Part I Rule of Law and Relations Among States
CHAPTER 1 China and the Fundamental Principles of International Law
I The History and Present Situation of the Fundamental Principles of International Law
The fundamental principles of international law are abstract and general international regulations which are used to explain the basis of international law and direct other international laws.
There are some required characteristics of the fundamental principles of international law: Firstly, universality, which means that every country can accept them with a belief that they have binding forces, and there should not be any country showing persistent dissent. Secondly, abstraction, which means that they can just be used to direct and evaluate the specific cases instead of being used in specific cases directly. Thirdly, globality, which means that they can deal with the global questions in international law, instead of the ordinary, specific, and detailed questions.
Currently, the fundamental principles of international law that are recognized around the world usually refer to the seven principles that are expressed in the Article 2 of the Charter of the United Nations, including: the principle of sovereign equality, the principle of fulfilling the international obligations in good faith, the principle of peaceful settlement of international disputes, the principle of refraining from the use of force or threat by force, the principle of giving collective assistance in any action in accordance with the present Charter, the principle of acting in accordance with these principles for the maintenance of international peace and security, and the principle of non-interference in other countries' internal affairs.
II China's Contributions to the Fundamental Principles of International Law
For a long time, China had simply replicated the fundamental principles and theories of the western international law in a single dimension and without criticisms, and there were seldom innovations and developments. In the 21stcentury, a new era with China's rise and national rejuvenation has come, which brings opportunities to gradually ease both subjective and objective constraints of the developments of China's international law theories. So China can gradually make its own contribution to the development of the fundamental principles of international law with Chinese characteristics.
Since the founding of new China, China's contributions to the fundamental principles of international law mainly include the following two aspects:
1. The Five Principles of Peaceful Coexistence
The Five Principles of Peaceful Coexistence contains the following content: Firstly, mutual respect for territorial integrity and sovereignty. Secondly, mutual non-aggression. Thirdly, non-interference in each other's internal affairs. Fourthly, equality and mutual benefit. Fifthly, peaceful coexistence.
These five principles are proposed by China and advocated by countries like India and Myanmar. China's supports for the Five Principles of Peaceful Coexistence are consistent. On September 3, 2015, President Xi Jinping, at the “Commemoration of the 70th Anniversary of the Victory of the Chinese People's War of Resistance against Japanese Aggression and the World Anti-Fascist War”, stressed that: based on the miserable lessons of history, the Chinese people would unswervingly pursue the road of peaceful development, be firmly committed to the win-win strategy of opening up, develop friendly cooperation with all countries based on the Five Principles of Peaceful Coexistence and maintain the world peace firmly.
At the international level, the Five Principles of Peaceful Coexistence have got great development in both depth and breadth since they were proposed. In the 1950s, the Five Principles of Peaceful Coexistence had almost been the basic principles in the relations between China and its neighboring countries. In the 1960s, the confirmation and acceptance of the Five Principles of Peaceful Coexistence had exceeded the scope of Asia. In the 1970s, some developed countries also began to understand and acknowledge the Five Principles gradually. Nowadays, the Five Principles of Peaceful Coexistence have gradually been acknowledged by most countries in the world, and their contents are not only reflected in many bilateral treaties, but also confirmed by many international multilateral treaties and international literature. The Five Principles of Peaceful Coexistence become not only the basis of China's pursuing of an independent and peaceful foreign policy, but also acknowledged by most countries in the world. They become important rules in regulating the international relations, and also become an important part of the fundamental principles of the modern international law.
2. The Principle of Harmony
Harmony means “harmony in diversity” and “the unity of human and nature”. It originates from the practical rationality of China's traditional culture. This traditional Chinese concept includes two aspects: the harmony between humans (harmony in diversity) and the harmony between human and nature (the unity of human and nature). Its primary intention is to organize a stable moral order that is guaranteed by the penalty.
