 September 1981, China however made a statement when signing the 1980 Protocol (ii) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices and the 1980 Protocol (iii) on Prohibitions or Restrictions on the Use of Incendiary Weap- ons where it respectively pointed out that Protocol ii did not provide for a state which is a victim of aggression whereby such weapons have been used the right “to defend by all necessary means” and that Protocol iii did not restrict the use of incendiary weapons “against combat personnel”. Furthermore, given the absence of a verification or super- vision mechanism under the 1980 ccw, the binding force of the treaty would thus be weakened, according to China. It should be noted that under customary ihl, the use of incendiary weapons is prohibited against persons unless there are no feasible alterna- tives to render such “a person hors de combat”. See Rule 85 in Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1 (Cambridge: Cambridge University Press, 2005), 289–291. 261 “China’s Response to Provide Information on Resolution 67/92 on Conventional Arms Con- trol at the Regional and Subregional Levels,” https://unoda-web.s3-accelerate.amazonaws .com/wp-content/uploads/assets/convarms/infoCBM/docs/CBM/CBM_2013/2013 _China-ICBM_etc_report.pdf (accessed 1 June 2017); speech of head of Chinese delegation WU Haitao before the First Committee on Disarmament of the un General Assembly, Thematic Debate on Conventional Weapons, 68th Session (29 October 2013). 262 Speech of Chinese ambassador SHA Zukang before the Second Review Conference of the States Parties to the 1980 ccw, 2nd Meeting, Doc. CCW/CONF.II/SR.2 (11 December 2001), para. 48; speech of Chinese ambassador SHA Zukang at the Meeting of the States Parties to the 1980 ccw, 1st Meeting, Doc. CCW/MSP/SR.2 (12 December 2002), para. 27; see also speech of Chinese ambassador WU Haitoa before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/67/PV.5 (11 October 2012), 14. 263 Speech of Chinese ambassador HU Xiaodi at the Meeting of the States Parties to the 1980 ccw, 1st Meeting, Doc. CCW/MSP/2005/SR.1 (24 November 2005), para. 7.
264 Speech of head of Chinese delegation CHENG Jingye at the Third Review Conference of the States Parties to the 1980 ccw (7 November 2006). 265 Speech by the Chinese delegation at the First Annual Conference of the States Parties to Protocol v to the 1980 ccw (5 November 2007); see also speech of the Chinese am- bassador WU Jianjian before the First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/67/PV.16 (25 October 2012), 20–21. 266 Speech of head of Chinese delegation SHEN Jian at the Meeting of the States Parties to the 1980 ccw, 2nd Meeting, Doc. CCW/MSP/2007/SR.2 (7 November 2007), paras. 40–41. 267 Speech of head of Chinese delegation WANG Qun at the Meeting of the States Parties to the 1980 ccw, 1st Meeting, Doc. CCW/MSP/2009/SR.1 (12 November 2009), para. 32. 268 Speech of head of Chinese delegation WANG Qun at the Third Annual Conference of the States Parties to Protocol v to the 1980 ccw, 1st Meeting, Doc. CCW/P.V/CONF/2009/SR.1 (9 November 2009), paras. 38–39; speech of head of Chinese delegation CHENG Jingye at the Second Annual Conference of the States Parties to Protocol v to the 1980 ccw (10 November 2008), para. 33.
Conclusion
Arms control and disarmament are an indispensable part of global security governance and are governed by the principles of sovereign equality, non- proliferation and humanity. Each of those principles seeks to balance between the national and international security interests as well as military advantage and humanitarian restraint in the development, production and use of con- ventional and non-conventional weapons. The binding force of those basic
269 Speech of head of Chinese delegation SHEN Jian at the Fifth Annual Conference of the States Parties to Protocol v to the 1980 ccw, 1st Meeting, Doc. CCW/P.V/CONF/2011/SR.1 (9 November 2011), para. 40; speech of head of Chinese delegation WU Haitao at the Sixth Annual Conference of the States Parties to Protocol v to the 1980 ccw, 1st Meeting, Doc. CCW/P.V/CONF/2012/SR.1 (12 November 2012), para. 32. See also speech of Chinese am- bassador WANG Lei before the First Committee on Disarmament of the un General As- sembly, un Doc. A/C.1/66/PV.13 (17 October 2011), 19–20. 270 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7036 (26 September 2013), 17.
principles has often been challenged within an ever-changing and volatile regional and global security environment faced with traditional and non- traditional security threats that, from the perspective of tornil, undermine mutual trust between different shareholders and stakeholders – nationally, regionally and internationally alike. Economic and security cooperation in today’s globalised world could give an answer to those challenges and be a pre- condition to enhance trust and mutual benefit. The non-proliferation regime in particular aims to reconcile such security with development objectives and create such space where states and the international community can aspire peace, development and prosperity. Yet, building and restoring confidence is a long-term process that may not always deliver the expected outcomes. China has been particularly keen to identify some of the stumbling blocks to achieve such interdependent security and economic objectives and to make further progress in the implementation of the non-proliferation obligations under the existing legal frameworks of the npt, Biological and Chemical Weapons Conventions but also respect ihl and promote the development of new norms that can uphold peace, humanity and accountability within ongoing and future armed conflicts in this world. In this regard, the de facto inequality between developed and developing nations as well as nuclear weapons and non-nuclear weapons states has been a source of frustration for developing countries to accept additional discriminatory measures against their peaceful development of nuclear, biological and chemi- cal technologies. In worst-case scenarios, mutual distrust between those na- tions has led those developing countries to seek refuge in more hostile weap- ons programmes to overcome their military and technological inferiority on the one hand and developed nations to pursue sanctions in order to achieve compliance with international (humanitarian) law – including safeguard agreements – through supervision and verification on behalf of international bodies such as the iaea and the opcw on the other hand. Such vicious circles of distrust have equally sown disagreement and disuni- ty within those international institutions and fora that aim to govern and regu- late existing and future weapons. Security guarantees alone will not remove such distrust as long as full disarmament of weapons of mass destruction has not been accomplished. Only in this manner – and pursuant to relational governance and from the perspective of tornil – can the authority and effec- tiveness of arms control and non-proliferation regimes as well as the normativ- ity of the principles of sovereign equality, non-proliferation and humanity that underpin them be strengthened and thus international and collective security be guaranteed. Furthermore, China has repeatedly stressed the importance of universal and broad participation of all states in those different institutions
Introduction
The majority of today’s transnational security threats emanate from non- state actors including terrorists. Unlike traditional security threats, these non-traditional security threats have been less the subject of regulation, but rather a matter of cooperation between states and international/regional se- curity organisations and bodies to effectively address common security con- cerns. Although the indiscriminate targeting of victims across the globe by terrorists has brought the members of the international community closer together via their fight against international terrorism, the members of the international community have not been conclusive as regards the strategies and means to realise their common objective of winning the Global War on Terror. Unavoidably, the lack of definition for a common enemy has left the door open for different disciplinary interpretations regarding the nature and temporal/geographical scope of terrorism. Such include the root causes of ter- rorism – developmental, psychological and sociological – that in their turn have informed and defined their respective responses – socio-economic, legal, political, military, etcetera – that could be adopted by different actors in vari- ous places of decision-making, international, regional and domestic alike.1
1 Zhongmin Liu and Haijie Yu, “Yisilan guo de Jiduan Zhuyi Yishi Xingtai Tanxi (‘On the Ex- tremist Ideologies of the “Islamic State”’),” Xiya Feizhou (West Asia and Africa) 3 (2016): 41–61; Virginia Page Fortna, “Do Terrorists Win? Rebels’ Use of Terrorism and Civil War Outcomes,” International Organization 69 (2015): 519–556; Xuemei Qian, “Jidi de Jinhua: Chongxin Shen- shi Dangdai Kongbu Zhuyi Weixie (‘The Evolution of Al-Qaeda: Reexamining the Threat of Contemporary Terrorism’),” Waijiao Pinglun (Foreign Affairs Review) 1 (2015): 113–135; Jin Wang, “Yisilan guo yu Kongbu Zhuyi de Bianxing (‘“Islamic States” and the Transformation of Terrorism’),” Waijiao Pinglun (Foreign Affairs Review) 2 (2015): 138–156; Yungui Wu, “Shixi Yisi- lan Jiduan Zhuyi Xingcheng de Shehui Sixiang Genyuan (‘Analysis of the Social Ideological Roots of the Formation of Islamic Extremism’),” Shijie Zongjiao Wenhua (World Religious Cul- tures) 3 (2015): 1–10; Manyuan Dong, “Yisilan guo Jueqi de Yingxiang ji Qianjing (‘The Influ- ence and Prospect of the Rise of “Islamic States”’),” Guoji Wenti Yanjiu (International Studies) 5 (2014): 51–61; Milan Zafirovski and Daniel G. Rodeheaver, Modernity and Terrorism: From Anti-modernity to Modern Global Terror (Leiden: Brill, 2013); Mary Ellen O’Connell, What is War? An Investigation in the Wake of 9/11 (Leiden: Martinus Nijhoff Publishers, 2012); Stephen Vertigans, The Sociology of Terrorism: Peoples, Places and Processes (New York: Routledge,
© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004356498_007
Those counter-terrorism measures aimed to organise the division of la- bour between international/regional organisations and the nation states to prevent and repress international terrorism in the first place.2 Internationally,
2011); Martha Crenshaw, Explaining Terrorism: Causes, Processes and Consequences (New York: Routledge, 2010); Stephen Nathanson, Terrorism and the Ethics of War (Cambridge: Cambridge University Press, 2010); Richard Jackson, Eamon Murphy and Scott Poynting, eds., Contemporary State Terrorism: Theory and Practice (New York: Routledge, 2010); Charles A. Shanor, “Terrorism, Historical Analogies, and Modern Choices,” Emory International Law Re- view 24 (2010): 589–617; Pinyan Ma, “Zongjiao Jiduan Zhuyi de Benzhi yu Weihai (‘Nature of Religious Extremism and its Hazard’),” Xinjiang Shehui Kexue (Social Sciences in Xinjiang) 6 (2008): 63–69; Ben Saul, Defining Terrorism in International Law (Oxford: Oxford University Press, 2008); Paul J. Smith, The Terrorism Ahead: Confronting Transnational Violence in the Twenty-first Century (New York: M.E. Sharpe, 2008); Qunying Li, Quanqiuhua Beijingxia de Yisilan Jiduan Zhuyi (Islamic Extremism in the Context of Globalisation) (Beijing: Zhongguo Zhengfa Daxue Chubanshe (China University of Political Science and Law Press), 2007); Wei Li, “Dangqian Guoji Kongbu yu Fankong Douzheng de Tedian yu Qushi (‘Characteristics and Trends of the Current International Terrorism and Counter-terrorism Fight’),” Xiandai Guoji Guanxi (Contemporary International Relations) 2 (2007): 22–27; Neil J. Smelser, The Faces of Terrorism: Social and Psychological Dimensions (Princeton: Princeton University Press, 2007); Adrian Guelke, Terrorism and Global Disorder: Political Violence in the Contemporary World (London: I.B. Tauris, 2006); Bingbing Wu, “Shengzhan Guannian yu Dangdai Yisilan Kongbu Zhuyi (‘Jihadism and Contemporary Islamic Terrorism’),” Alabo Shijie Yanjiu (Arab World Studies) 1 (2006): 36–41; Jiadong Zhang, “Dangdai Kongbu Zhuyi de Zongjiao Genyuan (‘The Religious Root of Contemporary Terrorism’),” Guoji Guancha (International Review) 2 (2006): 44–50; Ben Saul, “Definition of ‘Terrorism’ in the un Security Council: 1985–2004,” Chinese Journal of International Law 4 (2005): 141–166; Huijun Luo, “Dangjin Guoji Shehui Fankongbu Zhuyi Duice Zaitantao (‘A Research again on the Countermeasures for Fighting against Ter- rorism in the World’),” Xiangtan Daxue Xuebao (Journal of Xiangtan University (Philosophy and Social Sciences)) 5 (2003): 52–57; Dehua Wang, “Shilun Guoji Kongbu Zhuyi Gainian, Tezheng he Genyuan (‘On the Concept, Characteristics and Origin of International Terror- ism’),” Shijie Jingji Yanjiu (World Economy Studies) 6 (2001): 25–29; Walter Laqueur, The Age of Terrorism (London: Weidenfeld & Nicolson, 1987). 2 Vincent-Joel Proulx, “An Incomplete Revolution: Enhancing the Security Council’s Role in Enforcing Counterterrorism Obligations,” Journal of International Dispute Settlement 8 (2017): 303–338; James Fromson and Steven Simon, “isis: The Dubious Paradise of Apocalypse Now,” Survival 57 (2015): 7–56; Sibylle Scheipers, “Auxiliaries at War in the Middle East,” Survival 57 (2015): 121–138; Isobel Roele, “Disciplinary Power and the un Security Council Counter Terror- ism Committee,” Journal of Conflict and Security Law 19 (2014): 49–84; Larissa J. van den Herik and Nico Schrijver, eds., Counter-terrorism Strategies in a Fragmented International Legal Or- der: Meeting the Challenges (Cambridge: Cambridge University Press, 2013); Jinping Zhang, Guoji Kongbu Zhuyi yu Fankong Celue (International Terrorism and the Counter-terrorism Strategy) (Beijing: Renmin Chubanshe (People’s Publishing House), 2012); Kimberley N. Trapp, State Responsibility for International Terrorism (Oxford: Oxford University Press, 2011);
different anti-terrorism conventions have been adopted to facilitate coopera- tion between those shareholders and stakeholders in the fight against a com- mon enemy.3 Furthermore, various international bodies have assumed their
Talal Asad, “Thinking about Terrorism and Just War,” Cambridge Review of International Af- fairs 23 (2010): 3–24; Guang Pan and Zhen Wang, “Guoji Fankongbu Hezuo: Xintaishi, Xin- fazhan he Jixiao Pinggu (‘International Counter-terrorism Cooperation: New Situation, New Development and its Efficiency Assessment’),” Shehui Kexue (Journal of Social Sciences) 11 (2010): 35–43; Dale Stephens, “Counterinsurgency and Stability Operations: A New Ap- proach to Legal Interpretation,” International Law Studies 86 (2010): 289–321; Pablo Antonio Fernandez-Sanchez, ed., International Legal Dimension of Terrorism (Leiden: Martinus Ni- jhoff Publishers, 2009); Robert P. Barnidge, Non-state Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence Principe (The Hague: t.m.c. Asser Press, 2008); Robert Imre, T. Brian Mooney and Benjamin Clarke, Responding to Terrorism: Political, Philo- sophical and Legal Perspectives (Aldershot: Ashgate Publishing, 2008); Jonathan B. Schwartz, “Dealing with a ‘Rogue State’: The Libya Precedent,” American Journal of International Law 101 (2007): 553–580; Eric Rosand, “The un-Led Multilateral Institutional Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?” Journal of Conflict and Security Law 11 (2006): 399–427; Andrea Bianchi, ed., Enforcing International Law Norms against Terrorism (Oxford: Hart Publishing, 2004); John Quigley, “The Afghanistan War and Self-defense,” Val- paraiso University Law Review 37 (2003): 541–562; Eric Rosand, “Security Council Resolution 1373, the Counter-terrorism Committee, and the Fight against Terrorism,” American Journal of International Law 97 (2003): 333–341; Curtis A. Ward, “Building Capacity to Combat Inter- national Terrorism: The Role of the United Nations Security Council,” Journal of Conflict and Security Law 8 (2003): 289–305. 3 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft; 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; 1971 Convention for the Sup- pression of Unlawful Acts against the Safety of Civil Aviation; 1973 Convention on the Preven- tion and Punishment of Crimes Against Internationally Protected Persons; 1979 International Convention against the Taking of Hostages; 1980 Convention on the Physical Protection of Nuclear Material; 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation; 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf; 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection; 1997 Interna- tional Convention for the Suppression of Terrorist Bombings; 1999 International Convention for the Suppression of the Financing of Terrorism; 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; 2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Lo- cated on the Continental Shelf; 2005 International Convention for the Suppression of Acts of Nuclear Terrorism; 2005 Amendments to the Convention on the Physical Protection of Nuclear Material; 2010 Convention on the Suppression of Unlawful Acts Relating to Inter- national Civil Aviation; 2010 Protocol Supplementary to the Convention for the Suppression
of Unlawful Seizure of Aircraft; 2014 Protocol to Amend the Convention on Offences and Certain Acts Committed on Board Aircraft. 4 (1373) Counter-terrorism Committee, see un Doc. S/RES/1373 (28 September 2001); (1267) isil and Al-Qaeda Committee, see un Doc. S/RES/1267 (15 October 1999), un Doc. S/RES/1988 (17 June 2011), un Doc. S/RES/1989 (17 June 2011), un Doc. S/RES/2253 (17 December 2015); (1540) Non-proliferation Committee, see un Doc. S/RES/1540 (28 April 2004). 5 See 1994 Declaration on Measures to Eliminate International Terrorism, un Doc. A/RES/49/60 (9 December 1994). Together with the latter’s 1996 Supplement, the General Assembly estab- lished an Ad Hoc Committee operating within the Sixth Committee – the Legal Committee of the General Assembly – to work on a comprehensive treaty on international terrorism, see un Doc. A/RES/51/210 (17 December 1996). One decade later, the General Assembly adopted the Global Counter-Terrorism Strategy, see un Doc. A/RES/60/288 (8 September 2006). It should be noted that already since the 1970s the un General Assembly through its different bodies, i.e. the Plenary, General Committee, Sixth Committee and the Ad Hoc Committee on International Terrorism, has been actively involved in the debates on terrorism to regulate “state responses to and responsibility for terrorism”. See Oren Gross and Fionnuala Ni Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge Uni- versity Press, 2006), 369. 6 Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions whose mandate was established by the un Economic and Social Council. See un Doc. E/RES/1982/35 (7 May 1982); Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment whose mandate was established by the un Commission on Human Rights, see un Doc. E/CN.4/RES/1985/33 (13 March 1985); Special Rapporteur on the Promotion and Pro- tection of Human Rights and Fundamental Freedoms while Countering Terrorism whose mandate was established by the un Commission on Human Rights, see un Doc. E/CN.4/ RES/2005/80 (21 April 2005). 7 1971 Organisation of American States Convention to Prevent and Punish the Acts of Terror- ism Taking the Form of Crimes against Persons and Related Extortion that Are of Interna- tional Significance; 1977 European Convention on the Suppression of Terrorism, as amended by its Protocol; 1987 South Asian Association for Regional Cooperation (saarc) Regional Convention on Suppression of Terrorism; 1998 Arab Convention on the Suppression of Terrorism; 1999 Treaty on Cooperation among the States Members of the Commonwealth
counter-terrorism measures – international and regional alike – would not only be dependent upon close cooperation amongst the members of the inter- national community and regional organisations but more importantly upon the long-term commitment of states to support such joint efforts in the first place. In this regard, progress cannot be measured solely on the effects of mea- sures of prevention and repression of terrorism. The gravity of the execution of those measures lies with the states themselves. There are a number of risks, that in respect to counter-terrorism operations emerge in the absence of suf- ficient control on behalf of the international community. As a result, inter- national norms governing the use of force, the conduct of hostilities and/or detention/prosecution of terrorist suspects have come under pressure. The values that underpin those legal frameworks, respectively peace, humanity and accountability, themselves have suffered too. Through unilateral – rather than collaborative – action on behalf of certain states against others on whose territories terrorists were allegedly operating. Furthermore, dehumanising narratives have equally undermined the protection of terrorists and civilian populations in those theatres of conflict, particularly in the Middle East and Is- lamic world. The expansive interpretation and application of the war on terror, as evidenced by preemptive strikes and its unlimited geographical/temporal scope, led to unwarranted consequences, respectively, for the jus ad bellum, jus in bello and human rights law.8
of Independent States in Combating Terrorism; 1999 Convention of the Organisation of the Islamic Conference on Combating International Terrorism; 1999 Organisation of Afri- can Unity Convention on the Prevention and Combating of Terrorism; 2001 Shanghai Con- vention against Terrorism, Separatism and Extremism; 2002 Inter-American Convention against Terrorism; 2004 Additional Protocol to the saarc Regional Convention on Sup- pression of Terrorism; 2004 Convention of the Cooperation Council for the Arab States of the Gulf on Combating Terrorism; 2004 Protocol to the Organisation of the African Union Convention on the Prevention and Combating of Terrorism; 2004 Additional Protocol on Combating Terrorism to the Agreement among the Governments of the Black Sea Econom- ic Cooperation Organisation Participating States on Cooperation in Combating Crime, in particular in its Organised Forms; 2005 Council of Europe Convention on the Prevention of Terrorism; 2005 Council of Europe Convention on Laundering, Search, Seizure and Confisca- tion of the Proceeds from Crime and on the Financing of Terrorism; 2007 asean Convention on Counter-terrorism. 8 Lu Zhu, “Wurenji Gongji Wenti Guoji Rendaofa Yanjiu (‘Drone Attacks from the Perspec- tive of International Humanitarian Laws’),” Nanjing Ligong Daxue Xuebao Shehui Kexueban (Journal of Nanjing University of Science and Technology (Social Sciences Edition)) 6 (2013): 36–43; Cheng Qian and Bin Shi, “Xiongfeng de Yinying: Meiguo Wurenji Zuozhan Dui Dang- dai Zhanzheng Lunli de Tiaozhan (‘Under the Shadow of the Drone: u.s. Drone Warfare and
Furthermore, the divisive discourse that has bifurcated the world into two camps, where states are either fighting terrorists or supporting them, has borne tremendous costs upon the collective relationship of all members of the international community. Such has made it difficult for states to address non-traditional security threats together in a cooperative and trustworthy fashion. Like a self-fulfilling prophecy, some states that might have been os- tracised based on such suspicions, could indeed, out of an asymmetrical and unequal relationship, harbour and sponsor terrorist organisations as buffers to protect their national sovereignty and territorial integrity. Other states would rather seek to avoid the war on terror to be fought on their territory in order to prevent a possible regime change. Proxy warfare, where states sup- port non-state actors that are blacklisted by the international community on terrorist grounds could further complicate the long-term solution to restore international peace and security where all parties involved (in)directly would be trapped in a vicious circle of violence that would further expose civilian
its Challenge to Contemporary Ethics of War’),” Shijie Jingji yu Zhengzhi (World Economics and Politics) 8 (2013): 86–99; Regina Heller, Martin Kahl and Daniela Pisoiu, “The ‘Dark’ Side of Normative Argumentation: The Case of Counterterrorism Policy,” Global Constitutionalism 1 (2012): 278–312; Andrea Bianchi and Yasmin Naqvi, International Humanitarian Law and Ter- rorism (Oxford: Hart Publishing, 2011); John F. Murphy, “International Law in Crisis: Challeng- es Posed by the New Terrorism and the Changing Nature of War,” Case Western Reserve Journal of International Law 44 (2011): 59–92; Christian J. Tams, “The Use of Force against Terrorists,” European Journal of International Law 20 (2009): 359–397; Kelisiana Thynne, “Targeting the ‘Terrorist Enemy’: The Boundaries of an Armed Conflict Against Transnational Terrorists,” Australian International Law Journal 16 (2009): 161–187; Niaz A. Shah, “Self-defence, Anticipa- tory Self-defence and Pre-emption: International Law’s Response to Terrorism,” Journal of Conflict and Security Law 12 (2007): 95–126; Owen Fiss, “The War against Terrorism and the Rule of Law,” Oxford Journal of Legal Studies 26 (2006): 235–256; Zongliang Zhang, “Fankong Lifa zhi Jiazhi Quxiang: Yi Renquan Baozhang Wei Shijiao (‘The Value Orientation of Anti- terrorism Legislation: From the Perspective of Human Rights Protection’),” Dongyue Luncong (Dong Yue Tribune) 4 (2006): 168–173; Helen Duffy, The “War on Terror” and the Framework of International Law (Cambridge: Cambridge University Press, 2005); Guoqing Jiang, “Fankong, Baohu Renquan yu Shijie Heping (‘Counter-Terrorism, Protection of Human Rights and World Peace’),” Waijiao Pinglun (Foreign Affairs Review) 12 (2005): 89–94; Victor V. Ramraj, Michael Hor and Kent Roach, eds., Global Anti-terrorism Law and Policy (Cambridge: Cam- bridge University Press, 2005); Sean D. Murphy, “International Law, the United States, and the Non-military ‘War’ against Terrorism,” European Journal of International Law 14 (2003): 347– 364; Gerard L. Neuman, “Humanitarian Law and Counterterrorist Force,” European Journal of International Law 14 (2003): 283–298; Hans-Peter Gasser, “International Humanitarian Law, the Prohibition of Terrorist Acts and the Fight against Terrorism,” Yearbook of International Humanitarian Law 4 (2001): 329–347; Rosalyn Higgins and Maurice Flory, eds., Terrorism and International Law (London: Routledge, 1997).
