The Empire's New Clothes: Cultural Particularlism and Universal Value in China's Quest for Global Status

THE EMPIRE’S NEW CLOTHES

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THE EMPIRE’S NEW CLOTHES CULTURAL PARTICULARISM AND UNIVERSAL VALUE IN CHINA’S QUEST FOR GLOBAL STATUS

Jeremy T. Paltiel

THE EMPIRE’S NEW CLOTHES Copyright © Jeremy T. Paltiel, 2007. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission xcept in the case of brief quotations embodied in critical articles or reviews. First published in 2007 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS. Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–1–4039–3198–3 ISBN-10: 1-4039-6198-0 Library of Congress Cataloging-in-Publication Data Paltiel, Jeremy T. The empire's new clothes : cultural particularism and universal value in China's quest for global status / By Jeremy Paltiel. p. cm. Includes bibliographical references and index. ISBN 1-4039-6198-0 (alk. paper) 1. China--Foreign relations--1976- 2. Political culture--China. 3. Sovereignty--Case studies. I. Title. JZ1734.P35 2007 320.1'50951--dc22 2006033722 A catalogue record of the book is available from the British Library. Design by Scribe Inc. First edition: June 2007 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

Dedication This book is dedicated to the memory of my parents, Dr. Khayyam Zev Paltiel z’’l and Freda L. Paltiel z’’l, both of whom yearned to see this project completed and deserved to live long enough for it to see the light. Their encouragement, and that of many unnamed others, was my inspiration. I hope this book stands as a fitting monument to their persistence.

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C ONTENTS

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xi Introduction: Identifying China in International Relations . . . . . .1 1 The Ins and Outs of Sovereignty . . . . . . . . . . . . . . . . . . . . . .29 2 Sovereignty in the Discourse of the Communist Party of China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 3 National Rights, Human Rights, and the Rule of Law . . . . . .89 4 Human Rights and Membership in International Society . . .139 5 China and the World Trading System: The WTO and Beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163 6 Taiwan and the Concept of Territorial Sovereignty . . . . . . . .191 7 Conclusion: China and International Society . . . . . . . . . . . .213 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245 Author Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .311 Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .315

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A CKNOWLEDGMENTS

The author wishes to acknowledge the support of the Social Science and Humanities Research Council of Canada, which awarded me a three-year standard research grant in 2002. I would also like to thank my copy editors, Mary Liston and Tanya Casperson, as well as my research assistant, Wayne Zhu. Along the way I have also benefited deeply from intense discussions with my friend and colleague Oded Lowenheim, of the Hebrew University of Jerusalem. I should also point out the long-time encouragement of Dr. Bernie Frolic of York University; he has followed and supported my career since he first shepherded me across the Lowu Bridge into the People’s Republic of China from Hong Kong in 1974.

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F IGURES

Figure 1 National Strength Arrayed against International Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Figure 2 Citations in Chinese Legal Science (Zhongguo Faxue) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121 Figure 3 Citations in Chinese Legal Studies (Faxue Yanjiu) . . . .122

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I NTRODUCTION : I DENTIFYING C HINA IN I NTERNATIONAL R ELATIONS

The most important thing in social life is how actors represent Self and Other. … Society, in short, is “what people make of it.”1 Although China cannot be said to be fully cooperative in every issue of international relations, it has pursued a more accommodative, although occasionally erratic posture over the last 150 years. Indeed the general pattern and direction of China’s international behavior, albeit more in the global political economy than in global high politics, has been a slow but steady movement from conflict to cooperation. And China is more cooperative in high-profile multilateral institutional or negotiating settings than in low profile bilateral negotiations.2

THE PRICE OF RESTORED GREATNESS

In this book I address both “fit” and “fashion”—hence the title. I focus on how China has had to restyle itself to gain recognition from an external audience that was once peripheral but is now the arbiter of fashion. A China used to turning heads before a select audience, largely of its own choosing, now seeks to turn heads far and wide. It aspires to be the fashion capital of the world and has successfully incorporated its own traditions into its designs while producing the finest cutters, seamstresses, and materials in the world. But it alone cannot decide what the “Spring Look” should be. To ensure the return of buyers, it

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has to keep its styles familiar. And even though the buyers are intrigued, they still flock to the runways of Paris and New York. I address this book to multiple audiences. I direct it first toward those who want to know more about China’s relationship with the world and who are concerned about the impact China will have on international society. I also write for scholars of international relations who are engaged in the debate concerning the “social construction” of the international system. Finally, I offer a case study of the politics of socialization. China has entered the world system both objectively and subjectively from the outside. Prior to the Opium Wars of the nineteenth century, China did not engage in regular international relations with the states of Europe, nor did it perceive itself to be embedded in a system of like political units. How China was forcibly brought into this system is relatively well known. How the manner of China’s entry into the world system continues to color its foreign policy is less well studied. The outcome of this process, the effect of Chinese perceptions on the evolution of the international system, is an emergent subject. Students of Chinese politics in particular, and of comparative politics in general, are interested in how China’s interaction with international society affects the evolution of its domestic institutions, norms, and values. The cultural confrontation between China and the West precipitated a succession of new institutions and values that centered on sovereignty and focused on bringing China back into the mainstream of world history. Participation in a new global narrative entailed the integration of sovereignty into the identity of China. Sovereignty crystallizes a lens through which a narrative reconstruction of the Chinese “self” is projected on an international “other.”

SOVEREIGNTY: THE RELATIONAL NEXUS OF IDENTITY AND THE CHINESE CULTURE This book is about the relationship of sovereignty to identity and how identity informs the reception of external norms. Scholars and practitioners agree that sovereignty forms one of the basic qualities of modern statehood. Modern international relations theory and the entire corpus of international law, especially public international law, are built around the collectivity of sovereign states that is organized as a sort of “international society.” Controversy arises over the quality of the relationship between individual states and the structure of “international

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society,” and the degree to which the qualities of sovereign statehood structure international society, and vice versa. In other words, how does international society structure the qualities of individual states? A century and a half ago, the Chinese state was dragged into international relations with states whose fundamental attitude was that China operated outside the norms and had to be forcibly constrained within them. The ensuing study identifies with some historical precision exactly what those constraints are and how they have changed since China was forcibly brought into a Western-dominated system of international law. International lawyers concur that sovereignty is not one single element; rather, it “is like a bundle of separable rights.”3 The first point, therefore, is that in important respects sovereignty belongs to a culture of rights that is itself a type of legal rule. Despite attempts to treat sovereignty as a “fact” of statehood, it is ineluctably bound to a legal culture, and as with all cultures, sovereignty distinguishes between those on the inside and those on the outside.4 Any system of (human) relations can be said to form a “society,” but not all societies view relations in the same way. Western cultures are particularly oriented toward the legal dimensions of relationships: Ubi societas ibi lege (Where there is society there is law). By contrast, Confucianism, which served as China’s official ideology for more than two thousand years and underpins its current political philosophy, views relationships as fundamental, and essentially pre-legal. World politics is a relational system formed through the interactions of key global players. Another central tenet of China’s Confucian legacy holds that relationships are morally transforming. Self-consciously attending to our relationships with other human beings teaches us to become truly human, or zuoren. This implies a predisposition to social engagement rather than withdrawal from it. Daoism, the great counterpart of Confucianism in the Chinese philosophical tradition, instructs that all relationships are impermanent and changing. Both of these philosophical tendencies, however, view the relationship, not the individual, as the fundamental unit of analysis. The Western study of international relations betrays its name: its unit of analysis, the state, consistent with the philosophical tradition in which it is rooted, is individual—the individual state. In the Realist tradition, which has dominated international relations theory for at least half a century, relationships among states are relations among atomistic individual states that pursue incommensurable interests in an international system characterized by anarchy and structured by power.

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In his important work on the strategic culture of China, Alastair Iain Johnston has termed China’s approach to international relations “cultural realism.”5 How can we reconcile this with the Chinese philosophical tradition mentioned earlier? Confucianism is a normative theory that concerns the organization of society and the pursuit of a moral life. Its basic outlines, found in the Analects of Confucius, lack a systematic metaphysics, epistemology, or ontology. Confucianism is concerned with what is moral for humans, not what is. Moral life does not guarantee the basic necessities for survival but instead enables humanity to live up to its aspirations. In anarchy, where human beings are strangers to one another, instrumental relationships may prevail. Only when human beings live under the civilizing force of good government can the potential inherent in punctilious attention to proper relations be realized. Confucius recognizes that force is an indispensable tool of governance. He argues that good governance looks beyond force and aspires to release the self-civilizing potential of mannered relationships found in rituals. True to its prescription of proper behavior in particular circumstances, Confucianism prizes rites over rights. A moral life, for Confucius, is therefore culturally relative. It emerges out of a single civilization within recognized cultural norms. Culture aims to tame egotism and to domesticate power. By contrast, self-interest and power are the bedrock concepts of “realism” in international relations. The school of Confucianism propagated by Mencius during the Warring States period preached a normative theory of politics that dichotomized and contrasted realpolitik—badao, the way of the hegemon—from wangdao, the civilized or “kingly” way. Anarchy renders moral life impossible because moral action requires a social context within which proper ritual relations instantiate moral relationships. The protection of good government and the maintenance of a civilization, where manners are respected, make a state worth defending, even to the death. Self-conscious moral individuals, like Confucius and Mencius, refuse to participate in bad government, where power and selfish interest are the norms. Good government is a moral imperative, but relationships are contextual. Hence, proper behavior in a relationship is culturally determined. In anarchy, a relationship lacks normative content and becomes practically indistinguishable from the amoral calculus of power and interest embedded in political realism. In the Chinese context, moral language is routinely employed to approach all relationships, including the discourse of foreign policy. To the extent that China’s counterparts respond to normative appeals, China may

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reciprocate in kind. To the extent that China’s counterparts reject the normative system proffered, China will react in the language of force and interest. Implicit in this calculus is the idea that realpolitik is the only practical way to treat strangers. The civilizing effect of culture is predicated on sharing a common understanding of relationships, and on both sides to a moral relationship remaining open to mutual moral transformation. As a matter of historical fact, China is a stranger to Western civilization.6 Western norms of international relations—sovereignty, sovereign equality, international law, and even the nation-state itself—were imposed on China after its defeat in the Opium Wars in the first half of the nineteenth century.7 This experience socialized China to look at the world through the lens of power, interest, and force. China’s efforts to reorganize its state along Western normative lines and to achieve recognition as a sovereign entity were largely ignored until China acquired the capacity to repel foreign interventions from its soil. The experience of foreign intervention, weakness, and supine submission forms the underlying basis of what Michael Swaine and Ashley Tellis term China’s “calculative” grand strategy—to regain the economic, technological, and strategic power to compel the recognition of China’s status in the world.8 The strategy is to maximize “comprehensive national strength”—a complex of technological, economic, political, and military power. It is a strategy formulated to deal with an alien system of norms, where power is the sole ticket to a seat at the table. From this perspective, China looks set to “challenge” the global order because only by mounting such a “challenge” will China and Chinese concerns be taken seriously in a global system organized around the concepts of power and interest alone. Yet the instrumental pursuit of power entails compromises over means. Through the Chinese revolution, a new Chinese state emerged that could coordinate all aspects of social interaction, assert its power over the periphery, and defend the national frontier. The Korean War, the border war with India, and the skirmishes with the Soviet Union forcefully demonstrated the will and capabilities of the state along its frontier. It took the paroxysm of the “Cultural Revolution” to bring stability to the exercise of sovereign authority in domestic society. Only after drawing a line under revolutionary transformation could the Chinese state turn its attention to international comparison. “Modernization” was first and foremost about the reversal of China’s invidious status in the world. To gain access to vitally necessary capital and technology, China has since the end of the 1970s adopted an “open policy.” This open policy has involved the wholesale restructuring of China’s

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economy and key characteristics of the Chinese state that include its legal system and system of property relations as well as participation— ranging from grudging to enthusiastic—in global institutions, regimes, and treaties. It is worth asking at what point the means begin to modify the ends. In a recent book, Stephen Krasner coined the phrase “organized hypocrisy” to describe the normative aspects of the concept of sovereignty. From a Chinese perspective, all the normative pretensions of the West are hypocritical because the means by which these were imposed on China were the “hegemon’s way”—by force. Let me return for a moment to my initial premise: relationships are transformative. Frederik Barth makes the following point about ethnic identity and cultural contact: “Where persons of different culture interact, one would expect these differences to be reduced, since interaction both requires and generates a congruence of codes and values—in other words, a similarity or community of culture. Thus the persistence of ethnic groups in contact implies not only criteria and signals for identification, but also a structuring of interaction that allows for the persistence of cultural differences.”9 As much as China aspires to transform the “balance of power,” the effort to transform that balance also leads to the transformation of China itself. To visualize this concept, imagine two curves, arrayed along two axes (Figure 1). Along the vertical, or Y, axis the change in “comprehensive national strength,” that is, the economic, technological, and military capacity of the (Chinese) state, is tracked. Along the horizontal, or X, axis is time. Imagine another vertical axis superimposed on the first. This axis is labeled “adaptive conformity to international norms, institutions, and regimes.” The origin of the X axis is labeled as the beginning of Deng Xiaoping’s “open” strategy, December 1979.This, not coincidentally, was also the point at which diplomatic relations between the People’s Republic of China (PRC) and the United States were formally normalized. So, at what point do the two curves intersect? In other words, at what point does China’s “comprehensive national strength” begin to align with its participation in global norms, institutions, and regimes? At that point does China’s seat at the table become indistinguishable from other seats arrayed alongside, thereby making China no more and no less a challenger than any other state? True to the logic of Confucianism outlined previously, the point where the two lines intersect marks a subtle boundary where the “table” of international relations ceases to be strictly “Western” in its civilizational form and begins to adapt to cultural influences mediated by China.10 I leave it to the reader to determine whether this adaptation

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Figure 1 National Strength Arrayed against International Compliance

constitutes a “threat” or a positive development. I suggest that the adaptation will be so subtle that Western states will scarcely be aware of it. Over time, China will come to be regularly included in calculations that concern the character and form of international society. Only in retrospect will Western states recall the moment when they stopped referring to “China” and “the West” in dichotomous and mutually exclusive terms. In this book, my objective is to quantify and analyze the transformation just outlined. To make the task more manageable, I have formulated the problem in terms of the Chinese reception of a single concept—“sovereignty.” My approach in this book is in broad form consistent with the perspective of social constructivism, in particular the constructivist approach that Alexander Wendt adopted and has its root in epistemological realism.11 In deeper terms, I am convinced by the sociological approach of Max Weber. Ideas matter, but their power is not arbitrarily constructed. Ideas acquire their power when they become embedded in social structure, and these social structures in turn must have a stable relationship to the natural environment to allow them to sustain human life. This is what Wendt calls “ideas but not ideas all the way down.” In this study, what matters in particular is that identities (in this instance the Chinese identity) are constructed through interaction with others.12 Identity itself is a social construction that cannot be essentialized.

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Sovereignty is the idea that states have an “inside” and an “outside” defined by boundaries. It is, as I will show, an idea with a very specific Western pedigree. It is, as Terry Nardin so aptly explains, a “status.”13 A status is a dichotomous variable: possessing it creates entitlements and rights, and not having it denies access to those entitlements and rights. Among the Chinese there is an acute sense of deprivation of the entitlements of sovereignty, and in many respects Chinese foreign policy is a quest for the return of these lost “rights.” Chinese foreign policy and Chinese leaders have addressed the international system from the perspective of outsiders to a Europeanconstructed international society led by great powers. Therefore, it is less a personal affinity toward theories of social construction and the “English School” that drives this analysis than a recognition that these schools address the contours of the behavior that I recognize in the Chinese state. This does not deny something that has been called “Chinese realism”; instead, it gives it a context in the relationship of a power facing society from the outside. Moreover, I wrote this book to redress a lacuna that I have noted in both the literature of the English School and the Social Constructivists—the failure to address systematically the impact of international society on significant and potentially powerful outsiders. Many works have pointed at the role of social construction in marginalizing Third World actors. Others look at the role of international society in “socializing” new members, but none have looked at the pattern of antagonistic interaction that marks a would-be participant. To the extent that such a “society” constructs norms of state identity and state behavior, these cannot be limited to the sphere of “international relations.” Although I reject the terminology of the “standard of civilization” as a legacy of racist and imperialist paternalism, I recognize that international “societal norms” work to construct state identities along with the participation of states in “international society.” Thus the political process of “socialization” involves patterns of conscious resistance to preserve distinctive identities and patterns of normative convergence to seek access to the “status” of a sovereign power. In some ways the language of “socialization” mistakes a fundamental reality about the interaction of China with Western powers. China was not born as a state with a hard shell and then became socialized as a “chick” in the international system. It was exposed without a shell and had to acquire that shell with materials available only through the international system. China is not divesting itself of its hard shell; in many ways, it is still acquiring it.

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The “Chinese” identity requires the affirmation of something that is specifically Chinese and the widespread recognition of a Chinese “difference.” Defining what is distinctively Chinese is simply a problem. The transformative power of relationships corresponds, after some fashion, to the volume and frequency, or density, of interactions. These can be quantified, approximately, by looking at the statistics of trade, investment, travel, international study, and international communications. Since trade involves bargaining and deal making, it is a fair proxy for cross-cultural negotiation and intercultural exposure. Moreover, trade indicates successful negotiation of value differences.14 On this basis one has to assume that the Chinese are more than capable of negotiating values across cultures and, indeed, that Chinese are no less skilled that Westerners as managers of cultural brokerage. Of course, national statistics underestimate regional variation within China in terms of exposure to the West. Yet even if the gradient of the volume of transnational transactions drops steeply when moving westward from the coast, absolute gains in interior provinces are just as impressive. Putting statistics in this form actually understates indirect Western impact through interactions with more open parts of China. Statistical inference shows that viewing “China” and “the West” in strictly dichotomous term is a linguistic or an ideological construct, a form either of “Orientalism” or its reflexive counterpart, “Occidentalism.” Although Edward Said’s contribution to the debate on crosscultural communication has been to emphasize the distorting impact of power on cross-cultural interactions, he incidentally emphasizes the ways in which interaction constructs difference. Both interaction and power construct difference. “Chinese culture” is contested and political rather than static or immutable. As Barrett McCormick and David Kelly argue, culture is “an open-ended repertoire of symbolic forms and practices.”15 Discussion of “Chinese culture” today cannot ignore the fact that some notion of “western culture” is never outside the frame of reference. Today, there is no, nor can there be, pristine Chinese culture that remains “uncontaminated” by Western values, concepts, and theories.16 The profound impact of Marxism-Leninism, whatever its ultimate influence on the long sweep of Chinese history, conclusively proves that Western ideas can find hospitable soil on the banks of the Yellow River. There was some undoubted resonance or affinity between the revolutionary ideology of Marxism-Leninism and some aspects of indigenous Chinese thought,17 but the revolution created a genuine hiatus in the official ideology and major social institutions. Mao Zedong himself claimed to “sinify” Marxism—“integrating” its theory with “Chinese

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practice.” The resulting synthesis is one aspect of contemporary “Chinese culture.” Just as the official ideology of China has been transformed dramatically in less than two decades after the death of its founding father, “Chinese culture” has adapted even faster, absorbing new values and ideas. Contemporary Chinese no longer approach Confucianism except as inhabitants of an intercultural space—a space defined by an amalgam of Western and indigenous ideas where there is a pervasive sense of a dichotomous boundary, without the means to delimit its location. The West maintains a ghostly presence as “other,” without any clear sense of who “we” are. There is a “clash of civilizations,” but it is not, as Samuel Huntington imagines, between “the West and the rest.”18Rather, it is within postcolonial societies, including the West itself. The struggle everywhere is between principles of universality and particularity—between participation in a larger world project and local acts of dissent against it. Negotiating a new identity is especially painful because the Chinese tradition and its core Confucian thought is not particularistic, but universalistic.19 Therefore, the Chinese remain uneasy about embracing particularistic accommodations to a purported universal civilization imported from the outside, but they are uncertain about the place of the Chinese tradition in the creation of some sort of universal civilization in which the Chinese and Chinese culture are full participants. Xiaomei Chen observes that “To a large extent all elite discourses of anti-traditionalism in modern China from the May Fourth movement to the 1989 Tiananmen student demonstrations have been extensively orientalized. This … partially self-imposed orientalism is quintessentially reflected … in Chinese ideas of the idea of history as progress and teleology, notions derived from the Western Enlightenment and … various schools of Western utopian thinking that … found their most potent expression in the ideas of Karl Marx.”20 Yet Chen goes on to comment: Orientalism has been accompanied by instances of what might be called Occidentalism … a discursive practice that, by constructing its Western Other, has allowed the Orient to participate actively and with indigenous creativity in the process of self-appropriation, even after being appropriated and constructed by the Western Other. As a result of constantly revising and manipulating imperialistically imposed Western theories and practices, the Chinese Orient has produced a new discourse, marked by a particular combination with both elements interacting and interpenetrating each other. … Occidentalism exists in a paradoxical

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relationship to the discursive practices of Orientalism, and in fact shares with it many ideological tendencies and strategies. Despite these similarities however … Chinese Occidentalism is primarily a discourse that has been evoked by competing groups within Chinese society for different ends largely, though not exclusively, within domestic politics.21

The struggle to define the Chinese identity against the dominance of the West finds its necessary counterpart in the urge to seek out universal value . The resulting tension finds its primary expression in nationalism. The nation-state and, by implication, nationalism, as is frequently remarked, is a Western development that comes to fruition in the closing years of the eighteenth century, emergent around the time of the French Revolution.22 Benedict Anderson in his felicitous phrase also remarks that nations are “imagined communities.”23 Nationalism from its specific origins in Western Europe has become a providential fact of the modern era and has spread to every continent and practically every human community. The irony here, however, is that the “universal” force of nationalism indicates the most significant form of particularism and localism associated with the rise of capitalism and industrialism. Nationalism is the “particular” face of politics and identity in the modern age—the bastard brother of the universal reason of the Enlightenment. Is nationalism an act of resistance against universality, or is it in fact its instantiation in the movement from Gemeinschaft to Gesellschaft?24 If China shares the universalization of the nation-state, this begs the question of what kind of “community” the Chinese “imagine.” Joseph Levenson claims to have located the transition between “culturalism” and “nationalism” in the mind of Liang Qichao. Once Liang was able to imagine modernity as a break with the past, he could find a point of equivalence between the European renaissance and his own struggle to affirm the dignity of the Chinese culture in the face of its political abnegation. Separating the interests of the Chinese people from the norms of the Chinese culture, Levenson concludes, constituted the death of culturalism and the birth of nationalism. One salient feature of nationalism is the notorious difficulty of defining the concept. Some authors therefore choose to write of “nationalisms” in the plural rather than the singular.25 One reason for this multiplication is the dependence of nationalist ideas on projections from the local traditional culture. Hence, the modern era is not simply a midwife to changing Chinese notions of identity, as could be construed from a superficial reading of the work of Levenson. Modern Chinese nationalism necessarily bears

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the genetic imprint of earlier “culturalism.” Moreover, one of the most important and deeply significant features of Chinese culturalism is its universal or universalizing scope. In a process that Levenson calls the search for equivalence between China and the West,26 Chinese intellectuals have attempted to find ways to incorporate in their own views of China elements that they value in the West and at times to look back at the Chinese tradition for answers to the problems they see arising from the development of the West. In professing allegiance to the ideal of progress and acknowledging the advance of the West, the Chinese disagree over the traditional values they might wish to reaffirm. The quest for “national salvation” involves several generations in a shopping spree of imported ideas and Western technology. Alongside support for “Mr. Science” and “Mr. Democracy,” the resounding slogan of the May Fourth Movement (1919) was “Down with Confucius and Sons.” Some view the hiatus of the Chinese tradition as a historical process analogous to the European renaissance. Chou Tse-tsung, the foremost historian of the May Fourth Movement, disagrees: he insists that it marks a true hiatus—a reevaluation of the Chinese tradition and a turn toward the West.27 The central problematique that arose at the time was how to revive China as a symbol of pride and still systematically reject all its moribund traditions. This debate forms part of the problem of history and value.28 The intellectual history of modern China is a narrative of contested authority and contested legitimacy. For a period, Communist ideology, particularly in its Leninist form, provided an answer: China would join the vanguard of history, overtaking the “moribund” capitalist West even as it rejected its own tradition. Taking note of the revolutionary break of iconoclasm in modern China, scholars both inside and outside China disagree vigorously over the extent and depth of Confucianism in the contemporary Chinese political culture. Pressured by the overwhelming weight of invidious comparison and in an effort to establish some value in the maintenance of a distinctive Chinese identity, Chinese scholars (and officials) return to the treasury of cultural tradition. To become full participants in the modernization project, not mere objects of modern utility, the Chinese provoke a need to reaffirm elements of their own identity. At the same time, to explain why China seemed for so long to fall by the wayside, it is important to critique it. Scholars therefore approach the traditional culture from both these two directions, as tropes of debate and engagement. Although the Chinese state, the Chinese nation, and the Chinese culture are all reaffirmed as historically incontrovertible entities and facts, they are still viewed as transitional and historically

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contingent. There is something hybrid, perhaps, between the impermanence derived from Chinese Daoist and Buddhist traditions and the strong teleology of Western modernism, prevalent especially in its Marxist variant, in the contemporary idea of China. This China is in the process of becoming a China that is rooted both in historical greatness and world importance and is in transition back to its roots. Tradition is an object to be evaluated and used rather than a continuous fountainhead of value. Near-unanimous acceptance of evolution and progress, together with constant international comparison and attention to relative international position, has not yielded a unified Chinese worldview, except when under the thrall of enforced ideological conformity. Progress as an ideal may be adopted from two different and potentially conflicting value premises. One view is cosmopolitan and sees progress as participation and involvement in a universal project that distributes value according to the relative contributions to this common goal. Another view sees progress as utilitarian and particularistic—a means or a tool to reestablish the innate glory and greatness (of China). The latter approach raises the question of why glory for China, which in turn leads reflexively back to a definitional problem rooted in the Chinese tradition and results in such formulas as “Socialism with Chinese Characteristics” and a concomitant search for the value premises of China’s greatness. Scholars of the former type may be called modernists of a cosmopolitan universalist persuasion, and scholars of the latter type I would call nativist and utilitarian modernists.29 The place of human rights in the mix of universal values, which join China to the mainstream of world-historical development, depends on the political claim being advanced and the target audience (against whom that claim is asserted). Imperialism was itself once rationalized in terms of the universal imperatives of “civilization.” Indeed, the legacy of imperialism is a main reason why the term “civilization” has such negative undertones.30 The Chinese assertion of sovereignty is an effort to project into international space and intercultural discourse the Chinese concept that “the inner and outer are different” (neiwai you bie). Although this concept parallels the dimensions of domestic jurisdiction and international anarchy familiar from realist discourse of international relations, it is not congruent with it. For various historical reasons, China is more concerned with the assertion of difference than it is with the intricacies of legal jurisdiction. Territorial supremacy is certainly a paramount goal of the Chinese state, but it is also a means to project the twin concerns of membership in the community of great powers and of the right to dissent from Western culture.

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The demarcation between nei and wai has a particular meaning in the Chinese cultural tradition31 that corresponds to the sphere of intimate obligations (nei) and instrumental encounters with strangers (wai). The meaning of neiwai you bie must be understood in terms of value, not territory. This concept refers mainly to the sphere of relationships. It is cognate with the sociological concept of “in-group” and “out-group” relations. “In-group” relations are relations defined by affective ties, what the Chinese call renqing (human feelings). “Outgroup” relations are defined by the absence of affective ties and, hence, the absence of a web of obligations. Relationships with strangers are defined by an absence of mutuality. In the absence of mutuality (shu), obligations of reciprocity are weak and tenuous. Contractual relations with strangers are possible, but they are considered risky and undependable. This description resembles the “realist” problem of cooperation under international anarchy. In a global diplomatic culture that is increasingly characterized by summit diplomacy and personal ties among world leaders—a culture that Chinese leaders have come to endorse through participation in diverse forums from the nongovernmental World Economic Forum in Davos, to organizations where summit diplomacy plays a key role such as the Asia-Pacific Economic Cooperation (APEC) and more recently on the sidelines of the G-8— China’s leaders are determined to place the outside world on a level of intimacy rather than face it as a “stranger.” This entails placing international relationships on a basis that eschews endorsing the universality of Western (liberal) normative claims. The leaders of China explicitly link the future of their country to the outside world: “In today’s world, a country can hardly develop in isolation. The Chinese Government will unswervingly implement the opening up policy. It will more vigorously promote all directional, multi tiered and wide range opening up and take part in international economic cooperation and competition at a greater width and depth.”32 Pride in the achievements of economic reform and opening up to the world have yet to dislodge China’s self-image as a victim of Western imperialism with its culture and social system under threat. The leaders and the government of the PRC continue to dissent from the universality of liberal values even as they seek full participation in the global community. China holds as the highest and most fundamental principle of international law an unshakeable stance upholding the sacredness and indivisibility of territorial sovereignty. As China’s power continues to grow in every dimension, the Chinese stance on sovereignty might threaten the very possibility of constructing a system of global governance on internationalist principles.

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China’s rigid stance on national sovereignty constrains, if not limits, the construction of a global rule of law regime. The Chinese dissent from liberal universalism has not prevented a constructive role in international relations, but nevertheless it invites suspicion in a world where liberal powers led by the United States are dominant. What is the basis of China’s dissent? Is it ideologically determined or rooted in Chinese culture? What role does sovereignty play in the defense of Chinese exceptionalism? This problem involves not only looking at the identity and structure of the Chinese regime but also the relationship of culture and ideology to the construction of a global order rooted in the rule of law. No rigorous examination of the Chinese challenge to global order is possible without parallel questioning of the universalist premises of liberal internationalism. Should the Chinese defense of cultural particularism force a reevaluation of universal order? Does liberal universalism of the contemporary West already accommodate cultural difference? In its resolute dissent, does China really offer a pluralistic alternative? In what respects is the Chinese attitude symptomatic or distinct from other Third World non-Western objections to liberal universality? The effort to resolve these questions requires disentangling the terms of Chinese participation in the global order, which are grounded in analysis of the premises of global order as perceived in China and the West. These questions propel the discussion beyond the exploration of “theory” as a heuristic tool and into considerations of value. Strategists interested in the potential “power” projected by China may claim disinterest in the “value” of China. The Chinese, on the other hand, cannot remain indifferent to the value of China because it is intrinsic to their identity. However, if this simple assertion is reflected back onto our Western strategist, it is apparent that there is an implicit value assumption operative there as well. Whether the “power” of China should or should not be a concern depends on the perception of China as an “other.” If the idea of China did not include the notion that it constitutes a potential “threat,” then the power of China has no relevance. Coincidentally, although the Chinese are vitally interested in the “value” of China and in enhancing it, it does not follow automatically that this value must necessarily be equated with “power,” especially military power. “Values” and “power” are not strictly dichotomous, even in Western usage. After all, it was the international relations theorist Joseph Nye who coined the phrase “America’s soft power” to describe the influence of American values and ideology on the international community.33

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If China is “socialized” into an international system that is defined by neo-realist theory, this has consequences for Chinese foreign policy behavior. The tendency in China is to regard “theory” (lilun) as a normative guide to action. “Science” (kexue) has also been valorized in China’s national goal of “modernization.” From a Chinese perspective, international relations theory is not just a scientific framework of inquiry. It can easily take on aspects of a normative framework of foreign policy behavior. It is interesting to note that the works of both Alexander Wendt and Martha Finnemore have been very quickly translated into Chinese. Chinese scholars are keenly interested in the normative approaches to international relations. The manner in which these theories are utilized, however, tends to dichotomize Chinese and Western approaches to problems of value. Wendt makes a useful distinction between “constitutive theories” and “theories of causation.”34 Introducing this distinction, he pointedly uses “What is sovereignty” as an example of a constitutive theoretical question. “What is sovereignty for China” is a question that straddles the constitutive/causal divide. To the extent that answering this question helps to clarify what sovereignty is, it performs a constitutive role. To the extent that this question leads into the politics of a Chinese identity in relation to the international system, the question has causal effects that require adjustments in both the internal organization of the Chinese state and the effects of interaction, which ultimately change the shape of the international system. Finnemore’s work has concentrated on the making of norms and their adoption by states in general.35 This study is about the reception of a norm and how that reception in turn affects the meaning of the norm. The importance of China is twofold. First, because China is clearly an outsider to Western norms and the European state system and did not undergo direct colonial rule and institutional reorganization through the agency of European powers, it is ideally placed to study the causal effects of normative participation. Second, China is sufficiently large— geographically, in population, militarily, and economically—to affect the distribution of values. To draw on an economic metaphor, China has at least the potential to be a “price maker” and not merely a “price taker.” Indeed, the entire enterprise of this book is an effort to assess China’s transition from being a “value taker” toward becoming a “value maker.” The story of China’s reception of international norms is mostly one of “resistance.” Chinese at first tried to ignore Western norms of international relations. China both militarily resisted Western incursions

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and reluctantly acquiesced to Western coercion. Determined to “stand up,” China was also resolute in its resistance of foreign interference. This determination, however, was not only modified by the need to acquire the means to adequately resist but also the terms of resistance. China had to acquire the hardware and software of military power, and it also had to participate in interactions where China’s status would be recognized and acknowledged. For China to gain international status, it had to be on a stage constructed for a Euro-American audience. To mix metaphors, resistance had to take place on a playing field that had been largely constructed according to the rules of a game China had no role in making. In this way “resistance,” far from undermining the international norms constructed by core Euro-American states, has to a very large extent tended to reinforce them, albeit with distortions and points of emphasis that the core Euro-American powers would not wish to embrace. This is consistent with the “political realist” social constructivist approach suggested by Wendt, who argues that “the meaning of power and the content of interests are largely a function of ideas.”36 Furthermore, Wendt asserts that “culture” lurks just behind “interest.”37 The effort to conform to or resist externally mandated norms is a major determinant of foreign policy behavior. A basic premise is that identity is not fixed but is itself constituted through the process of interaction with external agents and structures. All students of nineteenthand twentieth-century China will notice that the Chinese identity has been transformed over time. The constant value amid the flux has been an effort to maintain and project some form of identity as “Chinese.” How that identity is constituted and articulated—the substantive terms of identity—is largely constructed through external interaction, not through the projection of a Chinese “essence.” The only “essence” is the desire to project a Chinese identity. The possibility of projecting such an identity, however, is in turn constrained by discourses of recognition. These include the political discourse of the nation-state and international law. Over the past century, the variety of discourses Chinese leaders utilized to gain recognition from the international community has included constitutionalism, liberalism, republicanism, socialism, anti-Sovietism, and now “globalization” and the market. The reading of Chinese foreign policy is the interaction of a liminal self with a powerful “other”; it is a dialectic of instrumental interest and identity where means and ends often substitute for one another. Perhaps the best example of this comes from Mao’s own assertion, which China’s leaders follow to this day, “only socialism can save China.” It is clear from the statement that socialism is a means and China is the

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end. A similar and perhaps more graphic aphorism is: “The Chinese revolution is the target and Marxism-Leninism is the arrow.”38 However, China’s leaders today treat the Chinese political system and ideology as substantive aspects of China’s national and state identity to be maintained at all costs. The defense of this system is equated with the defense of “sovereignty.” Though the legal significance of “sovereignty” in international law is identical in English to the Chinese term zhuquan, it may be loaded with very different connotations that correspond to the historic path through which the concept of sovereignty entered Chinese usage. Because China forms what S. N. Eisenstadt, following Karl Jaspers, calls an “axial civilization”—that is, a civilization that perceives its own values to be universal39—the emergence and participation of the Chinese in a global civilization dominated since the nineteenth century by the West involves a search for tangency in core values such that participation in the global system can also involve a reaffirmation of what is specifically Chinese. In doing so, this not only asserts the value of the Chinese culture to the Chinese but also asserts the importance of Chinese values as universal values, thereby permitting China to enter global civilization as an equal. Since the nineteenth century, the Chinese have sought to assert both China’s particularity, and its universality. The search for the “truth” or ideology that would “save” China has always been a search for an ideological system that holds potential to project China’s world historical greatness. In the drama of world history, China must have a leading role. Thus, Chinese participation in the global Marxist drama of the World Revolution came to embody the metaphor of the ex-colonial “countryside” surrounding the metropolitan centers of the West. Today, whereas Chinese scholars and policymakers vigorously reject the label of a “threat,” they nevertheless enthusiastically embrace the notion that China is a “rising” power whose interests must be accommodated. If the Chinese dismiss the label of threat, they nevertheless relish the role of competitor. Today, “Chinese culture” is virtually inconceivable outside the context of competitive engagement with the contemporary West. In this competitive engagement, sovereignty plays a very special and peculiar role. In the effort to preserve China’s particularism in the face of the West’s economic, military, political, and ideological dominance, sovereignty practically defines the terms of China’s global engagement. Real debate on the meaning of Chinese engagement with the contemporary world should focus on the struggle over the meaning and significance of the institution of sovereignty. In so far

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as a “clash of civilizations” exists, this is its arena. To strip sovereignty of any normative content misrepresents the emotions and motivations behind China’s engagement with the West and with the world. This is a sentiment shared by much of the non-Western world. The reduction of sovereignty to a mere attribute of statehood fails to recognize how the struggle to define global engagement in terms of sovereignty imposes constraints on international behavior and simultaneously sets the tone of intercultural (or inter-civilizational) dialogue and interaction. [M]any developing countries, along with China, continue to see the concept of non-interference and sovereign equality as the final defence against the rules of a divided, unequal world. Beijing’s interpretation of sovereignty highlights its identity as a former semi-colony and Third World socialist state, rather than as a great power with UN Security Council membership, nuclear weapons and rising economic clout in the global economy. … [I]ts views can form the basis for a coalition among some of the weaker states in the global system, states that endorse China’s arguments that the strong are not held to the same standards of accountability. Beijing is struggling to muster these forces in support of the more traditional definitions of state sovereignty against a normative order that has already shown clear signs of moving beyond this earlier and stricter interpretation. China is caught between the need, on the one hand to build coalitions with states that reinforce an identity it has been trying to shed and, on the other, a desire to embrace the norms articulated by the most powerful states and influential international organizations in the global system.40

Through sovereignty, the PRC signals to the international community its acceptance of the fundamental norms that govern international relations, yet it simultaneously denies the applicability of those universal norms that undermine its domestic legitimacy. As Anthony Giddens argues, “nationalism is the cultural sensibility of sovereignty.”41 Conversely, sovereignty forms the concrete representation of irreducible national interest. Through attachment to the cultural value of the Chinese state, the Western concept of sovereignty claims a share in projecting what it means to be Chinese in the wider world.

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“CULTURE” The metaphor of haggling in the marketplace is a reminder that values are neither absolute nor relative. They are, instead, relational. Parties in negotiation handle the objects of their bargain, take their measure, and thrust them back at one another. They learn through negotiation what each object means to the other. This process of negotiation creates a measure of common meaning, but it also forms a process as the parties learn about each other and themselves. The bargain creates relative values that did not exist before the process of engagement ensued. Similarly, my analysis in this book examines not only what sovereignty means to the Chinese but also, equally, what sovereignty means to the West.42 “Self” and “other” are relative terms, a truth that is immediately obvious from the fluidity of the boundaries in the Chinese depiction of yin and yang. In discussing the distinctiveness of the Chinese tradition and the presence or absence of particular legal-political-philosophical concepts that construct the modern (Western) interstate system, it is necessary to distinguish difference from qualitative alterity: Ni zhong you wo, wo zhong you ni (You are present in myself while I am present in you). Until China and the West came into regular contact, there was no self and no other of which to speak. Once the two became regularly engaged, difference became relative, and the presence or absence of any particular factor was defined only by its power implications. If in this book I examine China’s participation in the international system in respect to sovereignty and the rule of law, the presence or absence of these concepts is defined in terms of the power grid established by the West and claimed by it as universal value. The claim of universality is culturally specific and backed by power. It is not, however, entirely arbitrary because not all values take a universal form. Moreover, universalistic claims are open to new entrants—hence, Ni zhong you wo (You are present in myself). The coercive incorporation of China into the modern system of international relations eventually entails the capacity of China to participate on its own terms. Over the past 150 years Chinese culture has been severely disrupted. Its frayed web has been warped by the political collapse of the institutions holding it in place. The culture is a patchwork of elements of Western culture and values and of politicized norms and institutions forcibly sewn onto it. It is more valid to ask how the Chinese have responded to the various forces imposed on them rather than to regard Chinese culture as an agent that coherently organizes behavior in response to external pressure. Culture is a matrix of behaviors, not a

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function that determines particular behaviors. Culture organizes behavior through interaction of values and institutions. Rather than a set of lenses through which reality is apprehended, culture should be seen as a matrix of values and institutions within which behavior is organized to satisfy needs. The image of culture as either a template onto which individuals are bolted or as a kind of ether in which institutions and social structures are suspended is false. Institutions and social structures that chronically fail to satisfy human needs catalyze the creation of new values. New values carried by new elites accelerate the creation of new institutions. Culture is therefore a matrix of ideas, social structures, and material needs. Rather than research how Chinese individuals behave, it is more appropriate to inquire how they respond to institutions and build on the premise of the value of the individual as an institution. Furthermore, we must inquire how the Chinese culture incorporates elements of institutional individualism to adapt to economic and social institutions imported from the modern West. The adaptation is conditioned both by the original denial of Chinese subjectivity during the period of Western intervention and by a continuous rereading of that experience designed to project and affirm a certain kind of Chinese identity.

CONTEMPORARY CHINESE CULTURE AND UNIVERSALITY Sino-Confucian culture may be defined, as Jaspers did, as one of the “axial” civilizations of the ancient world. In some respects, this drives the Chinese to yearn for some universal purpose and destiny, but it does not make Sino-Confucian civilization a functional equivalent, still less a full-fledged competitor of Western civilization. It does, however, transmit a certain moral imperative to those Chinese yearnings for a “return to greatness.” China must have a role: either as a dissenter or as a participant in the universal project of modernity—and sometimes both at the same time. For example, consider the varying points of emphasis in the evolution of Mao Zedong Thought. The initial claim was only to “sinify” Marxism, that is, to join the “universal truth” of Marxism-Leninism to the “particularity” of the Chinese revolution. This formulation, which was itself simultaneously a claim for authority over the Chinese revolution as a part of a universal project of human emancipation, was also an act of dissent against the universal claim to authority of the Communist International (Comintern) in the 1930s and a repudiation of

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those Chinese Communists who returned from Moscow in the 1930s bearing the “universal truths” of Marxism-Leninism. In this context it is worth mentioning that Mao’s cardinal text on “internationalism,” In Memory of Norman Bethune, defines the value of internationalism in highly classical language: “haobu liji zhuanmen liren” (utterly selfless, exclusively concerned with others). This text was not only one of the basic readings of the Yan’an Rectification (1942–44) that established the autonomy of the Chinese Communist Party (CPC) from Moscow, it was also one of the “three constantly read articles” of the Cultural Revolution. Its language testifies to a degree of continuity in the language of universalist morality between Confucianism and Maoism despite the discontinuity of the Marxist stress on struggle and the Confucian value of harmony. Much later—beginning with the Great Leap Forward (1958–60) and reaching a kind of apotheosis in the Cultural Revolution (1966–76)—Mao Zedong Thought became the universal standard, and any derogation from its claims was defined as “revisionism.” Mao was now claimed to have “creatively advanced” Marxism-Leninism in a number of areas. Mao himself explicitly sought to make some sort of contribution to world history and civilization, even as he acknowledged a serious debt to ideas from outside the confines of Chinese civilization. Earlier, Sun Yatsen had also attempted to do the same: If his “Three People’s Principles” were a distillation of contemporary Western political thought, the “Five-Power Constitution” that he proposed was an explicit effort to synthesize the political insights of the Sino-Confucian civilization with those of the West. The zeal with which Chinese embraced Marxism-Leninism is an expression of these yearnings of purpose and greatness, and the desire to make the Chinese revolution a paradigm for the World Revolution—“the countryside surrounding the city”—is part of the Chinese aspirations to be full participants in the creation of projects of universal value. It is China that will lead the rural Third World to its liberation, because it is China, at least since the end of WWI that is uniquely suited to this task. Yet it must be strongly emphasized that the ultimate aim of this Occidentalist practice was not primarily Chinese hegemony in the Third World, but the consolidation of a particular group in domestic politics … [T]he primary aim of the Chinese discourse has been domestic oppression of political opponents rather than world domination, while the inverse has been true in the West.43

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Unfortunately, the universal that Mao distilled from Marxism was the universality of struggle—in particular, the universality of class struggle. The axiomatic assertion of the universality of class struggle was the bedrock claim that Chinese policymakers and ideologists used to deny universal human rights or even humanism for almost forty years. Without universal humanity there could be no universal human rights. Only after the Cultural Revolution, during a period of “cultural self-reflection,” that coincided with the greater engagement of the Chinese state in international law as part of the “open policy,” was attention focused on human rights. The Cultural Revolution came to be seen as a detour from the project of modernization. Revived participation in the universal project of “modernization” legitimated interest in both Western legal forms and Western universal norms. Institutional attention focused on human rights only after China’s human rights record came under general Western opprobrium after the Tiananmen repression of 1989. “Socialism with Chinese characteristics” constitutes a particularistic “derogation” from modernization; in fact, it is a double derogation. Two universal projects are specified: socialism and modernization. By implication, however, socialism has now become a sort of particularistic derogation from modernization, one that, in conjunction and accordance with China’s guoqing (national situation), enables China to make its own particular accommodation with the universal language of democracy and human rights. This is the province of modernization, to be sure, but it also comes in the particular flavor of “capitalism” or “bourgeois liberalization,” both of which are associated with “imperialism.” Guoqing, like so many key concepts of political theory that emerged in the early modern era, is a subconscious Japanese import.44 The emphasis on guoqing is problematic because its primary focus is on China’s national situation; the West is removed from any frame of reference. Once that is done, no space remains to proclaim the universal or global achievements of the Chinese nation. Particularistic derogation from the universality of human rights on the grounds of guoqing is doomed to failure. It contradicts the yearning of the Chinese and their Confucius-based cultural tradition for participation in a project of universal value. The Chinese readily accept the notion that for values to be valid, they require some sort of universal form. Chinese thinking aligns the state with the nation and both of these with sovereignty. Implicit in this approach is an insistence associated with the concept of sovereignty and participation in global governance. Sovereignty is a kind of global citizenship for nation-states. As an astute

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observer of contemporary Chinese nationalism puts it: “China needs to participate in the existing international system even though it will be dominated by the West.”45 Chinese preoccupation with sovereignty as a badge of difference and as a passport to global citizenship and participation inevitably entails both friction and cooperation with other major powers. In this book, I show that the concept of sovereignty, long thought in international relations theory to be essentially functional, axiomatic, and culturally neutral, is in fact deeply colored culturally and profoundly embedded within the Western and European rights culture. That it was, indeed, culturally alien to China has not prevented this concept, after a century and a half, from becoming absorbed at a visceral level into the Chinese identity and even the Chinese psyche. However, the way in which it has become absorbed has involved and engaged different connotations from those that have characterized its reception in the West. It has meant initiation into a rights culture where national rights and state rights take pride of place. So, when the Chinese and Westerners, especially state officials, engage in dialogue and debate over sovereignty, the different connotations that this concept has within their respective rights cultures inevitably engender misunderstanding, friction, and even conflict. The areas where conflict will break out can be precisely mapped just as with those where national rights conflict with other kinds of rights—human rights being the most obvious example. It is also true, however, that dialogue over sovereignty has engaged China and its citizens more broadly in a continuous and deepening conversation with the Western rights culture. If the preoccupation with sovereignty has involved both friction and ever broader engagement, it is engagement punctuated, not dominated, by conflict. The Chinese preoccupation with sovereignty is fully bound to the Chinese quest for equality with the leading powers of the world.46 “Equality” and “leading” are both heavily loaded terms that, to a certain extent, contradict one another. Yet the focus on equality with leading powers has allowed those leading powers to largely set the terms of engagement. The Chinese quest for “equality” is measured by the terms of what the leading powers value—be it military power, technology, or economic strength but also, potentially, cultural influence and normative leadership. As China learns to compete, it learns to adapt. As it learns to adapt, it learns to conform, but only so far as is required to succeed in the competition. The challenge to China’s counterparts in the competition is how to react when China competes on its own terms. China’s competition does not threaten Western norms; it only challenges Western power. Sovereignty organizes Chinese perceptions of the outside

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world. It forms the “thin membrane” of identity and participation in world history. To sustain the thesis that the concept of sovereignty plays a mediating role in China’s external behavior, it is necessary to move beyond the realm of ideology and political theory into law and foreign policy practice. The scheme of the book moves from the theoretical to the empirical and back again to the theoretical.

THE LAYOUT OF THE BOOK In this introductory chapter, I offer a framework to help the reader understand the role played by the concept of sovereignty to manage the challenges that Chinese culture encounters in the processes of modernization and globalization. I discuss how Chinese identity became entangled in international relations and how international relations became a contingent factor that affects Chinese perceptions of individual identity in relation to the state. I conclude by analyzing how sovereignty becomes internalized in Chinese identity. In chapter 1 I discuss the idea of sovereignty in the West and how it was imported into China. I explain how the conditions under which sovereignty was produced and the conditions under which sovereignty was introduced to the Chinese were very different; consequently, the term came to connote vastly different meanings in Sino-Western interactions. Sovereignty is better understood as an attribute of the state system constructed by the European west than as a universal attribute of statehood. The Chinese had a well-developed theory of statehood that did not comprise sovereignty as we know it. Not only was China forced to adapt to the modern Western state system its people also had to adjust the frame through which they understood the state and its relationship both to its citizens and to the outside. In chapter 2 I discuss the role that sovereignty has played in the formation of the PRC and how particular sovereignty views became crystallized in Chinese foreign policy. The PRC moved from emphasizing sovereignty as the capacity to deny access to foreigners to a legal norm that came to facilitate interactions. It moved from a material capacity to deny entry to a discursive engagement that harmonized the terms of interaction. The chapter discusses the interpretive frame into which the Chinese Communists placed China’s relationship to the state system. In chapter 3 I examine sovereignty as a rule of law concept, looking at the relationship between international discussions of the rule of law and domestic processes and institutions of the rule of law.

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I assess the extent to which Chinese rhetoric and practice engage with, and depart from, sovereignty as a concept embedded in the rule of law. I also consider how non-state actors—particularly professional lawyers and legal academics—engage with a global culture of law to uncover any emergent tension between the views of the professionals and the attitude of the regime toward international law. The question I pose in this chapter is whether, despite the efforts of the Communist regime to resist the imposition of Western concepts of human rights, China’s own efforts to redefine its sovereignty in terms of law promote the adoption of human rights norms and the rule of law. In chapter 4 I look at the place of human rights and international law in the interaction between China and the international community. My objective in this chapter is to determine how the legal concept of international sovereignty corresponds to the treatment of sovereignty and the rule of law in the domestic constitutional context. Sovereignty is both the legal basis of the state in the international arena and the source of law in the domestic arena. China highlights sovereignty to assert the role of the state as the unit of value in the international order and to legitimate the activity of the state to compete for global status on the basis of respect for the sovereignty of other states. In chapter 5 I examine market interactions as a force that promotes normative convergence in state identity through China’s integration into the World Trade Organization (WTO). Have Chinese leaders learned to identify with and domestically incorporate international norms in pursuit of national objectives of economic growth? What pattern exists with respect to the endorsement and compliance with international norms in the economic field? Do the data support the proposition that pragmatic acceptance of economic interdependence promotes entrenchment of international obligations in domestic law? In chapter 6 I consider territory and sovereignty and how evolving ideas about sovereignty shape China’s strategic posture and Chinese notions of state security. Assertiveness over sovereignty is closely connected with issues of regime survival. A relatively high propensity to use force is tempered by modest ambition with respect to desired outcomes. The CPC has demonstrated a resolve to preempt ambiguity concerning its sovereignty through recourse to force. The question of territory is developed in relation to the question of Taiwan. Refusal to disavow the use of force is explicitly equated with the assertion of sovereignty. China’s strategy employs force to control the meaning of Chinese sovereignty internationally and to repress alternative interpretations domestically. The use of force domestically and internationally stems from a specific definition of state and “Party” sovereignty.

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Insofar as territorial sovereignty is the defining parameter of the use of force in international relations, this puts discernible geographic and political constraints on China’s propensity to resort to force. “National unification” is instrumental to CPC legitimacy and the limits of regime flexibility with respect to formal incorporation of distinct jurisdictions within a single state. What does “one country, two systems” mean to the CPC leadership? How is it conceived of in constitutional terms? Is there any prospect of adopting a quasi-federal or confederal solution to the conflict across the Taiwan Strait? Would formal moves toward federalism have an impact on internal struggles for ethno-territorial autonomy such as those in Tibet or Xinjiang? In the conclusion I look at sovereignty in the post–Cold War world as an interface between China and the international community. I assess the relative weight of conservative and aggressive impulses that underlie the Chinese doctrine on the use of force to protect national and regime sovereignty. China looks to the United States as the leader of the West and as the symbol of Western values. Therefore, relations with the Unites States are viewed as symptomatic of China’s relations with the West in general and are a fair marker of the constraints of accommodation with the West. China’s own aspirations to global status require that the United States treat it as an equal. What does this pattern show? Are the interests of the two sides irreconcilable or not? By weighing official Chinese responses to sovereignty and international norms against scholarly and professional opinions expressed within the Chinese “public,” my book balances the limits of what is practical at present with the latent possibilities of engagement for the future. I conclude by reviewing the role that sovereignty has played in conforming Chinese interests to global norms and values. The central question is whether China’s achievement of greater material success will attenuate or accentuate competition with the West in general and the United States in particular.

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CHAPTER 1

T HE I NS

AND

O UTS

OF

S OVEREIGNTY

THE WESTERN CONCEPTION OF SOVEREIGNTY1

A

gainst those who regard sovereignty as inherently problematic and unstable—hence, useless as a heuristic device2—and others who reject its normative significance,3 I take a position of pragmatic constructivism,4 arguing that sovereignty is an evolving institution whose constraining power depends on the action of great powers. The structure of sovereignty established in the early modern era allows great powers to enforce a framework of legitimacy by sanctioning specific behavior and elaborating norms to justify intervention and the use of force. This structure informs the scope of international law and the procedures for collective action. Rather than cover a fixed domain, these norms vary in relation to the tendency of great powers to enforce their will directly and the propensity of smaller state actors, within a general framework of legitimacy, to coordinate and harmonize state activities in line with the norms that the leading power(s) espouse. Great powers calculate the utility of diplomatic reciprocity in preference to deploying force, whereas secondary powers consider the enforcement prospect of reciprocal concessions. This calculus involves weighing the relative capacity of state institutions, the permeability of institutions in

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the states with whom one engages in reciprocal claims and the significance of transborder claims. Sovereignty is broadly understood to have two meanings: effective and undisputed control over a territory (empirical sovereignty), and authority (the claim to control legitimately). These meanings overlap: effective control cannot be maintained in the long run without legitimate authority, and vice versa. Au fond, exclusive and final political authority over territory is the trademark of sovereignty that distinguishes it from other forms of political systems and organizations.5 The institution of sovereignty authorizes the state to determine the political, and therefore what is subject to coercion.6 To maintain metapolitical authority over the long term requires acknowledgment from other states and transborder actors. Thus, the second key element of sovereignty—that which makes it an international institution, according to Alexander Wendt is self-restraint among states. Sovereignty is therefore an internationally acknowledged institution of both domestic and international state rights and duties. States empower one another as bearers of legitimate political authority in world politics, as Hendrik Spruyt has shown.7 Mutual empowerment necessitates selfrestraint, but self-restraint also requires mutual recognition or empowerment. These two qualities are mutually constitutive. Self-restraint serves as the primary norm of sovereignty. Wendt considers sovereign states to form a “structure of closure”— what I call a cartel.8 This cartel is highly dependant on mutual recognition. Daniel Philpott thus maintains that “[a] polity’s practice of its authority on the inside requires the recognition of this authority from the outside,”9 and Thomas Biersteker and Cynthia Weber consider sovereignty “as a political entity’s externally recognized right to exercise final authority over its affairs.”10 Martin Wight understands sovereignty as that part of international society in which “not only must each [state] claim independence of any political superior for itself, but each must recognize the validity of the same claim by all the others.”11 Finally, David Strang considers sovereignty as a “community of mutual recognition.”12 Recognition does not comprise merely formal acknowledgment of a state’s sovereignty; rather, it represents “other states’ refusal to violate the exclusivity of one’s territorial claims when the opportunity presents itself, in effect, a de facto permission from others to rule exclusively.”13 Sovereignty forms a mutually constitutive nexus of mutual recognition through self-restraint. Sovereignty is thus an institution both of domestic and international meta-political authority. In this sense, Jens Bartelson is correct:14 he considers sovereignty a constitution in the sense of a

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condition of possibility for modern politics. Neither inside nor outside, it conditions both. Thus, sovereignty is a fluid line of knowledge drawn and redrawn. Historically, what belongs outside and inside [the state] dramatically varies correspondingly to changes in the state of knowledge.15 A third dimension of sovereignty is key to establishing a cartel of meta-political norm setters: hierarchy. Following from the primary norm of sovereignty, a hierarchy emerges among sovereign states. Hedley Bull argues that the great powers are members of a distinct club, and that this membership bestows on them special rights and duties in international society.16 Great powers gain authority through their compliance with the primary norm of sovereignty toward non-peers. Restraint toward weaker actors alongside recognition of their right to exercise meta-political authority establishes power as a social convention.17 Stephen Krasner dissents. He views sovereignty as organized hypocrisy: states, especially great powers, pay only lip service to norms while pursuing their “real” interests. Great powers habitually intervene in the domestic affairs of non-peers because the “logic of consequences” (anarchy) trumps the “logic of appropriateness” (norms of sovereignty). Even though great powers do infringe on the sovereignty of other states when their interests so require, sovereignty is nonetheless far from a hollow or hypocritical concept. To concur with Chris Brown: to claim to be sovereign is to assert a claim to valid authority in accordance with rules without which international society could not exist; hence, even when actually intervening, the rulers of states are obliged to explain how their behaviour can be understood in terms of the rules … they offer such explanations, not, as Krasner suggests, as a matter of hypocrisy, but because failure to do so would, as it were, end the “game,” and, at the same time, end their capacity to claim the status of sovereign since this status only exists by virtue of the existence of international society.18

Great powers infringe on the authority of smaller states, but they do not annul it or present a formal alternative to it. Hypocritical actors pursue interests in conflict with their alleged adherence to normative principle. However, sovereign actors foreswear acts that the professed normative principles prohibit (eschewing military occupation or

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physical annihilation of a non-peer).19 That is behavior qualitatively different from hypocrisy. This difference bestows privileged rights on the great powers. These rights remain implicit, conferred by the rules of the game, as Bull notes, without formal legal entitlements.20 Social rules order social relations, assign resources, and characterize interactions. They also assign institutional positions and roles.21 The rules of the game in the international system constitute operational rights, which is why the principle of sovereign equality—or international legal sovereignty, in Krasner’s terms—exists. In international society, the great powers intrinsically moderate the harm inflicted on non-peer actors, and as G. John Ikenberry notes, self-restraint reduces the “return to power” and thus institutionalizes world politics.22 But institutionalization does not merely “mitigate” anarchy, as neoliberals seem to believe, it also invests key actors with authority when the institution is accepted as legitimate by its members. Although the power capabilities of sovereign states vary among themselves, power is constituted symmetrically so long as a minimal ideational consensus exists on the coercive resources that are to be avoided at all costs. This symmetry of ideas constitutes an asymmetry of status—or hierarchy.23 Hierarchy depends on social agreement distinguishing legitimate from illegitimate power, a consensus that stems solely from sovereignty. Even the weakest actors know that the probability of a stronger actor annihilating, enslaving, or conquering them is low (as opposed to coercion with limited ends and scale). Today, the probability—as opposed to the possibility—of annihilation or enslavement is extremely low.24 Sovereignty institutionalizes cross-border violence, rendering the great powers arbiters of authority in world politics. Small powers rarely contemplate provoking the great powers and do not want to inflict damage by illegitimate means. Illegitimate destructive action, besides courting massive retaliation, risks moral condemnation and opprobrium—in a word, criminalization.25 Thus, weak actors have every interest in upholding the norms of a society that are enforced by the actions of great powers.