Since the founding of new China, the concept of harmony has been creatively inherited and used in China. Entering the new century, China has put forward a series of strategies like “peaceful rise”, “peace and development”, and “harmonious world”. All of these reflect Chinese nation's determination to revive and the belief that China will not rise by war, which is the old way used by the big powers in modern times. It also shows the aspiration to rebuild the international order and realize the international harmony at a higher level. On March 19, 2013, when Chinese President Xi Jinping took the joint interview of the press from BRICS, he said that: “China will take the road of peaceful development unswervingly; we hope that all the countries around the world could take the road of peaceful development and there could be equal communications, mutual learning and common progress between countries and different civilizations.” On September 3, 2015, President Xi Jinping, at “the Commemoration of the 70th Anniversary of the Victory of the Chinese People's War of Resistance against Japanese Aggression and the World Anti-Fascist War”, stressed: “The aim to commemorate the victory of the Chinese people's Anti-Japanese War and the world anti-fascist war is to arise people's aspiration for peace and maintain it; China's being stronger also means that the strength of world peace is being stronger. We also sincerely hope that every country can absorb wisdom and strength from history better and adhere to the peaceful development, so as to create a future full of hopes of world peace.”
“Harmony in diversity” can bring us a win-win situation with both peace and development, which is not a fresh thing in the history of China. China's pursuing of a peaceful development road is neither an expedient nor a diplomatic parlance. It is a scientific conclusion drawn from the history, the reality, and the future, and it is also a unity of the confident thoughts and the conscientious practices.
III Suggestions for China to Promote the Construction of the Fundamental Principles of International Law
As China's overall strength is enhancing gradually, it is playing a more and more important role on the international stage, and China's participation and contribution in the fundamental international law are also growing in both width and depth. Meantime, as it is not a long time since China really began to play an important role in the international stage, and the time for the development of international law in China is also limited, there are still some disadvantages and room for improvements in the area of fundamental principles of international law.
1. Disadvantages
First of all, the Five Principles of Peaceful Coexistence are the products of a particular period, which are not enough to show the characteristics of traditional Chinese culture of law, and their acceptance in the western mainstream society still needs to be improved.
The time when the Five Principles of Peaceful Coexistence are proposed is also the time when the new China was excluded from the system of the United Nations when the only way to replace the UN's Collective Security Mechanism was to have an independent bilateral and multilateral cooperation. But as China has always pursued the peaceful diplomatic policy, the fundamental principles of the Charter of the United Nations, which are acknowledged by the international community and aim to maintain the international peace and security, must be the major elements of the Five Principles of Peaceful Coexistence. Although the Five Principles of Peaceful Coexistence have made enormous contributions to the modern international law, the Five Principles of Peaceful Coexistence, as “positive laws”, are in essence an extension of the Charter of the United Nations, and are still in the same system with the global international law which is based on the Charter of the United States.
The Five Principles of Peaceful Coexistence are the products of choosing a series of important principles in the system of the principles of international law and then uniting, sublimating, raising them. Although this unity is quite new as a form of expression, their substantial contents still belong to the existing principles of international law, and they are still permutations and combinations of the theories of the international law which are dominated by the western society without showing the particular contributions that China has made to the theories of international law in substance. The principle of mutual respect for territorial integrity and sovereignty is in fact a superposition of the principle of sovereignty equality and the principle of respect for territorial integrity. The principle of mutual non-aggression is in fact a deduction of the principle of sovereignty equality and the principle of refraining from the use of force. The principle of non-interference in each other's internal affairs is in fact a two-way strengthening of the principle of non-interference in other countries' internal affairs. The top half of the principle of equality and mutual benefit is a repetition of the principle of sovereignty equality, and the bottom half of the principle is an addition of some content of the principle of mutual benefit in the international economic law; as the proposal of the Five Principles of Peaceful Coexistence is earlier than the formation of the international economic law, the concept of mutual benefit is quite innovative; but we need to pay attention to the fact that mutual benefit are usually used only in the area of international economic law which adjusts the circulation relations in the international economy, not in the area of the public international law which has ideological characteristics, like international humanitarian law, international human rights law, and international criminal law etc., so this principle is short of globality. The principle of peaceful coexistence is in fact an expression of the unity of the principle of peaceful settlement of dispute and the principle of maintaining international peace and security.
As a result, although the Five Principles of Peaceful Coexistence have got a wide adoption and recognition in Asia, Africa and Latin America, the recognition in the mainstream of the international community, which dominated by the European and American countries, still stays at a stage where the Chinese government advocates the principles while the countries from Asia, Africa and Latin America accept the principles, and there is still a way to go for their sincere acceptance, affirmation, and usage.
Secondly, the meaning of the principle of harmony has not been expressed clearly. Its connotations and extensions are in an obvious chaos, and it hasn't got the wide recognition of the international society.