9 Yongliang Guo, “Lun Woguo Fankong Moshi de Zhuanxing: Cong Jingying Moshi dao Canyu Moshi (‘The Transition of Counter-Terrorism Model in China: From Elite Model to Participa- tive Model’),” Faxuejia (The Jurist) 2 (2016): 146–161; Benxian Li and Jianming Mei, “Woguo Fankong Yanjiu Redian Wenti yu Weilai Fangxiang (‘Research Focuses and the Future Di- rections of Anti-Terrorism in China’),” Zhongguo Renmin Gongan Daxue Xuebao Shehui Kexueban (Journal of People’s Public Security University of China (Social Sciences Edition)) 3 (2015): 1–9; Liselotte Odgaard and Thomas Galasz Nielsen, “China’s Counterinsurgency Strat- egy in Tibet and Xinjiang,” Journal of Contemporary China 23 (2014): 535–555; Libin Wang, “Fankongbu Fanzui Xingshifa Wanshan Yanjiu: Jianlun Fankongbu Xitonghua Lifa (‘A Study on the Perfection of Anti-terrorism Criminal Law: Also on the Systematic Legislation of Anti-Terrorism’),” Zhengzhi yu Falv (Political Science and Law) 10 (2014): 75–86; Yufan Hao and Weihua Liu, “Xinjiang: Increasing pain in the Heart of China’s Borderland,” Journal of Contemporary China 21 (2012): 205–225; Michael Clarke, “China, Xinjiang and the Interna- tionalisation of the Uyghur Issue,” Global Change, Peace & Security 22 (2010): 213–229; Jie Li and Tingting Wang, “Jiangdu, Zangdu de Guojihua Lujing Yanjiu (‘On the International Path of “Xinjiang Independence” and “Tibetan Independence”’),” Guangxi Minzu Yanjiu (Guangxi Ethnic Studies) 2 (2010): 25–36; Degang Sun, “China and the Global Jihad Network,” Journal of the Middle East and Africa 1 (2010): 196–207; Dana Carver Boehm, “China’s Failed War on Terror: Fanning the Flames of Uighur Separatist Violence,” Berkeley Journal of Middle Eastern and Islamic Law 2 (2009): 61–124; Martin I. Wayne, “Inside China’s War on Terrorism,” Journal of Contemporary China 18 (2009): 249–261; Xiuming Zhang, Xinjiang Fanfenlie Douzheng he Wending Gongzuo de Shijian yu Sikao (Practice and Reflection on Xinjiang’s Anti-split Fight and Maintenance of Stability) (Wulumuqi: Xinjiang Renmin Chubanshe (Xinjiang People’s Publishing House), 2009); David Kerr and Laura C. Swinton, “China, Xinjiang, and the Trans- national Security of Central Asia,” Critical Asian Studies 40 (2008): 89–112; Michael Clarke, “China’s ‘War on Terror’ in Xinjiang: Human Security and the Causes of Violent Uighur Sepa- ratism,” Terrorism and Political Violence 20 (2008): 271–301; Sheng Yin, “Zhongguo Fankong Fazhi de Xianzhuang, Wenti yu Duice Yanjiu (‘A Study on China’s Anti-terrorism Legal Mech- anism’),” Dangdai Faxue (Contemporary Law Review) 3 (2008): 12–19; Michael Clarke, “China’s
While the Chinese authorities have been trying to take preventive – other than security-driven – measures in the realm of development and education for China’s minorities in the Far West, the authorities’ understanding of and rela- tionship with Islam has often been polarised and as such deepened divisions between the indigenous minority and Han populations and cultures, not only in the region but across the nation. While the latter’s pull towards conformity may have brought about a greater degree of unity regarding those security con- cerns, it has at the same time obfuscated the rich tapestry of diversity that has existed in China over the centuries.10 Although China’s relationship with
Internal Security Dilemma and the ‘Great Western Development’: The Dynamics of Inte- gration, Ethnic Nationalism and Terrorism in Xinjiang,” Asian Studies Review 31 (2007): 323–342; Human Rights Watch, China, Devastating Blows: Religious Repression of Uighurs in Xinjiang (New York: Human Rights Watch, 2007); Pitman B. Potter, “Governance of Chi- na’s Periphery: Balancing Local Autonomy and National Unity,” Columbia Journal of Asian Law 19 (2005): 293–322; Jie Zhang, “Zhongguo de Fankong Zhengce: Yuanze, Neirong yu Cuoshi (‘China’s Anti-terrorism Policy: Principles, Contents and Measures’),” Dangdai Yatai (Journal of Contemporary Asia-Pacific Studies) 11 (2005): 31–37; Hodong Kim, Holy War in China: The Muslim Rebellion and State in Chinese Central Asia, 1864–1877 (Stan- ford: Stanford University Press, 2004); Qi Li, Dongtu Fenlie Zhuyi Shili Yanjiu (A Study on the “East Turkistan” Splitting Force) (Beijing: Zhongguo Shehui Kexue Chubanshe (China Social Sciences Press), 2004); Stephen Blank, “Xinjiang and China’s Security,” Global Eco- nomic Review 32 (2003): 121–148; Zhongkang Liu, Xinjiang Yisilan Jiduan Zhuyi Yanjiu (A Study on Xinjiang Islamic Extremism) (Wulumuqi: Xinjiang Shehui Kexueyuan (The Academy of the Social Sciences of the Xinjiang Uygur Autonomous Region), 2002); Dru C. Gladney, Muslim Chinese: Ethnic Nationalism in the People’s Republic (Cambridge: Har- vard University Press, 1991); Wanshan Wu, Qingdai Xibei Huimin Qiyi Yanjiu (Study on the Muslim Uprising in the Northwest during the Qing Period) (Lanzhou: Lanzhou Daxue Chubanshe (Lanzhou University Press), 1991); Andrew D. Forbes, Warlords and Muslims in Chinese Central Asia: A Political History of Republican Sinkiang 1911–1949 (Cambridge: Cambridge University Press, 1986). 10 Matthew S. Erie, China and Islam: The Prophet, the Party, and Law (Cambridge: Cambridge University Press, 2016); Quangang Zhu, “Yisilan Guo Zuzhi de Quanqiu Yexin Jiqi Dui Zhongguo de Yingxiang (‘The Global Ambitions of the Organisation of the Islamic State and their Impacts on China’),” Guoji Guanxi Yanjiu (Journal of International Relations) 6 (2015): 72–83; Shangping Yu, “Xinjiang Suowei Wahabipai de Shizhi Shi Dangdai Yisilan Jiduan Zhuyi (‘The Essence of So-called “Wahabi” in Xinjiang Is Contemporary Islamic Extremism’),” Xinjiang Shehui Kexue (Social Sciences in Xinjiang) 4 (2014): 64–67; Yongjiu Gao and Jie Li, “Lun Zhongnanya de Yisilan Fuxing Yundong ji Dui Zhongguo de Yingx- iang (‘The Islamic Revival Movement in Central-South Asia and its Influence on China’),” Yantai Daxue Xuebao Zhexue Shehui Kexueban (Journal of Yantai University (Philosophy and Social Science Edition)) 4 (2006): 436–441; Dongying Shi, “Qianxi Zongjiao Jiduan Zhuyi Dui Woguo Xinjiang Diqu de Yingxiang (‘On the Influence of Religious Extremism
Central Asian countries in the fight against terrorism has been less defined by the role of Islam than by geopolitical concerns to reduce the sphere of influ- ence and intervention of Western nations in the region,11 a respect for Islam
on Xinjiang Region of China’),” Zhongguo Renmin Gongan Daxue Xuebao (Journal of Peo- ple’s Public Security University of China) 2 (2004): 79–83; Wenhu Yan, “Lun Dangdai Yisilan Fuxing Yundong dui Woguo Anquan de Yingxiang (‘Influence of the Contemporary Islam- ic Revival Movement on our Country’s Safety’),” Huadong Ligong Daxue Xuebao Shehui Kexueban (Journal of East China University of Science and Technology (Social Science Edi- tion)) 1 (2004): 70–75; Dru C. Gladney, “Islam in China: Accommodation or Separatism?” China Quarterly 174 (2003): 451–467; Jonathan N. Lipman, Familiar Strangers: A History of Muslims in Northwest China (Seattle: University of Washington Press, 1997); Yingsheng Liu, Xibei Minzushi yu Chahetai Hanguoshi Yanjiu (Studies on the History of North-western Peoples and Chaghatay Khanate) (Nanjing: Nanjing Daxue Chubanshe (Nanjing Univer- sity Press), 1994); Lillian Craig Harris, “Xinjiang, Central Asia and the Implications for China’s Policy in the Islamic World,” China Quarterly 133 (1993): 111–129; Enxian Lin, Qing- zhao zai Xinjiang de Han-Hui Geli Zhengce (Segregation Policy of the Qing Dynasty between the Hans and the Muslims in Xinjiang) (Taipei: Shangwu Yinshuguan (Taiwan Business Book Library), 1988); Raphael Israeli, Muslims in China: A Study in Cultural Confrontation (London: Curzon, 1980). 11 Xiao Xi, “China’s National Security: Strategic Challenges and Choices,” China: An Interna- tional Journal 14 (2016): 171–181; Jorge Lasmar, “Managing Great Powers in the Post-Cold War World: Old Rules New Game? The Case of the Global War on Terror,” Cambridge Review of International Affairs 28 (2015): 396–423; Michael Salter and Yinan Yin, “Ana- lysing Regionalism within International Law and Relations: The Shanghai Cooperation Organisation as a Grossraum?” Chinese Journal of International Law 13 (2014): 819–877; Xing Li and Yichen Niu, “Shanghe Zuzhi Weihe Buzuyi Zhicheng Zhongguo Xibei Zhou- bian Anquan Zhanlue (‘Why Shanghai Cooperation Organisation Can’t Support China’s Perimeter Security Strategy in the Northwest’),” Guoji Anquan Yanjiu (Journal of Interna- tional Security Studies) 4 (2013): 103–118; Aglaya Snetkov and Stephen Aris, eds., The Re- gional Dimensions to Security: Other Sides of Afghanistan (New York: Palgrave Macmillan, 2012); Stephen Aris, Eurasian Regionalism: The Shanghai Cooperation Organisation (New York: Palgrave Macmillan, 2011); Fei Gao, “Cong Shanghai Hezuo Zuzhi Kan Zhongguo ‘Xinwaijiao’ de Tansuo (‘An Exploration of China’s ‘New Diplomacy’ through the Shang- hai Cooperation Organisation’),” Guoji Zhengzhi Yanjiu (Journal of International Studies) 4 (2011): 76–88; Emilian Kavalski, “Shanghaied into Cooperation: Framing China’s So- cialization of Central Asia,” Journal of Asian and African Studies 45 (2010): 131–145; Mar- lène Laruelle, Jean-François Huchet, Sébastien Peyrouse and Bayram Balci, eds., China and India in Central Asia: A New “Great Game”? (New York: Palgrave Macmillan, 2010); Park Sang Nam, “China’s Emergence as a Key Player in the Global Order and its impacts on Geopolitics in Central Asia,” International Area Review 13 (2010): 155–164; Chienpeng Chung, “The Shanghai Co-operation Organization: China’s Changing Influence in Central Asia,” China Quarterly 180 (2004): 989–1009; Yi Jiang, “Zhongguo de Duobian Waijiao yu Shanghai Hezuo Zuzhi (‘China’s Multilateral Diplomacy and the Shanghai Cooperation
Organisation’),” Eluosi Dongou Zhongya Yanjiu (Russian, East European & Central Asian Studies) 5 (2003): 46–51; Changqing Zhao, “Dongmeng, Shanghai Hezuo Zuzhi yu Zhong- guo (‘asean, Shanghai Cooperation Organisation and China’),” Dangdai Yatai (Journal of Contemporary Asia-Pacific Studies) 11 (2003): 11–15; Morris Rossabi, China and Inner Asia: From 1368 to the Present Day (London: Thames and Hudson, 1975); C.P. Skrine, and P. Nightingale, Macartney at Kashgar: New Light on British, Chinese and Russian Activities in Sinkiang, 1890–1918 (Norfolk: Methuen, 1973). 12 China is a state party to the following regional counterterrorism conventions: 2001 Shang- hai Convention on Combating Terrorism, Separatism and Extremism (since 15 June 2001); 2002 Charter of the Shanghai Cooperation Organisation (since 7 June 2002). 13 China is a state party to the following international counterterrorism conventions: 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft (since 14 November 1978); 1970 Convention for the Suppression of Unlawful Seizure of Aircraft (since 10 September 1980); 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (since 10 September 1980); 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (since 5 August 1987); 1979 International Convention Against the Taking of Hostages (since 26 January 1993); 1980 Convention on the Physical Protection of Nuclear Materials (since 10 January 1980); 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International (since 5 March 1999); 1988 Protocol for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (since 20 August 1991); 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Conti- nental Shelf (since 20 August 1991); 1997 International Convention for the Suppression of Terrorist Bombings (since 13 November 2001); 1999 International Convention for the Sup- pression of Financing of Terrorism (since 19 April 2006); 2005 International Convention for the Suppression of Acts of Nuclear Terrorism (since 8 November 2010); 2005 Amend- ment to the Convention on the Physical Protection of Nuclear Material (14 September 2009).
Accountability for terrorist attacks must proceed upon the basis of the rule of law and properly establish – based upon evidence and after a thorough investigation – the criminal responsibility of the perpetrators before an in- dependent and impartial tribunal. Such investigations, however, take a con- siderable amount of time. Furthermore, some members of the international community, who have been victims of violent terrorism, would at times draw premature conclusions about those responsibilities for geopolitical purposes; namely to send a message to the world that such acts cannot be condoned and that both state sponsors of terrorism in addition to individual terrorists should be punished. The bombings of the American Pan Am Flight 103 over Lockerbie (Scotland) on 21 December 1988 and of the French Union de Transport Aéri- ens Flight 772 over the Sahara Desert (Niger) on 19 September 1989 are each prime examples of individual terrorist attacks, of which responsibility for, was immediately linked to the responsibility of one particular state, i.e. Libya. In both cases, China disagreed with the approach mentioned above, which was adopted by the us, uk and France. Rather, China favoured a thorough, objec- tive, fair and earnest investigation of the incidents in accordance with the un
Charter and international law as well as severe punishment for those proven to be responsible for those attacks – “based on conclusive evidence”.14 China was concerned that the unilateral investigations by Western countries, i.e. the us, uk and France, into the bombings, would frame the case and negatively influ- ence the decision-making of the Security Council, whose mandate was trig- gered in the meanwhile by the adoption of Security Council sanctions against Libya, which refused to cooperate with the investigations. Furthermore, when balancing the interests of the international commu- nity – or at least some members – and the cooperation of Libya with those investigations, according to China, their opposing differences could be tran- scended if more appropriate and prudent measures would be taken to estab- lish trust rather than by exercising heavy pressure upon Libya. China believed that through peaceful consultations and diplomatic channels, such inter-state/ geopolitical differences could be bridged and a fair as well as resolute solution could be found that would avoid rendering the problems more complicated than they already were. According to China, only constructive, active and re- sponsible dialogue could decrease the tension and “regional peace and secu- rity” be upheld pursuant to the un Charter and international law including the principle of non-interference.15 The eventual adoption of resolution 731 by the Security Council16 that urged the Libyan authorities to respond to the requests aimed at establishing the responsibility for those terrorist acts ought, accord- ing to China, to be seen in that light.17 Ever since the adoption of the aforementioned resolution, China has adamantly supported the efforts of the parties which have conducted many rounds of consultations to find a peaceful solution to the disputes between the us, uk and France on one side and Libya on the other, and above all, facilitate investigations into and discover the truth behind the terrorist bomb- ings.18 These include the Arab League and the Maghreb countries as well as the Organisation of African Unity (oau), some non-aligned countries and the un Secretary-General. China opposed the Security Council’s imposition
14 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3063 (31 March 1992), 59; see also speech of Chinese ambassador LI Zhaoxing before the Secu- rity Council, un Doc. S/PV.3312 (11 November 1993), 52. 15 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3033 (21 January 1992), 8–87. 16 un Doc. S/RES/731 (21 January 1992). 17 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3033 (21 January 1992), 8–87. 18 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3063 (31 March 1992), 59.
19 un Doc. S/RES/748 (31 March 1992); un Doc. S/RES/883 (11 November 1993). 20 Speech of Chinese ambassador LI Daoyu before the Security Council, un Doc. S/PV.3063 (31 March 1992), 61. 21 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.3312 (11 November 1993), 53. 22 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.3920 (27 August 1998), 15. 23 un Doc. S/RES/1506 (12 September 2003). 24 Letter dated 15 August 2003 from the Chargé d’Affaires of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council, un Doc. S/2003/818 (15 August 2003). 25 Following the collective self-defence war of nato – pursuant to Article 51 of the un Char- ter and Article 5 of the Atlantic Charter war against the Taliban regime that harboured Al-Qaeda fighters on its territory – that had started on 7 October 2001, the Security Coun- cil supported this “international effort to root out terrorism”. See un Doc. S/RES/1387 (14 November 2001).
26 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the Security Council, un Doc. S/PV.4413 (12 November 2001), 4; see also speech of Chinese ambas- sador CHENG Jingye before the Security Council, un Doc. S/PV.4976 (25 May 2004), 18; speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5053 (8 October 2004), 8; speech of Chinese ambassador CHENG Jingye before the Security Council, un Doc. S/PV.4976 (25 May 2005), 18; speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5538 (28 September 2006), 13; speech of Chinese ambassador LIU Zhenmin before Sixth Committee of the un General Assembly, un Doc. A/C.6/62/SR.5 (11 October 2007), 2–3; speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5855 (19 March 2008), 11; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6658 (14 November 2011), 16; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6767 (10 May 2012), 11; Security Council Open Debate on Counter- terrorism, see speech of Chinese ambassador CUI Tiankai before the Security Council, un Doc. S/PV.6900 (15 January 2013), 10; speech of Chinese Minister of Foreign Affairs WANG Yi before the Security Council, un Doc. S/PV.7272 (24 September 2014), 17; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7351 (19 December 2014), 19; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7379 (12 February 2015), 4; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7453 (29 May 2015), 21; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7565 (20 November 2015), 3; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7882 (13 February 2017), 22. 27 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6390 (27 September 2010), 18; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/ PV.7316 (19 November 2014), 18; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7351 (19 December 2014), 19. 28 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the General Assem- bly, un Doc. A/57/PV.5 (13 September 2002), 15.
establishment of the Islamic State in 2014, has been a prime example of such inconsistent policies. China has argued that these double standards have de- feated not only the very purpose of counter-terrorism efforts but also under- mined effective and trustworthy cooperation at the regional and international level.29 Therefore, the international community should adopt a consistent standard as to the identification of the nature of threats and in respect to the adop- tion of counter-measures in response to terrorism. Terrorist attacks have been carried out in one geographical space and states have often been indifferent to terrorist attacks that have been perpetrated far away from them. China ar- gued that this indifference to foreign threats “would send the wrong signal to terrorists and lead to further disasters”30 and international terrorism ought to be seen as an “open challenge to the international community as a whole”31 and a “common enemy to humanity”.32 Such different perspective of states has led to a fragmented approach that affects the identification and response to terrorist threats and attacks that in its turn could result in possible accidents sewing further distrust and undermining the necessary cooperation in the first place to fight terrorists who have in such political vaccum gained free range to operate. In order to avoid double standards, according to China, a new attitude should be adopted by the international community, namely one of zero-tolerance for extremism, separatism and terrorism.33 This new starting point would require a new organisational take to give effect to such a consistent approach. China argued that the un Security Council should play a leading and central role as one of the primary bodies in charge of international peace and security.34
29 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6765 (4 May 2012), 13. 30 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.5031 (13 September 2004), 15; speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5375 (21 February 2006), 12; speech of Chinese ambas- sador ZHANG Yishan before the Security Council, un Doc. S/PV.5446 (30 May 2006), 18. 31 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/ PV.4370 (12 September 2001), 5. 32 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the Security Council, un Doc. S/PV.4413 (12 November 2001), 4. 33 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.7184 (28 May 2014), 12; speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7962 (8 June 2016), 14. 34 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/ PV.4370 (12 September 2001), 5; speech of Chinese Minister of Foreign Affairs TANG Ji- anxian before the Security Council, un Doc. S/PV.4413 (12 November 2001), 5; speech of
In this regard, the Council itself assumed its responsibility accordingly and definitively in the aftermath of 9/11, assuming the link between counter- terrorism efforts and international peace and security. Pursuant to the un Charter, it determined that terrorist acts, “constitute a threat to international peace and security”.35 Such legal basis permitted the triggering of the Security Council’s mandate, whereby it had to take action that inevitably would have to balance the interests of the international community to fight the global war on terror and the principle of non-interference, especially when the Council imposed obligations under Chapter vii of the un Charter upon states to refrain from harbouring, financing and supporting terrorists.36 The Security Council’s counter-terrorism measures taken under its enforce- ment powers, however, would not be enough to secure success in the preven- tion and repression of international terrorism. China argued that the Council, “as the main forum for international cooperation against terrorism”37 could strengthen its authority, leadership and legitimacy accordingly, if it would not only enhance and support collaboration between the various respon- sible regional and international bodies,38 but also “make extensive efforts to develop consensus among the Member States and carry out coordinated and consistent actions”.39 According to China, such inclusive participation would
Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6390 (27 Sep- tember 2010), 18; speech of Chinese ambassador YANG Tao before the Security Council, un Doc. S/PV.6536 (16 May 2011), 20; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6658 (14 November 2011), 16; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador LIU Jieyi before the Se- curity Council, un Doc. S/PV.7351 (19 December 2014), 19. 35 un Doc. S/RES/1373 (28 September 2001). Remarkably, this resolution was adopted quite easily since it avoided defining terrorism and thus the divisive stances within the Council on this topic in the first place. 36 It was not the first time that the Security Council stressed such duty for states. See un Doc. S/RES/1189 (13 August 1998). 37 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.5168 (25 April 2005), 21. 38 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.4453 (18 January 2002), 18; speech of Chinese ambassador WANG Min before the Se- curity Council, un Doc. S/PV.6862 (14 November 2012), 14; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador CUI Tiankai before the Secu- rity Council, un Doc. S/PV.6900 (15 January 2013), 9. For example, the International Civil Aviation Organisation (icao), see speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7775 (22 September 2016), 14–15. 39 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.7463 (16 June 2015), 19.
40 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7670 (14 April 2016), 25; speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7962 (8 June 2016), 14. 41 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.6277 (24 February 2010), 9; see also speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6565 (24 June 2011), 13; speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6668 (23 November 2011), 25; speech of Chinese Ambassador LI Baodong before the Security Council, un Doc. S/PV.6760 (25 April 2012), 11; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7351 (19 December 2014), 19; speech of Chinese ambassador ZHAO Yong before the Security Council, un Doc. S/ PV.7587 (17 December 2015), 22–23. 42 un Doc. S/RES/1373 (28 September 2001). 43 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.4453 (18 January 2002), 18. 44 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/ PV.4752 (6 May 2003), 11. 45 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.4921 (4 March 2003), 14; see also speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/PV.4921 (4 March 2004).
Committee would also continue to engage in dialogue and cooperation with states,46 (sub)regional organisations47 and the Security Council itself.48 Through involvement and participation of all responsible shareholders and stakeholders, trust could be built into those horizontal and vertical working re- lationships. The counter-terrorism measures adopted by the Committee would necessarily be fully informed by those different positions and have a broad basis of support by means of consensus. This organisational approach would, according to China, necessarily reinforce the authority, leadership and legiti- macy of the Committee itself.49 It believed that the Committee would then be capable of preserving unity and consistency in terms of attitude, method and response to international terrorism, including the adoption of a new counter- terrorism convention under the auspices of the un.50 Once trust would be present and/or restored (in particular against a background of tensions on the (non-)forceful means in the fight against terrorism), it would become clear, ac- cording to China, that “coercive measures alone will not solve a problem once and for all; what is achieved through dialogue and negotiation may last much longer”.51
46 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7071 (27 November 2013), 22; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7184 (28 May 2014), 13. China argued that the Committee could also “bridge between donor countries and recipient countries” to meet the respective needs to improve their counter-terrorism efforts. See speech of Chinese ambassador ZHANG Yis- han before the Security Council, un Doc. S/PV.5113 (18 January 2005), 6; speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.6217 (13 November 2009), 27; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.6424 (15 November 2010), 19. 47 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.4792 (23 July 2003), 11; see also speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/PV.4921 (4 March 2004), 14; speech of Chinese ambassa- dor WANG Guangya before the Security Council, un Doc. S/PV.5059 (19 October 2004), 9. Cooperation with regional organisations, such as the Arab League. See speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/PV.5006 (19 July 2004), 10. 48 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.4798 (29 July 2003), 7. 49 Speech of Chinese ambassador LA Yifan before the Security Council, un Doc. S/PV.6128 (26 May 2009), 13. 50 Speech of Chinese ambassador LIU Zhenmin before Sixth Committee of the un General Assembly, un Doc. A/C.6/62/SR.5 (11 October 2007), 2–3. 51 Speech of Chinese President HU Jintao before the Security Council, un Doc. S/PV.5261 (14 September 2005), 8.
Yet, the basis for trust would be fragile – as was proven by the us-led inva- sion and occupation of Iraq, under the pretext of weapons of mass destruction and the global war on terror, in March 2003 – causing a rift amongst the mem- bers of the international community and the Security Council that had to be mended. In this regard, the establishment of the 1267 Sanction Committee52 – a second subsidiary organ of the Security Council sanctioning particular individ- uals linked to the Taliban, originally, and later on to Al-Qaeda and the Islamic State – would not only diminish the Counter-Terrorism Committee’s burden, but also isolate a rather specialised regime from the broader counter-terrorism efforts of states and the Security Council, where discrepancies reigned between states in order for trustworthy cooperation on the sanctions against individuals to foster elsewhere instead. Such delegation of Security Council powers, would eventually increase the returns on its counter-terrorism measures as manifested in greater consensus-building within a seemingly less-significant Committee, while at the same time preserve the unity within the Council and the Committee on Counter-Terrorism. With the adoption of resolution 1267, China was soon convinced that through this specific area of cooperation on the sanction regimes between the Committees, the Security Council, un bodies and other regional organisations,53 consensus would soon be reached that in its turn would send a “very strong signal on counter-terrorism”54 to the international community – especially when it needed it most. The delegation of powers and specialised counter-terrorism regimes – sanctions and non-proliferation alike – aimed to enhance cooperation to identify terrorist threats, their symptoms, causes and remedies. It also safe- guarded the principle of non-interference whose respect was built into more trustworthy relationships between the various shareholders and stakeholders in those committees in the meantime. Although with such specific bottom- up approach, relational governance has established a foundation for mutual trust, it ought to be complemented too, by a broader top-down vision as
52 un Doc. S/RES/1267 (15 October 1999). 53 Speech of Chinese ambassador CHENG Jingye before the Security Council, un Doc. S/ PV.5229 (20 July 2005), 11; speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7686 (4 May 2016), 8. The three subsidiary committees – subsidiary organs of the Security Council involved in the fight against international terrorism – should, according to China, also synchronize their work and “develop a complementary relationship”. See speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5293 (26 October 2005), 16; speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5779 (14 November 2007), 14. 54 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.4892 (12 January 2004), 11.
mainstreamed in the siege of the un General Assembly where all states were entitled to give their input, namely in the formulation of the new Global Counter-Terrorism Strategy.55 China saw the adoption of the latter strategy as clear proof of the “unity and determination of all countries in the fight against terrorism”56 that now prevailed within the entire un system.57 Furthermore, the broad participation through the Global Counter-Terrorism Strategy would, according to China, give more input in particular from developing nations and thus increase their ownership over the implementation of un resolutions adopted by various organs of the un family involved in the fight against in- ternational terrorism.58 Although the Global Counter-Terrorism Strategy has been the fruit of persistent dialogue and consultation between the different shareholders and stakeholders and in particular of the work of the Security Council and its various committees and, according to China, embodied “the common understanding among countries against terrorism”,59 its success, as China argued, would ultimately continue to rely on an effective and trustwor- thy cooperation between the Security Council and the General Assembly on the implementation of the strategy.60 To align the interests of the international community as reflected within the broader General Assembly as compared to just the Security Council for such purposes would require a new vision on international security, accord- ing to China, that would ultimately permit the Security Council to exercise its mandate effectively in the face of non-traditional security threats. In or- der to restore and preserve unity within the Council, China stressed that “it is imperative to foster a new security concept that emphasizes mutual trust, mutual benefit, equality and cooperation so as to create a favourable broad environment in the fight against terrorism”.61 According to China, a number of conditions ought to be fulfilled to give full effect to such interdependent
55 un Doc. A/RES/60/288 (8 September 2006). 56 Speech of Chinese ambassador LIU Zhenmin before the Sixth Committee of the un Gen- eral Assembly, un Doc. A/C.6/62/SR.5 (11 October 2007), 2–3. 57 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.6015 (12 November 2008), 17. 58 Speech of Chinese ambassador ZHANG Yesui before the Security Council, un Doc. S/ PV.6034 (9 December 2008), 15; speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6310 (11 May 2010), 11. 59 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.5855 (19 March 2008), 12. 60 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.5886 (6 May 2008), 11. 61 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the Security Council, un Doc. S/PV.4688 (20 January 2003), 20.
62 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the General Assem- bly, un Doc. A/57/PV.5 (13 September 2002), 15. 63 Speech Chinese ambassador HU Xiaodi before First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/57/PV.3 (1 October 2002), 15. 64 Initiative on China-Africa Cooperative Partnership for Peace and Security (19 July 2012). 65 China’s Arab Policy Paper (13 January 2016). 66 Joint Declaration of asean and China on Cooperation in the Field of Non-Traditional Security Issues (4 November 2002). 67 Shanghai Cooperation Organisation. 68 China’s Policies on Asia-Pacific Security Cooperation (11 January 2017). 69 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the General Assem- bly, un Doc. A/57/PV.5 (13 September 2002), 15–16. 70 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7271 (19 September 2014), 20. 71 Speech Chinese ambassador HU Xiaodi before First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/57/PV.3 (1 October 2002), 15.
9/11 necessitated that the international community not only worked more closely together to hold terrorists and their sponsors accountable for their ac- tions, but also enacted more preventive measures in particular with respect to weapons of mass destruction that could fall into the hands of terrorists. Collaboration within the purview of the existing legal frameworks on the
72 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the General Assem- bly, un Doc. A/57/PV.5 (13 September 2002), 15–16. 73 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7453 (29 May 2015), 21; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7463 (16 June 2015), 19. 74 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7271 (19 September 2014), 20.
prohibition, development and stockpiling of biological75 and chemical weap- ons76 would, according to China, suffice to face international terrorism yet, it found that the threat level of such new terrorism would necessitate the con- clusion of new regulations. Regarding bioterrorism, China argued that a new “reasonable, feasible and effective protocol” to the Biological Weapons Con- vention could not only “strengthen the effectiveness of the Convention and enhance international cooperation”,77 but it could equally align the economic interests of developed and developing countries.78 Under those existing non- proliferation mechanisms, each country would work individually towards the implementation of the goals laid down in the respective treaties. China, how- ever, denounced that with “the exposure of the international nuclear smug- gling network [those] original country-targeted non-proliferation norms were obviously fraught with defects”79 in particular in light of “the increasing threat of terrorism [that] brought more urgency to international non-proliferation efforts and new challenges to the international non-proliferation regime”.80 More had to be done in terms of coordination to stop illicit trafficking and the spread of weapons of mass destruction in this particular context of the fight against international terrorism.81 The war on terror and the non-proliferation regimes were ultimately connected by the Security Council whose estab- lishment of the third subsidiary organ, namely the 1540 Non-proliferation Committee,82 would reinforce its authority and leading role both in the realm of counter-terrorism and non-proliferation. The adoption of resolution 1540
75 1972 btwc. 76 1993 cwc. 77 Speech of the head of the Chinese delegation SHA Zukang at the Fifth Review Conference of the Parties to the 1972 btwc (19 November 2001). 78 Working Paper of China, Cuba, India, Indonesia, Iran, Libya, Mexico, Pakistan and Sri Lanka at the Ad Hoc Group of the States Parties to the 1972 btwc, Doc. BWC/AD HOC GROUP/WP.452, 23rd Session (7 May 2001), para. 2. In the end, the additional protocol to the 1972 btwc was not adopted. See also Chapter 4 China and Arms Control, I China and the Principle of Sovereign Equality, B Economic Security. 79 Speech Chinese ambassador HU Xiaodi before First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/59/PV.3 (5 October 2004), 3–4. 80 Speech Chinese ambassador HU Xiaodi before First Committee on Disarmament of the un General Assembly, un Doc. A/C.1/57/PV.3 (1 October 2002), 15. 81 The Security Council had already pointed out that there was a connection between ter- rorism and transnational organised crime. See un Doc. S/RES/1373 (28 September 2001). 82 un Doc. S/RES/1540 (28 April 2004).
83 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.4956 (28 April 2004), 6. 84 Speech of Chinese ambassador SUN Lei before the Security Council, un Doc. S/PV.7597 (22 December 2015), 8. 85 Speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/ PV.7837 (15 December 2016), 24. 86 Speech of Chinese ambassador LI Yang at the Plenary Meeting of the Conference on Dis- armament, 1029th Session, Doc. CD/PV.1029 (22 June 2006), 5. 87 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.7184 (28 May 2014), 13.