LEADERSHIP, STATUS, AND POWER : CHINESE AND WESTERN DISCOURSE The distinction between legitimate leadership or authority and coercive power has preoccupied political theorists since ancient times. In Chinese

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culture this controversy erupted during the multistate system of the Warring States period, and it was the basis of the critique of hegemony by Mencius, a critique that continues to color Chinese views of international relations to this day. Toward the end of the fifth century B.C.E., a degree of stability in China was maintained through a series of leagues headed by a hegemonic power, or ba (hegemon). During his lifetime, Mencius excoriated the rulers’ unrestrained appetite for power. Naturally, rulers sought to expand their prestige, and they employed the resulting “public good” of order to justify their desire for hegemony. Mencius denied any legitimacy to a regime that was founded on coercion; he praised forms of governance that looked after the welfare of the people and restricted their ambitions to the order of precedence established in ancient times. Mencius sought, as far as possible, to stifle the competitive appetites of leaders for power. By contrast, the Confucian philosopher stressed moral leadership through virtuous conduct, what he termed the “kingly way,” or wangdao. With the unification of the Chinese empire (without question by hegemonic means) in 221 B.C.E., hegemony ceases to play an important role in Chinese political discourse with respect to the interstate system. Unity becomes the norm and the fragmentation of the Chinese cultural area among several states is identified with chaos, or the calamity of anarchy. Justice is a staple of Western political theory . The ancients connected justice with both order and government. The classical definition of suum cuique tribuere (“give to each his own”) is already found in the writings of Plato, Aristotle, Cicero, and Roman law. In the Middle Ages such thinkers as Thomas Aquinas and Francisco Suárez viewed the Corpus Juris Civilis of Justinian as the most important source for the definition of justice. In this work, justice is defined as the constant will to render each his right. For Aquinas, a man is said to be just when he respects the right (jus) of others.26 So long as the bearer of superior material power respects the basic rights of weaker actors—the right to life, and freedom from enslavement—conduct bears an element of justice. In an environment of juridically equal actors, this conduct legitimates hierarchy. Self-restraint rather than equality or nonintervention underlies the rules of sovereignty. Justice stands at the base of what Wendt dubs the Lockean culture of anarchy, a culture built on the contractual recognition of the fundamental rights of others. Lockean sovereignty justifies certain forms of violence and therefore admits hierarchy and authority within legitimate coercive capabilities. The institution of sovereignty employs force in distinction to violence. Violence

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is behavior intended to inflict injury on people or to damage property, whereas force aims to compel others to behave in a certain way.27 Neorealists define anarchy as the absence of central authority in world politics, thereby rendering the discourse of rights and duties meaningless. This position is founded on Hobbes, for whom in the state of nature every individual bears the right of self-preservation and no superior authority exists. Thus, the attempt to realize one’s own right immediately destroys the condition of every possible right: since man has a right to use all means for his self-preservation and he himself is the judge of his actions, there is no distinction between right and wrong. Any self can legitimize every possible use of coercion as necessary for the preservation of one’s rights. The neorealist analogy is that states—like individuals in the state of nature—are subject to similar conditions and logic. No rights and authority could exist by (neorealist) definition in international anarchy. For Hobbes only positive law fulfills the formula of suum cuique tribuere with content. But only sovereigns can make positive law. Here, distributive justice could no longer be understood as an ethical principle of individual virtue; it is, rather, a formula that calls for legal order where subjective rights are defined and secured by positive law. Kant followed the Hobbesian line of argument. In his Doctrine of Rights, Kant criticizes the suum cuique tribuere as an empty formula meaningful only in civil society. Justice is impossible in the state of nature. The realization of justice among men does not primarily rely on virtue or morality but on legal duty and right secured by a sovereign power.28 Kant maintains that all rights depend on law, and he consequently adopts a Hobbesian concept of interdependence between right and (domestic) sovereignty. In international relations, however, the civil condition does not exist, and each state does as it deems right and good.29 Kant concludes that in war, neither party can be declared an unjust enemy because that presupposes a judicial authority. Instead, the outcome of the war decides who is right. “Thus Kant too had to face the dilemma that any effective international law reaches its limits precisely at the crucial point where sovereign states are not prepared to resign their own authority in favor of a superior international one.”30 The antinomy of rights in the state of nature of the individuals recurs at the level of interstate relations. The neorealist argument that rights lack meaning in international politics is built on a faulty premise that hinges on a post-scholastic understanding of natural law. Natural law was formulated almost entirely in seventeenth-century northwestern Europe. Hugo Grotius in Holland (1583–1645); Thomas Hobbes (1588–1679), Richard

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Cumberland (1631–1718), and John Locke (1632–1704) in England; and Samuel von Puffendorf (1632–94) and Christian Thomasius (1655–1728) in Germany elaborated the concept of sovereignty and natural law in reaction to Catholic scholasticism, particularly Thomist natural law doctrines. Aquinas posited a law that is natural in two senses—given by man’s nature and acceded to through natural as opposed to revealed (biblical) knowledge—thus providing moral criteria for judging the positive law of the civil sovereign. Yet Aquinas subordinated natural law to divine law. Natural law is actually human reason, imprinted by God. Human law follows next in Aquinas’s hierarchy: it is human reason applied according to natural law principles to particular situations. Natural law is morally and rationally superior to the civil law of the state. The custodian of natural law—the Catholic Church—therefore claimed the right and moral duty to determine the legality of positive civil law.31 Once the Reformation called into question the pretensions of the “universal” Church, princes laid claim to the territorial fragments of the Holy Roman Empire. Protestant rulers feared that Thomist logic would give just cause for the Church to denounce them as heretics and illegitimate rulers. In 1612 Suárez actually authorized the pope to order the overthrow or assassination of heretical kings. The elaboration of international law by Grotius took place in the shadows of the universal doctrine of natural law of the High Middle Ages and was applied to the newly emergent interstate system formed in the wake of the Protestant Reformation. Grotius’s architecture of solidarism (a term associated with Hedley Bull) harkens back to medieval notions, but his rational regulation of relations among individuated states points to modern concepts of sovereignty. [I]n Grotius’ conception of international society, natural law has a central place. Princes are persons, and states or peoples are collections of persons. A basic reason why relations among princes and states are subject to law is that they are subject to rules of natural law, which binds all persons in the great society of mankind.32

The theological, juridical, and political instruments used to configure the grounds and limits of sovereignty were in acute crisis. The reconstructed doctrine of natural law shared three characteristics. First, philosophers of the seventeenth century looked to the “state of nature” instead of Christian-Aristotelian natural law to explain the

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nature of man. In the state of nature, man faced exigencies whose resolution would call forth a particular version of the sovereign state. Sovereignty in this scheme did not emanate from a divine right but, rather, from a contract or pact in which sovereignty was tied to purely worldly circumstances and purposes—in particular, those associated with security. Second, anti-scholastic doctrines were juridified and politicized. Post-scholastic natural jurists treated the whole domain of justice and right as a prerogative of sovereignty. The non-transcendental character of the new natural law made the civil sovereign its sole interpreter. Third, post-scholastic natural law aimed to distinguish law and politics from religion and theology and thereby effect a desacralization of sovereignty. Politics gained autonomy because a sovereign who is oriented solely to security neither supports nor requires a higher moral grounding.33 Effectively, the post-scholastic concept of natural law provided the underpinnings of absolutist rule. Within the absolutist order, holism and hierarchy were the primary norms—or the moral purpose of the state. Civilians enjoyed few individual rights and were subject to dynastic interests.34 Although the sovereign was to provide security, protection of dynastic interests came first, even in the face of external threats. Dynastic and societal interests were often at odds. In the mid-eighteenth century, Emmerich de Vattel transformed international law, reformulating its basis by reference to the new doctrines of natural law. Les nations étant composées d’hommes naturellement libres et indépendants, et qui, avant l’établissement des sociétés civiles, vivaient ensemble dans l’état de nature, les nations, ou les états souverains, doivent être considérés comme étant de personnes libres qui vivaient entre elles dans l’état de nature.35

By the late-eighteenth century the American and French revolutions had transformed the moral purpose of the state into what ReusSmit calls the augmentation of individual potentialities and interests. Individual rights began to be elaborated, codified, and institutionalized in various European states, with the most important occurring in the context of property rights . By the mid-nineteenth century the moral purpose of the state was individuated. This had profound implications for international politics; namely, the more the state was constituted by individuality, the more it had to protect the rights of the individual. When individual and human rights constitute modern

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states, states must agree to limit the scope of deliberate harm inflicted within their respective societies36—otherwise the rights of the individual will be severely undermined. In other words, modern states must by definition establish and run a matrix of domestic governance that correlates with international governance. Put differently, the rights of the individuals within a state cannot be maintained for the long term without mutual self-restraint and recognition among states. Here, obviously, we are talking about a Lockean order. This order results not simply from the role contract and law play in managing interstate interactions with the formation of a quasi-normative “international community.” More precisely, the international community is based on a shared sensitivity to property—an international liberal order that maintains reciprocal guarantees of property based on systems of governance that distinguish the role of government from economic activity in the private sphere through the coexistence of the state with civil society. This international community establishes the basis for rights claims.

SOVEREIGNTY AND CHINESE POLITICAL TRADITION By far the most important factor that conditions Chinese perspectives on sovereignty has been the manner in which China was incorporated into a Western-dominated international society. The Chinese tradition informed that perspective through the Confucian proposition that moral agency and subjectivity are achieved through political engagement in the service of the state, not apart from or against it. Traditional normative discourse that concerns moral obligations in the political realm structures relations between political actors in ways incommensurable with the political discourse of sovereignty in the modern West. The Chinese tradition appears devoid of any consistent questioning of the source of sovereignty, and, in fact, the concept of sovereignty itself is largely absent. The immediate reason for this is the limited role that law played in traditional Chinese political theory. This may be because the political order was central in the Chinese tradition; indeed, it was arguably more important in China than in either the West or India.37 As Benjamin Schwartz argues: The idea of an all-embracing socio-political order centering on a particularly powerful conception of universal kingship seems to have emerged very early within the Chinese cultural world. One

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The Empire’s New Clothes / Jeremy T. Paltiel can discern its beginnings even in Shang oracle bone inscriptions. The universal king (universal in that he presides over the universal human civilization) surrounded by his ministering elite soon comes to embody within his person both supreme political authority and the spiritual-ethical authority of the entire society. The kingship or locus of authority which he occupies (wei) is an institution which comes to constitute the major link between human society and the ruling forces of the cosmos. It is itself a cosmic institution.38

Although the Chinese political tradition can be read as endorsing a form of divine rule and considerable autonomy for the emperor, imperial rule also entailed a web of moral obligations that prescribe a symbiotic relationship between the ruler and the ruled. Ruler and subject are enjoined with a moral imperative to serve the state as the outer means to perfect inner virtue. This derives from one of the cardinal texts in the canon of Confucianism: “The Great Learning.” The ancients who wished to illustrate illustrious virtue throughout the kingdom, first ordered well their own states. Wishing to order well their states, they first regulated their families. Wishing to regulate their families, they first cultivated their persons. Wishing to cultivate their persons, they first rectified their hearts. Wishing to rectify their hearts, they first sought to be sincere in their thoughts. Wishing to be sincere in their thoughts, they first extended to the utmost their knowledge. Such extension of knowledge lay in the investigation of things. Things being investigated, knowledge became complete. Their knowledge being complete, their thoughts were sincere. Their thoughts being sincere, their hearts were then rectified. Their hearts being rectified, their persons were cultivated. Their persons being cultivated, their families were regulated. Their families being regulated, their states were rightly governed. Their states being rightly governed, the whole kingdom was made tranquil and happy. From the Son of Heaven down to the mass of the people, all must consider the cultivation of the person the root of everything. … 39

Service to the ruler (and the state) has no purpose other than the promotion of good (humane) governance. Loyalty is not to be equated with obedience, however. Remonstrance on behalf of

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humane governance is also a badge of loyalty in a moral universe that provides no grounding for civil disobedience. Reluctant withdrawal from public service is the sole available alternative . Opposition to constituted authority within the state hierarchy can easily be distorted or confused with disloyalty in contrast to the modern Western political tradition that purports to protect the autonomy of citizens in the public realm. The fundamental weakness in the Confucian idea of the political order is its reliance on strict personal loyalty as the basis for maintaining political order. Harmony in personal relations is the model for universal harmony, with the family as the model for the order of the state. Loyalty is strictly dynastic, not institutional. No distinction was made between imperial “sovereignty” and loyalty to the dynasty and the ruling house. This precluded modern notions of sovereignty based on the state as an institution with a defined territorial reach. Moreover, the legal basis of sovereignty in the Western tradition has no purchase in the Chinese conception that rests on a fundamental notion of immanence rather than transcendence. Because no legal order rooted in natural rights transcends the phenomenal order, positive law has a purely instrumental character. Although the Chinese from the Qin Dynasty forward evolved a distinct state apparatus (one of the important preconditions of sovereignty according to Hinseley), full recognition of an organized community or body politic to which the state was related was absent. Instead, the state reigned over segmentary communities that were organized along kinship lines.40 Harro von Senger concurs: “There was no community under the law that encompassed both the ruler and the population. During the imperial era the word ‘guo,’ which is used for the ‘state’ in Chinese today, did not refer to a community of the ruler and the ruled but to ‘the current dynasty.’”41 The ambiguous stance of the Chinese tradition with regard to the state and the law meant that China never engaged fully in an analogous debate concerning sovereignty equivalent to that which took place in the West. The Chinese tradition views “sovereignty” from the perspective of the moral obligations that bind those already in the seat of power with the subordinates who seek to participate and consciously perfect a system of universal order, whereas the concept of individual rights forms the basis of Western modernity. The former views order as a conscious artifact, the latter views it as the outcome of mutual satisfaction.

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Inner and Outer Realm in the Moral Order Neither was the traditional world order of China focused on the concept of sovereignty nor was it determined by the interdependent order of states. The Chinese world order was centered on the cosmological position of the Chinese emperor, where universal order was identified with the imperial role. A distinction was drawn between the “inner realm,” where administrators were directly commissioned by the board of civil service, and the “outer realm” that recognized various forms of suzerainty attached to the Board of Rites. Neither the spatial nor the organizational-administrative boundaries of the empire corresponded to modern notions of the sovereign state. The Chinese order was formed through concentric circles of increasing cultural value. In the inner realm, the administration participated in the creation and reproduction of the cultural norms of the Chinese state. This form of direct identification attenuates as we move toward the periphery, where looser bonds of loyalty prevail. Even as the direct authority of the emperor gave way to relations that involved greater autonomy and cultural pluralism, the central administration took great care to preserve the ritual role of the emperor as the moral axis of “all-under heaven.” The spatial-territorial character of the Chinese empire was not challenged by contiguous states that impinged on or competed with the Chinese order in any equivalent manner. It remained possible, therefore, to view the world as a hierarchy of greater and lesser rulers that focused on the cosmological role of the emperor. There was no struggle between emperor and pope to stimulate debate about the sources of political authority, nor was there an equivalent of the Muslim challenge, or Ottoman Empire, to organize diplomatic and military activity around territorial powers abstracted from cultural forms and norms. There was no tension between res publica and imperium, and there were no competitors to the imperial role that might make it necessary to define political power in any manner distinct from the emperor’s cosmological role.42 In short, the very concept of sovereignty was redundant in all its forms. Confucian thought prescribes a moral universe that is defined by strict deference to ritual and the performance of the obligations appropriate to specific relationships, such as father-son and emperorminister. The contextual basis of Chinese moral obligation implies a division between relationships identified with moral obligations (the inner) and encounters with the external world where no moral obligations or relationships prevail (the outer). Where no relationship

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exists, no obligations follow—a result that is distinct from the moral universe generally constructed by Western notions of a transcendent and universal moral law that prescribe moral obligations between strangers . “The basic identity of law and morality precluded the duality of divine and secular laws. Heteronomy of the legal sphere falls back on the ethical sphere.”43 The distinctly relational context of Confucianism never allows intimates and strangers to be placed on an equal basis.44 Strangers can be approached on the basis of instrumental reciprocity, but no obligations ensue unless affective and intimate ties are established. In this sense “sovereignty” as the defining boundary of the inner realm of the Chinese culture establishes the frontier of normative discourse and moral obligations . In the traditional Chinese world order, barbarians could become acculturated into the Chinese milieu and enter relationships of mutual obligation through the acceptance of a cultural discourse that was characterized by a universal hierarchy that focused on the emperor . Moral subjectivity and moral agency is of first importance in the Chinese tradition. The primacy of moral discourse did not blind Chinese rulers to pragmatic considerations of political agency. The rational calculations appropriate to each kind of behavior do not correspond to a crudely drawn opposition between individualism and collectivism . No specific “collective” subsumes the identity of the individual. Subliminally, if not formally, then, the relationship between the individual and the state can be considered the heart of the problem in the establishment of commensurable relations between the Chinese state and Western states. Sovereignty, properly defined is a notion that can arise only when rule is more comprehensive, in the sense that it governs a society, and more restricted, in the sense that it is anchored to a society, than was the extensive but superficial absolute rule which [traditional] empires wielded.45

The nature of Confucian loyalty and its priority over concepts of sovereignty predisposes a view of the state as a web of personal relations rather than as an institutional form comprised of laws, rules, and offices. “[T]he distinction between ‘state’ and ‘society’ was simply not feasible, and there was an essential identity of office and person.”46 This is one area of affinity between Leninist organizational principles of nomenklatura and traditional Chinese ethics.

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The State and the Individual in the Chinese Tradition The traditional Chinese state was a formal hierarchy centered on the emperor and also a system of networks built around loyalty to the ruling house. Positive law in this structure had the quality of compulsory communication within the hierarchy of the state, but it did not transcend social obligations. Although the emperor’s role was as the linchpin between heaven and earth, the sovereignty of the emperor was no more than his subjects’ loyalty to his person. The “state” was the administrative domain within which the loyalty to the emperor prevailed. This contained an “inner” realm, where the civil bureaucrats were dispatched, taxes were collected, and regular communications were maintained with the capital, and an “outer” realm, where loyalty did not entail administrative command and control. The zero-sum division of territory into exclusive zones of sovereignty simply did not apply. Because the power to rule could be claimed from heaven only on the basis of “virtue” in the Chinese tradition, power holders at all times proclaimed virtue and monopolized its definition. Conversely, claims on government could be made solely in terms of culturally acceptable notions of virtue. Fortunately or unfortunately, Confucian notions of order also placed paramount value on loyalty to one’s superior, thereby making both loyalty (zhong) and its familistic equivalent, filial piety (xiao), standard components of any culturally acceptable definition of virtue. The Confucian equivalent of “loyal opposition” therefore takes the form of “remonstrance” or, more particularly, attempts to teach the ruler virtue. The strict value Confucianism placed on precise maintenance of status in the social hierarchy meant that no one could legitimately claim to displace the ruler. The best hope of the morally cultivated individual would be to become “tutor to the king” in order to realize the blessings of the “kingly way” through service to the government. The cosmological significance of political rule entailed a symbiosis between the ruler and educated officials. The emperor depended on them not only to carry out his will in the administration of the state but also to proclaim his virtue and thus assure his legitimacy. The scholarofficials did not just depend on the monarch for salaries and civil offices; they hoped through the exercise of public functions to participate in the cosmological order symbolized by and realized through the emperor. This symbiosis of the civil elites with political power structures inhibited the formation of an autonomous “civil society” that

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might have promoted rights discourse by combining demands for the protection of material interests with claims of autonomy and status. The Western concept of sovereignty is connected closely with notions of the rule of law and the state as a legal entity. No equivalent conception existed in the Chinese tradition. Instead, imperial sovereignty extended from cosmological concepts of universal empire and universal function within tianxia, the “all-under heaven.”47 In contrast to European concepts of natural or divine law, the Chinese tradition viewed law as a purely human instrument. “Law does not descend from Heaven, nor does it spring from the earth. It is none other than what arises from the milieu of human beings in accordance with their beliefs.”48 Because the purpose of law is instrumental and pragmatic, it is seen as a counterpart to and dependent on external morality. “Law is the means whereby activities in all-under heaven are normalized.”49 Since law was merely a supplement and an instrument of state authority, it could not form the basis of state power as such. Moreover, the functions of Confucian morality and human relations worked to limit the scope and requirement of state sovereignty as a necessary nexus for obligation and consent. Ministers of state owed a personal obligation of loyalty under Confucian morality. This obligation extended to the person of the emperor and to the royal house— literally the “family of state,” or guojia, the modern term introduced from Japan that is now used to denote the state or the nation-state.50 Consequently, domestic sovereignty presented a problem only during an interregnum or in the transition from one dynasty to the next, although occasionally the problem also arose during unsettled successions within a dynasty.51 The nature of Confucian loyalty and its priority over concepts of sovereignty may also be gleaned from the injunction that a person could not serve two sovereigns, even in succession. This injunction was strong enough to provoke mass suicide among officials of the Ming Dynasty after it fell to the Qing and to discourage participation in the new dynasty except in the capacity of historians of the previous dynasty.52 Although the emperor monopolized the function of uniting heaven and earth, he did not have a monopoly on virtue. Virtue may be cultivated by all, but given the cosmological significance of political rule, the highest exercise of virtue by a non-ruler would be to imitate Confucius and to attempt to persuade the ruler to become virtuous. The identification of authority with morality could serve as a weapon for the weak subject only under the specific condition of loyalty. Dependency is the price of remonstrance. The remonstrant makes his or her appeal based on the moral obligations of the power holder in order to advance

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a claim of virtue unfulfilled. This exercise, which insinuates shortcoming in the virtue of the ruler, is clearly fraught with danger for the supplicant. Consequently, martyrdom becomes the sole acceptable manner through which to demonstrate the virtue of one’s cause while remaining unambiguously loyal to the ruler.53 The traditional Confucian ethic of neisheng waiwang (the sage within and the king without)54 engendered a social imperative to serve the state in the name of serving the people and society and as a means to perfect one’s own moral virtue.55 The image of the Confucian dichotomized subject is of the superior man who is morally self-conscious and the little person who is the mere object of state action. Whereas the ordinary person could not do any better than to conform to the behavior of his superiors, the superior man consciously strove to “assist heaven” in the creation of a moral order. This social imperative continued to influence the political engagement of Chinese intellectuals in the modern era. Indeed, the largely secular imagination of Confucian service to the state acquired a quasi-religious value. Although intellectuals guarded their integrity and, by extension, their moral autonomy from the ruler, they were at the same time driven to participate in state affairs to achieve the perfection of a universal moral order. Even though the state did not monopolize moral authority, moral order was inconceivable without the conscious harmony of enlightened rule. Society (outside the state or civil society as it might be termed) was deprived of corresponding value (beyond those embedded in the obligations of kinship) and could acquire value only through social action that assisted the ruler to create a moral order. Because a true moral order was supposed to be self-regulating, an enlightened ruler sought to interfere as little as possible in the affairs of society. Thus, the individual achieved value as a self-conscious moral agent on behalf of the state and society. This is what it meant to be zuoren, or truly human. Moral integrity could and should be maintained apart from the state, but true moral agency was impossible outside state service except in the guise of a moral teacher mirroring the sage, Confucius. Unlike modern citizenship, which does not require protestations of loyalty to the ruler to pursue a legitimate claim, the Chinese remonstrator had to demonstrate loyalty as a subject prior to advancing a claim. The ruler then weighed the risk of recognizing a claim against its potential cost to his legitimacy. He could magnanimously choose to recognize the claim in order to proclaim his own benevolence or to repress it out of fear of acknowledging moral fault, thereby undermining his own legitimacy. The claims of subjects became validated only

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through the obligations of authority, not because of any inherent rights of the subject. Nor were the obligations of rulers specific and contractual: rather, they were diffuse and moral. Facing a corrupt state, an upright person could refuse to serve, but that was the only acceptable moral alternative to martyrdom in the Chinese tradition. The preference for personal loyalty is consistent with the relational architecture of Confucian ethics. Chinese practice pioneered many aspects of state administration, such as a regular public service examination as a standard recruitment tool and extensive codes of law, including standardized codes of administrative behavior.56 Confucian ethics, starting with Confucius himself, however, stressed the rule of men over the rule of law. Thus, despite the emergence of a powerful state apparatus more than a millennium prior to the emergence of European absolutism, the Chinese tended to view the state as a nexus of personal relations and successful public policy as the internalization of an ethical order. The absence of sovereignty along modern Western lines confounds the ruler with the state and generates the confusion of moral opposition with disloyalty. Sovereignty involves recognition of the interdependence of the ruler and the citizens who are organized as the body politic, but it shifts the locus of obligation from the ruler per se to the body politic as a whole. The dilemma posed by an emperor confusing his personal interest with that of the realm’s did not escape the notice of traditional Chinese scholars. To attenuate the shortcomings of a patrimonial bureaucratic state, traditional Chinese scholars accorded moral precedence to the decentralized feudalism (feng-jian) practiced in the days of Confucius in preference over the institutions of centralized bureaucratic administration (jun-xian) instituted by the Qin Dynasty, which unified China in 221 B.C.E. These scholars also idealized the personal bonds of aristocratic enfeoffment over the power relations of the bureaucratic state. This controversy pitted Confucian antiquarianism against rational administration as well as concerns for the interests of the public state against the private interests of the ruling houses. Liu Zongyuan of the mid-Tang dynasty (eighth century C.E.) was particularly outspoken in defense of the public nature of the bureaucratic state in opposition to deference to antiquity. He also explicitly rejected a cosmological expression of imperial sovereignty in favor of its embodiment as the public interest. In the process, he advanced a theory of social and political evolution within which kinship as a principle of administrative organization was rejected as primitive.57

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Humans cannot pounce and bite to provision themselves, nor moreover, have they feathers or fur to protect themselves. Xun Qing has said “they must borrow objects from their environment to provide for themselves.” Those who compete for resources must struggle amongst themselves, and if the struggle is unending then they must seek a fairminded judge to heed his orders. Once followers become numerous, and fail to heed proper instructions, they must be painfully sanctioned to be overawed. Therein lies the origin of sovereigns and penal law.58

The language and the logic here starkly evoke Hobbes’s search for the origins of sovereignty in the state of nature.59 Note that Liu resolves the problem of nature, however, by referring to the personal role of rulers, not through a “covenant” that ensures natural rights. The views of Liu were in some respects anticipated by those of Mo Zi a thousand years earlier. Mo Zi also saw the imposition of a uniform set of laws under a single ruler as the foundation of political order and prized the uniformity of legal sanction over social ethics as a mode of attaining order.60 Liu distinguishes himself from other Confucians in his insistence on the singularity of sovereignty and his preference for the imperial principle over decentralized feudalism organized around kinship. This preference for unitary sovereignty finds expression in the da yi tong (great singular uniformity) that informs subsequent Chinese inquiries into the nature of the sovereign state. The continuing preference for a unitary rather than a federal state originates from this older conception of unitary sovereignty. Unlike European and, later, American expressions of sovereignty, which vest sovereignty in a res publica, a commonwealth, or an abstraction like “king in parliament” and “the people,” the sovereign in the original Chinese conception has a concrete and personal quality. The concept of the emperor as the body of the state (guoti) later informs the theory borrowed by Japanese constitutionalists for the Kokutai.61 Perhaps the clearest contrast of the distinction between the modern Western concept of sovereignty and the sovereign attributes of the Chinese emperor is the contrast between the idea of a body politic and the body of the state. One tradition views the state literally as “the public thing,” whereas the other identifies the body of the state with the person of the emperor. The debate in China was generally framed in pitting the “public” (gong) interest of the state against the “private” (si) or selfish interests of individuals—particularly rulers and officials. Two thinkers from the mid-seventeenth century Ming-Qing transition period, Huang Zongxi

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and Wang Fuzhi, were both concerned about the state as a public body and the role of the ruler or emperor as custodian of the public state in contradistinction to the “private” interests of the emperor in his royal household. In seeking to resolve this dilemma, Huang advocated—in Waiting for the Dawn—for public assemblies of scholars to voice the “public” aspects of political rule and to serve as counterweights to officialdom with its ambiguous public/private face. Huang lamented the fact that rulers established laws only “for the sake of one [ruling] family not for the sake of all-under heaven.”62 Huang concluded: “Should it be said that ‘there is only government by men, not government by laws’ my reply is that only if there is government by law can there be government by men.”63 Huang was deeply concerned about the conflict of interest between the private interest of the ruling house and the role of the imperial sovereign as steward of the realm (all-under heaven). In the Chinese political tradition, tensions existed between the patrimonial institution of imperial rule and the moral stewardship that the imperial sovereign was expected to perform on behalf of the people. In effect, sovereign authority, or the “mandate of heaven,” was a trust. The very moral contingency of this trust, however, would not allow for the role assumed by the doctrine of sovereignty in the rise of “possessive individualism” at the dawn of the modern capitalist era. The realm was a contingent possession just as “private” property was contingent on the state. Wang focused on a renewed interest in law as the public face of the state and its potential, not as a delineated sphere of rights. Furthermore, in his view the state did not delineate spheres of rights to bind both the officials and the commoners, the rulers and the ruled. He rejected the antiquarian and moralistic focus of a return to feudalism in favor of a kind of functionalism that was rooted in the evolving relationships between institutions of the state and society. The sharp critique of dynastic rule by figures like Huang and Wang was effectively repressed and survived only underground. In particular, the Qing Dynasty suppressed the writings of these men in an effort to manifest its own legitimacy. As Pamela Kyle Crossley emphasizes, the ideological requirements of legitimizing imperial rule engaged a complex process that at once had to confirm the identity of the imperial institution for the Han and at the same time assert the continuous identity of the conqueror.64 Subsequently, the transcendent role that was built up by the despotic imperial institution kept the imperial institution beyond the reach of law and rendered any notion of a body politic superfluous.65 Because of its affinity to Western ideas of government, the Qing Dynasty at the very end of its rule resurrected Huang’s ideas in the

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spirit of domestic reform. Although Huang can be legitimately hailed as a domestic harbinger of constitutional rule, no such political movement actually emerged in China before the introduction of Western models. Without a robust Chinese tradition of rule of law, there could be no Chinese tradition of rights. In the absence or weakness of these two essential components of the modern discourse of sovereignty, sovereignty arrived in China through the coercive international claims of European maritime powers.

Law and Nature in the Chinese Tradition The genealogy of Western rights discourse, which includes the discourse of sovereignty, can be traced to the idea of natural law.66 Human rights are in general a modern transformation of the theory of natural rights. Although the adoption of the Universal Declaration of Human Rights and the International Bill of Rights have, in important respects, removed the discussion of human rights from political theory to the legal domain, the robust sense in which “human rights” are seen to be “inalienable” cannot easily be separated from their parentage in the older theory of natural rights. It is here also that Western liberal discourse and Chinese traditions of political order fundamentally diverge. Joseph Needham, the noted historian of Chinese science, locates the European idea of laws of nature in a notion of a “reign over the world” that: … originated from a hypostatization into the divine realm of men’s conceptions of earthly rulers and their reigns and should look at concomitant social developments to reach an understanding of the change which took place. … If then, we may relate the rise of the Stoic doctrine of Universal Law to the period of the rise of the great monarchies after Alexander the Great, we may find it equally reasonable to relate the rise of the concept of Laws of Nature at the Renaissance to the appearance of Royal Absolutism at the end of feudalism and the beginning of capitalism. It is not mere chance, says Hegel, that the Cartesian idea of God as the Legislator of the universe developed only forty years after Jean Bodin’s theory of sovereignty.67

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The Chinese tradition rests on a fundamental notion of immanence rather than transcendence. A divine legislator, therefore, does not exist, nor does any kind of legal order (such as natural rights) transcend the phenomenal order.68 The only form of law recognized in the Chinese tradition is positive law, and without a tradition of natural law or divine law to sustain the idea of law as the origin of order, positive law takes on a purely instrumental meaning, with a much-contested moral force. Thomas Stephens has aptly captured this dichotomy. In western thought, the antithesis of chaos is order, and order is thought of, both cosmologically and philosophically as an artificial objective deliberately brought about, managed, and controlled on predetermined forms according to the conscious will of a transcendent power exterior to the flux, by enforcement of codes of rigid, universal, specific imperatives constraining conduct. In Chinese thought and cultural tradition, the antithesis of chaos is harmony which is brought about simply as a natural characteristic of a state of affairs that arises and persists so long as all the individual parts of the universe, even the smallest, and all persons in it, perform the duties and offices faithfully “according to the internal necessities of their own natures” in whatever station or function of life they find themselves born to or assigned by superior authority.69

In China, the principles of law “can be characterized as designed to restore moral order in the family.”70 The law did not embody order, as such, but as penal law it functioned to sanction immoral activity. Accordingly, the legal procedure did not distinguish determinations of guilt from sentencing.71 Needham also connects the Chinese aversion to positive law to the absence of any notion of “laws of nature.”72 Without a divine lawgiver, divine law does not exist. Moreover, the connection of positive law with particular rulers makes the Chinese suspicious of it as an instrument of rule. To be applied properly, law still requires a moral and just ruler who can apply law to the particular context. If applied bluntly and impartially, as was suggested by the legalist rivals of the Confucians, the law is no better than arbitrariness and is at best amoral, if not immoral. Confucians preferred to cultivate inward virtue and to find justice in virtuous rulers. These rulers took as their standards the rites, rituals, or decorum required in every particular situation, and at the same time they attended to the moral faculty that linked all persons, the cosmos, and all things. Instead of a transcendent God, Confucianism sees the cosmos as a

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seamless web of relations—the jigang—where each node may not be disturbed without affecting the shape of the web as a whole.73 The cosmos is fundamentally a moral cosmos, and nature is fundamentally the same as human nature (xing ji tian). Discussions of nature in relation to law and morality in the Chinese philosophical tradition parallel but do not mirror Western discussions of “natural law.”74 Chinese discussions of the proper place of human relations of “rite” (li) and “rightness” (yi) in the Confucian tradition place a heavy emphasis in a natural order rooted in “heaven” (tian). The Confucian tradition, however, adopts a perspective based on the moral cultivation of the self or subject in relation to others, which eschews an “objective” standard of the hypostatized “other” or an abstract standard of justice. Moral calculus tends toward “equity” rather than “right.”75 David Hall and Roger Ames aptly capture this Confucian notion of equity. The coextensive relationship existing among the dimensions of personal, social and political order has the effect of precluding the employment of categories familiar from Western philosophical theory. Confucius, given his distinctly social perspective with regard to the project of person making does not perceive a corresponding degree of difference between public and private, between ethical and political concerns, between social and political structures.76

If, “in the course of human events,” Western enlightenment intellectuals engaged in political action in defense of certain “inalienable rights,” their Chinese counterparts were drawn into public activity by the need to “achieve rightness” in human relations. For instance, the word for “uprising” is qiyi—literally a “rising up for rightness”—with the attendant implication that uprising is not an egocentric action but a public-spirited movement. Both the Chinese and the Western traditions give limited moral sanction to authority and recognize the legitimacy of moral claims established on the basis of the inappropriate application of power. Both traditions sanction the “questioning of authority.” Broadly stated, however, the Chinese tradition does so from the perspective of the moral obligations of power holders, 77 whereas the Western tradition evolves a concept of individual rights. The two traditions are neither contradictory nor strictly complementary. Yet an important distinction arises out of both the cosmological significance and the

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singularity accorded the Chinese emperor. There was no theory of the state as a general institution of human society. Instead, there was only a moral theory of the universal Chinese state. Whatever theory of authority followed on this approach, such authority could not be readily transposed to a system of international relations organized on anything other than a hierarchic basis.

The “State” State-society relations invoke both inductive and deductive elements. By deductive elements I mean the “top-down” character of authoritative relations. By inductive elements I mean the quality that naturalizes authority and facilitates obedience. Both these qualities are required in order for states to exist. It is not essential for either element to be characterized primarily in legal form. It is sheer cultural habit to reduce the deductive form of the state to its rule-bound and rule-making function—to law. Deductive elements of statehood include rules, laws, and a constitution in addition to the chain of command that links the organizational personnel of the administrative state in a structure of power. China has tended to prioritize the latter over the former. Whereas Westerners tend to view “law” as relatively objective, permanent, and stable and to view social relations as contingent, Chinese tend to view rules as contingent and social relations as relatively stable. If we admit that all social structures are bound by rules, we must also admit that social structures are social networks organized around core hierarchies. Which aspect precedes the other is really a matter of how we think. These Western and Chinese perspectives are projections of underlying worldviews rather than competing statements of fact. Are social norms a projection of deductive social principles, or are they the instantiation of social obligations? Is the habit of obedience built around the internalization of a particular principle, or is it based on loyalty to particular persons? Depending on which alternative a policy maker proceeds from, real-world consequences follow. Each alternative conceptualizes conflict differently, with different ideas about its resolution. Charles Tilly distinguishes two attributes of organization: categoricalness and social network. In the Western culture, philosophical nominalism, formal logic, and legal reasoning are mutually reinforcing. Relations are either deductive or contractual. In Chinese thought, circular reasoning, holism, harmony, and value relativism form the approach to social harmony in which the

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maintenance of social networks prevails over abstract justice. Loyalty forms the basis of social power, and conflict occurs along the boundaries of social networks. There is no special requirement for sovereignty to police loyalty. The traditional Chinese state was a formal hierarchy that centered on the emperor, but it was also a system of networks built around loyalty to the ruling house in which positive law did not transcend social obligations. By contrast, the modern European system of states (the Westphalian system of sovereignty) that dates from the Treaty of Westphalia, which ended the Thirty Years War on October 24, 1648, presupposes the coexistence of sovereign states, a notion foreign to Chinese thinking. When the inner realm of the Chinese cultural sphere was divided among contending coordinate states, the situation was regarded as abnormal—a matter of contending sovereignties (or, more properly, in the terms just discussed, contending sovereigns competing for hierarchic supremacy), not international relations among commensurable units.78

The Rule of Law and Sovereignty The intrinsic relationship between the state, sovereignty, and law is well known in Western discourse.79 The idea of sovereignty embedded in international law is usually summarized in the principle of pacta sunt servanda (“agreements must be kept”). By the time of Grotius, an already long and well-established tradition locates national sovereignty within an international context of the rule of law. There is no City so strong and of itself sufficient, but may sometimes stand in need of Foreign Aid, either by way of Commerce or to defend itself against the united forces of many Foreign Nations confederate against it: Therefore we see, that the most potent Princes and States have always been desirous of Leagues, which would be of little use or force were all Laws and Justice confined within the bounds of any one City only. Most true it is, that as soon as we receded from the Law, there is nothing we can certainly call ours.80

The conflation of law and identity that Grotius expresses is strictly Western in its cultural orientation. Such a statement would never

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resonate with the Chinese tradition. Debate over the normative basis of sovereignty is far from new in the West. International relations realists as well as positivist international lawyers, such as Hans Kelsen, deny any normative basis to sovereignty. Kelsen sought to repudiate the Western tradition based on natural law. In simple terms, he argued that “you cannot derive an ‘ought’ from an ‘is.’” Where legal positivists and international relations realists and neorealists part company is on the historicity of the concept of sovereignty and its impact on the international system. Legal positivists have no problem locating sovereignty in time and space. They claim that once the concept of sovereignty is defined in international law, its legal meaning is the same wherever it is applied. Neorealists, on the other hand, argue that the concept of sovereignty is virtually coterminous with the notion of a state and that the international system follows deductively from it. Social constructivists have tended to regard sovereignty in quasi-normative terms: on the left, as a normative rationalization of realist international relations theory and the structural violence of the state system, and by liberals, either of the so-called English School or those who claim the parentage of the natural law tradition espoused by Grotius, as an aspect of a normative theory of international society that circumscribes the behavior of states. In his careful “reconstruction” of social returns, Wendt contributes to the argument that sovereignty is an “essential” attribute of statehood. Nevertheless, Wendt, along with other social constructivists, agrees that the state system is a normative system and a social construction. War is deterred not through the material consequences of a “balance of power” but through the normative roles that the international system distributes as a social construct. Wendt emphasizes that “sovereignty does not presuppose a society of states.” In his view, sovereignty is “intrinsic to the state, not contingent.”81 Wendt has internalized a view of the state that is culturally informed by Western ideas about the constitution of social relations. This is symbolized, in my opinion, by his citation of d’Entrèves to support his view that sovereignty is a legal rather than a political fact, an attribute of states de jure and not de facto. I agree with this assessment but reject the notion that sovereignty is simultaneously an essential attribute of statehood. The issue is what attribute a state requires to cohere as a distinct organization that is distinct from both society and other states. Modern international lawyers reaffirm a duality in the relationship of the rule of law and sovereignty. The state as a social order is identical with the law called “its” law—it is a specific legal order. Whereas the state as a person, as

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The Empire’s New Clothes / Jeremy T. Paltiel a subject of international law, is the personification of this legal order. The idea of the state as a superman or as a superhuman organization is the hypostatization of this personification. Sovereignty in the sense of supreme authority can be nothing else but the quality of a legal order. Therefore, the problem of the sovereignty of the state is the problem of the sovereignty of the national legal order in its relation to the international legal order.82

Hans Morgenthau put forward the view, further extended by Kenneth Waltz, that international relations was a positivistic science.83 The very premise of Waltz’s theory is that among states an enforceable system of law cannot exist and that this is the irreducible meaning of sovereignty. Here, the crux of the problem is: if sovereignty is a universal principle and international relations is a “science,” there can be no question of “inclusion” or “exclusion” in international relations. Yet many theorists and historians counter this reductionist approach by pointing out that sovereignty is itself a historical concept that is socially conditioned.84 Sovereignty is an institution and so it exists only in virtue of certain intersubjective understandings and expectations; there is no sovereignty without an other. These understandings and expectations not only constitute a particular kind of state—the ‘sovereign state’—but also constitute a particular kind of community since identities are relational.85

China was an outsider to the community of sovereign states. Yet Chinese foreign policy has continuously striven to achieve the benefits of participation in the community of sovereign nations, and at the same time it has persistently expressed alienation from both the norms and the structures of the community of sovereign nations.

SOVEREIGNTY AND EAST ASIA The historic “states” of East Asia represent the contours of a historic identity that formed the vessel of an emergent nationhood. The nation as an “imagined” community traced a narrative relationship to a historic identity that was disrupted but not eliminated by Western intervention. Although the West was the power that denied the nation its

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political expression, it also furnished the norms that underpinned the institutions of the nation-state. East Asians negotiated sovereignty from the pure standpoint of an “other.” Hence, the strategies they employed reveal a lot not just about the way in which sovereignty was perceived and understood from the outside but also about the ways in which it has been constructed by those who had the dominant power to grant or withhold recognition. In other words, the strategies also reflect on the assumptions and definitions of sovereignty that core Western powers held. The unique experience of the East Asian states is to have traversed the distance between periphery and core of the global system. The question remains, to what extent have these states become full participants in the construction of shared meanings, as opposed to what they undoubtedly were—subordinate recipients of dominant meanings constructed elsewhere? East Asian powers employed strategies to claim a position as equal sovereigns in the modern world that utilized the various meanings of sovereignty coextensively—seeking to achieve Westphalian sovereignty through the manipulation of juridical sovereignty and the norms of international legal sovereignty. The clearest example of this approach is the case of Meiji Japan (1868–1912). The Japanese state explicitly tailored its project of legal and constitutional reform to the goal of obtaining “treaty revision,” that is, overcoming the restrictions imposed by the “unequal treaties” that opened Japan to Western trade.86 It is important at this point to reflect on the twin aspects of sovereignty in its domestic (internal) and international (external) guises— the key to understanding the main impetus behind this book. The domestic sovereign is the focus of obligation (citizens are obligated to the sovereign state), whereas in relations among states the sovereign is the locus of obligation (states enter into mutual obligations). Although the former is compulsory and the latter is ostensibly voluntary, the trend since the sixteenth century has been for the former to become increasingly voluntary and the latter to become increasingly compulsory. The limit to the arbitrary or discretionary obligations bound up with the concept of sovereignty lies in the need to find a positive grounding for the exercise of rights. Within the rights discourse, which has become increasingly universalized, both national rights and individual rights presuppose the sovereign state. The entire problem of international relations that emerged as the result of the impingement of the Western powers on the Chinese administration, from the Opium Wars onward, was about the establishment of terms of commensurability in the absence of supporting

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norms. Around the time of the Opium Wars, Westerners confronted a Chinese social structure with the outwardly familiar outlines of a state—a regular territorial administration headed by a “sovereign” emperor. The fact that this political unit was “objectively” commensurate with European powers was irrelevant. The cognitive frame—the deep understanding of commensurability—had to be learned by both sides and, as I argue, is still being learned today. One side of the relationship, the Chinese state, was forced to enter a system of purported equality in a subordinate position. The counterparts on the Western side had a theory of equal sovereignty but no procedure or protocol to confer equality on states with incommensurable cultural traditions. It is impossible to understand the historical phenomenon of sovereignty on a global basis without including the expansion of the Western colonial enterprise that corresponded to simultaneous congealment of the institutions of sovereignty on the European continent, except as a gradual demarcation of domains and allocation of rights. Until the modern period, the Chinese state was not interested in either of these processes. The Manchu desire to regulate relations along the periphery as part of the consolidation of its own rule (the treaties of Kiakhta, Aigun, and Nerchinsk signed with Russia) happened to coincide in time, but not in kind. When China was coercively inducted into the system of international relations that was organized on the basis of sovereignty, it adopted the vocabulary and practice of international law as a defensive measure, as part of a conscious effort to appeal to the norms of the Western state to defend its interests and the integrity of its political regime. Normative identification was selective and instrumental. Identification with Western norms was conditioned on the status accorded to the Chinese state, and varied depending on Western adherence to the norms preached by the West itself.

THE GENESIS OF THE CHINESE PREOCCUPATION WITH SOVEREIGNTY Zhang Yongjin argues that the West confronted in East Asia an alternative “family of nations,” a family that in contrast to the Westphalian system of sovereignty was organized along Confucian hierarchic terms. He compares the two “families” along four incompatibles:

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1. The Western principle of sovereign equality versus the Chinese system of imperial mandate involving superordination and subordination. 2. The system of international law versus the primacy of ritual (li) in the Sino-Confucian world, where the universal pre-eminence of the Son of Heaven supersedes the balance of power. 3. The absence in China of institutions such as resident embassies and diplomatic practice in favor of standardized rituals of periodic tribute missions. 4. Whereas the European family of nations was a political order with consent of all its members who shared in maintaining the order, the Chinese Tianxia was a culturally-based moral order that was politically oriented to the Chinese side.87 The earliest practical recognition by China of the modern international concept of sovereignty occurs in the context of the Sino-Russian treaties of Nerchinsk. Not only were these treaties negotiated under conditions of formal equality of sovereigns but they also were negotiated in part through the agency of the Jesuit missionary Thomas Pereira, with the treaty text published in Latin.88 The effort of 1st Earl George Macartney to establish diplomatic relations between Great Britain and the Qing empire in 1793 failed because of incommensurability between the terms of the relationship each side sought to project onto the other. The work of James Hevia shows conclusively that both Macartney and the emperor Qianlong were scrupulous in their interaction and recognized the sincerity of the other’s efforts to enter into a relationship. The mission foundered on incompatible conceptions of sovereignty. Although the British diplomat was willing to go to great lengths to adapt to Chinese “ceremony,” he insisted on symbolic recognition of sovereign equality. In turn, the Chinese emperor was scrupulous in his solicitude for the welfare of the British mission, but his understanding of the role of the mission had to do with ritual subordination to the hierarchic order of the universal empire.89 Given this discourse, it is easy to see why a “dialogue of the deaf” and mutual incomprehension ensued from the British lord’s mission. The Chinese imperial authorities simply could not understand foreign relations conducted on the potentially mutual benefits of trade alone. The Chinese emperor invited the British ambassador to an audience believing his sovereign, George II, to be sincere in his desire to participate in the creation of universal order by proclaiming his vassalage to the universal overlord. China neither wished to undertake any moral obligations on behalf of Great Britain nor understood the

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purpose of an embassy premised solely on the search for material gain and devoid of any ritualistic significance.90 The inner and outer distinction survived the subsequent collapse of the ritual Chinese order in the modern era and became reified in the Western concept of sovereignty. Henceforth, territorial sovereignty became the measure of the moral order, with respect for the territorial sovereignty of China as the symbolic measure of proper relationships. By the same token, the inner order within China’s exclusive sphere of territorial sovereignty was removed as the subject of moral discourse. Far from trivial compared to issues of foreign policy and international relations, the discourse of moral value is relevant to questions of power and interest. Although the focus of the individual as a subject of international law is very recent and controversial, the status of the individual, in particular the Western individual, has always been an issue in modern relations between China and the West. One of the original objections to Western participation in Chinese ritual embassies through the tributary system was the practice of kowtowing (ketou) to the emperor.91 In the nineteenth century the status of the individual became a marker of the suitability of China to be admitted to the society of “civilized” nations and a condition for recognition of its sovereign status.92 Human rights barely played a role in the encounter of Europeans with Asia, with the exception that Europeans desired to be exempted from the legal regimes in which they found themselves. When Commissioner Lin Zexu seized 20,280 chests of British opium, he dismissed the British objection to the infringement of their “rights.” In an admonition to Queen Victoria he stated the following: We have read your successive tributary memorials saying in general “our countrymen who go to trade in China have always received His majesty the Emperor’s gracious treatment and equal justice,” and so on … For this reason the Celestial Court in soothing those from afar has redoubled its polite and kind treatment. The profit from trade has been enjoyed from them continuously for two hundred years. This is the source from which your country has become known for its wealth. But after a long period of commercial intercourse, there appear among the crowd of barbarians both good and bad, unevenly. Consequently there are those who smuggle opium to seduce the Chinese people and so cause the spread of poison to all provinces. Such persons who only care to profit themselves, and disregard the harm to others are not tolerated by the laws of heaven and are unanimously hated by human beings … We find that your country is 20,000 miles from

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China. Yet there are barbarian ships that strive to come here to trade for the purpose of making a great profit. The wealth of China is used to profit the barbarians. That is to say, the great profit made by barbarians is taken from the rightful share of China. By what right do they then in return use the poisonous drug to injure the Chinese people? Even though barbarians may not necessarily intend us harm, yet coveting profit to the extreme, they have no regard for injuring others. Let us ask where is your conscience?93

Lin Zexu commissioned a translation of Vattel’s Le Droit des Gens in preparing his admonition to Queen Victoria. In his admonition Lin clearly invoked the premise of universal morality through the legal systems of different states and relied on this principle to claim the right of China to restrict the opium trade. Lin further depended on Vattel to furnish a legitimate casus belli.94 However, the Western powers of the time neither reciprocated nor acknowledged this early effort at “intersubjectivity” or a common normative understanding of international relations based on reciprocal acceptance of key norms.95 According to the British government of the day, the Chinese empire had violated international law when it had attempted to outlaw the opium trade on its own shores through seizure of opium stocks held in British warehouses on Chinese territory. Ignoring Chinese objections to the nature of the trade, the British claimed a general right to trade based also on Vattel’s theory of international law. The principles that Great Britain sought to establish were the right to engage in trade on Chinese territory and to have British nationals exempt from Chinese law, especially criminal law (this principle is known as extraterritoriality). Britain demanded compensation for the seized opium and an indemnity for the costs of the hostilities.96 Hong Kong was intended to be a sovereign territory that could supply provisions to the Royal Navy, which patrolled Chinese ports in support of British trade, and that could be a warehousing center for British goods. To be sure, Chinese criminal law did not contain the safeguards of the British common law, such as habeas corpus, and Chinese criminal procedure allowed torture as a means of gathering evidence. Again, the protection of extraterritoriality was conferred not only on merchants who engaged in trade but also on missionaries and eventually on missions and converts as well. The British were granted these concessions in the 1842 Treaty of Nanking—the first treaty in what the Chinese regard as a series of “unequal treaties” that infringed on Chinese sovereignty and privileged Europeans until World War II.97

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The issue of subjecting Western people to Chinese law became the primary reason for including the principle of extraterritoriality—a concept borrowed from European treaties with the Ottoman Empire—in the “unequal treaties.” Sovereignty was, until the twentieth century, accorded on the basis of a “standard of civilization” that was explicitly Eurocentric and Christian. International law was an instrument of European privilege rather than a means of ensuring equality of treatment among sovereign nations. To contemporary Europeans, the desire of the Chinese to control their own borders and to regulate the activities of foreigners was seen as an arrogant expression of Chinese superiority that deserved to be punished.98 The “most favored nation” clause inserted in all the treaties ensured that privileges granted to any one European nation would be enjoyed by others. As late as the 1920s, George W. Keeton justified the imposition of extraterritoriality and the other provisions of the so-called unequal treaties on the grounds of a clash of civilizations. The sociology of law is particularly important in considerations of the extraterritorial system. Two civilizations, fundamentally different—even directly opposed—in every important characteristic, have found it necessary to regulate their intercourse by a system of extraterritoriality and its abolition has only become possible since the two civilizations have found common ground—China’s acceptance of Western standards in some of the more important of her relations with the West—upon which to meet.99

Keeton argues that the two civilizations had rejected each other. “Altogether apart from the West’s rejection of China as a full member of the society of nations, there was China’s corresponding rejection of the Western states as independent and upon an equality with her … China’s exclusion from the family of nations operates both ways. If she had no capacity to sustain rights, she had equally no capacity to sustain obligations.”100 Keeton further argues that China had no right to exclude the West from trade on three grounds. First, because the Chinese were engaged in trade and therefore had no right to arbitrarily impose restrictions; second, again citing Vattel, he imputes a right to trade; and third, and most tellingly, because China could not be regarded as sovereign under international law—because of the defects in its legal system and its refusal to recognize Western states on equal terms. Keeton then reasoned that the Western powers were not obligated to respect China’s laws and could proceed on the basis of their

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own interests: “It is submitted that even if China had wished to exclude the foreign trade (though in fact she did not) the policy of the Western powers ought rather to have prevailed over that of China.”101 Needless to say, the Chinese do not accept the premise of their negative incorporation into international society. The significance of the ‘unequal treaties’ from the Chinese viewpoint is that China was not treated on an equal basis and was therefore denied the rightful benefits of sovereignty under international law. The major factor in international relations under the Qing was the unequal treaties imposed by the West. Western states brought modern international law to China, but only applied it among themselves, and did not apply it to China; put differently, they only applied those principles and rules which served the cause of their oppression and exploitation.102

The key point is that although the West transmitted the discourse of sovereignty and imposed it under the 1842 Treaty of Nanking, the colonial context and concomitant Western hypocrisy around human rights and international law undermined its reception and fostered considerable ambivalence about these concepts. The Chinese “discovered” sovereignty just as they effectively “lost” it. The Chinese viewed international law as an instrument of European privilege and not as a means of ensuring equality of treatment among sovereign nations. The Chinese court accepted the treaties as a means of regulating the activities of the Western powers and initially, in particular, as a means of keeping them far away from the seat of power. The treaties were seen as an assurance that the foreigners would return whence they had come and would not seek to displace the ruling house by occupying the capital.103 The first influential translation of an international legal treatise into Chinese—the translation by the American missionary W. A. P. Martin of Henry Wheaton’s Elements of International Law—was undertaken for the purposes of acquainting the Chinese government with the practices of the European model of international diplomacy, even though the commission was from the Chinese government!104 Later, the entry of Japan into the family of nations “made it necessary that the standard [of civilization] be articulated in specifically legal terms.”105 Nevertheless, one of the terms that Martin first rendered into Chinese in 1864, zhuquan (literally power of rule), remains unchanged today.106 Ironically, Martin’s translation of Wheaton’s text also provided the original lexicon for the first authoritative usage in any East Asian language of

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the commonly used translation of the Western term rights—quanli— a combination of the term “power” (quan) and the term for benefit (li).107 Consequently, right became associated once again with “power.” Here there are two readings of li or ri: the first meaning is “principle,” and the second meaning is “profit or advantage,” which is sometimes translated technically as “ego advantage.” Rights are viewed, therefore, as powerful principles that are attached to ego and as an antonym to social or moral obligations. An interesting problem arises with regard to this translation. The influence of social Darwinism and the ideas of Herbert Spencer were widely disseminated in China and Japan at the end of the nineteenth century. The survival of the fittest became the tocsin of national revival in those two countries. In Western philosophy, might and right are opposing principles and yet, in the context of late-nineteenth-century imperialism, these two principles become closely associated in East Asia. Although the jiyuminken (“liberty and people’s rights, or power”) movement, which demanded the extension of suffrage and democracy, arose in Japan of the 1870s and 1880s, its influence and popularity quickly ebbed following the announcement and promulgation of the Meiji Constitution and Imperial Rescript on Education of 1890. Instead, popular politics was diverted to the cause of national revival that ensued upon Japan being victorious over China in 1895 and Russia a decade later. The Japanese state explicitly tailored its project of legal and constitutional reform to the goal of obtaining “treaty revision,” that is, overcoming the restrictions imposed by the “unequal treaties,” which had opened Japan to Western trade.108 Indeed, the adoption of a Western legal framework that included a national constitution was directly conditioned in Japan by the leaders of the Meiji Restoration as a means to void the unequal treaties forced on Japan following its opening and to reassert Japan’s sovereign rights. The promulgation of a constitution and a Western style legal code, that is, the outward institutions of a Western “civilized” state, was directly stimulated by the wish to abolish the privilege of extraterritoriality that Western powers enjoyed pursuant to the treaties that had opened Japan to Western trade.109 The accession of Japan to full sovereignty within the international system can be confidently dated from the signing of the Anglo-Japanese Naval Treaty in 1902. This treaty also marked the culmination of the process of treaty revision. This achievement was not based solely or even primarily on the basis of mimesis alone; clearly the victory of Japan in the first Sino-Japanese War played a determinative role, further consolidated with the stunning victory of Japan over Russia in 1905. The exhibition and the demonstration of power and the

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adoption of an institutional structure that conformed to Western norms were the basis of Japan’s acceptance as a sovereign state. If demonstrated power marked the emergence of Japan as a sovereign state, it was China’s abnegation following its defeat by Japan that sparked its institutional organization to conform to Western norms of sovereignty. The first attempt at dynastic reorganization in the 100 days reform ended with a coup by the Empress Dowager. When her effort to preserve the dynastic order by enlisting Boxer xenophobia ended with the occupation of Beijing, the Qing dynasty turned belatedly to the Japanese example. It began to reform institutions and to promulgate a legal code, and in 1908 even issued an outline of a constitution. China sought to restore its sovereign rights almost as soon as it was capable of diplomatic negotiations. The linkage between the reform of China’s judicial system and the abolition of extraterritoriality was established not long after it had been accomplished in Japan. It was embedded in the commercial treaty signed with Great Britain as early as September 1902.110 All this neither satisfied the requirements of the Western powers nor staved off regime collapse. A sharp reaction to imperialism emerged following the Boxer Rebellion. As Mary Clabaugh Wright put it, “The watchword of the new China was ‘recovery of sovereign rights.’”111 To this end, the reluctant Qing government undertook a series of reforms, with the announcement of moves toward a constitutional monarchy and the promulgation of legal reforms. 112 The belated Qing reforms, including the promulgation of a provisional constitution in 1908 and the election of provincial assemblies in 1909, accelerated political activism and hastened the fall of the imperial regime, which was replaced by the republic following the October mutiny at Wuchang in 1911. In assuming his powers as provisional president of the Republic of China (ROC), Sun Yatsen declared the readiness of China to “carry out the duties of a civilized nation so as to obtain the rights of a civilized nation.”113 The subsequent adoption of a legal code that the ROC directly translated from the Japanese was both a matter of linguistic convenience (linguistic similarities in terms of written vocabulary made translation from Japanese much easier) and example. To become “sovereign,” a concept that was encrypted in European international law, it was necessary to adopt a Western-style constitution and legal code. Chinese legal codes were largely based on Japanese models because many Chinese had received a modern education in Japan and because the Japanese had pioneered the adaptation of Western-based (mostly German) legal forms and their translation into Chinese characters.