Rooting from the traditional Chinese culture of law makes the principle of harmony have distinct Chinese characteristics, which avoids the disadvantages of the Five Principles of Peaceful Coexistence effectively. However, the accurate understanding of the principle of harmony will get some complicated problems involved, like the conflict and unity of the traditional Chinese culture of law and the mainstream of the western views of law, the negation of negation of the natural law, and the operation mode of international law. The Chinese government's advocacy of this principle is in the initial stage, which is also a practice of wading across the stream by feeling the way, and it is hard to unify the understandings to the most correct path from the beginning. The connotations and extensions of the principle of harmony do not have a reasonable and authoritative expression since the beginning, and there are various opinions which lead to the obvious confusion. As a result, although China has consistently advocated the concept of harmonious world, there are still some countries where the interpretation of the concept is totally different from China.
The construction of the fundamental principles of international law, which is described as “a slight move in one part may affect the whole situation”, is especially relevant to both the international relationships and the adjustment or even reconstruction of the whole system of theories of international law. It is neither an overnight thing nor can be realized by just proposing several concepts. Only by starting from the most fundamental principles of international law, discussing the system of the principles of international law and its internal logic deeply, and accurately defining the principle of harmony and its coherence points with the views of the modern international law, could we lay a solid foundation for the construction of the fundamental principles of international law with Chinese characteristics. Obviously, it is not an easy thing for China to inject some excellent elements into the seemingly incompatible views of western international law. It has just been several years since the concept of “harmony” was acknowledged and advocated, and the whole society also needs to make great efforts in order to recognize it accurately and use it correctly in practice.
2. Suggestions for Improvements
For improvements, the overall train of thought is, based on the essences of traditional Chinese culture of law, to combine the concepts of “the Five Principles of Peaceful Coexistence”, “peaceful rise”, “peace and development”, and “harmonious world” into the much more basic principle of “harmony”. The first thing to do is to explain the connotations and extensions of the principle of harmony and combine it with modern western international law. Then, we need conduct the specific meanings of the principles, like “peaceful rise”, “peace and development”, “harmonious world” etc., and practice them in the international community. The final step is to advocate the principle of harmony as the basic value of international law, and promote its recognition in the international community, so as to construct a well-established legal system of the fundamental principles of international law.
To be specific, we should firstly combine harmony, which derives from the practical reason of China, with the ideas of western law, and explain the connotations and extensions of this principle exactly.
Because of the differences in social patterns, China has never been able to develop a relative complete theory of international law, but the unique idea of harmony in the traditional Chinese culture still has some elements that conform to the law of social development. Harmony is the fundamental principle that the system of western natural law lacks. The western law culture's failure in showing the principle of harmony is the flow of the system of the fundamental principles of natural law. In the prime of admitting the basic role of the system of the western natural law and its fundamental principles (justice, fairness, equality, and good faith), the principle of harmony should be included as another fundamental principle of the natural law.
Harmony means harmony in diversity and the unity between human and nature. It originates from the practical rationality of Chinese traditional culture. Harmony in diversity is one of the core contents of the principle of harmony. It is a state of harmony between humans, and it advocates the harmony with diversity instead of the harmony which is forced to be consistent. It combines the grasp of the overall situation with the tolerance of detail, and it also combines the long-term expectation with the short-term balance, so that we can easily see from it that there are still some gaps between the view of peace in the west and the view of harmony in China. The meaning of the former is much simpler, which is mainly concentrated on the peaceful settlement of disputes and the avoidance of wars and armed conflicts. By contrast, the Chinese view of harmony is premised on having diversities from the beginning, and it not only includes the concept of peace, but also pays attention to a state of coexistence. It not only includes inhibiting the thought of starting a war by rules, but also intends to eliminate the source of conflict and war. The unity of human and nature is another core content of the principle of harmony, which means a state of harmony between human and nature. It has a unique perspective on the relationship between human and nature, and advocates that human beings should respect nature and comply with the nature.
The combination of the Chinese traditional culture and the western culture will bring some opportunities for the development of international law and its fundamental principles in the new century. The development of international law has stalled in the new century, which is greatly related to the flaws in the system of basic values. The definition of basic values is quite vague and self-contradictory, so we need to add some new elements into the basic values, consolidate and figure out their relationships again. The western culture that forms the basis of international law emphasizes justice and believes in liberty, while the traditional Chinese culture emphasizes harmony and is much more tolerant of differences. This kind of harmony and tolerance not only has a broader connotation, but also has a practical motivation rather than a religious motivation, and can be applied to all other civilizations. So, this offers a new direction for the development of the international law and its fundamental principles. And only the combination of the two cultures and their essences can promote the full development of the sovereign state and protect the interests of the relatively weak states at the same time, so as to realize the stable and sustainable development of the international society.