88 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.5886 (6 May 2008), 11. 89 The Convention on the Physical Protection of Nuclear Material was adopted on 26 Octo- ber 1979 and is the only treaty that seeks to prevent, detect and punish offenses related to nuclear materials. On 8 July 2005, the amendment to the 1979 Convention was adopted by consensus by the states parties to the 1979 Convention. The amendment entered into force on 8 May 2016. See also speech of Chinese ambassador LI Yang at the Plenary Meet- ing of the Conference on Disarmament, 1029th Session, Doc. CD/PV.1029 (22 June 2006), 5. 90 See Chapter 4 China and Arms Control. 91 Joint Communiqué of the Tenth Meeting of the Foreign Ministers of the People’s Republic of China, the Russian Federation and the Republic of India (15 November 2010), para. 19. 92 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.7463 (16 June 2015), 19. 93 Speech of Chinese ambassador SUN Lei before the Security Council, un Doc. S/PV.7319 (24 November 2014), 5. 94 Speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/ PV.7837 (15 December 2016), 24.
The global war on terror has been characterised by the disregard for humanity via the actions of both sides. China, however, found that only one side, namely the “terrorists defy the fundamental human rights and challenge the foun- dations of human civilization”.96 Furthermore, their indiscriminate attacks against civilians violated ihl and caused them to flee from such violence. The more recent atrocities committed by the adherents of Islamic State against the civilian populations of Syria and Iraq and the concurrent displacement of those civilians, triggered the mandate of the Security Council, which has sup- ported the fight against Islamic State and other terrorist groups in the region.97 China determined that those terrorist activities constituted a “serious threat to peace and security in the Middle East and the world as a whole” and that coop- eration in the fight against international terrorism should not be limited to the battlefield alone but also extend to cyberspace.98 Yet, much of those past and ongoing efforts to prevent and repress terrorist acts have been informed and guided by prejudices regarding the nature and background of those terrorists and, as a result, have compromised the objectivity of the work of the respec- tive shareholders and stakeholders. Such work has furthered division in the hearts and minds of both terrorists and those fighting against them to justify indiscriminate attacks against each other. Those polarisations have had immediate repercussions upon the interna- tional rule of law which governs the global war on terror and has compromised its respect vis-à-vis the individual terrorist, state and civilian population. As pointed out above, China argued that the fight against international terrorism
95 Speech of Chinese ambassador SHEN Bo before the Security Council, un Doc. S/PV.7743 (22 July 2016), 4. 96 Speech of Chinese Minister of Foreign Affairs WANG Yi before the Security Council, un Doc. S/PV.7272 (24 September 2014), 17. 97 un Doc. S/RES/2170 (15 August 2014). 98 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7242 (15 August 2014), 5–6; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7316 (19 Novem- ber 2014), 18.
99 See more Gloria Gaggioli, The Use of Force in Armed Conflicts: Interplay between the Con- duct of Hostilities and Law Enforcement Paradigms (Geneva: International Committee of the Red Cross, 2013). 100 un Doc. S/RES/1456 (20 January 2003); un Doc. S/RES/2178 (24 September 2014). 101 un Doc. S/RES/1368 (12 November 2001). 102 Speech of Chinese Minister of Foreign Affairs TANG Jianxian before the Security Council, un Doc. S/PV.4413 (12 November 2001), 4.
103 See more Lawrence Hill-Cawthorne, Detention in Non-international Armed Conflict (Cam- bridge: Cambridge University Press, 2016); Jelena Pejic, “Procedural Principles and Safe- guards for Internment/Administrative Detention in Armed Conflict and other Situations of Violence,” International Review of the Red Cross 87 (2005): 375–391. 104 un Doc. S/RES/748 (31 March 1992); un Doc. S/RES/883 (11 November 1993). 105 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.3312 (11 November 1993), 53. 106 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.3920 (27 August 1998), 15. 107 Speech of Chinese ambassador LIU Zhenmin before Sixth Committee of the un Gen- eral Assembly, un Doc. A/C.6/63/SR.3 (8 October 2008), 5; speech of Chinese ambassador
Such consensus could only be reached if existing prejudices would be removed in the first place. China emphasised the importance of an inter-religious and -civilizational dialogue108 whereby states would endeavour to better under- stand, tolerate and respect the different cultures, civilisations and religions of the world.109 In the context of the region that was most hit by terrorism, the Middle East, China pointed out that its peoples ought to accept their “greatest diversity of human civilizations”. It continued that “inclusiveness brings about coexis- tence; exclusiveness brings about hatred”.110 Fostering such common humanity on those historical relationships alone – either through the un Alliance of Ci- vilisations111 or within a regional or bilateral setting, states should, according to China, promote a public consciousness of tolerance, protect “normal religious activities” as well as give local communities a bigger role to play in order to inject “more positive energy into society”.112 China believed that within such
LI Baodong before the Security Council, un Doc. S/PV.6390 (27 September 2010), 19; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambas- sador CUI Tiankai before the Security Council, un Doc. S/PV.6900 (15 January 2013), 10; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7271 (19 September 2014), 20; speech of Chinese Minister of Foreign Affairs WANG Yi before the Security Council, un Doc. S/PV.7272 (24 September 2014), 17; speech of Chinese am- bassador WANG Min before the Security Council, un Doc. S/PV.7463 (16 June 2015), 19. 108 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6322 (26 May 2010), 17; speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6765 (4 May 2012), 13; Security Council Open Debate on Counter- terrorism, see speech of Chinese ambassador CUI Tiankai before the Security Council, un Doc. S/PV.6900 (15 January 2013), 10; speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/PV.7184 (28 May 2014), 13; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7453 (29 May 2015), 22. 109 Speech of Chinese ambassador WANG Yingfan before the General Assembly, un Doc. A/56/PV.16 (3 October 2001); speech of Chinese Minister of Foreign Affairs TANG Jianxian before the Security Council, un Doc. S/PV.4688 (20 January 2003), 20; speech of Chinese President HU Jintao before the Security Council, un Doc. S/PV.5261 (14 September 2005), 8; speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/PV.5855 (19 March 2008), 11; speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6390 (27 September 2010), 19. 110 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7419 (27 March 2015), 25; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7690 (11 May 2016), 18. 111 See un Alliance of Civilizations, https://www.unaoc.org (accessed 1 June 2017). China signed its Memorandum of Understanding with the Alliance on 14 May 2017. 112 Speech of Chinese Minister of Foreign Affairs WANG Yi before the Security Council, un Doc. S/PV.7272 (24 September 2014), 18.
113 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7419 (27 March 2015), 25; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7690 (11 May 2016), 18. 114 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7242 (15 August 2014), 5–6; Security Council Open Debate on Counter-terrorism, see speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7316 (19 November 2014), 18. A balance however must be struck between the censorship of extremist terrorist ideologies on the one hand and national populism and the freedom of speech on the other. 115 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6390 (27 September 2010), 19. 116 Speech of Chinese ambassador WANG Yingfan before the General Assembly, un Doc. A/56/PV.16 (3 October 2001); speech of Chinese Minister of Foreign Affairs TANG Jianxian before the Security Council, un Doc. S/PV.4688 (20 January 2003), 20. See also Chinese National Development and Reform Commission, Ministry of Foreign Affairs and Minis- try of Commerce, ‘Vision and Actions on Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road’ (28 March 2015); Xi Jinping, ‘Building a Community of Common Destiny for Mankind’ (Geneva, 18 January 2017). 117 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6390 (27 September 2010), 19; speech of Chinese ambassador WU Haitao before the Security Council, un Doc. S/PV.7831 (12 December 2016), 19.
Conclusion
While the global war on terror could have been an opportunity for states to more easily align their security interests, in contrast to the deep divides which now exist in regard to national and economic security in the context of arms control, the governance of counter-terrorism measures has, since 9/11, been the subject of political, ideological, religious and civilizational antagonism. Politically and from the perspective of relational governance, states and the international community could manage their differences more successfully and overcome their differences regarding the identification and responses to international terrorism to avoid double standards and inter-state conflicts. Nevertheless, from a methodological and organisational perspective, the Security Council has tried to take the lead in adopting such measures that reassure all state participants in the war on terror of their respective rights and obligations under the collective security and non-proliferation regimes. In this respect, the counter-terrorism measures have to carefully balance the in- terests of the international community and the principle of non-interference. This present tension faced by the Security Council in its adoption of counter- terrorism measures has been relatively well spread through the work of the various committees of the Security Council and with the development of the overarching and inclusive Global Counter-Terrorism Strategy of the General Assembly. As a result, from the perspective of tornil, confidence has been built amongst the different shareholders and stakeholders while fine- tuning the counter-terr orism and non-proliferation mechanisms that in the long-term would make it possible for them to work together in other areas of conflict resolution. Those methodological and organisational objectives, however, could not be achieved without addressing polarisation based on civilizational, ethnic ideological and religious prejudices. Without the prevention and removal of
118 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7271 (19 September 2014), 20.
Introduction
Along the continuum of violence, calls for accountability by the victims of violations of international law or on behalf of the international community during and in the aftermath of conflict further underscore the need to uphold all moral values that underpin the international legal and political order, i.e. peace, humanity and accountability. The realisation of such values often involves competing visions and mechanisms to govern (post-)conflict justice and to hold alleged perpetrators responsible for their commission of interna- tional crimes, including genocide, war crimes, crimes against humanity and the crime of aggression.1 Such tension is immediately manifested in the under- lying opposing interests of the international community and the nation state that aim to restore peace, humanity and accountability respectively through an agenda of criminal justice – international and national alike – or through reconciliation and other transitional (non-criminal) justice measures. Such global and local agendas, however, must take into account their respective
1 Over the course of time, such violations of international law, including the law on the use of force, ihl and international human rights law, have been criminalized. Each of these inter- national crimes falls under the jurisdiction of the International Criminal Court (icc). See 1998 Rome Statute of the icc, Art. 5. See more on international crimes: Bartłomiej Krzan, ed., Prosecuting International Crimes: A Multidisciplinary Approach (Leiden: Koninklijke Brill, 2016); Andrew Clapham, Paola Gaeta, Marco Sassoli, eds., The 1949 Geneva Conventions: A Commentary (Oxford: Oxford University Press 2015); Leila N. Sadat, “Crimes Against Human- ity in the Modern Age,” American Journal of International Law 107 (2013): 334–377; Andrew Altman, “Genocide and Crimes against Humanity: Dispelling the Conceptual Fog,” Social Philosophy and Policy 29 (2012): 280–308; M. Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application (Cambridge: Cambridge University Press, 2011); Eve La Haye, War Crimes in Internal Armed Conflicts (Cambridge: Cambridge University Press, 2008); Lijiang Zhu, Dui Guonei Zhanzhengzui de Pubian Guanxia yu Guojifa (Universal Jurisdiction over Domestic War Crimes and International Law) (Beijing: Falu Chubanshe (Law Press), 2007); Knut Dörmann, Elements of War Crimes under the Rome Statute of the Inter- national Criminal Court: Sources and Commentary (Cambridge: Cambridge University Press, 2003); Chengyuan Ma, Guoji Fanzui yu Zeren (International Crime and Liability) (Beijing: Zhongguo Zhengfa Daxue Chubanshe (China University of Political Science and Law Press), 2001); William A. Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge: Cambridge University Press, 2000); George J. Andreopoulos, Genocide: Conceptual and His- torical Dimensions (Philadelphia: University of Pennsylvania Press, 1997).
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2 Frédéric Mégret, “The Anxieties of International Criminal Justice,” Leiden Journal of Interna- tional Law 29 (2016): 197–221; Frédéric Mégret, “What Sort of Global Justice is ‘International Criminal Justice’?” Journal of International Criminal Justice 13 (2015): 77–96; Liyu Zhu and Kan Xiong, “Guodu Sifa: Lianheguo he Guoji Shehui dui Xitongxing Huo Daguimo Qinfan Renquan de Huiying (‘Transitional Justice: The United Nations and International Commu- nity’s Response to Systematic or Widespread Violations of Human Rights’),” Zhejiang Daxue Xuebao Renwen Shehui Kexueban (Journal of Zhejiang University (Humanities and Social Sciences)) 4 (2010): 143–151; Jidong Jin, “Zhuanxing Zhengyi: Hexie Shehui de Zhidu Lunli (‘Transitional Justice: Institutional Ethic of a Harmonious Society’),” Lunlixue Yanjiu (Studies in Ethics) 2 (2008): 27–31; Chandra Lekha Sriram and Amy Ross, “Geographies of Crime and Justice: Contemporary Transitional Justice and the Creation of ‘Zones of Impunity’,” Inter- national Journal of Transitional Justice 1 (2007): 45–65; William A. Schabas, Thakur Ramesh, and Hughes Edel, eds., Atrocities and International Accountability: Beyond Transitional Justice (Tokyo: United Nations University Press, 2007); Chandra Lekha Sriram, Globalizing Justice for Mass Atrocities: A Revolution in Accountability (London: Routledge, 2005); Carsten Stahn, “Ac- commodating Individual Criminal Responsibility and National Reconciliation: The un Truth Commission for East Timor,” American Journal of International Law 95 (2001): 952–966. 3 Cedric Ryngaert, “State Cooperation with the International Criminal Tribunal for Rwanda,” International Criminal Law Review 13 (2013): 125–146; Mohamed Shahabuddeen, International Criminal Justice at the Yugoslav Tribunal: A Judge’s Recollection (Oxford: Oxford University Press, 2012); Silvia D’Ascoli, Sentencing in International Criminal Law: The un ad hoc Tribu- nals and Future Perspectives for the icc (Oxford: Hart Publishing, 2011); Yan Ling, Luwangda Guoji Xingshi Fating de Lilun yu Shijian (The Theory and Practice of the International Criminal Tribunal for Rwanda) (Beijing: Shijie Zhishi Chubanshe (World Affairs Press), 2010); Rich- ard J. Goldstone, and Adam M. Smith, International Judicial Institutions: The Architecture of International Justice at Home and Abroad (New York: Routledge, 2009); Yonghong Hong, Luwangda Guoji Xingshi Fating Yanjiu (A Study on the International Criminal Tribunal for Rwanda) (Beijing: Zhongguo Shehui Kexue Chubanshe (China Social Sciences Publishing House), 2009); Yonghong Hong, “Lun Luwangda Guoji Xingshi Fating de Guanxiaquan (‘On the Jurisdiction of the International Criminal Tribunal for Rwanda’),” Hebei Faxue (Hebei Law Science) 8 (2008): 173–181; Qiong Zhang, “Qian Nansilafu Guoji Xingshi Fating yu Guoji Xingfa de Shishi (‘International Criminal Tribunal for the former Yugoslavia and Implementation of International Criminal Law’),” Gansu Shehui Kexue (Gansu Social Sciences) 5 (2008): 60–63;
William A. Schabas, The un International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006); Guénaël Mettraux, Inter- national Crimes and the Ad Hoc Tribunals (Oxford: Oxford University Press 2005); Victor Pes- kin, “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda,” Journal of Human Rights 4 (2005): 213–231; Larissa J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law (Leiden: Koninklijke Brill, 2005); Hongkai Xiao and Yueqi Tan, “Qian- nan Xingting Shijiaoxia de Guoji Xingshi Fayuan (‘On the International Criminal Court from the Perspective of the International Criminal Tribunal for the Former Yugoslavia’),” Wuhan Daxue Xuebao Zhexue Shehui Kexueban (Wuhan University Journal (Social Science)) 5 (2005): 595–600; Wenqi Zhu, “Lun Chengli Guoji Xingshi Fating de Hefaxing Wenti (‘On the Legality of the Establishment of the International Tribunals’),” Shidai Faxue (Present-day Law Science) 6 (2005): 99–107. 4 Patryk I. Labuda, “The Special Criminal Court in the Central African Republic: Failure or Vindication of Complementarity?” Journal of International Criminal Justice 15 (2017): 175–206; Emanuele Cimiotta, “The First Steps of the Extraordinary African Chambers: A New Mixed Criminal Tribunal?” Journal of International Criminal Justice 13 (2015): 177–197; John D. Ciorciari and Anne Heindel, Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia (Ann Arbor: Michigan University Press, 2014); Giorgia Tortora, “The Financing of the Special Tribunals for Sierra Leone, Cambodia and Lebanon,” International Criminal Law Review 13 (2013): 93–124; Sarah Williams, “The Extraordinary African Chambers in the Sen- egalese Courts: An African Solution to an African Problem?” Journal of International Criminal Justice 11 (2013): 1139–1160; Xiumei Wang, “Libanen Tebie Fating Chutan (‘Introduction to the Special Court for Lebanon’),” (Journal of Henan University of Economics and Law) 6 (2008): 93–98; Bardo Fassbender, “Reflections on the International Legality of the Special Tribunal for Lebanon,” Journal of International Criminal Justice 5 (2007): 1091–1105; Alison Kamhi, “Private Funding for Public Justice: The Feasibility of Donations to the Cambodian Tribunal,” Harvard International Law Journal 48 (2007): 581–591; Chandra Lekha Sriram, “Wrong-Sizing Interna- tional Justice? The Hybrid Tribunal in Sierra Leone,” Fordham International Law Journal 29 (2006): 472–506; Hanbing Kong, “Shenpan Hongse Gaomian Jinru Daojishi (‘The Countdown of the Judgment of Khmer Rouge Has Begun’),” Shijie Zhishi (World Affairs) 8 (2006): 59–61; Hailong Jia and Haitao Jia, “Hunhexing Shenpan Jigou: Chengzhi Guoji Fanzui de Xintujing (‘The Mixed Judicial Institution: A New Way to Punish International Crime’),” Hebei Faxue (Hebei Law Science) 11 (2004): 127–129; Hailong Jia and Haitao Jia, “Chutan Saila Liang Tebie Fating (‘Introduction to the Special Court for Sierra Leone’),” Hebei Faxue (Hebei Law Sci- ence) 12 (2004): 127–130; Cesare P.R. Romano, André Nollkaemper, and Jann K. Kleffner, eds., Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia, (Oxford: Oxford University Press, 2004); Suzannah Linton, “Cambodia, East Timor, and Sierra Leone: Experiments in International Justice,” Criminal Law Forum 12 (2001): 185–246.
Other institutions at the international level are the International Criminal Court (icc)5), the un Security Council, un Human Rights Council, interna- tional (fact-finding) commissions of inquiry6 and international territorial
5 William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford: Oxford University Press, 2016); Shitao Shen, “Guojia yu Guoji Xingshi Fating He- zuozhong de Jige Jichu Wenti (‘Several Basic Problems in Cooperation of the Nation and the International Criminal Tribunal’),” Zhengfa Luncong (Journal of Political Science and Law) 3 (2015): 49–56; Carsten Stahn, ed., The Law and Practice of the International Criminal Court (Oxford: Oxford University Press, 2015); Triestino Mariniello, ed., The International Criminal Court in Search of Its Purpose and Identity (London: Routledge, 2015); David Bosco, Rough Jus- tice: The International Criminal Court in a World of Power Politics (New York: Oxford Univer- sity Press, 2014); Charles C., Jalloh, Dapo Akande and Max du Plessis, “Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court,” African Journal of Legal Studies 4 (2011): 5–50; Steven C. Roach, “The Turbulent Politics of the International Criminal Court,” Peace Review: A Journal of Social Justice 23 (2011): 546–551; Xu Zhang, Guoji Xingshi Fayuan (The International Criminal Court) (Beijing: Falu Chubanshe (Law Press), 2011); Benjamin N. Schiff, Building the International Criminal Court (Cambridge: Cambridge University Press, 2008); Li Xu, “Guoji Xingshi Fayuan Ruogan Wenti Yanjiu (‘Study on International Criminal Court’),” Wuhan Daxue Xuebao Zhexue Shehui Kexueban (Wuhan University Journal (Social Science)) 3 (2007): 356–361; Mingxuan Gao and Xiumei Wang, “Lun Jianli Guoji Xingshi Fayuan de Falv Yiyi (‘The Legal Significance on Establishing the Inter- national Criminal Court’),” Jilin Daxue Shehui Kexue Xuebao (Jilin University Journal Social Sciences Edition) 3 (2004): 16–21; Jian Liu, “Lun Guoji Xingshi Fayuan Guanxiaquan yu Guojia Zhuquan (‘On the Jurisdiction of the International Criminal Court and National Sovereign- ty’),” Falv Kexue Xibei Zhengfa Daxue Xuebao (Science of Law (Journal of Northwest University of Political Science and Law)) 5 (2004): 85–89; Zexian Chen, “Guoji Xingshi Fayuan Guanx- iaquan de Xingzhi (‘The Nature of the Jurisdiction of International Criminal Court’),” Faxue Yanjiu (Chinese Journal of Law) 6 (2003): 121–128; Lijun Yang, “Guoji Xingshi Fayuan Luoma Guiyue Qianxi (‘On the Rome Statute of the International Criminal Court’),” Huanqiu Falv Pinglun (Global Law Review) 2 (2003): 218–231; Hong Huang, “Guoji Xingshi Fayuan he Guonei Fayuan zai Xingshi Sifa Guanxiaquan Shang de Guanxi (‘The Relationship between the In- ternational Criminal Court and Domestic Court of the Criminal Jurisdiction’),” Guoji Anquan Yanjiu (Journal of International Security Studies) 6 (2002): 24–29; Xiumei Wang, Guoji Xing- shi Fayuan Yanjiu (A Study on the International Criminal Court) (Beijing: Zhongguo Renmin Daxue Chubanshe (China People’s University Press), 2002); Shouping Li, “Guoji Xingshi Fa- yuan de Guanxiaquan yu Guojia Zhuquan Yuanze (‘On the Jurisdiction of the International Criminal Court and the Principle of National Sovereignty’),” Hebei Faxue (Hebei Law Science) 4 (2000): 96–99; Dinnah Shelton, International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Ardsley: Transnational Publishers, 2000). 6 Christian Henderson, ed., Commissions of Inquiry: Problems and Prospects (Oxford: Hart Publishing, 2017); Philip Alston and Sarah Knuckey, The Transformation of Human Rights Fact-Finding (Oxford: Oxford University Press, 2016); Luigi Condorelli, “The International Hu- manitarian Fact-Finding Commission: An Obsolete Tool or a Useful Measure to Implement International Humanitarian Law?” International Review of the Red Cross 842 (2001) 393–406.
administrations.7 Domestically, national courts and truth and reconciliation commissions8 have been part of this process. A division of labour of justice and reconciliation mechanisms has inevitably bifurcated such implementation and constitutes a source of tension that has not only informed the agendas of international and domestic institutions but also influenced their relationships and affected the local communities – who are supposed to be the primary ben- eficiaries of such measures in the first place. Although the players on the post-conflict scene as well as their respective mechanisms are governed by the so-called jus post bellum9 – which is not
7 Eric De Brabandere, Post-conflict Administrations in International Law. International Terri- torial Administration, Transitional Authority and Foreign Occupation in Theory and Practice (Leiden/Boston: Martinus Nijhoff Publishers, 2009); Carsten Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge: Cambridge University Press, 2008); Ralph Wilde, International Territorial Administration: How Trustee- ship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press, 2008). 8 Alison Bisset, “Rethinking the Powers of Truth Commissions in Light of the icc Statute,” Journal of International Criminal Justice 7 (2009): 963–982; Lisa J. Laplante and Kimberley Theidon, “Transitional Justice in Times of Conflict: Colombia’s Ley de Justicia y Paz,” Michi- gan Journal of International Law 28 (2006–2007): 49–108; Catherine Jenkins, “A Truth Com- mission for East Timor: Lessons from South Africa,” Journal of Conflict and Security Law 7 (2002): 233–251; Ruti Teitel, “The Future of Human Rights Discourse,” Saint Louis University Law Journal 46 (2002): 449–463; Abdul Tejan-Cole, “The Complementarity and Conflicting Relationship between the Special Court for Sierra Leone and the Truth and Reconciliation Commission,” Yearbook of International Humanitarian Law 5 (2002): 313–330; Stephan Lands- man, “Alternative Responses to Serious Human Rights Abuses of Prosecution and Truth Commissions,” Law and Contemporary Problems 59 (1996): 81–92; Naomi Roht-Arriaza, “Com- bating Impunity: Some Thoughts on the Way Forward,” Law and Contemporary Problems 59 (1996): 93–102. 9 Elizabeth Edenberg and Larry May, eds., Jus Post Bellum and Transitional Justice (New York: Cambridge University Press, 2014); Carsten Stahn, Jennifer S. Easterday and Jens Iverson, eds., Jus Post Bellum: Mapping the Normative Foundations (Oxford: Oxford University Press, 2014); Jens Iverson, “Transitional Justice, Jus Post Bellum and International Criminal Law: Differ- entiating the Usages, History and Dynamics,” International Journal of Transitional Justice 7 (2013): 413–433; Mark Evans, “Moral Responsibilities and the Conflicting Demands of Jus Post Bellum,” Ethics & International Affairs 23 (2009): 147–164; Alex J. Bellamy, “The Responsibili- ties of Victory: Jus Post Bellum and the Just War,” Review of International Studies 34 (2008): 601–625; Carsten Stahn and Jann K. Kleffner, eds., Jus Post Bellum: Towards a Law of Transition from Conflict to Peace (Hague: t.m.c. Asser Press, 2008); Carsten Stahn, “Jus in Bello, Jus ad Bellum – Jus Post Bellum? Rethinking the Conception of the Law of Armed Force,” European Journal of International Law 17 (2006): 921–943; Gary J. Bass, “Jus Post Bellum,” Philosophy and Public Affairs 32 (2004): 384–412; Davida E. Kellogg, “Jus Post Bellum: The Importance of War Crimes Trials,” Parameters 32 (2002): 87–99; Brian Orend, “Jus Post Bellum,” Journal of Social Philosophy 31 (2000): 117–37.
10 As defined in the respective statutes of the international ad hoc/hybrid criminal tribu- nals. Furthermore, the icc’s Statute includes three possible means to trigger the actual jurisdiction of the Court in the first place, namely by a referral of state party to the Statute, a referral of the un Security Council acting under Chapter vii of the un Charter and pur- suant to the so-called proprio motu powers of the icc Prosecutor. See 1998 Rome Statute of the icc, Art. 13. 11 Kamari Clarke, Abel S. Knottnerus and Eefje de Volder, eds., Africa and the icc: Percep- tions of Justice (Cambridge: Cambridge University Press, 2016); Vasuki Nesiah, “Local Ownership of Global Governance,” Journal of International Criminal Justice 14 (2016): 985–1009; Christian De Vos, Sara Kendall and Carsten Stahn, eds., Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge: Cambridge University Press, 2015); Christine E.J. Schwöbel, ed., Critical Approaches to International Criminal Law – An Introduction (London: Routledge, 2014); Catherine Gegout, “The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace,” Third World Quarterly 34 (2013): 800–818; Renwen Liu and Liu Yang, “Feizhou Wenti Kunrao xia de Guoji Xingshi Fayuan (‘The International Criminal Court Plagued by Issues in Africa’),” Bijiaofa Yanjiu (Journal of Comparative Law) 5 (2013): 77–92; Andrea Birdsall, The International Politics of Judicial Intervention: Creating a More Just Order (London: Routledge, 2009); Robert Cryer, Prosecuting International Crimes: Selectiv- ity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005); Allison Marston Danner, “Enhancing the Legitimacy and Accountability of Pros- ecutorial Discretion at the International Criminal Court,” American Journal of Interna- tional Law 97 (2003): 510–552. 12 Sara Kendall and Sarah M.H. Nouwen, “Speaking of Legacy Towards an Ethos of Modesty at the International Criminal Tribunal for Rwanda,” American Journal of International Law 110 (2016): 212–232; Richard H. Steinberg, ed., Assessing the Legacy of the icty (Leiden: Martinus Nijhoff Publishers, 2011); Bert Swart, Alexander Zahar and Göran Sluiter, eds., The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford: Ox- ford University Press, 2011); Kevin J. Heller, “The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process,” Criminal Law Forum 17 (2006): 255–280.
13 Matthias Vanhullebusch and Nadarajah Pushparajah, “The Politics of Prosecution of International Crimes in Sri Lanka,” Journal of International Criminal Justice 14 (2016): 1235–1260; Charles C. Jalloh, ed., The Sierra Leone Special Court and its Legacy: The Impact for Africa and International Criminal Law (Cambridge: Cambridge University Press, 2014); Christoph Sperfeldt, “From the Margins of Internationalized Criminal Justice: Lessons Learned at the Extraordinary Chambers in the Courts of Cambodia,” Journal of Inter- national Criminal Justice 11 (2013): 1111–1137; Alejandro Chehtman, “Developing Bosnia and Herzegovina’s Capacity to Process War Crimes Cases: Critical Notes on a ‘Success Story’,” Journal of International Criminal Justice 9 (2011): 547–570; Kate Gibson, “An Uneasy Co-existence: The Relationship Between Internationalised Criminal Courts and Their Domestic Counterparts,” International Criminal Law Review 9 (2009): 275–300; David Cohen, “‘Hybrid’ Justice in East Timor, Sierra Leone, and Cambodia: ‘Lessons Learned’ and Prospects for the Future,” Stanford Journal of International Law 43 (2007): 1–38; Sarah M.H. Nouwen, “Combining Ownership and Neutrality in the Prosecution of International Crimes: Theory and Reality of Mixed Tribunals,” Netherlands Quarterly of Human Rights 25 (2007): 255–287; Suzannah Linton, “Safeguarding the Independence and Impartiality of the Cambodian Extraordinary Chambers,” Journal of International Criminal Justice 4 (2006): 327–341; Göran Sluiter, “Due Process and Criminal Procedure in the Cambodian Extraordinary Chambers,” Journal of International Criminal Justice 4 (2006): 314–326; Wil- liam A. Schabas, “Genocide Trials and Gacaca Courts,” Journal of International Criminal Justice 3 (2005): 879–895. It should be noted that pursuant to ihl, amnesties should be granted as much as possible to those who had illegally participated in non-international armed conflicts. See 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts (1977 ap ii), Art. 6(5). 14 Matthias Vanhullebusch, “Regime Change, the Security Council and China,” Chinese Jour- nal of International Law 14 (2015): 665–707.