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The Empire’s New Clothes / Jeremy T. Paltiel The choice of Japan as a model for legal reform was no accident. Japan’s success in reversing extra-territoriality and in becoming a mighty power in the Asian area was seen to be the result of it having a constitution and a legal system based on Western models.114

The absence of sovereign equality as a fact turned sovereign equality into an ideal. If the adoption of this ideal as a norm constitutes a kind of concession to Western dominance, then resistance to that dominance conditioned its adoption, with such resistance continuing to condition the interpretation of that norm.

THE STATE AND THE INDIVIDUAL IN CHINA’S COLLAPSE: THE EMERGENCE OF MODERN NATIONALISM The collapse of dynastic China vitiated the notion of the Chinese state as the pivot of universal order wherein the Chinese emperor was the linchpin of heaven and earth. The ideal of the Chinese state arose to function instead as the repository of value in a competitive world order of other cultures and nation-states. Therefore, the collapse of the Chinese world order did not immediately or even significantly alter the relationship of Chinese intellectuals to the political order. When this effort failed in the wake of the disastrous Sino-Japanese War of 1894–95, more radical forms of discourse—to wit, republicanism— abandoned the dynastic state as the focal point of loyalty but did not displace the state as the ultimate focus of value. The slogan “national salvation” suggests a culture in which the state takes on consummatory value. The national state becomes both the means and the end of personal salvation. Liang Qichao, a brilliant political reformer from the scholar-official class turned journalist and polemicist, exemplifies the transformation of the Chinese intellectual from exemplary civilservant to nationalist patriot. His book, the Xinmin Shuo, reconciles modern ideas of republican citizenship with neo-Confucian notions of personal self-cultivation. In a form that is arguably replicated in Maoist ideals of activism, neo-Confucian ideals of moral self-cultivation are identified with republican citizenship and enrollment in the cause of national renewal. In the Hsin-Min Shuo, Liang stated categorically that, in compliance with the general law of struggle for existence and of natural

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selection, men must come into conflict with men and nations with nations. Because struggle exists at all levels, the struggle of nations, the largest natural focal point for loyalty, dwarfs all more petty struggles, and patriotism is the great necessity. Private interest must be sacrificed for public. This battle is the mother of civilization, the prerequisite for progress.115

As a central figure of Chinese modernity, Liang Qichao popularized fittingly a fragment of the dynastic history of the Southern Song to honor the youth of the anti-Mongol Song patriot Yue Fei. As Bernard Luk points out: [T]he Song dynasty war hero was quoted as saying to his father: ‘if you, sir, would permit me to sacrifice my life for the guojia, what could I not accomplish!’ Simply by reading into the text the new meaning of guojia [the nation-state] instead of the old one [the ruling house or dynasty] Yue was transformed from a dynastic loyalist to a nationalist.116

The new moral imperative becomes one of “restored” greatness or the recovery of world status. The trauma of the “century of humiliation” is the trauma of collapsed value. Like all discourses of national humiliation in nationalist discourse, the Chinese too can see their own identity hypostatized in the recovery of world status. It is possible also to see this as a recapitulation of the role of the individual in creating a conscious moral order, with the nation-state now replacing the cosmological importance of service to the emperor. The provisional constitution of the republic, which was first promulgated on March 11, 1912, stated formally in Article 1 that “[t]he Republic of China is organized by the Chinese People” and in Article 2 that “[t]he Sovereignty of the Republic of China belongs to the body of the entire citizenry” (guomin quanti).117 In the twentieth century, the need to preserve the emblematic relationship of the intellectual to the state became transformed into a desperate mission to “save” the state (and nation). The permutations of national salvation led to a comprehensive search for “the truth that would save China” (jiuguo zhenli), which although it involved a radical and fairly comprehensive investigation of the ideological and organizational principles underlying contemporary Western state organization and political theory, placed this entire quest in the context of the desperate search for the formula to revive national power

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and the external dimensions of the Chinese state. As the radical polemicist and first leader of the CPC Chen Duxiu put it, “I would rather see the destruction of our ‘national118 essence’ than the final extinction of our race because it is unable to adapt.” Marie-Claire Bergère concluded from the “the sorry history” of the Chinese bourgeoisie in the 1920s “the perception that the state is indispensable to the constitution of society and that liberalism itself must be the product of the state.”119 By the time the Nationalist Party, under the leadership of Chiang Kai-shek, reestablished the republic in Nanjing in 1928, nationalist ideology had subordinated the state to the party. The official doctrine of Chiang Kai-shek’s nationalists was the party-state (dangguo). The emblem of the Nationalist Party was then incorporated into the national flag and the party song became the national anthem.120

THE REPUBLIC IN INTERNATIONAL SOCIETY China pressed strenuously for the restoration of its sovereign rights at the Versailles Conference of 1919 and refused to sign the treaty when its efforts were rebuffed.121 In 1921, at the Washington Conference, the chief justice of the Supreme Court of China stressed that extraterritoriality “is a derogation of China’s sovereign rights and is regarded by the Chinese people as a national humiliation.”122 Although the conference adopted a resolution on China that called for a fact-finding mission to be dispatched within three months, it did not arrive until 1926, in the wake of further demands for “treaty revision” that followed the nationalist upsurge of the May Thirtieth Incident of 1925.123 China once again protested the derogations from Chinese sovereignty, but the mission concluded that China’s legal reform and judicial administration “had yet to achieve a sufficient degree” to warrant the abolition of extraterritorial rights.124 As Wesley Fishel concluded: The requirement by the powers that China ‘put its house in order’ before it could qualify for full sovereignty was not logically consistent with their insistence that, regardless of the limitations they might place upon that sovereignty, China must measure up to the criteria of responsibility of sovereign states under international law.125

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The newly established Nationalist government in Nanjing redoubled its effort to abolish extraterritoriality and to restore tariff autonomy from 1928 onward, and it pressed ahead with legal reform that culminated in the completion of the so-called six codes in the early 1930s.126 Before the outbreak of the Sino-Japanese War, the Chinese government had made considerable headway toward revising treaty provisions. It regained tariff autonomy, circumscribed extraterritorial rights, and was a full member of the League of Nations. Indeed, China’s protests, and the sympathetic response these evoked in the form of the Lytton Commission, which followed Japan’s occupation of Manchuria in 1931, precipitated the withdrawal of Japan from the league. This turn of events demonstrated simultaneously the international acceptance of China’s sovereign claims but also revealed the inability of China to exercise effective sovereignty. The position of China in the wartime alliance marked a situation where the status of China was the inverse of its power. At the initiative of the United States, all the remaining strictures of the unequal treaties were abolished in January 1943.127 At the same time, President Franklin D. Roosevelt was determined to make China a great power, even though the other members of the Big Three—Great Britain and the Soviet Union—were reluctant.128 The motives of Roosevelt stemmed from his twofold desire to build up China as a counterweight to Japan’s power in Asia and, more significantly, to make China a symbol of a nonracial postwar order, which would put an end to European colonial empires. [He] believed that, if China were accepted as one of the Big Four, it would show all non-Caucasian peoples that the Western powers were not seeking to continue their domination into the postwar period, including their colonial grip on the world’s major resources. In FDR’s view China’s elevation to Great Power status would provide a necessary measure of psychological lubrication in the painful inevitable transition from the colonial system to independence.129

Roosevelt’s opposition to colonial empires came less from humanitarian impulses than from the bitter economic experience of the collapse of international trade during the Great Depression. Nevertheless, his foresight had the effect of making sovereignty and self-determination the universal principal that President Woodrow Wilson had stopped short of insisting on following the Great War. As far as China

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was concerned, the plain fact was that at the time that the United States and Great Britain renounced their privileges, China did not exercise control over most of the area where those privileges held, and the United States and Britain could not claim such privileges from a power—Japan—with which they were at war. The Nationalist Republic had achieved international recognition, but it had lost effective control. Even in the middle of the war, Chiang Kai-shek was acutely aware that sovereignty was still being challenged by the Communists from within. The war with Japan, and the subsequent Chinese civil war, erased all of the considerable achievements of China in international diplomacy. The turmoil occasioned by growing Japanese encroachment following the Manchurian Incident in 1931 and by civil war hampered further progress toward treaty revision. Japanese occupation of the treaty ports eventually rendered Western privileges moot, but the status of China as an ally in the war against the Axis powers permitted the revision of treaties with Great Britain and the United States in January 1943.130 The historical record indicates a persistent and irrevocable wish of every Chinese regime to restore China’s sovereignty and to reverse the derogations imposed in the nineteenth century. China’s stance on the question of sovereignty demonstrates several points. First, China was put in a relatively passive situation where it was dependent on shifts in international relations in terms of its ability to press its claims. Second, its capacity and status as a sovereign entity were severely restricted both in domestic policy and in international relations. Liu Jie claims that China had no real independent foreign policy decision-making capacity, and even after its achievement of tariff autonomy, its economic independence was severely constrained. Third, China’s approach to sovereignty was purely defensive, calculated on restoring or regaining lost rights and often dependent on foreign actors for assistance in restoring the sovereign rights it had lost to others. Therefore, it was never able to put forward its own views of sovereignty and, as a result, fell short of the status of a great power. Fourth, although China lacked the power to assert its own views of sovereignty, it stood in solidarity with weak and small states.131 China used international law to justify its claims, yet the West was reluctant to receive them. Unable to reverse the power asymmetry that forced China into the international system, China made repeated appeals to international law, thereby underscoring the weak dispositive character of international law when deployed by the weak.

CHAPTER 2

S OVEREIGNTY IN THE D ISCOURSE OF C OMMUNIST PARTY OF C HINA

THE

ASPIRATION AND ACHIEVEMENT: SOVEREIGNTY AS NATIONAL GOAL

Sovereignty is the key to understanding the sources of China’s external behavior and, in particular, Chinese attitudes toward global governance. Careful exploration of the disjunctures in articulating the sources of sovereignty domestically and internationally reveals tensions in the relationship between the current Communist Party regime, the Chinese state, and the distinct ways that Chinese nationalism is articulated in official ideology. In this chapter I analyze several key considerations that inform Chinese foreign policy behavior and situate them in both Asian and Western understandings of sovereignty: insistence on the state as the central actor in international and domestic politics • resolute defense of territorial sovereignty • reservations concerning multilateralism and collective security •

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identification of the rule of law solely with the power of the state in its ability to control domestic relations and a consequent suspicion of transnational law

“China achieved its full sovereignty much later than its entry into international society.”1 Despite the strong urge to reaffirm the distinctiveness and world historical importance of the Chinese cultural tradition, the Chinese national identity also craves global recognition as a significant participant in the creation of a universal order and value. The need for recognition places natural limits on Chinese claims to exceptionalism, such that China’s preoccupation with sovereignty underlines efforts to limit outside scrutiny and interference at the same time that it heralds strenuous efforts by the Chinese to gain full recognition as a partner in the creation of global order. The Chinese preoccupation with sovereignty is not only an obstacle to global governance in terms of the principles of the rule of law but—ironically, haltingly, and even painfully—it serves as a harbinger and stimulus to fuller Chinese participation in global governance. In line with the simplified account just presented, the following chain of reasoning informs this chapter and the case studies in the succeeding chapters: the achievement of global status under conditions of normative dissent presupposes competition; competition presupposes engagement; engagement presupposes institutional linkages; and institutional linkages promote normative convergence punctuated by conflict focused on the liminal defense of a dissenting identity. Sovereignty represents that dissenting identity in Chinese politics. Realist theories of international relations lack the tools to assess the incorporation of new members into international society. By contrast, the English School, by inventing a “standard of civilization,” is equipped to deal with the expansion of international society to include new members, but it lacks the theoretical tools to address the process from the perspective of the outsider.2 From the perspective of “international society” as interpreted by the English School it is a clear matter of assimilation. It is not concerned with the cost to either the new participant or international society as a whole. But from the perspective of the participants in international society these costs and the associated entitlements and benefits are of foremost importance in their calculations. These are literally matters of life and death, war and peace. For the outsider, movement from the zone of exclusion to the zone of inclusion in “international society” entails a degree of acquiescence and domination. Enrollment in international society means

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subordination to rules that that outsider had no role in formulating or promulgating. It may mean jettisoning other forms of relationship or reformulating these to meet the new rules. It also means a radical difference of perspective. For those who are inside of “international society,” the system may be regarded as a zone of equality and voluntary interaction, whereas for those who enter from outside, it is a system of domination, exclusion, and forced assimilation. Voluntary participation and equality may be perceived as entitlements of membership reserved to privileged insiders. Consequently, what was originally only a system of dichotomous status difference—insider/outsider—is transformed by this logic into a subdivided category of privileged insider/ inferior subject.3 This can stimulate a quest to climb the ladder of privilege and assume the ultimate status of full-fledged participant. China is a classic outsider.4 Forced to relinquish jurisdiction over foreign nationals, tariff autonomy, and territory by the “unequal treaties” that followed the Opium Wars, China was later denied full membership (as the People’s Republic of China) in international organizations. This conditioned a view of sovereignty as an entitlement to be defended against the predatory ambitions of the great powers. Embedded in this defensive position is a view that reinforces equality as the ability to exclude or deny the interest of foreign states in affairs of internal jurisdiction. Coupled with this negative view of equality, China has a parallel and seemingly contradictory desire to be included in the resolution of important international concerns. Thus, in 1992 Beijing rushed to complete normalization of diplomatic relations with Israel in order to participate in the Madrid Conference on the Middle East. Similarly, Beijing perceived membership in both the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) as an entitlement to which it could be justly denied. In other aspects, however, China’s status as an outsider was unique. No other non-Western country enjoyed the regional exclusivity and self-resplendent centrality that China claimed before the modern era. Almost no other country, therefore, is as perplexed by or sensitive to the ways in which participation may imply assimilation or domination. To manage this dilemma, the Chinese must simultaneously seek terms of equivalence that highlight China’s importance in international comparisons and reserve a margin of difference in order to deny suggestions of assimilation to the powerful West. Hence, Mao Zedong Thought becomes the “sinification” of Marxism; China builds socialism “with Chinese characteristics” by which it establishes a socialist market economy.

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The peculiarly Chinese dilemma is to reconcile world-historic importance—a project that necessarily invites cross-national and global comparison—with cultural continuity defined in exclusive terms. The first impulse drives the quest to expand the capacity of the Chinese state and to improve the competence of the Chinese populace in internationally recognized fields, from sports to economic achievement to military power. The second drives an effort to impose qualitative dichotomies that map exclusive cultural zones: for example, in Western versus Chinese thought, cuisine, mores, and medicine. All these contradictions are bundled into the project of modernity or modernization. Modernization is a universalistic project that is defined by comparison with the most “advanced” Western countries. Moreover, modernization is an act of self-revelation—a project designed to unlock the potential greatness of the Chinese nation to achieve its destiny as a global player. Modernity is a national project defined by reference to its Western “other.”5 China is the ambitious and highly motivated student who is driven to distraction by the prospect of checking her final examination marks. Will she get the best mark in the class? Is the professor really entitled to judge her performance? What of the fact that her parents are poor and she has to work for her tuition? To think that some of the rich kids are jealous of her success! There is supreme ambition on the one hand, fierce sensitivity to invidious comparison on the other. The enthusiasm with which China engages in international competition is offset by the nervousness with which it wields a whistle to rule the out-of-bound plays. The playing field is international relations in its broadest sense.6 As a former outsider and now a player that has experienced discrimination in the past, China does not trust the rules to be fair. A weak and minor player has little choice but to play by the rules and to trust his skills. But today China is neither weak nor minor. Granted, for a hundred years the country was unable to effectively patrol and to have exclusive control of its own territory. That weakness became the first priority of the People’s Republic of China (PRC) and stands as one of the most important achievements of the regime in its first twenty-five years. During that period, China established the terms of its participation in international society by proving its capacity to patrol its territorial space through a series of border wars: Korea from 1950 to1953; India in 1960; and the Soviet Union in 1969. Through the Taiwan Straits crises of 1954 and 1958, China signaled its opposition to the status quo. The Chinese preoccupation with sovereignty is intrinsically connected to the problem of establishing a secular Chinese identity in the

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modern world. Generations of Chinese have valorized the state as the ultimate repository of moral value and as the instrument of moral redemption for the people. For that value to be realized, it is absolutely necessary for the boundaries of the Chinese state to contain the totality of the Chinese people. Initially, this statement does not appear to be particularly astonishing. This aspiration should be familiar to students of Fichte’s nationalism. The nation is the repository of collective destiny fulfilled through the state.7 John Mayall points out the crucial distinction between a traditional society that values power over people and a modern society that values power over things. A system, based on the existence of many sovereign authorities, is a system based on the sanctity of property. The inter-state system depicted in the conventional model is a real-estate model: the value which sovereign states cannot sacrifice without, as it were, committing suicide, is their independence. … [T]his means in practice … that they cannot surrender their territorial integrity.8

Chinese nationalism differs only because of the universal pretensions of the Chinese state and the sacred character of the state by contrast with the worldly and humanistic focus of the Confucian tradition. Nationalism is a modern Chinese phenomenon, but the terms of national identity are informed by traditional attitudes to the role of the state. The territorial state was a European model.

MAO AND THE PEOPLE’S REPUBLIC Mao Zedong’s lasting contribution to the restoration of China’s status and prestige is undeniable. In the Republican period (1912–49) China struggled to gain international status by reference to the consensual norms of sovereignty. Yet this struggle was inconclusive because of the weakness of China’s coercive capacity and its resulting inability to control its own frontier. China’s weakness was twofold: it was unable to exclude foreigners, intruders, and invaders, and the Chinese state was consistently unable to achieve coercive hegemony over its own population. Mao’s genius was to develop a formula for coercive power that was able to marshal the coercive force to control the domestic population and subsequently

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to patrol the frontier. In inaugurating the new state, Mao laid claim to the restored status of the Chinese nation. The Chinese People, representing one quarter of the human race, have from this day forward stood up. The Chinese have always been a great, brave and hardworking nation. Only it has fallen behind in recent times. That is due entirely to the results of oppression by imperialism and reactionary domestic governments. … We declare the establishment of the People’s Republic of China We will take our place among the peace and freedom loving family of nations of the world. Our nation will never again be insulted by others. We have already stood up. …9

Unlike Sun Yatsen’s declaration when the Chinese Republic was formed, Mao no longer made a claim to be civilized, nor did he not seek to become civilized, thereby validating “the standard of civilization” that had circumscribed China’s sovereignty. Instead, Mao served notice on the world that China would not compromise its claims to sovereignty. Sovereignty has two parts. Recognition of membership in international society is certainly one. The other is effective exercise of sovereignty within the state’s own frontiers. The historical record shows that Mao made the latter his priority and sought the former on the basis of the latter.10 One of the first acts of the new regime was to abolish the entire legal structure established during the course of the Chinese Republic.11 The abolition of the previous laws was written into the Common Program of the Chinese Peoples Political Consultative Conference (the protoconstitution).12 Even before the formal establishment of the PRC in October 1949, Mao made clear his stance to “lean to one side” in the emerging Cold War.13 Mao proclaimed allegiance to the socialist bloc to build up state power and, as much as possible, to detach Chinese society from dependence on the Western world. He was not actively seeking isolation, but as events in the Korean War showed, he was willing to run the risk if it led to increased control over the frontier.14 Mao Zedong cast the task of building socialism in the light of comparisons with the United States. [We have] a certain responsibility: with so many people; such a large territory; such rich resources, and what’s more, we are building socialism, which as I’ve heard was superior [to capitalism]. If after five or six decades you still can’t overtake the United States,

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what would that look like? We should forfeit our global citizenship! Not only, therefore, is overtaking the US possible, it is totally necessary. It is absolutely required. Otherwise our Chinese nation (Zhonghua minzu) will be unable to look the various peoples of the world in the face. Our contribution to humankind would not amount to much.15

Sovereignty in the Foreign Policy of the PRC The Chinese “nation” is an artifact of China’s encounter with the West. The Chinese culture forms a substrate of subjectivity informing the dichotomy between China and the West, but that culture was also reshaped in the process of interaction with the West. The state worked both as a vessel of Chinese cultural identity and as an agent of cultural construction. Because the state failed to repel foreign intervention from the 1840s until the 1940s, the state as the central actor in international relations has not been a permanent feature of Chinese international behavior or the Chinese worldview. During the period of revolutionary foreign policy under the CPC until the death of Mao, both “peoples” and governments were viewed as foreign policy actors with a shifting balance of attention in particular contexts and particular geographic regions. “People” (renmin) were explicitly not coterminous with “nation.” Wholehearted identification with the state arose merely as a corollary of the post-Mao institutionalization of party rule and the Chinese embrace of international organizations. In 1954 China initiated the now famous Five Principles of Peaceful Coexistence to further relations with non-Communist, non-Western fellow members of the ex-colonial world (these principles are discussed later in the chapter). It was a policy intended to respect differences among those states with which China shared a sense of fellowship and equality in confronting the West. The domestic sovereignty of China was never an issue with these states. Implicitly, the non-Communist, ex-colonial states were class allies in a united front against imperialism and capitalism. Their “sovereign equality” was a correlate of their position in the international struggle. Chinese exceptionalism craves global recognition. Perhaps the best example of this is Mao Zedong’s insistence at the height of China’s isolation during the Cultural Revolution that “we have friends all over the world.” Mao’s quotation became a revolutionary “hit song.”16

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The Empire’s New Clothes / Jeremy T. Paltiel Wind and thunder rise on every continent Common struggle breeds friendship Mutual aid and mutual learning The revolution has linked us all together We have friends all over the world! U.S. imperialism and its running dogs Grow more isolated day by day! [in] The scorching flame of revolution across the globe Just struggles will inevitably emerge victorious!17

This song epitomizes China’s search for an alternative universality based on participation in world revolution. Yet this alternative universality too reveals something about Chinese exceptionalism. After all, China broke with the Soviet-led socialist bloc and had, by the late 1960s, reconceived world revolution along third world, anti–Euro-American lines. Mao himself was unable to move far beyond the formula of coercive revolutionary national populism. As Tang Tsou points out, “the conditions which governed the successful development of guerilla warfare demanded full integration between the military and civilian officials, between the various factional groups and the masses, and between the elite and the masses.”18 These conditions were possible under the determined offense of a visible enemy—a process that Chalmers Johnson describes as inducing “peasant nationalism.” Under peacetime conditions, however, the mobilization ideology of Mao as a charismatic leader existed in tension with the functional differentiation of the institutional state and eventually erupted in the Cultural Revolution. It is not a coincidence that the movement was preceded by the publication of Lin Biao’s “Long Live the Victory of People’s War.” [T]he apparent aim of this discourse seems … like its western counterpart to be directed towards an imperialist strategy. [the Third World ‘countryside’ surrounding the imperialist City] … China … will lead the rural Third World to its liberation, because … China, … is uniquely suited to this task. Yet … the ultimate aim of this Occidentalist practice was not primarily Chinese hegemony in the Third World, but the consolidation of a particular group in domestic politics.19

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People’s war presupposes a permeable frontier that stands as a terrain of struggle, organizing the difference between self and other and generating the authority that Mao consolidated in and state form. Mao’s worldview and the nature of his authority precluded a stable set of norms concerning coercion (violence), space (the frontier), and population (masses). On the one hand, the idea of China required a spatial dimension of territorial sovereignty and demanded respect for China’s borders. On the other hand, the competition for world-historic status on an international level promoted a vision of China’s revolution that transcended boundaries and achieved worldwide value. Mao placed China at the center of an alternative order, a foreign policy stance that contradicted negotiating relations with the Soviet Union, let alone the Western great powers. This contradiction was at once a product of China’s collective search for global status and Mao’s own needs to exercise authority domestically. With Mao’s death, the routinization of charisma set the stage for the closing of the state’s institutional boundaries both internally and externally. China abandoned its revolutionary foreign policy and replaced it with a military doctrine that stressed the defense of the frontier. Since then China has become much more interested in order organized not only within territorial space but also in the orderly and rational management of movement across the frontier. The sovereign principle of relations among states grew in tandem with the reformulation of the state as a legal entity, not just an epiphenomenon of class power. In line with the dissolution of the socialist family of states and the internationalist principles of world revolution, the Five Principles of Peaceful Coexistence—originally formulated to deal solely with states of heterogeneous social systems on the basis of equality—was raised to the level of a universal principle of international relations. Hence, a set of principles that had reserved the principle of equality to fellow ex-colonial states gradually became extended through the Sino-Soviet dispute in the 1960s. During this period, which began with the recognition of the PRC by France in 1964, the Five Principles became a generalized plank of foreign policy as international recognition of China gained momentum after the opening of diplomatic relations with Canada in 1970. The Five Principles of Peaceful Coexistence enunciated by the government of the People’s Republic of China in 1954 as the guiding principles of international relations are the concrete manifestation of the principle of sovereignty in contemporary international law. Mutual respect for sovereignty and territorial integrity,

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The Empire’s New Clothes / Jeremy T. Paltiel mutual nonintervention, mutual noninterference in domestic affairs, equality and mutual benefit, peaceful coexistence are a kind of legal regulation that involve rights and obligations. It is a further legalization of the principle of state sovereignty. We can entirely take the position that the Five Principles of Peaceful Coexistence are the fundamental principles of contemporary international law and provide the fundamental program for contemporary international order.20

China’s renewed interest in the juridical forms of statehood, both nationally and internationally, dates from the opening of the reform process associated with the death of Mao Zedong and the rise of Deng Xiaoping. The Third Plenum of the Central Committee of the CPC, which in December 1978 ushered in this period, also marked the opening of normal diplomatic relations between the PRC and the United States. This was not mere coincidence; both sides recognized the normalization of relations as a step of symbolic importance that signaled a historic turn. As China’s relations with foreign states grew more complex and as the scope of relations expanded beyond the political to include trade, investment, and the entire range of issues encompassed by international private law, sovereignty also became more important. With the adoption of market reforms and an open policy, the border shifts from a strict demarcation of closure to a space across which transactions occur and where the primary role of the state is no longer one of domination but of regulation. In managing relations across the frontier, sovereignty takes on a less absolute, more negotiated quality. The state must engage in practices that involve the negotiation, coordination, and calibration of various forms of authority over a range of items— goods, services, and capital—and people that cross frontiers. Authority is still spatially organized but loses its uniform character. The circulation of commodities across the frontier establishes a situation where the discourses that define those commodities and determine their value can be coordinated.

THE CURRENT INTERNATIONAL PROBLEMATIC Nationalist rhetoric obscures the fact that no core Chinese cultural values or institutions are offered as alternatives to those that the liberal West espouses. Indeed, it is also a question of whether any traditional

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values continue to exist after the combined effects of the Chinese revolution and modernization process. Because of this current situation, Chinese claims for recognition lack a consistent basis for either positing alternative universal values to those of the West or adopting consistent particularist objections to those same values. Instead, the Chinese state is opposed to capitalism only to the extent that dominant states deploy it to restrict China’s opportunities for technological economic growth, with military power playing a secondary role as the expression of national power. The Chinese Communist dilemma is how to engage internationally while continuing to preempt engagement with domestic society. To lose control of the meaning of “China” by tolerating multiple discourses of “Chineseness” threatens legitimacy by countenancing alternative focal points of loyalty to the Chinese nation. To counteract this possible outcome, today’s Chinese leadership is emphasizing a new discourse of sovereignty in which the nation is the embodiment of the state and the CPC forms the “core,” both of the state and of the nation, “leading” the state and nation in the struggle for international competitiveness.

Culture and Nation under Globalization China’s success in consolidating territorial sovereignty and opening the frontier to trade and investment set the stage for new anxieties concerning China’s cultural identity in a globalized world. A market society constrained the ability of the CPC to present itself as the monolithic expresssion of the Chinese nation facing a hostile and intrusive outside world. China’s international “status problems” of the 1990s essentially derive, it seems to me, from the state’s continued domination of Chinese society and from an inability to come to terms with modern forms of society—state relations. This inability is manifested in state efforts to prevent or repress autonomous religious, political, labor, rural, and ethnic organizations. It is manifest, too, in the efforts of a party enjoying a half-century monopoly of power to maintain that monopoly. If one recognizes these factors as key reasons for China’s “difficulties in entering international society,” it becomes apparent that the writings of Wang Xiaodong and Fang Ning [China’s Road under the Conspiracy of Globalization]

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The Empire’s New Clothes / Jeremy T. Paltiel are cathartic projections of responsibility for China’s problems onto putatively hostile foreign powers.21

The essential characteristic of the Chinese approach to globalization is competition at the level of the nation-state.22 The main attitude toward the dominance of liberal values in the post–Cold War world is to identify these with U.S. and Western domination and to adopt a posture of resistance purportedly on cultural and political grounds. The ideological grounds for this posture are somewhat tenuous given the attenuation of Marxist-Leninist discourse in China’s reforms and the absence of core socialist or revolutionary values attached to the rump ideology. In fact, Jiang Zemin’s ideological innovation of the “three representatives” can be summed up as technological and economic modernization and utilitarianism; in other words, the greatest good for the greatest number, a position hardly specific to Chinese or Marxist values. The use of culture as the basis of resistance—nationalist rhetoric—obscures the fact that China does not offer alternative choices to the cultural values and institutions that the liberal West promotes. Although it is impossible to say that Chinese culture does not exist, it is true to say that the Chinese revolution, together with modernization, has successfully destroyed all traditional Chinese institutions and brought about a situation where a tiny minority of the Chinese population has any direct exposure to traditional thought and institutions. These have survived in textual form only, usually together with an interpretive gloss permeated by Westernized and revolutionary Marxist context. One of the striking features of China’s strategy of resistance is the role that state authority and state power play in it. Cultural difference is presumed, not substantiated, in support of a state and regime policy of resistance to outside values, in the name of sovereignty and independence—themselves core values borrowed from the West. To achieve this strategy of resistance, a shifting and arbitrary set of binary oppositions is sometimes deployed to magnify and highlight purported cultural distinctions. One of the outstanding features of the contemporary Chinese state, however, is the lack of institutional boundaries between the state and regime, the power structure and authoritative cultural institutions. The cultural construction of society is still predominantly post-totalitarian in that the regime opts to proscribe any autonomy for cultural institutions without at the same time insisting on ideological uniformity in cultural expression. Hence, apart from the power needs and designs of the regime, the sociological basis for the

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genuine representation of an authentic Chinese culture is low. Privatized desires and interests are now tolerated but are denied any authoritative structural representation. One of the ironies of the repression of the Falungong movement is the denial of any social space for the first authentically Chinese faith-based organization to emerge in postreform China. Moreover, the regime chooses to repress this movement in large measure because it is inconsistent with the universal ideology of science and technological progress. In sum, Chinese claims for recognition do have the consistent basis to either posit alternative universal values to those of the West or to adopt consistent particularist objections to those same values. This stands in contrast to the Japanese approach, which in general has stressed a desire to subscribe to and participate in the creation of universal values dominant in and invented by the West, while maintaining particularized spaces within it. The Chinese posture is unable to define particularized spaces because it is unable to consistently locate any particularistic values it wishes to counterpose to those of the West. Underlying this posture is a strong impetus toward competition. The worldview that permeates the Chinese approach is that domination is an unjust norm in global affairs and that China’s role must therefore be to achieve equality through challenging Western domination on the West’s own terms—technological, scientific, and economic. The implicit message of its competitive claim is that this domination can be legitimately and effectively challenged within alternative political organizational forms. Unlike the period of the Cold War, however, these political and economic organizational forms are viewed as particularistic and plural rather than a uniform alternative of a socialist bloc. Within this competitive challenge of Western domination, military power becomes one form of domination and competition but not the first-order expression. Thus, the political aim of the Chinese state is not to organize society to challenge the Western world militarily. This makes the Chinese state’s posture very different from the competitive posture of the Axis states in the period leading up to World War II and should be noted in any serious analysis of a potential Chinese threat. Military power, now defined as “comprehensive national power,” is seen as a by-product of economic and technological superiority. The Chinese state remains keenly focused on international competition, deeply aware of the role of military power as an expression of national power but regarding its own modest attempts at a military buildup as a means to preserve its organizational and institutional autonomy against perceived threats to its integrity. Unlike the ideological camps that characterized the Cold War period, China no longer

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sees its form of political organization as inherently superior on universal moral grounds but, rather, simply its own. Organizational autonomy for the Chinese state (and by implication its regime) is both a goal in itself and a prerequisite for successful global competition. Moreover, China insists on framing global competition in terms of national-territorial units organized as nation-states. Indeed, the Chinese elites may feel an element of exasperated incomprehension in the refusal of China’s critics, especially those who espouse the “China threat,” to recognize the conservative logic of the current Chinese worldview in contrast to the preexisting revolutionary opposition to global capitalism. The China of today opposes capitalism only when dominant states deploy it to limit China’s opportunities for technological economic growth. Because sovereignty provides the “hard shell” within which a state develops its distinctiveness but also forms the boundary that links all states in a universal global network, this concept has achieved particular importance in the rhetoric of the regime and in the popular imagination. The cultural significance of sovereignty for China has come through engagement with the West and therefore takes importance almost exclusively in its external dimensions. By contrast, domestic sovereignty is rarely discussed and rarely problematized. A combination of resistance to and participation in Western cultural trends has marked China’s efforts to restore its status as a world-historic entity. The search for “national salvation” has increasingly become focused on the comprehensive power of the Chinese state. The focus on state power both constrains China’s participation in a global liberal order and, with the decline and eventual demise of the socialist bloc, has also engendered its acquiescence and, later, enthusiastic enrollment in the economic institutions of global capitalism. The aspect of sovereignty as a badge of global citizenship is evident in the protracted internal struggle and difficult international negotiations over the terms of entry into the WTO. Jiang articulates this conflict: Negotiations on China’s accession to the WTO have been going on for 15 years. China’s stance remains the same. Following its entry into the organization, China will steadily expand its opening up program in terms of commodity and services trade, create a level playing field for fair and transparent competition between Chinese and overseas enterprises, establish and improve a foreign trade regime that is consistent with international practice and that suits China’s own national conditions, and provide the overseas enterprises with more and stable access to the Chinese market so

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as to facilitate economic cooperation and trade between China and other countries.23

In drawing boundaries over the terms of its international engagement, China has consistently sought to remove both Tibet and Taiwan from the arena of international diplomacy and, in the name of sovereignty, has made armed threats over the status of Taiwan. At the United Nations, China has consistently criticized international intervention in civil conflict and upheld the notion of absolute territorial sovereignty as its basic foreign policy outlook.24 Chinese officials approvingly quote Deng Xiaoping’s retort to British prime minister Margaret Thatcher: “On the question of sovereignty, China has no room for maneuver. To be frank, the question is not open to discussion.”25 Finally, Gerald Segal, the late Canadian scholar of the AsiaPacific, pointed to China’s ambivalent attitude toward interdependence as perhaps the single most important factor that inhibits China’s political importance, given its economic and military standing as a “middle power.”26 Segal observed that: No other supposedly great power is as bereft of friends. This is not just because China, once prominent on the map of aid suppliers, has become the largest recipient of international aid. Rather, China is alone because it abhors the very notion of genuine international interdependence. No country relishes having to surrender sovereignty and power to the Western dominated global system, but China is particularly wedded to the belief that it is big enough to merely learn what it must from the outside world and still retain control of its destiny.27

The official Chinese position on sovereignty is ironic in three ways. First, the legalistic way in which it is deployed to handle criticisms of China’s human rights record ignores the common basis of the theory of sovereignty and the idea of human rights in Western discourse. Second, this deployment of sovereignty is paralleled by an assertion of the cultural relativity of human rights, which contradicts the entirely Western pedigree of the concept of sovereignty. Third, despite the strident and sometimes shrill Chinese assertions of the primacy of sovereignty, the Chinese government makes no common cause with those who decry the erosion of sovereignty as a result of globalization.28 Although one can find opponents of globalization among the members of China’s motley “Marxist opposition,” these opponents of

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globalization are outside the political and social mainstream and are even now being isolated and silenced by the regime. Segal’s dismissal of China’s importance now seems premature, even anachronistic. Not only has China’s influence grown alongside its power but the Chinese have also taken more decisive steps to shape the contours of their own regional neighborhood as a platform for wider global engagement. What is clear is that the regional platform that China is constructing has a distinctly “Westphalian” architecture.

The Discourse of Nationalism and the Reality of Interdependence The Chinese Communists’ dilemma is how to engage internationally while continuing to preempt engagement with domestic society. Undoubtedly, on any objective basis, the human rights situation in China has improved and improved dramatically over the past twentyfive years. Yet during the past ten years, the regime in power has chosen to selectively and preemptively silence open-ended discussion of political meanings and political options. The Chinese state cannot engage in one arena what it forecloses in another. Cultural relativism instrumentally shields the regime from serious discussions that concern the basis of its domestic sovereignty. The assertiveness over China’s external sovereignty is a stratagem to preempt discussions that concern domestic sovereignty and that complement the ways in which nationalism is deployed to identify “the people” with the state. We should not dismiss the importance of the concept of sovereignty to monopolize the state as the “container” of the Chinese nation. The Chinese leadership is cognitive of the importance of controlling the discourse on the meaning of “China” and the negative consequences of allowing multiple discourses about this subject, such as undermining the regime’s own discourse and legitimacy by providing alternative focal points of loyalty to the Chinese nation. A specific claim to legitimacy made in the preamble to the PRC Constitution is that the PRC government, led by the CPC, is the embodiment of the Chinese revolutionary struggle against imperialism and external domination. Thus, recognition of Taiwan’s independence is tantamount to acquiescence to the fruits of imperialist domination. This acquiescence would seal the failure of the CPC in its historic mission to “save China” from external domination. In both domestic and international arenas, the state is willing to preempt any ambiguity with regard to questions of sovereignty by using

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force. For example, with respect to the question of Taiwan, the refusal to disavow the use of force is itself equated with the assertion of sovereignty, in much the same way the assertion of force domestically is an expression of “the people’s democratic dictatorship.” The peculiarity of China’s current international position and its domestic posture is that in both arenas the state recognizes the reality of interdependence. That is, China recognizes the need for an international “open policy” of economic interdependence and trade while domestically abandoning totalitarian institutions and aspirations and allowing, even promoting, markets and the emergence of a “quasi-civil society”— albeit with Chinese characteristics.29 In general, one could argue that the Chinese regime has substituted a “hegemonic” policy of domestic authoritarianism for an all-embracing totalitarian social control of all ideas. Regional and global engagement is combined with an assertive nationalism on matters that concern the sovereign sphere. Beijing’s strategy to deal with Taiwan is as much directed toward a rhetorical position of “one China” as it is toward pressuring Taiwanese overseas activities. This strategy deploys force to control the meaning of Chinese sovereignty internationally in order to repress alternative interpretations. Recall from the last chapter that the Chinese terms guo (state) and guojia (nation-state) elide the nation with the regime. Guojia originally referred to the ruling dynasty, and if the discourse of the current regime blurs contemporary and historic uses of this term, then the sovereignty of the PRC resides literally with the CPC. This tends to equate national security with regime security as illustrated in the following example of such a discursive practice: To persist with Chinese Communist Party leadership of national defense and the armed forces in particular, is the successful experience of carrying out national defense construction and military struggle. National defense is the security guarantee of national existence and development, and only by persisting with the leadership of the Communist Party can state security and regime stability be effectively guaranteed for the long term. “The Constitution of the People’s Republic of China” explicitly makes positive the leadership role of the Party in national life, and this of course includes leadership over national defense. The “Law on National Defense of the People’s Republic of China,” passed in accordance with the constitution in 1997, establishes explicitly that the armed forces of the People’s Republic of China take leadership from the Chinese Communist Party. This principle holds special importance for the policy of national defense. It is in

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The Empire’s New Clothes / Jeremy T. Paltiel accord with the fundamental interests of the state and the people and embodies vividly Chinese characteristics.30

Jiang entirely abandoned ideological slogans based on class and class struggle—which might otherwise promote instability, given the emergence of income disparities—and has replaced them with those of patriotism, nationalism, and national cohesion. The most important means to promote greater cohesion (nijuxing) are patriotism and nationalism, and the most important symbol of national power is the People’s Liberation Army (PLA). In his congratulatory speech to the participants who battled the summer floods of 1998, former president Jiang made the following comment: As we institute opening up and reforms to develop a socialist market economy, some people have at various times voiced skepticism on whether the Chinese nation [Zhonghua minzu] might under the new historical conditions of pluralization of social interests lose its own glorious tradition. Do the Chinese people still have a great cohesive strength? Can the Chinese Communist Party and the People’s Liberation Army maintain their quality and sacred mission? This victorious struggle against the flood has once again answered this question with irrefutable facts. The perseverance of the Chinese Communist Party in its sacred mission to serve the people has not changed, the persistent political coloration of the People’s Liberation Army under the absolute leadership of the Party has not changed, and the perseverance of the Chinese people in the spirit of its excellent tradition has not changed. Not only has it not changed now, it cannot change in the future, and will never change. This type of Party, this kind of army, this kind of people, can create miracles on earth.31

Jiang has also managed to transform Marxism (or, it could be argued, reducing it) into the embodiment of national spirit: If a nation [minzu] or a state [guojia] lacks its own spiritual bulwark [jingshen zhizhu] this is equivalent to not having a soul, and it might lose its cohesive force [nijuli] and life force [shengmingli]. Whether or not a nation possesses a lofty national spirit is the measure of the comprehensive strength of a state. … According to the dialectical materialist viewpoint of Marxism, under certain conditions, spirit can change into material, and spiritual force can become transformed into material force. Not only

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can a mighty spiritual force promote the development of material technological forces, it can moreover cause a greater and improved utilization of given material and technological forces. The Chinese nation [Zhonghua minzu] has its own great national spirit. This wide ranging and profound, deeply ingrained and imbedded national spirit is the distillation of thousands of years, an important inseparable element of the living organism of the Chinese nation.32

Central to Jiang’s new ideology of the “three representatives” is a competitive core. His quest to turn the CPC into the representative of “advanced productive forces” is an effort to transform the CPC into a political tool of international competitiveness. It is another step in bending the materialist ethic of Marxism into a nationalist discourse. The priority values that the contemporary Chinese state espouses in its international dealings can be gathered from the speech that President Jiang Zemin gave to the Millennium Summit of the United Nations on September 6, 2000. In the speech he mentioned independence three times; sovereignty, seven times; democracy, five times; equality, seven times; peace, twenty-five times; development (or developing states), forty-five times; and human rights, three times. Even in the short paragraph devoted to human rights, sovereignty clearly had an edge.33 Nevertheless, the aim of competitiveness has considerable normative and ideational spillovers, which reinforce trends toward adaptive conformity with institutions of global liberalism. In the following chapters I explore how the competitive search for global status pushes China in the direction of greater conformity with global liberal norms and institutions even as that process is marked and hedged by heightened sensitivity to national sovereignty and cultural autonomy.

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CHAPTER 3

N ATIONAL R IGHTS , H UMAN R IGHTS , AND THE R ULE OF L AW

Sovereignty is closely bound to the rule of law. Domestically, it is a

logical prerequisite for the supremacy of law.1 Internationally, it is the legal category for the establishment of a state system. [I]f sovereign authorities are to conclude agreements, they must recognize each other as sovereign, since no authority higher than the state exists, without recognition there would be no possibility of securing a legal settlement of the inter-state problem at all. Secondly, it follows from the nature of the settlement between authorities whose claim to a monopoly of jurisdiction within the state is recognized by their peers, that any agreement between them will either have to be self-policing, or it will have to rely on policing by separate parties themselves. The former would require the settlement to be so securely based on reciprocal self-interest of the parties that there would be no incentive to break it; the latter that the failure to enforce the agreement would risk reprisals if not its total breakdown.2

In an interstate system that is a legal system of sovereign authorities, the rule of law conditions interstate relations as an important marker of the capacity to enforce interstate agreements and as a feature that promotes and regulates transborder flows. “It is the legal settlement

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which opens up possibilities of peaceful diplomacy, commerce and the regulated movement of people across political frontiers.”3 The recognition of sovereignty through the rule of law establishes a criterion that can exclude political entities from the state system. This is precisely how “the standard of civilization” was applied during the nineteenth century. Standards imply minimal thresholds for the rule of law and the benchmarks for graduation into the state system.4 Despite the obvious cultural and ideological bias inherent in such standards, the conventions of sovereignty have a practical component in terms of the rational management of transborder flows. For this reason, China’s approach to the rule of law in international relations displays a contradictory posture. On practical matters, China accepts, subscribes to, and even encourages rule-of-law norms and standards, whereas with respect to transnational comparisons of performance and achievement, China rejects any such norms as a violation of sovereignty. China’s ambivalence stems from its historical experience of exclusion, derogation of sovereign rights, and invidious participation in the state system, as well as from its ideological and cultural discomfort with the implications of the rule of law on domestic sovereignty. Although popular sovereignty has been dominant in Chinese political discourse since the early-twentieth century, it has not been fully translated into a robust culture of constitutionalism. The Leninist nomenklatura system in China conflicts with the notion of the supremacy of constitutional law implied by sovereignty. Effective sovereignty is vested in the impersonal authority of the CPC not the impersonal authority of law as interpreted by authorized tribunals and communicated through public reason. Whereas a rights culture is foreign to the Chinese cultural tradition, the rule of law is not. Rather, the rule of law never achieved the supreme value that it acquired in the European Enlightenment and the West. This historical difference has not been an obstacle to the adoption of many other ideas initially foreign to Chinese traditions.5 Culture certainly plays a role in China’s shortcomings as a rule-of-law state, but it is not decisive or determinative. The rule of law is a normative prescription for the ultimate locus of authority. It is compromised in China because other forms of authority take precedence. The cause is a historical mix of institutional forms and political expediency. China’s broader integration in the international community informs the evolution of China’s institutions, but the political condition for the rule of law to obtain requires a specific resolution of particular authority claims. Chinese political leaders have resisted external monitoring of human rights or the rule of law as vigorously they have proclaimed and defended China’s prerogatives as a sovereign state.

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The ways that Chinese political authorities negotiate their claims of sovereignty says much about themselves and the ways in which sovereignty is constructed and, in turn, constructs the international system. The rule of law is a form of regulation that encompasses the relationships among legal and natural persons, the relationships between the state and legal persons, and the relationships among states. If, as Chinese officials commonly assert, human rights lie wholly within the sphere of sovereignty, international human rights treaties are nothing more than programmatic goals with their implementation beyond foreign scrutiny. “Sovereignty” is critical to defining the scope of international scrutiny. The Chinese claim goes beyond the undisputed argument that the state is exclusively empowered to make and enforce laws and constitutional rules within its own borders. In the Chinese interpretation, sovereignty means that domestic legislation and its enforcement, irrespective of its imperfections and notwithstanding international commitments, is exempt from international scrutiny.6 The Chinese state is accountable only for actions that trespass on another national sovereignty. China does not dispute that international law establishes norms of state conduct.7 At issue is the relationship between the international rule of law and the domestic rule of law. This issue is both normative and empirical. Insofar as the rule of law embodies categorical norms, the analysis of the rule of law is “objective.” When a norm “exists,” whether state “X” conforms to norm “A” is an empirical concern. The meaning attached to that observation is value laden. Whether China falls short of Western standards of the rule of law has significance only to the extent to which China makes reciprocal normative claims based on its own interpretation of international law. China invokes sovereignty to regulate its treatment by the international community. Based on its own assertion that sovereignty is definitive of the international community, China claims specific entitlements and immunities from member states of the international community—including the principle of noninterference in the internal affairs of the state. The validity of these claims cannot be assessed in relation to the concept of sovereignty alone: to argue that the conduct of state “Y” with respect to the norm of sovereignty is ultra vires has no normative significance outside some overarching framework of authority granted by international law. Sovereignty may (or may not) be the basic principle of international law.8 Nevertheless, sovereignty cannot be coterminous with international law. Any appeal to norms of sovereignty presupposes a normative order framed by law. Therefore, the norms of sovereignty, if not its facts, are predicated on some notion of the rule of law.

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China appeals to sovereignty as a principle of international law to justify its behavior toward the international community, and it recognizes international rule-of-law standards as binding.9 China’s endorsement of sovereignty and approval of international law invite claims against it. China, by ignoring those claims, places itself in conflict with the very states whose recognition underpins China’s own claims to status in the international community. Refusal to engage over the Enlightenment norms that inform the principle of sovereignty causes continual friction with the international community. State power may constrain the kinds of remedies deployed in the normative conflict with the result that hypocrisy reigns in official relations among states. Unlike law, the existence of a norm is not determined on the basis of its consequences. It is not conditioned by the probability of sanction but the avoidance of disapproval.10 What makes sovereignty norms important for China is the obvious linkage between China’s claims and its pursuit of status in the international community. Solidarity with the third world cannot compensate for loss of respect from the leading powers. Shame is a weak instrument to promote fundamental social and political change. The paradox of enforcement is that it can only occur once a framework of interdependence creates shared interest in enforcing norms. (In the next chapter I show this framework to be well under construction.) At the same time, domestic forces also promote a change in professional norms. Contrary to official protestations, China’s own legal academics and practitioners understand that the very same norms that Chinese officials argue cannot and should not be “imposed” on China by other states and external actors are embedded in the concept of the rule of law. Although Chinese officials work tirelessly to oppose any agency that allows the international community to police and enforce domestic legal norms, Chinese scholars and some of the same officials acknowledge the same norms as the reference for domestic reform. The argument that domestic law offers the principal protection for human rights is noncontroversial. Rights are legal claims. The problem with China’s human rights behavior is that the Chinese state is adamant about the importance of the international rule of law with respect to the privileges and immunities of sovereignty, but it sees no international obligations with respect to human rights (with the exception of certain issues, such as genocide and apartheid). China is drawn into conflict with liberal states because its insistence on the privileges and immunities of the rule of law in the international arena is belied by the operation of the rule of law domestically. The crux of this conflict is the tendency in the West to view the rule of law as a hierarchy of norms that extends from the rights of the person to the privileges and immunities

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of the state. In the eyes of most lay observers coming from the West, derogation from expected norms at the base of this pyramid raises doubts about normative performance at the apex. In other words, where a state does not respect individual rights is taken as evidence that the state is incapable of fulfilling its international obligations. This debate is far from academic. It is precisely the background to China’s loss of sovereignty during the nineteenth century. Until World War II, the entitlement to sovereign status depended both legally and normatively on a so-called standard of civilization. 11 This “standard” did not limit the markers of sovereignty to effective control of territory; rather, it included the treatment of nationals and foreign nationals alike under the law.12 China’s own scholars do not uphold a distinctive Chinese version of the rule of law.13 Instead, they support the very norms that officials argue should not be “imposed” on China. Sovereignty implicates the rule of law and anticipates international human rights norms because it presupposes some sort of international community from which that sovereignty is “claimed.”14 International law exists to regulate the interaction of states. By channeling interstate activity into predictable routines, international law also accelerates mutual interaction. The relevance of the rule of law to international interactions is proportional to the scale and volume of interaction and interdependence. Because the rule of law serves to connect domestic to international sovereignty, I seek 1. To relate sovereignty as an organizing principle of international relations to the concept of the rule of law; 2. To explore the premises of the commitment of the Chinese state to the implementation of the rule of law; and 3. To determine how far political, economic, and cultural engagement with the West can achieve substantive dialogue with rule-of-law norms in a manner consistent with the privileging of human rights within China’s own institutional structure.