Secondly, we should deduce principles like “peaceful rise”, “peace and development”, and “harmonious world” from the principle of harmony, explain their specific meanings and practice them in the international society.
Whether it is “peaceful rise” or “peace and development” or “harmonious world”, they are all concrete reflections of the principle of harmony in specific international relations. But what they emphasize is somehow different. Peaceful rise focuses on the road of growth that China, as a responsible country, will take. Peace and development focuses on the essence in the process of China's national rejuvenation and re-emergence, while harmonious world focuses on a state that the world ought to be after the view of harmony is correctly applied in the international relations.
China's advocacy and practice of the above principles in the international society will be a landmark of the whole international law system. In the past, in the system of international law which lacked the view of harmony, the rises of big countries have always been achieved in cruel ways, accompanied by wars, power, and slavery, and breaking the old international order and building a new international order always needed the help of violence. As early as in the era of Hugo Grotius, in order to get the great powers at the sea, armed conflicts between the Dutch and Portuguese happened frequently. France, governed by Napoleon, established its supremacy on the European continent through a series of wars. British established the so-called empire on which “the sun never set” through cruel colonial policies and the slave trade. The United States got the status of superpower by taking part in the two world wars… All of these have brought severe sufferings to the international community and the vast majority of the people. Nowadays, in fact, few countries would truly believe that a big country can rise in a peaceful way without seeking benefits for itself at the expenses of other countries. It also shows that there are no harmonious values in the current international society. Thus, if we combine the principle of harmony, which derives from the Chinese culture, with principles of western culture, we would be able to construct a better system of the fundamental principles of international law and make an ambitious breakthrough in the international law or even the fundamental theories of law.
Thirdly, we should advocate the principle of harmony as a basic value of international law, and promote its identification in the international community.
The value of positive law has a direct or even immediate impact on the positive law. Once a value is established, it means that the main body of the society has preset a faith and tendency consciously, and the main body of the society can make a judgment and choice on any situations of the positive law immediately by only relying on the faith and tendency. In the practice of the development of the international law, as long as the subjective faith and tendency are right, the positive international law will be correct. While according to the constructivism, identity constitutes interests and behaviors. That is to say, only when the whole society identifies a value, could they practice it and constitute a community of interests. Thus, as long as the principle of harmony can become a fundamental value of the international law and get the identification of the international society successfully, the observation of the principle of harmony would conform to the interests of relevant countries, and become their common behaviors.
China's peaceful development is a unilateral legal act that conforms to harmony, and will bring a win-win situation to the international society. It will prove that China is not a threat to the international society, and China will bring a new road of development with more opportunities to the other countries. The most important thing next is to make other countries accept it and practice it.
We need to make the international society understand that what China is seeking is not only an “exceptional” road of development, but also a new concept and value that can be used in the international society—harmonious development. It advocates the deepened international competition with peace, tolerance, leniency and mutual assistance. It can make every country get what they want without damaging the interests of other countries. It conforms to the natural international law, and will become the universal value and pursuit of the international community. We need to make the principle of harmony one of the fundamental values of the international law and make the value of harmony more recognized in the international society, which will be helpful to the realization of whole world's peaceful stability and orderly development finally. We need to take concrete actions to practice the principle of harmony. We need to be opposite to the hegemonies' unilateral action that is in violation of the international law, and go against the powerful states' amendments of the positive international laws that are in a form that do not conform to the natural international law. We need to advocate positive international laws that conform to the law of development in the new century through a friendly and cooperative way and promote reasonable amendments of positive international laws actively.
The establishment of the principle of harmony provides a theoretical basis for the international societies to pursue justice, and consider peace and friendship at the same time. It also provides rules for the international societies to seek development, and meanwhile, respect nature and comply with nature. “Harmony in diversity” will bring us harmony between humans, and “unify of human and nature” will bring us harmony between human and nature. A harmonious international community will be helpful for the achievement of true justice. It will be the biggest contribution that China can make to the theories of international law.