15 Ping Liu, “Lianheguo Zhanzheng Zuixing Weiyuanhui de Sheli yu Yunxing: Yi Taibei ‘Guoshiguan’ Dang an Wei Zhongxin de Tantao (‘The Establishment and Operation of the United Nations War Crimes Commission: An Examination Centered on the Files in the “Academia Historica” in Taipei’),” Lishi Yanjiu (Historical Research) 6 (2015): 116–133; Matthias Vanhullebusch, “The Right to Truth and the Legacies of World War ii: A Way Forward for China?” in East Asia’s Renewed Respect for the Rule of Law in the 21st Century: The Future of Legal and Judicial Landscapes in East Asia, eds. Setsuo Miyazawa, Weidong Ji, Hiroshi Fukurai, Kay-Wah Chan and Matthias Vanhullebusch (Leiden: Brill/Nijhoff, 2015), 87–109; Wenqi Zhu, “Dongjing Shenpan yu Zhuijiu Qinlue zhi Zuize (‘Tokyo Trial and Investigating the Criminal Liability of Aggression’),” Zhongguo Faxue (China Legal Science) 4 (2015): 5–24; Anja Bihler, “Late Republican China and the Development of In- ternational Criminal Law: China’s Role in the United Nations War Crimes Commission in London and Chungking,” in Historical Origins of International Criminal Law, Vol. i, eds. Morten Bergsmo, Wui Ling Cheah and Ping Yi (Brussels: Torkel Opsahl Academic Epublisher, 2014), 507–540; Barak Kushner, “Chinese War Crimes Trials of Japanese, 1945– 1956: A Historical Summary,” in Historical Origins of International Criminal Law, Vol. i, eds. Morten Bergsmo, Wui Ling Cheah and Ping Yi (Brussels: Torkel Opsahl Academic Epublisher, 2014), 243–265; Yan Ling, “The 1956 Japanese War Crimes Trials in China,” in Historical Origins of International Criminal Law, Vol. ii, eds. Morten Bergsmo, Wui Ling Cheah and Ping Yi (Brussels: Torkel Opsahl Academic Epublisher, 2014), 215–241; Bei Shi, Siqi Zeng and Qi Zhang, “Chinese Confucianism and Other Prevailing Chinese Practices in the Rise of International Criminal Law,” in Historical Origins of International Criminal Law, Vol. i, eds. Morten Bergsmo, Wui Ling Cheah and Ping Yi (Brussels: Torkel Opsahl Academic Epublisher, 2014), 141–170; Wen-Wei Lai, “Forgiven and Forgotten: The Repub- lic of China in the United Nations War Crimes Commission,” Columbia Journal of Asian Law 25 (2012): 308–18; Adam Cathcart and Patricia Nash, “War Criminals and the Road to Sino-Japanese Normalization: Zhou Enlai and the Shenyang Trials, 1954–1956,” Twentieth- Century China 34 (2009): 89–111; Adam Cathcart and Patricia Nash, “‘To Serve Revenge
In respect of contemporary international criminal justice mechanisms, China’s equivocal stance regarding the establishment and operation of in- ternational ad hoc/hybrid tribunals or the Security Council’s powers to refer situations to the icc for further investigation has often been accused of fa- vouring the national sovereignty of the territorial state in an attempt to defend China’s own economic interests with those nations.16 Beyond those concerns on its sovereign interests, the fragile relationship between international and domestic post-conflict mechanisms and institutional constraints of collective
for the Dead’: Chinese Communist Responses to Japanese War Crimes in the prc For- eign Ministry Archive, 1949–1956,” China Quarterly 200 (2009): 1053 1069; Jing Chen, “The Trial of Japanese War Criminals in China: The Paradox of Leniency,” China Information 23 (2009): 447–472; Ruao Mei, Yuandong Guoji Junshi Fating (International Military Tribunal of the Far East) (Beijing: Falu Chubanshe (Law Press), 2005); Zhiyong Song, “Dongjing Shenpan yu Zhongguo (‘Tokyo Trial and China’),” Kangri Zhanzheng Yanjiu (Journal of Studies of China’s Resistance War against Japan) 3 (2001): 144–167. 16 Jing Tao, “China’s Socialization in the International Human Rights Regime: Why Did China Reject the Rome Statute of the International Criminal Court?” Journal of Contem- porary China 24 (2015): 1092–1110; Dan Zhu, “China, the Crime of Aggression, and the In- ternational Criminal Court,” Asian Journal of International Law 5 (2015): 94–122; Binxin Zhang, “Criminal Justice for World War ii Atrocities in China,” fichl Policy Brief Series 29 (2014): 1–4; Dan Zhu, “China, the International Criminal Court, and International Ad- judication,” Netherlands International Law Review 61 (2014): 43–67; Chengyuan Ma, “Lun Zhongguo Xingfazhong de Pubian Guanxiaquan (‘On Universal Jurisdiction in Chinese Criminal Law’),” Zhengfa Luntan (Tribune of Political Science and Law) 3 (2013): 88–101; Wenqi Zhu, Guoji Xingshi Fayuan yu Zhongguo (The International Criminal Court and China) (Beijing: Zhongguo Renmin Daxue Chubanshe (China People’s University Press), 2009); Lihong Song, “Zhongguo Jiaru Guoji Xingshi Fayuan de Biranxing (‘The Inevitabil- ity of China’s Joining International Criminal Court’),” Dangdai Faxue (Contemporary Law Review) 3 (2008): 100–105; Wenqi Zhu, “Zhongguo Shifou Yingjiaru Guoji Xingshi Fayuan Xia (‘Should China Join the International Criminal Court (Part i)’),” Hubei Shehui Kexue (Hubei Social Sciences) 11 (2007): 133–139; Wenqi Zhu, “Zhongguo Shifou Yingjiaru Guoji Xingshi Fayuan Shang (‘Should China Join the International Criminal Court (Part ii)’),” Hubei Shehui Kexue (Hubei Social Sciences) 10 (2007): 141–146; Bingbing Jia, “China and the International Criminal Court: The Current Situation,” Singapore Yearbook of Interna- tional Law 10 (2006): 1–11; Xinqi Gai, “Zhongguo Jiaru Guoji Xingshi Fayuan Guiyue de Libi Fenxi (‘An Analysis of Advantages and Disadvantages of China’s Accession to Rome Statute of the International Criminal Court’),” Zhongguo Xingshifa Zazhi (Criminal Sci- ence) 2 (2005): 113–118; Mingxuan Gao and Bingzhi Zhao, Guoji Xingshi Fayuan: Zhongguo Mianlin de Xuanze (The International Criminal Court: China’s Choice) (Beijing: Zhongguo Renmin Gongan Daxue Chubanshe (Chinese People’s Public Security University Press), 2005); Jianping Lu and Zhixiang Wang, “China’s Attitude Towards the icc,” Journal of In- ternational Criminal Justice 3 (2005): 608–620.
security organs, such as the Security Council, China has been particularly cau- tious about the role of the international judiciary in the progressive develop- ment of international (criminal) law. Therefore, from the Chinese perspective, the jus post bellum ought to first take into account the doctrine of the sources of international law17 where states are the primary legislators of international law in the first place. Second, the jus post bellum ought to strike a right balance in governing the global and the local post-conflict mechanisms and comple- mentary processes that aim to restore peace, humanity and accountability at both levels and ought to leave sufficient space for those responsible sharehold- ers and stakeholders to explore different options that preserve the unity within the siege of decision-making bodies at the international revel and the unity in the country undergoing its transition. From the perspective of tornil, the normativity of the jus post bellum could be strengthened if the global, domestic and local actors and institutions could work together in realising each other’s mutual goals. A sound relation- ship built on trust, dialogue and compromise would be a precondition to such objective. The jus post bellum itself already provides for those principles of international law that shall govern that particular relationship and is mani- festly reflected in the constitutive documents of various international courts and tribunals. In this regard, the principles of non-interference, primacy and complementarity establish the link between those involved in the administra- tion of (post-)conflict justice and between the respective agendas and interests which they represent. Non-interference seeks to protect the judicial sovereign- ty of the state as well as to solicit the latter’s consent. As a result, the state’s cooperation, which has to be sought by international courts and tribunals at all stages, in the fulfilment of their respective mandates – even if the ad hoc tri- bunals were operating under a Chapter vii resolution of the Security Council, which could impose sanctions upon the state in case it failed to comply with its cooperation obligations under the respective resolutions. Pursuant to the principle of primacy, national jurisdictions had assumed a subsidiary role to the ad hoc tribunals in respect of the investigation and prosecution of inter- national crimes that have been committed in the respective territorial states. According to the principle of complementarity,18 a limited role – similar to the
17 1945 icj Statute, Art. 38. 18 See Sarah M.H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge: Cambridge University Press, 2013); Minhua Su, “Lun Guoji Xingshi Fayuan Luoma Guiyue Guanxiaquan Bu- chongxing Yuanze (‘On the Principle of Complementarity of Rome Statute of the Inter- national Criminal Court’),” Zhengzhi yu Falv (Political Science and Law) 8 (2011): 138–145;
Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Leiden: Martinus Nijhoff Publishers, 2008); Jann Klef- fner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford: Oxford University Press, 2008).
Furthermore, ongoing peace talks between such nations in transition from war to peace must be taken into account when deciding upon accountability measures. It is within such complex setting of local, national, international actors and responsibilities in the (post-)conflict space that global governance has to har- monise competing sovereignty and community interests. While these inter- ests have been traditionally rationalised in opposing categories within the jus post bellum and by different judicial, reconciliatory and peacebuilding initia- tives advanced at the national and international level, China’s approach – as demonstrated previously – continues to frame those within complementary terms instead and here in particular through the prism of the principles of non-interference, primacy and complementarity that define the relation- ship between those actors and their agendas to be interdependent in the first place. Against the background of China’s own historical experience with (inter)national criminal justice during and in the aftermath of the Second World War, this chapter will firstly examine China’s stance on the principle of non-interference as regards domestic prosecution of international crimes committed in the course of an international armed conflict, i.e. the Second World War, and in the context of other non-international armed conflicts. Re- garding the latter, it will pay further attention to China’s take on the role of hy- brid tribunals and the importance of the host state’s consent. Secondly, it will scrutinise China’s position regarding the establishment of ad hoc international criminal tribunals by the Security Council and their operationalisation under the principle of primacy. In the light of those tribunals’ completion strategy, it will look at China’s perspective on the changing relationship between those tri- bunals and the national courts that are assuming jurisdiction on a concurrent basis instead. Thirdly, it will focus on China’s position regarding the function of the principle of complementarity before the icc – during the negotiation of the Rome Statute and beyond – in particular with reference to the cooperation obligations for (non-)states parties, the prosecution of nationals of non-icc members and the proprio motu powers of the icc Prosecutor. For each of those aspects, the relationship between the global and local actors is being tested before those principles of international criminal justice. i China and the Principle of Judicial Sovereignty
China’s contemporary stance on international criminal justice has been in- formed by its own historical experience with domestic and international investigations and prosecutions of international crimes committed by Japanese perpetrators on Chinese soil, namely and respectively within the framework of
19 Claire Nielsen, “From Nuremberg to The Hague: The Civilizing Mission of International Criminal Law,” Auckland University Law Review 14 (2008): 82.
until 1949 with the retreat of the kmt to Taiwan.20 Although both nationalists and communists were competing on the issue of criminal responsibility for the war crimes and both sides favoured benevolence, the nationalists would not pursue enough prosecution of war criminals according to the commu- nists. They argued that such absence of a firm stance on accountability would play into the hands of Japanese militarists who were waiting for the right mo- ment to revenge and conquer China all over again. The flight of the kmt to Taiwan and Chiang Kai-Shek’s intention to use a Japanese military alliance to reclaim the Mainland has further sown the seeds of a complex relationship between the prc and Japan.21 Therefore, under the prc, the calls for leniency during its final Shenyang trials against Japanese perpetrators for their crimes committed on Chinese territory were favoured over severe sentencing. The particular international context after the international armed conflict would justify such conduct by the prc, namely to restore its neighbourly relationship with Japan so they could more closely work together after the war in each other’s reconstruction and this without the interference of the us. Therefore, the administration of (post-)conflict justice ought to be retained within the hands of the respec- tive national governments. The primacy of the Tokyo Tribunal over national prosecution would, from the communist’s perspective, undermine China’s judicial sovereignty and foreign policy. Furthermore, the legal basis of the international tribunal would confirm such suspicion on behalf of the prc. Unlike the Nuremberg Tribunal that was set up by an international treaty between the Allied Powers on 8 August 1945,22 the Tokyo Tribunal was estab- lished by the unilateral proclamation of us General Douglas MacArthur – the Supreme Military Commander of the Allied Powers – on 19 January 1946. Communist China’s earlier revolutionary take on international crimes’ pros- ecution in the Far East in respect of the us’ geopolitical motives has sharpened its perspective on the principle of non-interference which should be observed under all circumstances to prevent intervention by other states under the veil of calls for accountability through international criminal justice. Although the communists were not participating in the domestic prosecution of Japa- nese war criminals under the unwcc framework and did not contribute to the operation of the Tokyo Tribunal as such, strictly speaking the principle
20 Mao Zedong, Selected Works of Mao Zedong, Vol. 3 (Peking: Foreign Languages Press, 1965), 286–287. 21 Barak Kushner, “Pawns of Empire: Postwar Taiwan, Japan and the Dilemma of War Crimes,” Japanese Studies 30 (2010): 120, 125, 130. 22 London Agreement (8 August 1945).
23 Speech of icty President Fausto Pocar before the Security Council, un Doc. S/PV.5904 (4 June 2008), 3. See also Mirko Klarin, “The Tribunal’s Four Battles,” Journal of International Criminal Justice 2 (2004): 556. 24 Speech of Chinese ambassador CHEN Peijie before the Security Council, un Doc. S/ PV.5796 (10 December 2007), 19.
international community could facilitate more transfers from the international to the national level in the first place.25 The very relationship between the icty and domestic jurisdictions was not defined directly by those respective actors. In particular, the pursuit of (inter) national criminal justice in Bosnia and Herzegovina was taking place under the auspices of the Office of the High Representative – an international body that was established via the 1995 Dayton Peace Agreements and that was en- titled to enact legislation for the new republic.26 Moreover, pursuant to the same accords, “[a]ll competent authorities in Bosnia and Herzegovina shall cooperate and provide unrestricted access to […] the International Criminal Tribunal for the Former Yugoslavia (and in particular shall comply with orders issued pursuant to Article 29 of the Statute of the Tribunal)”.27 Since Bosnia and Herzegovina’s judicial system lacked a worthy counterpart to cooperate with the icty, the Office of the High Representative set up the state Court of Bosnia and Herzegovina in 2000,28 the Prosecutor’s Office in the Court of Bosnia and Herzegovina in 200229 and adopted in 2003 the Bosnia and Herzegovina Criminal Code and Criminal Procedure Code, which centralised prosecutorial authority on as well as conferred exclusive jurisdiction over war crimes at the state level. After a new series of laws were adopted by the Office of the High Representative in order to meet the demands of the icty,30 the War Crimes Chamber of the new War Crimes Tribunal of Bosnia and Herzegovina could start operating from May 2005 onwards – following the entry into force of the 2003 laws and their amendments on 6 January 2005.31 The new Chamber could
25 Speech of Chinese ambassador LI Junhua before the Security Council, un Doc. S/PV.5697 (18 June 2007), 29. 26 General Framework Agreement for Peace in Bosnia and Herzegovina (14 December 1995), Annex x. 27 General Framework Agreement for Peace in Bosnia and Herzegovina (14 December 1995), Annex iv, Art. II(8). 28 Law on the Court of Bosnia and Herzegovina (20 November 2000). 29 Law on the Prosecutor’s Office of Bosnia and Herzegovina (6 August 2002). 30 Bosnia and Herzegovina og 61/04: Law on Amendments to the Law on the Court of Bos- nia and Herzegovina; Law on Amendments to the Law of the Prosecutor’s Office of Bosnia and Herzegovina; Law on the Transfer of Cases from the icty to the Prosecutor’s Office of Bosnia and Herzegovina and the Admissibility of Evidence Collected by icty in Proceed- ings before the Courts in Bosnia and Herzegovina; Law on Amendments to the Bosnia and Herzegovina Criminal Code (23 January 2003). 31 See Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Establishment of the Registry for Section i for War Crimes and Section ii for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department
for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina (1 December 2004). 32 Law on Amendments to the Law on the Court of Bosnia and Herzegovina, Art. 65(1) and (4). 33 Speech of Chinese ambassador LI Junhua before the Security Council, un Doc. S/PV.5306 (15 November 2005), 7. 34 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5199 (13 June 2005), 17–18; see also Tarik Abdulhak, “Building Sustainable Capacities – From an International Tribunal to a Domestic War Crimes Chamber for Bosnia and Herzegovina,” International Criminal Law Review 9 (2009): 333–358. 35 Speech of Chinese ambassador GUAN Jian before the Security Council, un Doc. S/PV.5086 (23 November 2004), 19; see also speech of Chinese ambassador GUAN Jian before the Security Council, un Doc. S/PV.5328 (15 December 2012), 29. 36 Speech of Chinese ambassador LA Yifan before the Security Council, un Doc. S/PV.6033 (5 December 2008), 16.
37 Speech of Chinese ambassador LI Junhua before the Security Council, un Doc. S/PV.5563 (8 November 2006), 12. 38 Stabilisation and Association Agreement (saa) between the European Communities and their Member States, of the One Part, and Bosnia and Herzegovina, of the Other Part (16 June 2008), Art. 2. 39 On 22 November 2004, the un Security Council welcomed the eu’s intention to establish its military operation in Bosnia and Herzegovina. See un Doc. S/RES/1575 (22 November 2004). On 25 November 2004, the Council of Europe Union effectively authorised the de- ployment of EUFOR Althea. See Council of the European Union, Council Decision, Doc. 2004/803/CFSP (25 November 2004). 40 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.7307 (11 November 2014), 3.
balanced and cautious approach”. It continued that not only the “spirit of pro- moting reconciliation within Bosnia and Herzegovina and among regional countries” as well as the unity within and amongst the members of the Se- curity Council would be undermined. Achieving harmonious and peaceful coexistence between the ethnic groups would only be possible in respect of the principle of sovereign equality of the nations in the region and through a dialogue of reconciliation while maintaining peace and stability there.41 Against the background of such later developments, China’s earlier cautious and contextual approach was justified. In this regard, on 6 October 2004, the Chinese ambassador to the Security Council, made four key remarks that ought to be taken into account by all shareholders and stakeholders in the transition- al justice process and reconstruction of Bosnia and Herzegovina. Firstly, China underscored to contextualise capacity-building needs – funding, technology and staff alike – of a country recovering from conflict. Secondly, it pointed out that the international community could actively support those coun- tries in the region. Thirdly, while the international community might assist in such transitional justice processes, it ought to, according to China, respect “local customs, cultural traditions, […] the local legal system” as well as the wishes of the local population that were directly affected by such assistance. Fourthly, China argued that the dose of capacity-building by external parties should be “limited to guidance, rather than direction” or “predesigned solu- tions” from above. China concluded that the “fundamental long-term interests of the local population” ought to be served at all times and that principle of non-interference “in internal disputes and difference” ought to be respected.42 The unique context in which China raised its concerns at that time, namely the icty’s completion strategy and establishment of the War Crimes Chamber in Bosnia and Herzegovina and the latter’s initiation of the eu accession pro- cess, involved a number of conflicting relationships behind each of those agen- das that have compromised the respect for the principle of non-interference and judicial sovereignty. In fact, the underlying eu stabilisation and association processes in the former Yugoslavia had subordinated the accountability narra- tive to eu’s economic expansionism and geopolitical power in the region – at the dissatisfaction of Russia and not limited to Kosovo alone. Furthermore, the icty’s completion strategy approved by the Security Council would risk being equally tied to the eu’s ambitions. The underlying moral values of peace and
41 Speech of Chinese Ambassador Mr Liu Jieyi before the Security Council, un Doc. S/ PV.7481 (8 July 2015), 17–18. 42 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5052 (6 October 2004), 21–22.
43 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5052 (6 October 2004), 21–22. 44 Another hybrid criminal justice model was also pursued in the former Yugoslavia, namely in Kosovo. Under auspices of the un Interim Administration Mission in Kosovo (UNMIK) – established by the Security Council on 10 June 1999 (see un Doc. S/RES/1244 (10 June 1999)), it adopted Regulation 2000/6 that entitled the un Special Representative to appoint international judges and prosecutors to domestic courts in Kosovo as well as Regulation 2000/64 that gave him the right to designate a Special Panel with a majority of international judges within the domestic court system of Kosovo to try war crimes cases. China however did not pronounce itself on those particular developments. A priori, China abstained in the vote establishing UNMIK since its purpose could not be to help “locals gain independence” in the first place. See speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.4011 (10 June 1999), 8–9; speech of Chinese am- bassador WANG Yingfan before the Security Council, un Doc. S/PV.4138 (11 May 2000), 23.
45 un Doc. S/RES/1272 (25 October 1999). 46 un Doc. S/RES/1272 (25 October 1999). 47 un Doc. S/RES/1272 (25 October 1999). 48 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.4057 (25 October 1999), 13; see also speech of Chinese ambassador WANG Yingfan be- fore the Security Council, un Doc. S/PV.4180 (28 July 2000), 9. 49 unamet was established by the Security Council on 11 June 1999. See un Doc. S/RES/1246 (11 June 1999). 50 un Doc. S/RES/1264 (15 September 1999). 51 Speech of Chinese ambassador CHEN Xu before the Security Council, un Doc. S/PV.4085 (22 December 1999), 8.
52 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.4265 (26 January 2001), 8. 53 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.4097 (3 February 2000), 18. 54 UNTAET/REG/2000/11 on the Organization of Courts in East Timor (6 March 2000), Sec- tions 10, 15. 55 UNTAET/REG/2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000), Sections 1, 2. 56 UNTAET/REG/2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000), Section 2.
57 UNTAET/REG/2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000), Section 22. 58 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/ PV.4236 (28 November 2000), 15. 59 UNTAET/REG/2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences (6 June 2000), Section 2. 60 UNTAET/REG/2000/16 on the Organization of the Public Prosecution Service in East Timor (6 June 2000), amended by UNTAET/REG/2001/16 on the Establishment of a Tran- sitional Justice Service Commission and on the Amendment of Regulation No 2000/16 of 6 June 2000 on the Organization of the Prosecution Service in East Timor (14 September 2001), Sections 5, 6, 14. 61 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.4165 (27 June 2000), 14. 62 Memorandum of Understanding between the Republic of Indonesia and the United Na- tions Transitional Administration in East Timor regarding Cooperation in Legal, Judi- cial and Human Rights related Matters (mou) (6 April 2000), Sections 1.1, 9.1. See Annie Pohlman, “An Ongoing Legacy of Atrocity: Torture and the Indonesian State,” in Deborah Mayersen and Annie Pohlman, eds., Genocide and Mass Atrocities in Asia: Legacies and Prevention (New York: Routledge, 2013), 39.
63 Sylvia de Bertodano, “East Timor: Trials and Tribulations,” in Cesare P.R. Romano, André Nollkaemper and Jann K. Kleffner, eds., Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford: Oxford University Press, 2004), 87–88. 64 UNTAET/REG/2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor (13 July 2001), Preamble, Section 1. 65 UNTAET/REG/2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor (13 July 2001), Section 4. 66 Luiz Vieira, The cavr and the 2006 Displacement Crisis in Timor-Leste: Reflections on Truth- Telling, Dialogue, and Durable Solutions (New York: International Center for Transitional Justice, 2012), 11. 67 UNTAET/REG/2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor (13 July 2001), Section 31.1. See also Carsten Stahn, “Accom- modating Individual Criminal Responsibility and National Reconciliation: The un Truth Commission for East Timor,” American Journal of International Law 95 (2001): 957–958. 68 Heather Castel, “Maximizing Transitional Justice Opportunities: The Case for East Timor’s cavr,” Deborah Mayersen and Annie Pohlman, eds., Genocide and Mass Atrocities in Asia: Legacies and Prevention (New York: Routledge, 2013), 80. 69 Speech of Chinese ambassador WANG Yingfan before the Security Council, un Doc. S/ PV.4180 (28 July 2000), 9.
While local ownership in the former Yugoslavia as well as East Timor over transitional justice and accountability processes were rather driven by inter- national authorities, the involvement of the international community in other continents was rather the result of the request of domestic authorities wanting to benefit from the capacity-building efforts and resources of the international community on the one hand and to increase their political capital through the process of transitional justice on the other hand. Rather than delegating author- ity benevolently to the national level, those countries where hybrid or interna- tionalised tribunals have been set up, such as in Sierra Leone, Cambodia and Lebanon, have reached out to the international community and sought for their support in their respective national contexts instead. Such distinctive partici- patory model of (inter)national criminal justice differed significantly regarding the cooperation duties of the countries concerned as well as of other members of the international community that were not bound by those bilateral agree- ments between the un and the respective nations. Also their success, legiti- macy and legacy would continue to rely on the overall support of all (regional) states concerned by the investigation and prosecution of international crimes. In this regard, on the West African coast, on 12 June 2000, Sierra Leone, which had suffered from a long-lasting conflict with transnational elements requested the un to join in the creation of an international court that would be competent to address criminal responsibilities regarding the past civil war on its territory.70 Although the Security Council has built up its experience in respect of the establishment of ad hoc tribunals under Chapter vii of the un Charter that would operate as subsidiary organs, prior reservations have in- formed the Council this time to pursue international criminal justice in the same manner.71 Given its concerns with significant levels of impunity reign- ing in Sierra Leone, the Council had requested the un “Secretary-General to negotiate an agreement with the Government of Sierra Leone to create an independent special court”72 and to enquire about the necessity and feasibil- ity to grant expert advice from the ad hoc tribunals instead.73 Finally, on 16 January 2002, the un and the Sierra Leonean government signed a bilateral treaty that set up the Special Court for Sierra Leone (scsl)
70 “Letter of 12 June 2000 from the President of Sierra Leone to the Secretary-General and the Suggested Framework attached to it,” un Doc. S/2000/786, annex. 71 William A. Schabas, The un International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006), 5. 72 un Doc. S/RES/1315 (14 August 2000), para. 1. 73 un Doc. S/RES/1315 (14 August 2000), para. 8(d).
74 Agreement between the United Nations and the Government of Sierra Leone on the Es- tablishment of a Special Court for Sierra Leone (16 January 2002), Preamble. 75 2002 Statute of the Special Court for Siera Leone, Art. 8. 76 Special Court Agreement, 2002 (Ratification) Act, Section 14. 77 2002 Statute of the Special Court for Siera Leone, Art. 12. 78 2002 Statute of the Special Court for Siera Leone, Art. 15. 79 Special Court Agreement, 2002 (Ratification) Act, Section 11(2). 80 Prosecutor v. Kallon and Kamara, Decision on Challenge to Jurisdiction, Special Court for Sierra Leone, Doc. SCSL-2004-15/16-AR72(E) (13 March 2004). 81 2002 Statute of the Special Court for Siera Leone, Art. 22.