SOVEREIGNTY AND THE RULE OF LAW The relationship between sovereignty and the rule of law is intrinsic but controversial. The significance of sovereignty to the rule of law, however, is complicated by the relationship of international law to domestic

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law and conflicting principles of rule of law. The law of sovereignty in the time of Hugo Grotius was rooted in natural law. Since the eighteenth century, international law has developed mainly along positive law principles. Positive law approaches tend to make international law something “clear different” (in the words of H. L. A. Hart) from domestic law.15 If domestic law is defined as the will of the sovereign, then international law can only be something else.16 Only when law is identified as procedure, process, or technique can the analogy between the “rule of law” in municipal law (domestic law) and the “rule of law” in international law be fully developed. More appropriately, perhaps, international law should be viewed as part of a continuum, or spectrum, of law. The focus is on what law does and how it does it rather than on what law “is.” To describe law as a “rational” instrument concedes, at least partially, to an instrumental view of law. “Legal rationality” serves as the nexus between domestic and international law. This is broadly consistent with Max Weber’s approach to the sociology of law.17 My intention is neither to classify contemporary Chinese legal practice nor to engage in a theoretical debate over the meaning of the rule of law.18 Instead, I show how China’s engagement with the international system has informed the evolution of its domestic legal system. To accomplish this purpose, several factors need to be clarified. First, some generally accepted thresholds of legal system performance must be distinguished. Second, the factors that give impetus to the Chinese system of law have to be identified. Third, some baselines of change need to be established. Clarifying these three points makes it possible to identify how China’s international engagement informs convergence with and divergence from Western norms of the rule of law. The issue of what conforms to the rule of law conventionally requires establishing a “threshold.” China’s participation in international rule-of-law regimes can then be considered in light of that. The rule of law should further be distinguished from rule by law.19 Does participation in international legal regimes entail, in addition to the importation of legal procedures and forms, the norms governing them? Does the importation of legal norms limit the discretion of authorities and constrain the scope of arbitrary rule? While it is of importance to bear in mind that primarily States are subjects of International Law, it is essential to recognize the limitations of that principle. Its correct meaning is that States only create International Law, that International Law is primarily concerned with the rights and duties of states and not of persons; … when we say that International Law regulates

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the conduct of States we must not forget that the conduct actually regulated is the conduct of human beings acting as the organ of the State. As Westlake said, “The duties and rights of States are only the duties and rights of the men who compose them.” If that view is accepted, then it is scientifically wrong and practically undesirable to divorce International Law from the general principles and morality which underlie the main systems of municipal jurisprudence regulating the conduct of human beings.20

International law recognizes the constraints of sovereignty but not to the extent that the principles of sovereignty restrict the principles of the rule of law. Underpinning the analogy between international law and municipal law is the analogy between states as subjects of international law and the natural persons (and by extension, legal persons) as the subjects of municipal law. This underlines the distinctive views of contemporary China and the West concerning the rule of law and international society. If the rule of law is based fundamentally on the relationship of individual persons to the political community, and if the sovereignty of states is a mere transposition of the individual to the international arena, it follows that sovereignty is in some measure predicated on rights of individual (natural) persons. If this is not the case, and sovereignty is simply the fundamental principle of international law without a corollary to municipal law, then it is difficult to maintain what the essential nexus of the rule of law in municipal and international contexts might be. It is, of course, true to say that the relations of States should not be equated to the relations of legal persons within domestic law, and, as a consequence, legal concepts should not be translated too readily from the realm of domestic law to the plane of international relations. At the same time there is no reason to refrain from subjecting international law and the sphere of international organization to analysis in terms of the values of national legal and political systems. It would be absurd if it were not possible to evaluate the workings of the international system in terms of the Rule of Law. Indeed, the development of standards of human rights, as well as the procedural standards prevalent in international law, demonstrate that domestic law standards, adopted as paradigms or ideals, have penetrated the sphere of international law to a considerable degree.21

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Western legal commentators with a positivist outlook on international law, beginning with Emmerich de Vattel, nevertheless uphold an analogy between the state and the person. Hersch Lauterpacht implies that upholding a strictly analogous relationship between states and persons is identified with the absolute sovereignty of the state and with the negation of rights of persons as a subject of international law.22 From my perspective, however, either position implies an essential relationship between states and persons underlying the rule of law. Regardless of standpoint with respect to human rights and sovereignty or to the rule of law and international relations, the Western tradition of legal and philosophical discourse places individual persons, states, and international law within the same moral ambit and predisposes the rights of persons as a subject of discourse in any community that subscribes to the rule of law. Municipal law and international law find common grounding in the overarching notion of the rule of law. The historical experience of China privileges sovereignty in international law over any principle of the rule of law under municipal law. Conversely, international law in the Western tradition forms just one branch of the tradition of legal thought, albeit one with its own particular norms, rules, and principles. Western lawyers, both by training and by habit of discourse, see international law as part of a coextensive tradition of municipal and international law well attested to by the place within the Western tradition of legal discourse of such seminal thinkers as Hugo Grotius and Hans Kelsen, a contemporary of the Nazi regime. Indeed, the entire framework of interstate relations was fixed in a template of the “law of nations” that reaches back through medieval Christendom to its sources in the Roman Empire. Sovereignty under international law specifies the juridical form of the state and points out indicia of sovereign statehood, but behind the Westphalian formula of cuius regio eius religio (“whose district it is, his religion it is”) Sovereignty presupposes a substantive relationship between sovereigns and communities. The Westphalian states prefigure the modern nation-state by positing a single community under a particular sovereign. The post-Napoleonic conflict between the Holy Alliance of the sovereigns of Russia, Austria, and Prussia against the emergent nation-states in nineteenth-century Europe shows that the community of sovereign states never operated solely as a system of like units joined merely through their external characteristics. The question has always existed as to whether

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the external form has to be complemented by substantive elements of internal organization. The formula of noninterference simply recognizes that no external authority is capable of imposing interstate conformity on units that are coherently organized internally. Western jurists and political actors, irrespective of their adherence to positivism, approach the rule of law in a manner steeped in principles of liberal municipal law, whereas Chinese jurists and political actors, uniformly positivist in outlook, approach international law and the obligation of states with different values in mind—chief among these, the value of national autonomy. In strict point of international law, Chinese scholars are on relatively solid ground, given the admittedly dualistic evolution of municipal and international law. On normative grounds, however, in a global society that respects the rule of law, a strict claim of noninterference trails an odor of bad faith even given the sorry record of Western hypocrisy.23 J. S. Watson distinguishes the coercive nature of domestic law from the reciprocal nature of international law.24 This view, endorsed by Tony Evans, suggests a clear distinction between international and domestic law and is based on a clear distinction between the organization of international society and the domestic community. In order to characterize the normative character of international society, Terry Nardin makes a distinction between a “purposive association” and a “practical association,” with international society corresponding to the latter. Here, durable relations among adversaries presuppose a framework of common practices and rules capable of providing some unifying bond where shared purposes are lacking.25 At the same time, reference to the rule of law creates confusion. To suggest a hierarchical relationship between domestic and international law would seem to contradict the very idea of sovereignty. Yet a detectable specter of natural law lurks about international law, namely, the tendency to confuse legal norms with political norms and to collapse them into one so that they are used synonymously.26 Arguably more is at work than “conceptual confusion.” The rule of law is a system of norms. A normative system applied in both domestic and international settings makes an analogy or hierarchy encompassing both contexts of the rule of law all but inevitable. Whereas discussions of international law highlight its distinctive domain as contrasted with municipal law, discussions of the rule of law are not so categorical. This issue is academic only so long as there is no dispositive effect to human rights norms in international law. Instead of holding to the “clear different” perspective of international law that Hart advocates,

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it may be worth pursuing further the implication of a system of law established on the basis of reciprocity and self-help. In such a regime or order, the capacity to sanction actions that contravene community norms is clearly, in the first place, dependent on the power of the aggrieved and sanctioning party and, in the second place, on the volume, frequency, and nature of state interactions. In the second set of considerations, the effectiveness of the sanctions depends on the significance of the threat to withhold cooperation. Conversely, the value of adherence to community norms is proportionate to the need for external cooperation. (In the next chapter I continue this theme with a discussion of the relationship between rule-of-law norms and international regimes.)

DEFINING THE “RULE OF LAW” Allan Hutchinson and Patrick Monahan distinguish between a “thin” and “thick” rule-of-law concept. The “thin” rule-of-law concept … amounts to a constitutional guarantee of legality. It demands that government be conducted in accordance with established and performable norms; its voice remains silent, or at best, whispered on the issue of substantive policies. Rule must be by law and not by discretion. Also, and especially, the lawmaker itself must be under the law, at least until it changes the law. In this “thin” form, the Rule of Law is targeted against arbitrary government and palm-tree justice. Its critical logo is “a government of laws not men,” its operative axioms are the generality of official rules and the faithful adherence by government to those declared standards of conduct.27

To the “thick” rule-of-law concept, Hutchinson and Monahan add substantive notions of liberty and limited government. “The Rule of Law demands that positive law embody a particular vision of social justice, structured around the moral rights and duties which citizens have against each other and the state as a whole.”28 This thick version involves such concepts as limited government and the protection of property, market relations, and individual rights. Hutchinson and Monahan are explicit in terms of what the rule of law is not—an endorsement of democracy, in particular, direct democracy. The thick version of the rule of law is most consistent with an elite model of

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limited representative government and is plainly ideological. The thin version is largely structural, albeit containing within it certain institutionally embedded norms. Where the question is one of setting standards of legal system performance, it is important to distinguish in advance whether the thick and thin versions constitute consecutive steps on a hierarchy of performance, parallel concepts within distinct normative systems, or complementary aspects of an integrated whole. Any yardstick that equates the rule of law with liberalism and liberal forms of limited representative government automatically excludes the People’s Republic of China (PRC) from consideration. One early and influential effort to combine instrumental and normative approaches to the rule of law in the Anglo-American tradition is associated with A. C. Dicey’s law of the constitution. Under his three interrelated conceptions: 1. no one can be punished except for a breach of the ordinary law, established in an ordinary manner before the ordinary courts; 2. no one is above the law and everyone, especially officials, is amenable to the ordinary law; and 3. the general principles of the constitution, protecting private rights, are the result of the ordinary laws.29 What at first sight looks to be a procedural and an instrumental approach to the rule of law has substantive and normative concerns embedded within it. Note, for example, that the purpose of law is to protect rights, and the entire architecture of this structure is based on a fine balance between public power and private rights. No rational dialogue is possible, therefore, between those who understand the rule of law as the architecture of public power and private right and those who see it merely as an instrument of governance. Although the thin and thick forms of rule of law are not on the same plane as the discussion of sovereignty, international law, and natural law above, they have shared qualities: both the positivist approach to international law and the thin version of the rule of law are consistent with an instrumental view of the rule of law, and both the natural law tradition and the thick version of the rule of law are in some overlapping sense incompatible with a purely instrumental interpretation of the rule of law.30 There is no explicit or implicit requirement for China to conform to the thick version of the rule of law’s mandate to enter into, and fully participate in, the community of sovereign states. Nevertheless, the

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rule of law is colored and informed by natural law notions of its substantive ends. Despite the development of the positive law tradition of international law, must a common basis exist to qualify states as legal and moral “persons” in international law? If so, does sovereignty specify at least a thin version of the rule of law to qualify states as “persons” in the international community? Conversely, does the recognition of the legal and moral personhood of the state require states to conduct their internal affairs in a manner calculated to satisfy the demands of the international community that community participants (that is, states) are capable of recognizing and assuming their obligations under international law? Kelsen wrote emphatically that “the guarantee of personal liberty and the institution of private property are not in themselves essential elements of law.”31 He proffered a straightforward definition of law: “the social technique which consists in bringing about the desired conduct of men through the threat of a measure of coercion which is to be executed in case of contrary conduct.”32 In Kelsen’s terms, international law is “an order turning the employment of force into a monopoly of the community.”33 War is legitimate only as a sanction of the organized community of states. Although Kelsen views international law as a “primitive law” or a self-help system, implicitly he recognizes that the international community, which the norms of peace established, is indeed a “community.”34

THE RULE OF LAW IN CHINESE IDEOLOGY AND PRACTICE The explicit connection made in the Western tradition between the superiority of the rule of law to the rule of men finds little counterpart in the Chinese tradition except in the case of (much-maligned) legalists, such as Li Si, Shang Yang, and Han Fei.35 Of these, Han Fei was the most insistent that rulers also conform to the laws they had promulgated, but he saw this as a pragmatic and instrumental corollary to the legalist technique of governance rather than a moral obligation. The mainstream tradition of Confucianism favored the rule of men to best facilitate the rule of virtue, a key concern of Chinese approaches to governance down through history to the present.36 Plato’s effort to harmonize rule by men with the rule of virtue is superficially comparable but substantively incompatible with the Confucian tradition.37 Both Aristotle and Plato prized reason above all else, and the mainstream Western tradition up to the time of Weber has associated reason

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with the rule of law. The Confucian tradition, by contrast, prized ritual over reason as an ideal and as a technique of governance. Although both China and the West concur that law is an indispensable tool of governance, the Chinese tradition differs radically from that of the West in the absence of personal law and, indeed, of persons as the subjects of law. The traditional legal culture of China not only lacked civil law as such, “it could not conceive of legal relations between citizens.” In a stunning statement, William C. Jones further qualifies the traditional Tang Code as follows: “Law was, in our terms, an aspect of government designed to protect government. The essential elements of our law had no ‘legal’ significance whatever in China. There were no ‘persons’ who, as beings with legal capacity to be bearers of rights (Rechtssubjekte), might make declarations of intention (Willenserklungen), and engage in juristic acts (Rechtsgeschafte).”38

Domestic and International Factors in the Development of the Rule of Law in China China was unable to establish a framework of governance even formalistically subject to legal norms at any time during the twentieth century. China lagged behind Japan in adopting Western legal forms and, more importantly, in creating authoritative institutions that bore a coherent relationship to those legal forms. Several abortive attempts were made just before the fall of the dynasty in 1911 and then, in fits and starts, throughout the turmoil of the Republican regime. Finally, immediately upon its establishment, the PRC asserted its claim to legitimacy and sovereignty by decreeing the absolute negation of the legal framework established over a half century of effort. The authoritative institutions created at that time were borrowed from a Soviet model, which was in defiant disagreement with the norms that underpinned Western constitutionalism. Less than a decade after the establishment of the PRC, a retreat from the legal framework that it had established for itself had already begun. Not until the last two decades of the twentieth century did a legal framework for governance begin to emerge in a consistent and incremental fashion. Both Marxist prejudice and Chinese skepticism contributed to Mao’s insouciance toward the essential role of law in governance. Lenin had defined the “Dictatorship of the Proletariat as “rule unrestricted by any law.” This nicely complemented the admonitions of Confucius on the derivative role of law in establishing proper moral

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conduct. Nevertheless, the PRC jealously guarded the prerogatives of international sovereignty and endeavored, as far as possible within the narrow ambit of its isolation from the West, to uphold the primary principle of pacta sunt servanda (agreements will be kept). From the very inception of the regime, the PRC enlisted international law experts,39 and it endeavored to maintain its credibility in terms of the agreements that it signed. The fledgling People’s Republic upheld the trappings of the international rule of law even as it demolished the basis of domestic legal and constitutional rule. Beijing persistently sought a seat at the United Nations (UN) and never abandoned the search for recognition and diplomatic relations with capitalist states. The development of the rule of law has three independent sources in contemporary China; these overlap in terms of both chronology and effect. The most important factor was the legacy of the Cultural Revolution (1966–76) on the CPC. Although the party has yet to view society as constituting a body politic, the experience of the Cultural Revolution served to solidify the distinction between the party as a political elite from the state as the organization of authority. The rule of law was recognized as superior to the rule of men and as the most potent antidote to arbitrary and tyrannical rule only in the aftermath of the Cultural Revolution.40 Since the end of the 1970s, “rule by law” has become a pillar of Chinese policy, initially motivated by purely domestic concerns and prior both logically and chronologically to any desire to conform to international standards of political practice.41 China’s leaders have committed themselves at least rhetorically to the thin version of the rule of law, that is, “having laws to follow and strict compliance with the law.” No official is supposed to be above the law since the promulgation of the 1982 constitution, and even the Communist Party Charter enjoins all party members to act within the law. All officials are supposed to be subordinated to the constitution and the law, and all public acts are supposed to conform to the constitution. However, China still falls short of A. C. Dicey’s version of the rule of law: it does not ensure. that no one is punished except through the courts (the regulations on “education through labor”), and it especially does not ensure that everyone is subject to the ordinary law. The rule of law was imputed as a power to restrain the organization of authority over the party as a political elite. The insecurities of the Chinese political elite were complicated by the memory of the Cultural Revolution, not as state-organized violence but as chaos and mob rule. Law, therefore, came to be viewed as the disciplining of state power but not necessarily as a restraint of the state by the people. In

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Chinese references, the entire period of the Cultural Revolution is referred to as the period of “legal nihilism” (falu xuwuzhuyi). The second obvious source is the external pressure, beginning in the late 1970s, to conform to international standards and international expectations exercised in the wake of China’s economic opening to foreign trade and investment. This source of the rule of law involved deliberate conformity together with conscious adaptation of international legal norms consistent with China’s authority structure.42 The third source is intermediate to the other two. It is the desire for and growing acceptance of adoption of international democratic legal norms on the part of an increasingly cosmopolitan and educated population. This pressure was, almost since the beginnings of the reform era in the 1970s, a two-edged sword in relation to the organized political elite of the CPC. This elite was concerned about protecting its exclusive political authority and advancing its own legitimacy in society as a whole. Within these at times contradictory aims, the party sought to manipulate legal reform to its best advantage. Legal reform is a sincere effort to address both domestic and international audiences. It constitutes a desire to balance pressures from domestic and international society and domestic elites. Chinese leaders took guidance from the external community in looking toward a new model of governance. This promoted legal exchanges and, given the widespread destruction of the Chinese legal education that dates back as far as the Anti-Rightist campaign of 1957, the party sanctioned efforts to seek out technical expertise from abroad and opportunities for overseas professional education. The distinction between “domestic” and “international” motivations for China’s pursuit of the rule of law is rendered somewhat artificial by the umbrella of “modernization” that covered the whole political project of China in the last quarter of the twentieth century. China acknowledged that modernization entailed some degree of convergence with other industrialized societies. Within this general framework, “socialist legality” represented at least a “margin of appreciation” of Western paradigms of law to which China must conform, albeit with “Chinese” characteristics. Some constraint on cultural derogation from Western models was to be found in the acknowledged absence of a consistent rule-of-law tradition within the Chinese culture. Therefore, within the program of modernization, the rule of law represented a departure from traditional practices toward a Western model. At the time, this departure was rendered at least palatable by the antitraditionalism both implicitly and explicitly present in China’s revolutionary political culture. “The rule of law” was symbolic of the derailment

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of Chinese modernization during the Cultural Revolution, which was now viewed as a tragic detour from the true purpose of the Chinese revolution.43 In repudiating the Cultural Revolution, the rule of law or socialist legality served at least the following goals or correctives: Affirmation of social order in contrast to the “chaos” of the Cultural Revolution • State authority as the institutional guarantor of social order • Identification of the state with a system of stabilized rules to harmonize administrative action • Law as the yardstick both of proper administrative action and correct social practice •

Deng Xiaoping’s decision to open China to foreign capital and investment in line with the overall objective of accelerating economic growth entailed the revalorization of law as an essential precondition for enticing investors.44 Although the Foreign Economic Contract Law and the Laws on Joint Ventures were passed in the same year as the new code of criminal law and criminal procedure (1979), the ideological battle over the rule of law had already been won. The fact that the establishment of a legal order and the opening of the country to foreign capital occurred simultaneously had a profound impact on the development of formal law and legal institutions. But it was not, in the first instance, intended to serve that special purpose.45 In practice, however, the two became inextricably intertwined. Of overriding concern to Deng Xiaoping in the immediate post–Cultural Revolution period was the loyalty and ideological allegiance of subordinate cadres. In this context the rule of law was associated not only with an effort to prevent arbitrary treatment of veteran cadres (such as had happened in the Cultural Revolution) but also with an overall concern about the principal-agent problem and an effort to return the Chinese bureaucracy to some semblance of Weberian rationality. For this reason the rule of law was just weakly associated with the value most commonly trumpeted in liberal systems—ensuring the accountability of officials before the populace. In contrast, of more immediate interest to Deng Xiaoping was the accountability of officials to the party elite. Thus, from the start an internal contradiction in the Chinese propagation of the rule of law existed between the search to enhance the authority of governmental organs and a desire to produce a more

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rational, predictable, and less arbitrary political order. From the beginning, the authorities perceived human rights claims as an unpredictable factor that derogated from the authority of governmental actions. Of particular mention is the speech by Deng Xiaoping on January 16, 1980, where he called for the abolition of the so-called four great freedoms enshrined in the Chinese Constitution since the Cultural Revolution. The freedoms to “speak out,” “demonstrate openly,” and put up “big character posters” were in a different article of the 1978 Chinese Constitution. 46 Yet none of these so-called rights constituted any barrier to official persecution and imprisonment of dissidents, either during or after the Cultural Revolution. In particular, after hanging a poster titled “Democracy or New Dictatorship?” Wei Jingsheng, the most forthright dissident of the Democracy Wall period, spent six months in detention before being put on trial for “counter-revolutionary crimes” and sentenced to nineteen years in prison. Another dissident, Liu Qing—who had circulated Wei’s statement of defense at his trial—was himself arrested and sent away for “education through labor.” The distinction between the thick and thin rule-of-law concepts is a useful point of departure for the discussion of the constraints of the rule of law in China. The thick version of the rule of law implicitly or explicitly views the state as a social compact or contract that has limited prerogatives of sovereignty alienated to it by free individuals. It is essential to this view that the legal personality of individuals preexists and coexists with the sovereignty of the state and makes state sovereignty implicitly accountable to these individuals. The thin version of the rule of law makes no such assumptions. Within this version it is perfectly consistent to view sovereignty as lodged within the state itself, with individual officials as the agents of the state responsible to the law. Here, officials are not accountable to the individual members of society but to the state and its laws. In this version of the rule of law, “rights” become privileges that an omnipotent state grants. This is consistent with the Chinese view of rights as “grants” of the state to be “enjoyed” by individuals within the limits set by law. Andrew Nathan’s research into the Chinese reception of the concept of rights finds a consistent pattern in how these rights are reflected in Chinese constitutional law. They are always citizen rights, not human rights, and are therefore qualified by state definitions of who is to be included in the political community.47 Implicit in this is a statement about the universal and undiminished competence of the Chinese state and its unrestricted and unqualified power to exercise its authority to make law.48 This version leaves officials accountable before the law, but the

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state itself is not accountable, though in accord with Chinese tradition it may be seen to have certain unilateral obligations to the populace, namely, those of subsistence and basic well-being.

Actors, Institutions, Norms, and Practices in a Rule-of-Law Regime A rule-of-law regime requires the following elements: 1. A body of consistent rules recognizable as “law” independent of the enforcement authority 2. Institutions with the technical capacity and the legal authority to make determinations based on the body of texts recognized as law 3. An institutional complex where competent authorities independent of the state administration interpret and sanction state authority 4. A social order with space for social actors to observe a consistent relationship between state activity, legislation, and the authority of law Deng Xiaoping’s so-called Four Basic Principles, proclaimed in March 1979, are programmatic maxims that state, in effect, that notwithstanding the rhetoric and techniques of the rule of law, the basis of state sovereignty would not change. Viewed in context, these principles equate to an assertion that the state and the CPC brook no new social claims on the basis of their adoption of the rhetoric of the rule of law.49 Deng Xiaoping’s efforts at legal reform are consistent with an instrumental view of legal order, an effort to channel state authority in legal norms. Deng espoused a form of “Leninist” legalism. Insofar as Lenin’s major contribution to Marxist doctrine was the concept of the Bolshevik Party as the repository of revolutionary will designed to mobilize the revolutionary will of the masses against spontaneous tendencies toward “economism,” Deng saw law as a means to standardize and unify state action against the fissiparous influence of faction, corruption, and spontaneous social disruption. Deng and Chinese ideological practice are generally open to the idea that the action of officials and officeholders may exceed the authority granted in law and that those practices should be held in check by the state. Where Deng and his contemporaries fall short of a liberal, or thick, version of the rule of law is the refusal to

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contemplate that state authority as such should be held within legal limits and that the only authorities competent to make claims about the extent of state authority are those subject to state authority in society. Thus, the sole way to hold the legal authority of the state accountable is to provide mechanisms for its authority to be challenged. Deng’s Leninist receptivity to the role of law falls inside the general context of modern Chinese intellectual history that sees society as backward and requiring some external template to discipline and propel it along the proper path of historical development. Moreover, Deng and his generation are heirs to the anti-Confucian and antitraditional prejudices of the May Fourth generation of Chinese intellectuals who are predisposed to see China’s own tradition (including its legal tradition) in negative terms. To coin a Marxist metaphor, Deng Xiaoping saw law as the rails that guide the train of modernization. Numerous commentators note that China falls short of the requirements of the rule of law on “technical,” not just ideological, grounds.50 These include the absence of consistent rules on legislative authority, such that Chinese law fails to maintain the minimum coherence to function as a prospective body of rules. For example, constitutional grants of authority to legislate between the National People’s Congress (NPC) and its Standing Committee; undefined legislative and regulatory roles of The State Council; inconsistent rules about the authority to legislate at different administrative levels; inconsistencies in the technical independence of the courts—lack of authority for judges to adjudicate individual cases independently, and insufficient authority of courts at a given level to hear cases autonomously without interference from other judicial organs, such as the Procuracy [jianchayuan] and nonjudicial organs, such as the party and the People’s Congresses. (Chinese courts are constitutionally subordinated to the legislature.) These observers fail to recognize that many of these “shortcomings” are rooted in the ideology of extensive state authority and the reluctance or refusal to contemplate binding institutional checks on state authority. Refusal to countenance new domestic social claims has a rather paradoxical impact on the relationship of the Chinese state with external actors, including foreign investors. If the relationship of the state to the domestic population is explicitly noncontractual, the relationship of the state to external actors is explicitly contractual. One of the peculiarities of “national treatment” in the Chinese context is that foreign actors are accorded a nonambiguous legal personality that is not matched by domestic citizens who are viewed as both objects and instruments of state sovereignty.

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Although legal reform in China has distinct domestic roots, the impact of international engagement is disproportionate. Foreign models constitute the sole patterns of rule-of-law principles in a society conscious of the fact that governance has never been subject to the rule of law. Moreover, external status places foreign legal persons in an incommensurable relationship with the Chinese state as compared with domestic actors. I suggest that the requirements of accommodating a thin rule of law to the contractual demands of foreign actors leads to a progressive “thickening” of the rule of law as the legal claims of external actors are increasingly “domesticated” and as increasing numbers of domestic claimants (property holders) demand the treatment available to external claimants. Nevertheless, the very foreignness of external rights claimants reinforces the idea that rights claims are culturally alien. This incidentally demonstrates why human rights claimants do not have their claims generalized. There is no legitimate “contractual” relationship with external human rights actors that can be generalized to domestic claimants. Treaty obligations are obligations of one state to another or a group of states, whereas human rights treaties specify the obligations of states to resident nationals. China continuously denies that a foreign state or even an international commission has the right to pass judgment on its treatment of its own nationals. One of the most significant derogations from even the thin version of the rule of law or “legal formalism” practiced by China has been the practice of using unpublished regulations. This practice, which came under close scrutiny only as part of China’s negotiations to enter the World Trade Organization (WTO), is inconsistent with the rule-of-law notion that law must be general and public and prospective to achieve the goal of ensuring predictable behavior by allowing individuals to take the law into account when arranging their actions.51 Under the pressure of entry into the WTO, China has made well-publicized efforts to publish regulations and to eliminate “secret” directives. Yet as long as China was free from external pressure, the practice of using secret directives continued. Moreover, it was consistent with a view that placed law and policy on a continuum with law being simply one species of instructions from the state to the state.52 The consistency of this approach in the twentieth century suggests a cultural explanation we should reject. As Nathan has shown, in the history of the first half of the twentieth century, China was overburdened by widespread concern for the fragility of the Chinese state, in terms of both its internal structure and its vulnerability to foreign invasion. The revolutionary nature of Chinese society from the 1920s to the 1970s entailed an unstable and

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mostly hostile relationship between the state and social elites. This tended to magnify state concerns for its own autonomy from leading groups in Chinese society, and given the role of the state in directing social development from 1949 onward, the near absence of legitimated social elites whose claims the state felt obliged to compromise with added to the dissonant nature of the relationship. The absence of a domestic rights culture has much to do with ideology and the structural characteristics of twentieth-century Chinese polity. Only an autonomous social elite can develop the kind of civil society capable of demanding an independent judiciary and an autonomous legal system (in the sense that Roberto Unger marks as the hallmark of Western liberal society).53 The emergence of market interests and law in the last two decades of the twentieth century in China undoubtedly constitute the preconditions for the development of an autonomous legal system, with its attendant professionalization, but until socio-political elites are more fully distinct from the state, it is doubtful that a full transition to a rule of law in the “thick” sense is possible.54 For that to happen, a true body politic has to emerge. Social elites linked and overlapping but not coterminous with political elites who serve as state officials would need to have the political leverage to define their own interests distinct from state power and be able to leverage their privileged position to compel the state to recognize those interests in a generalizable and effective manner. For that to occur those elites must see their interests in corporate terms, not as a matter of individual privilege buttressed through particularistic patron-client ties with officials. Here again, the role of international actors, especially commercial actors, becomes crucial. Multinational corporations (MNCs) may not have an inherent reason to seek anything other than a privileged relationship with state authority to protect their growing economic interests in China. However, concern for managerial consistency across national subsidiaries and the efficiencies found in a uniform code of governance promote corporate concern for relatively generalizable rules of doing business. That is, MNCs may not want to have to develop a particular management culture for China, nor do they want to have to cultivate a particular management cadre for China that is not transferable to subsidiaries elsewhere. Standard business practices simplify management, staffing, and training as well as facilitate transactions with other firms that are allied with foreign governments. The example of efforts to reform intellectual property law in China demonstrates a close relationship between the Western governments of MNCs and the reform of the Chinese legal system.

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The “rule-of-law” literature in legal circles is confined to looking at rules of law and fails to examine the social conditions that promote the rule of law. This shortcoming arises because social relations are typically defined in law, especially in those states where the rule of law is most fully articulated. The other reason is that the major purpose of the discussion surrounding the rule of law is the positivist distinction between law and morality and the effort to distinguish the rule of law from other normative principles. Although the general drift, particularly since the so-called interpretive trend in legal theory, has been to reaffirm the relationship between law and morality, that recognition proves unhelpful to establishing a threshold for the rule of law in any political system. Indeed, the discussion appears to have turned back to a renewed discussion of the relationship between legal formalism and the protection of human rights. It has been critically pointed out, as in the immediate aftermath of the Third Reich, that legal positivism failed to curtail gross violations of human rights in South Africa, the former German Democratic Republic, etc.55 The whole discussion is misplaced. Legal formalism is not a sufficient condition for the protection of human rights, but that does not prevent it from being a necessary condition of it. Human rights cannot be protected outside a formal structure that recognizes rights in the first place and provides a mechanism for adjudicating rights claims. Law on its own does not and cannot restrain state power. Judges, especially in democratic states, are always mindful of the limits of their legitimacy crystallized in the notion of judicial modesty. Instead, it is necessary for the state to recognize its restraints in law. For that to occur, two conditions must simultaneously be met: first, the state recognizes the constraints of law, and second, the state recognizes its limited authority. I am aware of suggesting a paradox. If the rule of law is contingent on the idea of sovereignty as a counterpart to the universal authority of law, then actual constraint of state authority is itself contingent on limited government—not just as an ideal but as a political fact. The paradox suggested here is that the rule of law, which implicates sovereignty, is at the same time predicated on sovereignty within limits—an idea foreign to sovereignty. The simple notion that the state must exercise authority through the law is never enough. Conversely, when looking at international relations it is more often the case that states fail to exercise authority through law and that the sanctioning authority is too weak, diffuse, or decentralized to compel compliance. In both domestic and international situations, however, the rule of law is best adhered to when both state and nonstate actors, or two state parties, find that legal rules provide an opportunity to increase their authority

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by enforcing claims against a contending party. That is, the rule of law operates on an implicit assumption that the power of the state (or the civil party) is incomplete.56 The operative presumption is that law affords an opportunity for rational persuasion, whereas power alone does not guarantee the desired outcome. This is less a case of benign or habitual acquiescence than, at the margins, a pragmatic political calculation.57 The rule of law appears when it offers a better chance to achieve predictable political results than the direct or naked exercise of power alone. This presents the rule of law as little more than instrumental political calculation. Yet this instrumental form is a tremendous achievement. Predictability is traditionally presented as an internal logical requirement of the rule of law or as an argument for its social utility. Instead, I argue that this form of social utility can be realized only after this form of predictability is recognized as a political advantage for state elites. Naturally, the advantage of this form of predictability is most apparent in decentralized market systems. Nevertheless, there is no automatic relationship between market economic coordination and the emergence of the rule of law as a social institution. It is possible, as I have argued elsewhere, for markets and legal authority to coexist in a suboptimal equilibrium.58 Kelsen’s argument that law requires nothing more than a coercive command that sanctions a delict should be supplemented by more refined discussion about the relationship between the sanctioning authority and the object of the command. For the rule of law to obtain, the object of the sanction must be able to challenge the rationality of the sanctioning order and to argue the correctness of the sanction. Implicit in this relationship is a recognition that the sanctioning authority cannot proceed arbitrarily. This refinement of legal positivism is included in Hart’s notions of “rules of recognition,” but as a legal philosopher, he fails to seize the political significance of it. The traditional view of legal positivism that laws must be public involves more than the idea that to aim at predictable behavior laws must be knowable. It implies an audience of recipients of law who are not mere agents of the sanctioning authority. It implies further that this audience has the moral, intellectual, and political capacity to distinguish law from other forms of communication. Political reason deems it unlikely that this kind of restriction would arise purely through selfrestraint.59 The sanctioning authority must in the first place recognize limits on its power. The CPC recognizes no such limits in the domestic sphere of activity.60 All party members are agents of the party’s Central Committee and accept the discipline of the party as a condition of party membership.61

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Its difficulty is that it has now recognized a role for property and markets and also that the “open door” obliges it to deal domestically with external actors whose interests are not amenable to the exercise of authority alone. Thus, the language of law enables some possibility to increase the range of authority in relation to agents who would otherwise remain beyond control.62 This may lay down the initial (though not the final) conditions for the rule of law. From this perspective it is possible to distinguish de facto sovereignty from sovereignty under conditions of the rule of law, a distinction that arises out of the difference between the unrestricted authority of the state to act in its domestic sphere and the unrestricted authority of the state to enact laws that order its domestic activities.

SOVEREIGNTY, DEPENDENCY, AND EXTERNAL ACTORS So far, I have examined how the rubric of “modernization” legitimated the importation of foreign ideas, institutions, and even norms. Ever since the nineteenth century, the Chinese have had extensive internal debates about the extent and dimensions of imported ideas and institutions versus the preservation of some sort of cultural or national “essence.” The debate is basically about a weighing of instrumental borrowing, where China remains the subject and agent—that is, the “body” (ti)—and foreign, particularly Western, ideals remain instruments (yong). In the early part of the twentieth century, this debate was repeated as one between “national essence” (guocui) and “wholesale Westernization” (quanpan xihua); again in the late 1980s, the debate was over the Westernizing ideals of astrophysicist dissident Fang Lizhi. Such a debate was also an undertone of the 1983 campaign against “spiritual pollution” and the campaign against “peaceful evolution” in the period following the1989 Tiananmen Square repression. Regarding cultural identity, the debate may be framed in terms of when borrowing or assimilation amounts to a loss of self, and in political terms of when cultural assimilation or, alternatively, normative convergence, is tantamount to the loss of sovereignty. In the last quarter of the twentieth century, through the direct intervention of Deng Xiaoping, China ceased to regard foreign investment and participation in world markets as national subordination. The reason is fairly clear. Unlike the theoretical musings of a critical intellectual, such as Andre Gundar Frank,63 China had actually experienced the consequences of withdrawal from world markets and

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an economic policy premised on autarky. Moreover, even though the opening-up process was far from unanimously applauded within the CPC (even Chen Yun, an opponent of Mao’s economic policies who was positively predisposed toward the role of markets, remained skeptical), the actual experience of opening up to foreign investment did not result in any appreciable loss of territorial control—the most visible symbol of China’s deprivation of sovereignty in the nineteenth and earlytwentieth centuries. Instead, the establishment of Chinese rule of law therefore became associated with developing the instrumentalities to attract and control foreign capital, an expansion, not an attenuation, of state sovereignty.64 Any fair judgment of the results of this process would conclude, as did Deng Xiaoping, that the power of the Chinese state had been enhanced, not diminished, through exposure to foreign investment and trade. Of course, at the level of ideology and culture, the results are much more mixed. (Here, too, Deng would concur, as evidenced in his periodic campaigns against “spiritual pollution” and “bourgeois liberalization.”) The bottom line is that the power of the state elites, who are entrenched in the CPC, has not diminished with the opening of the Chinese economy to the outside world. By contrast, the CPC and the Chinese state perceive human rights and the implementation of international human rights norms as a threat to sovereignty precisely because the subjects of human rights— namely, the Chinese populace—are regarded as already subject to Chinese sovereignty. Granting these individuals new agency in the form of an externally mandated system of human rights is tantamount to the alienation of state sovereignty. Although the Chinese government perceives the rule of law as a positive-sum game with regard to foreign capital and sovereignty, it perceives human rights as a “struggle” with foreign powers that amounts to a zero-sum game in which China’s own sovereignty is at stake. Not coincidentally, the Chinese leadership sees human rights not only as a threat to state authority but also, more importantly, as a challenge to the legitimacy of the entrenched political elite who monopolize state power.

LEGAL CONCEPTS IN OPERATION: IMPLEMENTING “THE RULE OF LAW” At the theoretical level, the CPC has consistently rejected any suggestion of separation of powers and has consistently advocated through its policies and constitutional arrangements “the unity of legislation and

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administration” (Zhengxing heyi) and the unity of legislation and legal interpretation. It is for this reason that the power to interpret the law has been vested exclusively in the Standing Committee of the NPC and why the courts are not empowered to pass on the administrative competence of administrative organs. Every effort is used to maintain the idea that political power is unified and emanates from a singular source—ostensibly, the NPC. This is why the principle of an independent judiciary is so fraught. Initially, during the 1980s, the CPC conceded only to the independence of the courts to conduct trials (shenpan duli), not to judicial independence (sifa duli). This in itself was a departure from the explicit subordination of the role of courts to the territorial party committees that obtained during the Cultural Revolution. What emerged in the 1980s was a notion of the professional or functional autonomy of the court system but not its independent operation as a sphere of public power. Toward the end of the 1980s as part of the package of reforms that then-General Secretary Zhao Ziyang presented to the Thirteenth Congress of the CPC, an effort was made to separate the party from the administration and the legislature and judiciary through the abolition of the Political-Legal Committees that coordinated the work of the legislature and judiciary and to which their personnel were formally subordinated in the party nomenklatura. This reform had not progressed very far before it was expressly reversed following the repression of the Tiananmen Square demonstrations. Today the Political-Legal Committee of the central Committee Secretariat, which was previously unpublicized, now has its documents and activities regularly reported in the party press. Ironically, this has occurred in the context where a parallel move toward judicial independence (sifa duli) has begun to be acknowledged, at least as an ideal. Today the ideological commitment to the rule of law is embodied in the commitment to yifa zhiguo (regulating the state through reliance on law), which was hallowed in the resolution of the Fifteenth Congress of the CPC and later adopted as an amendment to the Chinese Constitution at the Second Session of the Ninth NPC in March 1999. Some commentators see this as something less than fazhi (the rule of law), though the concept of yifa zhiguo is usually linked with the commitment to shehuizhui fazhi (socialist rule of law). The adjective “socialist” may imply a derogation from liberal concepts, and it is without a doubt intended to mark a distinction from liberal concepts. Nevertheless, following the Fifteenth Congress legal academics, including Li Buyun at the Chinese Academy of Social Sciences, saw this as a normative commitment by the CPC to the principles of the rule of law

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and as a mandate to enshrine universally recognized principles of the rule of law in China’s institutions and process. Li Buyun distinguishes the commitment to “regulate the country by relying on law” and “building a rule-of-law state.”65 The former he sees as a programmatic goal that involves two elements: first, the longterm viability of the state depends on authoritative laws and systems, not on sage rulers; second, the law is an action plan for state rule, which eschews simple reliance on the wisdom of rulers for the laws embodying the laws of nature, the spirit of the times, and socialist ideals, rather than an expedient expression of superior power. By contrast, to build a rule-of-law state is a strategic objective involving the particular choice of a legal-political system that has the following elements: 1. Comprehensiveness. Economics, politics, culture, and social activity must all be brought under the rule of law. “The viewpoint of those who regard the rule of law as ‘ruling the people’ rather than ruling the officials is incorrect.” 2. Systematic integration. Involving center and localities, legislation and implementation, judicial procedure, legal protection, law observance, and legal education. 3. Goal orientation. Regulating the country according to the law is the means, and constructing a rule-of-law state is the end. 4. Long-term commitment. A rule-of-law state is on a par with modernization and will take three to five decades to build. Li further distinguishes ten substantive features of the rule-of-law: 1. A watertight matrix. A system wherein legal departments are rationally laid out, legal procedure is clear and effective, and substantive and procedural laws are well fitted. A system that is internally consistent, rationally laid out, and coordinated in development. 2. Sovereignty of the people. A modern rule of law state is impossible in an undemocratic society. 3. Guaranteed human rights. These rights ought to accrue to human beings in accordance to their natural and social being. These include the rights of the person and personality, political rights and freedoms, as well as economic, social, and cultural rights. To deny human beings rights of their own in society is to

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treat them as less than human. “People do not exist for the sake of the state and its laws, but rather that law and the state exist for the sake of human being.” Checks and balances. Expressed through legally mandated restrictions on state power by the mutual restrictions of the legislature, executive, and judiciary, as well as among functional departments involved in the administration of justice— the police, the procuracy, and the courts. In addition to the supervisory functions of the procuracy, supervision organs, and auditors, the state should be accountable to social power (by political parties and social and professional associations). These should ensure that public power is not arbitrarily misused for private ends. Equality before the law. That includes both equal treatment and procedural equality. The law must guarantee the fair distribution of the common material and “spiritual” (that is, artistic and literary) social product to all members of society. Procedural law must guarantee the equality of all before the law in civil, criminal, and administrative procedures, including the equality of both accuser and accused. Legal supremacy. Administration in accordance with the law. Judicial independence. Fair procedures. All parties must obey the law

Li and other Chinese commentators regularly express concern about the insufficient distinction between the party and the government, and they refer to the party’s own commitment to operate within the law and the constitution in support of the prospect of the rule of law in China. Li concedes a role for the ruling party within government but emphasizes that it should not operate above or outside the law. “Party policy is the party’s own assertions, while state law is the unity of party assertions with the will of the people. Only when the policies of the ruling party are enacted in strict conformity with the procedures of the organs of state power can they rise to the level of the will of the state and be transformed into law.”66 Official scholars nevertheless concede a “leadership” role for the party in guiding legislation and forming public opinion: “In implementing the regulation of the country by relying on law our country must persist in the leadership of the Communist Party. That is an outstanding characteristic of the special coloration of

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the socialist rule of law with Chinese characteristics. However, we must improve Party leadership, correctly resolve Party government relations, correctly resolve the relationship between Party policies and state laws, and must gradually transform the situation of the lack of distinction between Party and government.”67 While clearly admitting that the rule of law requires party authority to be circumscribed, Li argues this is an objective requirement of social development that is consistent with the party’s purpose of controlling corruption. The stipulation of regulating the state through reliance on law [yifa zhiguo] is an objective requirement of the development of a market economy. To truly realize the rule of law in China we require a profound transition from theoretical concepts and structures appropriate to a planned economy to those appropriate to a market economy. At present, the manifestations of corruption in some places are actually an inevitable phenomenon of the era of transition, and are just a manifestation of the incongruity of the old and new structures and concepts. On the one side, there is great power that is not subjected to sufficient constraint, and on the other side, there is money without power, which can therefore lead to exchanges between money and power, an arbitrary abuse of power, and the misuse of power for private gain. The market economy requires the rule of law, but what is actually in existence is the rule of men or the rule of power.68 Three contradictions face the development of the rule of law in China: the relationship between the CPC and the government; the relationship between state power and citizens’ rights; and the relationship among government organs. Gu Anliang agrees with the Western notion that the essence of the rule of law is the restraint of public power. “Generally speaking, the judicial system of our country has yet to accommodate itself to the objective requirements of a market economy, and basically operates still according to an official standard in which it lacks judicial independence and true neutrality, and in which it can achieve neither fairness nor authority.”69 Gu continues with his assessment that the fundamental solution to this problem has to be found in expanded popular supervision and democratic accountability. In order to realize modern democratic rule, to make the people masters of their own house, and to prevent the arbitrary abuse of state power, the relationship between citizens’ rights and state power must be correctly resolved, and the official standard must be revised. Without revising the standard [granting officials

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The Empire’s New Clothes / Jeremy T. Paltiel exclusive authority], there can be no democratic governance, and the people becoming masters in their own house cannot become a reality. It must be pointed out that the relationship between state power and citizens’ rights spoken of here is the public power exercised by particular state organs, not state sovereignty. State sovereignty in democratic countries is the exemplification of popular power, it is the supreme power of the people domestically and their independent power internationally. We cannot say which is greater or which is higher, state sovereignty or popular power (rights). With respect to the power of state organs and citizen rights, the people should be the subjects, that is, the civil standard. However, the people as the subject of the rule of law, and the management activities of government organs as the object of the rule of law must be understood dialectically. It is actually a socalled reciprocal order with state power following popular will, and popular power following state power. Modern rule of law theory holds that the people legislate, thus giving law its highest authority; conversely, the people as citizens must accept the obligation to follow the law.70

One of the most important steps that Li lays out as benchmarks toward the implementation of the rule of law in China is the ratification of two human rights conventions: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). This will not only raise our international authority with respect to human rights questions, but may also promote a further improvement of the system of human rights protection in our country through this important measure, such as establishing a system of social insurance, a law on religions that is based on rights protection, a law on family planning, a law on social organization, a news media law, a law on publications, and a law for the rights of dispersed minority populations. It may also promote a reduction in the use of the death penalty, the abolition or improvement of the system of education through labor, reform of the system of legal representation, strengthening the role of labor unions, and the legal entitlement of the right to strike.71

Li and other members of the Chinese legal profession agree with Western criticism of China’s legal system and accept the same normative principles that have been urged on China over the vociferous opposition of Chinese representatives on international bodies. Li in

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particular accepts the thick version of the rule of law as a normative ideal. One measure of his radicalism, and his underlying liberalism, is his acceptance of the notion that individual citizens retain the residual freedom to act when a specific law to the contrary does not exist. Li does not agree that China has already achieved the rule of law, which, again, is the view that China’s official spokespersons at the UN Commission of Human Rights put forward.72 Li is able to remain a respected official academic and not a persecuted dissident because he enunciates ideals without directly and specifically criticizing current state practice.73

THE ROLE OF THE LEGAL PROFESSION IN POLICING THE RULE OF LAW The example of Europe, from the Parlements of France to the Inns of Court in Britain, demonstrates the importance of the legal profession in policing and institutionalizing the rule of law. In this respect, developments in China have been the most dramatic and potentially the most significant. Legal professionalism in China came late and initially suffered enormous hurdles. Nearly all of China’s too few lawyers were branded as “Rightists” during the Anti-Rightist Campaign of 1957, and the subsequent closing of legal education departments and institutions meant that the number of lawyers with any kind of legal training at the beginning of the reform period was paltry.74 Since then the development of the legal profession has exploded, with the number of lawyers climbing to more than 150,000. More significant has been the development of the professional infrastructure of legal training institutions, law journals, and professional associations. Although it is not clear whether the legal profession has been able to establish an autonomy from the state in the manner of bar associations in Western countries, which demarcate themselves by ethos and internal organization from state institutions, it is clear that the Chinese legal profession does not necessarily take direction from the state in its intellectual orientation. Legal reforms and the development of Chinese social institutions and economy have linked the interests of lawyers more closely to the market and more independent of state institutions. This relative independence is evident in both the ways in which lawyers individually have expressed dissenting opinions on major issues of interest to the Chinese state and the ways in which the legal profession has promoted the

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process of legal reform and the rule of law. These reforms have included the separation and redefinition of the legal profession away from being “state workers” and the recognition, through legal regulations, of the autonomous responsibilities of lawyers to their clients rather than to the state. The dearth of legal professionals at the beginning of the reform period and the nature of international relations at the time (that is, China’s strategic partnership with the United States against the Soviet Union) resulted in the legal institutions of the PRC remaining largely in the Soviet mold and the actual relationships of China’s legal training institutions during the reform period being mostly dominated by the West. Essentially, China was effectively cut off from the normative system of the Soviet Union during the reform period and, as a result, was open to the normative model of the West. A simple examination of law review articles suggests that the source of legal norms was largely Western. Moreover, despite the continued dominance of the CPC and the ideological hegemony exercised by the party over all forms of political legitimation, the functional autonomy, which was promoted by the party in order to bring about the “rule of law,” has tended also to erode and eventually displace the hegemony of ideological constructs in legal studies.75 The incompatibility between Marxist-Leninist ideological constructs and China’s explosive demand for civil law principles of contract and property in the context of market reform all but sidelined ideological considerations within the legal profession.76 This does not mean that ideological influences were not felt within the legal training institutions, the legal journals, and the legal institutions themselves. Practically, however, the incompatibility between these constructs and the work of the legal profession tended to push these considerations aside in favor of more appropriate and more readily available Western norms and models. This was given further impetus by state demands for accelerated concern of economic rationality, efficiency, and growth. In no place more than in the legal profession was the discrepancy between the ideological hegemony exercised by the CPC, in the name of its form of state sovereignty, and its legitimation, based on the pursuit of greater economic achievement through the market, greater. The party has retained political control while it has all but abdicated scrutiny of legal norms for ideological conformity with Marxist-Leninist canon. As already noted, legal scholars concede to the party its leadership role in the life of the state, but they elaborate on the rule of law in essential conformity with liberal norms.

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The result is that the legal profession views the rule-of-law state as an ideal that is yet to be attained and one that requires further institutional adjustment, legislation, and change in social attitudes to become a reality. Even those who see the lack of social consciousness about the rule of law as a problem also concede that this is partly the result of the ideals of the constitution not being directly justiciable.77 How can these critical views of China’s actual performance be publicly voiced? And why do these voices maintain a generally optimistic tone about China’s development? The reason is they witness continual institutional reform and, at the same time, see the ruling party and its authoritative ideology legitimate the ideal of a rule-of-law state. Thus, although critical of regime performance, these aspirations are seen as generally supportive of the ruling regime (see Figures 2 and 3).

ANALYSIS AND DISCUSSION These two graphs were assembled to demonstrate the central thesis of the chapter: despite official claims of Chinese exceptionalism in international forums, the Chinese legal profession largely aims to follow the same legal norms that are understood in the West. Note the con-

Figure 2 Citations in Chinese Legal Science (Zhongguo Faxue)

Source: Compiled by author

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Figure 3 Citations in Chinese Legal Studies (Faxue Yanjiu)

Source: Compiled by author

sistent decline in the proportion of ideological citations. In the graph from Faxue Yanjiu, the percentage of foreign citations appears to decline somewhat, whereas the corresponding decline in foreign citations with ideological content declines even more steeply (from 56.4 percent to 6.3 percent). In the case of Zhongguo Faxue, the corresponding decline is even steeper (from 89.7 percent to 4.1 percent). In both cases the decline in ideological references overall is dramatic: from more than one-third (33.7 percent) to just over one-tenth (1.39 percent) and from 35.1 percent to 2 percent. The number of foreign language citations in 2001 goes from a little more than one for every two articles (0.504 per article) in Citations in Chinese Legal Studies to less than one for every four articles (0.24 per article) in Citations in Chinese Legal Science.. Note that the number of references per article increases exponentially over the period studied, which is a demonstration at least of convergence toward academic norms. In each case the number of references per article goes from slightly over three per article (3.015 and 3.24, respectively, in 1985) to an average of 20.6 and 34.4, respectively, in 2001. Thus, even in the case of Faxue Yanjiu, where the percentage of foreign references does not show a significant increase, the absolute number of foreign language references increases by a factor of six. As a proxy for the influence of traditional Chinese culture, I calculated the proportion of references in classical Chinese to the total of

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Chinese language references. These too show a fairly sharp decline: from a high of 42.6 percent of Chinese references in Citations in Chinese Legal Sciences in 1985 (and 21.9% in Citations in Chinese Legal Studies) to 3.02 percent and 6.3 percent, respectively, in 2001.

LEGAL REFORMS IN THE 1990S AND THE NORMS OF THE RULE OF LAW State ambivalence toward international human rights standards has not prevented notable progress toward meeting some of the most vocal objections to Chinese legal practice, even during the implacably “antiliberal” 1990s. Progress was possible (albeit limited, piecemeal, and constrained) because the “rule of law” was a highly legitimated political slogan. Notable progress in the area of criminal law and criminal procedure has come from this direction. The Criminal Code Revisions of 1997 and the revisions to the Code of Criminal Procedure in 1996 entailed the following progressive moves:78 1. The abolition of the category of “counter-revolutionary crimes.” 2. The move toward nulla crimen sine lege (“no crimes [punished] without a law”) through the abolition of crimes by analogy. 3. Moves toward the presumption of innocence by imposing a burden of proof on courts and prosecutors. 4. Restrictions on extralegal and pretrial detention. 5. Earlier access to legal counsel. 6. Institutional reform guaranteeing the independence of legal counsel. Commentary on these reforms has focused on their shortcomings, such as the failure to enshrine the presumption of innocence and the failure to complete nulla poena sine lege (“no penalties [imposed] without a law”) through the continued existence of the 1957 Regulations on Education through Labor. Ronald Keith and Lin Zhiqiu conclude, however, that these revisions did constitute a clear victory for law over ideology and the entombment of earlier notions of “flexibility” in law and policy toward detailed stipulations in law.79 The rule of law in China is not amenable to dichotomous assessment. Clearly, the party-state is committed to law as an instrument for the management of society. The party’s approach to the rule of

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law is indisputably both instrumentalist and formalist.80 Yet the commitment to carve out a sphere for adjudication that is institutionally, conceptually, and professionally distinct from politics is equally unambiguous. A large ambit of ambiguity between the domain of politics and the domain of law remains because, in itself, it does not distinguish China from any other state.81 However, Pitman B. Potter correctly concludes that China still falls well short of Dicey’s criterion for the rule of law—“when the state becomes just another actor.” 82 Even so, this still leaves room for many gradations: disputes where the state is not implicated as a party; disputes where the central state or central state nomenklatura elites are not parties to the action; and, most importantly, disputes that involve foreign actors where state power is not challenged. In criminal proceedings the weight of authority is with the state; moreover, the “face” of public officials skews the legal process away from the presumption of innocence and partly explains why this principle has yet to be recognized in Chinese law, either in the Criminal Code Revisions of 1997 or the revisions to the Code of Criminal Procedure.

NORMS AND INSTITUTIONS IN THE RULE OF LAW The rule of law in China is weakest in respect to the autonomy and independence of legal institutions, in particular, the independence of the courts. Chinese constitutional theory specifically rejects the idea of the separation of powers and, under the guise of ensuring popular power through the NPC, in fact institutes the monolithic management of society by the CPC. The role of the CPC is not only evident in the formulation of policies legislated into law but also directly in the management of the courts and procuracy through the institution of the political-legal committees (zhengfa weiyuanhui), which culminates in the political-legal committee of the Central Committee of the CPC. These committees coordinate policy and are obliged to discuss major cases that bear on social stability and the interests of the state. At the very top, the political-legal committee includes the president of the Supreme People’s Court, the chief procurator, and the head of the party’s Discipline Inspection Commission. Moreover, both coordinateand superior-level party committees control the appointments of chief prosecutors and chief judges to ensure that the legal system is subordinated to the party. This arrangement was confirmed as recently as

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July 2002, with the publication of the regulations on the appointment of cadres.83 The ideology of supervision means that judges are subject to multiple levels of control, beginning with the president of the coordinatelevel court, as well as the adjudication committee headed by the president of the court.84 Chinese theory does not view this as a contradiction of judicial independence because it subscribes to a theory of the “organic unity” of the courts, which includes the coordinate-level court and the trial judge. Some Chinese and Western commentators argue that given the general level of education and training of Chinese judges, such supervision may in fact enhance, rather than detract from, judicial independence.85 At issue is the question of professional autonomy versus political autonomy. If the superior judge is more familiar with legal norms, then his or her supervisory role may be seen to enhance judicial independence, and greater expertise can provide authority to resist pressures from the parties to a dispute. The role of superiors outside the courtroom, however, also erodes the significance of an open trial and evidence heard in an open court. Supervision diminishes the authority of the trial judge, which in itself erodes judicial independence. Compromising the authority of judges in the trial process invites ex-parte intervention and lobbying both before and after decisions are rendered. The abysmally low level of training of China’s judges provides a rationale for interference in decisions by higher-ranked judges outside the trial courtroom.86 Although procedurally suspect, this form of “supervision” may indeed be necessary or even salutary to assure that judicial decisions conform to the law.87 The existence of this kind of supervision reinforces the idea that the law is an instantiation of state authority identified with the hierarchy of party-state institutions.88 Reform can occur once the courts become identified as distinct institutions associated with norms of fairness and dissociated from the power of the state per se. Lack of distinction between state and society plays a role here. It is a mistake to identify the party unambiguously with “the state” and to assume that society is somehow arrayed against it. In some instances, as illustrated by Zhu Suli, the local party arguably represents social power, with the courts representing the state. In these circumstances, given the courts’ effort to enforce the law of the state and the party’s attention to local interests and superior knowledge of local conditions, the relationship of local party officials to the courts, Zhu argues, illustrates the underdevelopment of the modern Chinese state, not its hyperdevelopment.89 From this perspective, legal formalism and legal instrumentalism represent something of a transitional stage in the

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development of a modern state in a still uncertain domain of public power, rather than an expression of authoritarianism. Cai Dingjian identifies four elements of crisis in the Chinese legal system. The core problem he identifies is an administrative and legal structure designed for a planned economy that is unable to handle the problems of a market economy. Within that context he sees inappropriate laws, nonenforced laws, judicial corruption, and a lack of faith in the legal system as the primary elements of the crisis in the legal system.90 To deal with this crisis, Cai proposes reforming the “legal spirit” first of all. In the spirit of Henry Maine, he proposes moving from status to contract as the basis of the law. This requires both moving away from the importance of relationships (guanxi) and, more fundamentally, bringing state and society into an alignment of equality. Next Cai proposes a reform of the legislative system such that legislative proposals receive more public debate. Third, to deal with local protectionism and judicial corruption, he proposes “federalizing” the court system by separating jurisdictions for national and local courts. This would separate judges and prosecutors from the supervision of state and party officials at a coordinate level and, thereby, increase their independence.91 Cai recognizes that judicial independence requires both fiscal and administrative autonomy from the local state. He recognizes that the problems with the rule of law in China are ideological as well as structural. Cai does not deal directly, however, with the crux of the problem—the nomenklatura system of personnel management and the territorial basis of party power. The most direct and fundamental limit to Chinese judicial reform is still its political system. Political control of the judiciary has been a perennial feature of [CPC] history; the working style of authoritarianism in the party committee and secretary to approve the judicial decisions, and the Political and Legal Committee [Zhengfa Weiyuanhui] to settle disputes, had been established as early as during the Yan’an period.92

THE PERSONNEL SYSTEM AND THE RULE OF LAW Since China’s leaders have repeatedly demanded that the party and its leaders act strictly within the law, it is worth asking why the rule of law

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is not respected. In one of his first official acts as general secretary of the CPC, Hu Jintao called on party officials to respect the rule of law and the constitution. He “stressed that no individual or organisation could be above it.” In another important move, on December 26, 2002, he called for a study session with constitutional experts.93 The issue cannot simply be ideological or normative because the official ideology makes support of the law and constitution explicit. It must therefore be structural, with some kind of implicit norm that trumps the importance of law. The most direct conflict with the rule of law stems from the personnel system of the party and the structure of governance established through a Leninist nomenklatura system. In principle, the rule of law means at the very minimum that all administrative acts be authorized by law and all administrative offices defined in law.94 If we follow Dicey, then all administrative acts must be reviewable by a body independent of the office (and its incumbent) that initiated the original action. The review tribunal must have the power to interpret if the administrative action under review was consistent with the legal rule authorizing it and if the officer invoking the rule had the proper legal authority to act pursuant to it. Within the nomenklatura personnel system: 1. The Party has monopoly powers over the appointment of personnel—certain appointments must be ratified by the various levels of the People’s Congresses, but the regulations on the appointment of cadres make it clear that the initiative for appointments is in the hands of the Party committees and their subordinate organization departments. 2. Officials answer to Party committees up to, and including the Standing Committee of the Politburo of the CPC Central Committee. The various levels of party committee function on a territorial basis. 3. The basic duty of Party committees and Party members is to ensure and preserve party rule.95 The most obvious derogation from rule-of-law principles occurs because judges are not independent of corresponding party committees.96 Although enjoined to rule in strict conformity with the law, judges are not free to make independent rulings if they serve at the pleasure of the party committees. As party members they may not flout the party line, and as subordinates to the party committee they must not disobey its instructions. As recently as 1999, the president of the

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Supreme People’s Court explicitly rejected the suggestion that the courts become independent of the counterpart party authorities by separating the courts from the appointment system of the local party.97 As an intermediate step toward the independent judiciary, Cai advocates the separation of personnel management of the judiciary from the local party and the transfer of the personnel management of the courts to the hierarchy within the court system.98 This would make the courts a “line” administration distinct from the territorial party administration. It would constitute a kind of “federal reform.” This is, in principle, feasible within the existing regime and administrative setup and would be analogous to the way the personnel system works within the People’s Liberation Army (PLA) and consistent with aspects of the taxation and banking reforms carried out in the 1990s. Wei Pan, a Chinese commentator, has attempted to borrow the legitimation that the party has provided for the rule of law to argue that democracy is irrelevant.99 Pan asserts that the “Rule of law is to regulate a government instead of creating a government. How could laws ‘rule’? Laws could rule when the government power is spread to form checks and balances. Checks and balances reduce the leaders’ accountability to electorates and increase their accountability to Law.”100 In effect, Pan hopes that increasing professionalization and functional differentiation would themselves obviate the need for democracy as a check on rulers’ power. Pan repeats the age-old Confucian prejudice about the importance of educated elites. “Because of different institutional sources of power, democracy and rule of law radically differ in game rules. Democracy features regular elections plus relative majority votes, while rule of law features regular examinations plus constant evaluations. The former is about majority, the latter is about meritocracy.”101 Pan’s “consultative rule-of-law regime” rests on six pillars: 1. Neutral civil service system 2. Autonomous judicial system 3. Extensive social consultation institutions 4. Independent anti-corruption system 5. Independent auditing system 6. Freedom of speech, press, assembly, and association To attain these six pillars Pan requires the following measures:

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1. Mobilizing discussion of the rule of law 2. Announcing that the central work has shifted from economic construction to building rule of law 3. Separating the duty of the Party from the government 4. Building the institutional systems of checks and balances 5. Making the four freedoms the basic principle of governance Pan argues that these measures would not contradict party rule but would be in the best interest of the party because corruption, which the party views as the greatest threat to its rule, and which Pan depicts as pervasive, would be greatly reduced. In a sense Pan’s argument closely follows that of Stephen Holmes, who following Macchiavelli, argues that the rule of law is in the best interest of the rulers.102 Yet, by his strident opposition to electoral democracy, Pan denies the kind of competitive elite structure that is required to make his scheme a reality. Indirectly, Pan demonstrates the professional self-confidence of academic legal professionals who believe that the professional scrutiny of the judicial and legal system is enough to hold the party accountable. In essence, he displays the supreme self-assurance appropriate to a member of the social and political elite. The phrase that best sums up the Chinese practice is “yifa banshi,” or “reliance on the law for (administrative) action.” However Quixotic in specific circumstances, this commitment provides a basis from which to challenge official action within the discourse of the law. Within this constraint the state retains predominant power to pass judgment and to make legal determinations, although it is not always in a position to dictate norms. Its authority is undermined by determinations that are less than persuasive within the norms that it lays down itself. Thus, although the Chinese state may fall well short of liberal constructs of the rule of law (and may also actively resist and oppose them), by committing itself to the discourse of the rule of law, the Chinese state opens political space and provides professional impetus for a counter discourse of the rule of law to emerge.103 The Chinese state has welcomed the development of the rule of law in the economic sphere, particularly with respect to foreign capital, because it sees this as the extension of public power, not as its restriction. China has a system of fused executive powers that dominate the legislature and the judiciary. This is essentially the cadre management system of the CPC, which simultaneously exercises policy-making functions at every level and dominates the administrative communications system. The rule of law should require the judiciary to acquire

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substantial institutional autonomy and that, in turn, would require its communications—the system of judicial administration appeals and supervision—to become separate from territorial party administration. For popular sovereignty to become a reality, legislative elections and legislative oversight have to become autonomous from party administration. Parliamentary systems operate under a system of the fusion of executive and legislative functions, and the cabinet, which is the executive, dominates the legislature. However, the cabinet does not control the electoral process nor does it dominate the selection of candidates for public office. In China, whatever the rhetoric, the party is sovereign. The system of cadre and candidate selection effectively makes legislators accountable only to the party. They have no legislative immunity from party sanction and no security in their electoral mandate from the populace. The following is a clear statement of the sovereign function of the CPC: There scope of party power in China differs from that in the West. According to the Westminster usage the party in power refers to a party being entrusted with the power to enact legislation and direct administration. The leadership of the Communist Party is also a power but a totally different one. It is more comprehensive than the former. It embraces the power to direct all branches of the state and the power to guide all social organizations as well. In China the Communist Party leads the country by exercising power in its own name. … Under the Westminster model the party in power functions within the state. The Communist Party directs all state institutions from above. It is over the state.104

The problem with the Chinese system is that the strictly hierarchic and segmented functioning of the political order and its associated communications system is at odds both with the decentralized horizontal communications of a market economic system and with the increasingly diversified decentralized forms of cross-border transactions and communications. In many areas the relationship between the Party and government is under-institutionalized and lacks a normative structure (guifanhua). Much of this results from subjective arbitrariness, but it mainly arises from structural causes. … There are outstanding contradictions between “line”departmental (tiaotiao) and territorial jurisdictions. In some counties (municipalities) those departments that have money, and are easily run are all managed on a line basis.

