The Rise of China and International Law: Taking Chinese Exceptionalism Seriously

  • Published

The Rise of China and International Law: Taking Chinese Exceptionalism Seriously by Congyan Cai. Oxford University Press, 2019, 360 pp.

The Rise of China and International Law is an ambitious work that will appeal to not only lawyers but also anyone interested in China’s embrace of the Western international legal order as the nation grows in power and increasingly uses law—rather than war—to force its political agenda. Conyan Cai is a professor of international law at Xiamen University and an honorary professor of political science and law at East China University. He has held fellowships and visiting professorships at institutions in the US, Germany, and Japan. His book offers powerful insight as the US pivots to great power rivalries and as adversaries increasingly embrace “lawfare” rather than traditional warfare.

Over the course of eight chapters, Professor Cai provides an overview of the Western-centric international legal order, the Chinese legal establishment (courts and legal interpretation), and a few flashpoints involving China and international law. His key insight is that unlike past great powers, such as Britain and the US, China is rising to power while a robust international legal framework already exists. In contrast, past great powers rose to ascendency and were able to cobble together an international legal framework of their own due to their economic might and influence over smaller countries. Thus, powerful as China may be, it cannot expect to establish or change the legal order; rather, it must reckon with judicial bodies that can decide disputes and issue judgments that will bind the country.

The flashpoints mentioned above are the China-Philippines South China Sea (SCS) Arbitration and the China-US trade war. Both events are stunning for their breadth and precedence, but the author’s most novel insight is on the SCS Arbitration. This dispute concerned the Philippines’ alleged rights to islands within the South China Sea, a strategically important body of water in the Indo-Pacific Region. The SCS is central to China’s economy, trade routes, and military maneuvering. In 2013, after years of private negotiations with China, the Philippines initiated an arbitration hearing against China to gain a binding judgment from the Permanent Court of Arbitration that the Philippines possessed territorial rights to the Nansha (Spratly) Islands in the SCS.

From the beginning, China maintained that the SCS Arbitration was improper because Chinese-Filipino private negotiations had not yet broken down, China did not overtly consent to arbitration (which is ordinarily required), and disputes over territorial rights or maritime boundaries have not traditionally been settled in arbitration. In response, the SCS Arbitration Tribunal opined that it does in fact have jurisdiction over China, so the Philippines proceeded with the arbitration absent Chinese participation.

When the Philippines finally won an arbitral award against China in 2016, China unsurprisingly maintained that the award was “null and void.” Nonetheless, President Duterte—coming into office a few months before the award in favor of the Philippines—took a soft approach with China, and private negotiations between the two countries resumed. While China has gradually warmed to international dispute settlement bodies—especially since joining the World Trade Organization, which mandates internal dispute settlement—the SCS Arbitration is a stark example of China’s outright rejection of Western legal norms and jurisdiction. Time will tell if this is indicative of the Chinese approach to arbitration or if the SCS Arbitration is an outlier. Experts will closely follow China’s future engagement with international tribunals since it is a safe assumption that more and more international disputes will be settled with the pen rather than the sword.

Professor Cai’s book is strongest when it discusses China’s approach to international law through examples. Regrettably, this happens primarily in the second to last chapter titled “Lawfare in Dispute Settlement.” This chapter wrestles with the SCS Arbitration and with the China-US trade war. Prior chapters, while extremely informative, are rather dry and read like musty reference material on Chinese governmental history and court development. Most readers will likely be more interested in how China has reluctantly embraced Western law in recent years, as this is a current issue without clear guidance. Still, the author’s perspective is unique and vital in all chapters because he is a multilingual Chinese scholar and practitioner with firsthand knowledge of his topics.

Of its weaknesses, Professor Cai’s book sometimes reads like a work in progress. In particular, it contains numerous glaring typographical errors and incomplete sentences. Section transitions can be awkward, and the book sometimes feels like a manuscript in the midst of editing. Perhaps the book was rushed to publication, or more likely, the book is an amalgamation of several research projects funded by China’s National Social Science Planning Office that were hurriedly combined by the author into a single book. Additionally, from a conceptual standpoint, the book lacks real proposals, leaving the reader to wonder how issues of lawfare—which are numerous and pressing—will be addressed in the real world. Understandably, Professor Cai is an academic, so real-world plans of attack can be left to practitioners. Still, even theoretical proposals would offer the reader some level of resolution.

The US National Security Strategy speaks in terms of “long-term strategy” because as adversaries’ capabilities slowly match or exceed American capabilities, US defense experts look to gradual measures merely to slow the erosion of American superiority. The US is in a de facto cold war with China. Strategic competition with any revisionist power, but especially China, will not take the form of armed conflict—not yet—but rather regional influence won through economic and lawfare skirmishes. In this context, China will use international law as a means to extend its might, justify its rise, and outdo the US without ever declaring war. How it does so and what the US can mount as counter-lawfare will determine how robustly the US can compete with China in the long term to achieve its national security objectives.

Capt Matthew H. Ormsbee, USAF

"The views expressed are those of the author(s) and do not reflect the official policy or position of the US government or the Department of Defense."