President Charles Taylor within the premises of the icc in The Hague. Given Liberia’s involvement in the civil war in Sierra Leone, Liberian perpetrators of international crimes could be held accountable before the Special Court.82 However, the Statute of the Special Court was not designed to accommodate this form of cooperation with the icc. Therefore, a Memorandum of Under- standing was signed between both Courts on 13 April 2006.83 Since the Special Court lacked enforcement authority other than on Sierra Leonean territory,84 on 16 June 2006, the un Security Council stepped in to facilitate the prosecu- tion of Charles Taylor, adopted resolution 1688 and requested “all States to co- operate to this end, in particular, to ensure the appearance of former President Taylor in the Netherlands for purposes of his trial by the Special Court, and encourages all States as well to ensure that any evidence or witnesses are, upon the request of the Special Court, promptly made available to the Special Court for this purpose”.85 Although all members of the Security Council deemed it necessary to hold the trial of Charles Taylor outside Sierra Leone – given the potential negative consequences that his trial would cause to national and regional security and peace, the Russian ambassador to the Council warned that “for the purpos- es of this resolution, action under Chapter vii of the Charter is unique and exceptional in nature, and does not set a precedent for resolving similar issues in the same way”.86 China – paradoxically enough – did not express any res- ervations as to the precedential value of such resolution under Chapter vii. As the actual cooperation with the scsl, the icc, the Liberian authorities – since Charles Taylor was not in their territory – and the Nigerian enforcement authorities – where Charles Taylor was detained – went forward in accordance with resolution 1688, the Security Council praised those countries for their roles in transferring the suspect to The Hague.87 Nonetheless, ever since this adoption of resolution 1688, the Security Council has no longer adopted a Chapter vii resolution in relation to the trial of Charles Taylor to urge
82 Chandra Lekha Sriram and Amy Ross, “Geographies of Crime and Justice: Contemporary Transitional Justice and the Creation of ‘Zones of Impunity’,” International Journal of Transitional Justice 1 (2007): 49–52. 83 Memorandum of Understanding regarding Administrative Arrangements between the International Criminal Court and the Special Court of Sierra Leone (13 April 2006). 84 Kenneth A. Rodman, “Justice is Interventionist: The Political Sources of the Judicial Reach of the Special Court for Sierra Leone,” International Criminal Law Review 13 (2013): 79. 85 un Doc. S/RES/1688 (16 June 2006). 86 Speech of Russian ambassador Dolgov before the Security Council, un Doc. S/PV.5467 (16 June 2006), 2. 87 un Doc. S/RES/1689 (20 June 2006).
continued cooperation among states. Instead, it made a Presidential statement “to support [the] Special Court as it moves into its final stage of work, including by ensuring that the remaining fugitive indictee appears before the Court” – to the satisfaction of the Russian position.88 China has been generally supportive of the role and contribution of the Spe- cial Court to holding the most responsible accountable for serious violations of ihl. In this regard, the Chinese ambassador to the Security Council was also convinced that the trial of Charles Taylor in The Hague would ensure “in- dependent and fair trials help to promote national reconciliation, peace and stability in the region concerned”.89 She particularly appreciated the Court’s efficiency in conducting trials within its completion strategy and had full trust in its legacy issues.90 In this respect, the Security Council commended “the important Outreach activities of the Special Court in bringing its judicial work to the attention of the people of Sierra Leone, and thereby contributing to the restoration of the rule of law throughout the country and region”.91 In this respect, according to the Chinese position, capacity-building activities of the Special Court should continue to bolster domestic judicial institutions. More- over, without the support of other nations, the Special Court would not be able to exercise its mandate efficiently.92 Before the establishment of the scsl, in July 1999, a truth and reconcilia- tion commission (trc) was set up as part of the execution of the 1999 Lomé Peace Accord that put an end to the civil war in Sierra Leone. According to the peace agreement, the trc would “address impunity, break the cycle of violence, provide a forum for both the victims and perpetrators of human rights violations to tell their story, get a clear picture of the past in order to facilitate genuine healing and reconciliation”.93 Moreover, pursuant to the Act that established the trc under Sierra Leonean domestic law, the trc would
88 Speech of President (Belgian) ambassador Luk Verbeke before the Security Council, un Doc. S/PRST/2007/23 (28 June 2007). 89 Speech of Chinese ambassador CHEN Peijie before the Security Council, un Doc. S/ PV.5690 (8 June 2007), 11. 90 Speech of Chinese ambassador CHEN Peijie before the Security Council, un Doc. S/ PV.6163 (16 July 2009), 13. 91 Speech of President (Belgian) ambassador Luk Verbeke before the Security Council, un Doc. S/PRST/2007/23 (28 June 2007). 92 Speech of Chinese ambassador CHEN Peijie before the Security Council, un Doc. S/ PV.5690 (8 June 2007), 11. 93 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (7 July 1999), Art. xxvi. See also Lomé Peace Agreement (Ratifica- tion Act) (22 July 1999), Art. xxvi.
94 2000 Truth and Reconciliation Commission Act, Part iii, 6(1). 95 “Letter dated 31 January 2001 from the President Kishore Mahbubani of the Security Council Addressed to the Secretary-General,” un Doc. S/2001/95 (31 January 2001). See also Philippe Flory, “International Criminal Justice and Truth Commissions: From Strang- ers to Partners?” Journal of International Criminal Justice 13 (2015): 27; William A. Scha- bas, “Conjoined Twins of Transitional Justice? The Sierra Leone Truth and Reconciliation Commission and the Special Court,” Journal of International Criminal Justice 2 (2004): 1090. 96 “Economic and Social Council Press Release on Final Report on Ten-Year Sierra Leone Conflict Published; Seeks to Set Out Historical Record, Offer Guidance for Future,” un Doc. GA/10287 ECOSOC/6140 SC/8227 (27 October 2004). 97 Agreement between the United Nations and the Government of Sierra Leone on the Es- tablishment of a Residual Special Court for Sierra Leone (11 August 2010); See also Fidelma Donlon, “The Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone: Challenges and Lessons Learned for Other International Tribunal,” Journal of International Criminal Justice 11 (2013): 862. 98 Speech of Chinese ambassador GUO Xiaomei before the Security Council, un Doc. S/ PV.6844 (9 October 2012), 16.
Unlike the model of (inter)national criminal justice before the scsl that made a clear distinction between the international and domestic court and legal system,99 the Extraordinary Chambers in the Courts of Cambodia (eccc) were part of the national legal order of Cambodia. In 1997, the Cambodian government requested the un to assist it in the establishment of a criminal tribunal which would try primary suspects of the former Khmer Rouge regime who were involved in the commission of international crimes during their op- pressive rule of the 1970s. However, the un General Assembly – China voted in favour – expressed concerns regarding Cambodia’s respect for the “interna- tional standards of justice, fairness and due process of law”.100 Those concerns already predated in earlier resolutions of the Assembly that took note of the report of the Special Representative on the Situation of Human Rights in Cam- bodia “about the [overall] problem of impunity, the independence of the judi- ciary and the establishment of the rule of law”.101 Consecutively, in its turn, the General Assembly requested the un Secretary-General to conclude an agree- ment with the Cambodian authorities on the establishment of the tribunal. Accordingly, with the adoption of the Agreement between the United Na- tions and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Demo- cratic Kampuchea on 6 June 2003, a compromise was found. Namely, one that reconciled the un’s demands for minimum fair trials with the position of the Cambodian authorities to have a majority of Cambodian judges and prosecutors within the structure and organisation of the domestic courts.102 The Agreement was only ratified by Cambodian constitutional authorities in October 2004.103 While the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Com- mitted During the Period of Democratic Kampuchea – adopted in 2001 and amended in 2004 – would remain the legal basis of the eccc, the Agreement
99 Suzannah Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice,” Criminal Law Forum 12 (2001): 233; Chandra Lekha Sriram, “Wrong-Sizing Inter- national Justice? The Hybrid Tribunal in Sierra Leone,” Fordham International Law Journal 29 (2006): 472–506. 100 un Doc. A/RES/57/228 (18 December 2002), paras. 4, 6. 101 un Doc. A/RES/52/135(1) (27 February 1998), para. 3. 102 Rupert Skilbeck, “Defending the Khmer Rouge,” International Criminal Law Review 8 (2008): 425–427. 103 Report of the Secretary-General on Khmer Rouge Trials, un Doc. A /59/432 (12 October 2004), para. 1.
104 Report of the Secretary-General on Khmer Rouge Trials, un Doc. A /59/432 (12 October 2004), para. 11. 105 2004 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Arts. 9, 11, 16, 18; See also Neha Jain, “Between the Scylla and Charybdis of Prosecution and Reconciliation: The Khmer Rouge Trials and the Promise of International Criminal Justice,” Duke Journal of Comparative and International Law 20 (2010): 256. 106 Hanna Bertelman, “International Standards and National Ownership? Judicial Indepen- dence in Hybrid Courts: The Extraordinary Chambers in the Courts of Cambodia,” Nordic Journal of International Law 79 (2010): 364. 107 Duncan McCargo, “Politics by Other Means? The Virtual Trials of the Khmer Rouge Tribu- nal,” International Affairs 87 (2011): 617–618. 108 John D. Ciorciari and Anne Heindel, “Experiments in International Criminal Justice: Les- sons from the Khmer Rouge Tribunal,” Michigan Journal of International Law 35 (2013– 2014): 373.
Nonetheless, the eccc did succeed in establishing a common history and instilling faith again into the judicial system of Cambodia to a certain extent. Though limited in its capacity-building efforts, the gravity of the structure and operation of the Courts showed proof of the resolve and ability on behalf of the national components of the Courts to proceed in line with the procedures and applicable law before the Courts. All such efforts were relatively well com- municated to the general public through a variety of outreach activities of the eccc.109 Nonetheless, the Public Affairs Section (pas) and the Victims Sup- port Section (vss) lacked sufficient funding to carry out their mandate and not enough coordination with civil society organizations has taken place to explain the mandate of the eccc, its workings and constraints amongst the general public in order to manage their expectations and uphold the legitima- cy of the Courts.110 The outreach activities only aimed at such goals – similar to the Courts’ objective – and would not address transitional justice outside the period concerned before the jurisdiction of the Courts while such factors leading towards the atrocities as well as the aftermath could have presented a greater picture about the events and geopolitics at play in Cambodia then and now.111 Since China has always entertained a good relationship with the Cambo- dian authorities over the course of history – even during the Khmer Rouge regime until today, the Chinese government would be anxious for its previ- ous support to Pol Pot – the leader of the Khmer Rouge – to be scrutinised before the eccc. According to the Chinese view, the Khmer Rouge question remained within the domestic affairs of Cambodia and any attempt to set up a tribunal was perceived as a Western transgression and interference within Cambodia’s internal matters.112 As a result, it has been argued that China at- tempted to prevent an international criminal tribunal to be established under
109 Seeta Scully, “Judging the Successes and Failures of the Extraordinary Chambers of the Courts of Cambodia,” Asian-Pacific Law and Policy Journal 13 (2013): 340, 343–347. 110 Christoph Sperfeldt, “From the Margins of Internationalized Criminal Justice: Lessons Learned at the Extraordinary Chambers in the Courts of Cambodia,” Journal of Interna- tional Criminal Justice 11 (2013): 1116; Alison Kamhi, “Private Funding for Public Justice: The Feasibility of Donations to the Cambodian Tribunal,” Harvard International Law Journal 48 (2007): 584. 111 Alexander Laban Hinton, “Transitional Justice Time: Uncle San, Aunty Yan, and Outreach at the Khmer Rouge Tribunal,” in Deborah Mayersen and Annie Pohlman, eds., Genocide and Mass Atrocities in Asia: Legacies and Prevention (New York: Routledge, 2013), 92. 112 Kelly Whitley, “History of the Khmer Rouge Tribunal: Origins, Negotiations, and Estab- lishment,” in John D. Ciorciari, ed., The Khmer Rouge Tribunal (Phnom Penh: Documenta- tion Center of Cambodia, 2006), 50.
Chapter vi or vii of un Charter by the Security Council.113 In this present case, the General Assembly instead had seized the matters and dealt with the cre- ation of the eccc directly since it had already reviewed within its siege the broader human rights situation in Cambodia and had supported “the imple- mentation of the Paris [Peace] Agreement”.114 Nevertheless, China did vote in favour of the adoption of the un General Assembly’s resolution that laid down the foundation for negotiating the un-Cambodian Agreement on the estab- lishment of the eccc in the first place.115 The following un General Assembly resolution that included in its Annex the draft un-Cambodian Agreement was adopted without a vote.116 The particular international, regional and domestic situation preceding and following the assassination of the former Lebanese Premier Rafik Bahaa-Edine Hariri on 14 February 2005 made it difficult to reach such consensus to estab- lish the last of a series of un hybrid criminal tribunals, namely the Special Tribunal for Lebanon. In this respect, immediately following the killings in Beirut, the Security Council made a statement condemning the terrorist acts and called upon the un Secretary-General “to report urgently on the circum- stances, causes and consequences of this terrorist act”. From the beginning, unanimity amongst the members of the Council appeared to be present in re- sponse to these events, namely “to bring to justice the perpetrators, organizers and sponsors of this heinous terrorist act [and] to cooperate fully in the fight against terrorism”.117 A fact-finding mission to Lebanon was thus mandated by the Secretary-General and concluded that “it would be a violation of the basic principles of justice to jump to conclusions about the perpetrators of the as- sassination without proper investigation, convincing evidence and a proper trial”.118 It was equally important here for the rule of law to be respected when identifying the alleged perpetrators or those who had ordered and planned the heinous crimes. Absent a satisfactory and independent investigation on behalf
113 Craig Etcheson, “The Politics of Genocide Justice in Cambodia,” in Cesare P.R. Romano, André Nollkaemper and Jann K. Kleffner, eds., Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia, (Oxford: Oxford University Press, 2004), 195. 114 Giorgia Tortora, “The Financing of the Special Tribunals for Sierra Leone, Cambodia and Lebanon,” International Criminal Law Review 13 (2013): 107. 115 un Doc. A/RES/57/228 (18 December 2002). See also un Doc. A/57/PV.77 (18 December 2002). 116 un Doc. A/RES/57/228 B (22 May 2003). 117 un Doc. S/PRST/2005/4 (15 February 2005). 118 Peter FitzGerald, “Report of the Fact-finding Mission to Lebanon Inquiring into the Causes, Circumstances and Consequences of the Assassination of Former Prime Minister Rafik Hariri,” un Doc. S/2005/203 (24 March 2005), para. 15.
119 un Doc. S/RES/1595 (7 April 2005). 120 Detlev Mehlis, “Report of the International Independent Investigation Commission es- tablished pursuant to Security Council resolution 1595 (2005),” un Doc. S/2005/662 (19 October 2005), paras. 219, 222. 121 un Doc. S/RES/1636 (31 October 2005). 122 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.5297 (31 October 2005), 8.
123 un Doc. S/RES/1644 (15 December 2005). 124 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5329 (15 December 2005), 3. 125 un Doc. S/RES/1664 (29 March 2006). 126 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.5404 (30 March 2006), 21. 127 un Doc. S/RES/1664 (29 March 2006). 128 2007 Statute of the Special Tribunal for Lebanon, Arts. 8.1, 9.3.
129 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon (6 February 2007), Art. 2.5(a)–(b). 130 2007 Statute of the Special Tribunal for Lebanon, Arts. 11.3, 11.4. 131 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon (6 February 2007), Art. 3(2)–(3). 132 2007 Statute of the Special Tribunal for Lebanon, Art. 11.5. 133 Domestically, the ratification process of the agreement witnessed strong opposition with- in the Lebanese parliament that prevented the formal ratification of the agreement. On 14 May 2007, the Lebanese Prime Minister requested the un Secretary-General to put his request to Security Council to give further effect to the Special Tribunal in order to avoid experiencing delays in the establishment of the Tribunal given the stalemate in the do- mestic legislative process that jeopardised the internal stability of Lebanon at the same time. See un Doc. S/2007/281 (16 May 2007). 134 un Doc. S/RES/1757 (30 May 2007); Agreement between the United Nations and the Leba- nese Republic on the Establishment of a Special Tribunal for Lebanon (6 February 2007), Art. 19.
override Lebanon’s legislative organs by arbitrarily deciding on the date of the entry into force of the draft statute. This move will give rise to a se- ries of political and legal problems that are likely to add to the uncertain- ty surrounding the already turbulent political and security situation in Lebanon and create a precedent of Security Council interference in the domestic affairs and legislative independence of a sovereign State. Such actions are likely to undermine the authority of the Council, as they are not in conformity with the long-term interests of either of the parties.136
Despite these procedural reservations concerning the establishment of the stl, the Statute made particular reference to the applicable law before the Tribunal, namely Lebanese criminal law alone137– unlike the hybrid nature of the applicable law before other internationalised tribunals that also have ju- risdiction over international crimes.138 Such reaffirmation of Lebanon’s sover- eign legal order removed much of the doubts about unwarranted interference within these domestic legislative processes.139 Regarding personal jurisdiction, the Tribunal would have jurisdiction over those responsible for the February 2005 attack or any other crime of such similar intent, nature, purpose pat- tern and perpetrators connected to this first attack could be tried before the
135 Bardo Fassbender, “Reflections on the International Legality of the Special Tribunal for Lebanon,” Journal of International Criminal Justice 5 (2007): 1105. 136 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.5685 (30 May 2007), 4. 137 2007 Statute of the Special Tribunal for Lebanon, Art. 2. 138 Marko Milanović, “An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon,” Journal of International Criminal Justice 5 (2007): 1141–1142; Nidal Nabil Jurdi, “The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon,” Journal of International Criminal Justice 5 (2007): 1128. 139 Choucri Sader, “A Lebanese Perspective on the Special Tribunal for Lebanon: Hopes and Disillusions,” Journal of International Criminal Justice 5 (2007): 1087.
Tribunal under the Lebanese penal code alone.140 The Tribunal would have primacy over the domestic Lebanese courts for domestic crimes that fall with- in its jurisdiction.141 Moreover, the government of Lebanon would “cooperate with all organs of the Special Tribunal [and] comply without undue delay with any request for assistance by the Special Tribunal or an order issued by the Chambers”.142 Unlike the cooperation obligations that the Security Council be- stowed upon third states including Syria to work together with the investiga- tion led by the Commission, it did not extend such obligations concerning the efficient functioning of the Tribunal itself.143 The costs, however, from a Chi- nese perspective, namely the erosion of the authority of the Security Council and the legislative sovereignty of Lebanon, would ultimately compromise the actual functioning of the Tribunal. Despite the well-intended efforts of the international community to support domestic calls for accountability that have resulted in the establishment of dis- tinctive hybrid criminal tribunals, the actual realisation of international(ised) criminal justice must continue to take into account the ever-changing domes- tic political processes. Without respect for the principle of non-interference in the first place, countries in transition will continue to cherish anxieties vis-à-vis the international community’s intervention in their post-conflict en- vironment. The latest intervention of the un Human Rights Council has con- firmed such fears. In this regard, following the end of Sri Lanka’s civil war in 2009, where the central government crushed the Tamil Tigers, in March 2012, the un Human Rights Council rather than the Security Council called for a credible domestic investigation into ihl and human rights law violations that were committed in the course of the non-international armed conflict and even for an independent international enquiry given Sri Lanka’s failure to start with the former.144 On two occasions did China vote against the Human Rights Council’s resolutions calling for such initiatives.145 An international investigation carried out by the un High Commissioner for Human Rights (unhchr)146 as mandated by the Human Rights Council in March 2014147
140 2007 Statute of the Special Tribunal for Lebanon, Art. 1. 141 2007 Statute of the Special Tribunal for Lebanon, Art. 4. 142 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon (6 February 2007), Art. 15. 143 Bert Swart, “Cooperation Challenges for the Special Tribunal for Lebanon,” Journal of In- ternational Criminal Justice 5 (2007): 1156–1157. 144 un Doc. A/HRC/25/1 (27 March 2014). 145 un Doc. A/HRC/19/2 (22 March 2012); un Doc. A/HRC/25/1 (27 March 2014). 146 See report of the unhchr, un Doc. A/HRC/30/CRP.2 (16 September 2015). 147 un Doc. A/HR25/L.1/ Rev.1 (26 March 2014).
148 Matthias Vanhullebusch and Nadarajah Pushparajah, “The Politics of Prosecution of In- ternational Crimes in Sri Lanka,” Journal of International Criminal Justice 14 (2016): 1249. 149 un Doc. A/HRC/30/CRP.2 (16 September 2015), paras. 2 and 1246. 150 lmg Statement Delivered by India, ‘Agenda Item 10: Technical Assistance and Capacity Building – General Debate’, Human Rights Council (30 September 2015), 30th Session, 38th Meeting; see also lmg Statement Delivered by India, ‘Agenda Item 10: Technical As- sistance and Capacity Building – General Debate’, Human Rights Council (23 March 2016), 31st Session, 61st Meeting.
It was not until the 1990s – after the Cold War – that the international com- munity decided to investigate again and on its own, the commission of inter- national crimes, such as genocide, war crimes and crimes against humanity, and prosecute and try the perpetrators. In this regard, under its mandate to restore and maintain international peace and security,151 the Security Council has set up two subsidiary organs to that effect, namely the ad hoc international criminal tribunals, i.e. the icty and ictr, who were directly responsible to the Council. These international tribunals had concurrent jurisdiction with domestic courts in the former Yugoslavia and Rwanda and were operating via the principle of primacy over those national jurisdictions.152 In light of the later developed completion and outreach strategy, the Security Council has been supportive of domestic prosecution for B-listed perpetrators of such international crimes who could also be deferred from the international to the national level. Furthermore, the ad hoc tribunals had to cooperate in the meantime with the states on whose territory those crimes have been commit- ted and where suspects have been residing during and ever since the end of the respective conflicts in the Balkans and Central African region. Without their
151 1945 un Charter, Art. 24. 152 1993 icty Statute, Art. 9; 1994 ictr Statute, Art. 8. It should be noted that the scsl also operated upon the same basis, yet it was established by an international treaty unlike the icty and ictr that were authorised by the Security Council under Chapter vii of the un Charter. See 2002 Statute of the Special Court for Sierra Leone, Art. 8.
153 un Doc. S/RES/827 (25 May 1993). 154 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.3217 (25 May 1993), 33–34. 155 un Doc. S/RES/955 (8 November 1994).
156 Speech of Rwandan ambassador Manzi Bakuramutsa before the Security Council, un Doc. S/PV.3453 (8 November 1994), 15. 157 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.3453 (8 November 1994), 11. 158 un Doc. S/935 (1 July 1994). 159 un Doc. S-3/1 (25 May 1994). 160 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.3400 (1 July 1994), 7.
rendering legal findings rather than solely establishing the facts.161 Here too, from the Chinese relational perspective, the institutional relationship between the Security Council and other un human rights agencies should develop in accordance with their respective mandates. Interference in each other’s pre- rogatives might have compromised their future cooperation and thus their long-term and sustainable relationship as well as the legitimacy of those dis- tinctive un bodies. Almost one year after the conflict, those initial objections on behalf of the Rwandan government had gradually disappeared. The latter supported the new resolution 978 of the Security Council that called upon all states to arrest and detain suspected criminals to be tried before the ictr and other domestic criminal jurisdictions.162 Their arrest would be a clear signal in the fight against impunity in the region and a deterrence for criminals in other countries – especially those criminal refugees from Rwanda in neighbouring countries who in the meantime were being trained to attack Rwanda again, according to the Rwandan ambassador.163 Against such background, the Chinese ambas- sador was convinced that the assistance of the international community as requested by the Rwandan government would enable the country “to address the problems left over from the recent tragedy and to prevent criminals from remaining at large” which could undermine the early efforts towards national reconciliation.164 Five years since its establishment both the icty and the former Yugoslavia have undergone tremendous changes. The improved cooperation with the re- spective countries facilitated the operation of the Tribunal and its ability to bring more cases to trial. The Security Council approved the creation of a third Trial Chamber to avoid a backlog in the judicial proceedings before the Court.165 China supported such efficient dealings of the Tribunal, yet it maintained its reservations as to the legal foundation to set up the Tribunal under Chapter vii of the un Charter.166 Similarly, China fully supported the establishment
161 Larissa J. van den Herik, “An Inquiry into the Role of Commissions of Inquiry in Interna- tional Law: Navigating the Tensions between Fact-Finding and Application of Interna- tional Law,” Chinese Journal of International Law 13 (2014): 531. 162 un Doc. S/RES/978 (27 February 1995). 163 Speech of Rwandan ambassador Manzi Bakuramutsa before the Security Council, un Doc. S/PV.3504 (27 February 1995), 4–5. 164 Speech of Chinese ambassador LI Zhaoxing before the Security Council, un Doc. S/ PV.3504 (27 February 1995), 2. 165 un Doc. S/RES/1166 (13 May 1998). 166 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.3978 (13 May 1998), 9.
167 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.5453 (30 April 1998), 7; see also speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/PV.3978 (13 May 1998), 9. 168 Speech of Chinese ambassador WANG Yingfan before the Security Council, S/PV.4429 (27 November 2001), at 23. 169 un Doc. S/RES/1503 (28 August 2003). 170 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un Doc. S/ PV.4838 (9 October 2003), 21. 171 Speech of Chinese ambassador GUAN Jian before the Security Council, un Doc. S/ PV.4999 (Resumption 1) (29 June 2004), 5. 172 un Doc. S/RES/1966 (22 December 2010).
173 Speech of Chinese ambassador GUO Xiaomei before the Security Council, un Doc. S/ PV.6545 (6 June 2011), 20. 174 Speech of Chinese ambassador CHEN Peijie before the Security Council, un Doc. S/ PV.5796 (10 December 2007), 19. 175 Speech of Chinese ambassador LI Yongsheng before the Security Council, S/PV.7192 (5 June 2014), at 20. 176 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.5594 (15 December 2006), 18. 177 Speech of Chinese ambassador ZHANG Yishan before the Security Council, un doc. S/ PV.4838 (9 October 2003), 20. 178 Speech of Chinese ambassador LI Yongsheng before the Security Council, un Doc. S/ PV.7192 (5 June 2014), 20. 179 un Doc. S/RES/1207 (17 November 1998).
180 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.3944 (17 November 1998), 2–3. 181 Speech of Chinese ambassador SHEN Guofang before the Security Council, un Doc. S/ PV.4063 (10 November 1999), 8. 182 Speech of Chinese ambassador CHEN Xu before the Security Council, un Doc. S/PV.4150 (2 June 2000), 15–16. 183 Richard J. Goldstone and Adam M. Smith, International Judicial Institutions: The Architec- ture of International Justice at Home and Abroad (New York: Routledge, 2009), 102; Victor Peskin, “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the Inter- national Criminal Tribunals for the Former Yugoslavia and Rwanda,” Journal of Human Rights 4 (2005): 228.
A Negotiating the Rome Statute Though not a party to the 1998 Rome Statute, China has been a staunch supporter of the establishment of the icc operating under the principle of complementarity.184 China emphasised that the drafting process of the Rome Statute should enjoy the greatest participation of states – especially develop- ing countries – to live up its universal aspirations.185 The Chinese representa- tive in the negotiation process made some critical remarks about the content and conditions to apply the principle of complementarity in the operation- alisation of the future Court: firstly, the evaluation of the admissibility of a particular case before the icc would test the sovereign prerogative of a state’s willingness or ability to hold a trial against potential suspects of international crimes falling within the jurisdiction of the Court – even for non-state parties to the Rome Statute; secondly, the ambition of the Rome Statute to include a definition on the crime of aggression would remove those prerogatives to in- terpret threats to and breaches of international peace and security away from the Security Council into the hands of a college of judges; thirdly, the authority of the icc Prosecutor to investigate situations independently would be a far- reaching way to trigger the jurisdiction of the Court in the first place. Those
184 Jianping Lu and Zhixiang Wang “China’s Attitude Towards the icc,” Journal of Internation- al Criminal Justice 3 (2005): 609. See also speech of Chinese representative CHEN Shiqui on the Establishment of an International Criminal Court before the Sixth Committee of the un General Assembly, un Doc. A/C.6/50/SR.25 (30 October 1995), para. 74; un Gen- eral Assembly, 68th Session, Report of the International Criminal Court, Agenda Item 75, “Statement by Mr. Huang Huikang Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs of China” (31 October 2013). 185 Speech of Chinese representative CHEN Shiqui on the Establishment of an Interna- tional Criminal Court before the Sixth Committee of the un General Assembly, un Doc. A/C.6/51/SR.28 (31 October 1996), para. 99.
B Prosecution of Nationals of Non-icc Members The efforts undertaken by the Security Council are not limited to preserve and restore peace and humanity in those hot spots across the globe. The Council
186 Speech of Chinese representative QU Wensheng on the Establishment of an Interna- tional Criminal Court before the Sixth Committee of the un General Assembly, un Doc. A/C.6/53/SR.9 (4 November 1998), paras. 38, 40, 42; speech of Chinese representative GAO Feng on the Establishment of an International Criminal Court before the Sixth Commit- tee of the un General Assembly, un Doc. A/C.6/54/SR.13 (8 November 1999), para. 8. 187 Speech of Chinese ambassador WANG Guangyu at the United Nations Diplomatic Con- ference of Plenipotentiaries on the Establishment of an International Criminal Court, un Doc. A/CONF.183/SR.3, Vol. ii, (16 June 1998), paras. 35–38. 188 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6849 (17 October 2012), 12. 189 Dan Zhu, “China, the International Criminal Court, and International Adjudication,” Netherlands International Law Review 61 (2014): 54. 190 Dan Zhu, “China, the Crime of Aggression, and the International Criminal Court,” Asian Journal of International Law 5 (2015): 100–101.