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By contrast, departments with heavy (financial) burdens that are troublesome and hard to manage are all decentralized to local territorial management. This results in the enfeeblement of local county (municipal) party committees, rendering it difficult for them to fully perform as a leading core. In some areas, territorial and departmental relations become hard to coordinate, and some departments form their own power monopolies impervious to scrutiny and supervision.105

According to Lu Xianfu, the solution to this problem is not to clarify legal jurisdictions but to reinforce the role of party committees. In some localities the leading comrades of the People’s Congress, the government and the Chinese People’s Political Consultative Conference (CPPCC) do not self consciously uphold the authority of the Party Committee. They overemphasize the powers of their own departments. On some localities some leaders of the People’s Congress, the government and the CCPCC engage in power struggles and create contradictions with the Party Committee.106

Lu looks to the party to coordinate policy in preference to establishing clear rules of jurisdiction policed by the courts. In fact, he unconsciously places the party above the authority of popular representative institutions—the People’s Congress. Another commentator, Gao Simei, perhaps recognizing this apparent contradiction with both popular sovereignty and the rule of law, seeks to constitutionalize the role of the party, that is, to make party leadership a constitutional norm. He suggests legalizing the party’s role in governance. Specifying the content of the governance power in clear and concrete constitutional legal terms can not only provide a normative structure for the governance activities of the Party and put it onto the track of the rule of law, it can further transform what is a customary legal power into a clearly specified legal right, so as to exercise a higher authority and a guarantee.107

The Chinese state has attempted to adapt to the market environment by establishing autonomous regulatory bodies copied from Western legal models. These bodies function as separate nodes for the

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adjudication of problems of a specific functional content (for example, securities and insurance), but they may end up operating like a new departmental jurisdiction (tiaotiao) because a legal framework does not exist to guide the practice of regulatory autonomy. The autonomy of the regulatory body is effectively tied to the political authority of the sponsoring unit (for example, the State Council) and the political patron of the regulatory body. So long as the interests adjudicated by the regulator can remain “technical” and nonpoliticized, the procedures of the regulatory body can become routinized and its authority increasingly institutionalized. Only the political authority of a patron can backstop the authority of a regulatory body. Both regulators and judicial bodies, however, are subject to pressures from below. To the extent that these bodies seek to extend their authority and prestige—and thus by implication the authority and prestige of the incumbent jurist-regulators—they must couch their decision in a form that is transparently rational and linked with law and precedent. Legal-rationalism becomes a means by which the jurist or regulator can resist or insulate themselves from political pressure. Moreover, as increasing numbers of stakeholders are substantially “internationalized” in their outlook, these “legal-rational” decision processes are likely to draw international comparison. China’s behavior resembles what Jon Elster calls “bonding.” This process is akin to the firm that wishes to attract capital, in that “it must incur ‘costs of bonding,’ such as conservative principles of accountancy, in order to attract capital.”108 Precisely because China has been trying to “attract capital” in a very real sense, it has had to adapt its institutions to liberal models. In the face of possible “bank runs,” it occasionally solidifies its institutional commitments. China has two competing sources of authority. There is the legal authority of the state, putatively based on the sovereignty of the people. Dominating this authority, however, is the authority (termed “leadership”) of the CPC, which is not founded in law but has a legal basis in the Chinese Constitution and laws. “Drawing on traditional norms of Confucianism combined with ideals of revolutionary transformation drawn from Marxism-Leninism and Maoism, regulatory culture in China tends to emphasize governance by political authority that remains largely immune to challenge.”109 The CPC is a system of sociological authority of rule by men. It is an oligarchy in which authority is vested in superordinate offices and persons, which culminates in the Standing Committee of the Politburo and the general secretary, the latter of whom is empowered to make appointments to offices at subordinate levels.

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Although the party has rules, its authority is not rule bound. It consists, rather, in the relationships that determine the tenure of subordinate officials. The power of the party to control offices is formal and irrevocable, and it is not open to review by the courts or any other institution independent of the party’s chain of command. In the most important sense, the party is the sovereign. It is the formal source of authority for governance and rule making. Central Committee decisions are binding on all party members, including officials’ legal personnel and “elected” representatives. This contradiction is immediately apparent when one looks at the proposal just mentioned for legalizing or constitutionalizing the party’s role in governance. To overcome this contradiction, Gao recommends that the following powers be recognized as constitutional norms: 1. The power to make suggestions. 2. The power to nominate because of the principle that the Party manages cadres in our country, the fact that the ruling party nominates the leading cadres of the state has already become a constitutional convention. Therefore, we can say that the party possesses this special power. 3. The power of supervision—the Party maintains the right to supervise government organs and internal personnel (mainly the leading cadres). In concrete terms this means scrutinizing whether the powers of government bodies are exercised legitimately or properly.110 In effect, the party is given a power of judicial interpretation that is opaque, unlike the transparent public reason rendered through the judgments of courts. The sociological or personnel network basis of authority in China’s Leninist system conflicts with the notion of the supremacy of constitutional law implied by the idea of sovereignty. Effective sovereignty is vested in the impersonal authority of the party and not the impersonal authority of the law as interpreted by authorized tribunals and communicated through public reason. This conclusion sits uncomfortably on a party that still views itself as having seized power on behalf of the people and that rules in the name of the people. The effort to resolve the contradiction between the rule of law and the de facto sovereignty of the Communist Party is the argument that the party operates within the law. In this case, we see the further refinement of making party leadership a constitutional norm: the author concludes:

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The Empire’s New Clothes / Jeremy T. Paltiel The will of the state can be seen as the synthesis of the will of the Party with the will of the people, but its essence is still the will of the people and not the will of the Party. For this reason, should the ruling party exercise the will of the Party directly as the will of the state, this becomes the equivalent of transgressing the exercise of public power by political organs that represent [the people].111

Constitutional and legal rules are not empty or irrelevant. They do form a normative system of official authority. Certainly the Chinese state is not an empty shell as it was around the time of the Cultural Revolution or in the early days of the People’s Republic. Rather the party holds the trump cards for two competing forms of authority. If Ronald Dworkin conceives of rights as trumps, in China, the party trumps rights. The nature of party oligarchy has changed significantly during the period of reform, which has subtly and less subtly transformed its authority. At one point, the party was not sociologically distinct from the mass of the Chinese population apart from a certain urban bias. Increasingly, however, it has become sociologically distinct with a deliberate bias toward urban, educated officials in professional positions. It represents more and more a distinctive stratum of Chinese society. In the past, the party drew on the continuous recruitment of active elements throughout Chinese society to renew its authority and legitimacy. Today it must demonstrate its authority less through political participation among the active population than through state policy. This is the real meaning behind the last of the “three represents”—a concept that Jiang Zemin introduced when he was party secretary general and that recognized the shift in the party’s source of authority and legitimacy.112 The “rule of law” is a social construction. It is both a liberal ideology and an institutional arrangement that societal norms sustain. By proclaiming the rule of law as an ideological goal and as a normative aspect of its own political arrangements, the CPC and the PRC open their respective authority to challenge by reference to these norms. The West did not “impose” the “rule-of-law” norm on China. The Chinese state consciously adopted it in order to achieve a number of instrumental goals that deal with both domestic politics and international relations. The Chinese state has set the stage for cross-national and domestic debates alike over the meaning of those norms, and it has conceded already that it has imported much of the institutional machinery and the normative discourse for the rule of law from the West because of China’s weak roots in the domestic, cultural, ideological,

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and institutional tradition. Although it would be foolish to predict on this basis a convergence with Western norms and institutions—that is, to predict a Western liberal model of limited government under law— given the ongoing basis of contestation and the powerful norms at work, it is relatively obvious what the ongoing vector of change will be.113 At the moment, it is too soon to tell at what point a new synthesis with China’s own cultural norms and institutions will emerge.

THE RULE OF LAW WITH CHINESE CHARACTERISTICS: LEGAL RIGHTS AND HUMAN RIGHTS The growth of markets and the expansion of state authority through the regulation of capital and commodity exchange have extended the recognition of legal persons in Chinese law. The explosive growth of “rights over things” connected with a market economy have promoted the development of legal rights (as distinct from human rights). Moreover, the energetic legislative activity of the Chinese state and the promotion of public law and legal institutions have significantly constrained the scope of arbitrary state authority. I use the term “constrain” advisedly, as it is less clear that arbitrary authority has been reduced so much as the scope of activities regulated by law and the promotion of commodity markets through law have expanded the reach of state authority. This has certainly raised the level of “rights consciousness” in Chinese society and, indeed, embedded the notion of rights within the social consciousness. It has also, through the growth of private law, in effect created an audience and a market for judicial independence, as civil litigants seek a forum to advance their claims in law in a fair and impartial manner, free from the intervening interests of the state and state officials. As Randal Peerenboom notes, “private companies in China have a greater appetite for rule of law than might be expected. Private companies are among the most frequent litigants against the government in administrative law suits.”114 Sovereignty does not prescribe the rule of law. But a state that seeks to interact with other states must conform to external norms. These norms are not sufficient to change the domestic regime without its explicit concurrence but can shape the development of the regime in the direction indicated by external norms provided that the regime’s domestic sovereignty is not directly challenged. The Communist regime in China perceives human rights as a challenge to the political basis of the regime, whereas with property rights, the regime does not

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feel directly challenged—these do not challenge the legislative authority of the regime and have proven to be instrumental to both the economic goals of the regime and the material interests of entrenched elites. As legal professionals seek arguments to support their clients in their private interests, they increasingly look to imported norms to fill the legal landscape and provide a rationale for the interested claims of their clients. In this way, structural change and cultural and ideological convergence with the liberal West are mutually reinforcing. This convergence, however, occurs under the constraining authority of the state, which not only adapts its legislative initiatives to the political purpose of preserving the Communist Party regime but also acts as the final arbiter of the disputes and enforcer of the claims brought forward by private litigants. It is therefore always in the interests even of the legal professionals to seek the patronage of state officials and to ingratiate themselves with state authority. This necessarily imbues the rule of law in China with a murky character; it is refracted through a half-filled glass, darkly.

THE PARTY, STATE, PROFESSIONALS, AND PEOPLE Norms regarding rights and the rule of law are not uniform across social strata, nor can official policy be taken as representative of popular or professional attitudes. Although the evidence in official publications tends to be oblique, legal professionals (as distinct from legal officials) can be, and are, critical of the party and the state’s performance in implementing the rule of law. Moreover, there is mounting awareness of rights as claims exercised against state authority. Some might credit the party and state leadership directly (the officials certainly do), but others credit socioeconomic change and, in particular, the opening of markets to the outside world. Preliminary survey data indicate that the public have expectations of equal treatment from state officials, but they do not see themselves as qualified to participate in public affairs and are not sanguine that state officials will look after their interests.115 The problem with political culture approaches is the ambiguity of the self-identification of individuals as rights-bearing subjects. That they have no political efficacy may not simply be a perception; it may well be an empirical fact. And that fact is not itself necessarily the product of poor perceptions of personal

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efficacy. Efficacy may well be related to the availability of a space or forum in which to voice political claims. The programmatic form of bills of rights in the Chinese Constitution and legislation is almost never coupled with matching procedures and institutions to make rights justiciable. The most important side effect of the expansion and development of private law accompanying the growth of contracts and markets is that the entire legal structure has now had to accommodate the adjudication of private claims and has conferred legitimacy on rights claimants. Through dependence on litigation fees and various fines as a source of revenue, the court system has an interest in expanding the scope of its jurisdiction with special relevance to private law. Even if the state refuses to acknowledge the position of citizens as rights bearers in the political arena, it has endowed them with the capacity of rights bearers in the marketplace and furnished them with the institutional framework in which to exercise those claims. Although officials and nonofficials are almost never on an equal plane of adjudication, undisguised pursuit of private interests by public officials puts officials and non-officials on the same moral plane, which reinforces the idea of citizenship even when its claims are indifferently realized. The rule of law stands as a normative ideal even when incapable of realization in practice. Thus, the moral purview of the state is eroded even as its political scope remains undiminished. Modern culture will inevitably replace traditional culture. This has been proven by more than two hundred years of history since the Enlightenment movement. The changes experienced in the social psychology and social consciousness of our country since the reform and opening up has highlighted the strengthening of concern of people for their own interests and the decisive break with the monolithic view of interest toward a plurality of interests. In reality, this is a transition toward a modern value outlook or a modern culture. This is to say that the traditional culture of our country has already experienced a serious challenge and must urgently construct a new value and cultural system to meet the requirements of the market economy on the basis of reintegration with the original cultural system. However, for many reasons we have failed to summon the requisite theoretical preparation and thorough knowledge to achieve this historic transition. The most outstanding aspect of this was to substitute a particular-

istic cultural outlook divorced from reality for a modern ruleof-law cultural outlook with which to reconstruct a cultural and spiritual civilization.116

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CONCLUSION Norms and practices associated with the rule of law are increasingly embedded in China’s political institutions. Decisive victory of the rule of law in China, however, must await the day when countervailing social and political forces can constrain the CPC. This will require either a split within the existing political elite or (less likely) the emergence civil society actors that can effectively challenge the party within legal institutions. The institutional framework being currently laid down may enable future political struggles to be channeled through legal institutions. Liberal norms and ideology both seep through the open door and are deliberately encouraged by the Chinese state. Once a power transition occurs, public acknowledgment of “Western” norms can no longer threaten the entrenched political elite. Once the legitimacy of the regime is not challenged, what is suspected as “Western” today will become accepted as “modern” and cosmopolitan. Following this, sovereignty can become more closely associated with popular legitimacy and the “sovereignty of the people” than with the privileges and prerogatives of the state in the international community. Persistent efforts to promote “rule of law” and international sovereignty as an alternative to the legitimacy offered by popular sovereignty paradoxically highlight the hollowness of rule-of-law norms “with Chinese characteristics.” Rather, these encourage calls to fill the legitimacy vacuum in the heart of legal institutions with democratic content. A nondemocratic transition to the rule of law is doomed to failure. Transitions in Leninist regimes fundamentally differ from other authoritarian regimes. So long as the CPC exclusively mandates public political discourse and limits the political manifestations of economic and social elites, transition to the rule of law is hard to foresee absent a simultaneous democratic opening. If market reforms result in elites that are heterogeneous and distinct, a transition to a rule-oflaw regime is possible within a weak Whig-like democratic institutional structure. The development of domestic and international communications, however, renders a rule of law state without mass political participation rather unlikely. The events of 1989 showed it is not possible to predict a democratic outcome from any crisis. So long as the CPC endorses the rule of law together with a regime of exceptions to the norms of liberal governance, it invites challenges from both domestic and international opponents.

CHAPTER 4

H UMAN R IGHTS AND M EMBERSHIP I NTERNATIONAL S OCIETY

IN

DILEMMAS OF A “MODERN” STATE IN A “POSTMODERN” WORLD

So long as China seeks status and recognition in international society and is not in a position to surround itself with its own normative community, it will be forced to deal with a human rights regime derived from Western tradition and practice. Chinese foreign policy practice claims entitlement to participation in an international community of sovereignty while simultaneously deploying sovereignty as a right to derogate from the underlying purposes, values, and obligations that community expresses. It is perhaps for this reason that Ann Kent has argued: China’s compliance or non-compliance with the norms of the human rights regime constitutes the most rigorous test of international citizenship, for human rights present an immediate challenge to the principle of state sovereignty. Unlike the international political economy regime, it is a moral regime whose

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China’s hyperconsciousness about its status as a global citizen pressures it into engagement with global human rights institutions. Thomas Risse and Kathryn Sikkink outline international human rights norms against which the evolution of China’s domestic policies can be measured. They identify a five-phase “spiral model” of normative adaptation. 1. 2. 3. 4.

Repression and activation of international networks. Denial. Tactical concessions. Prescriptive status—where the actors regularly refer to human rights norms to describe and comment on their own behavior and that of others, including the ratification and implementation of human rights instruments. 5. Rule consistent behavior. 2 China has achieved considerable tactical success through acknowledging international human rights norms while vigorously rejecting their transnational implementation, but public behavior has moved beyond the third phase of denial and tactical concessions and could, in important aspects, be considered to have entered the fourth phase. Although major obstacles to full implementation of international human rights norms remain, the logic of China’s international status in multilateral institutions keeps it fully engaged and prevents it from slipping backwards. China is playing out what Risse and Sikkink call the “boomerang effect” in an effort to deny international scrutiny.3 Domestic actors and international opinion together propel China along the path of conformity with international liberal norms. Barry Buzan propounds a theory of international society as a composite of two principles of association: a Gemeinschaft aspect of shared values and cultural orientations, and a Gesellschaft of contractual relations based on common interests and shared commitment to rules.4 According to Mark Evans, China as a weak and peripheral state in the international system has made great strides in integrating itself along Gesellschaft lines in international society but faces severe obstacles,

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especially in relation to human rights and domestic governance, in integrating itself along Gemeinschaft lines.5 Beijing’s interpretation of sovereignty highlights its identity as a former semi-colony and Third World socialist state, rather than as a great power with UN Security Council membership, nuclear weapons and rising economic clout in the global economy. As such, its views can form the basis for a coalition among some of the weaker states in the global system, states that endorse China’s arguments that the strong are not held to the same standards of accountability. Beijing is struggling to muster these forces in support of the more traditional definitions of state sovereignty against a normative order that has already shown clear signs of moving beyond this earlier and stricter interpretation. China is caught between the need, on the one hand, to build coalitions with states that reinforce an identity it has been trying to shed and, on the other, a desire to embrace the norms articulated by the most powerful states and influential international organizations in the global system.6

THE DOUBLE RESISTANCE OF THE CHINESE STATE TO HUMAN RIGHTS The resistance of the Chinese state to foreign human rights claims is paralleled by the resistance of the Chinese state to domestic human rights claims. Sovereignty and its relationship to the rule of law informs this resistance.7 Contemporary rule-of-law discourse in China tends to emphasize the universal jurisdiction of the state and its universal competence to regulate society through law. In this sense, the rule of law is an expression of sovereignty. Human rights claims (as distinct from programmatic expressions by the Chinese state that Chinese citizens “enjoy” rights and characterizations of Chinese social and economic policies as protection and promotion of the “right to subsistence”) are viewed—correctly—as a constraint on the authority of the state.8 The Chinese state refuses to recognize any claim that implicitly limits its own authority. As distinct from a conception of law that views rights as part of the relationship between state and (civil) society or the body politic, the Chinese state sees law as the universal and only legitimate expression of authority in society—an authority exclusive to the state.

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Chinese officials therefore insist that state sovereignty has a logical and legal priority over human rights. The Chinese position, articulated in numerous documents, is clearly statist and makes state sovereignty a value in itself.9 The argument that human rights constitute a substrate of norms that underlie the state system is associated with a cosmopolitan worldview.10 The statist discourse, on the other hand, views regimes within the framework of rules of practical association. Since this conception stresses those rules considered necessary for coexistence and the maintenance of the international system, rather than human aspirations and values, cooperative arrangements like regimes are seen as practical structures designed to secure order and increase predictability … there remains a powerful, if tacit implication that practical rules must take priority over purposive rules. That is the preservation of the existing society of states is taken as an end in itself.11

Chinese scholars and officials argue that if human rights were taken as a subject of international obligations, this would exacerbate international conflict and thereby undermine the basic principle of international relations—the preservation of peace. One of the aims of modern international law is to advance the cause of international peace and international cooperation, not to provoke or expand international disputes. Although human rights are important, nevertheless, if they are to be made a fundamental principle of modern international law, enabling other countries to arbitrarily judge other countries’ human rights situation according to their own standards, this will form an objective viewpoint, inevitably exacerbate the contradictions among countries and would be most unfavourable to the maintenance of world peace and cooperation.12

Underlying China’s position on human rights is a particular view about the relationship between human rights, the state, and sovereignty. If one were to characterize the main differences between the human rights philosophies and systems in the West and China, it would be that the former emphasizes the universal and abstract nature of the individual civil and political rights, with social rights

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as secondary, concrete, non-universal and contingent, and that the latter emphasizes social and economic rights, but views all rights as collectively based, concrete, non-universal, and subordinate to the state.13

The Chinese state interprets resolutions that condemn or criticize China’s human rights record as an attack on the legitimacy of the Chinese state and an effort to subvert its regime. Western politicians are concerned most with their own interests. Western civilization is used as an instrument to pursue their interests. Human rights, a part of the Western civilization, are most widely applicable. Western politicians view human rights diplomacy as their “sophisticated weapon” and the most important advantage of the liberal democratic nations in the struggle to expand their influence. Some western countries led by the United States have launched attacks time and time again at meetings of the UN Human Rights Commission. Those that have been accused are invariably developing nations. They are insufferably arrogant, because they think their heavenly mission is to make socalled freedom and social justice popular among the whole of mankind through their democratic demonstration. To them, the Western lifestyle is the beacon to be imitated by other countries and the Western social system is the role model to be followed by other countries. … Obviously human rights are used to interfere in the sovereignty of others, to violate the sovereignty of others, and even to subvert the regimes of other nations. This is the essence of Western human rights diplomacy.14

Although China has consistently appealed to the defense of sovereignty and the principle of noninterference as its first line of defense against human rights criticisms,15 participation in the international human rights regime renders absolute reliance on the doctrines of sovereignty unpersuasive and obsolete. To avoid isolation, China not only had to develop a domestic infrastructure capable of engaging the international community but also to make an effort to forge an international consensus favorable to China’s views. China could not insist on a rigid and absolute defense of state sovereignty without appearing to contradict the purposes of the United Nations (UN), the values enunciated in the Universal Declaration of Human Rights, and the development of the entire UN human rights system, together with the major international human rights covenants.

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MODERNITY AND GUOQING Chinese intellectuals—led by China’s top officials—maneuver awkwardly between “global citizenship” and an affirmation of China’s particular identity. A symposium at the Central Communist Party School on the subject of “Traditional Chinese Culture and Philosophic Investigation” concluded that: The real quality and content of ‘Socialism with Chinese Characteristics’ is modernization in the Chinese mode. In the space of more than a hundred years, we have tasted Anglo-American styles, Soviet-style modernization models and they have all been unsuccessful. That is why we have to seek out a road of modernization appropriate to our national situation [guoqing]. It would be very difficult to seek out our own road of modernization without investigating our own tradition.16

Particularly relevant to the discussion of human rights is the view these scholars have of power, culture, and universality. Some scholars pointed out, one should not one-sidedly emphasize the universality of truth and ignore its specificity. The theory of the unity of culture [wenhua yiyuanlun] always serves the idea of the centrality of the West. Therefore, we must emphasize and strengthen the study of the differences between Eastern and Western culture.17

Human rights, an idea more inspired by Jerusalem than Rome, is a language and vocabulary that critiques forms of state power rather than serves as a descriptor of states. Human rights are literally subversive and cannot be obviated as ideas by insisting on a particularistic form of a state. How can China rationalize a particularistic accommodation or adaptation of human rights principles? Contemporary Chinese practice still approves of Stalin’s four-point definition of nationhood: a common language, a common territory, a common culture, and a common economy. The significance of this “scientific” definition, from the Chinese viewpoint and from the perspective of those setting out to analyze the phenomenon of contemporary Chinese nationalism, is that it makes the nation a “natural” category. Conveniently, Stalin’s four characteristics nearly overlap Hans Kelsen’s three essential characteristics of a state: territory, jurisdiction,

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and population, “of which, for sovereign states, the most important characteristic is sovereignty.”18 Nationalism is seen as a “unity of opposites in emphasizing the distinctiveness of nations in relation to each other and their essential unity and homogeneity internally.” At the same time, it insists on the universality of national phenomena. [I]nternal homogeneity [neibu pubianhua ying youxian yu gebiehua] holds priority over external difference. Among nations what must be given special priority is their distinctiveness. That is, the protection of the various traditions, specific character, and basic interests … while at the same time recognizing that these

required values are suited only for themselves, and must not be viewed as having universal value and imposed on others or harm other people for the sake of one’s own national interest. This is the only way in which to achieve equality among nations and mutual respect; to the extent that universality is acknowledged in external relations with the aim of the common interests of humankind, discussions must follow the framework and principles of coexistence among nations and nation-states, while at the same time absorbing the strong points of other people, striving to regulate and improve one’s own inadequacies and inappropriate aspects.19

Interestingly, although Luo Fuhui acknowledges the relationship between the emergence of nationalism and the rise of (bourgeois) democracy in the West, he distinguishes between this phenomenon and the emergence of nationalism in Asia—China in particular, of course. Admittedly, Western nationalism, forms first and foremost part of the democratic revolutionary thought of the bourgeoisie in opposition to the older Church and feudal monarchic power, and only later perniciously expanded from national egotism in the direction of national expansionism and national invasionism and oppressionism [sic]. [In] the Orient, especially nations of Asia and Africa after they became the objects of oppression by Western imperialist colonialism, nationalism also had the quality of democratic opposition to domestic feudalism, but its most important tendency was opposition to the invasion and enslavement coming from the West, and striving to build independent nationstates. There is a demonstrable difference between the two. The reason why some Western researchers on nationalism believe that the Orient (especially China) has yet to develop modern nationalist thought is because they do not distinguish the nationalist

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The Empire’s New Clothes / Jeremy T. Paltiel thought of the West and the East in the modern and contemporary periods and they use their own understanding of nationalism to evaluate oriental nationalism.20

Luo engages in an “Occidentalism” analogous to Edward Said’s discourse of Orientalism. Said described an Orientalism aimed at discursively rationalizing the domination of the West, but “Occidentalism” is best understood as a discourse deployed to justify domination within Chinese society.21 Luo is not atypical even among sophisticated and otherwise “liberal” Chinese international relations theorists. Pan Zhongying also insists on the objectivity of the nation in opposition to the idea of the nation as an “imagined community.”22 Pan upholds this idea of the national complex (fuhe minzu), which he, as distinct from more traditional Chinese scholarship, readily acknowledges as a nineteenth-century, postimperial phenomenon. This idea of a nation, however, is essential to the deployment of the idea of a nation-state that can incorporate within it multiple ethnicities and nationalities and can “objectively” reject separatist challenges, such as an independent Taiwan. Pan argues precisely that China’s internal complexity will allow it to engage and embrace a cosmopolitan future in international society comparable to that of the United States and Europe.23 Whereas human rights and sovereignty in the West emerged from a common legal and philosophical soil in the European Enlightenment, the Chinese encounter with sovereignty occurred when European powers imperiled the survival of the Chinese state. New awareness and acknowledgment of the concept of individual rights was conditioned by ambivalence concerning the agency through which these notions were introduced—European imperialism—and deemed secondary to the continued existence of the Chinese identity.24 Moreover, the racial hierarchy and power politics that the imperial powers espoused contradicted the very notion of “universal” human rights.25 During the Cold War, China identified with an alternative international order that did not see the system of states organized around juridical norms. Competing blocs displaced international society as a locus of identification. After the emergence of the Sino-Soviet dispute, the third world displaced the socialist bloc as a focus of identification. At the end of the Cold War, China’s “open” policy fostered the “linking up of rails” (xiang shijie jiegui), however, highlighting an emergent coherence of “international society.”

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RELUCTANT ENGAGEMENT Chinese attention to international human rights arose from its isolation following the repression of Tiananmen Square protesters. China was shocked by its condemnation in Geneva at the Sub-Commission on Human Rights meeting in August 1989.26 Although the Chinese delegate rejected the resolution and pronounced it “null and void,” China did not walk out. The criticism China continued to sustain in the wake of its repressive behavior forced it to build an infrastructure designed to counter international criticism of China’s human rights record and to shape international human rights diplomacy. On November 10, 1989, the Propaganda Department of the Central Committee of the CCP (recently renamed in English the “Publicity Department”) organized a meeting to refute the notion that “human rights have no borders.”27 General Secretary Jiang Zemin called for research to settle the issue of how “democracy, freedom, and human rights should be looked at from a Marxist viewpoint.” “We must explain how our democracy is the most extensive peoples’ democracy and explain how socialist China is most respecting of human rights. Human rights in China are exemplified by Chapter II of the Constitution: Fundamental Rights and Duties of the citizens.” Accordingly, the Central Committee issued a directive: “We must boldly propagate our country’s viewpoint regarding human rights, democracy, and freedom and the true circumstances of our protection of human rights and practice of democracy. We must hold the banner of human rights democracy and liberty in our own hands.”28 By October 1990 the party had organized the translation and publication of the major international human rights instruments.29 Jiang also mobilized the scholarly community and issued a directive on March 2, 1991. This directive called for opening research in the following eight areas: 1. 2. 3. 4. 5. 6. 7. 8.

Marxist theory of human rights. Western human rights theories. Human rights in developing countries. Human rights outlooks of socialist and social democratic parties. The construction of human rights in China. Human rights charters of various countries. International human rights instruments. Human rights diplomacy by Western countries.30

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The China Association for the Study of Human Rights, the official “nongovernmental organization” (NGO) in the human rights area, is a creature of the CPC’s Propaganda Department. Its officials, including its first head, Zhu Muzhi, a lifelong official in the CPC’s propaganda apparatus, are self-conscious agents in the realm of ideological struggle, and they define human rights diplomacy in those terms.31 This institution-building exercise led to the State Council Information Office issuing China’s first ever white paper, titled the “White Paper on Human Rights Conditions in China,” on November 1, 1991. This document attempted to present a distinctly Chinese approach to conformity with human rights norms and outlined a hierarchy of rights that includes the so-called right to subsistence as the core human rights value.32 Some see China’s adherence and conformity to the international (multilateral) human rights system as a test of regime theory and the ability of the international community to enforce its norms on a member state.33 The literature on regime theory and norm compliance postulates that when a given body of norms leads to the development of a new “epistemic community,” these norms can become institutionalized in a form described as “cognitive compliance.”34 The difficulty is that the Chinese state selects institutional actors to engage in international human rights dialogue based on the perspective that they are participating in a “struggle,” and are therefore predisposed to regard their foreign interlocutors in invidious terms.35 This institutional response makes me less sanguine about the role of epistemic communities in fostering intersubjective transnational discourse and normative conformity with international regimes. The China Association for the Study of Human Rights is the official partner for the human rights dialogues fostered by the Chinese government. Its members are recruited to play a role as agents in an ideological struggle. Following its embarrassment before the UN SubCommission on Human Rights in 1989, China forged a new tactic at the Commission on Human Rights in Geneva in 1990 by inventing the procedural stratagem of a “take-no-action” resolution.36 At the time, China’s premier, Li Peng, interrupted his report to the National People’s Congress to “announce the good news” from the podium.37 In China, the United Nations and Human Rights, Ann Kent set out to test a hypothesis about international regimes and compliance. Her explicit premise is that the international regime is the causal factor that encourages either instrumental adaptation or normative learning. In other words, Kent assumes that both norms and structures are initially external to the Chinese state.

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China’s compliance or noncompliance with the norms of the human rights regime constitutes the most rigorous test of international citizenship, for human rights present an immediate challenge to the principle of state sovereignty. Unlike the international political economy regime, it is a moral regime whose norms currently conform not to the goals of the Chinese state, but rather to the ideals of a politically conscious stratum of its domestic population.38

This approach practically ignores the identity issues inherent in conformity and implicitly posits conformity as an unalloyed good. Rosemary Foot’s approach is similar, but instead of being premised on regime theory, it is implicitly rooted in the “international society” approaches of the English School pioneered by Hedley Bull and first applied to China by Gerrit Gong.39 Elsewhere, Foot has explicitly applied these notions in the construction of the concept of China as a “responsible great power.”40 Both Kent and Foot in their approaches bestow agency primarily to the Western and European communities in promoting change within China. These approaches give the Chinese state only two options: passive conformity or resistance. Although the possibility of creative participation is not excluded, it is not seen as pertinent. Learning is seen as part of a process of compliance and implementation rather than as a means to weave norms into a new narrative of Chinese (and potentially global) identity. Crude comparisons of external criticisms and Chinese reactions yield but a partial view of the underlying processes of normative adaptation. The state is, after all, an instrument for resisting foreign pressure. We should expect to see both resistance and instrumental compliance in response to external pressure. A more nuanced view of normative learning is possible only by looking at changes outside the context of immediate foreign pressure. China’s earliest efforts to construct a favorable interpretive community came in the lead-up to the Vienna World Conference on Human Rights in 1993. China actively participated at the Bangkok regional conference and proclaimed its close association with the Bangkok declaration.41 Thus, while China sought to avoid censure by maneuvering third world delegates to the Human Rights Commission in Geneva, it also endeavored to pour new meaning into human rights norms in a way that would make China less susceptible to international isolation and condemnation. The core thread in this strategy was found in the “right to development” and the right to subsistence. In addition to the cultural relativist implications of the Bangkok declaration and its association with the Asian values debate,

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China sought to adopt a developmental relativist position whereby human rights obligations become a progressive process relative to the accomplishment of economic development. By juxtaposing rights and development, China seeks to build a common interpretive community with other developing countries designed to counter Western human rights criticisms. Chinese officials explicitly foster this interpretive community.42 Chinese officials habitually treat rights as goals or ideals that are meant to be addressed in the course of overall development. Because development is seen primarily as the result of state policy this places human rights in a position that appears as subordinate to state policy. This view of rights strikes the Western observer as wrong. Maurice Cranston articulated this well in What Are Human Rights? Various statements of human rights—even some of the United Nations’ own literature commenting on the Universal Declaration— describes the rights of man as “ideals.” This is an unfortunate word. An ideal is something which belongs to the realm of imagination and aspiration. It is something one yearns for, but cannot expect immediately to realize. But a right is not like this. It is something which can and should be recognized in the here and now. What ought to be done is not an ideal; what is right, what is a duty, what is just is not what would be wise to see some day in a better future. It is something demanded, what Kant called the categorical imperative, and there can be no excuse for not doing it.43

In contrast, Chinese leaders specifically appeal to human rights as ideals when they speak about their conformity to the international human rights regime. As China’s first white paper on human rights states: In the practice of protecting and guaranteeing human rights, China has experienced various vicissitudes. At present, although we have made great achievements in the promotion and protection of human rights, there still, however, exist many areas awaiting perfection. To continuously promote the development of human rights, to diligently achieve the lofty goal of realizing comprehensive human rights demanded by China’s socialism, remains a long term historical duty of the Chinese government and people.44

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Again, one reason for the glaring discrepancy in understanding what encompasses human rights derives from a different understanding of the relationship of the individual to the state. Looking more closely at China’s concept of civil and political rights, it can be seen to assume a different relationship between the citizen, the state, and the law from that which pertains in the West. Thus, while in the west the legal system, through the individual’s invocation of his civil rights interceded between the sovereign individual and the sate, claiming for the individual rights of immunity, as well as of political participation and welfare consumption, in China the legal system, to the extent that it is invoked, intervenes on behalf of the collective interests of all individuals vested in the sovereignty of the state.45

Following the Vienna World Conference on Human Rights, which overwhelmingly endorsed a universalist interpretation of human rights against the narrower, more relativistic interpretation that China favored, China sought to shape the international agenda and build a broader interpretive community around itself. Nevertheless, China could take comfort in the fact that the Vienna declaration, which affirmed the universality, interdependence, and inseparability of human rights (including women’s rights), also endorsed the right to development.46 China’s agreement and desire to host the international Conference on Women in Beijing in 1995 was motivated in substantial measure by two perceptions. One was that by successfully hosting such an event China would gain prestige on the international stage. A second perception was that it would in some measure outflank criticisms of China’s own human rights record by highlighting an area where China’s leadership believed, somewhat naively, that China’s record was relatively progressive and enlightened. With the end of the Cold War, China confronted a much greater risk of isolation because, for the first time since before World War I, it faced an international society that was more coherent and far more institutionalized than ever before. Unlike a century earlier, “international society” was no longer coterminous with “the West.” Moreover, the exigencies of China’s development policies, especially once Deng Xiaoping had squarely staked the party’s legitimacy on high-speed economic development based on market reforms and the open policy of international trade and investment, determined that it was contrary to China’s national interest to foster such a perception, either domestically or internationally. Chinese reacted with alarm and dismay to

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Samuel Huntington’s “clash-of-civilizations” hypothesis. A trend developed whereby China began to consciously identify with “international society.” At first, this concept was used without specific normative connotations as those suggested by the work of Hedley Bull and the English School. Instead, Chinese leaders used “international society” as a descriptive term to denote a sphere of activity, namely, organized state interactions in international institutions and organizations, most specifically the UN. By the end of the 1990s, however, “international society” in Chinese usage had increasingly taken on a normative hue, which corresponds very much with the notions advocated by the English School—a sphere of normative activity guiding the behavior of states, a collectivity defining proper behavior among nations. “International society” is increasingly identified as the opposing counterpart to “hegemony.” By the time of the UN Millennium Summit in 2000, China had come to identify a concept of international society that is pluralistic at the level of culture and “democratic” at the level of equal participation of various forms of social system and state organization. President Jiang Zemin clearly articulates the priority values that the Chinese state espouses in its international dealings. In his speech at the Millennium Summit, he mentioned human rights merely three times in a short paragraph devoted to that subject. Dialogue and cooperation in the field of human rights should be undertaken on the basis of respect for state sovereignty. This is the most fundamental and effective path to protect and promote the cause of human rights. As long as borders continue to exist in the world and people continue to live separately within their own states, the protection of each state’s independence and sovereignty is the highest interest of the government and people of each state. Without sovereignty, there are no human rights to speak of.47

The consistent line defended by China at the Human Rights Commission in Geneva has been the priority of development over individual rights. To realize civil and political rights in an all around way is a comprehensive project, requiring a simultaneous and balanced promotion of economic, social and cultural rights. Just as stated in the Vienna Declaration and Action Program, all human rights are universal, inseparable, interdependent and interconnected. Economic

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development promotes open thinking, progress of civilization and social development. In recent years, the construction of China’s democracy and rule of law has proceeded at a continuously quickened pace, keeping pace with each step of China’s rapidly developing economy. In areas where economic conditions are relatively superior, people’s legal consciousness and rights consciousness is relatively superior to those areas where the economy is relatively backward. When the economy develops relatively quickly, then the enjoyment of people’s citizen rights and political rights rises relatively more quickly. For this reason, if international society wishes to further promote and guarantee civil and political rights, then it must at the same time promote the comprehensive economic, social and cultural development of various countries. Only by looking at both types of human rights on the same level can the cause of human rights be promoted in a balanced and comprehensive manner.48

Opposing a vision of invidious comparison and value hierarchy identified with U.S. hegemony and Western concepts of liberal democracy and human rights, China proposes a “democratic” vision based on peaceful coexistence, cultural and ideological pluralism, and a more equitable redistribution of the world’s economic resources. The notion of a peaceful rise is a development and extension of China’s rhetorical posture, since the late 1990s, of identifying itself as a “responsible great power.” As Xu Jian argues, “developing the concept of a ‘peaceful rise’ requires a concept of international cooperation that transcends ideology and narrow nationalism by injecting new content into China’s views of sovereignty, human rights and national humiliation.” China’s view of sovereignty is currently combining with its outlook on development in the important thought of the Three Represents for the Chinese Communist Party to represent the advanced forces of production and advanced culture. This is not only a development in the governing concept of the Chinese Communist Party, but also requires China to transcend the ideological outlook in managing the relationship between China and the world, and builds a basis for China to absorb the outstanding fruits of the material, spiritual and political civilization of humanity. … Secondly, China’s concept of international cooperation is combining with an outlook on human rights that is more consistent with cosmopolitan values…China’s stance in the area of international human rights cooperation has changed from passive to

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The Empire’s New Clothes / Jeremy T. Paltiel active, with richer theoretical assertions going from opposing interference to promoting dialogue, from emphasizing the class nature of human rights to acknowledging civil rights, from stressing the right to subsistence and the right to development to simultaneously paying attention to political rights.49

Xu identifies the ideological innovation of the “three represents” as the catalyst behind the reorientation of China’s human rights diplomacy.50

DOMESTIC CONCERNS The idea that China should conform more fully to the mainstream ideas of “international society” in the area of human rights does not arise solely out of the desire for a more harmonious relationship with the international community. It also flows from a recognition that the norms values enunciated in the international human rights instruments correspond to China’s domestic developmental needs and the efforts to build a rule-of-law state. Li Buyun identifies the protection of human rights as one of the most important benchmarks of a rule-oflaw state. Human rights are the rights that ought to accrue to human beings with accordance to their natural and social being. Their content includes the rights of the person and personality, political rights and freedoms as well as economic, social and cultural rights. Human rights are the concentrated expression of human dignity and human value and are the general reflection of human needs and happiness. To deny that human beings ought to enjoy rights of their own in society is to treat them as something less than human. People do not exist for the sake of the state and its laws, but rather law and the state exist for the sake of human beings. …51

One of the most important steps that Li Buyun lays out as benchmarks toward the implementation of the rule of law in China is the ratification of the two human rights conventions, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

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This will raise our international authority not only with respect to human rights questions, but may also promote a further improvement of the system of human rights protection in our country through this important measure—such as establishing a system of social insurance, a law on religions (based on rights protection), a law on family planning, a law on social organization, a news media law, a law on publications, and a law for the rights of dispersed minority populations. It may also promote a reduction in the use of the death penalty, the abolition or improvement of the system of education through labor, reform in the system of legal representation, a strengthening in the role of labor unions, and the legal entitlement to the right to strike.52

INTERNATIONAL SOCIETY AND INTERNATIONAL CITIZENSHIP The Chinese government is torn between the appeal of participating in international society, which enhances the Chinese state’s “international citizenship,” and the universality of the state system, which includes human rights, a universal norm that underlies the sovereignty of states. Acknowledging the latter makes the Chinese state vulnerable to negative comparisons, whereas the former is made attractive and possible because of China’s rising economic and political power, which gives it substantial weight in “international society.” Participation in international society serves as the benchmark of China’s achievement of global status as a great power. To be a great power is to be a player in international society, but a society must embody a set of norms. Insistence on cultural and ideological pluralism with sovereignty as the sole common denominator of international society disables China from the production of international norms. Belatedly recognizing the status implications associated with the promotion of global norms, China increasingly seeks “soft power.”53 The pressure of China’s “peaceful rise” pushes China in the direction of greater conformity with the “embedded liberalism” of international society, which in turn puts pressure on the CPC regime’s domestic posture. The process of China’s adhesion to the two basic covenants of the UN’s human rights regime is instructive. China signed the UNESCR immediately before President Jiang Zemin departed for the United States in October 1997; it signed the UNCCPR on the eve of the UN Human Rights Commission meeting in March 1998, which is broadly

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understood to have been in return for an American decision to drop sponsorship of a resolution that criticized China and part of a package meant to smooth President Bill Clinton’s visit to China in June 1998.54 China has attempted to manage the human rights agenda in the post–Tiananmen Square period through trading off bilateral and multilateral relationships. Whereas the Chinese signature on both the ICCPR and the ICESCR is closely related to Sino-American relations, China has also held out bilateral human rights dialogues in exchange for other countries’ pledges not to sponsor resolutions critical of China at the UN Human Rights Commission.55 In tandem with promoting bilateral dialogue, China also initiated engagement with UN human rights institutions. Beginning in 1994, China invited the UN special rapporteur on religious intolerance (1994), the UN Working Group on Arbitrary Detention (1996), and the UN High Commissioner for Human Rights Mary Robinson (September 1998) to visit China, and it signed a memorandum of intent on a technical cooperation program.56 The special rapporteur on arbitrary detention made a follow-up visit to Chin in 2004, and following the visit of the current UN High Commissioner for Human Rights in August 2005,57 the long-delayed visit of the special rapporteur on torture took place in November of that year.58 If it can be said that there is some controversy concerning the universal qualities of human rights, namely, fundamental human rights, natural rights and absolute rights to interpret the content of “universal,” then constitutional rights can be used as another concept through which to interpret universal human rights. If we can hypothesize that the rights recognized in the Universal Declaration of Human Rights are the rights held to be common to human beings throughout the world, then, at the very least, the rights established in domestic constitutional law should have the qualities of universal human rights. That is to say, universal human rights should have application within the sphere of the sovereign state. Therefore, from a logical standpoint, those rights recognized as universal should be transformed into the common rights recognized in various constitutions. In other words, human rights that cannot be recognized as constitutional rights in the domestic constitution should not be recognized as universal rights under the Universal Declaration of Human Rights.59

Authors Mo Jihong and Song Yafang conclude that “[t]he signatory states of international human rights covenants should respect

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the principles under which other state signatories to human rights covenants legislate human rights protections, even when these principles, such as sovereignty being viewed as the highest human rights in the global context, lead to certain restrictions. In the process of protecting human rights, individual responsibility should be stressed.”60 Other writers have stressed that the international law of human rights enshrined in the UN Charter represents a break with the Eurocentric “Law of Nations” and therefore read the movement toward human rights through the lens of decolonization. This emphasizes the right to self-determination as laid out in Article I of the ICCPR and the ICESCR. “‘Human Rights’ are problems essentially within the sphere of each state’s ‘sovereignty,’ the idea of ‘non-interference in the internal affairs’ is determined on the fundamental essence of the contemporary international system.”61 Established scholars working to advance the rule of law domestically make the same criticisms as foreign critics.62 Li Buyun is not alone in rejecting China’s official position on the relationship of human rights to sovereignty. Other Chinese scholars have pointed out the contradictions in China’s official posture. Lu Shilun joins the critics, writing from a Marxist perspective of internationalism. He refutes the position that sovereignty is a precondition for human rights and that sovereignty is higher than human rights as a form of “state superstition.” He gives three reasons for rejecting the official view: 1. Karl Marx had clearly made civil society the premise and basis of human rights. 2. The position that sovereignty is the premise of human rights makes no distinction between the types of state being discussed. Socialist states, capitalist states … even fascist states could make this argument. If so, would not the proletarian struggle for human rights be rendered superfluous and redundant? 3. Proletarian internationalism has as its mission the emancipation of the entire human race.63 Lu rejects the official Chinese view of the relationship between sovereignty and human rights; instead, he argues forthrightly that “the correct way of speaking is that in its fundamental aspect, universal human rights should be higher than state sovereignty.”64 Also present within the Chinese legal community is dissent as to whether hierarchies of human rights exist, with scholars rejecting the notion of a distinction between human rights and “fundamental”

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human rights, in which the latter places the rights of subsistence foremost.65 This tends to demolish the notion of China’s domestic constitution as a normatively distinct arena and to give the lie to the notion that somehow, cultural prejudice and historical arrogance are the real reasons behind Western criticisms of China’s human rights record. Ultimately, Chinese spokespersons admit that the issue is not so much the substance of the criticisms but who is making them and the circumstances under which these criticisms are made.66 The conclusion is therefore that Chinese objections to Western human rights criticisms are not motivated by objections to the underlying values expressed by Western critics but by the implied threat to China’s political autonomy should those criticisms be recognized as legitimate.67 Yet occasionally, one detects distinctive Chinese value preferences, although the overwhelming weight of common language and common norms in legal scholarship contradicts such detections.68 Chinese officials expend most of their energy arguing about the inapplicability of international norms to the Chinese domestic situation. Official spokespersons consistently try to limit the universality of rights norms; the following example illustrates this point. “I can’t agree to the assertion that the world should follow just one set of standards for human rights, and I find it still more impossible to accept the notion that the human rights standards practiced in one country or region should be taken as universally applicable.”69 The basic form of engagement with international instruments is negative, to wit, “this should not apply here.” Chinese arguments seek to distinguish universal rights from Western interpretations, preferring to identify with a community of developing countries. China holds that countries differing in history and culture and at different stages of development inevitably adopt different methods and follow different models to attain the (sic) universal human rights. For this reason, people hold different approaches towards the question of human rights. Oriental cultures, the traditional Chinese culture in particular, attaches a great importance to harmony between the individual and society and the individual’s responsibility to society, hence the stress on the need to balance the individual and collective rights. In comparison, Western cultures give a greater emphasis on the individual rights, on attainment by the individual of his or her personal freedoms and realization of the values to the individual’s preference, hence the stress on individual rights that are supposedly independent of, or in opposition to, governance and society.70

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Most striking about this form of self-identification is the paucity of common values found within this community. Just two values are regularly cited: sovereignty and the right to development. “Developing countries inevitably concentrate on their own social and economic development and are keen to uphold and promote the right of their people to subsistence and development and their economic and social rights.”71 Sometimes bundled together with this is some notion of “cultural pluralism.” This form of “pluralism,” however, essentially refers to the right to dissent from Western interpretations of rights obligations and is emphatically not identified with the desire to extend cultural pluralism within domestic society. As strong and as powerful as the reflex is to resist constraints on state action imposed from the outside, a growing body of international relations scholars and professionals recognize that China can and must participate in the construction of an international community founded on shared norms. Here too the most widely cited norms are those of peace and sovereign equality. The problem for China is that it has very little basis from which to make common cause other than common opposition to the West. Subsequently, when China tries to push for greater recognition and participation in Western dominated forums, it finds itself isolated through its own actions. One interesting aspect of the trend toward normative convergence with Western legal norms is the effort to couch that convergence in terms of Marxist “laws of social development.” Instead of embracing liberal ideas as an ideological construct, the Chinese who are engaged in this area view liberal ideology as it manifests itself in the form of a rights culture and the development of a society of individual rights bearers, property, and contract as an outgrowth of the historical development of markets.72 Contrast the preceding, longer quotation that defends China’s human rights record based on its alleged cultural traditions between the individual and society with the “objective requirements” of a market economy noted in the ensuing quotation: In our country, because the nucleus of the traditional planned economy was one of monolithic interests, its value judgments dictated that “to follow private interests was to harm the interest of the whole.” This is greatly discrepant with the requirements of a market economy. … The moral pursuit demanded by the planned economy was: to call for obedience and to oppose autonomy; to call for yielding the way and to oppose competition; and to call for flattery and to oppose particular tastes. In a phrase, “collective interests above all” and oppose individualism. However,

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The Empire’s New Clothes / Jeremy T. Paltiel the market economy is a development model that has as its particular characteristic the full development of particular social interests, making the final end of social development the full development of each individual’s interests. … Therefore, the consciousness of the independent personality, the consciousness of the social contract, the consciousness of democratic citizenship rights, and obligations the consciousness of equal participation, the notion of efficiency, mutual benefits, and competition must all be given room to develop.73

The evidence from China leaves no room to establish the Chinese tradition as an alternative or even a complement to Western universal norms of human rights. Chinese theorists emphasize the primacy of “basic human rights” in international law and affirm their binding power on individual states.74 Indeed, Inoue Tatsuo goes so far as to challenge the very juxtaposition of “Asian values” as a species of Orientalism.75 The tendency of Chinese theorists and commentators to universalize modernization and modernity tends to undercut Chinese objections to the dominance of Western values in the debate on human rights. Some Chinese theorists, particularly those working in the area of law, take the point further and speak of the contemporary period as “The Age of Rights.”76 Inoue rightly notes the correspondence of the Western theory of sovereignty with Western notions of human rights. The point here is not to deny that differences exist at the level of values or that Western claims of the universality of human rights may sometimes be misplaced. Rather, the argument is less over conflicting values than over conflicting status. The basic Chinese objection is instrumental, a concern about the potential limitation of the power of the Chinese state and, in particular, its moral claims. A second, more difficult issue concerns the status of the Chinese civilization in relation to global civilization. Implicitly, if Chinese culture is granted only a particularistic place, then the moral claims of Chinese may themselves be relativized and China forever be relegated to inferior status. China’s reluctance to subject its domestic regime to international human rights law betrays its insecurities as a rule-of-law state. The invention of the “take-no-action” resolutions at the UN Commission on Human Rights is an instantiation of a position that refuses to engage in legal terms over legal issues. The implicit assumption behind this is that the rule of law in China places the legitimacy and status of the Chinese regime in an invidious plane internationally. This is intolerable to China in terms of “saving face.” Hence, China pays a price in international credibility for its position on international human rights and

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economically in terms of the suspicion that this position casts on its legal processes. Internationally, therefore, China cannot afford to promote a strictly sovereignty-based “internationalism.” Instead, it continues to passively accept liberal norms while working actively to shape the ways in which these are implemented at the national and international levels. For this reason the Chinese regime sees no contradiction in promoting rulesbased multilateralism in the World Trade Organization (WTO) while continuing to block specific resolutions that condemn China’s human rights practices at the UN Human Rights Commission in Geneva. Rather than proclaim its exception to the UN human rights system, China promotes dialogue and cooperation with the UN High Commissioner for Human Rights and begins to selectively and conditionally participate in humanitarian interventions. Zhu Feng may be right that the desire to conform is much more effective in promoting domestic human rights change than the threat to exclude.77 Yet the experience of China’s interaction with the multilateral human rights system in the 1990s suggests that the initial threat of exclusion had a substantial impact in promoting engagement with the multilateral human rights system. Even though this engagement was initially a response of resistance, to parry efforts to promote domestic regime change, it did not result in the formulation of a consistent alternative to Western human rights ideas, still less an alternative human rights system or regime. Instead, Chinese participation in the multilateral human rights regime, like its participation in other multilateral projects, selectively reinforces and reaffirms liberal values and norms in the effort to find a congenial consensus around Chinese interests and goals consistent with the shifting coalitions with which China associates. The key to this process is a growing identification with the norms of “international society” as a means of restraining unilateralism and mitigating the effects of a hegemonic order.