191 Dan Sarooshi, The United Nations and the Development of Collective Security: The Delega- tion by the un Security Council of its Chapter vii Powers (Oxford: Oxford University Press, 2000), 89. 192 1945 un Charter, Art. 39. 193 un Doc. S/RES/1593 (31 March 2005). 194 un Doc. S/RES/1970 (26 February 2011). 195 un Doc. S/RES/1556 (30 July 2004). China abstained in this vote. It argued that the time was not right to adopt such kind of resolutions. See Nsongurua J. Udombana, “When Neutrality Is a Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Su- dan,” 27 Human Rights Quarterly (2005): 1149. Many have argued that China’s oil inter- ests in the region prevented it to denounce the Khartoum regime and loose its support accordingly. See Kenneth A. Rodman, “Darfur and the Limits of Legal Deterrence,” Human Rights Quarterly 30 (2011): 555; Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism,” Human
Rights Quarterly 31 (2009): 646–647. Others, on the other hand, highlighted that the de- clining ties between oil-rich rogue regimes and Western powers – due to the former’s politically risky environment, have created a vacuum that China was able and willing to fill. See Philip Andrews-Speed and Ronald Dannreuther, China, Oil and Global Politics (London: Routledge, 2011), 156. 196 Yihdego Zeray, “Darfur and Humanitarian Law: The Protection of Civilians and Civilian Objects,” 14 Journal of Conflict and Security Law 14 (2009): 45–46. 197 un Doc. S/RES/1564 (18 September 2004). China abstained in the vote arguing that such steps would rather discourage the government of Sudan to cooperate with the interna- tional community and the African Union in solving the conflict peacefully. See speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5040 (18 September 2004), 4. 198 Report of the International Commission of Inquiry on Darfur to the United Nations Secre- tary-General pursuant to Security Council Resolution 1564 of 18 September 2004 (Geneva, 25 January 2005), para. 75. 199 un Doc. S/RES/1593 (31 March 2005). With the adoption of the Rome Statute of the icc, China and the us were amongst the 7 countries that voted against. China argued that the imposition of obligations upon non-member states to the Rome Statute as well as the icc’s interference in the judicial sovereignty of a nation obliged it to vote against its adoption. See Andrea Birdsall The International Politics of Judicial Intervention: Creating a More Just Order (London: Routledge, 2009), 122. 200 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.5158 (31 March 2005), 5.
201 un Doc. S/RES/1591 (29 March 2005). See speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/PV.5153 (29 March 2005), 4–5. 202 unmis was established by the Security Council on 24 March 2005. See un Doc. S/RES/1590 (24 March 2005). 203 Bingbing Jia, “China and the International Criminal Court: The Current Situation,” Singa- pore Yearbook of International Law 10 (2006): 1. 204 Yue Ren, “Da er fu er: Buganshe Neizheng Yuanze he Buchongxing Yuanze de Chongtu yu Quanheng (‘Darfur: The Conflict and Trade-off of the Principle of Complementarity and Non-intervention of Internal Affairs’),” Taipingyang Xuebao (Pacific Journal) 11 (2009): 32– 40; Hongwu Liu and Meng Wang, “Guoji Xingshi Fayuan yu Sudan Daer Fuer Wenti (‘icc and Darfur Issue in Sudan’),” Zhejiang Shifan Daxue Xuebao Shehui Kexueban (Journal of Zhejiang Normal University (Social Sciences)) 6 (2008): 1–6; Lijun Yang, “Anlihui Xiangguo- ji Xingshi Fayuan Yijiao Daer Fuer Qingshi de Falv Wenti (‘Legal Issues of the un Security Council’s Referral of the Situation in Darfur to the International Criminal Court’),” Huan- qiu Falv Pinglun (Global Law Review) 4 (2006): 457–468; Luigi Condorelli and Annalisa Ci- ampi, “Comments on the Security Council Referral of the Situation in Darfur to the icc,” Journal of International Criminal Justice 3 (2005): 593; Xiumei Wang, “Cong Sudan Qingshi Fenxi Guoji Xingshi Fayuan Guanxiaquan de Buchongxing Yuanze (‘The Supplementary Rules of the Jurisdiction of International Criminal Court: An Analysis from the Angle of the Situation in Sudan’),” Xiandai Faxue (Modern Law Science) 6 (2005): 180–186. 205 Statement by the President (Russian) Vitaly Churkin of the Security Council, un Doc. S/PRST/2007/2 (16 January 2007).
“create the security conditions conducive to a voluntary, secure and sustain- able return of refugees and displaced persons, inter alia by contributing to the protection of refugees, displaced persons and civilians in danger, by facilitat- ing the provision of humanitarian assistance in eastern Chad and the north- eastern Central African Republic and by creating favourable conditions for the reconstruction and economic and social development of those areas”. In the same resolution, the Council – acting under Chapter vii of the un Charter – also authorised the deployment of a military operation led by the eu to protect the civilian population as well as humanitarian relief personnel and un staff and facilities.206 Ever since the spill-over and internationalisation of the crisis in Sudan to its neighbouring states, China adopted a disengagement strategy and did not further comment on the situation in Chad and the Central African Republic as a result. After lengthy investigations by the icc Prosecutor, the Pre-trial Chamber of the icc confirmed the charges of genocide, crimes against humanity and war crimes against a number of high-ranking officials within the Sudanese govern- ment including the sitting President Omar al-Bashir and issued the first war- rant of arrest on 4 March 2009 and a second one on 12 July 2010.207 Meanwhile, China – concerned with its international image – in the run up to the Beijing Olympics had changed its stance on resolving the Darfur crisis and advised the Sudanese government to start negotiating with the rebels and continue an open dialogue with the un authorities.208 While it has lost its battle on an inter- national investigation and prosecution of a sitting head of state at the expense of its principle of national judicial sovereignty, China thus removed its atten- tion back to the humanitarian conditions of the civilian population of Darfur and the necessity to improve their fate.209 In this respect, the establishment of the hybrid United Nations – African Union Mission in Darfur (unamid) on 31 July 2007,210 according to China, would give a new impetus to address the secu- rity, stability and humanitarian assistance in the long-term aside the ongoing
206 un Doc. S/RES/1778 (25 September 2007). 207 icc, “Darfur, Sudan Background Information,” http://www.icc-cpi.int/en_menus/icc/ situations%20and%20cases/situations/situation%20icc%200205/background%20 information/Pages/default.aspx (accessed 1 June 2017). 208 Yun Sun, “Syria: What China Has Learned from its Libya Experience,” Asia Pacific Bulletin 152 (2012): 1. 209 Ian Taylor, China’s New Role in Africa (Boulder, Colorado: Lynne Rienner, 2009), 50–54. 210 unamid was established by the Security Council on 31 July 2007. See un Doc. S/RES/1769 (31 July 2007).
211 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.5727 (31 July 2007), 10. China was also the first country outside Africa that sent troops to the hybrid mission. See Jochen Prantl and Ryoko Nakan, “Global Norm Diffusion in East Asia: How China and Japan Implement the Responsibility to Protect,” International Rela- tions 25 (2011): 214. 212 James Meernik, “Justice, Power and Peace: Conflicting Interests and the Apprehension of icc Suspects,” International Criminal Law Review 13 (2013): 188–189. 213 Catherine Gegout, “The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace,” Third World Quarterly 34 (2013): 810. 214 un Doc. S/RES/1591 (29 March 2005). 215 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.5153 (29 March 2005), 5. 216 Speech of Chinese ambassador WANG Guangya before the Security Council, un Doc. S/ PV.5784 (27 November 2007), 16. 217 Speech of Chinese ambassador LIU Zhenmin before the Security Council, un Doc. S/ PV.5789 (5 December 2007), 11.
218 icc, “icc Prosecutor Presents Case Against Sudanese President,” 14 July 2008, http://www .icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%20 0205/press%20releases/Pages/a.aspx (accessed 1 June 2017). 219 “China Warns Against Damaging Darfur Peace Process,” 29 July 2008, http://lr.china -embassy.org/eng/majorevents/t479087.htm (accessed 1 June 2017). 220 “Foreign Ministry Spokesperson Qin Gang’s Remarks on the Issuance of Arrest Warrant to Sudanese President by the International Criminal Court,” 7 March 2009, http://zm.china -embassy.org/eng/fyrth/t540971.htm (accessed 1 June 2017). 221 Ibid. 222 un Doc. S/RES/1970 (26 February 2011). This resolution also laid down the foundation to operationalise R2P. 223 Speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/ PV.6491 (26 February 2011), 4.
224 Shogo Suzuki, “Why Does China Participate in Intrusive Peacekeeping? Understanding the Paternalistic Chinese Discourses on Development and Intervention,” International Peacekeeping 18 (2011): 271–272. See also Courtney J. Richardson, “A Responsible Power? China and the un Peacekeeping Regime,” International Peacekeeping 18 (2011): 286. 225 More than 30.000 Chinese were working at the time of the Libyan crisis in particular in the oil-related industries. Securing their safety, according to China, was an essential mo- tivation for it to support this decisive action of the Security Council. See speech of Chi- nese ambassador LI Baodong before the Security Council, un Doc. S/PV.6491 (26 February 2011), 4. 226 State Council Information Office, China’s Peaceful Development (6 September 2011): “The internal affairs of a country should be decided by its own people, international affairs should be decided by all countries through consultation on an equal footing, and every country’s right to equally participate in international affairs should be respected and upheld […] China respects the right of the people of other countries to independently choose their own social system and path of development, and does not interfere in other countries’ internal affairs.” 227 Chinese Ministry of Foreign Affairs, “Wu Sike, China Special Envoy for Middle Eastern Affairs, Interview with Egyptian ‘Pyramid’ Newspaper,” 27 July 2011, http://www.fmprc.gov .cn/mfa_chn/ywcf_602274/t843153.shtml (accessed 1 June 2017). 228 See also Ann Kent, “Compliance v Cooperation: China and International Law,” Australian International Law Journal 13 (2006): 30.
229 Konstantin Antipov, “Events in the Arab East and China’s Position,” Far Eastern Affairs 40 (2012): 9. 230 Chinese Ministry of Foreign Affairs, “Deputy Representative Wang Ming’s Statement to the United States on the icc,” 2 November 2011, http://www.fmprc.gov.cn/mfa_chn/ dszlsjt_602260/t873328.shtml (accessed 1 June 2017); Chinese Ministry of Foreign Affairs, “Deputy Representative Wang Min’s Statement to the United Nations on the icc and Libya,” 16 May 2012, http://www.fmprc.gov.cn/mfa_chn/zwbd_602255/t932570.shtml (ac- cessed 1 June 2017). 231 See Charles C. Jalloh, Dapo Akande and Max du Plessis, “Assessing the African Union Con- cerns about Article 16 of the Rome Statute of the International Criminal Court,” African Journal of Legal Studies 4 (2011): 5. 232 au Assembly’s Decision on the Application by the International Criminal Court (icc) Prosecutor for the Indictment of the President of the Republic of the Sudan, 12th Ordi- nary Session, Doc. Assembly/AU/Dec.221(XII) (1–3 February 2009), para. 6. 233 Decision on the meeting of African States Parties to the Rome Statute of the Interna- tional Criminal Court (icc), 13th Ordinary Session of the Assembly of the au, Doc. Assembly/AU/13(XIII) (1–3 July 2009); Decision on the Progress Report of the Commission on the Implementation of Decision Assembly/AU/Dec.270(XIV) on the Second Ministe- rial Meeting on the Rome Statute of the International Criminal Court (icc), 15th Ordinary Session of the Assembly of the au, Doc. Assembly/AU/10(XV) (25–27 July 2010).
regional peace and security even through international criminal justice. How- ever, its “position on international judicial bodies remains unchanged”.234 Similarly to the cooperation challenges faced by the ad hoc tribunals, coop- eration with non-member states to the icc Statute was equally subject to the divergent tension on the realisation of communitarian goals of global justice and the respect for the political independence of those nations entertaining economic and diplomatic relationship with those states subject to the jurisdic- tion of the Court. Those relationships could either be framed within or outside regional organisations. The latter has been instrumental on the European con- tinent to incentivise and/or pressurise Balkan nations to collaborate with the investigation and prosecution of the accused before the Yugoslav Tribunal in light of their further integration in the economic and political sphere of the eu. Outside such European context, however, integrative forces had less im- portance when it came to regional spheres of influence; but states requested to cooperate have balanced both the interests of the nation subject to the ju- risdiction of the icc and the overall interests of the international community of states and its leading protagonists advancing or shielding suspects from the Court’s jurisdiction. Such centrifugal elements have undermined the strategies of the Court to pursue its global justice agenda, yet its forceful determination has often been to the detriment of its legitimacy and overall credibility. Such defence of universalistic international criminal justice only recognised local justice efforts periodically.235 While acting within the legal confines and po- litical parameters of its mandate, the Court has failed to properly balance and understand the competing interests of (non-)member states, the international community and the accused, between peace and justice.236 As a result, cooperation duties from both member and non-member states would have been secured if the Court would equally be committed to engage legitimately with the concerns of the international society and its members rather than justifying its actions from a formalistic and legalistic point of view and demonstrate an ability to seek political compromise.237 Therefore, the
234 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7059 (14 November 2013), 15. 235 Frédéric Mégret, “What Sort of Global Justice is ‘International Criminal Justice’?” Journal of International Criminal Justice 13 (2015): 85. 236 Steven C. Roach, “The Turbulent Politics of the International Criminal Court,” Peace Re- view: A Journal of Social Justice 23 (2011): 546. 237 John M. Czarnetzky and Ronald J. Rychlak, “An Empire of Law? Legalism and the Inter- national Criminal Court,” Notre Dame Law Review 79 (2003): 61; Allison Marston Danner,
activities of the icc could go beyond punitive justice and promote restorative as well as transitional justice focusing thus on the reconciliatory aspects that states in transition ought to enjoy to move forward.238 In this respect, even in the case of Security Council’s referral of the Darfur situation, investigations ini- tiated on behalf of the Sudanese government might compromise admissibility issues concerning the jurisdiction of the icc in spite of the Security Council’s referrals. The Court in light of its mandate should equally be favourable to such efforts and find ways to assist those domestic processes towards accountability to develop in accordance with the rule of law.239 In the particular Libyan situa- tion, the intention of the Libyan authorities to prosecute Kaddafi’s son should equally be embraced as a matter of implementing the principle of comple- mentarity proactively even towards non-member states to the Rome Statute with the reassurance that the Court exercised its jurisdiction in cooperation with domestic states willing and able to achieve (transitional) justice on their own sovereign terms – especially for those nations which were not a party to the Rome Statute.240 While Libya has been a legal testing ground to advance both R2P and icc referrals aiming at the replacement and prosecution of its leaders, Syria would not longer be the site where such experiments could alter the development
“Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the Interna- tional Criminal Court,” American Journal of International Law 97 (2003): 536–537. 238 Jeremy Sarkin, “Enhancing the Legitimacy, Status, and Role of the International Criminal Court Globally by Using Transitional Justice and Restorative Justice Strategies,” Interdisci- plinary Journal of Human Rights Law 6 (2011–2012): 90. 239 Rosana Lipscomb, “Restructuring the icc Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan,” Columbia Law Review 106 (2006): 204. 240 Brendan Leanos, “Cooperative Justice: Understanding the Future of the International Criminal Court through its Involvement in Libya,” Fordham Law Review 80 (2011–2012): 2302; John J. Liolos, “Justice for Tyrants: International Criminal Court Warrants for Gad- dafi Regime Crimes,” Boston College International and Comparative Law Review 35 (2012): 594; Frédéric Mégret and Marika Giles Samson, “Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials,” Journal of International Criminal Justice 11 (2013): 575; Yuguan Yang, “Guoji Xingshi Fayuan Guanxiaquan Tanjiu: Yi Libiya Qingshi Weishijiao (‘Study on the icc’s Jurisdiction: From the Perspective of the Libya War’),” Beifang Faxue (Northern Legal Science) 2 (2012): 72–78. Following the release of Mr. Saif Al-Islam Kaddafi from a Libyan prison on 9 June 2017, the icc Prosecutor repeated her call for the arrest and surrender of the suspect to the icc. See icc, “icc Prosecutor Calls for the Immediate Arrest and Surrender of the Suspects,” 14 June 2017, https://www.icc -cpi.int/Pages/item.aspx?name=170614-otp-stat (accessed 21 June 2017).
241 Libin Wu, “Lianheguo Anlihui dui Guoji Xingshi Fayuan Guanxiaquan de Xianzhi (‘The Limits of Jurisdiction of the International Criminal Court by the United Nations Security Council’),” Zhengfa Luntan (Tribune of Political Science and Law) 1 (2017): 88–97; Carsten Stahn, “Syria and the Semantics of Intervention, Aggression and Punishment: On ‘Red Lines’ and ‘Blurred Lines’,” Journal of International Criminal Justice 11 (2013): 955–977; Dapo Akande, “The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits,” 1 Journal of International Criminal Justice (2003): 618–650. 242 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.7180 (22 May 2014), 13–14.
C The Proprio Motu Powers of the icc Prosecutor So far, the majority of situations before the icc have been brought before it through a referral of the states parties to the Rome Statute243 or a referral by the Security Council.244 That being said, the Court’s jurisdiction was also triggered by the exercise of the proprio motu powers of the icc Prosecutor pursuant to Article 13(c) and 15 of the Rome Statute. The most notorious case where the icc Prosecutor had exercised such powers accordingly concerned the situation of Kenya. In this regard, since the post-electoral violence of December 2007 in Kenya, icc Prosecutor Luis Moreno O’Campo decided to initiate investigations into the crimes which have occurred against the Kenyan civilian population. Calls for investigation into the ethnically targeted violence were also voiced by the un in general and the Security Council in particular.245 Indeed, the Pros- ecutor in accordance with the Rome Statute might receive “information from States, organs of the United Nations, intergovernmental or non-governmental organisations, or other reliable sources that he or she deems appropriate”.246 On 31 March 2010, the Pre-Trial Chamber ii of the icc rendered its decision on the situation in Kenya brought before the Court by the icc Prosecutor and authorised accordingly the Prosecutor’s “commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of [the] case”.247 The Court found “that the information available provide[d] a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory”.248 This decision did not preclude the government of Kenya to challenge the admissibility of the case under Article 18 of the Rome Statute once notified by the icc Prosecutor of his investigation into the particular situation that would normally fall within Kenya’s jurisdiction. In this regard, on 31 March 2011 – one
243 It concerns a referral of a situation by the Democratic Republic of the Congo (in 2004), Uganda (in 2004), the Central African Republic (in 2004 and 2014) and Mali (in 2012). 244 It concerns a referral of the situation in Darfur (2005) and Libya (2011) by the Security Council. 245 Statement by the President (Panamanian) ambassador Ricardo Alberto Arias of the Secu- rity Council, un Doc. S /PRST/2008/4 (6 February 2008). 246 1998 Rome Statute of the icc, Art. 15(2). 247 1998 Rome Statute of the icc, Art. 15(4). 248 Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investiga- tion into the Situation in the Republic of Kenya, Doc. ICC-01-09 (31 March 2010), para. 73.
249 They were the two leading contestants of the 2007 elections and belonged to two opposing ethnic groups in Kenya. Together with each of them two other suspects, they were ac- cused of the commission of crimes against humanity. See Prosecutor’s Application Pursu- ant to Article 58 as to William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Doc. ICC-01/09 (15 December 2010), para. 29; Prosecutor’s Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Doc. ICC-01/09 (15 December 2010), para. 33. 250 Application on Behalf of the Government of the Republic of Kenya Pursuant to Article 19 of the icc Statute, Doc. ICC-01/09-01/11 and Doc. ICC-01/09-02/11 (31 March 2011), paras. 1, 80. 251 Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, Doc. ICC-01/09-02/11 (30 May 2011), para. 66; Decision on the Application by the Government of Kenya Challenging the Ad- missibility of the Case Pursuant to Article 19(2)(b) of the Statute, Doc. ICC-01/09-01/11 (30 May 2011), para. 70. 252 Susanne D. Mueller, “Kenya and the International Criminal Court (icc): Politics, the Elec- tion and the Law,” Journal of Eastern African Studies 8 (2014): 31.
253 Prosecution Observations on the Impact of the Withdrawal of the Charges against Mr. Muthaura on Mr. Kenyatta, Doc. ICC-01/09-02/11 (11 March 2013), para. 15. 254 Decision on the Withdrawal of Charges against Mr Kenyatta, Doc. ICC-01/09-02/11 (13 March 2015), para. 11. 255 Letter dated 23 March 2011 from the Permanent Representative of Kenya to the United Nations addressed to the President of the Security Council, un Doc. S /2011/201 (29 March 2011). 256 Speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV/7060 (15 November 2013), 12–13. See more on the consequences of prosecutorial discretion, Na Jiang, “Jianchaguan Qisu Cailiangquan de Waibu Kongzhi Jiqi Fansi: Yi Guoji Xing-
Conclusion
The principles of post-conflict justice, namely judicial sovereignty, primacy and complementarity have defined the original relationship between the inter- national community and nation states in their common fight against impunity for international crimes, including genocide, war crimes and crimes against humanity. Their interpretation and application in the pursuit of criminal jus- tice have brought the agendas of international constituencies and domestic authorities in closer proximity and conflict that have, from the perspective of tornil, eroded the normativity of those principles in governing (inter)nation- al criminal justice. The dichotomy between utopian and apologetic stances re- garding accountability of the perpetrators of those crimes has undermined the complementary nature of each of those agendas in the first place. As a result, it has deepened the distrust between global and local shareholders and stake- holders that ultimately silences the voices of the victims of those international crimes. The interplay rather than the juxtaposition between local and global ownership over such accountability and justice mechanisms could responsi- bilise each of those national and international actors to bring solace. From its own historical experience, China has been cautious about the dominant forces of certain powers in setting the post-conflict agendas within particular regions and countries that would shape their future in defiance of the sovereign rights of the states and the wishes of the local communities. It argued that “the issue of impunity can be fully resolved, only if tension is eased and political stability achieved in the relevant regions. Efforts to seek criminal justice should further rather than interrupt the relevant peace process, and foster rather than hamper national reconciliation and peacebuilding.”257 Con- textualisation is therefore crucial in order to induce rather than impose a force- ful solution to the challenges in the complex post-conflict environment. As a matter of relational governance, China views that consultation and dialogue where the global and local agendas meet are indispensable to govern those situations that not only require the pursuit of criminal justice alone. Other
shi Susong Weishijiao (‘External Control over Prosecutorial Discretion: From the Angle of International Criminal Proceedings’),” Xiandai Faxue (Modern Law Science) 1 (2013): 153–162; Tao Qu, “Guoji Xingshi Fayuan Jianchaguan Zixing Diaochaquan Jiqi Zhiyue Yinsu Tanxi (‘Study on the International Criminal Court Prosecutor’s Proprio Motu Power of Investigation and Its Restraining Factors’),” Hebei Faxue (Hebei Law Science) 10 (2010): 99–105; William A. Schabas, “Prosecutorial Discretion v. Judicial Activism at the Interna- tional Criminal Court,” Journal of International Criminal Justice 6 (2008): 731–761. 257 Speech of Chinese ambassador WANG Min before the Security Council, un Doc. S/ PV.6347 (29 June 2010), 21.
In today’s world, there is no unique formula for the prevention, humanisation and (peaceful) resolution of conflicts within the seat of global governance institutions. There are, however, a few cardinal elements which drive those do- mestic, regional and international processes. As a way of recapitulation, before the un Security Council where the Syrian crisis – that had started in the Spring of 2011 – was debated, China has repeatedly summarised those elements that it considered important for the international community in general and the Security Council in particular to take into account when one had to resolve a conflict. It concerned the respect for the sovereignty of the state, the need for parallel peace negotiations and the preservation of unity of the decision- making body.1 Each of these three elements must inform the interpretation, application, development of existing and creation of new norms on the use of force, the deployment of peacekeeping missions, the disarmament of weapons of mass destruction, the fight against international terrorism and the account- ability of the perpetrators of international crimes. Without this so-called “Holy Trinity”, each of those efforts and measures on behalf of the respective global governance bodies will be compromised and unable to survive the test of his- tory. Furthermore, the crisis of global governance cannot be overcome nor can international norms governing conflicts along the continuum of violence as well as the moral values of peace, humanity and accountability that underpin the respective regimes find an application or accommodate the new realities on the battlefield. Regarding the first element, the respect for the sovereignty of the state on behalf of the global governance institutions not only requires its equal treat- ment amongst and before the other members of the international community,
1 See speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6627 (4 October 2011), 5; speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6711 (4 February 2012), 9–10; speech of Chinese ambassador LI Baodong before the Security Council, un Doc. S/PV.6810 (19 July 2012), 13–14; speech of Chinese ambassador wang Min before the Security Council, un Doc. S/PV.7180 (22 May 2014), 13–14; speech of Chi- nese ambassador liu Jieyi before the Security Council, un Doc. S/PV.7825 (5 December 2016), 7–8; speech of Chinese ambassador LIU Jieyi before the Security Council, un Doc. S/PV.7893 (28 February 2017), 9–10. China’s reminders were each time uttered whenever it vetoed a draft resolution on Syria that would compromise on those elements.
© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004356498_009
Regarding the third element of the unity of the decision-making body, man- aging those international and regional peace negotiation and mediation pro- cesses requires concerted action that is conditioned upon the unity within the seat of those international and regional decision-makers to adopt those deci- sion and measures that facilitate the resolution and humanisation of a conflict. Evidently, power struggles and tensions exist within those global governance bodies and must be managed in such a way as to ensure that they can dis- charge their mandates accordingly. A diversity of views must not necessarily lead to indecision or indifference towards to resolution of a conflict on behalf of the international community. Without the establishment of sufficient trust amongst the decision-makers, there is a greater risk that unilateral measures are taken by some of its members or outside members. Such unilateral mea- sures could not only undermine the prospects for restoring trust, adversely affect the conditions on the battlefield but also compromise the normativity of those norms that govern the use of force, peacekeeping, disarmament, the war on terror and criminal responsibility for international crimes in the first place. Without a proper cooperation and coordination between those decision-makers for a particular conflict, the global governance bodies and those regulatory frameworks will continue to suffer from indecisiveness in the decision-making process. While at the same time, those bodies must pay atten- tion to other ongoing and new conflicts that warrant their response within the confines of international law. ii Through Consultation and Process
For global governance bodies to find an agreement upon the interpretation, application and development of existing as well as creation of new norms gov- erning the use of force, peacekeeping, non-proliferation, the fight against ter- rorism and (post-)conflict justice they must not only consider the “Holy Trin- ity” along the continuum of violence. Decision-makers must give equally room for broad consultation with all shareholders and stakeholders at headquarters, in the region and on the battlefield. China has repeatedly called for a democ- ratisation of international relations to include the views of as many countries as possible – developed and developing alike – regarding shared matters of global concerns, in particular concerning (non-)traditional security threats. Conversely, China has opposed the adoption of sanctions upon certain par- ties to a conflict, in order to force such parties to sit down at the negotiating table and solve their conflicts peacefully. Surely, the goodwill of particular ac- tors on the international plane is not always present. Therefore, the members
In the course of the consultation processes towards the peaceful resolution of conflicts and the interpretation, application, development of existing and
Unfortunately, in the face of the (vicious circles of) violence that confronted and divided the parties to the conflict, the international community and the global governance institutions, the interpretation and application of those principles of international law and relations have often been the victim of those powerful forces. Restoring their normativity is essential to sustain the normativity of the other norms of international law governing those conflicts in those respective regimes accordingly. It is hard to transcend such division, antagonism, or even dehumanisation – amongst the respective shareholders and stakeholders that undermine their relationships – with rational argu- ments. As a matter of the survival of humanity in particular, concerning the proliferation and use of weapons of mass destruction on behalf of (non-)state actors, this should be possible. Even so, responses to such (non-)traditional se- curity threats amongst the members of the international community have not always reached a united, coherent and consistent approach. The development of the disarmament and counter-terrorism regimes, however, has provided valuable lessons that also China had emphasised. In this respect, the purpose of relational governance here aims to acknowledge the particular economic and political differences amongst developing and developed countries and to refute the association of international terrorism with certain religions and eth- nicities. The use of the common right to development and the shared human- ity of all peoples as the starting point of the consultation processes towards the interpretation, application, development of existing and creation of norms governing disarmament and the fight against terrorism has made it possible to understand and bridge the conflicting interests gradually. Those actors on the international plane can internalise this denominator of common development and humanity. Reaching consensus requires such openness and mutual respect for the position of each shareholder and stakeholder concerned with the prevention, humanisation and resolution of conflicts in today’s world. It is a sign and out- come of a restored and renewed relationship between the parties to a conflict and the global governance institutions to respectively solve and govern ef- fectively the peaceful resolution of a conflict. It can only be reached through an inclusive process of participation of all shareholders and stakeholders and a proper coordination of their respective efforts towards the realisation of those humanitarian objectives. It can bolster the uniform interpretation, application, development of existing and creation of new norms as well as those principles of international law that provide such guidance in the maze of conflicting relationships and levels of jurisdiction – domestic, regional and international alike. When consensus cannot be reached in those areas where differences cannot be bridged, or where the context is not ready yet to restore
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Abdulhak, Tarik 306 Blank, Stephen 263 Acharya, Amitav 18 Bleiker, Roland 18 Akande, Dapo 292, 345, 348 Blokker, Niels 111 Akhavan, Payam 338 Boehm, Dana Carver 262 Ali, S. Mahmud 75 Bond, Michael H. 17 Alston, Philip 292 Boothby, William 175 Altman, Andrew 289 Bosco, David 292 Amin, Samir 27 Bourantonis, Dimitris 60 Amnéus, Diana 117 Bow, Brian 218 Andreopoulos, George J. 289 Bowen, Wyn Q. 183 Andrews-Speed, Philip 339 Bowett, Derek W. 107 Anievas, Alexander 12 Brauer, Jurgen 174 Antipov, Konstantin 345 Brecher, Michael 79 Arend, Anthony Clark 107 Brehm, Maya 176 Aris, Stephen 264 Breslin, Shaun 8, 19, 109 Armstrong, David 12 Briggs, Herbert W. 32 Asada, Masahiko 176 Brownlie, Ian 107 Butler, Sean 123 Badawi, Adam B. 25 Buzan, Barry 18, 19, 59 Badescu, Cristina G. 117 Byers, Michael 12, 54, 103 Baer, Daniel 117 Balci, Bayram 264 Cable, James 84 Baran, Paul 27 Cai, Huatang 174 Bardonnet, Daniel 219 Cai, Jian 180 Barkin, J. Samuel 58, 109 Campbell, David 112 Barnett, Michael N. 13, 108 Carroll, Paul 179 Barnidge, Robert P. 128, 258 Carswell, Andrew J. 70 Barton, Benjamin 129 Castel, Heather 313 Bas, Muhammet A. 174 Cathcart, Adam 296 Bass, Gary J. 293 Cha, Victor D. 180 Bassiouni, M. Cherif 289 Chan, Gerald 8, 19 Beard, Jack M. 176 Chan, Kay-Wah 296 Beck, Robert J. 107 Chan, Lai-Ha 8 Bell, Coral 74 Chan, Phil C.W. 9, 57 Bellamy, Alex J. 126, 130, 293 Chan, Stephen 18 Bennett, Max Andrew 58 Chang, Teng-Chi 18 Berdal, Mats 163 Chase-Dunn, Christopher 27 Bergholm, Linnea 117 Chayes, Abram 47 Bergsmo, Morten 296 Chayes, Antonia Handler 47 Bertelman, Hanna 320 Cheah, Wui Ling 296 Bi, Jianxiang 129 Chehtman, Alejandro 295 Bianchi, Andrea 54, 258, 261 Chen, Dongxiao 60 Bihler, Anja 296 Chen, Jian 69, 77, 84, 85, 86 Birdsall, Andrea 294, 339 Chen, Jing 297 Bisset, Alison 293 Chen, Li 9
Chen, Tiqiang 9 Dawes, Philip L. 25 Chen, Xulong 174 de Bertodano, Sylvia 313 Chen, Zexian 292 Dean, Jonathan 174 Chi, Manjiao 37 De Brabandere, Eric 293 Chimni, B.S. 13 De Cremer, David 42 Chin, Gregory 9 deLisle, Jacques 8, 37 Ching, Frank 124 Delpech, Thérèse 180 Chiu, Hungdah 9 den Dekker, Guido 176 Chow, W. Emily 29 Deng, Xiaoping 23, 34, 83 Chung, Chienpeng 264 Deng, Yong 10 Chung, Jae Ho 8 Dessein, Bart 9 Ciampi, Annalisa 340 de Volder, Eefje 294 Cimiotta, Emanuele 291 De Vos, Christian 294 Ciociari, John D. 291, 320, 321 Dinstein, Yoram 107 Clapham, Andrew 289 Dittmer, Lowell 180 Clarke, Benjamin 258 Do, Thuy T. 19 Clarke, Kamari 294 Donald, Dominick 156 Clarke, Michael 262 Dong, Manyuan 256 Clegg, Jenny 9 Dong, Qingling 19 Cobb, John B. 17 Donlon, Fidelma 318 Coe, Andrew J. 174 Dörmann, Knut 289 Cohen, Benjamin V. 59, 74 Doswald-Beck, Louise 177, 242, 251 Cohen, David 295 Down, George 58 Cohen, Harlan G. 45 Doyle, James E. 175 Coleman, Andrew 9 Dreyer, June Teufel 9 Coleman, Kim 174 Du, Hongqi 76 Colley, Steven 181 Duan, Mingming 25 Conboy, Kenneth 76 Duffy, Helen 261 Condorelli, Luigi 292, 340 Dunn, Lewis A. 175 Contessi, Nicola P. 124 Dunne, Paul 174 Cordesman, Anthony H. 181 Dunne, Tim 123 Corten, Olivier 107 du Plessis, Max 292, 345 Cousins, Steven D. 16 Duvall, Raymond 108 Craft, Stephen G. 63 Crenshaw, Martha 257 Eamon, Murphy 257 Cryer, Robert 294 Easterday, Jennifer S. 293 Cuellar, Mariano-Florentino 58 Edenberg, Elizabeth 293 Cui, Liru 180 Edel, Hughes 290 Czarnetzky, John M. 346 Ehrlich, Thomas 47 El Zeidy, Mohamed M. 299 D’Ascoli, Silvia 290 Erie, Matthew S. 263 Dai, Yi 60 Etcheson, Craig 322 Dai, Ying 174 Evans, Mark 293 Damrosch, Lori F. 176 Danchin, Peter G. 60 Fairbank, John King 10, 38 Danner, Allison Marston 294, 346 Farrell, Theo 12 Dannreuther, Ronald 339 Fassbender, Bardo 103, 291, 326 Davis, Jonathan E. 115 Fawcett, J.E.S. 57
Feigenbaum, Evan A. 182 Gegout, Catherine 294, 342 Feinerman, James V. 9 Geller, Armando 18 Fenwick, Charles G. 59 Geyer, Robert 18 Fernandez-Sanchez, Pablo Antonio 258 Gibson, Kate 295 Fidler, David P. 9, 108, 176 Gill, Bates 8, 129, 130, 182 Fieldhouse, Richard 183 Gill, Stephen 13 Fifield, Russell H. 31 Ghebhardt, Alexander O. 59, 82 Finnemore, Martha 12, 13, 58 Gladney, Dru C. 263, 264 Fischer, Horst 60 Glaser, Bonnie S. 182 Fisher, Margaret W. 77 Glenn, Lowell M. 25 Fisher, Richard D. 181 Goh, Evelyn 86 Fiss, Owen 261 Gold, Thomas 25 Fitzpatrick, Mark 179 Goldsmith, Jack L. 12 Flanders, Ralph E. 59 Goldstein, Avery 8, 174 Fleck, Dieter 176 Goldstein, Lyle J. 174 Fleming, Denna Frank 59, 68 Goldstein, Melvyn C. 77 Flory, Maurice 261 Goldstone, Richard J. 290, 335 Flory, Philippe 318 Gong, Gerrit W. 108 Focsaneanu, Lazar 9, 32 Goodrich, Leland M. 73 Focarelli, Carlo 117 Goulding, Jay 17 Forbes, Andrew D. 263 Gray, Christine 107, 112, 120 Ford, Christopher A. 17 Green, L.C. 77 Fortna, Virginia Page 256 Greener, Bethan K. 127 Foster, John Bellamy 26 Gross, Ernest A. 59 Francis, L. Hsu K. 17 Gross, Leo 69 Franck, Thomas 107, 108 Gross, Oren 259 Fravel, Taylor M. 129 Guelke, Adrian 257 Freeman, John 176 Gunder, Frank André 27 Friedmann, Wolfgang 46, 108 Guo, Yongliang 262 Frieman, Wendy 183 Gupta, Karunakar 69 Fromson, James 257 Guthrie, Doug 25 Fry, James D. 220 Fukurai, Hiroshi 296 Haas, Ernst B. 59, 74 Fung, Courtney J. 122, 128 Hall, Thomas D. 27 Hammer, Craig 108 Gaeta, Paola 289 Hammond, Scott C. 25 Gaggioli, Gloria 283 Han, Nianlong 84 Gai, Xinqi 297 Hanna, Michael Wahid 179 Gao, Fei 264 Hao, Shengzhang 86 Gao, Mingxuan 292, 297 Hao, Yufan 70, 262 Gao, Qiqi 19 Harris, Lillian Craig 264 Gao, Shangtao 20 Harris, Stuart 8 Gao, Yongjiu 263 Hassler, Sabine 60 Garwood-Gowers, Andrew 123 Hayashi, Mika 175 Garver, John W. 76, 79, 83, 85, 86, 87, 180 He, Jian 46 Garvey, Jack 175 He, Yin 129 Gasser, Hans-Peter 261 He, Zhipeng 46, 120 Gazzini, Tarcisio 60 Hehir, Aidan 120
Heindel, Anne 291, 320 Jalloh, Charles C. 292, 295, 345 Heller, Kevin J. 294 Jeng, Abou 128 Heller, Regina 261 Jenkins, Catherine 293 Hempel, Paul S. 25 Ji, Weidong 296 Hempson-Jones, Justin. S. 10 Jia, Bingbing 297, 340 Henckaerts, Jean-Marie 177, 242, 251 Jia, Hailong 291 Henderson, Christian 111, 123, 292 Jia, Haitao 291 Henriksen, Anders 122 Jiang, Guoqing 261 Hess, Ashley 181 Jiang, Na 351 Higgins, Rosalyn 261 Jiang, Yi 264 Hill, Steven 130 Jiang, Zemin 24, 35, 36, 37 Hill-Cawthorne, Lawrence 284 Jie, Meng 185 Hinton, Alexander Laban 321 Jin, Jidong 290 Hirono, Miwa 128, 129, 130 Job, Brian L. 123 Hobden, Stephen 26 Joffe, Josef 58 Hobson, John M. 26 Johnson, Howard C. 59, 74 Hoffman, Aaron M. 42 Johnson, Jeannie L. 173 Hoffmann, Stanley 12 Johnstone, Ian 126 Hoffmann, Steven A. 76 Jones Gruffydd, Branwen 108 Holland, Christopher 57 Jones, David M. 59 Holslag, Jonathan 182 Jenne, Nicole 59 Hong, Yonghong 290 Jovanović, Miodrag A. 117 Hor, Michael 261 Joyner, Daniel H. 175, 180 Hornbeck, Stanley K. 59 Jurdi, Nidal Nabil 326 Horsburgh, Nicola 19 Howard, Lise Morjé 126 Kahl, Martin 261 Howe, Brendan 109 Kamhi, Alison 291, 321 Hsieh, Alice Langley 182 Kan, Shirley A. 183 Hua, Liming 179 Kao, Shawn S.F. 29 Huang, Chao 117 Karlsrud, John 126, 128, 163 Huang, Chin-Hao 129 Kartchner, Kerry M. 173 Huang, Chiung-Chiu 38, 115 Karnik, V.B. 80 Huang, Haitao 120 Kavalski, Emilian 18, 20, 29, 264 Huang, Hong 292 Kaye, Dalia Dassa 179 Huchet, Jean-François 264 Keating, Vincent Charles 42 Huntley, Wade 180 Keith, Tracy M. 176 Huo, Xuehui 180 Kellman, Barry 176 Hurrell, Andrew 108 Kellogg, Davida E. 293 Hwang, Kwang-Kuo 17 Kendall, Sara 294 Kennedy, David 13 Ikenberry, Gilford John 57 Kennedy, Duncan 13 Imre, Robert 258 Kent, Ann 8, 9, 344 Israeli, Raphael 264 Keohane, Robert O. 12, 13 Iverson, Jens 293 Kerr, David 262 Kersten, Rikki 109, 100 Jackson, Patrick T. 20 Khoo, Nicholas 82 Jackson, Richard 257 Kien-Hong, Peter 29 Jacques, Martin 8 Kim, Hodong 263 Jain, Neha 320 Kim, Hun Joon 18, 19
Kim, Jina 179 Lee, Don Y. 25 Kim, Samuel S. 9, 32, 57 Lee, Dong Sun 180 Kim, Uichol 17 Lee, Dongmin 179 Kipnis, Andrew B. 26 Lee, Eric Yong Joong 180 Kirshner, Jonathan 8 Lee, Pak K. 8 Kissinger, Henry 8 Leng, Jing 25 Kittrie, Orde F. 51, 176, 180 Leng, Shao-Chuan 183, 184 Kivimäki, Timo 51 Leonard, James F. 175 Klare, Michael T. 175 Lepgold, Joseph 58 Klarin, Mirko 304 Levenson, Joseph Richmond 38 Kleffner, Jann K. 291, 299, 313, 322 Li, Benxian 262 Klintworth, Gary 183 Li, Bin 174, 176 Knaus, J. Kenneth 76 Li, Dongyan 58, 59 Knottnerus, Abel S. 294 Li, Guofu 180 Knuckey, Sarah 292 Li, Jia 109, 110 Kogan, Norman 59, 72 Li, Jie 263 Koh, Harold H. 47 Li, Ke 86 Kolb, Robert 58 Li, Ling 39 Kong, Hanbing 291 Li, Mingjiang 10, 179 Korsgaard, Christine M. 45 Li, Ping 78 Koskenniemi, Martii 58 Li, Qi 263 Kraig, Michael Ryan 180 Li, Qunying 257 Krasner, Stephen D. 13, 29 Li, Shaojun 183 Kratochwil, Friedrich V. 45 Li, Shouping 117, 292 Krzan, Bartłomiej 289 Li, Wei 257 Kunz, Josef L. 59 Li, Xiaoting 8 Kurtz, Gerrit 120 Li, Xing 264 Kushner, Barak 296, 302 Li, Yanxing 110 Li, Zhaojie 10 Labuda, Patryk I. 291 Liang, Wang 182 Lagerwey, John. 38 Lin, Chong-Pin 182 La Haye, Eve 289 Lin, Enxian 264 Lai, Wen-Wei 296 Lindahl, Hans 45 Lamb, Alistair 77 Ling, Lily H. 10 Lambert, Hélène 12 Ling, Yan 290, 296 Landsman, Stephan 293 Linklater, Andrew 26 Lansdowne, Helen 29 Linton, Suzannah 291, 295, 319 Lanteigne, Marc 115, 120, 128, 129 Liolos, John J. 347 Laplante, Lisa J. 293 Lipman, Jonathan N. 264 Laqueur, Walter 257 Lipscomb, Rosana 347 Large, Daniel 124 Liu, Feng 179 Larsen, Jeffrey A. 173 Liu, Hongwu 340 Laruelle, Marlène 264 Liu, Jian 292 Lasmar, Jorge 264 Liu, Jianwei 183 Latham, Andrew 218 Liu, Ping 296 Lautenschlager, S. 66 Liu, Qing 173 Lave, Jean 18 Liu, Renwen 294 Lawson, Eugene K. 83 Liu, Shaoqi 23 Leanos, Brendan 347 Liu, Shengxiang 19
Liu, Tiewa 123 Men, Honghua 29 Liu, Weihua 262 Men, Jing 129 Liu, Wusheng 76 Meng, Jianghong 174 Liu, Xuelian 180 Mertha, Andrew C. 9 Liu, Yingsheng 264 Mettraux, Guénaël 291 Liu, Zhiyun 19 Meyer, Jason D. 118 Liu, Zhongkang 263 Miéville, China 12 Liu, Zhongmin 256 Milanović, Marko 326 Lodgaard, Sverre 175 Milhollin, Gary 180 Lowe, Vaughan 54 Miliband, Ralph 13 Lowenfeld, Andreas F. 47 Miller, Manjari Chatterjee 30, 182 Lu, Jianping 297, 336 Minzner, Carl 39 Luo, Huijun 257 Miyazawa, Setsuo 296 Luo, Yadong 26 Mooney, T. Brian 258 Luo, Yahua 123 Moore, Charles A. 17 Lynch, Daniel 19 Moore, Gregory J. 179 Morphet, Sally 58, 59 Ma, Chengyuan 289, 297 Morris, George M. 59 Ma, Pinyan 257 Morrison, James 76 Ma, Zhisun 78 Mueller, Susanne D. 350 MacFarlane, S. Neil 117 Müllerson, Rein 176 Macneil, Ian R. 25 Murphy, John F. 261 MacQueen, Norrie 111, 126 Murphy, Sean D. 261 Mahbubani, Kishore 3 Murray, Robert 120 Malanczuk, Peter 69 Mushkat, Roda 9 Malik, Mohan 183 Mälksoo, Lauri 60 Nagan, Winston P. 108 Malley, Michael S. 180 Nakamura, Hajime 14 Mancall, Mark 10 Nakan, Ryoko 123, 342 Mandaville, Peter 18 Naqvi, Yasmin 261 Mao, Zedong 22, 23, 30, 66, 69, 70, 71, 76, Nash, Patricia 296 82, 302 Nasu, Hitoshi 109, 117, 126 Maogoto, Jackson N. 9 Nathanson, Stephen 257 Marauhn, Thilo 210, 217 Nesiah, Vasuki 294 Mariniello, Triestino 292 Neuhold, Hanspeter 58 Marsh, Nicholas 175 Neuman, Gerard L. 261 Martinsons, Maris G. 25 Nexon, Daniel 20 Martinussen, John 26 Ni Aolain, Fionnuala 259 Maxwell, Neville 78, 80 Nicholas, J. Rengger 26 Mayersen, Deborah 312, 313, 321 Nielsen, Claire 301 May, Larry 293 Nielsen, Thomas Galasz 262 McCargo, Duncan 320 Niemeyer, Gerhart 59, 74 McCormack, Tara 117 Nightingale, P. 265 McEvily, Bill 42 Nikitina, Yulia 59 Meernik, James 342 Niu, Yichen 264 Mégret, Frédéric 290, 346, 347 Noesselt, Nele 19 Mei, Jianming 262 Nolan, Janne 175 Mei, Ruao 297 Nollkaemper, André 291, 313, 322
Nordin, Astrid 19 Proulx, Vincent-Joel 257 Northrop, Filmer S.C. 14 Pu, Ning 181 Nouwen, Sarah M.H. 294, 295, 298 Pugh, Michael 129 Pushparajah, Nadarajah 295, 328 O’Connell, Mary Ellen 47, 256 Pye, Lucian W. 3 Odeyemi, Christo 122 Odgaard, Liselotte 262 Qi, Xianguo 183 Odysseos, Louiza 20 Qi, Xiaoying 25 Oertel, Janka 128 Qian, Cheng 260 Ogilvie-White, Tanya 174, 180 Qian, Xuemei 256 Olton, Roy 29 Qin, Tian 181 Ong, Russell 180 Qin, Yaqing 8, 19, 20, 21, 28, 41, 43, 44 Orakhelashvili, Alexander 58 Qu, Tao 352 Orend, Brian 293 Qu, Xing 122 O’Shea, Elizabeth 120 Quester, George H. 175 Österdahl, Inger 112 Quigley, John 258 Owen, Green 175 Quinlan, Michael 176
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Rowe, David Nelson 59, 67 Shi, Bin 260 Rozman, Gilbert 10, 179 Shi, Bo 79 Rubin, Alfred P. 77 Shi, Dongying 263 Ruys, Tom 122 Shih, Chih-yu 10, 38, 115 Ruzicka, Jan 42 Shilliam, Robbie 18 Rychlak Ronald J. 346 Shimizu, Nanako 59 Ryngaert, Cedric 290 Sikkink, Kathryn 13 Silander, Daniel 12, 213 Sadat, Leila N. 289 Simon, Steven 257 Sader, Choucri 326 Simpson, Gerry 12, 108 Sagan, Scott D. 174, 180 Skilbeck, Rupert 319 Salem, David I. 183 Skrine, C.P. 265 Salter, Michael 264 Slaughter, Anne-Marie 12, 13, 108 Sarkin, Jeremy 347 Sloan, James 163 Sarooshi, Dan 111, 338 Sluiter, Göran 294, 295 Samson, Marika Giles 347 Smelser, Neil J. 257 Sassoli, Marco 289 Smith, Adam M. 290, 335 Saul, Ben 257 Smith, Jacqueline R. 175 Scalapino, Robert A. 82 Smith, Paul J. 257 Schabas, William A. 289, 290, 291, 292, 295, Snetkov, Aglaya 115, 120, 264 314, 352 Snidal, Duncan 12 Schack, Marc 122 So, Alvin Y. 27 Scheinman, Lawrence 175 Solomon, Richard H. 59 Scheipers, Sibylle 257 Song, Jinquan 179 Schick, F.B. 32 Song, Jooyoung 179 Schiff, Benjamin N. 292 Song, Lihong 297 Schneider, Mark 182 Song, Zhiyong 297 Schrijver, Nico 257 Sperfeldt, Christoph 295 Schwartz, Jonathan B. 258 Sriram, Chandra Lekha 290, 291, 316 Schwöbel, Christine E.J. 294 Stähle, Stefan 129 Scott, David 8 Stahn, Carsten 117, 122, 290, 292, 293, 294, Scott, Poynting 257 313, 348 Scott, Shirley V. 12 Steinberg, Richard 108, 294 Scully, Seeta 321 Stephens, Dale 258 Setear, John K. 12 Stone, Julius 88 Seth, Sanja 26 Su, Minhua 298 Shah, Niaz A. 261 Sun, Degang 262 Shahabuddeen, Mohamed 290 Sun, Xiangli 183 Shakya, Tsering 75 Sun, Yun 341 Shambaugh, David 8, 181, 182 Suzuki, Shogo 129, 130, 344 Shanor, Charles A. 257 Svarverud, Rune 38 Sharma, Surya P. 77 Swart, Bert 294, 327 Shelton, Dinnah 292 Swinth, Robert L. 42 Shen, Dingli 183 Swinton, Laura C. 262 Shen, Shitao 292 Sylvester, Christine 26 Shen, Wei 51 Shen, Zhihua 69 Talal, Asad 258 Shesterinina, Anastasia 123 Tams, Christian J. 261 Shi, Bei 296 Tan, Yueqi 291
Tang, Shiping 182 Wang, Shuming 123 Tang, Yihong 183 Wang, Tingting 262 Tao, Jing 297 Wang, Xiaobo 179 Taylor, Ian 341 Wang, Xiumei 46, 291, 292, 340 Teitel, Ruti 293 Wang, Yizhou 10 Teitt, Sarah 123, 124, 130 Wang, Zhen 258 Tejan-Cole, Abdul 293 Wang, Zhixiang 297, 336 Tellis, Ashley J. 181 Wank, David 25 Teng, Jianqun 174, 175, 176 Ward, Curtis A. 258 Tesón, Fernando R. 108, 112 Wayne, Martin I. 262 Thakur, Ramesh 9, 117, 120, 290 Webb, Philippa 122 Theidon, Kimberley 293 Weiss, Robert G. 130 Thielbörger, Pierre 120 Weiss, Thomas G. 117, 122, 126 Thielking, Carolin J. 117 Weissmann, Mikael 179 Thirkell-White, Ben 26 Welsh, Jennifer 120 Thynne, Kelisiana 261 Wen, Jiabao 38 Tortora, Giorgia 291, 322 Wendt, Alexander 13 Tow, William T. 109, 110 Weigert, Hans W. 59 Trapp, Kimberley N. 257 Weng, Bryon S. 10 Trebilcock, Michael 25 Western, Jon 8 Tsagourias, Nicholas 127 Whiting, Allen S. 80 Twomey, Christopher P. 182 Whitley, Kelly 321 Wilde, Ralph 293 Ucko, David H. 163 Williams, Paul D. 126, 130 Udombana, Nsongurua J. 338 William, Paul R. 120 Ulfstein, Geir 176, 210, 217 Williams, Sarah 291 Willrich, Mason 175 van den Herik, Larissa J. 257, 291, 332 Wills, Michael 181 Vanhullebusch, Matthias XII, 51, 118, 295, Wills, Siobhán 117, 118 296, 328 Withana, Radhika 12 Venkatraman, N. 25 Woolsey, Lester H. 59 Vertigans, Stephen 256 Wright, Quincy 64, 70 Vohra, Shyla 156 Wright, Susan 175 Wu, Bingbing 257 Wæver, Ole 59 Wu, Chunsi 183 Wallace, Jay 45 Wu, Guoguang 29, 110 Wallerstein, Immanuel 27 Wu, Lengxi 78 Walton, David 109, 110 Wu, Libin 348 Wang, Chengting T. 63 Wu, Riqiang 174 Wang, Dehua 257 Wu, Wanshan 263 Wang, Fei-Ling 10 Wu, Yungui 256 Wang, Gungwu 8 Wuthnow, Joel 57 Wang, Jiangli 19 Wang, Jianwei 57 Xi, Jinping 24, 39, 121 Wang, Jisi 57 Xi, Xiao 264 Wang, Jin 256 Xia, Liping 183 Wang, Lian 180 Xiao, Hongkai 291 Wang, Libin 262 Xiong, Guangkai 182 Wang, Meng 340 Xiong, Kan 290
Xu, Li 292 Zhang, Baohui 182 Xu, Yan 79 Zhang, Binxin 297 Xue, Hanqin 9 Zhang, Haibin 123 Zhang, Hui 183 Yahuda, Michael B. 10, 19 Zhang, Jiadong 110, 257 Yamashita, Hikaru 163 Zhang, Jie 263 Yan, Wenhu 264 Zhang, Jiegen 179, 180 Yan, Xuetong 8, 10, 39, 119, 182 Zhang, Jinping 257 Yang, Chongwei 20 Zhang, Li 180 Yang, Kuo-Shu 17 Zhang, Qi 296 Yang, Lijun 292, 340 Zhang, Qiong 290 Yang, Liu 294 Zhang, Wei 183 Yang, Yonghong 120 Zhang, Xiaoming 9, 87, 415 Yang, Yuguan 347 Zhang, Xiuming 262 Yang, Zhilin 25 Zhang, Xu 292 Yarosh, Nicholas S. 181 Zhang, Yongjin 9, 18, 29 Ye, Shulan 19 Zhang, Yunling 8, 120 Yee, Sienho 46 Zhang, Zongliang 261 Yeh, Kuang-Hui 17 Zhao, Changqing 265 Yi, Ping 296 Zhao, Lei 129 Yihdego, Zeray 124, 339 Zhao, Quansheng 10 Yin, Sheng 262 Zhao, Suisheng 9, 29 Yin, Yinan 264 Zhe, Shi 76 Yost, David S. 60 Zheng, Xin 110 Young, Oran 13 Zheng, Yongnian 8 Yu, Haijie 256 Zhong, Longbiao 183 Yu, Mincai 183 Zhou, Baogen 183 Yu, Shangping 263 Zhou, Enlai 23, 30, 32, 33, 70, 76, 82 Yu, Xiaofeng 109, 110 Zhou, Kevin Zheng 25 Yu, Xintian 57 Zhou, Qi 46 Zhou, Zhonghai 176 Zafirovski, Milan 256 Zhu, Dan 297, 337 Zahar, Alexander 294 Zhu, Feng 57 Zaheer, Akbar 25, 42 Zhu, Lijiang 289 Zeng, Ka 9 Zhu, Liyu 290 Zeng, Siqi 296 Zhu, Lu 260 Zenger, Todd 25 Zhu, Mingquan 183 Zhai, Qiang 85 Zhu, Quangang 263 Zhai, Zhihai 70 Zhu, Wenqi 291, 296, 297 Zhao, Bingzhi 297