CONCLUSION Currently, the CPC is in the peculiar position of advocating pluralism and democracy in the interstate system while seeking to curtail and control the expressions of the same domestically. It is my contention that domestic and international sovereignty are not two incommensurable concepts but interlinked notions of authority. If so, China is today an anomaly. Note, however, that official Chinese statements assert

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China’s adherence to the values of democracy and the rule of law. Chinese dissent in the multilateral human rights regime is less ideological than institutional. The effort to uphold party patrimonialism runs against the pluralizing tendencies of China’s market economy, whereas the resulting friction in a society that is increasingly open to transborder flows of information, people, and goods will be taken up by transnational NGOs and reflected in the multilateral human rights regime regardless of China’s growing global influence.

CHAPTER 5

C HINA

W ORLD T RADING S YSTEM : WTO AND B EYOND 1

AND THE

T HE

Some comrades have asked me: “What is the most important thing you have learned in taking part in negotiations after so many years?” My answer is, my greatest realization is simply this: “It is not easy to establish a market economy in China.”2 Long Yongtu, China’s chief negotiator, on China’s entry into the World Trade Organization China’s sometimes grudging acceptance of, and gradual incorporation into the global economic order could therefore be seen as a definitive indication of China’s integration into international society.3 Yongjin Zhang

The process of China’s accession to the World Trade Organization

(WTO) is an object lesson in China’s relationship to international society. Accession can be viewed through different lenses. One lens looks at China’s specific performance in which accession is viewed as a contract and therefore is evaluated on evidence of specific compliance or derogations. Another lens views WTO accession as part of China’s integration process into global regimes and assesses how

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China’s accession redirects its domestic policies toward the norms and constraints embedded in the WTO regime. The first approach sees the WTO regime as a pattern and matches the regime against the outlines of China’s current policy and law.4 The second approach sees WTO accession as riding a trajectory of conformity with international regimes and compares the commitments under the accession agreements with China’s past governance practices.5 The latter does not ask “to what extent does China comply?” but “what has changed?” and “how do the changes mandated by the WTO reorient Chinese governance on a sustainable course of market opening and adherence to international norms?” WTO accession alone cannot change China’s governance practices. Only where WTO rules and norms reinforce trends in domestic governance can the norms made explicit in the accession documents become a pattern toward which China’s government reforms its domestic institutions. Commitment to “rule of law” and a “socialist market economy” predates WTO accession and has a basis outside the international trade regime. These reforms occurred not because they were “mandated” by some external actor (albeit with China’s own specific agreement) but because these commitments express consistent trends in China’s own development that require a new institutional form. Externally, WTO accession represents for China membership in a world organization that makes and adjudicates trade law, consolidates market access, and institutionalizes most-favored-nation (MFN) status (now called permanent normal trade relations, or PNTRs), especially in the crucial U.S. market. Internally, WTO accession consolidates China’s transition to a market economy and mandates the transition to the institutional framework of a regulatory market regime.

THE WTO AND THE DIRECTION OF CHINA’S DOMESTIC REFORM WTO accession creates a structure of international accountability around Chinese performance that China cannot ignore and whose legitimacy China has recognized in advance. In this regime China recognizes external monitoring of her domestic governance structures, including the performance of its legal institutions. China’s position regarding the WTO regime stands diametrically opposed to its stance toward the international human rights regime.6 WTO accession corresponds to a “neoliberal turn” in China’s economic policy that has implications for

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the normative contours of China’s cultural development. Accession demonstrates the double-edged sword of globalization. On the one hand, it represents Chinese participation in the mainstream of international economic life; on the other, it represents a strategy of competition, premised on a struggle against the prevailing global order led by the West, with the United States at its head. These two points of emphasis leave room for opposing political interpretations. Depending on one’s value orientation, it is possible to hail China’s integration into the global mainstream or to mobilize for national competitive advantage. Even strong partisans of infant industry protection and a comprehensive strategy of national economic growth insist on proceeding according to the rules of the WTO and on establishing an appropriate legal framework.7 WTO rules encourage political and economic actors to look beyond simplistic stereotypes about the national origins of corporate actors to more comprehensive calculations of the relationship between trade rules and national competitiveness. Regimes form a special kind of cooperative order. International actors construct shared rules and norms in pursuit of collective goods. Sovereign nations enforce these norms and rules domestically and strive to deny collective benefits to actors that behave outside the norms. Since regimes are voluntary (as opposed to imperative hierarchies based on power), conformity with specific regime norms and rules must find a basis in domestic interests. The sovereign state, defining the unit of participation, is the “latch” of international cooperation, whereas domestic sovereignty provides a system of norms of reciprocity, contract, and the rule of law that acts as a “hinge” of performance. States “latch” onto regimes to share their benefits with other states and to deny benefits to those who do not conform. At the same time, effective regimes “hinge” on domestic administrative machinery and commensurate practices to make transnational norms binding. Consequently, sovereignty defines both the unit of action and the normative basis of compliance. China is widely assumed to lack the normative basis for WTO compliance If true, sovereignty alone is an insufficient basis for participation in regimes. Sovereign states are presumed to be self-interested actors whose preferences are exogenous (not dependent or derived from external actors or international regimes). Provided a state is sovereign, adherence to a regime is a matter of will and interest, not capacity. States adhering to international regimes internalize norms to facilitate conformity to rule-based orders. Thus, a condition of adherence to a regime suggests that regimes play a role in shaping state identities, a conclusion that appears to challenge traditional views

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of state sovereignty. To argue that China’s distinctive form of governance disqualifies it for membership in the WTO, despite explicit commitments to adhere to the rules of the organization, underestimates the significance of WTO adherence and exaggerates China’s aims at mercantilist subterfuge. China’s willingness to abandon its initial negotiating position and to make painful concessions for the sake of WTO entry occurred because China’s leaders realized the potential of WTO norms to set a coherent framework for the reform of China’s domestic political economy. Hence, China’s WTO accession provides an outstanding example of China’s willingness to adjust its domestic regime and governance practices to conform to external norms that facilitate transborder flows. The reason for skepticism is founded on the explicit antiliberal foundations of the institutions and ideology of the People’s Republic of China (PRC), confronting what is widely seen as an institutional representation of the “embedded liberalism” of the international trade and investment system.8 Analysis of China’s conformity with international regimes in general and the WTO in particular must start from an examination of Chinese attitudes toward and reception of international norms. Participation in international regimes like the WTO is associated with “sovereignty costs.” Kenneth W. Abbott and Duncan Snidel use this term to describe “… accepting a legal obligation especially when it entails delegating authority to a supranational body is costly to the state. The costs involve a range from simple differences in outcome on particular issues to loss of authority over decision making in an issue area to more fundamental encroachment on state sovereignty.”9 As I have noted throughout this book, China’s leaders jealously guard their state sovereignty, yet they pursued membership in the General Agreement on Tariffs and Trade (GATT) and then the WTO for fifteen years, eventually agreeing to a set of accession conditions that amounted to what has been called “WTO plus.” It is not that China’s leaders were caught unawares. Indeed, bargaining over the terms of entry is what made China’s accession negotiations so long and arduous. By contrast with most original contracting parties of GATT, China’s WTO accession does not require reciprocal interstate recognition of norms already present domestically for the sole purpose of lowering barriers to trade. Instead, as critics repeatedly remind us, accession essentially entails instituting the domestic norms that make the reciprocal lowering of barriers possible.

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Though market access concession—tariff reductions and sectoral liberalization—are important for China’s bid for WTO membership, the real future challenges for China and the WTO revolve around issues related to ‘transparency,’ or the legal and administrative policies and institutions that the PRC must put in place to ensure the equitable and efficient resolution of commercial and trade disputes.10

China’s reasons for joining, including its commitment to implementing internationally recognized standards of the rule of law, are extremely pertinent to our discussion of sovereignty and China’s identity. According to Alan Alexandroff, the crux of China’s accession issues was “put simply, the Chinese legal system fails to conform to any common Western understanding of the rule of law.”11 Neoliberal regime theory implicitly assumes that regimes are founded on a distinctive form of liberal domestic governance. Today’s concerns about the ways in which international regimes are said to erode traditional forms of sovereignty and democracy is stood on its head in China’s case. The process of WTO accession was predicated on the establishment of new forms of domestic governance that complied with WTO norms. Whereas Chinese officials are explicitly committed to China’s convergence with a particular set of norms—which they see as emergent at the international level and contrary to the kinds of objections raised by liberals against the PRC in the arena of human rights—they are equally committed to changing the domestic institutional order that diverges from the normative order that operates internationally and in domestic jurisdictions elsewhere. In this chapter I also show that this posture does not contradict China’s bedrock concern with sovereignty, but for reasons connected with China’s particular historical development, conformity with the international trade regime is seen to support China’s quest for sovereignty, notwithstanding concerns and anxieties over power relations within the international trade regime.

CHINA’S CHANGING STRATEGY: ABANDONING ENTITLEMENT TO BARGAIN OVER INTERESTS China’s chief negotiator during the fifteen years of China’s accession negotiations personally confirmed that WTO accession was bound up with China’s identity:

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The Empire’s New Clothes / Jeremy T. Paltiel After the UN seat was restored to us, and the General Agreement on Tariffs and Trade (GATT) chased out Taiwan, the political conditions were already ripe for us to return to our seat at GATT. All we had to do was to present our application and we would have been swiftly admitted. At the beginning of the 1970s, the developing nations picked up the oil weapon, and took up the struggle with the developed countries to build a New International Economic Order (NIEO). At that time, the UN put together a Conference on Trade and Development (UNCTAD), in distinct opposition to GATT. The current thinking of the time was that GATT was a “rich man’s club,” with just a few dozen contracting members, mainly from developed countries. UNCTAD was the organization that represented the interests of the developing nations struggling against GATT. Making a political choice, our country chose UNCTAD over joining GATT. However, this did not mean we could not join GATT. In March 1973, I was a member of the Chinese delegation at the UNCTAD conference in Santiago. Our participation attracted a lot of attention.12

China’s awareness of and impetus to join GATT occurred in the context of the reform and opening-up processes that began with the Third Plenum of the Eleventh Central Committee in December 1978. The year before, China ranked thirtieth among world trading nations, representing merely 1 percent of world trade. Now, nearly thirty years later, China has climbed to sixth place and represents approximately 5 percent of world trade. Once China began to expand foreign trade, it quickly became an observer in 1981 of the MultiFibre Agreement (MFA) on textiles and clothing affiliated with GATT, and it became a full participant in the third MFA in January 1984.13 Participation in the MFA— essential to China gaining market access for its textile exports —promoted awareness of and interest in learning about the rights and multilateral safeguards available through GATT. Thus, in November 1982, China sent an observer to the Thirty-Eighth General Assembly of the contracting parties of GATT. By February 1984, following a seminar held by GATT in Beijing, the Chinese government informally indicated its interest in the organization. In July 1986 China initially applied to “rejoin” GATT for two important reasons. The first was a general push for China to seek membership in all multilateral institutions where membership was considered a badge of global influence. The second reason was the desire to guarantee access to major markets for Chinese exports. This second consideration, apparent in the quotation from Long Yongtu that opened this chapter, could not have occurred without a normative reorientation of Chinese

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economic policy. By 1978, modernization had become the overriding policy goal of the Chinese state and, very rapidly, it became clear that trade was a key factor in the acquisition of the technologies and instrumentalities of modernization. By the 1980s, an economic policy of autarky under a planned economy, with trade as a restricted complement, had turned into a national economic policy increasingly formulated to maximize gains of trade. China’s total foreign trade, which amounted to just 20 billion U.S. dollars in 1978, had risen to $85 billion in 1990, of which 90 percent was carried out with GATT members.14 GATT membership would guarantee China MFN status in the important U.S. market and potentially eliminate the annual debate on China’s status pursuant to the Jackson-Vanik Amendment. By the time of Chinese accession to GATT’s successor organization, the WTO, in December 2001, a sea change had occurred in China’s attitude toward multilateral institutions and WTO membership. The simple urge to maximize the gains of trade through membership in GATT had morphed into a comprehensive effort to “link up the rails” (jiegui) with the global economic system and to incorporate those norms within the domestic economic system The learning curve started from an awareness of the discriminatory measures to which China was subjected in bilateral trade as a result of nonmembership in the GATT/WTO.15 This ranged from conditional MFN to discriminatory antidumping duties determined through thirdcountry pricing as a result of China’s designation as a nonmarket economy (NME). In this sense, China’s quest for membership in GATT was a continuation of the century-old quest for fair treatment and full membership in the international community. Awareness of discrimination did not at first diminish the penchant for exceptionalism. China sought equal access but resisted reciprocity on a number of grounds. Only through the process of bargaining, in the context of a convergence between domestic needs and international norms, did China’s leaders come to see China’s interests in the area of international trade and investment as increasingly linked to acceptance and promotion of universal norms and less well protected through appeals to claims of exceptional status. Movement toward common norm setting as a fundamental interest of the Chinese state can be judged against the following benchmarks: 1. Acceptance of common or universal norms or standards with endorsement of consensus positions.

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2. The statement of China’s national interest through appeals to universal norms or standards. 3. Joint effort to restrain the actions of other states through an appeal to universal norms. 4. Proposals to pool sovereignty in pursuit of collective goals, inclusive of Chinese interest, through initiatives to establish international obligations to constrain prerogatives of sovereign states. 5. Acknowledged derogations from stated interests through appeal to higher shared values. China’s adaptation to the international system is commonly approached dichotomously, projecting a distinction between “instrumental adherence” and “cognitive identification” with international norms; the transformation of the former into the latter is shaped by cognitive processes at work in the formation of shared “epistemic communities.”16 Here I reject a neat division between internal and external norms, values, and processes. Normative identification is a complex process of intended and unintended effects, some of which emerge through the negotiation process. Bargaining promotes an appreciation of shared interests, not simply a means to realize them. Multilateral engagement involves a different approach to foreign policy than the reciprocal balancing of interests involved in bilateral relations. Multilateral organizations balance interests through the application of generalized rules. Multilateral diplomacy calls for participation in rule making and abiding by the obligations and rights conferred by those rules. WTO multilateralism involves an explicit commitment to rules as a means to distribute benefits and obligations that include trade and to their implementation at the domestic level. Therefore, at a general level accession to the WTO has required an explicit commitment to rule-based governance. This commitment was not just an implicit subject of China’s negotiations over WTO entry, it was the core issue in negotiations to the accession.17 Legal sociologists speak of an “elective affinity” between capitalism and law.18 Critics of the WTO speak more generally of its “juridification.”19 What is remarkable is the path that China has taken from skepticism and careful hedging to the endorsement of WTO principles. In this respect, even the many critics who question the sincerity of China’s commitment to WTO principles must acknowledge the vast difference between claiming an exception to a norm and endorsing that norm as state policy, even if it is not fully implemented. The recognition of norms is the

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instantiation of their existence and also the formal basis of legal constraint within an institutional framework. The unique history of GATT as a contractual organization for mutual tariff concessions gave rise to a process of accession that involved a special combination of multilateral negotiations with the GATT working party over the terms of accession and bilateral discussions with each member to reach bilateral tariff concessions. China sought to evade the difficult process of bilateral negotiations through the argument that it was “resuming” GATT membership and then, again, hoped to evade the process through the argument that it was a “founding member” of the WTO. Unique strategic circumstances in the 1970s (through joint opposition to the Soviet Union) had determined that China was able to gain MFN status from most Western countries without joining GATT. China then premised its search for WTO membership on enhancing this “free-rider” status, which it borrowed from the historical lessons of development for other East Asian countries, particularly Japan and South Korea. According to Chinese sources, the Chinese government laid down the guidelines for GATT accession as far back as 1982.20 These asserted that (1) China was “rejoining” rather than “acceding” to the GATT; (2) China would engage discussions on the basis of tariff reduction, not on an “import approval” basis as a nonmarket economy; and (3) China would accede as a “developing country” with General System of Preferences (GSP) consideration under Article 18 of GATT. During the initial phase of China’s negotiations to join GATT, China made the claim that it was “rejoining” the organization in an effort to evade bilateral negotiations over contracting under Article 35 of GATT.21 In addition, through the insistence that China was a “developing country” under Article 18 of GATT and Article 12 of the WTO, China sought to avoid many of the obligations and constraints of membership. Thus, it is a fair assessment that these two arguments cast suspicion on China’s willingness to observe the norms and obligations of membership, since these provisions would have obviated the requirements of transparency, national treatment, and import restrictions as well as the obligation to grant tariff concessions to existing members on a reciprocal basis.22 Chinese officials were well aware that they were choosing an exceptional basis on which to claim membership in GATT: “There was no precedent for ‘resumption’ [as a form of accession] in the history of GATT. This was a product of the special historical conditions of our country.”23 The initial process of accession requires an extensive period of factfinding about the country’s trade system and practices. In February

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1987, the Chinese government presented its “Memorandum on the Chinese System of Foreign Trade,” and in the following month the GATT Secretariat established a working group to examine the Chinese application. In June of the same year, GATT members presented 329 questions to the working group at the Secretariat, to which the Chinese side responded with a memorandum of its own in November 1987. Up to June 1989, eight rounds of discussions and more than two thousand questions had been presented on China’s application. Obviously, the events at Tiananmen Square on June 4, 1989, effectively suspended negotiations. It is generally assumed that had the Tiananmen crackdown not occurred, China might have acceded to GATT on favorable terms.24 In the event, when the ninth round of talks concluded in January 1990 and the GATT working group convened to discuss the Chinese application, the European Union (EU) and the United States requested that China review its memorandum on the operations of its economy in view of changes since 1987. It took eleven more years for negotiations to conclude. In the end, China’s accession was made possible both through convergence of domestic norms with those of the international trading system and by the diplomatic bargaining skills and trade-offs. Chinese Communist negotiators had perfected their skills over half a century and finally brought these to bear in successive rounds of trade negotiations with the United States in the 1990s. Accumulated experience of bilateral trade negotiation in the 1990s made the transition to bargaining over accession relatively seamless, even as it was fraught with conflict. Once China’s leaders understood that forthcoming accession would henceforth relieve the pressure of ongoing bilateral trade diplomacy, the prospect of future relief provided the incentive structure within which China could offer what amounted to unilateral concessions. Accession guaranteed that these unilateral concessions were one time only and could not be conceived as down payments on an accelerating schedule of demands. Because the process of negotiation was itself predicated on a schedule of obligations that China had to phase in, in any case, sector-by-sector bargaining became the learning curve of the costs and benefits of accession. The protracted process of the negotiations became the most effective device that the Chinese government could devise for mobilizing domestic actors to take seriously the costs of adjustment. At the same time, the “protracted struggle” of bilateral bargaining tended to highlight, over time, the advantages of universality and generality over the annual hassle of ensuring China’s MFN status before the U.S. Congress.

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HARD BARGAINING By the time negotiations resumed in earnest in 1993, the circumstances of the Chinese application underwent a qualitative change. The perception of China in Western countries had been changed forever, and the United States had become increasingly concerned that China not be allowed to become a “free rider” on the international trading system as Japan was perceived to have been. Yet another transformation was taking shape in China’s domestic and foreign economic policy. Following the collapse of the Soviet Union and Deng Xiaoping’s “southern tour” of 1992, Chinese economic policy had moved decisively toward the market and away from planning as the main lever of economic activity. The process of negotiation that now ensued involved a higher “bar” of entry with more specific commitments required at a higher economic cost in terms of market access and the reform of China’s domestic institutions. Moreover, China displayed a greater willingness to make the institutional reforms that would bring China into conformity with the liberal international trading system. Concurrently, negotiations over GATT entry moved away from considerations of specifying post-accession adjustments toward meeting a specific “down payment” that included both institutional changes and specific market access provisions. From about 1993 on, the focus was on the reconciliation of primarily U.S. bilateral demands for market opening and institutional change with China’s own agenda for opening up and “linking rails” with the international economic and trading system. In the period between 1993 and 1994, China sought to take advantage of the timetable for the transformation of the contractual GATT into the international organization the WTO. China’s leaders assumed, wrongly as it turned out, that there was a consensus for accepting China as a founding member of the new organization. (or, rather, they mistook consensus on principle as consensus on substance). In anticipation of the requirements of entry, China undertook a series of measures, including abolition of export subsidies (1991), publication of trade regulations (1992), unification of the foreign exchange value (1993), and progressive tariff reductions (1994–97). Initially, the United States exercised pressure for trade concessions on a bilateral basis. Following 1995, U.S. pressure, as part of the process of WTO accession, had a contradictory effect on the learning curve of normative compliance. On the one hand, China proclaimed its earnest desire to “link rails” and join the liberal multilateral trading

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order, implicitly or explicitly endorsing a liberal economic order. On the other hand, escalating demands by the United States, together with the “bandwagon effect” (or piling on) by the EU and other trading partners, fed visions of the West once again “ganging up” on China and placing obstacles to prevent it from taking its rightful place in the world order. China was caught between a perception that the West, led by the United States, was determined to use the WTO as a structure to consolidate its hegemony in the hierarchy of states and an equally strong desire to gain recognition as a full member of the international community. This had the effect of undermining the very values that China was otherwise earnestly proclaiming. China balked at the sweeping concessions that the United States demanded in the leadup to the transformation of GATT into the WTO precisely because these concessions went against the kind of discretion that China demanded as a “right” on the basis of its “developing-country” status. China saw any reduction in its “phase-in” and “phase-out” allowances as an affront to its status as both a developing country and an equal member of the WTO.25 China continues to view GATT as primarily a vehicle used to achieve the interests of the developed countries.26 Chinese authors cited examples of countries that were “successful” in using GATT to further development by adopting “appropriate” policies, like South Korea, pointing specifically to its use of neo-mercantilist policies in conjunction with making use of MFN status for the purpose of exporting to the United States.27 In other words, successful membership was equated with and predicated on getting a “free ride” in the international trading system.

Contracting In without the Security of Blanket Access Faced with the threat of exclusion from the mainstream of the world trading system and having at base a commitment to a market economic system, China’s leaders determined to push forward their case for WTO accession. In November 1995, the United States handed China a secret thirteen-page memo in which they laid out a “road map” for China’s WTO accession. This spelled out the areas of U.S. concern on tariffs, market access, trading rights, investment policy, and developing-country status. 28 In addition to the shock and devastating setback of being excluded from the newest world organization, the debilitating annual renewal of MFN status with China’s largest trading partner—exacerbated by the continued and rising surpluses in two-way trade—fueled

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even greater efforts by China to achieve WTO entry. Accordingly, at the December 1996 WTO Ministerial Conference, Vice Minister Long disclosed that China would no longer insist on blanket developing-nation status for WTO accession and was open to discussion of accelerated timetables for phase-ins and phase-outs in particular sectors. This brought China’s position closer to U.S. demands for a “down payment.”29 The Asian economic crisis that began in 1997 further accelerated China’s willingness to make concessions and renewed its sense of urgency for the institutionalization of a stable climate for trade and investment. Also at this time, an improved climate in Sino-American relations, which had recovered from the low points of MFN and human rights confrontations in President Bill Clinton’s first term and from the 1995–96 Taiwan Strait crisis, improved the atmosphere for negotiations and bargaining. In many ways, 1997 marks a turning point. In September of that year, the Fifteenth Congress of the Communist Party of China (CPC) adopted a resolution that affirmed China’s determination to pursue a “socialist market economy.” This was linked with the objective to pursue a mode of governance characterized by the “rule of law” as discussed in the previous chapter. These conditions engendered a new spirit of compromise over WTO accession. Gradually, China loosened its “principled” opposition to compromising its “rights” to neo-mercantilist exceptionalism and began to bargain with a clearer vision of costs and benefits. The parallel determination to reform China’s state-owned enterprises (SOEs), also announced at the Fifteenth Party Congress, highlighted China’s increasing dependence on trade;30 it likewise underscored the need to guarantee a continued flow of inbound foreign direct investment within the context of a regional economic crisis. Although China was motivated to abandon its theretofore “principled” stand on accession, agreeing to specific “down payments” and shortened phase-ins and phase-outs, two sorts of continuities also facilitated the shift. The first continuity was the central role of the United States in the so-called Quad countries that had led the negotiations on the bilateral stream of contracting in. For several years the United States had insisted that China join the WTO on “commercially viable” terms. The EU, the other senior partner in the quadrilateral negotiations, picked up this theme later on. This meant improved access to the Chinese market upfront as a price of China’s entry, not simply as a consequence of accession. However, China and the United States had been engaged in high-profile and frequently acrimonious trade negotiations since the early 1990s.31 The pattern of accession negotiations simply carried forward the track of bilateral Sino-American trade negotiations.

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Chinese negotiators had learned from experience in annual MFN reviews that they were capable of defending their interests and they had key allies within the U.S. business community.32 Sino-American trade negotiations already included elements of intrusion into Chinese domestic policy, in particular, the implementation of intellectual property rights protections. The second factor of continuation that facilitated the transition to the new phase of negotiations was the familiar form of the negotiations themselves. The road to a “commercially viable” agreement lay through commercial bargaining. In other words, from both Chinese and U.S. perspectives, there was no question of bargaining away such “principles” as eventual accession, “resumption,” or developing-country status. The only question was the price. Once this hurdle had been crossed, negotiations took on the character of marketplace haggling. The new objective was to reach an accommodation that would both satisfy U.S. demands for a “down payment” and assure a space for China to develop “national champions” in such “sunrise” service industries as telecommunications and in more traditional but underdeveloped manufacturing sectors such as automobiles. Prior to this time, Chinese concessions were largely limited to tariff reductions and promises to implement WTO rules in full, and they were combined with rigid insistence on pre-stated “principles.” From 1997 on, the negotiation process resembled more of a log-rolling procedure in which specific demands met a response of quantitative counteroffers that related to specific tariff rates, concessions on phase-ins, and accelerated phaseouts. The new negotiating model sacrificed blanket discretion for focused transition costs and a healthy injection of competitive pressure. Instead of seeking to eliminate competition in infant industries, China turned to international competition to stimulate domestic restructuring in sectors that had been lagging as long as restructuring relied solely on administrative means. Administrative guidance would now give way to natural selection. Without changing its outward stand on accession, the Chinese government began to pursue a negotiating strategy more consistent with the idea of “contracting in”—an idea that had been anathema up to that point.

THE SHANGHAI MODEL AND THE CONVERGENCE OF WTO NORMS WITH DOMESTIC NEEDS The new strategy of negotiation coincided with the rise of Zhu Rongji in the State Council and culminated with his assumption to

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the premiership in March 1998. Zhu had pioneered what could be called a new development model during his term as mayor and party leader in Shanghai. This model combined public investment in infrastructure with reduced transaction costs for private and international investors. The city actively promoted reduced official discretion and enhanced protection of property rights as a means of encouraging investment. Zhu’s model transformed Shanghai from a consistent laggard in terms of growth rates during the 1980s to the pacesetter of economic growth under internationalized conditions—with a corresponding absorption of foreign capital—from the 1990s onward. Shanghai became a showplace where foreign capital was used to invigorate traditional manufacturing sectors, such as automobiles, and to open up new sectors in the services, including both finance and telecommunications. Not only did this model correspond closely with the demands of China’s major trading partners in the WTO but it also corresponded closely with Zhu’s domestic political agenda, which aimed at centralizing executive decision making, eliminating corruption, and reducing principal-agent problems through public enactment of new administrative rules.33 China’s accession to the WTO both mandated and facilitated a transition already under way from a system predicated on microeconomic intervention rooted in administrative discretion to macroeconomic regulation designed to facilitate private investment and autonomous economic activity. Initially, the decentralization of authority had provided the space for the growth of market reforms.34 By the end of the 1980s, however, it had become a façade for bureaucratic rent-seeking. The old administrative structure bred discretionary controls and fed rent-seeking. The “Shanghai model” swept away departmental permits in favor of unified approvals of investment decisions within single administrative units outside the system of sectoral micromanagement. This was the model that Zhu brought to Beijing. Western legal scholars had long recognized that economic reform in China required a new normative model of law. The transition from a plan-centered to a market-centered economy requires an appropriate set of corresponding legal institutions, the most important of which is general applicability. The essence of the planned economy is production according to directives from above. A production directive to a firm, to be meaningful, must take into account the particular characteristics of the firm. … Firms producing in a competitive market, on the other hand, operate under a set of constraints common to all firms in

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The Empire’s New Clothes / Jeremy T. Paltiel their sector. … If law in China is to be used in support of market institutions, it must apply indifferently to large numbers of economic actors. Otherwise the system will revert to the kind of specific directives and ad hoc bargaining which led to the drive for reform in the first place.35

By the end of the 1990s a detectable shift had occurred in Chinese legal thinking that was increasingly predicated on the norms of the market. This includes explicit attention to the need to distinguish between public and private authority and even to abandon a state-centered model of adjudication and law.36 The central government, fearing the corrosive effect of corruption on both political legitimacy and administrative rationality, became eager to control administrative discretion. External pressure in the form of conformity to WTO rules and standards became a means to sidestep the bureaucratic infighting that piecemeal administrative reform had achieved. In carrying out the rules of the WTO in a unified manner, our country must further enact legislation to clarify the exclusive power of the central government to control foreign trade through legislation.(the current “draft law on legislation” merely states that the NPC has the exclusive power to legislate in matters of the basic foreign trade system) as well as the unified management power of the central government, and clarify the universal power of the central government administrative organs to establish the system of rules for foreign trade for use over the entire country as well as the restriction of the power of local government to establish rules of foreign trade. Moreover, the State Council and its associated agencies through the revision to the “Law on Administrative Supervision” must clarify the power of the State Council to supervise the actions of the various levels of local government with respect to foreign trade and stipulate the responsibility of local officials for disobeying the rules of the WTO in domestic law including the personal accountability of administrative officials.37

In April 1999, Chinese Premier Zhu Rongji took a package of concessions to Washington in an attempt to break the impasse over China’s WTO accession.38 China had long calculated that meeting U.S. terms would open the door to swift accession. Zhu obviously saw accession as a lever to counteract the serious deflation affecting the Chinese economy and as a necessary plank in his effort to reform the domestic

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economic system. His visit occurred at a sensitive time, amid the campaign in Kosovo of the North Atlantic Treaty Organization (NATO), which China’s leaders saw as a threat to the very concept of sovereignty. When the United States brusquely rebuffed the concessions that Premier Zhu offered during his Washington visit, a chorus of critics denounced the Chinese posture as a “sell-out.” China’s chief WTO negotiator, Long Yongtu, was forced to pen an article claiming that China’s market opening gestures were entirely in China’s own interest!39 What is important, however, is how these interests were defined. National competitiveness had come to be seen more in terms of international competition and less in terms of protection. Moreover, Long specifically acknowledged China’s obligation to take “make-up lessons” for the several rounds of tariff reduction since China’s “initial accession” to the GATT in 1947. Thus, as a defense against criticisms of a “sell-out” to the United States, Long appealed to universal standards and to the importance of meeting universal obligations. Following the tragic bombing of the Chinese Embassy in Belgrade in May 1998, President Clinton awoke to the strategic urgency of accommodating China within the multilateral system, and in November 1999 the United States signed a memorandum of agreement on bilateral terms of accession on conditions that incorporated somewhat more modest concessions from China than those offered half a year earlier. The logjam was broken.

BALANCING A TWO-EDGED SWORD WHILE CLIMBING THE LADDER OF NORMATIVE COMPLIANCE The process of WTO accession has seen movement from the third level to the fifth threshold. China not only endorses the norms of fair trade and transparency but also has begun to appeal to these shared norms in the face of acknowledged desires to protect “infant industries.” Although China has yet to take any major new initiative in global norm setting, China’s leaders repeatedly speak of the need to “be at the table” to defend Chinese interests in the new round of multilateral trade talks.40 Rather than see accession as a sell-out to Western interests, partisans of a new outward orientation began to see multilateral engagement as part of the struggle to control and constrain “hegemonistic” practices in the international arena.

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The Empire’s New Clothes / Jeremy T. Paltiel … China, as the largest and most swiftly rising power in the contemporary world, offered a profound critique of the international economic and security order guided by the US. Chinese had obviously noticed that this critique could gradually gain support and agreement on a broader scale. For this reason, even when facing pressure from U.S. hegemonism, China strives to maintain stability in Sino-American strategic relations and to expand economic relations in order to open another channel by expanding relationships and opening new channels of multilateral engagement—not only for its own positive development but to open up new space for activity in support of strategic stability.41

This is not to suggest that China has abandoned a fundamentally neo-mercantilist approach to world trade and economic development focused on the improvement of national competitiveness at the level of the nation-state over improvement of material welfare or factor productivity. WTO accession is first and foremost a strategic tool, not a sign of capitulation or assimilation to Western dominance. Thomas Moore has coined the term “global nationalism” to describe China’s competitive integration into the global economy.42 Chinese writings focus on the WTO as a challenge and on the need to shift the mode rather than the goal of national economic security.43 Chinese commentators primarily view WTO norms of transparency, generality, and national treatment as instrumental means to the goal of national economic competitiveness rather than ends in themselves. However these norms are viewed, the process of accession has nevertheless had the effect of cognitively engaging China and Chinese in participation with the system of “embedded liberalism” at the international level.44 Chinese liberal trends have also been challenged by a number of new and old “leftists.”45 It would therefore be a mistake to see the processes outlined above as universally shared, even among officials and intellectual elites. Yet it is fair to claim a cognitive breakthrough whereby both officials and non-officials have come to identify with certain transnational norms not only as tropes of engagement with external actors and external reality but also as values, albeit instrumental ones, to the reconstitution of domestic society. Russell Moses divides Chinese views on WTO accession into four schools: the “sovereignists,” who fear the erosion of China’s sovereignty; the “Americanists,” who fear the WTO as a tool of U.S. hegemony; the “administrative rationalists,” who view WTO as a tool for restructuring China’s own political economy; and, finally, the “partnership school,” which sees accession as a badge of China’s acceptance

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as a great power and therefore as an opportunity to restructure the rules of the international system in China’s favor.46 Of these four schools, the first two are opposed to, whereas the latter two are in favor of, accession. However, the suggestion that Chinese views toward globalization are deeply divided, with no consensus over WTO membership, is a distortion of the reality. Even though the concerns of all four schools certainly exist, rather than view these schools as contending factions in a political debate, it would be more accurate to see these as varying points of emphasis within a broad political consensus. The consensus is over the indispensable integration of China into the global economy. Simply put, no one proposes cutting China off from the global economy. Debate occurs regarding the speed of integration and restructuring and the limits of neo-mercantilist national economic policy making within the constraints of the new system. Almost no one in China views the WTO as “the solution” to China’s economic problems. All Chinese people, more or less, integrate the WTO into discussions of economic strategies aimed at national competitiveness. The following is typical: The goal of economic development in our country is an open economy. An open economy can fully exemplify the comparative advantage of each country, and raise the effectiveness of resource utilization. An open economy raises the pressure of competition on domestic industry and forces enterprises to use advanced technology and to improve operational management; at the same time, an open economy engages enterprises in resource allocation in the international economy, forming international competitiveness. Only with opening to the outside can the competitiveness and viability of the national economy be manifested. Any means of isolation will lead to that country falling behind. This is the lesson of the economic development of various countries.47

I have yet to come across any Chinese argument in favor of the open economy premised solely on individual or collective welfare. The unit of analysis is invariably national economic competitiveness and strategic competition between states. It is not the Chinese who are better off because of WTO accession, but China. With the globalization of production as a background, we must link the readjustment of our domestic economy with the readjustment of the global economy, to establish a new plan for readjusting the manufacturing structure and the choice of strategic

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The Empire’s New Clothes / Jeremy T. Paltiel industries in order to benefit the overall international competitiveness of our industry. Secondarily, on the basis of our own overall strength and comparative advantage, our country should wrest a strategic advantage in one or more high technology, high valueadded industries in the context of globalized production.48

Therefore, the adoption of liberal economic norms is contingent on the correspondence between these norms and Chinese national economic goals. Without a doubt, globalization,—alongside the nationalism produced through mutual interaction—represents historical progress. However, only by keeping hold of one’s political fate in one’s own hands can the accomplishments that the nation-state derives from the advance of globalization be made meaningful and dependable. Moreover, the means to holding one’s fate in one’s own hands is not money in itself (before the World War II the Jews had money) but the strength and the military and defense power that can be deployed to protect national interests on a global scale by transforming money in a timely manner.49

So long as the pursuit of liberal economic norms does not clash with the instrumental purposes that support them, those liberal norms can become increasingly institutionalized. In the end what matters is not the origin of a norm but whether it works to constrain behavior. Arguably, the first of Jiang Zemin’s “three represents”—the requirement that the CPC represent the forces of advanced material and technological production—serves the purpose of incorporating (albeit instrumentally) liberal economic norms within the ideology of the party. Even within a neo-mercantilist mindset, Chinese acceptance of globalization as part of the context of decision making has real-world consequences. In this case, China abandoned the pursuit of a “comprehensive industrial system” for a combination of strategic choices informed by comparative advantage, which favors “industrial champions” (in both scale and technology) and strategic sectors. Within this reallocation of strategic goals, the notion of international competitiveness based on comparative advantage has assimilated the values of international competitiveness within a rules-based multilateral system. The latter is no longer seen to contradict national strategic goals but instead to complement them.

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In sum, therefore, Chinese “neoliberalism” accepts all the values of “neoliberalism” but filters these through a construct based on neomercantilist, national economic goal setting, and international competition with the nation-state as the fundamental unit of action. The Chinese, particularly their leaders, have integrated liberal economic thinking with the notion of great power competition. China recognizes the constraining effect of globalization on national sovereignty, but it sees the state as the strategic focus of policy making, whereby it is possible to counteract the corrosive effects of globalization and multilateralism on national sovereignty. Although many Chinese analysts remain suspicious of the WTO and globalization, they see both as indispensable to China’s national goals. On the one hand, globalization is seen as a “stage” in the growth of global production forces, but on the other hand, “Capitalist globalization is a manifestation of the global expansion of Western new economic colonialism. The globalization for which the West hopes is at its base a ‘liquidation’ of the socialist movement and the movement for national democracy on a global scale. It is a further ‘peaceful assault’ to harm the Third World.”50 Still other authors attempt to refute the notion that globalization implies the “retreat” of sovereignty. Sovereignty is decidedly not the outcome of closing oneself off and turning inward. It may only be expressed through mutual relations. For those states that completely close themselves off to the outside world, and stubbornly refuse to engage with others, sovereignty does not exist, or rather, it is meaningless. In so far as we speak of the system of sovereign states and not of a single state, sovereignty is the product of a market economy. So long as two states participate in mutual, non random relations, especially economic relations, they must take on mutual obligations at least at some elementary level and engage in mutual self-restraint. The relationships among sovereigns here is just a projection of the relationship of equal exchange among commodity producers. From the perspective that globalization is just a new stage in marketization, globalization and sovereignty are far from contradictory, but form part of a natural process of mutual adaptation.51

The institutional and normative evolution of the Chinese state and society conforms to the premise of an “elective affinity” between capitalism and law. Even strong partisans of infant industry protection and a comprehensive strategy of national economic growth insist on proceeding in line with the rules of the WTO and establishing an

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appropriate legal framework.52 There is evidence that the line between instrumental adoption of WTO norms and cognitive acceptance of these norms has already become blurred. When the Standing Committee of the Shanghai People’s Congress met to discuss revisions to the temporary regulations of one of the city’s high-tech development zones (to bring these into conformity with national treatment provisions), a delegate introduced a motion to repeal the provisions altogether.53 Express linkage was made between WTO accession, streamlining regulations, and democratic participation. It would be foolhardy to assume that WTO accession is the “source” of the new norms or that WTO accession in itself is the major constraint—as a sanctioning body—enforcing Chinese conformity with universal norms. Instead, accession serves as an example of fairness, a norm of universality in itself, legitimating procedural fairness, transparency, generality, and accountability. It serves the function of legitimation even more than it serves as institutional sanction. Following China’s WTO accession, an explosion of books about the impact of WTO membership were published. A number of these books focused on the impact of WTO membership on China’s governance, and all tended to approve of the direction of this impact, focusing on, among others, changes from a government of “administrative approvals” to a “regulatory” government; from an “omnipotent” government to a “limited” government; from a “controlling” government to a “service-oriented” government; from a “closed-door” government to a “transparent” government; and from a “commandstyle” government to a “quality branded” (pinpai) government. The characteristics of a quality branded government are: one, a regulatory government, a rule-of-law government, a lawful administration, and administration in accordance with the law; two, a highly efficient, fair, open, and clean government; three, a government of good repute, that is, a quality branded government is a responsible government that maintains a high reputation, whose words are trusted and whose actions have consequences, a government whose decrees are carried through; four, a government whose micro-level policies are stable, longterm and predictable, that do not change with personnel; five, a government that establishes a favourable socioeconomic environment for various market objectives; and six, a quality branded government coheres with a specific historical culture.54

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As if to counter the objection that these objectives are utopian ends in themselves, the author of this quotation concludes that quality government is a means to enhance local, international, and regional competitiveness and to attract greater investment.55 Other authors emphasize the challenges to China’s governance, such as the restructuring of SOEs and the establishment of a comprehensive social security system.56 The literature is unanimous, however, in its emphasis on the rule of law. One such volume compares the legislative impact of WTO accession to the crash program to modernize and Westernize China’s legal system at the end of the Qing Dynasty a century ago. The difference between that effort, which was aimed at regaining China’s sovereignty and ending extraterritorial privilege, and the current reforms was that “this time we have voluntarily chosen to link rails with the international system, we have exercised a voluntary strategic choice for the sake of national prosperity, wealth and strength [fuqiang], and civilization.”57 WTO accession places much more stress on legislative activity, as a means of both establishing a regulatory framework consistent with WTO rules and reinforcing central control over the legal regime for trade-related activities. Here, the “elective affinity” is not only between the markets and law but also between the interests of the central government and the international community. It is also important to recognize that the WTO impacts the rule of law in China, not just at the level of legislation but also at the level of procedure. For example, WTO compliance explicitly forbids local protectionism. In addition to local authorities being forbidden to enact local discriminatory regulations, any secret enactment of local rules is explicitly outlawed and rendered legally unenforceable.58 This helps to enforce international law and to create a national market while simultaneously limiting the ways in which local authorities exercise official discretion. It represents for the Chinese central government a functional equivalent of the trade and commerce clause of the U.S. Constitution. At the normative level, as we are beginning to see, it has come to represent for some people something similar to the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. Needless to say, the actual legal impact, not to mention the behavioral impact, of WTO accession is much more modest. Still, in serving the interests of centralization, of “nationalizing” legislative power, WTO accession parallels, rather than counters, the interests of nationalists.59 China was required to introduce judicial review of administrative actions as a part of accession, and beyond that China’s involvement in the dispute resolution tribunals of the WTO places an additional layer of

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scrutiny over its domestic legal procedures. This, for the first time, will integrate the Chinese legal structure into a supranational judicial procedure.60 With respect to trade-related law, China will be forced to confront what it has steadfastly resisted in regard to human rights— the evaluation of domestic procedure in light of externally mandated norms. This is not wholly unprecedented, nor is it a new departure in the evolution of China’s reforms.61 Chinese legal norms (in distressing distinction to Chinese legal practice) have been evolving and adapting to the norms common in Western legal practice. 62 During a seminar that he headed at the Central Party School of the CPC, Long stated that: “The market system is a rule-of-law system.”63 He then went on to comment: “The first obligation and responsibility that we will have after we join the WTO will be to obey the rules.”64 That a “learning curve” has indeed been established with respect to WTO norms suggests that contrary to the arguments advanced by realist and neoliberal regime theorists, interests are not exogenously given; rather, they are informed by cognitive processes connected with norm giving and norm reproduction.65 This tends to support the position of social-constructivists, or “cognitivists.” Although it would be an exaggeration to claim that China or the Chinese have abandoned the pursuit of exclusive status and the protection of their interests by reference to exclusive claims, it is nonetheless true that the context of WTO accession has shaped the environment where Chinese officials and the Chinese public alike have come to perceive important interests as best protected through a system of generally applicable and impartially administered rules. Long has said it himself: … in order for us to mitigate, or even eliminate the ‘China threat’ theory and to create, for the benefit of our own country, a benign international environment, we must, in our international dealings, pledge to follow international rules and do things in accordance with these international rules and regulations, and become a responsible member of the international community.66

Whereas innumerable examples exist of earnest professions of sincerity in the pursuit of impartiality and transparency in Chinese official pronouncements to the outside world,67 examples also exist of Chinese citizens publicly complaining about practices incompatible with the norms embodied in the WTO (not necessarily the rules themselves).68 Again, Long himself draws an analogy between Chinese legal performance and the Olympic Games. He argues that just as China does

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not claim special rules for Chinese basketball players because of the different average height of the Chinese, it should not claim exceptions as part of the competition in international trade.69 Like all his countrymen, however, Long does not conceal China’s competitive purpose. He makes another analogy, this time between China as a deputy section head in a bureau and the EU and Japan as deputy bureau heads and the United States as the bureau chief. Viewing the world as a hierarchy, Long argues in typical Chinese fashion that the deputy section chief in a bureau should not go around touting his ambition to be the bureau chief because that would arouse suspicion among his senior colleagues. Instead, he should pledge to live according to the existing framework, even if his ambition is to become the bureau chief.70 Functionally, the convergence of rules and the homogenous status of corporate legal persons exerts a pressure to adopt uniform and familiar rules to deal with analogous disputes. Behind similarity of functions, however, lurks an adaptive conformity to norms. Those who question China’s normative commitment to “national treatment” would do well to remember that the very existence of corporate legal persons is a normative fiction of relatively recent vintage.71 This concept has given rise to a host of norms and legal practices to deal with this legal personality, which through “national treatment” is now formally entrenched in China’s accession to the WTO. This does not mean that China is without recourse to shaping the interactions that result. Rather, as China’s own analysts have repeated pointed out, it requires China to take countermeasures similar in form to those taken by other states. The literature on China’s WTO accession is replete with examples: Japan, South Korea, Mexico, Chile, Brazil, and so forth.72 In short, although the goals of accession are China’s own, the tools that China uses to construct both the “hinges” of engagement and the “latches” on the open door are now largely constructed out of internationalized, and substantially Westernized, materials.73 By no means has the Chinese state abandoned its quest for recognition as a leading member of the international community or its fundamental posture as “competitor” with the West. However, WTO accession forms one aspect of a shifting field of competition. For example, to fight the punitive antidumping duties imposed by Washington on Chinese steel exports, was taken to the WTO dispute settlement tribunal in Geneva.74 In the new game of trade diplomacy, China need not engage in issue-linked bilateral diplomacy; instead, it engaged in issuespecific litigation according to universal norms before an international tribunal. In this “struggle” China implicitly recognizes the validity of

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universal norms originating outside its borders. China and the Chinese will increasingly come to see their interests as embedded within a structure of universal rules of fair adjudication rather than claims of exceptional status.

THE COMPLIANCE ISSUE So much of the international debate over China’s accession to the WTO has focused on the strength of China’s commitments to WTO principles and the need to ensure safeguards against willful defiance or negligent compliance with WTO rules.75 Obviously, economic actors are interested in results. Yet practically every trading nation tries to manipulate the rules to its own national advantage. China’s accession to the WTO is exceptional. According to the Accession Protocol, China had to agree, under Article 18, to a transitional review mechanism (TRM) under which it had to answer questions from existing WTO members about its compliance.76 Some critics, among them Claude Barfield, argued that China’s accession should be made conditional and provisional, with China actively compelled to demonstrate its compliance before admission to full membership.77 China strongly resisted any suggestion of an invidious status in membership. However, the weakness of the TRM to monitor and enforce strict compliance prompted the United States to set up its own domestic monitoring mechanisms.78 Under this unilateral mechanism, the United States monitors the protection of U.S. interests and a broad array of China’s governance practices, from trade policy to human rights. Initial U.S. reports about China’s compliance do testify to substantial progress.79 The specific issues of transparency and the rule of law are complicated, of course, by the persistent contours of China’s Leninist regime. The challenge for China is to provide a set of rules, norms, and laws in the area of trade-related market activities that are, in important respects, contradictory to the closed network of the nomenklatura personnel network, which depends for its effectiveness on secrecy and discretion. In effect, WTO accession for China means the institutionalization of two opposing logics for the governance of personnel and matters. A dilemma arises with respect to legal persons (corporations) and national treatment. One should expect tension between both approaches to governance—in terms of maintaining a regime of discretion and secrecy about personnel and of meeting the norms of

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transparency and national treatment in the commercial field. Moreover, we are already witnessing efforts to align personnel management with the norms of transparency and competitiveness. Even within the party, rules are being published, and competitive personnel management and merit criteria are encouraged. The focus on effective compliance misses the importance that normative compliance has for the future of governance in China and for China’s relations with the world. Richard Baum and Alexei Shevchenko are skeptical about the extent to which China’s integration into the global political economy can have a substantial effect on China’s conformity with the interests of the United States and the West. 80 I share their skepticism. China’s integration into the global political economy is, for China’s leaders and the bulk of China’s articulate population, about improvement in the terms of competition, not about conformity with Western values and, still less, with those of the U.S. leadership. China’s official performance following WTO accession suggests that it will take the narrowest possible interpretation of its accountability to the WTO and to other members.81 Just as we saw with respect to the rule of law and human rights, China’s response to participation in the international regime is bifurcated. On the one hand, China is increasingly open to liberal norms in the context of its transition to a market economy. On the other, China is extremely resistant both to making itself accountable to external powers to making available any platform that might promote critical comparisons of China’s performance. Yet Western response to China suggests an overwhelming desire to place China on such a platform. Indeed, much of the reaction to China’s efforts at WTO accession is highly reminiscent of Western responses to China’s initial entry into the community of sovereign nations and the reflexive desire to judge China’s status according to standards of performance set by the West. However, unlike the situation a century ago, where China was limited to making normative appeals on the basis of justice and fairness, the Chinese state is today far more capable of defending its material interests by nonnormative means. It is precisely the growing convergence between China’s material interests and its participation in global regimes that today encourages greater normative conformity. Without changing China’s national interest, the process of engaging an international regime is subtly but substantially changing Chinese governance and, through this, China’s identity.

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CHAPTER 6

TAIWAN AND THE C ONCEPT OF T ERRITORIAL S OVEREIGNTY

L. Cavaré rappelle que “c’est en Europe que la frontière s’est chargée de sens et de valeur.” Dans les autres parties du monde, en Asie particulièrement, il semble que l’espace et la frontière soient affectés d’une autre valeur, bien qu’aujourd’hui la notion européenne de frontière soit consacrée par le droit internationale.1 Valérie de Poulpiquet

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raditionally, territorial control by boundary delineation and administrative jurisdiction was an ancient tool of the Confucian bureaucracy both within China and between China and foreign states. Yet the concept of state territoriality (i.e., rule over spaces defined by geometric grids) was not part of the traditional Confucianliterati cognitive map. Based on the investiture-tributary strategy in the Confucian world order, the Chinese demanded loyalty to the person of the Chinese emperor, his representatives, and most of all to the hierarchical system of relationships patterned on the family. This

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strategy of international relations or international diplomacy symbolized the imperial-bureaucratic establishment. In other words, the Chinese emperors and their officials ruled men, not space, and loyalty was to individuals, to the family, and to the system—not to the area of the state. The area of rule was defined by evidence of human residence and use. Areas or places lacking in human use and organization were regarded as being on the margin, in the frontier and wilderness, or simply off the map as zones beyond civilization.2 Modern Chinese nationalism is built on the trauma of national dismemberment—on the idea of China “carved up like a melon.” Traumatic fears of “national extinction” (wang guo) followed the severing of the former tributary states of Vietnam and Korea. These events ended the era of “culturalism” in which China was the center of a sphere of civilization and hastened the Middle Kingdom’s turn toward modern territorial nationalism.3 Lu Xun, the father of modern Chinese literature, recalled his national feelings being awakened during his studies in Japan in the early 1900s, when his hosts, upon watching newsreels of Japanese victories in the Russo-Japanese War, appeared to be completely indifferent to the fact that the war was fought over Chinese territory.

TAIWAN IN THE CHINESE TERRITORIAL IMAGINATION Modern Chinese men and women encounter a problem when they desire recognition of the territorial frontier of the “conceptual” Chinese state from people outside the epistemic community of those who share the ideal of tianxia (all-under heaven). The moral community encompassing the Chinese state did not precisely coincide with its demographic and territorial boundaries. On the one hand, the process of establishing recognized borders parallels and establishes China’s entry into the community of sovereign nations. On the other hand, this has engendered at times a violent refusal to negotiate the terms of China’s identity. Taiwan, historically located on the frontier, only became a regular province of the empire in 1885. Even Mao Zedong was prepared at one point to countenance the emergence of an independent Taiwan along the lines of an independent Korea.4 Ironically, it was Chiang Kai-shek’s retreat to the island redoubt of a “free China” in 1949 that placed the island squarely within the territorial imaginary of the Chinese state. The process of democratization since 1986 has provided space for the expression of a separate Taiwanese identity. The

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island population has expressed, in varying degrees and with varying nuances, its dissent from inclusion in the moral community of China, and Taiwanese leaders have proposed, through various formulae, a concept of a territorial frontier that bisects the Taiwan Strait.5 The effect of these sentiments and proposal is not only to disturb the sense of the moral community of contemporary Chinese nationalism, but to introduce into it a concept of a frontier that assimilates Taiwan’s relationship to the central Chinese state (Zhongguo) with the foreign policy goal of China’s real or potential enemies—the United States and Japan—to constraint the mainland. If, as Alastair Iain Johnston claims, China has had a disproportionate tendency to engage in armed conflict with its neighbors, the evidence does not show a marked appetite for territorial expansion. Today, almost none of China’s land frontier is in dispute. Moreover, China’s most serious territorial dispute, and what was traditionally China’s most sensitive frontier—with the former Soviet Union—has been amicably settled on terms generally regarded as fair. Evidence of Chinese territorial ambitions is lacking. The only remaining unsettled stretch of China’s land border is with India, and even here the principles governing the eventual settlement are no longer a subject of controversy. In contrast, the most significant unresolved disputes involve China’s maritime frontier, and comprise the islands of the South China Sea, Taiwan and its dependent islands, and the Diaoyutai chain (north of Taiwan and south of the Ryukyu Islands) that Japan jointly claims and refers to as the Senkaku Islands. Although the issue of Taiwan is by far the most important militarized territorial dispute involving China, both the issue of the South China Sea and the Diaoyutai/Senkaku Islands is largely in abeyance. China has not relinquished its claims, but does not aggressively pursue them. A recent spate of oil and gas prospecting has heated up the question of the Sino-Japanese maritime frontier in the context of strained Sino-Japanese relations.6 If the Soviet precedent is anything to go by, China selectively heats up territorial disputes in the context of other political disputes. Once political relations warm, China’s territorial claims moderate accordingly. The Taiwan issue is a very special case of irredentism. Taiwan was ceded to Japan in 1895 under the Treaty of Shimonoseki, which ended the Sino-Japanese War. Under the Cairo Declaration of 1943 and the terms of the Potsdam Declaration with respect to the disposition of Japanese colonial possessions at the conclusion of the Pacific War, Taiwan was returned to the Republic of China (ROC) in 1945. Following its defeat on the mainland in 1949, the Nationalist Kuomintang

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Party (KMT) occupied Taiwan as a secure base in the civil war against the Chinese Communists, and until the early 1990s, the Taipei government laid claim to all of China. In effect, the claim of the People’s Republic of China (PRC) to Taiwan was a bid to complete the pacification and reunification of China.7 However, as Taiwanese politics became more open and democratic, pro-independence forces came to the fore. The PRC claims not only the island territory of Taiwan and its dependencies but also the allegiance of its people, whom it regards as unambiguously Chinese.