abolition 180, 209 Alassane Ouattara 123 abstention 62, 69, 105, 124, 143, 151 Aleppo 242, 246 accountability 1, 47, 111, 131–132, 162, 170, Al-Qaeda 256, 259, 275, 278 198, 248, 254, 260, 266–267, 269, 284, fighters 269 288–290, 294–296, 298–302, 304, 306, amnesties 295 308–309, 311, 313–314, 327, 329, 338, 347, Angola 94–96, 98, 144, 152–153, 159, 250 352, 354, 357, 359 annexation 101 acquiescence 15, 55, 95 antagonism 23, 26, 28, 33, 37, 139, 267, actors 1, 2, 4–7, 11–17, 20–25, 27–28, 287, 360 40–48, 50, 52–55, 60–61, 91, 117, 127, anthropologists 16 131, 147–148, 152, 164–165, 172, 175, 179, anthropology 3, 17 184, 186–189, 191, 193–194, 198–199, 204, anti-corruption 39 214–215, 250, 256, 258, 261, 266, 278, anti-vehicle landmines 251–252 280, 298, 300, 305, 324, 343, 352, 353, Arab 355–356, 359–360 countries 94, 133, 146 ad hoc tribunals 290–291, 298, 304, 314–315, League 58, 63–68, 104, 121, 148, 155, 233, 328–330, 333–335, 338, 346 259, 268, 274, 343 Addis Ababa Agreements 169 Spring 119, 343, 348 admissibility 305, 336, 347, 349–351 Arab-Israeli conflict 90–91, 93, 133, 143 adversity 34, 52, 284 armed Afghanistan 258, 264, 269–270, 283 attack 69, 72, 85, 97, 99–101, 107 Africa 90, 94, 128–130, 135, 144, 153, 161, 181, coexistence 79 187, 210, 248, 253, 256, 262, 277, 194–295, conflict 6, 9, 92, 100, 104, 111, 17, 119–120, 341–342 123, 128, 138, 146, 151, 153, 156–158, 160, North Africa 119 163–164, 166, 174–175, 177, 187–189, Horn of Africa 99, 146–147, 168 192, 195, 233, 242, 248–249, 253–254, African Mission in Sudan (amis) 145 261, 283–284, 289, 295, 300, 302–303, African Union 36, 123, 128, 145–146, 155, 188, 327–328, 339, 355 259–260, 292, 339, 341, 343, 345, 351 hostilities 1, 4, 73, 100, 103, 113, 158, 163, agency 7, 13, 15–16, 22, 27, 79, 108, 175, 378 174 aggression 30, 58, 61–68, 70–75, 80–81, Armenia 100 83–85, 87–91, 93–101, 104–107, 122, 124, arms 133–136, 143, 197–198, 217, 251, 289, control 1, 4, 174, 176, 183–189, 191, 184, 196, 296–297, 336–337, 348 199, 204, 209–211, 216–220, 235, 251–254, acts of aggression 74, 81, 89–90, 94, 279, 281, 287, 359 98, 101 control mechanisms 199 aggressor 70, 73, 81, 90–91, 105–106 race 59, 177, 182, 193, 196, 200–202, 209, Agreement between the United Nations and 211, 213–214 the Royal Government of Cambodia con- trade 174, 176, 181–183, 192–193 cerning the Prosecution under Cambo- Arms Trade Treaty 183, 192–193 dian Law of Crimes Committed during the Article 51 90, 100–101, 269 Period of Democratic Kampuchea 83, Arusha Peace Agreement 137, 150 319, 320 Association of Southeast Asian Nations Åke Sellström 243 (asean) 36–37, 39, 59, 110, 148, 191, 216, Aksai Chin 32, 79 238, 259–260, 265, 277 Al Shayrat, 247 asean Regional Forum 216
Asia binding force 15, 45, 251, 253 Asia-Pacific 8, 10, 19, 35, 57, 59, 67, 110, Biological Weapons Convention 176, 115, 120, 128, 182–184, 216, 263, 265, 205–206, 219, 227–230, 235, 241, 279 277, 311 bio-safety 206 Central Asia 180, 184, 210, 262–265, 277 bio-security 207 East Asia 9, 10, 59, 82, 109, 123, 179–180, blocs 2, 34, 59, 67, 71, 74 183, 296, 301, 342 Boao Forum 36 South Asia 75, 79, 104, 179–180, 184, border 213–214, 259, 263 conflict 76, 99 Southeast Asia 52, 83–85, 148, 180, 220, Bosnia and Herzegovina 100, 165–168, 295, 277, 309 305–309 Asia-Pacific Economic Cooperation Botswana 97–98 (apec) 35, 110 boundary 77–78, 81–82, 92 Asia-Europe Meeting (asem) 238 Brazil 223 Asymmetrical 166, 170, 175, 214, 261 breeding grounds 262, 267, 278, 286 asymmetry 80–82, 199 buffer 76, 261 Atlantic Charter 66, 269 Burkina Faso 152 authorisation 62, 100, 111, 113–114, 131–132, 135–136, 138–140, 142–144, 147–148, Cairo Declaration 67 15, 153, 158, 164–165, 167–169, 172, 233, Cambodia 83, 86, 88, 127, 129, 136, 139–140, 299, 340 148, 291, 295, 313–314, 319–322 authority 111, 114–116, 12, 136, 212, 224, capacity-building 126, 266, 295, 299, 304, 231, 235, 252, 254, 272, 274, 279–280, 306, 308, 314, 317, 320–321, 329, 333 293, 305, 310, 314, 316, 323, 326–327, capitalist 21–23, 27, 29–31, 33, 50, 59, 68–71, 336–338 74, 81, 94 autonomy 29, 76, 263, 304 world 31 awareness 44, 304 bloc 70–71 Azerbaijan 100 Caribbean 149, 185 Casablanca Conference 66–67 Balkans 329, 338 Caucasus 100 Bangkok 85, 220 causes 1, 16, 29, 43, 156, 187–189, 192, 209, Bangui Agreements 152 215–216, 233, 249, 256–257, 262, 265, Bashir Gemayel 93 275, 278, 281, 284, 286, 322 Basic Agreement on the Region of East- ceasefire 69, 79, 94, 114, 133, 155, 157, 246 ern Slavonia, Baranja and Western ceasefire agreement 93, 100, 104, 116, 139, Sirmium 168 147, 149, 151–153 battlefield 175, 266, 282, 284, 354, 356–358 Central Africa 112, 188 behaviour 3–7, 11–18, 20–21, 25, 28, 39–44, Central African Republic 152–153, 291, 49–50, 53, 55–57, 61, 94, 105, 125, 359 340–341, 349 Beijing 8, 22–24, 29–37, 39, 60, 66, 69–71, centrality 16, 18 75–79, 82–84, 86, 120–121, 123, 126–127, certainty 53–54 129–130, 174, 176, 181, 212, 236, 257, 263, cessation 289–290, 292, 297, 342 of armed hostilities 113, 158 Olympics 341 of hostilities 94, 97 Beirut 93, 322 Chad 152, 340–341, Berlin Wall 35 Chapter vi, 62, 111, 132, 163, 165, 170, 322 bilateral 27, 40, 50, 60, 82, 139, 144, 146, 179, Chapter vii, 62, 100, 111–116, 146, 152–153, 191, 215, 217, 219, 221, 227, 241, 285, 314 163, 165, 166–169, 172, 219, 220, 244, 246,
272, 294, 298, 310, 314, 316, 322–323, 325, 135–136, 138, 143–144, 172, 177, 179–180, 329–335, 338, 340–341, 343–344, 357 193, 200, 211, 235, 264, 329 characteristics 6–7, 14, 16, 19, 23–24, 35, 40, rhetoric 121 51, 160, 183, 257 mentality 277 Charles Taylor 316–317 Colin Powell 234 Charter on the Economic Rights and Duties collaboration 39, 42, 59, 127, 129, 137, 153, of States 200–201 160, 164, 188, 206–207, 227, 229, 267, chemical 272, 278, 281 arsenals 122, 232, 244 collective security 51–52, 57–60, 67–68, technology 186, 208 70–74, 82, 88, 111–112, 120, 125, 126, 132, warfare 174, 227 134–135, 138, 194, 215, 229, 254, 283, 287, weapons 228, 230–231, 235, 241–248, 254, 338, 358 279, 281 regime, 61–62, 67–69, 88, 110, 112, 125, 359 Chemical Weapons Convention 195, Collective Security Treaty Organisation 207–208, 218–219, 228, 230–231, 235, 36, 59 241–243, 254 colonial Chiang Kai-Shek 301–302 domination 200 Chinese epistemology 10–11, 16–18, 20, 22, peoples 105–106, 125 38, 48–49 colonialism 18, 75, 142, 301 Chinese society 23–24 Commission for Reception, Truth and Recon- cia 76, 79 ciliation (cavr) 313 circles of violence 2, 4, 360 commissions of inquiry 292, 332 civil society 1, 36, 40, 110, 216, 321 common destiny 206, 286 civil war 30, 70, 94, 108, 112, 116, 119, 122, common development 35, 51–52, 115, 286, 126–127, 149, 155, 169, 256, 301, 314, 360 316–317, 327 common enemy 256, 258, 271 civilian Common Security and Defence Policy, 128 population, 115, 117–118, 123, 151, 157, 164, Commonwealth of Independent States 37, 168, 171, 241, 247, 250, 266, 282–283, 338, 154, 259 341, 349 communication 2, 4, 6–7, 15, 17, 26, 28, populations 111, 113, 115, 117, 156, 162–163, 41–42, 54, 112, 153, 198, 213, 239, 358, 361 260, 267, 282, 284 communism protection 117–120, 127 communist 9–11, 17, 21–22, 24, 30–31, 35, civilisational 40, 46, 49, 51–52, 59, 62, 68–71, 73–74, dialogue 285 78, 81, 83–87, 89, 94, 130, 182, 184, 236, standards 108 297, 301–303 class struggle 21–23 communist ally 70, 73, 78, 87, 236 coalition 61, 73, 91, 96, 103, 106, 111, 138, 233 communist bloc 31, 59, 71, 74 Coalition of the Willing 233 communist China 9–11, 17, 85, 182, 184, Code of Offences against the Peace and Secu- 302 rity of Mankind 73 Communist Party of China (cpc) 21–24, coercion 47, 120 39, 65 coexistence 17, 30–32, 34, 37–38, 40, 46–47, Communists 65, 75, 301–302 50–51, 54, 60–61, 75, 77, 79, 80, 82, 89, community 101–102, 106, 109, 118, 285, 308 of common interests 206 cognitive psychologists 14, 16, 18 complementarity 17, 291, 293–294, 298–303, Cold War 34–35, 50, 58–59, 72, 75–77, 82–83, 336, 340, 347, 351–352 86–87, 95, 100, 103, 107, 115, 120, 125, 130, paradigm 16, 21–22, 24, 61
Crimes Panels of the District Court of Dili denuclearization 180, 238–239 291 denuclearizing 239 criminal dependence 124, 142 jurisdiction 292, 299, 330, 332 dependency 26–27 justice 1, 7, 122, 289, 290–291, 293–295, deployment 20, 49, 51, 70, 106, 111–112, 116, 297, 300–305, 307, 309, 313–314, 318–321, 128, 131–132, 134, 137–139, 143–148, 324, 326–330, 336, 340, 346–348, 352 151, 153, 156, 158, 161, 163–164, 171–172, responsibility 1, 4, 267, 290, 302, 313, 356 186, 239–240, 242, 253, 299, 307, 310, criminals 296–297, 302–304, 306, 332 340–342, 354 crisis 1–2, 50, 77, 99, 103, 112, 118–120, 123, deradicalisation 286 129, 152, 176, 204, 259, 307, 313, 341, 343, destruction 1, 67, 71, 95, 103, 174–180, 357–358 183–185, 193–194, 197–199, 201, 204, management 58 214–217, 222, 227–228, 232–235, critical 241–242, 244, 250, 254, 255, 275, critical international relations 11, 26, 27 278–281, 354, 360 Croatia 100, 147, 165, 167–168 détente 31 cross-fertilisation 6, 55 detention 131, 260, 283–284 cruel treatment 110 deterrence 80, 174, 176, 180, 182, 185, 193–197, cultural relativist 15 214, 332, 338 Cultural Revolution 33, 86 logic 194, 196–197, 214 custom 6, 12, 14, 47, 51, 52 deterrent effect 177, 179, 217 cyberspace 282, 286 developed 1, 3, 5, 6, 11, 17, 25–28, 30, 33–34, Cyprus 99, 134 39, 45, 108, 110–111, 120, 124, 157, 177, 200–205, 207–209, 213, 216, 218, 227, Damascus, 243, 247 234, 249–25, 254, 278, 279, 284, 286, 329, Darfur crisis 144, 338, 340–343 356, 360 Dayton Agreements, 167 developing decision-makers 1–2, 6, 42, 53–54, 60, 112, countries 31–37, 39, 51–52, 75, 82, 106, 138, 356, 358 110–111, 174, 184, 200, 202–204, 206–207, decision-making 2, 4, 20, 28–29, 44, 209, 254, 265, 279, 336 51–55, 60–62, 68, 74, 81, 95, 106, 108, 120, states 110, 207, 229 125, 129, 131, 162, 172, 210, 227, 256, 266, world 26, 32, 34, 50, 81 268, 280, 298, 320, 323, 354, 356–357 dialectical decolonization 31–32, 34 materialism 22, 33 deconstruction 16, 21, 26 reasoning 14, 22 defence treaty 83 dialogue 7, 18, 36, 46, 110–112, 117, 121, 124, defensive, 8, 15, 57, 82, 86–87, 91, 102, 170, 139–140, 143, 145–146, 148, 153, 155, 185–186, 197–198 188, 196–198, 209, 213, 216–217, 221, Defensive Counterattack against Vietnam 223, 230, 232, 234–235, 237, 239, 241, 82, 87 244, 247, 267–268, 274, 276, 277, 281, dehumanising narratives 260, 262, 284 285–286, 298, 308, 313, 328, 341, 343, demobilisation 150, 188, 249 352, 355, 361 Democratic Republic of the Congo (drc) dichotomies 54, 131, 329 126, 151–152, 163, 171 dictatorship of the proletariat 23 Democratic Republic of Vietnam 83, 87 differentiated sovereignty 108 democratisation 7, 68, 356 diplomatic democratisation of international efforts 221, 223, 225 relations 7, 356 resolution 226, 239 Deng Xiaoping 23, 33–34, 83, 87 ties 75, 162
Extraordinary Chambers in the Courts of Genocide 1, 112–113, 117, 137, 156, 160, 162, Cambodia (eccc) 291, 319, 320–322 289, 295, 303, 307, 311–313, 321–322, extremism 2, 11, 256–257, 260, 263, 265, 271, 329–331, 338, 341, 352 286 geopolitical 2, 81, 129, 180–181, 188, 192, 264, 266–268, 302, 308 family of nations 17, 108 Georgia 153–154, 161 Far East 30, 65, 67, 71, 295, 297, 301–303, 310 Germany 67, 104, 221 Fatou Bensouda 351 Ghouta 243 Federal Republic of Yugoslavia 100, 114, incident 122 334–335 global affairs 81 fertile soil 6, 55, 186, 278, 358 Global Financial Crisis 50 fight against impunity 295, 303, 332, 352 global governance 2, 4, 7–9, 15, 51, 108, 110, First World 32, 34–35, 82–83, 87–89, 91, 95, 115, 120, 123, 175, 185, 280, 294, 300, 354 202 bodies 4, 6, 354–359 Five Principles of Peaceful Coexistence 30, governance institutions 1–2, 4–5, 210, 32, 34, 37–38, 40, 47, 50–51, 54, 60–61, 280, 354, 357–361 75, 77, 80, 82, 89, 101–102, 106, 109, 118 global flexibility 44, 54, 172, 221, 269 justice 290, 329, 336, 346 Food and Agriculture Organisation (fao) markets 33 207 war on terror 116, 256, 262, 264, 266, 272, foreign policy 3, 8–10, 20, 25, 28–31, 38, 275, 282–283, 287 50, 63–64, 69, 79, 124, 179, 182, 302, globe 34, 43, 51, 136–137, 179, 199, 202, 256, 344–345 337 Forum on China-Africa Cooperation 191 government 30–31, 36, 63–65, 67, 73, 75–76, Forward Policy 78–80 78, 84, 86, 91, 93, 96, 103, 105, 115–116, fragmented approach 271 118, 122, 135, 137, 140–142, 144–146, Framework for Elimination of Syrian Chemi- 149–150, 152–155, 158–159, 164, 168, cal Weapons 243 171, 244, 262, 301, 303, 309, 311–312, France 64, 68, 84, 118–119, 136, 151, 174, 193, 314–315, 317–319, 321, 323, 324–325, 213, 220, 267–268 327–328, 331–332, 339, 341, 347, friendly relationship 77, 80, 92, 142, 310 349–351, 355 front-line states 96 gradual process 27, 126 Greater China 32, 82 Gabon 152 guerrilla 175 genealogy Gulf genealogies 16, 21, 108 Gulf Cooperation Council 259, General Agreement on the Establishment of Gulf crisis, 102 Peace and National Accord 154 Gulf of Tonkin, 85 General Assembly 31–32, 70–75, 77, 81, 83, Gulf War, 92, 242 88, 104, 109, 116, 130, 178, 188, 191–196, 200–203, 210–213, 216, 225, 229, 236, Habyarimana 151 244, 249–253, 259, 270, 274, 276–279, harmony 17–18, 21, 28, 35, 95, 115 284–287, 318–319, 322, 336–337 harmonious world 24, 29, 38, 40, 46, 50, General Framework Agreement for Peace in 57, 130, 249 Bosnia and Herzegovina 167, 305 harmoniously 35 General Peace Agreement 141 harmonisation 42, 49, 66, 131, 172, 307 general principle 6, 14, 47, 53 harmonise 21, 28, 300 Geneva Protocol on Poisonous hegemony 12, 31, 33–35, 42, 80, 82–82, 99, Weapons 241–242 104–105, 108, 135, 184
147, 164, 171–173, 186, 197, 254, 288, 298, opinio juris 14 352–353, 356, 358–360 opposition groups 119 North Atlantic Treaty Organisation (nato) Organisation for Security and Cooperation in 59–60, 85, 114–115, 118–119, 165, 169, 269, Europe (osce) 161 281–282, 303, 335 Organisation of African Unity (oau) 148– North East Frontier Agency 79 151, 153, 268 North Korea 69–70, 72–73, 177, 179–180, 182, Organisation of American States 191, 259 213, 220, 236–241 Organisation of Islamic Cooperation 37 North-South 34, 36, 218, 339 Organisation on the Prohibition of Chemical notification 217–218, 325 Weapons (opcw) 178, 210, 230, 243, Ntaryamira 151 244–245, 254 nuclear organised armed groups 187 ambitions 220–221, 236, 240 outer space 211 arms race 59, 201, 209, 213 outreach strategy 329 disarmament 78, 175–176, 194–196, ownership 87, 142, 153–156, 194, 199–200, 211–212 276, 278, 280, 286, 294–295, 304, 307, energy 179, 186, 200, 202–204, 215–216, 310, 314, 320, 325, 355, 358, 222–223, 226, 238 enrichment programme 198, 220, 223 Pakistan 36, 79, 104–105, 179, 182, 185, 205, issue 176, 179–180, 182, 220–225, 237, 213–214, 279, 283 239–240 East Pakistan 104–105 non-nuclear West Pakistan 104 weapons countries 195 Palestine Liberation Organisation (plo) weapons states 185, 194, 195–199, 91, 93 209–212, 214, 217, 223, 239, 254–255 Palestinian people 90, 93–94, 135 programme 220–221, 223–224, 236 Pan Am Flight 103 267 terrorism 216, 258, 265–267, 280 Paris Agreements 136, 139 test 185, 194, 220, 237–240 participation 7, 9–10, 14, 29, 35, 37–38, tests 180, 213 41, 45, 50, 54–55, 57, 84, 105, 128–130, weapons 83, 174–175, 177, 179–181, 185, 133, 136, 153, 172, 184, 191, 194, 210, 225, 193–197, 199, 201, 209–211, 213–214, 235, 241, 252, 254, 262, 272, 274, 276–277, 216–217, 226, 232, 281 280, 301, 310, 320, 336–337, 357, 360 nuclear-weapon-free zone (nwfz) 185, partnerships 38, 128, 182, 277 210, 218, 220 Patrick Hurley 301 Nuremberg Tribunal 302 peace agreement 136–137, 140–141, 144, 149–150, object-focused 14–15, 20, 55 155, 157, 305, 317, 322 occupation 63, 73, 83, 96, 98–103, 106, 133, enforcement 126, 132, 163, 172 135–136, 232, 275, 278, 293 support 118, 126, 172 occupying troops 100 peacebuilding 126–129, 160, 172, 179, 294, offensive 8, 15, 57, 67, 79–80, 129, 217 299–300, 352 Office of the High Representative 305–306 peaceful Omar al-Bashir 338, 341, 343 negotiations 78, 355 One China Policy 34 relations 125, 178, 184 Open Debate on Small Arms 250 resolution of conflict 2–4, 7, 115, 153, 278, openness 2, 13, 15, 53–54, 214, 280, 360 354, 357–359 Operation Desert Storm 103, 106 rise 8, 37, 57 Opération Turquoise 112, 151 settlement 102, 140, 154, 187, 343 operational principles 127, 131, 138, 158, 160, peacekeepers 126–127, 130–132, 138, 146, 154, 171–173 169, 342
213, 215–216, 223, 226, 253, 254, 277, 279, Taiwan 34, 76, 162, 191, 264, 302 301, 308–309, 359 Tajikistan 36, 154 Soviet Union (ussr) 65, 68–70, 72, 74, 75, Taliban 269, 275 78–84, 86–91, 94, 99, 104–105, 125, Tamil Tigers 327 133–136, 177, 179, 202 taxonomies 14, 16, 19, 55 Special Court for Sierra Leone (scsl) 291, technology 1, 174–176, 182, 186, 200, 202–205, 314–317, 319, 329 207–208, 228, 260, 264, 308 Special Criminal Court in the Central African technological exchange 206, 209, 228 Republic 291 Teheran 222–223 Special Rapporteur on Rwanda 160 Terminal High Altitude Area Defence Special Representative on the Situation of (thaad) 239–240 Human Rights in Cambodia 319 territorial integrity 31, 61, 65, 66, 71, 77, Special Tribunal for Lebanon (stl) 291, 80–81, 91, 93–94, 96–99, 101, 103, 324–326 105–106, 113–114, 118, 123, 139, 152, 181, spheres of influence 31, 33–34, 59, 107, 187, 192, 194, 199, 232–233, 245, 261, 265, 136, 346 267, 270, 323 Srebrenica massacre 307 territorial state 248, 284, 297–299, 330, Sri Lanka, 205, 279, 295, 327–328 333–335, 355 Stabilisation Force (sfor) 168 terrorism stakeholders 1, 4, 25, 40, 45, 49, 53–54, 60, counter-terrorism 109, 247, 257–262, 72, 113, 121, 123, 125, 131, 147, 155, 164, 187, 265, 269–279, 281–282–287, 189–190, 198, 233–234, 241, 248, 254, 258, 359–360 265–266, 274–276, 280–282, 287, 290, 1373 Counter-Terrorism Committee 259, 298, 308, 334, 342, 352–353, 355–360 273 stalemate 72, 81, 121, 198, 244, 325 counter-terrorism measures 257, 260, state actors 1, 5–6, 11, 45, 184, 187, 189, 191, 269–270, 272–275, 283, 287 194, 198, 204, 214–215, 250, 256, 258, 261, counter-terrorism mechanisms 265, 273 280, 359–360 counter-terrorism operations 260 state practice 14, 51 counter-terrorism treaties 265 Status of Force Agreement (sofa) 141 Declaration on the Global Effort to Com- status quo 2, 4, 78–79, 182, 184 bat Terrorism 283 stockpiling 176–178, 185, 228, 244, 279 fight against terrorism, 247, 258, 261, 264, Strategic Arms Limitation Talks (salt) 83 266, 270, 273–274, 276–277, 280–281, Sudan 124, 129, 144–146, 155, 298, 338–343, 322, 356, 360 345, 347–348 Global Counter-Terrorism Strategy 259, Sudan People’s Liberation Movement/Army 276, 287 (splm/A) 144 international terrorism 7, 256–260, Sudan Sanctions Committee 342 270–272, 274–276, 278–280, 282–284, suffering 1, 7, 94, 122, 162, 199, 242, 355, 357 287–288, 354, 358, 360 supervision 132, 158–159, 176, 186, 190, 204, nuclear terrorism 216, 258, 265–267, 207, 217, 219–220, 227–229, 241, 251, 254 280 survival 2, 60, 73, 76, 130, 175–176, 179–180, terrorist 1, 184, 187, 258, 260–262, 267, 183, 198, 257, 360 268–273, 275, 278, 280, 281–284, 287, sustainable 1, 43–44, 124, 127, 133, 156, 207, 322–324, 355 230, 286, 306, 313, 332, 341, 355 terrorist organisations 282 synthesis 12–13, 22–23 terrorists 117, 187, 191, 194, 256, 260–261, Syria 91, 120, 122, 124, 132, 158–159, 242–245, 266, 271–272, 278, 281–284, 286, 247, 248, 282, 323, 327, 341, 347–348, 354 288 Syrian crisis 120–122, 125, 348, 354 test of history 124, 244, 246, 354
The Hague 9, 215, 242, 258, 301, 304, 316–317, trust 345 trust-driven 28, 40–42, 55 theory on relationality 5 trustworthy 42–43, 125, 154, 261, 271, Theory on the Relational Normativity of 275–276, 281, 358 International Law (tornil) 6, 7, 11, truth 21, 245, 268, 290, 293, 296, 299, 313, 47–49, 51–52, 55, 61–62, 131, 172, 186, 317–318, 324, 328 254, 266, 287–288, 298, 352, 359 truth and reconciliation commissions 293 Third Revolutionary War 65, 68 Turkey Third World Turkish troops 99 countries 32, 34, 81, 89, 92 nations 79 Uganda 152, 298, 349 Three Hammarskjöld Principles 127, 137, United Kingdom (uk) 30, 66–68, 84, 118–119, 171 136, 193, 213, 219, 246, 267–268 Three World Theory 30, 82 United Nations (un) 10, 32, 57–60, 66–67, Tibet 71–73, 94, 99, 102, 110–118, 122, 126–130, Tibetan people 77 132–138, 140–142, 144–149, 151–159, Tokyo Tribunal 301–303, 330 161–163, 165, 167–168, 170, 171, 176, 178, tolerance 271, 285 190, 194, 196, 205, 215, 233, 243–244, 246, torture 110, 259, 311–312 248, 250, 258, 269, 290, 296, 312, 315, 318, trade 9, 29–31, 37, 40, 75, 130, 174–176, 319, 325, 327, 337–341, 345, 348–349, 351 181–183, 186, 188–193, 199–200, 205, un Alliance of Civilisations 285 207–209, 216, 222–223, 228, 248–250, un Angola Verification Mission (unavem) 253, 309, 340 144, 153 traditional security threats 2, 109, 187, 196, un Charter 58, 60–62, 67–69, 73–74, 89–90, 200, 254, 256, 261, 266, 276, 355, 356, 100–101, 108, 110–116, 119, 122–123, 126, 360 132, 146, 152, 156–157, 163, 165–170, 172, transaction costs 25 178, 219, 220, 244, 246, 266, 268–269, transcend 272–273, 283, 288, 294, 310, 314, 322, differences 16, 28 325–326, 329–330, 332, 335, 338, objections 49 340–341, 344–345, 357, 359 the impasse 221 un Command 70, 72–73, 81, 84, 162 transfer 116, 177, 181–182, 187, 190–191, un Commission of Inquiry on Darfur 339 200–201, 250, 304–305, 312, 316, 333 un Conventional Arms Register 191–192 transformation 16, 21–24, 27, 40, 130, 256, un Diplomatic Conference of Plenipotentia- 278, 292 ries on the Establishment of an Interna- transition 8, 119, 135, 144–145, 149, 159, 262, tional Criminal Court 337 298, 300, 303, 318, 327, 334, 347 un High Commissioner for Human Rights transitional justice 290, 293, 308–309, (unhchr) 161, 327–328 311–314, 316, 318, 321, 328, 347 un High Level Panel 60 transnational crime 36, 250, 273 un Human Rights Commission 160 treaty un Mission to Investigate Allegations of the treaty-making 14 Use of Chemical Weapons in the Syrian trials 293–296, 301–302, 306, 313, 317, Arab Republic 242–244 319–320, 333, 347, 350 un peacekeepers 126, 132, 157 tripartite mechanism 146 un Peacekeeping Plan 100 troop-contributing un Special Commission (unscom) countries 116, 171–172 232–233 states 166 un Special Rapporteur 160, 259
United Nations War Crimes Commission War Crimes Tribunal of Bosnia and (unwcc ) 296, 301–303 Herzegovina 305 United Nations-African Union Mission in War of Resistance 62, 81 Darfur (unamid) 145, 155, 341 war on terror 1, 4, 116, 184, 256–257, 260– United States (us) 16, 63–64, 66, 79, 84–86, 269, 271, 275, 279, 282–283, 287, 356 128, 133, 136, 179, 214, 217–218, 261, 345 warfare United Tajik Opposition (uto) 154 proxy warfare 106, 261 United Task Force (unitaf) 112, 168–169 urban warfare 175 Uniting for Peace resolution 70, 104 Warsaw Pact 59 universality 14–15, 40, 230–231, 241, 252 weapons embargoes 189–190, 192–193 universal weapons of mass destruction (wmds) 280 application 14, 231 Wen Jiabao 38 morality 15 Western epistemology 5–6, 11, 14–16, 22 participation 194, 235, 241, 337 win-win universalist 2, 15 win-win relationship 277 un-Lebanese Agreement on the Estab- withdrawal 64, 79, 83, 87, 91, 93, lishment of the Special Tribunal for 96–97, 99–101, 103, 113, 135, 138, Lebanon 325 140, 142, 148, 155, 172, 236, 241, unpredictability 20, 124 351, 355 un-Sierra Leonean Agreement on the Estab- world lishment of the Special Court 318 world order 2, 8–10, 13, 19, 32, 38, use of force 1, 4, 9, 57–58, 61–62, 64, 66–67, 40, 50, 57–58, 81, 126, 175, 180, 301 71, 80, 87, 94, 99–100, 107, 111–112, 114, World Health Organisation (who) 205, 118, 122, 125, 127, 131–132, 137, 163–167, 207, 243 170–172, 175, 211, 213, 237, 260–261, 266, World Organisation for Animal Health (oie) 283, 289, 354, 356, 359 207 World Trade Organisation (wto) 37–38, 50 vacuum 271 verification 140, 144, 183, 185, 208, 212, Xi Jinping 24, 39, 121, 215, 286, 343 216–220, 227, 230, 233, 251, 254 Xinjiang Autonomous Region 262 veto 52, 57, 68, 70, 143, 162, 245, 307, 348 veto power 68, 72 Yemen 283 victims 1, 90, 91, 97, 143, 177, 227, 248, Yom Kippur War 91, 132–133 255–256, 267, 269, 289, 295, 299, 317, Yosuke Matsuoka 64 321, 325, 331, 334, 352 Yugoslav Tribunal 290, 346 Viet Cong 86 Yugoslavia 66, 100, 114, 156, 162, 165, Vietnam 167–168, 290–291, 294, 303–306, Vietnam War 61, 82–83, 85–86, 108 308–309, 314, 329, 332, 334–335 violence 1, 2, 4, 30, 78–79, 89–90, 98–100, 106, 113, 117, 123, 125, 132, 151, 158, 170, Zaire 113, 311 175–176, 199, 257–258, 261–262, 265, Zambia 96–97, 152 282–284, 289, 310, 312, 317, 335, 338, Zhou Enlai 23, 29–30, 32–33, 70, 76, 339, 349, 354, 355–356, 359–360 78, 82, 84, 296 Zimbabwe war Zimbabwean people 97 war crimes 1, 117, 289, 293, 295–297, Zionist 301–303, 305–306, 308–309, 311, 329, Zionists 91, 135 338, 341, 352 aggression 135