WHOSE TAIWAN? This dispute over sovereignty has moved from one of who is the legitimate claimant to the sovereignty of China to who may legitimately claim the sovereignty of Taiwan. Complicating the entire picture is the special relationship of the United States to Taiwan. At the beginning of the Korean War, President Harry Truman dispatched the Seventh Fleet to the Taiwan Strait to prevent the conquest of Taiwan by the Chinese communists. Subsequently, the United States signed a defense treaty with the ROC on Taiwan and stationed troops there. The United States withdrew their troops and canceled the defense treaty with Taiwan after the normalization of relations between the United States and the PRC in December 1978. However, the United States has retained a unilateral statutory obligation to Taiwan under the Taiwan Relations Act (TRA). Underlying the dispute over the sovereignty of Taiwan are very different understandings of sovereignty. The PRC claims Taiwan as an inalienable part of Chinese territory illegitimately taken by Imperial Japan in 1895. The Japanese interlude simply underlines its case that Taiwan is part of China. Moreover, nationalists on the mainland insist that but for U.S. intervention, Taiwan would have returned to the embrace of the motherland as early as 1950. In turn, Taiwanese nationalists point out that Taiwan has never been part of the PRC, and excepting four turbulent years after 1945, during which a violent island-wide uprising took place against the Nationalists starting in February 28, 1947, Taiwan has not been “part of China” for more than a century. The Taiwanese claim the right of self-determination under the claim of sovereignty of the people. On the one hand, we have a claim of territorial integrity and foreign interference in China’s internal affairs, and on the other hand, we have a

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claim of popular sovereignty (combined with a case for the continuous sovereignty of the ROC since 1912). The PRC offers to meet the concerns of Taiwanese for self-government by recourse to the doctrine of “one country, two systems.” This would give Taiwan a measure of autonomy comparable or superior to that given to Hong Kong and Macao as Special Administrative Regions of China under Article 61 of the PRC Constitution. Apart from questions of credibility and good faith, successive Taiwanese governments— whether from the KMT Nationalists or the Democratic Progressive Party (DPP), the traditional party of Taiwan independence—insist that the ROC is already an independent sovereign state and must be recognized and dealt with as such. PRC spokespersons normally refuse to address directly Taiwanese claims to self-determination and sovereignty of the people. On the rare occasions that references are made, present-day PRC spokespersons insist on the wishes of the 1.3 billion people of China, of which the people of Taiwan constitute a mere 23 million. Most mainland Chinese, even those who live in comparative freedom outside China and may have actually visited Taiwan, have little understanding, let alone sympathy, for Taiwan independence. Identity issues for most Chinese are determined by the relationship with the West and the continuing role the United States plays in cross-strait politics. The Chinese suspect that the United States wishes to keep Taiwan within its sphere of influence or as a protectorate for strategic purposes. They view U.S. policy as directed toward maintaining Taiwan as an “unsinkable aircraft carrier” in the containment of China. In this context, it is easy to view partisans of Taiwan independence as mere proxies for U.S. designs, as traitors to the cause of the greatness of China rather than people with a simple wish to affirm themselves and their own history. These suspicions are reinforced by efforts of people like Lee Teng-hui who seek favor with Japan—a country whose militaristic expansion on the Chinese mainland has yet to be forgotten or forgiven. The urge to assimilate the people of Taiwan with the Chinese ambition of one China overwhelms any effort at empathetic understanding of Taiwanese as different. When confronted by the difference, mainlanders fall back on the language of betrayal and treason. The ROC on Taiwan reaffirms its independence and sovereignty and persistently rejects any suggestion that it forms a (subordinate) part of China. The PRC for its part insists that “there is only one China in the world” and Beijing is its capital. Although insistent that the issue of Taiwan is an internal affair of China, Beijing does offer considerable autonomy to Taiwan under the rubric of the “one country, two systems”

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formula. Taipei has explicitly rejected this formula and insists on its independence and sovereignty and seeks parity with the Beijing government in a “special state to state relationship.”8 Beijing’s position is that it is the only legal successor state to the ROC, which recovered Taiwan pursuant to the defeat of Imperial Japan in World War II in accordance with the Cairo Declaration of 1943.9 China’s own reading of international law sees no difference between sovereignty in international law and sovereignty in domestic law. As the recognized government of China, ipso facto it is granted exclusive legislative authority for all of China, including Taiwan. That this vision of reality in no way corresponds to the facts does not deter Beijing; rather it reinforces the urgency of its claim. Taiwan insists that the de facto situation is one of divided sovereignty and seeks recognition of this fact from the United Nations.10 Taipei now chooses to ignore the uncomfortable historical fact that the ROC was the original party that insisted on the undivided sovereignty of China, and that the ROC persisted, with the support of the United States, in denying the PRC the China seat at the United Nations for twenty-one years. Today, the DPP administration of Chen Shuibian has repudiated the legal status of the Cairo Declaration of 1943 and has chosen instead to use the San Francisco Peace Treaty of 1951 as the basis of its argument that Taiwan’s sovereignty is at best “unsettled” in international law. In February 1972, when President Richard Nixon and Premier Zhou Enlai signed the Shanghai communiqué, the following statement was factually correct: “The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain that there is but one China and that Taiwan is part of China.”11 The “one-China doctrine” has all but been institutionalized in international politics and is now a fait accompli.12 At present, a model does not exist for the resolution of this dispute and the protection of domestic Taiwanese rights short of recourse to sovereignty and self-determination, something the international community appears to have ruled out already. Even the residents of Taiwan who believe in the concept of one China are reluctant to exchange their autonomy, backed up by hard-won democratic freedoms and the rule of law, for the vague promises of “one country, two systems” as advocated by Beijing.13 To accept Beijing’s formula means to renounce their own sovereignty under the rubric of “the Republic of China” and to unilaterally relinquish the principle of self-determination for the people of Taiwan. The PRC Constitution provides no fair mechanism to arbitrate disputes between the national center and the provinces, let alone between Beijing and any “Special Administrative Region.” In

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any meaningful legal sense, to relinquish the claim of sovereignty means to relinquish any guarantees of autonomy, of democracy, and of the rule of law. Beijing is in no position to guarantee what it itself does not practice. Hence, the official position adopted when the KMT still formed the government in the “unification guidelines” of 1991 is that unification will ensue after the democratic transformation of China, and that until such a point ,the governments on either side of the Taiwan Strait must be regarded as political equals. In February 2006 the DPP government of Chen Shuibian officially terminated those guidelines, largely as an effort to deny that unification was a common aspiration of Taiwanese.

“ONE COUNTRY, TWO SYSTEMS”: TAIWAN AND HONG KONG In the case of Hong Kong’s return to the mainland, the most important aspect of the prolonged process for the handover—set out in the Joint Declaration of the United Kingdom (UK) and the PRC—was the safeguarding of the rule of law in Hong Kong. To that end, numerous provisions were negotiated and put in place in the Basic Law that now forms the framework of Hong Kong’s governance. Although as a matter of law the PRC remains a unitary state, the Basic Law and the Final Court of Appeal established in the Hong Kong Special Administrative Area institutionalize practical features designed to minimize direct interference in Hong Kong’s administration and legal affairs. Moreover, the Joint Declaration is an international agreement that binds the PRC government to have the provisions of the Basic Law stand in accord with the provisions of the International Covenant on Civil and Political Rights, which is therefore incorporated into Hong Kong law. Beijing’s denial of any form of sovereignty to Taiwan is explicitly premised to preempt any role to international bodies in the determination of Taiwan’s status or its political future. This ironclad insistence on treating Taiwan as an internal matter has included a refusal to contemplate any international role for the establishment of confidence-building measures across the Taiwan Strait. In this respect, while the promise of autonomy to Taiwan under the formula of “one country, two systems” is broader than that promised and actually granted to Hong Kong, there is no treaty or any other measure of international law that compels Beijing to uphold such a promise.

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The United States nevertheless unilaterally declared its own interest in the Taiwan problem in the Shanghai communiqué: “The United States Government does not challenge [the position that there is only ‘one China’]. It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves.” Yet the unanimous adoption by the U.S. Congress of the TRA effectively makes the United States a unilateral guarantor of the existing status quo on Taiwan for as long as the people of Taiwan desire it. Beijing rightly regards this act as a derogation of its own sovereign rights under the rubric of a “oneChina” policy. Nevertheless, it is powerless to change reality short of provoking U.S. armed intervention in its own affairs—something that almost occurred in the war game and missile crisis of the summer of 1995 and in March 1996. Here is yet another example of a “civil conflict” (by virtue of the international community’s support, including the United States, of the “one-China” concept) that is already a latent international conflict in which a model for diplomatic intervention does not exist. By contrast, there is at least a treaty framework for the rights of the residents of Hong Kong under the 1984 Sino-British Joint Declaration.14 This framework arguably continues to underpin the rights and autonomy of Hong Kong residents despite the change in sovereignty. One of the features of this joint declaration and the subsequent negotiations (regardless of the controversy surrounding the last UK governor of Hong Kong) is the attempt to establish a meaningful framework for a continued rule-of-law regime for Hong Kong. The problem, however, was that in negotiating the handover of Hong Kong, Beijing carefully sought to reassure Hong Kong residents that their system of law would not change for at least fifty years. The entire process envisioned guarantees for the continuation of the existing form of the rule of law for Hong Kong and never contemplated the prospect that the underlying weakness of the formula of “one country, two systems” was the absence of any framework or even reference to the rule of law in the sovereign—China. The circumstances of the Hong Kong reversion are very particular to the reversion of a colony. Nevertheless, contrasting this with the Taiwan case, which Beijing claims will be resolved similarly, foregrounds the role of the international community in establishing the parameters of the rule of law. By insisting on exclusive sovereignty and rejecting any international role for the examination of Chinese standards of law and human rights, Beijing’s insistence on undivided sovereignty effectively trumps its offer of autonomy and renders that offer legally meaningless, however sincerely intended. The Chinese dilemma

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is how to engage internationally over what it has chosen to preempt domestically. The Chinese state cannot engage in one arena what it has foreclosed in another. The stratagems employed to shield the regime from serious discussion about the basis of its own sovereignty prevent Beijing from engaging the people and the government of Taiwan over the kinds of legal guarantees that would be required for Taiwan to relinquish its claims as a sovereign state. Beijing claims that the paramount role of the Communist Party of China (CPC) in exercising sovereignty on behalf of the Chinese people is a question that has been settled by history.15 Assertive nationalism concerning the sovereign sphere is directed equally at foreign and domestic audiences. Beijing’s strategy of dealing with Taiwan is as much directed toward a rhetorical position of “one China” as it is toward pressuring Taiwanese overseas activities. This strategy employs force to control the meaning of Chinese sovereignty internationally and to repress alternative interpretations.

POPULAR SOVEREIGNTY AND TAIWAN’S ASPIRATIONS Conversely, Taiwan’s claims to sovereignty are today primarily maintained through the assertion of popular sovereignty and the attempt to translate this claim into the international arena. In this context, Taiwanese President Lee Teng-hui in his inaugural address as the first directly elected president of the ROC in 1996 chose to pledge not to declare independence from China, while in the same breath he pledged allegiance to the 21.3 million sovereign people of Taiwan. This was a rather significant and backhanded approach to the issue of “one China.” Lee carefully chose to describe Taiwan as a model for greater China rather than as its component part. Again, this left considerable ambiguity about the relationship of the model to the whole. Lee’s subsequent evolution through the “two-state” theory and mentorship of the Taiwan Solidarity Union shows that his true allegiance is to promote the identity of the Taiwanese. Many Taiwanese have found in Western liberalism, as well as in Western conceptions of popular sovereignty and democracy, the ideological tools to sustain a sense of separate political identity. As far as can be discovered from the initial practice of democratic sovereignty on Taiwan, the internal establishment of sovereignty as well as the practice of internal democracy in Taiwan have already

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The Empire’s New Clothes / Jeremy T. Paltiel assumed a certain scale; whether in the aspects of the political system, the legal system, or the authority of government, Taiwan has already crossed the threshold of democratic sovereignty. However, at the level of building and implementing a society of the rule of law, there is still room for improvement, in order to provide channels for popular participation in the making of various policies. In the external aspects of sovereignty, as far as treatment and status of a state internationally, our country has no means to assume a complete individual persona in international law, and moreover faces two problems of structural restrictions and policy implementation in cross-Straits relations and practical diplomacy. Nevertheless, these do not damage us as an independent and autonomous subject of international law and our status as a state. For this reason, having passed the important test of attaining democratic sovereignty, the ROC on Taiwan is not only a sovereign state, but has already become a democratic sovereign country.16

In this instance, democracy is not just a value in its own right; it also has become a means to establish the sovereignty of the ROC, first in the eyes of its own citizens and then in the eyes of the world. Christopher Hughes has convincingly charted the relationship between Taiwan’s democratization and the evolution of Taiwan’s emergent identity as separate from China.17 The logic of majoritarian politics promoted the marginalization of the KMT as the representative of minority mainlander interests. From 1996 on, every election has shown that the assertion of a Taiwan identity is the surest means of ensuring electoral mobilization and electoral success. The challenge for China is to build an interpretive community around its vision of sovereignty. The CPC has constructed sovereignty along radically exclusive grounds. The elements of Beijing’s strategy are twofold: it requires all states to acknowledge PRC claims to sovereignty over Taiwan as a condition for the establishment of diplomatic relations, and it relies on a narrow reading of the international law of sovereignty to demolish Taiwanese claims to be a sovereign entity. Its posture is calculated to deny any possible role for external powers in the Taiwan question and to obviate any need for Beijing to negotiate with the government in Taipei over the terms of its sovereignty. It is possible, even likely, that this conception of sovereignty is constructed around the norm of domestic sovereignty in China, which is itself exclusive and exclusionary. The CPC has set itself up as the exclusive interpreter of the people’s interests, and having monopolized power within the domestic state, it interprets the

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same kind of monopoly of power in the exercise of sovereignty in international relations.

SOVEREIGNTY AGAINST “SOVEREIGNTY” At one level, Beijing’s position is an expression of the notion that national rights take precedence over individual rights, with the “recovery” of Taiwan interpreted as extinguishing the final legacy of imperialism in determining the contours of Chinese sovereignty. At another level, the Taiwan question instantiates the difficulties posed by the refusal of the Communist regime as the titleholder to the Chinese state to engage with Chinese society over the terms of (domestic) sovereignty. Although it is possible to imagine an acceptable outcome from the current impasse, any workable or acceptable solution has to be negotiated by both sides. Here, the problem is mutual recognition of equal status. So long as status is defined in terms of equal sovereignty, Beijing rejects this out of hand. Taipei, for its part, will not negotiate on the basis of a status of a local government. While insisting on the “oneChina” principle, Beijing has shown some semantic flexibility in the interpretation of whether “one China” refers exclusively to the PRC. The government in Beijing explains that “There is only one China in the world and both Taiwan and the Mainland belong to one China.” This semantic space, however, provides no guarantees for the status of the negotiating partner from the Taiwan side and, moreover, predetermines the outcome of the negotiations. The key problem from any Taiwanese perspective is that negotiations based on Beijing’s formula inevitably involve the acceptance of something less than the status quo. A successful initiative may require the separation of the domestic and international aspects of sovereignty and the acceptance of the broadest possible interpretation of the “one-China” principle consistent with political negotiations. Chen has considered the notion of “one future China” as a possible scenario. The question of whether Taiwan’s political institutions are compromised by recognition of the “one-China” principle has simply never been tested, and for the sake of those Taiwanese who are ambivalent on questions of fundamental national identity, and who equate a preference for the status quo with the desire to live under their own laws and their own democratic political institutions free from outside interference, this question deserves to be engaged.

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ONE CHINA, DIVIDED SOVEREIGNTY? So long as the “one-China” principle can be unilaterally defined as “the sovereignty of the People’s Republic of China with its capital in Beijing,” then acceptance of this principle means that the people of Taiwan permanently lose any right or power to determine their present and future political destiny. Here, the problem is not the slogan but its specific legal meaning, a point on which Beijing has been ambiguous to the point of inconsistency.18 Integration need not be the PRC. The narrower interpretation forces Taiwan to accept the sovereignty of the PRC and govern itself under Article 31 of the PRC Constitution. This appears to be the authoritative statement of “one China” in the “One China” White Paper. Arguably this provides room within which Taipei’s negotiators can maneuver. Correspondingly, the slogan of “one country, two systems” and the phrase a “high degree of autonomy” are both patronizing in their benevolence, but more disturbingly, they are devoid of any substantive legal content. Again, however, Beijing has been painstaking in its efforts to arrange “equality” of status in negotiations (as distinct from outcomes). As for the legal content of “one country, two systems,” successive spokespersons for the PRC acknowledged that Taiwan requires a higher degree of autonomy than Hong Kong (including its own armed forces and complete autonomy in the choice of its own administration).Also on this basis, however, they acknowledge that the question of legal status is open to debate and interpretation as long as the legal structure of “one China” remains to be defined. “One China, two interpretations” is only a formula for negotiation as long as a willingness and commitment to narrow the space between the two interpretations is present. Beijing’s own document with respect to the “one China” problem makes clear that it sees the present situation as a continuation of the Chinese Civil War. In so doing, Beijing implicitly acknowledges its lack of current jurisdiction over Taiwan, and by its own offer of “one country, two systems,” it explicitly relinquishes administrative jurisdiction over Taiwan (for a minimum of fifty years) in return for recognition of a single Chinese sovereignty. For Taiwan, the stakes of negotiation turn on the relative merits of substantive legal autonomy in association with the PRC in contrast or in substitution for quasi-sovereignty under threat from the mainland. It is worth mentioning that regardless of the ideological coloration of mainland China, China’s legitimate security concerns would cause it to question any potential military alliance of an independent Taiwan.

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Consideration of any future strategic situation of Taiwan cannot be based on a return to the Cold War status quo in which the United States unilaterally guarantees the separate existence of a Taiwanese sovereign state and restrains China from invasion by risk of a world war. Even under the (for the present) unlikely scenario of a prosperous and democratic mainland, the acquiescence of China to the independence of a Taiwanese republic would likely be contingent on the restriction of Taiwan’s ability to form military alliances with outside powers. Taiwan’s sovereignty will be compromised under any scenario. Moreover, the United States will not support unconditionally Taiwan’s independence,19 and the relationship with the United States is not without cost to Taiwan.20 Arguably, Taiwan’s current relations with the United States form a trump in political negotiations with China. Beijing’s outright refusal to contemplate the internationalization of the Taiwan problem is belied by the existence of the TRA and the role of Taiwan in Sino-U.S. relations, both of which are a source of constant irritation to the PRC. Logically, only a political settlement acceptable to the people of Taiwan could bring about the repeal of the TRA, which gives the United States at least a passive role in terms of any potential settlement. This leverage, far from obviated by an entry into political negotiations, can be applied only inside them. No freely elected government of Taiwan will willingly tie the hands and restrict the mandate of its successors. As a democratic Taiwan evolves more and more in the direction of “de-sinification,” a nervous Washington worries that it may be drawn into a war, one not of its own choosing, in the defense of Taiwan. The outline for National Unification that the KMT put forward in 1991 foresees unification as a series of steps tied to the evolution of mainland society and government.21 In reality, the greatest stumbling block to a mutually acceptable modus vivendi bears on the most acute questions of constitutionalism, democracy, and the rule of law. Any hope of achieving a peaceful unification of all China as a single sovereign power will involve Beijing recognizing that sovereignty is a concept rooted in and supported by the rule of law, domestically and internationally. Two reasons form the basis for why Beijing prefers to deny that integration is a long-term process and to foreclose alternatives through recourse to the “one-China” formula. The first is to preclude the notion that the ROC constitutes a sovereign nation-state under international law. The second is to deflect questions that the CPC regime in Beijing does not want to raise about the basis of its own sovereignty. The farthest that Beijing is willing to concede is its current formula for

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one China, that is, “Taiwan and the mainland both belong to one China and China’s sovereignty and territorial integrity brook no division.”22 This formula refers to territory only and makes no reference to population or national identity. The challenge of a solution lies in reconciling the status quo with the principled aspirations of each government. On the one side, Beijing insists on the undivided sovereignty of China in relation to the rest of the world, yet it concedes complete autonomy to Taiwan, including the maintenance of separate armed forces and relinquishing the right to participate in and veto the appointment of senior officials in Taiwan’s administration (a right it insisted on with respect to Hong Kong and Macau).23On the other side, Taipei does not deny a special relationship to the mainland and does not foreclose future reunification under democratic auspices, yet it insists—this being the major difference—on its external sovereignty and independence. Taipei insists that it fulfils all the criteria of an independent and sovereign state and asserts the right to a seat at the United Nations.24 The practical problem for Taiwan is that sovereignty is not a given fact in international relations. There are two criteria for sovereignty. The first is “effectiveness,” and this criterion is indeed fulfilled in the case of the ROC. The other is “recognition,” and it is with this criterion that the ROC has been steadily losing ground. Taiwan’s former president Lee Teng-hui clearly harbors aspirations that Taiwan will achieve recognition from major Western powers, and he has placed considerable efforts into wooing the United States and Japan.25 These efforts, however, ultimately proved abortive. Moreover, a fair assessment of Lee’s time in office is that Taiwan lost diplomatic ground rather than gained it. That a dramatic reversal of Taiwan’s status in the eyes of Washington has occurred during George W. Bush’s administration has by no means resolved Taiwan’s diplomatic problems. President Bush pledged to do “whatever it takes” to help Taiwan defend itself.”26 Furthermore, he has not only reaffirmed U.S. obligations under the TRA on Chinese soil but also has initiated joint defense planning with the Taiwan military and granted a visa to Taiwan’s Defense Minister Tang Yiaw-ming to this end. Nevertheless, Bush has not renounced the Shanghai communiqué or the “one-China” principle, and he has not treated Taiwan relations on a state-to-state basis. Although Taiwan’s status has sharply improved in the eyes of Washington, it is still far from the status of an independent state, a status the United States has reiterated it “does not support.” Polls show that the Taiwanese overwhelmingly prefer the status quo to either alternative of independence or reunification. This shows that

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despite the insistence that Taiwan is a sovereign state, some ambiguity remains among the populace with respect to both the identity and the status of Taiwan. President Jiang Zemin has pointed out that a reunified China would not be necessarily called the “People’s Republic” of China. In this way he has intimated, without explicitly offering, a confederal solution to the problem of reunification. Moreover, a glance at the substantive elements of Beijing’s offer of autonomy under the “one country, two systems” formula suggests also a confederal arrangement. The significance lies in the legal implication of such an arrangement. Typically, a confederal arrangement implies combining sovereignties in a manner that preserves the underlying sovereignty of each unit, rather than pooling or merging sovereignty into a larger integrated unit. Therefore, the challenge is to work out modalities of negotiation that could reconcile Taipei’s insistence on “parity” with Beijing’s insistence on “one China” as the precondition for negotiations. Taiwan’s reluctance to compromise or negotiate over the question of sovereignty has both principled and instrumental components. The principled component is the desire to achieve recognition of a separate and distinct Taiwanese national identity, a desire both muted by PRC threats to Taiwanese separatism and, in some ways, abetted by the consolidation of a distinct identity (a process psychologists call “reaction formation”) engendered by the threat from the mainland. The instrumental side of sovereignty is the use of the doctrine of international sovereignty to safeguard the distinct democratic political institutions forged over the past two decades in Taiwan. From this perspective, the program contained in the “Outline for National Reunification,” which envisions unification as the outcome of a process of long-term economic and political convergence (with the mainland converging toward the Taiwan model), has a certain logic to it. Initially, mainland commentators mocked the presumptuousness of this program,27 and they questioned its sincerity given the reality of the asymmetries of the two sides. Ironically, when Chen Shuibian’s government moved to scrap these guidelines, together with the Unification Council that corresponded to them, Beijing reacted in fury. Taiwan’s institutions would obviously be more secure in a situation where the political entities on either side of the Taiwan Strait shared the same ideological values and the same commitment to the rule of law. Could the same legal result—effective jurisdictional autonomy—be achieved without the complete transformation of the mainland regime? The answer depends on the sincerity of Beijing’s commitment to the principle of unification without subordination. Legally, this would entail

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the translation of “one country, two systems” into an effective constitutional model for guaranteed autonomy rather than a political slogan under the vagaries of the PRC Constitution.28 The problem is more than the unacceptability of forming a “Special Administrative Region” under Article 31 of the PRC Constitution. The reality is that the initial promise contained in the “one country, two systems” formula was premised on the (misplaced) Marxist belief that the economic interests were the defining obstacle to unification and that what was required was some kind of territorial concession to capitalist economics. Once the terms are shifted more to legal-constitutional political norms, then the structure of Article 31, embedded as it is in the PRC Constitution, is plainly inadequate as a guarantee. Moreover, it alone will not suffice to fulfill Deng Xiaoping’s promise to the people of Taiwan, “Peaceful unification is not the Mainland swallowing up Taiwan.”29 The problem with the constitutional model of the PRC is that the PRC Constitution envisages a unitary state with no restrictions on the jurisdiction of the central government and the National People’s Congress (NPC). Article 31 simply devolves authority from the center. Without effective restrictions on the jurisdiction of the central government along confederal or, at least, federal lines consistent with an association of parallel rather than subordinate jurisdictions, there is no realistic formula for a negotiated unity. The only way to separate the areas of potential agreement (satisfaction with the status quo) and areas of irreconcilable difference (the zero-sum nature of international territorial sovereignty) would be to decouple the meaning of sovereignty as it applies externally from the concept of sovereignty with respect to the internal legislative jurisdiction. The de facto situation acknowledged implicitly by all states that maintain unofficial trade and communications with Taiwan is that the Taiwanese government (that is, the government of the ROC on Taiwan) does exercise effective legislative and regulatory authority over the territory of Taiwan, the Pescadores (Penghu), Kinmen, and Matsu. There is ample scope to expand the distinction between internal and external sovereignty in existing models of confederation and federalism. The question of whether the Taiwanese would be ready to trade a claim of sovereign independence for a legally entrenched and internationally recognized form of jurisdictional autonomy would presumably hinge on how robust the legal guarantees are. It remains for Beijing to recognize this fact without compromising its insistence on a single undivided China to the outside world. All Chinese are acutely sensitive to the suggestion that Chinese sovereignty may be divisible, and Chinese commentators regularly remark on the indivisibility of sovereignty as

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one of its fundamental attributes going back to the work of Jean Bodin. The PRC has now codified its conception of the status of Taiwan in the form of the “Anti Secession Law” passed by the Third Session of the Tenth NPC in March 14, 2005.30 It is difficult to assess how much resistance is generated by the hierarchic and centralized structure of the Leninist regime in Beijing. Perhaps it would be best to acknowledge this as a factor but also to consider other pressures to create a modern independent judicial and legal system pursuant to market reforms and international opening. Recognition that territorial integrity does not equate with hierarchic administrative subordination is gradually rising. Growing jurisdictional complexity may well give rise to a wider acceptance of the need to constitutionalize jurisdictional competencies within a single overarching legal structure. The difficulty will be to restrain nationalist emotionalism from technical-constitutional questions until the institutional basis for jurisdictional compromise is ripe. On the other hand, should the dispute over the Taiwan Strait remain salient, the desire of both sides to find a peaceful resolution to the problem may accelerate the move toward greater constitutional sophistication on the mainland. Obvious and important negotiations have to be pursued about how each side represents itself to the rest of the world. For comparison, in the case of the British Commonwealth a special language of “high Commissions” was used in the representation of one member of the Commonwealth with another—initially a recognition of the residual sovereignty still shared as members of a commonwealth. Similarly, it may be possible to vest the sovereignty of “one China” in a “Chinese Commonwealth.” The elegance of this next step would not only fulfill a major precondition set by Taipei for political negotiations but also would preempt the military provisions of the U.S. Taiwan Relations Act, a major preoccupation of Beijing. The aim of political negotiations should be twofold. First of all, the negotiations should establish the framework of ongoing relations across the Taiwan Strait and then, and only subsequently, target a common superstructure for “one China” (with its precise nomenclature pending the outcome of negotiations). Because of Beijing’s obvious impatience with Taipei’s official position—that practical problem solving must precede any potential political discussions (endorsed in various ways by all political contenders)—the situation is a nonstarter. Since the essence of the dispute is political, not practical, some effort at political consensus building must precede the resolution of practical problems through the Association for Relations across the Taiwan Strait (ARATS) and the Straits Exchange Foundation (SEF) process. Nevertheless, because

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both sides proclaim some degree of satisfaction with the existing status quo, and each side accuses the other of destabilizing it, a consensus definition of the “status quo” is a key to relaxing tensions. Such an understanding cannot avoid addressing the problem of international sovereignty, the problem that has continuously destabilized relations across the strait. One solution would be to reach a standstill agreement under the banner of a “one-China” principle. Under the terms of such an agreement, the embassies of each side could be considered “embassies of China,” with neither side seeking to represent the interests of the other without explicit instructions of the respective government. “Interest sections” could be established in the embassies of either side, pending any new constitutional arrangement. This solution would end the practice of “buying recognition”—destructive to the interests of both sides—and would give the “one-China” principle some institutional form while arguably opening up even greater space for Taiwan’s “practical diplomacy.” The stumbling block to such an arrangement is the aspiration for Taiwan independence, which is bound to provoke fierce opposition from its proponents. Yet the independence of Taiwan remains a minority and is devoid of practical hope in the current or foreseeable international context. More important for the people of Taiwan would be the recognition of two fundamental principles that their government could and should receive from Beijing and from the international community at large. The first is that the political institutions of Taiwan and its international status, as initiated by the people of Taiwan themselves, would not change, and the second is that international representation of the interests of the people of Taiwan should be under the direction of only the chosen representatives of the Taiwanese people. Self-determination comes at a price, but it is by no means clear that Taiwanese are willing to fight for it. Once the autonomy of their own political institutions is secure, with Taiwan gaining a space within which to develop its own identity, the Taiwanese may feel free to participate in the creation of a greater China, a process that in economic terms they are already deeply engaged in. The practical alternative to some sort of formal cross-strait commonwealth is not independence and sovereignty but rather questionable autonomy under threat, with very uncertain international support. Beijing may well balk at making political-constitutional concessions sufficient to make a common international sovereignty for China a practical reality. A resolution of the current tensions across the strait places the onus squarely on the authorities in Beijing to build a climate of trust in which the people of Taiwan would come to identify themselves more

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and more as Chinese. With respect to Chinese calculations on U.S. intervention, two conclusions are possible and plausible. The first is that the Chinese military strategy is aimed at preempting or at least neutralizing U.S. intervention in any potential strait crisis. The second alternative is that the Chinese strategy is predicated on engaging a U.S. military action with the aim of denying the Asian littoral to U.S. operations. The first line of thinking sees Sino-American confrontation as incidental to Chinese interest in Taiwan, whereas the second sees Taiwan as a key element in a Chinese pursuit of supremacy in the Western Pacific. It is impossible to assess Chinese attitudes toward the United States by removing Taiwan from the context, yet it is absolutely necessary to gauge the meaning of the pursuit of sovereignty over Taiwan as an indicator of China’s global ambitions. The present evidence does not indicate a desire for wider confrontation with the United States outside of the Taiwan theater. If that were the case, China might well make its priority in missile acquisition a first-strike nuclear capability rather than the multiplication of shortand medium-range conventional missiles aimed at Taiwan. Although there is little doubt that Chinese defense strategists see a role for Taiwan in what they regard as U.S. efforts to “contain” and constrain China’s rise, there is no compelling evidence that acquisition of Taiwan is intended as a stepping-stone of territorial expansion into the Pacific. The Chinese preference to view Taiwan in geopolitical terms is less a marker of China’s geopolitical ambitions than a symbol of the discomfort experienced by Chinese in dealing with the apparent ideological preference of Taiwanese for independence. By placing preconditions on negotiations and by preferring to view Taiwanese independence as a U.S.-inspired plot, the Chinese—especially the CPC—can continue to avoid negotiating the terms of Chinese identity. By foreclosing the issue of territorial boundaries and the question of who constitutes the Chinese, the Beijing regime avoids the inconvenient question of who legitimately represents the Chinese nation. It now seems likely that Beijing has successfully checkmated any bid for formal Taiwan independence for the foreseeable future.31 Washington has made it clear that it is not prepared to go to war for Taiwan if Taipei insists on declaring independence, while Chen Shuibian’s effort to pursue symbolic forms of independence failed to boost his popularity at home. By contrast, opposition initiatives to engage Beijing have proved popular. Chen’s effort to terminate the National Unification Council and its concomitant guidelines suffered rebuke from the United States and their reaffirmation by the opposition KMT.32 If current trends prove correct and the KMT is returned to

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power under Ma Ying-jeou in 2008, the CPC leadership will face an interesting challenge to negotiate the terms of common Chinese nationhood without yielding authority or legitimacy. This may well prove a bigger symbolic challenge than the threat of separatism. However flexibly the CPC leadership in Beijing interprets the notion of one country, two systems, it is still fundamentally unprepared to negotiate the terms of Chinese identity. To negotiate means to contemplate multiple varieties. This is disturbing the party’s monopoly of power, and it is also potentially a model for autonomy demands from other sectors, most notably from ethnic minorities such as the people of Xinjiang and Tibet, along China’s frontier.

China’s Security Strategy and Territorial Sovereignty China’s Defense White Paper of 2004 defines the goals of China’s defense policy as follows: •

•

•

•

•

To stop separation and promote reunification, guard against and resist aggression, and defend national sovereignty, territorial integrity, and maritime rights and interests. To safeguard the interests of national development, promote economic and social development in an all-round coordinated and sustainable way, and steadily increase the overall national strength. To modernize China’s national defense in line with both the national conditions of China and the trend of military development in the world by adhering to the policy of coordinating military and economic development, and to improve the operational capabilities of self-defense under the conditions of informationalization. To safeguard the political, economic, and cultural rights and interests of the Chinese people, crack down on criminal activities of all sorts, and maintain public order and social stability. To pursue an independent foreign policy of peace and adhere to the new security concept featuring mutual trust, mutual benefit, equality, and coordination with a view to securing a long-term and favorable international and surrounding environment.33

Looking at this document, we can see clear reference to the priority of countering the threat of Taiwan independence by military means.

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Yet we can also see that the overall objectives of China’s security strategy are defensive and are meant specifically to safeguard an environment within which China can pursue economic development. To be sure, this is aimed at building up China’s “comprehensive national strength.” But the means are not easily detached from the ends. Development depends on China’s open economic strategy. This in turn means lowering the threat of force. Moreover, it has also involved a sea change in China’s strategic thinking away from the defense in depth of a “people’s war” toward a policy of “limited war under high-tech conditions” that pertains most directly to a deterrence strategy of war on the frontier and, if necessary (as China’s leaders believe in the case of Taiwan), pursuing offshore deterrence. To be sure, as the Pentagon’s latest (2006) report to Congress points out, this strategy does entail active planning to take on the U.S. Navy in the event of a conflict on Taiwan.34 However, while the threat of conflict in the Taiwan Strait should not be minimized, it does not entail an expansive Chinese military strategy, nor does it mean that the Chinese state is actively engaged in a global strategy to challenge the United States. On the contrary, the entire national strategy of “comprehensive national strength” is built upon the lessons learned from the collapse of the Soviet Union. Disproportionate attention to building up military power in isolation is doomed to fail, and the only way to build up an economic and technical infrastructure is to engage in a competitive and open economic strategy. Thus today, in contrast to the Mao period, China is actively trying to control its borders in order to further facilitate cross-border economic and technological exchange as a long-term national strategy. Certainly this strategy has enabled China to afford double-digit increases in military budgets since the early 1990s, but military spending as a proportion of gross domestic product has declined dramatically since the Mao years. These increases have allowed China’s leaders to focus military modernization on improving the relative balance in the Taiwan Strait with significant spillovers in power projection. But this does not amount to, nor should it be construed as, an overall national strategy aimed at expanding the territorial reach of the state.

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CHAPTER 7

C HINA

C ONCLUSION : AND I NTERNATIONAL S OCIETY

Right now, the survival of the Chinese nation is no longer under major threat. Rather, comprehensive economic, scientific-technological and social development is the most concentrated features of the national interest. Economic development is the basis for the solution of all of China’s problems.1 Zhang Wannian

INTEGRATION OR TRANSFORMATION

W

hether China has been “socialized” into the international system and to what extent China’s emergence has transformed the international system depend on what aspects of international society are viewed as definitive and how one regards authority within the international system.2 The United States remains the leading power in the world today. However, neither its authority nor its power is absolute. Realist theories of international relations and realist analysis of foreign policy leave secondary powers with just two possible alternatives: “power balancing” that focuses on the maintenance of a strategic

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equilibrium, or “bandwagoning” that views hegemony as conducive to peace. A third, more distant, possibility for secondary powers is to “challenge” the structure of the international system.3 China’s relative power position in the world is now the best it has been in at least two centuries. China, however, is far from either challenging or “balancing” the United States. Its diplomatic repertoire is broader and more nuanced. But more important, the means that China has deployed to improve its relative power have committed China to institutions and norms that virtually prevent it from pursuing an alternative to the existing international system. In fact, it is fair to say that China does not have a set of normative commitments radically at odds with those of the West in general or the United States in particular.4 If the institutions of China’s domestic governance remain at odds with liberal constitutionalism, the ideological premises of China’s distinctive regime are increasingly muddled. China proclaims no alternative universal political vision, only a space for its historic particularity. Developmentalism is not only the primary national goal, that is, the basic line of the Communist Party (CPC), but also the primary legitimation for the party’s leading political role. Implicit within this is continuous comparison with the United States and its power. The CPC’s leaders have staked their legitimacy to invidious comparison. For more than one hundred years the Chinese have been obsessed by incapacity. A negative relationship to the Occident has been a virtual badge of identity. Republican China defined itself in terms of its progress in removing the strictures of the “unequal treaties.” The revolution, whether Nationalist or Communist, was intended to “save China.” At the height of China’s revolutionary fervor, the Chinese sought to place themselves in the vanguard of the world revolution so as to regain a place at the forefront of world history. With the victory of the Chinese revolution a little more than half a century ago, Mao Zedong felt compelled to insert his own views into the U.S. debate over who had “lost” China, and he provided a series of commentaries on the China White Paper issued by the State Department of the US in August 1949.5 Mao sought to draw a line under a century of Western encroachment and Western pretension to guide the future of China and the world. He mocked the predictions of Dean Acheson, U.S. Secretary of State from 1949 to 1952, that the Communists would be unable to solve China’s population and food problems, and he mocked the assumption that the CPC was a new form of alien rule. Mao selfconfidently proclaimed China’s allegiance to and participation in a worldwide movement that would eclipse the power of the liberal West and reconstruct the world on new terms.

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By the end of his life Mao Zedong had largely accomplished the goal of making China secure within its frontiers and achieving the status of a great power. Force was crucial to his success. Fighting the United States to a stalemate in Korea not only kept the West away from the Chinese frontier but also enabled Mao to mobilize the Chinese nation. That stalemate allowed him to reorient educated elites away from Western ideals of governance and to enforce conformity to his own version of Marxism-Leninism. Mao enlisted the Soviets in building an industrial state that would be independent of Western commerce and aid, and then he succeeded in keeping the Russians out also. This persuaded the United States to enroll China as a quasi-ally when the Americans sought to extricate themselves from the Vietnam misadventure. By the mid-1970s China could claim a seat at the table and keep foreigners out. But this could not satisfy China’s competitive aspirations so long as China remained materially and technologically inferior to both the West and the Soviet Union. From the 1980s on China abandoned or modified the strategic posture that it had adopted in the revolutionary years. Early on, China had identified itself with the “revolutionary camp” against the “imperialist” one, which had initially culminated in the policy of “leaning to one side”—that of the Soviet Union—in the Cold War.6 China modified this policy after the Sino-Soviet dispute in the 1960s, but it still insisted on its central position in the revolutionary camp and that of the third world. Finally, after navigating through the period of strategic alignment with the United States (1979–82), China moved toward an independent foreign policy in the 1980s that saw the nation gradually take on a strategic and diplomatic posture that recognized “one world.”7 China’s leaders appreciate the close association of status with material power. “If it were not for the atomic bomb, the hydrogen bomb and the satellites we have launched since the 1960s, China would not have its present international standing as a great, influential country.”8 In the sober aftermath to the Cultural Revolution in the decade between 1966 and 1976, Deng Xiaoping’s quest for national revival began with a modest tone. “We are backward” he kept repeating. Among the strategic purposes of China’s open policy was to reveal the extent of China’s backwardness to the Chinese themselves. His shrewd insight was that Western capital and know-how could be harnessed to release the untapped energies of the Chinese people without losing control of Chinese territory and the Chinese frontier. He knew both that Chinese economic potential was being stifled by the state and that its potential could be stimulated by the Western appetite for profit. He

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also knew that the authority of the Chinese state could prevail while goods, capital, and people moved across the frontier through the promulgation and enforcement of a legal regime. He moved from an understanding of rights and sovereignty that was strictly framed around territory to one that began to include rights over things. Deng’s pragmatic recognition of the role that civil society in the form of domestic and international markets could play in China’s revival led to new forms of friction with the West. Deng believed that China could maintain a distinctive regime of rights over people (the Leninist form of administration by nomenklatura—an appointive hierarchy of officials designated by the center) alongside a legal framework of rights over things that was increasingly modeled on Western, market-based prototypes. This rested on the complete monopoly of politics by the Communist Party on one hand alongside a hegemonic control of the economy by retaining a dominant role for state-owned industry in vital sectors. After the collapse of the Soviet Union, Deng insisted that the foreign enterprises that had invested in the Pearl River Delta represented the vanguard of China’s quest to catch up to the rest of the world and that these enterprises, even if foreign-owned, had placed advanced technology at the service of the Chinese state and people. This did not represent the negation of national power but, rather, its expansion. Consciously or unconsciously Deng and his followers identified China’s distinct political regime with Chinese nationalism, and they sought to control its erosion by a rights-based market culture open to the world. The open door and being a status quo power became virtually coterminous. The result was symbolized in China’s accession to the World Trade Organization (WTO). There was a smooth progression from “linking up rails to the world” (xiang shijie jiegui), to supporting “international society” (guoji shehui), to becoming a “responsible great power” (you ziren daguo). Great power status was to be defined in terms of making some kind of contribution (you suo zuowei) and “democratizing international relations” (guojiguanxi minzhuhua).9 Neither of these terms is, or was, defined substantively. Since the advent of Deng’s open policy, China has grappled with two competing versions of sovereignty. One version is centered on the state and its territory. This version of sovereignty identifies the collective rights of the Chinese nation (including its claim to Taiwan as well as Hong Kong) with the regime led by the CPC. A competing version of sovereignty is rooted in the rule of law and the sovereignty of the people. Human rights is the terrain over which these two visions of sovereignty compete, a terrain into which Western governments and

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individuals are inevitably drawn, both for ideological reasons (which Chinese nationalists and the Chinese government can easily discount) and because commercial and human interests are increasingly engaged with the Chinese legal system. The Chinese legal system is caught between a rights-based legal culture and a nomenklatura patrimonial political culture. Some reformers, like Zhu Rongji, have sought to move the regime more decisively toward a regulatory regime based on the rule of law. He, for one, identified the wide discretion granted officials under the nomenklatura system with systematic corruption and abuse of power. Other leaders, like current General Secretary Hu Jintao, have sought to strengthen the basis of the nomenklatura system by emphasizing the politics of virtue and the maintenance of the party as a unique vanguard composed of a competent and morally qualified elite. Economic success bolsters the credentials of the Communist regime as an elite vanguard to temper the inherent contradictions of its posture. But because economic growth is highly dependent on open markets and trade, the party’s domestic power depends on maintaining a favorable external environment. The image of a “peaceful rise” is instrumental for domestic stability as much as to reassure an external audience. In his article titled “The Logic of the Rise of Great Powers,” Zhang Wenmu, the editor of the influential Chinese periodical Strategy and Management, argues that the sustainable rise of a great power requires the recognition of limits to expansion. In particular, Zhang refers to limited resources. Highlighting China’s growing dependence on imported natural resources, he argues that a sustainable rise requires the maintenance and defense of a “democratic world order.”10 “The ultimate goal of the international system is to distribute world resources. However, the system has never been a democratic one, as it has been defined and maintained violently by hegemonic powers. China’s rise will inevitably pose a challenge to the existing unequal world resource distribution system.” He defines a democratic world order as an order of sovereign states where each state has “equal access to international markets and world resources, and the right to use sea passages freely.” This kind of equality is not defined, nor does the author identify which institutions sustain the equal distribution of world resources. Nevertheless, he contrasts “democracy” to hegemony: “International hegemony is the opposite of international democracy.” Yet he recognizes that a sustained rise requires building what he calls “political civilization.” Most important in this concept is the development of citizenship

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The Empire’s New Clothes / Jeremy T. Paltiel Citizenship, resulting from consensual transfer of ‘popular’ and ‘national’ autonomy to the state, implies a contractual relation with the state. At the core of citizenship is a system of rights and obligations: while citizens are obliged to pay taxes and remain loyal to the state, it is the duty of the state to protect its citizens according to their legal rights. The state mobilizes its citizens to the maximum in the counterbalance of rights and obligations.11

He concludes that “a government by the people serves as a premise for China in its construction of the political civilization and its efforts to dialogue with the world.”12 Zhang therefore recognizes the linkage between domestic and international sovereignty that I have tried to outline in this book, although, in typical fashion, he places national sovereignty in the first place. “… [S]overeignty provides the metalogic and starting point of modern state theory. As the rise of a state to a great power requires adequate resources, resources become the first link in the logic of their rise, from which derive concepts like strength, power, rights and state institutions.”13 Zhang insists that China’s rise begins from an inferior position because its sovereignty is impugned by a lack of unity. “China is a sovereign state … yet to be united. Therefore, its rise will be a process through which China is acknowledged as an equal in the international community, rather than one by which it imposes itself on the world. On the other hand, it will also be a process by which China gains full sovereignty over its entire territory. China will never negotiate nor compromise in its fight against advocates of Taiwan’s ‘independence,’ nor will it promise to forego the use of military forces in settling the issue.” China’s policy of “peace and development” sees the maintenance of global order as a key to the maintenance of domestic order.14 China’s leaders perceive the major threats to the stability of the regime as coming from domestic social instability, and they perceive continued economic growth as essential to the maintenance of social stability.15 At the Sixteenth Party Congress in November 2002, President Jiang Zemin defined China’s international posture in this way: We stand for the establishment of a new international political and economic order that is fair and rational. Politically, all countries should respect and consult one another and should not seek to impose their will on others. Economically, they should complement one another and pursue common development and should not create a polarization of wealth. Culturally, they should learn from one another and work for common prosperity and should

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not exclude cultures of other nations. In the area of security, countries should trust one another and work together to maintain security, foster a new security concept that features mutual trust, mutual benefit, equality and coordination, and settle their disputes through dialogue and cooperation and should not resort to the use or threat of force. We oppose all forms of hegemonism and power politics. China will never seek hegemony and will never seek expansion.16

China is poised to join the front ranks of great world powers. Its importance is no longer just geopolitical or regional but has extended into the areas of global finance and trade. The G-7 can no longer steer the global economy without close coordination with China. Certainly, widespread discussions of China “exporting deflation” or “exporting inflation” and of the global implications of an “undervalued currency” are proof that China’s presence in the global economy is no longer that of a “price taker” but that of a “price maker.” And yet the gap in norms and values between China and the other leading powers leaves much room for concern. The troublesome U.S. tendency toward unilateralism is balanced by a relatively transparent set of national values that it upholds and occasionally tries to impose on the rest of the world. China’s global values are not clear beyond its desires to confirm its global citizenship and to challenge the hegemony of the West. These twin concerns entail both support for and challenges to the global status quo. Right now, the balance of probabilities favors the status quo, for no better reason than that the status quo favors China. With no immediate danger of a radical shift in China’s behavior, what remains unfathomable, even to the Chinese themselves, are the nuances with which China’s would wish to “reorient” the global balance. To seek out possible directions of Chinese influence requires a deeper probe into the ambivalent processes of China’s domestic development, for only here will we find the values that China might wish to project on a global stage. What we find is a deep crisis of identity and a struggle for ascendancy between the emerging values of individualism and private expression and the deep-seated resonance of collective ideals rooted in family, nation, and mass politics. Although these preferences occasionally provoke clashes of values with the United States, they also create room for common causes on a pragmatic and selective basis. China is unlikely to yield its third world rhetoric, yet it will not sacrifice its immediate developmental prospects in the name of third world solidarity. The Chinese head is in the spires of Shanghai’s Oriental Pearl Tower, while the Chinese feet are deep in the loess soil of Yan’an’s caves.

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China needs rules, and it is learning to use its participation in rulemaking bodies to protect and project its interests. However, it remains protective of its national sovereignty as well as its regime. Pressure is mounting on the regime both domestically and internationally to conform to a rules-based system. Globally and nationally, this tension is expressed in the implementation of WTO rules. At the local level, this tension surfaces in conflict over rule-based adjudication and the principle of territorial party control, a principle that has strong patrimonial overtones. The Communist regime faces daily choices between patrimonial administrative fiat and the rule of law. Underlining this choice, domestically as well as internationally, is an anxiety concerning the likelihood that the applicable rule will be enforced. China’s engagement with multilateral institutions has gone through a learning process. As recently as 1996, one observer dismissed China’s motivation as “to avoid losing face” and China’s view of multilateral organizations as “fronts for other powers.”17 Underlining China’s scepticism was an outlook that viewed the international system through a strictly reciprocal recognition of sovereign rights. For a long time, security regimes appeared to lie outside China’s frame of reference, connected as they were in the minds of China’s policy makers with the web of alliances that ringed China during the Cold War. China does not ally itself with any other country, nor does it interfere in any other country’s internal affairs. Resolutely guarding its own independence and sovereignty, at the same time it respects the independence and sovereignty of other countries. China consistently upholds just and principled stands, opposing the machtpolitik of the bullying of the small by the large, the weak by the strong, and the poor by the wealthy. We strive to the utmost to construct a just and rational international order and are an important force in opposing hegemony and in the preservation of world peace. As a self-reliant and independent great power, China persistently pursues its own characteristic road to modern development. That is the weight of China’s independent pole in a multipolar world.18

MULTILATERALISM Multilateral participation initially served only to secure China’s status as a sovereign state and a leading power. This engendered rather passive participation. As I have already shown in the chapter on the multilateral trading order, China’s changing economic interests gradually transformed China’s interest in the multilateral trading system,

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eventually aligning China’s interest to market access in a rule-based order. However, China’s embrace of multilateralism represents the most significant shift in its foreign policy in recent years. During interviews, Chinese foreign policy scholars emphasized that China was on a “learning curve” regarding issues of multilateral engagement.19 The urgency and alacrity with which China has embraced multilateralism in the post–Cold War era has been prompted by the perception of growing tendencies within the United States toward unilateral interventionism in world affairs on the one hand and a growing realization following the Gulf War of the yawning gap in military capacity between China and the United States on the other. China simply did not enjoy the advantages needed to pursue traditional balance-of-power politics in the new environment. Multilateral engagement is the best way to leverage China’s capacities, both at a regional level and at the global level through its veto power as a permanent member of the UN Security Council. At the same time, multilateralism presents China with an opportunity to put its rising power to good use by deploying its weight as a member of various multilateral bodies. In contrast to the outside commentators who have always credited China with a realpolitik outlook and a balance-of-power approach to international relations, recent work by Chinese international relations specialists suggests otherwise. Chinese commentators tend to accuse the United States, in particular, of a realpolitik outlook and have intriguingly betrayed an interest in constructivism. He Yao and Ren Xiao conclude their critical review of balance-of-power theory with the following assertion: “The reality of balance of power is determined by the necessity arising out of sharp conflicts of interest. It is possible that a more important means to preserve stability and advance society would be to search for the expansion of common interests through economic development and greater interaction.”20 In the area of security, Chinese scholars and even military strategists are open to theories based on security interdependence and cooperative security. At a very basic level, they reject theories solely on “selfhelp” and accept that security cannot be a zero-sum game.21

MULTILATERALISM AND THE CHINESE NEW VIEW OF INTERNATIONAL ORDER Apart from their obvious utility in the solidification and institutionalization of the economic strategy embedded in China’s “open” economic

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policy in security matters, the frame of reference for China’s newfound love affair with multilateral security cooperation lies in the nature of the threat of terrorism and its relationship to the territorial security concept embedded in Westphalian notions of sovereignty.22 Chinese multilateralism is rooted in the mutual recognition of the rights of territorial states and in the perceived benefits of multilateral guarantees of mutual territorial security. Even before September 11, 2001, China moved cautiously to reevaluate its stance in relation to security communities and multilateral security arrangements in the wake of the collapse of the Soviet Union and the emergent threat of ethno-religious separatism spreading across its northwest frontier. As discussed in the following text, China’s newfound appreciation and promotion of multilateral engagement constitutes the most important shift in Chinese identity as it relates to the international system. As one Chinese scholar puts it: The characteristic of the current era is a struggle between two types of world order: On the one hand, the sole superpower, the United States, attempts through multilateral (as well as bilateral) diplomacy to prolong, expand and consolidate its own global hegemony. In recent years, the United States relying on its own strong economy and military power, is increasingly unwilling to accept the restraints of international society and international law, and is actively employing unilateralism to seek hegemony in its own exclusive interest. On the other hand, the vast majority of states in the world, including China, hope to establish a new democratic, just and reasonable international order—we term this a multipolar global structure, and toward it we have opened up active multilateral and bilateral diplomacy. The characteristic of multilateral diplomacy in the new era is broad participation in the search for peace and cooperation.23

Multilateralism has become an integral element in China’s “new security concept.” As a way to safeguard long-term regional and global security and as a way out of the “security dilemma,” multilateral cooperation has become the object of reevaluation by many countries. Participation in multilateral cooperation is a major step in China’s acceptance into international society. It is a subjective requirement for the realization of state prosperity and strength [fuqiang] and national revival. It is an intrinsic guarantor of national interests; a new and

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important channel for safeguarding regional and global stability, improving and strengthening security relations with the nations of the world, developing friendly cooperative relations with neighboring countries; an important channel for improving mutual understanding and trust; and a new development and new instantiation of China’s independent foreign policy in the new era.24

Such glowing praise also hides deep misgivings. For China, participation in multilateral cooperation is both a new challenge and a hard won historical opportunity. In a certain sense, it requires us to emancipate our minds and to overcome many mistaken areas and superficial perceptions. We should not look only at the way that the major powers of the West have used multilateral organizations to press their hegemonic policies, but ignore, or rarely look at how [multilateralism] represents the tidal trend of peaceful development, and instantiates the wishes of the great majority of nations. Moreover, to a certain extent, it has the positive significance of blocking hegemonism and promoting the formation of a new international security order. We should not see it only as a tool of some relevant states, especially Western states, that have used it to restrict the development of other states and then ignore or mainly overlook how to various extents it has restrained all participating parties. We should not look only at how some countries struggle to establish a leading role, and overlook the significance of establishing normative frameworks and rules to the maintenance of the external security of states and to the realization of security interests. One should not look only at how joining and participation may to some extent require giving up a certain amount of freedom of action and overlook how states can acquire security guarantees of much greater scope over a much longer time frame.25

Not only has China begun to recognize the virtues of multilateralism, it has also begun to structure its policies around this concept to a highly significant degree. The Chinese approval of a code of conduct for the South China Sea at the 2002 Association of Southeast Asian Nations (ASEAN) Regional Forum (ARF) represents an extremely important advance in Chinese security thinking and a major instance of cooperative security in the Asia Pacific.26 Future historians of China’s rise may mark China’s accession to the ASEAN Treaty of Amity in October 2003 as a major historical watershed. At the very least they will view it as a symbol of a historic shift.

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China’s accession demonstrates ASEAN’s importance as the core multilateral institution in Asia. Perhaps the most important refutation of the thesis that China is recreating a Sino-centric international order in Asia is that through both the ARF and the Treaty of Amity, it is China that associates itself with ASEAN rather than vice versa. This is acknowledged by the Chinese themselves. China’s leaders and analysts are well aware that ASEAN expansion in the 1990s was prompted, in part, by fear of China’s growing importance.27 These issues included the South China Sea, Vietnamese suspicions of China, China’s political and military role in Burma, and Cambodia. China’s leaders seem to have recognized this in their adoption of the Code of Conduct for the South China Sea at Phnom Penh in 2002.28 The two key phrases of “the ASEAN way” are consultation and consensus, mushawara and mufakat.29 Some see these as a set of basic norms for constructing a security community,30 while others have criticized them.31 Whatever their merits as the basis of a security community, these norms correspond well to China’s suspicions of legalized and judicialized structures with formalized rights and obligations and to the habits of personalized diplomacy with human relations. At a minimum, these norms lower the threshold of association. China sees no danger that controversial issues will be adjudicated either on majoritarian grounds or through recourse to rights-based legal analysis.32 China identifies with secondary powers as a normative means of constraining U.S. hegemony. The absence of an overt power or security dimension distinguishes this approach from a balance-of-power system. China sees itself as a consensus power upholding traditional Westphalian concepts of sovereignty against a U.S. power that threatens to undermine these concepts. What China fears about rule-driven multilateralism is the elective affinity between rule-based multilateralism and liberal governance under the rule of law. The fear is that rules will define the regime, whereas China’s Communist Party regime wishes to define itself and the rules under which it chooses to operate. Obviously, there is tension between these concerns and China’s commitment to rule-based orders as part of its participation in trade and transnational flows. A very different realist interpretation of Chinese foreign policy behavior is offered by Avery Goldstein, who sees in this and China’s efforts to shore up relations with its near-neighbors a neo-Bismarckian policy of “reinsurance.” He sees no contradiction between Chinese Westphalian multilateralism and China’s traditional bilateralism. He insists that China’s multilateral turn represents a kind of Bismarckian

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reassurance that should not be interpreted as a conversion to supranational values. Beijing’s warmer embrace of multilateralism represents, as Iain Johnston and Paul Evans suggest, a significant shift from past practice. But it should not be taken for a conversion to supranational values. Instead it represents a component of China’s neoBismarckian grand strategy designed to advance national interests, in this case by reassuring those who might otherwise collaborate against a putative Chinese threat. However real, the embrace is partial and conditional; China continues to resist efforts to place on the multilateral agenda sovereignty disputes it insists can only be resolved through bilateral negotiations.33

This involves an effort to reassure China’s neighbors of its peaceful intent while adding to China’s state capacity.

THE SHANGHAI COOPERATION ORGANIZATION: THE TEMPTATION OF REGIONAL LEADERSHIP In Central Asia and through the Shanghai Cooperation Organization (SCO), China pursues what may best be called a “Westphalian” foreign policy. The SCO is a multilateral organization by default, having grown out of the initial process of stabilizing China’s western frontier with the Soviet Union. With the breakup of the Soviet Union, China was forced to implement in a multilateral manner what had been negotiated in a bilateral fashion. It began as a framework mechanism to consolidate the confidence-building measures arrived at in the dying moments of the Soviet Union . By the end of the 1990s, China enthusiastically embraced what it had formerly agreed to reluctantly. In June 2001, the five countries of Russia, the PRC, Kazakhstan, Kyrgyzstan, and Tajikistan signed the Shanghai Convention against Terrorism, Separatism and Extremism. The timing was fortuitous: it allowed China to claim that it had been perspicacious in battling terrorism in Central Asia before September 11, 2001, and the coalition assault on the Taliban forces, allied with Al Qaeda, in Afghanistan. By the second SCO summit at St. Petersburg in 2002, Uzbekistan had joined the Shanghai Five, and plans were set for the establishment of a permanent secretariat and a joint center to combat terrorism and transnational crime.

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This was the first multilateral security organization pioneered and guided by Chinese foreign policy. The SCO differs from an alliance based on the principle of collective security in that its conventions do not oblige member states to intervene on each other’s behalf. The organization, however, does involve both policy coordination and, perhaps most significantly, joint military exercises. We can detect several major strands in China’s newfound multilateralism. Pragmatic regionalism (ARF, SCO, APEC) Global status and competition with Taiwan (ROC) (the United Nations and associated institutions like the WTO) • Counter-insurance against unilateralism • •

MULTILATERALISM AND BILATERAL RELATIONS WITH THE UNITED STATES Global multilateralism provides China with the leverage it requires to resist subordination to the United States. “The authority of the UN Security Council stems from democracy in international relations and the international rule of law. It should not and will not become a puppet organization under the control of a certain power.”34 China’s realist foreign policy experts see a structural tendency toward conflict with the United States. Yet the maintenance of a positive and stable bilateral relationship with the United States is still China’s first priority. … Championing stability and common prosperity will help to bridge the contradiction between support for sovereign equality and a growing great power status. The fundamental security environment of China turns on Sino-American relations . … Following the Cold War, the United States became the world’s sole superpower … having the strongest desire to establish a unipolar world system. However … China’s rise could no longer be obstructed as a trend among major powers, with China pursuing the natural desire to push forward a multipolar system. [A]

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structural contradiction opened up in Sino-American relations: . . . to establish a world order of unipolar hegemony or a multipolar system of mutual coexistence. This structural contradiction aside, there was also an important contradiction of social systems in SinoAmerican relations. The United States believes that the Western political system is of utility in maintaining its hegemonic position. Therefore it pursues its democratic political system worldwide, including in China; yet China believes that only by persisting in its socialist system can China achieve its goal of national ascent, and hence China refuses to accept the Western political system and persists on its socialist political direction . … For the present and for the long-term future, the disputes relating to the world order and the political system in bilateral relations between China and the United States will be difficult to resolve.

Yan Xuetong nevertheless allows scope for cooperation. [N]ew strategic interests promote necessary strategic cooperation between China and the United States. The biggest common strategic interest linking China and the United States is to prevent a new cold war from developing. Apart from this, there is a common interest in maintaining regional stability in the Asia-Pacific, preventing the proliferation of weapons of mass destruction, defeating international crime and attacking terrorism, protecting the global environment, and preventing financial crises, etc. Alongside the advance of globalization new common strategic interests will emerge. However, for the foreseeable future, these can only influence the degree of change. They cannot effect fundamental qualitative change.35

China’s foreign policy behavior since the 1990s demonstrates repeatedly that a breakdown of relations with the United States is perceived as a greater threat than the unilateral power of the United States.36 Moreover, Chinese leaders perceive a similar feeling on the other side. Hence, the initially clumsy handling of the EP-3 incident in April 2001 was eventually handled adroitly on both sides, leading to a close consultative bilateral relationship that was regarded with esteem by both parties, despite clashes of interest and largely incompatible grand strategies.37 That is the U.S. grand strategy of global supremacy and full spectrum primacy; the doctrine of preemptive war is perceived as threatening, even alarming, when combined with policies of regime change.38 At the same time, however, China is sufficiently reassured

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that the United States is both unwilling and unable to act in a peremptorily unilateral fashion with respect to China’s core security concerns.

“SOFT” COUNTER-HEGEMONISM Recent Chinese foreign policy statements are striking in their positive reference to “international society.” Since the first appearance of a crack in the Western Alliance after U.S. intervention in Iraq, China has both embraced and identified itself as an integral part of “international society,” with the United States on the outside.39 This is a “soft” counter-hegemonism that differs from traditional balance-of-power diplomacy in that it is not directly aimed at building a coalition to confront the dominant power. Instead, China is committed to maintaining the shape of the international system against what it sees as twin threats. One is the threat posed to the territorial state by global terrorism, the other is the threat to sovereignty posed by U.S. unilateral policies of humanitarian intervention and preemptive strikes. These threats demarcate the foreign policy terrain that affects China’s security relations with the United States. Insofar as cooperation against terrorism means cooperation by sovereign states in defense of sovereignty, China is steadfastly on the side of the United States. Insofar as the United States acts unilaterally, China sides with those that oppose it, but China does not directly confront the United States unless its immediate interests are at stake. This was summed up in Jiang Zemin’s sixteen-character formulation: increase trust; reduce friction; promote cooperation; and avoid confrontation (cengjia xinren, jianshao mafan, cujin hezuo bugao duikang). China is beginning a new form of global multilateralism centered on traditional and emerging great powers—for example, agreeing to the invitation to meet with the G-8 in 2003 and also cooperating at the WTO with the G-22.40 China’s diplomacy with Latin America is not only an instance of China’s new resource diplomacy but also a part of an embryonic strategy to build a network of support among the emerging powers of the developing world. A key example is the SinoIndian relationship.41 Despite the emergence of a quasi-allied alignment between India and the United States that aims implicitly to contain China, as well as official Indian policy statements that argue explicitly that its nuclear deterrent is aimed at China, China has refrained from targeting India as a hostile power and has steadfastly endeavored to improve relations.42 China has supported India’s bid to

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gain a permanent seat on the UN Security Council regardless of objections from China’s close ally Pakistan. “Soft” counter-hegemonism requires China to adhere to a posture that projects greater respect for global institutions and regional sensitivities than the United States and, indirectly, more consistent support for rules-based orders and multilateral decision making than the United States. Based on Enlightenment and Classical/Judeo-Christian views, the U.S. view of subjectivity is relatively fixed, with values and identity autonomously and internally derived. This is not the case with China. The post–September 11, 2001, Chinese diplomacy certainly emphasizes multilateralism and a rules-based international order insofar as this forms a contrast to a U.S. unilateralism that is harshly and consistently criticized.43 However, China’s “multilateral turn” is much more in tune with what Katzenstein terms “Asian Style” multilateralism and has even deeper roots. China’s “soft counter-hegemonism” involves a multitiered diplomacy. Its twin pillars are support for multilateral diplomacy and multilateral institutions combined with a good-neighbor policy and support for Asian regionalism.44 The fundamental characteristic of this diplomacy is opposition to unilateralism without directly challenging U.S. power or interests. China’s leaders need soft counter-hegemony to avoid being caught offside in a U.S.-led project to identify international society with global liberalism.

“SOFT POWER”: THE ELUSIVE SEARCH FOR LEADERSHIP China’s search for global status lacks a clear normative concept of great power obligations and responsibilities. Beginning in the 1990s China began to emphasize its role as a “responsible great power.” At the ideological level, its longstanding support for sovereign equality and opposition to hegemony preclude the assumption of any leadership position. And yet, when Deng Xiaoping called for the creation of a multipolar system following the end of the Cold War, he added, “of course, China is one of the poles.” At a formal level, China rejects the search for soft power, and Chinese commentators see the proclamation of the importance of soft power by Joseph Nye as an attempt by the United States to compensate for its shortcomings along measurable dimensions of power by highlighting its ideological influence.45 Rather than promote the reach of China’s “soft power,” some commentators advocate promoting “soft independence” and “soft security.”46 With the emergence of Hu

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Jintao as the Chinese leader in 2002, Chinese commentators took a much larger interest in this concept as an international counterpart of Hu’s policy of “building a harmonious society.”47 With Asia as the central focal point, the Chinese state is now looking to project its own form of “soft power.”48 Although China may formally foreswear a leadership role, others within the region see such a role developing, especially in its good neighborly policies that emerged in the 1990s and became consolidated following the Asian financial crisis in the latter part of that decade. Relations with ASEAN can be seen as a template for China’s global policy of a “peaceful rise.”49

THE “NEW” SECURITY CONCEPT: SECURITY IS INDIVISIBLE In the late 1990s, Chinese foreign and military policy was focused mainly on territorial defense and the maintenance of the frontier in the defense of national sovereignty. Current Chinese diplomatic thinking has evolved to the extent of recognizing that the maintenance of sovereignty requires engaging in cooperative multilateral diplomacy to regulate transborder flows by mutual consent. Two factors underline the shift in Chinese thinking. First, the national economic strategy has shifted to the “open” policy predicated on increasing economic growth by accelerating transborder trade and investment. Second, the national defense strategy also has shifted from the defense of a “people’s war,” predicated on “luring the enemy deep” and an economic strategy of local self-sufficiency, to a strategy of active defense of the frontier and “limited war under high-tech conditions.” An ideological shift has occurred: from Mao’s insistence that war was the norm and that peace was only an interval, to Deng’s evaluation that war could be prevented and that the major trend of the era was one of “peace and development.” With Deng Xiaoping’s excellent leadership, which made comprehensive national strength a strategy for national development, China’s government and intellectual community gradually formed a concept of comprehensive security strategy. They believed that the security issue was not only a military one, but was a political, economic, and diplomatic issue. Solely relying on military means could not solve security issues, and increases in weapons and troop strength could not be equated with greater

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security. On the contrary, the improvement and development of political and trade relations with all countries, and the strengthening of bilateral and multilateral cooperation, could realize one’s own security interests, as well as security and stability for the entire region.50

In 1999 China’s chief of staff, Zhang Wannian, wrote: “History proves that simply by increasing military preparedness and military alliances will not gain long-term peace. We can create real peace only by linking together mutual trust and common interests through dialogue and cooperation.”51 With a newfound recognition of the security dilemma,52 China’s Defense White Paper of December 2002 enunciated the new security concept: “To enhance mutual trust through dialogue, to promote common security through cooperation, and to cultivate a new security concept featuring mutual trust, mutual benefit, equality and benefit have become the requirements of the new era.”53 This includes arms proliferation and the containment of conflicts that can cause transborder refugee flows. Chinese multilateral diplomacy is focused on finding ways to maintain the notion of a frontier and a territorial state in the age of globalization, not on ways and means to transcend it. It is possible to see from an analysis of the contemporary world and the current era that without persisting with the principle of sovereignty, international relations will take on a chaotic situation which is impossible to contemplate; on the other side, a concept of absolute sovereignty is impossible to carry through. What we need to do is to comprehensively and correctly analyze and master the characteristics of our era and the new trends and changes in the international order, so that the twin values—sometimes in unity, sometimes in conflict—of maintaining peace and security and respecting state sovereignty may be balanced to put international intervention on a healthy developmental pathway. This balance is the question of the century.54

Signs of softening in China’s traditional attitudes toward security alliances can also be garnered from the statement given by China’s foreign ministry spokesperson on the recent enlargement of the North Atlantic Treaty Organization (NATO). The spokesperson reiterated China’s “new security concept” based on mutual trust, mutual benefit, equality, and cooperation. Opposition to military alliances was again not mentioned. Indeed, in elaborating on China’s own foreign policy

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as enunciated at the Sixteenth Party Congress, the foreign ministry spokesperson continued the message that “with security and economic cooperation as the emphasis, we will continue to deepen and advance the degree of regional multilateral cooperation.”55 This attitude is evident again in China’s careful approach to the problem of Iraq, and it contrasts with China’s earlier approach toward NATO intervention in the Balkans (particularly the Kosovo campaign) and the UN-led intervention in East Timor. China lays great stress on prior Security Council approval and, in the case of East Timor, on the formal acquiescence of the Indonesian government to the dispatch of armed peacekeepers. In principle, the norms of sovereignty were respected even if, as Chinese commentators readily acknowledge, Indonesia was strongly influenced by the U.S. threat to cut off bilateral military cooperation.56 The notion of a peaceful rise is a development and extension of China’s rhetorical posture since the late 1990s of identifying itself as a “responsible great power.” In 2002 Chinese theorists and ideologist began to articulate a comprehensive vision of Chinese internationalism crystallized in the notion of China’s “peaceful rise.” 57 Zheng Bijian, an academic director of the CPC’s Central Party School and a key adviser to Hu Jintao, argues first of all that China’s development strategy is inseparable from the forces of globalization. Moreover, he continues, China’s rise must be peaceful since the history of all rising powers has shown that those powers that engage in a struggle for hegemony and territorial expansion have always ended in defeat.58

THE PROBLEM OF ORDER IN CHINA’S PEACEFUL RISE According to Guo Shuyong: The problem of China’s entry into international society probably has two aspects: one is to enter [international society] in order to (facilitate) China’s rise. Without a ‘rise’ entry would just mean dependence, it would evolve into a loss of subjectivity. How to realize China’s rise in the contemporary international order is the central task of the Great Restoration of the Chinese Nation [Zhonghua minzu weida fuxing]. It is the “demand” placed by China before the word. Second, only by entering international society can China’s rise be realized. If we do not handle the relationship with international society or the global order properly, would make a rise impossible. China’s rise must be accomplished

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according to the roadmap of social norms of international politics [bixu xunzhuo guojizhengzhi shehuihua de lujing]. This is the “demand” placed before China by the World. The former has theoretical particularity, the latter possesses theoretical universality. Rise and order have from another angle become the core kernel of “the China problem” and have, from the perspective of theoretical particularity and universality opened avenues of thought for Chinese theorizing.59

The issue is not rising per se, nor even about the global distribution of power according to realist principles. Instead, the issue is about the meaning of power. The word power comes from the French pouvoir, the capacity to do. It is a transitive verb. The capacity to do what? Guo for one, gives a surprisingly cosmopolitan answer. According to him, the socialization or institutionalization of world order has outstripped China’s rise because China is a latecomer, and although this institutionalization has been led by the United States, the United States lacks the capacity to impose its will on it. The major preoccupation of the Chinese regime is on incremental self-improvement within the existing structure of both domestic and international relations. That is why the slogan of building a harmonious society is propagated in both arenas. Peace and development may be defined as a long-term strategy of incremental self-improvement. Military improvement fits within the same structure of incrementalism. The policy of building an integrated modern fighting force is focused on the “recovery” of Taiwan. The recovery of Taiwan, from a Chinese perspective, fits very well into a grand strategy of incrementalism, following on the recovery of Hong Kong and Macau. From a geostrategic perspective it corresponds to an outward movement or projection to the “first island chain.” In general, looking at Chinese maritime strategy we see a move toward a green-water capability as the incremental improvement of China’s capacities as a modern power. Both Left and Right see the ocean as China’s next frontier. On the surface, at least, there is a great deal of common ground between Chinese perceptions of rising to become a “responsible great power” and Undersecretary of State Bob Zoellick’s call for China to become a “responsible stakeholder” in the international system.60 However, underpinning some of the misperception of China’s foreign policy behavior is a mistaken perception of the ontology and epistemology underlying Chinese foreign policy views. Critics of Chinese foreign policy often point to Deng Xiaoping’s famous admonition “taoguang yang hui”(“flee the light and bide our time in the

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shadows”).61 Mike Pillsbury is most prominent among those who see this as evidence of China’s effort to dissimulate its ultimately aggressive intentions.62 Interestingly, and curiously, during their interviews in Beijing such figures as Men Honghua and Qin Yaqing volunteered Deng’s dictum as a pillar of Chinese foreign policy, but they deny it was intended to disguise aggressive intent. Goldstein interprets China’s doctrine of “peaceful rise” within the realist framework of balance-of-power diplomacy. Alastair Iain Johnston borrows the language of constructivism and the notion of security communities to empirically demonstrate China’s emergence as a status quo power. He views China’s “peaceful rise” through a lens that is both cognitive and epistemological and sees China becoming “socialized’ into the existing order of international relations. Interestingly enough, while Johnston is viewed sympathetically within the Chinese academic foreign policy community, his views are not precisely admired. Many Chinese international relations scholars maintain a visceral nationalist resistance to the notion that China’s rise depends ultimately on its “socialization” and conformity within existing international structures, notably those led by the United States.63 The alternative suggestion that China’s relations with its foreign neighbors might be returning to the Sino-centric order of traditional tributary powers also provokes vociferous unease. The possibility of recreating such a system, notably floated by David Kang,64 was flatly rejected by Qin Yaqing,65 Men Honghua,66 and Wang Yizhou67. All aver that China has neither the intention nor the capacity to recreate a formal hierarchy with itself at the center. Moreover, they reject the notion that China’s Asian neighbors, ASEAN members in particular, would be willing to place themselves in a position of subordination and suzerainty vis-à-vis China. International relations scholars in China who are explicitly in the “realist” camp are the counterparts to Pillsbury’s hard-nosed realism.68 These scholars, including Berkeley graduates and students of Kenneth Waltz, Yan Xuetong and Zhu Xianping, aver that Sino-American relations cannot remain stable and that Taiwan will ultimately lead to a Sino-American showdown. Zheng Bijian’s views on peaceful rise are directed to this domestic audience as much as to reassuring Americans and others. In order to square the need for a peaceful environment with dissent from liberal internationalism, Chinese international relations thinking has resurrected traditional themes. If one needed an index of the “re-Confucianization” of Chinese foreign policy ideology in the rhetoric of “peaceful rise” and “building a harmonious world,”

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then the establishment of more than twenty “Confucius Institutes” throughout the world to spread Chinese “soft power” is the best indicator.69 It is little wonder that the formulation of China’s “peaceful rise” has entailed a re-Confucianization of China’s ideology and official political culture. This goes beyond the discourse of “harmonious society” that Hu has been projecting.70 A “harmonious world” is a counterpart to Hu’s domestic “harmonious society.” In both instances harmony is a discursive device that masks hierarchy. “Harmony” is placed in opposition to anarchy. China projects a self-image with Mencian overtones where it will lead the world by example, through “soft power,” and all international disputes will be settled according to the “new security concept” of peaceful dialogue and “win-win.” China is eager to exercise leadership in noncontroversial areas and in noncontroversial ways. Signing the ASEAN Treaty of Amity is a good example, as is hosting the six party talks on the Korean nuclear issue. But imposing sanctions on North Korea or Iran and making choices among “friends” presents a difficult dilemma. There is a fundamental difference between Chinese ontological views and the equivalent American ones. The point on which Chinese and American views notably converge is on the desire for stability and order. They clearly diverge on the conception of order that they project on international society. The immanentism inherent in Chinese philosophy, together with the primarily relational focus of Confucian ethics, proposes an ontology that is more process driven and an identity that is found within, not prior to, relationships. With this background in mind, it is perhaps not unsurprising that Qin Yaqing translated Alexander Wendt’s The Social Theory of International Relations within a year of its original publication. The Chinese view of order in international society is fundamentally akin to the view of social relationships that the late eminent Chinese sociologist and anthropologist Fei Xiaotong called chaxugeju, or differential association.71 Fei describes rural society as a network extending outward from the self. The network may be larger or smaller depending on the power of the person at its center. Fei distinguishes this from Western modes of association where power is located in an organization with clear boundaries, and individuals participate in an organization according to clear rules. China is caught between a yearning for status among the leading group of great powers and a reluctance to subordinate its own governance to a clear and explicit set of rules that define rights and obligations. This reluctance is both cultural and pragmatic, based on a clear-sighted recognition of the exceptional basis of its own regime in a global system dominated by liberal democracies.

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For this reason Chinese are acutely sensitive to status relations and, moreover, are adept at manipulating status differences in order to maneuver for interest advantage. We misperceive China’s search for international status as a search for specific capacity or power. The Chinese certainly aspire to a status equal to that of the United States, but status does not mean domination or pursuit of any specific goal. It is merely to correct what they see as a historic anomaly and an injustice. Beyond that they wish “order” to prevail. Within this order China has no goals other than to take care of its own needs and to oppose the use of force to acquire unilateral advantage. China does not see order as embodied in norms, values, or rules. Rules are instruments of order, not their embodiment. Therefore, the Chinese see themselves simply as partial agents in an environment of constant flux. Within this, agency is contextual and purposive only to the extent that it is relational. The irony is that China’s rise has enabled it to reassert a traditional view of world order within a structure of Westphalian sovereignty. Men Honghua, in attempting to reaffirm the traditional moralism of China’s strategic culture while trying to answer critics like Alastair Iain Johnston of the deeply “realist” coloration of China’s strategic culture, acknowledges the materialist and realist side of the culture and poses the challenge to China’s strategic thinkers as follows: “In the contemporary situation of international and domestic conditions, the challenge is how to build a cooperative strategic culture between the poles of moralism and realism has already become one of the core premises behind conceptualizing a Grand Strategy for China.”72 China’s new institutionalism or multilateralism is a recognition of a new arena of contextual social action. China’s behavior is always both interest driven and socially driven. It is driven by a desire to maintain its recognition as a significant player and as a responsible participant in group interaction. The proliferation of Chinese white papers is ample evidence of this. The white papers directed at international audiences and international players almost never deal explicitly with the purposive direction of the international group. This is more than timidity or modesty; it constitutes a distinct aversion. China’s preference for consensus over majoritarianism is not feigned. It is deeply felt. It is not for nothing that the consensus-based “new security concept” gets very high billing. China’s grand strategy is primarily built around the acquisition of greater state capacity for realizing national interests. This is the first priority recognized by Men.73 Institutionalizing a global concept of order is in second place. But his conception on the one hand recognizes the importance of order and stability but on the other reiterates self-help

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and sovereign independence as the basis of equal relations and cultural pluralism. This is how he explains “the democratization of international relations.” The best strategic notion that can be offered right now is the slogan of “win-win” alongside a hard-won recognition that the structure of the international system requires greater participation and contribution from China but also more explicit recognition that the structure of international relations has been favorable to China’s rise.

CONCLUSION China has yet to articulate a theory of great power responsibility. Insistence on sovereign equality and opposition to hegemony handicap the development of a positive theory of leading powers. In China’s relations toward both Central Asia and ASEAN, however, it is pursuing a course that combines leadership with a commitment to common prosperity and security. There is a practical assumption of responsibility without a concomitant claim of an entitlement to lead. China will take an increasingly assertive leadership role in Asia, particularly East Asia, and a supporting role globally. It will continue to insist on a central role in the UN Security Council in international conflicts as a way to parlay its leverage as a permanent member and to ensure it always has a role and a voice. This will also enable China to oppose unilateral interventions without having to confront the United States alone. China will oppose a U.S.-led “holy alliance” of democratic states with a counter-coalition that favors traditional Westphalian sovereignty and leaves ideology to the territorial state. This is the extent of China’s “illiberal internationalism.” U.S. leadership in East Asia is inevitably receding, as the current nuclear standoff with North Korea already shows. If U.S. disengagement becomes more visible, Japan is likely to see a growing polarization of opinion between proponents of Asia first and advocates of ideological solidarity with the West. Yet much depends on the skills of China’s leaders to manage both continued economic prosperity and relations with the United States (and Japan). China may be content to allow the United States to play the major role in the Middle East, but it will look to secure access to oil that does not depend on sea-lanes dominated by the U.S. Navy. Growing deference to Chinese leadership in Asia will include securing overland passage of oil through Central Asia. There is no simple probability of military confrontation between

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China and the United States, but deep differences will remain over how to deal with Iran and North Korea. The crux of China’s further development is in a new appreciation of sovereignty at the domestic level. Internationally, China has gained a new appreciation of the role of legal sovereignty in negotiating rules and adjudicating concerns about managing and encouraging transborder flows. For the first thirty years of the PRC, the overriding aim of security policy was to reinforce the external shell of the regime and the state and to make the frontier rigid. For the past quarter century, the main trend of China’s domestic and foreign policy has been to accelerate transborder flows and to evolve the legal and institutional machinery as well as the diplomatic tools required to manage such flows. The current contradiction in China’s attitudes toward the frontier and toward sovereignty is a growing disjuncture between the management of international transborder flows and dealings with multilateral organizations and how domestic governance is conceived. In international dealings, “sovereignty” is parceled out to specialized institutions and managed according to explicit and specialized rules. Domestically, sovereignty is poised in an ambiguous posture between its representative institutions and the people and the reality of party leadership and its de facto sovereign power. Pitman B. Potter views the Chinese system of power as one of patrimonial sovereignty. Today, Chinese leadership is making an increasing effort to square the circle by having the party conform to rule-based governance internally. But this process founders on the key question of custodies quis custodiet (who takes care of the caretakers?). The monolithic hierarchy of the party organization does not allow for specialized adjudication in accordance with law, a fact that is recognized in the state, by vesting the power to interpret the law in the legislative (National People’s Congress) standing committees rather than in the courts. Essentially, China’s exceptionalist posture toward human rights and many other sovereignty-related and rule-of-law issues stems from having to account for the peculiar, domestic system of sovereignty—formal sovereignty of the people with de facto party patrimonialism. This is more than a matter of face or ideology. Unless the contours of sovereignty can be defined juridically through independent judicial bodies that respond to the law and not to the secret internal dictates of the party hierarchy, there will be a permanent gap between the principles at work in adjudicating transborder flows and the workings of domestic governance. The Chinese state cannot easily maintain two contradictory logics of authority.

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By trumpeting its role as the sole defender of China’s sovereign interests, the party forfeits any status to adjudicate the contours of sovereignty that would satisfy parties in a transborder dispute. And yet, by jealously guarding its prerogatives, the party also places itself in the direct line of criticism when domestic norms fall short of internationally recognized standards. In other words, by deploying sovereignty in this manner, the CPC leaves the Chinese state as a whole liable for all the shortcomings of legal norms and institutions, but if the CPC relaxed its grip and devolved autonomy to specialized institutions, the critics would have to take account of such autonomous action when directing their criticisms at the Chinese state. The CPC, in seeking to reap all the credit for the Chinese nation, places itself in the awkward position of acknowledging all the credit, but taking all the blame, for the Chinese state. Eventually, the party might well be forced to relinquish some authority in order to bolster its legitimacy. Today, the CPC is in the peculiar position of advocating pluralism and democracy in the interstate system while seeking to curtail and control the expressions of the same domestically. Domestic and international sovereignty are interlinked. As long as the CPC seeks to monopolize political discourse domestically, it subverts and suborns the Chinese state to its own purposes. The CPC will not recognize society as a dialogic “other,” nor will it sanction the existence of a body politic. The party hopes to monopolize that role within itself, but it cannot because as a hierarchy it is oriented toward command rather than dialogue, deliberation, and persuasion. Hence, the Chinese state is handicapped in its dealings with outsiders. It is capable of diplomatic engagement at a state-to-state level, but it is not able to leverage the values of Chinese society into soft power through the direct engagement of external societies. Official Chinese statements assert China’s adherence to the values of democracy and the rule of law. Chinese dissent is today not ideological but institutional. The CPC asserts the authority of the Chinese state in the international community as an expression of the appropriateness and legitimacy of China’s domestic institutions to China’s own population. China’s domestic institutions are instrumental relative to China’s international position rather than an expression of underlying national values. Yet the Chinese are beginning to look for ways to assert the competitiveness of Chinese values through the search for some kind of “soft power.” There is a close affinity between the CPC’s insistence on its domestic monopoly and the Chinese state’s insistence on the international system as a cartel of sovereign states based on the Westphalian model.

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This is a profoundly conservative vision of international politics. The “new security concept” hailed by Chinese leaders in the past decade is aimed strictly at the preservation of the contemporary order. Its commitment to “democratization” through the redistribution of power and resources away from the dominant West, with the United States at its head, is strictly self-serving. Nevertheless, China pursues cooperation as an end in itself. China therefore presents something of a paradox. In mobilizing cooperation to the realization of other (presumably higher) values, such as human rights, the environment, or nonproliferation, China is reluctant and, at times, obstructive. However, once a cooperative project is formed, China is eager to be among the leaders steering its implementation. Despite the innate conservatism of China’s position on sovereignty, it is a dynamic, rather than passive, adherent of the status quo. China is capable of exercising limited leadership in a regional context, even promoting cooperative arrangements that sacrifice potential relative gains regionally for absolute gains that are shared and can be deployed to soften the hierarchic distribution of global power. Cooperation with the Central Asian states of the SCO and ASEAN places China in a better bargaining position vis-à-vis Russia, Japan, and especially the United States without resorting to confrontational tactics. Its leadership, however, is limited to those issues to which smaller powers can agree with and subscribe. Beyond that, China must look to others to lead. The general pattern is one of expanded influence in which the aim of cumulating regional influence will allow China greater leverage in bargaining with other great powers. Here, perhaps the best model is the facilitating role that China has played in the six-party talks on the Korean nuclear issue. China’s participation is indispensable, but China alone can neither dictate nor deliver an agreement. Even more crucial, China’s indispensable role hinges on avoiding coercive tactics to deal with its North Korean ally. In the absence of a coherent ideology to guide and manage relations among the powers within international society, China’s policy of peaceful emergence is consistent with a strategy of achieving equality with other great powers. It is that equality, rather than any reordering of international relations on hegemonic lines, that constitutes for China the achievement of true sovereign status. In the end, the achievement of China’s century-old dream of regaining status among the powers constitutes much less a fundamental revision of the international system than a profoundly conservative impulse to preserve the international system within a Westphalian structure of sovereignty. It is also the best means to ensure the stability of China’s authoritarian domestic structure. Ironically, the end result of China’s revolutionary quest

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for status among the powers is to become the most conservative power in the current system of one superpower and multiple great powers. China has already demonstrated a willingness to expend political capital in pursuit of stability in East, Southeast, and Central Asia. It remains to be seen how far China is willing to and capable of expending political capital to maintain global institutions, especially in the face of a superpower that is ambivalent about the very institutions it was instrumental in creating. Fundamentally, China pursues a grand strategy that eschews leadership. The final four characters of Deng’s tao guang yang hui are jue budang tou (“You must not take the lead”).China will not embarrass friends by forcing them to choose sides in unnecessary confrontations, nor will it fritter its strength in matching wits with the world’s leading power. Instead, China will pursue low-cost leadership regionally and seek the best bids for its cooperation internationally, all the while being engaged in incremental reforms that are designed to ensure that a “harmonious society” prevails domestically and internationally. However, no one can predict with certainty what future domestic or international crisis may persuade or provoke China’s leaders from straying from the conservative premises of its yearning for stability. For the foreseeable future China seeks to bob on the surface of a globalized world rather than see it anchored securely beneath it. Despite the rhetoric of equality and “democratization” of international relations, China’s rhetoric and domestic ideology appear more consistent with a “neo-Mencian”74 foreign policy. This policy underplays the element of power in establishing order in favor of a normative hierarchy of virtue, where status asymmetry is founded on the capacity to exercise moral leadership. This pattern is consistent with the ideological principles embedded in the theory of the “three represents” that informs the normative basis of party leadership in today’s China. Leadership is founded on the capacity to continue China’s material, technical, and cultural progress and on the capacity of the party to embody the “basic interests” of the majority. Neo-Mencian leadership can, in some respects, be compared to liberal institutionalism, where the provision of public goods—including security, open markets, and access to development—forms the basis of normative leadership and order. This system of order would have the following features: Order is normative and hierarchical. Beneficence is exchanged for deference in an asymmetrical fashion. • Equality of status is underpinned by claims of mutual respect. • •

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Formal equality requires compensatory measures from those of superior capacity. • Participation is uncoerced. •

Coercive intervention is legitimate only under the following two conditions: the maintenance of order among states not within them, and appeals to support domestic order claimed from the United Nations. This vision of order does not deal with the problems of “free ridership” nor, as in the case of China’s policy toward North Korea, does it employ coercive force where the threat to regional order is latent rather than actual. Instead, the idea of normative order is underpinned by mutual influence in a group setting. The creation of a social order involves incentives for participation and the latent threat of shunning or exclusion as the cost of defiance. Effective deployment of this normative tool involves avoidance of rules-based majoritarian decision making, as well as avoidance of divisive issues.75 In other words, leadership is limited to incentive-based suasion and last-resort, consensusbased coercion. Such a posture would contradict China’s use of force throughout the period between 1950 and 1996. Throughout this era, as Alastair Iain Johnston has pointed out, China’s propensity to use military force was above the norm.76 Moreover, this propensity was often used preemptively, actively, in an effort to demonstrate superior capacity to absorb casualties and military risk. Nevertheless, China’s use of force was conservative in that it was not used to expand the frontier, nor did China attempt to occupy foreign territory. The implication of this is that for China to exercise greater leadership, it must show more restraint. This policy is an easy one for a state that is disproportionately reaping the benefits of globalization. A neo-Mencian rhetoric clothes the reality of a foreign policy that is mostly immature and largely reactive at the global level with a mantle of virtue. And yet, we know that the legitimacy of the CPC regime is deeply dependent on assuming responsibility for distributing the benefits of globalization. At some point China’s leaders will have to confront the need to sustain global structures sustaining international trade and investment and state structures that promote transnational networks that facilitate transborder flows. It is very likely that these realities will be confronted first at the level of policy, and only gradually over the current century, will they be assimilated as elements of a new internationalist ideology and a more open national identity more consistent with liberal individualism. Such a day of reckoning is hardly imminent because China’s very success

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helps to sustain the illusion that exceptionalism is productive and superior. Ironically, the propensity of the United States to create “coalitions of the willing” to pursue international goals provides the Chinese regime with a convenient whipping boy against which to call for equality and the democratization of international relations while maintaining a worldview that is fundamentally hierarchic. Both Chinese and U.S. views are unsustainable. Each state will have to accommodate the other in articulating a position consistent with the maintenance of its own fundamental interests in an open world system. How they will accommodate the other’s equality in jointly maintaining a global hierarchy will be the major challenge of the twenty-first century.

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NOTES

I NTRODUCTION

1.

Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 332.

2.

Samuel Kim, “China’s International Engagement at the United Nations,” in Elizabeth Economy and Michel Oksenberg, eds., China Joins the World (New York: Council on Foreign Relations, 1999), 82.

3.

Alan James, “The Practice of Sovereign Statehood in Contemporary International Society,” Political Studies XLVII (1999): 457.

4.

In James’s view sovereignty is essentially a “formal” question and “as a matter of fact” it either exists or it does not. Alan James, Sovereign Statehood (London: Allen and Unwin, 1986), 49. As James Hoffman points out, however, this position is essentially self-contradictory because in the final analysis, it depends on sovereignty becoming “recognized” by other states. See John Hoffman, “Is It Time to Detach Sovereignty From the State?” in Laura Brace and John Hoffman, eds., Reclaiming Sovereignty (London and Washington: Pinter, 1997), 14.

5.

Alastair Iain Johnston, Cultural Realism: Strategic Culture and Grand Strategy in China’s History (Princeton: Princeton University Press, 1995).

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6.

This is the premise of Hedley Bull’s “Eurocentric” view of international society. See Hedley Bull, The Anarchical Society (New York: Columbia, 1977) and, more directly, Hedley Bull and Andrew Watson, The Expansion of International Society (New York: Oxford, 1984).

7.

At first glance the Chinese standard of culture looks remarkably like the norms of “civilization” espoused by the “English School” of international relations. See Gerrit W. Gong, The Standard of Civilization in International Society (New York: Oxford, 1984).

8.

Michael D. Swaine and Ashley J. Tellis, Interpreting China’s Grand Strategy: Past, Present and Future (Santa Monica, CA: Rand Corporation, 2000), especially chapter 4.

9.

Fredrik Barth, Ethnic Groups and Boundaries: The Social Organization of Cultural Difference (London: Allen and Unwin, 1969), 16.

10.

Alastair Iain Johnston has effectively done this analysis in “Is China a Status Quo Power?” in International Security 27, no. 4 (Spring 2003): 1–56.

11.

Wendt, Social Theory of International Politics.

12.

Ibid., especially 314–32. See also Alexander Wendt, “Anarchy Is What States Make of It: The Social Construction of Power Politics,” International Organization 46, no.2 (Spring 1992), 390-425.

13.

David Mapel and Terry Nardin, International Society: Diverse Ethical Perspectives (Princeton: Princeton University Press, 1998).

14.

Chinese trade has increased in double-digit figures for more than a decade, and China’s ranking as a world trader has risen from about thirtieth in 1978 to thirteenth in 1988 to sixth in 2001 to fourth in 2005. If approximately 60 percent of trade is generated by foreign enterprises that have invested in China, and these enterprises now account for approximately 50 million employees, then it is a reasonable estimate that about 10 percent of China’s population is involved in fairly regular foreign contacts.

15.

Barrett L. McCormick and David Kelly, “The Limits of Anti-Liberalism,” in The Journal of Asian Studies 53, no. 3 (August 1994): 804.

16.

“We live in an era in which a critique of [the] west has become not only possible, but mandatory. Where does this critique leave those ethnic peoples whose entry into culture is precisely because of the history of

Notes

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western imperialism, already ‘westernized’? … The task facing us is not the advocacy of a return to pure ethnic origins. Rather it is to articulate the specific ways in which ethnicity, as a site both of an inevitable cultural predicament and of possible formation of collective identitiesin-resistance, functions.” Rey Chow, Woman in Chinese Modernity: the Politics of Reading Between East and West (Minneapolis: University of Minnesota Press, 1991), xi. 17.

For a comparative discussion of the cultural dimensions of the great revolutions of modernity see S. N. Eisenstadt, “The Civilizational Dimension of Politics: Some Indications for Comparative Analysis,” in Dankwart A. Rustow and Kenneth Paul Erickson, eds., Comparative Political Dynamics: Global Research Perspectives (New York: HarperCollins, 1991), 54–71.

18.

See Samuel P. Huntington, “The Clash of Civilizations?” Foreign Affairs 72, no. 3 (Summer 1993), 22-49.

19.

Confucianism has, of course, been criticized for particularism on the grounds that its particular emphasis on the “five relationships” (wugang) places particularistic norms as its core values. However, the major thrust of Mencian Confucianism, as revalorized in neo-Confucianism, is the formula of the unity of heaven with man (Tianren heyi). This is a universal imperative. The program for the extension of virtue laid out in the Great Learning—cultivate the self, uplift the family, rule the state, pacify the world (xiushen qijia zhiguo ping tianxia)—”universalizes the particular” two millennia prior to the birth of Hegel. Pamela Kyle Crossley addresses the issue of universalism versus particularism in A Translucent Mirror: History and Identity in Qing Imperial Ideology (Berkeley: University of California Press, 1999). She prefers to translate tianxia as “world” rather than universe. One important contribution of this work is to contrast the pluralistic universalism of imperial ideology with the monistic universalism of republican ideology (see 35–37).

20.

Xiaomei Chen, Occidentalism: A Theory of Counter-Discourse in PostMao China (Oxford: Oxford University Press, 1995), .

21.

Ibid., 5.

22.

See, for example, Charles Tilly, ed., The Formation of Nation States in Western Europe (Princeton: Princeton University Press, 1975).

23.

Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1991).

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24.

Benedict Anderson might suggest the former, whereas Ernest Gellner and, to some extent, Chatterjee suggest the latter. See Ernest Gellner, Nations and Nationalism (Ithaca, NY: Cornell University Press, 1983).

25.

See, for example, Peter Apter, Nationalism (London: Hodder and Stroughton, 1989), 5.

26.

See Joseph R. Levenson, Liang Ch’i-ch’ao and the Mind of Modern China (Berkeley: University of California Press, 1967), 1–8.

27.

“The assumption that the study of China’s cultural heritage by modern methods resembled a feature of the European Renaissance is not even half true. The early critical study of Chinese antiquity and the classics was really an attack upon them aimed at replacing the old by new findings. ‘Down with Confucius and Sons’ was the spirit of the times. The main current in the May Fourth Movement was never the restoration of the ancient spirit. If there was any restoration, it was a rediscovery of the real nature of antiquity as a result of the New learning from the West. The new learning of the modern world constituted a driving force of the movement, while the study of the heritage was only one of the fruits of this new learning. … Chinese antiquity and classics differed in essence from those of ancient Greece. Science and democracy were not features of ancient China.” Chou Tse-tsung, The May Fourth Movement: Intellectual Revolution in Modern China (Palo Alto, CA: Stanford University Press, 1967), 340.

28.

Joseph R. Levenson, “‘History’ and ‘Value’: The Tensions of Intellectual Choice in Modern China,” in Arthur F. Wright, ed., Studies in Chinese Thought (Chicago: University of Chicago Press, 1953), 146–94. For further discussion of Levenson’s views on the problem of history and value see Frederick E. Wakeman, foreword to Revolution and Cosmopolitanism: The Western Stage and the Chinese Stage, by Joseph R. Levenson (Berkeley: University of California Press, 1971), ix–xxix.

29.

Li Zehou is probably the most prominent “modernist” of a universalistic persuasion.

30.

Professor Masakazu Yamazaki has argued that universal civilization is a Western invention and that the Confucian civilization did not exist as a universal civilization, only as a local Chinese one. Although he argues that the universal civilization invented in the West provides a “framework of equidistance” in which different cultures can participate, I doubt very much that many Chinese will accept the notion of universal civilization with an exclusively Western pedigree. See Masakazu Yamazaki,

Notes

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“Asia: A Civilization in the Making,” Foreign Affairs 75, no. 4 (July–August 1996): 106. 31.

Wherever I refer to Chinese culture or the Chinese tradition, it should be assumed that all “differences” between the Chinese cultural order and “the West” are connotative rather than denotative. Words and phrases might carry additional senses that may or may not be present in any particular context. Dictionary translations may be perfectly correct, but they may fail to capture additional overtones and undertones that affect value choices.

32.

Jiang Zemin, “Speech to Fortune Global Forum 2001,” Hong Kong, May 8, 2001.

33. The original expression of this came in Joseph Nye, Bound to Lead and, more recently, in Joseph S. Nye Jr., Soft Power: The Means to Success in World Politics (New York: Public Affairs, 2004). 34.

Wendt, Social Theory of International Politics, 86.

35.

Martha Finnemore, National Interests in International Society (Ithaca, NY: Cornell University Press, 1996).

36.

Wendt, Social Theory of International Politics, 96.

37.

Ibid., 104.

38.

This is a paraphrased translation of Mao Zedong in “Reform Our Study.” See Selected Readings from the Works of Mao Tse-tung (Beijing: Foreign Languages Press, 1967), 167.

39.

See S. N. Eisenstadt, “The Civilizational Dimension of Politics: Some Indications for Comparative Analysis,” in Dankwart A. Rustow and Kenneth Paul Erickson, eds., Comparative Political Dynamics: Global Research Perspectives (New York: HarperCollins, 1991), 54–71.

40.

Rosemary Foot, “Chinese Power and the Idea of a Responsible State,” The China Journal, no. 45 (January 2001): 18–19.

41.

Anthony Giddens, The Nation-State and Violence (Cambridge: Polity Press, 1983), 219.

42.

Francois Julien alludes to a similar process of understanding self and other in his book Detour and Access: Strategies of Meaning in China and Greece (New York: Zone Books, 2000), 15–34.

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43.

Chen, Occidentalism, 7.

44.

Following the Iwakura mission of 1873 the Japanese Meiji leader Norizaku Wakayama argued that political economy varied according to a country’s “national situation.” See The Complete Works of Norizaku Wakayama (Tokyo, 1940), 772, cited in Chuhei Sugiyama, The Origins of Economic Thought in Modern Japan (New York: Routledge, 1994), 99.

45.

Yan Xuetong, Zhongguo guojia liyi fenxi [Analysis of China’s National Interest] (Tianjin: Renmin Chubanshe 1995), cited in Yongnian Zheng, Discovering Chinese Nationalism in China: Modernization Identity and International Relations (Cambridge: Cambridge Asia-Pacific Studies, 1999), 145.

46.

The following quotation from Deng Xiaoping, as the Cold War was ending and the Soviet Union headed toward dissolution, neatly summarizes China’s sense of historical importance: “The situation in which the United States and the Soviet Union dominated all international affairs is changing. Nevertheless, in future when the world becomes threepolar, four-polar or five-polar, the Soviet Union, no matter how weakened it may be and even if some of its republics withdraw from it, will still be one pole. In the so-called multi-polar world, China too will be a pole. We should not belittle our own importance: one way or another, China will be counted as a pole.” Deng Xiaoping, “The International Situation and Economic Problems,” 3 March 1990, Selected Works III. http://english.peopledaily.com.cn/dengxp/vol3/text/d1130.html.

C HAPTER 1

1.

The following section draws on the paper “Defining Sovereignty,” written and presented jointly with Oded Lownheim at the 45th Annual Meeting of the International Studies Association, March 19, 2004, Montreal, Canada.

2.

Cynthia Weber, Simulating Sovereignty: The State, Intervention and Symbolic Exchange (Cambridge: Cambridge University Press, 1995).

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251

3.

Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999).

4.

Peter M. Haas and Ernst B. Haas, “Pragmatic Constructivism and the Study of International Institutions,” Millenium 31, no. 3 (2002): 573–601.

5.

See F. H. Hinsley, Sovereignty, 2d ed. (Cambridge: Cambridge University Press, 1986).

6.

See Janice E. Thomson, “State Sovereignty in International Relations: Bridging the Gap Between Theory and Empirical Research,” International Studies Quarterly 39, no. 2 (June 1995): 213–33; see also the same author’s Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994).

7.

See Hendrik Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton: Princeton University Press, 1994).

8.

Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 292.

9.

Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton: Princeton University Press, 2001), 13.

10.

Thomas J. Biersteker and Cynthia Weber, “The Social Construction of State Sovereignty,” in Thomas J. Biersteker and Cynthia Weber, eds., State Sovereignty as a Social Construct (Cambridge: Cambridge University Press, 1996), 2.

11.

Martin Wight, System of States (Leicester: Leicester University Press, 1977), 23.

12.

David Strang, “Contested Sovereignty: The Social Construction of Colonial Imperialism,” in Biersteker and Weber, eds., State Sovereignty, 22.

13.

Alexander Wendt and Daniel Friedheim, “Hierarchy under Anarchy: Informal Empire and the East German State,” in Biersteker and Weber, eds., State Sovereignty, 247–48.

14.

Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995), 53–54.

15.

Ibid., 52–53.

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16.

Hedley Bull, The Anarchical Society (New York: Columbia University Press, 1977), 202.

17.

In this context, see Rodney Hall’s discussion of power as a social convention. Rodney Bruce Hall, “Moral Authority as a Power Resource,” International Organization 51, no. 4 (Autumn 1997): 591–622.

18.

Chris Brown, Sovereignty, Rights and Justice: International Political Theory Today (Cambridge Polity Press, 2002), 36.

19.

Jon Elster distinguishes social norms both from laws and from a consequentialist calculus. “[S]ocial norms consist of non-consequentialist obligations and interdictions from which permissions may be derived.” Norms differ from laws because obedience to law is often founded on purely outcome-centered grounds. Norms further differ from conventions because they too are guided by outcomes in a substantive sense, not just in the formal sense that people want to avoid disapproval. See Jon Elster, The Cement of Society (Cambridge: Cambridge University Press, 1989), 101–2. Elster’s analysis undermines the dichotomy that Krasner erects between consequentialist logic and hypocrisy in dealing with logics of appropriateness—social norms.

20.

Bull, The Anarchical Society, 223.

21.

Ibid., 12–20.

22.

See G. John Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars (Princeton: Princeton University Press, 2001), 32.

23.

See David Lake, “The New Sovereignty in International Relations,” International Studies Review 5, no. 3 (2003).

24.

In the context of the strong avoiding certain means of destruction against the weak, see Nina Tannenwald’s analysis of the American nonuse of nuclear weapons—even against such smaller powers as Korea and Vietnam—since 1945. Nina Tannenwald, “The Nuclear Taboo: The United States and the Normative Basis of Nuclear Non-Use,” International Organization 53, no. 3 (Autumn 1999): 433–68. On the distinction between probability and possibility see Wendt, Social Theory, and Dale C. Copeland, “The Constructivist Challenge to Structural Realism: A Review Essay,” International Security 25, no. 2 (Autumn 2000): 187–212, where he argues that the problem of uncertainty in international relations strengthens “possibility” over “probability.”

Notes

253

25.

See Miroslav Nincic, “Deviance and the International System.”

26.

Dieter Hüning, “From the Virtue of Justice to the Concept of Legal Order: The Significance of the suum cuique tribuere in Hobbes’ Political Philosophy,” in I. Hunter and D. Saunders, eds., Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought (New York: Palgrave-Macmillan, 2002), 140.

27.

See Hughes Graham and Ted Gurr, The History of Violence in America: Historical and Comparative Perspectives (New York: Frederick Praeger, 1969).

28.

See Hüning, “From the Virtue of Justice to the Concept of Legal Order,” inHunter and Saunders, eds., Natural Law and Civil Sovereignty,139–52.

29.

See Peter Schröder, “Natural Law, Sovereignty, and International Law: A Comparative Perspective,” in Hunter and Saunders, eds., Natural Law and Civil Sovereignty, 204–18.

30.

Ibid., 208.

31.

See Ian Hunter and David Saunders, “Introduction,” in Hunter and Saunders, eds., Natural Law and Civil Sovereignty, 1–10.

32.

Hedley Bull, Benedict Kingsbury, and Adam Roberts, Hugo Grotius and International Relations (New York: Oxford University Press, 1992), 78.

33.

Hunter and Saunders, Natural Law and Civil Sovereignty, ibid.

34.

Reus-Smit, The Moral Purpose of the State, (Princeton, N.J.: Princeton University Press, 1999), chapter 5.

35.

“Nations, being composed of men naturally free and independent, and having prior to the establishment of civil society having lived together in the state of nature, nations, or sovereign states, should be considered as being free persons who live among each other in the state of nature.” Emmerich de Vattel, Le droit de gens I, s. 4 (Paris : Chez Janet et Cotelle, 1820), 2.

36.

On the concept of harm see Andrew Linklater, “Towards a Critical Historical Sociology of Transnational Harm,” in S. Hobden and J. M. Hobson, eds., Historical Sociology of International Relations (Cambridge: Cambridge University Press, 2002), 162–80.

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37.

See Benjamin Schwartz, China and Other Matters (Cambridge, MA: Harvard University Press, 1996), 116.

38.

Ibid., 114–115.

39.

See www.comparative-religion.com/confucianism/great_learning/ (accessed June 21, 2004). The word translated as “kingdom” here is tianxia—the “all-under heaven,” or more accurately, the “world.” Therefore, the Confucian paradigm draws a clear line of causation between personal moral cultivation and the pacification of the world.

40.

Ibid., 29–32.

41.

Harro von Senger, “Chinese Culture and Human Rights,” in Wolfgang Schmaele, ed., Human Rights and Cultural Diversity (Goldbach, Germany: Koep Publishing, 1993), 303.

42.

F. H. Hinseley views the tension between imperium and res publica as an important factor that stimulates the emergence of modern Western notions of sovereignty. See F. H. Hinseley, Sovereignty (New York: Basic Books, 1966).

43.

Rolf Trauzettel, “Historical Aspects of the Individual-Society Relationship in China,” in C. A. Seyschab and A. S. Szynkiewicz, eds., Society, Culture and Patterns of Behavior (Unkel/Rhein, Germany: Horlemann, 1990), 42.

44.

This forms an explicit element of the criticism launched by Mencius against his rivals in the Mohist school. The followers of Mo Zi were themselves utilitarian meritocrats who believed equally in the importance of hierarchy. See Mencius 12:9. www.comparativereligion.com/confucianism/mencius/mencius_chapter12.php. For Mo Zi’s view on “universal love” see chapter 14, and on “identification with superiors” see chapter 11. See also Burton Watson, trans., Mo Zi: Basic Writings (New York: Columbia University Press, 1964).

45.

Hinseley, Sovereignty, 32.

46.

Trauzettel, “Historical Aspects of the Individual-Society Relationship,” 50–51.

47.

For the roots of this cosmological conception of imperial sovereignty see Michael Loewe, “Imperial Sovereignty: Dong Zhongshu’s Contribution and His Predecessors,” in Stuart Schram, ed., Foundation and

Notes

255

Limits of State Power in China (London: School of Oriental and African Studies, 1987), 33–57. 48.

Shen Dao (fourth century B.C.E.) cited in Anthony Huselwé, “Law as One of the Foundations of State Power in Early Imperial China,” in Schram, ed., Foundations and Limits of State Power in China, 12 [my translation].

49.

Ibid.

50.

See Bernard Hung-kay Luk, “State, Nation, Country and Fatherland: An Etymology of Patriotism in Modern Chinese,” paper presented at the University of Toronto–York University Joint Centre of Asia Pacific Studies Conference on Nationalism and Postnationalism, Toronto, September 7, 1996. Unpublished manuscript on file with the author.

51.

This was one aspect of the so-called Great Rites Controversy of 1521–25, when the Jiajing Emperor insisted on offering ancestral sacrifices to his biological father instead of his putative imperial forebear, the Hongzhi Emperor. It was a case where continuity of imperial succession in a Confucian setting collided with the emperor’s personal feelings of filial piety. In a later succession controversy, the integrity of imperial authority came more to the fore. See Marianne Bastide, “Official Conceptions of Imperial Authority at the End of the Ming Dynasty,” in Schram, ed., Foundations and Limits of State Power in China, 147–85.

52.

For details of the Ming-Qing transition and the associated mass suicides, see Frederic Wakeman, The Great Enterprise: The Manchu Reconstruction of Imperial Order in Seventeenth-Century China (Berkeley and Los Angeles: University of California Press, 1985).

53.

The paradigmatic figure of this outlook is the poet-statesman, Qu Yuan (340?–278 B.C.E.), whose suicide by drowning following intrigue at court is commemorated at the beginning of every summer on the Duanwu holiday, when the Chinese race dragon boats and eat mulberry leaves stuffed with sticky rice in a symbolic effort to save the tragic hero from being eaten by fish. See www.chinapage.com/quyuan2.html.

54.

See Mencius, 23:1. www.sacred-texts.com/cfu/menc/menc23.htm.

55.

For a comprehensive look at this moral imperative, see Thomas Metzger, Escape from Predicament: NeoConfucianism and China’s Evolving Political Culture (New York: Columbia, 1977).

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56.

Etienne Balazs, Chinese Civilization and Bureaucracy: Variations on a Theme (New Haven: Yale University Press, 1965).

57.

See Liu Zongyuan, “Fengjianlun,” in Liu Zongyuan Shiwen Xuanzhu (Shanghai: Renmin Chubanshe, 1974), 95–107. See also David McMullen “Views of the State in Du You and Liu Zongyuan,” in Schram, ed., Foundations and Limits of State Power in China, 59–85.

58.

Ibid., 97.

59.

Thomas Hobbes, Leviathan, part I: “Of Man,” chapter 13. http://darkwing.uoregon.edu/~rbear/hobbes/leviathan.html.

60.

Mencius saw the unification of laws under a single ruler as the basis of an ordered society. See Mencius, chapter 11. www.chinapage.com/big5/classic/mz0.

61.

The architects of Japanese Meiji Constitutionalism incorporated the notion of the emperor as “body of the state,” with constitutional theories derived from Prussia and Bluntschli to arrive at the theory of Kokutai, where the emperor was conceived as the organic unity of the state and its constitution.

62.

Huang Zongxi, Waiting for the Dawn, trans. Wm. Theodore De Bary (New York: Columbia, 1998), 97.

63.

Ibid., 99.

64.

Pamela Kyle Crossley, A Translucent Mirror: History and Identity in Qing Imperial Ideology (Berkeley: University of California Press, 2000), introduction.

65.

Alexander Woodside, “Emperors and the Chinese Political System,” in K. Lieberthal, Joyce Kallgren, Roderick MacFarquar, and Frederick Wakeman Jr., eds., Four Anniversaries: Perspectives on Modern China (Armonk, NY: M. E. Sharpe, 1991), 5–30.

66.

See, for example, Ernest Barker, Social Contract (New York: Oxford University Press, 1962), xvi: “We are generally prone to think of Locke as the exponent of the Social Contract. It would be more just to think of him as the exponent of the sovereignty of Natural Law. He put into plain English, and he dressed in an English dress of sober grey cloth, doctrines which ultimately go back to the Porch and the Stoic teachers of antiquity. There is, he taught, a Natural Law rooted and grounded in the reasonable nature of man; there are Natural Rights, existing in virtue

Notes

257

of such law, among which the right of property, in things with which men have mixed their labour, is cardinal; and finally there is a natural system of government, under which all political power is a trust for the benefit of the people (to ensure their living by natural law, and in the enjoyment of natural rights), and the people themselves are at once the creators and beneficiaries of that trust.” 67.

See Joseph Needham, Human Laws and Laws of Nature in China and the West (London: Oxford University Press, 1951), 22.

68.

See David L. Hall and Roger T. Ames, Thinking Through Confucius (Albany, NY: SUNY Press, 1987), 17: “The ubiquity of the concept of transcendence in the Western tradition has introduced into our conceptual inventory a host of disjunctive concepts—God and the world, being and not being, subject and object, mind and body, reality and appearance, good and evil, knowledge and ignorance. … The mutual immanence of the primary elements of the Confucian cosmos—heaven, earth and man—precludes the use of the language of transcendence and therefore renders any sort of dualistic contrast pernicious.”

69.

Thomas B. Stephens, Order and Discipline in China: The Shanghai Mixed Court 1911–27 (Seattle: University of Washington Press, 1992), 4.

70.

Trauzettel, “Historical Aspects,” 38.

71.

Ibid.

72.

Needham, Human Law and the Laws of Nature. A substantially similar version of this argument is found in Joseph Needham, Science and Civilization in China, vol. 2, History of Scientific Thought (Cambridge: Cambridge University Press, 1956), 518–83.

73.

Needham, Human Law, 30.

74.

See, for example, Luo Guang, Zhongxi falü zhexue zhi bijiao yanjiu [A Comparison of Chinese and Western Legal Philosophy] (Taipei: Zhongyang wenwu gongyingshe, 1970), 41–57.

75.

Ibid.

76.

Hall and Ames, Thinking Through Confucius, 160.

77.

Even the Chinese approach to “obligations” is not exactly equivalent to its Western counterpart. As has already been seen, the Chinese approach eschews strictly defined “rules.” By contrast, the legal positivist H. L. A.

258

The Empire’s New Clothes / Jeremy T. Paltiel Hart argues, “the statement that someone has or is under an obligation does indeed imply the existence of a rule.” H. L. A. Hart, The Concept of Law (New York: Oxford University Press, 1961), 83.

78.

In China Among Equals (Berkeley: University of California Press, 1983), Morris Rossabi deals with the problem of China’s foreign relations during the period 900–1200, when the Chinese empire was divided and when the weak Song administration had to contend with powerful Turkic and Tatar states impinging on it. Rossabi makes it clear, however, that pragmatic accommodation to powerful neighboring states was not accompanied by an ideological readjustment in imperial rhetoric concerning the universality of the Chinese empire or its linchpin role.

79.

For an extensive discussion of the relationship between the concept of sovereignty, the state, and the rule of law, see Alexander Passerin d’Entrèves, The Notion of the State: An Introduction to Political Theory (Oxford: Oxford University Press, 1967), 74: “The modern state is a legal system. The power it exercises is not mere force, but force applied in the name of, and in accordance with, a body of rules, from which we infer that a State ‘exists.’” Furthermore, he stresses that, as far back as Aristotle, “[t]his can only mean that the State is a complex of relations between man and man according to rules which can be known and assessed—that the State is a ‘legal system.’ Hobbes and Bodin emphasize unity and indivisibility of sovereignty. But sovereignty is first and foremost a legal concept not an attribute of power” ( 110).

80.

Grotius, quoted in Bull, Kingsbury, and Roberts, Hugo Grotius and International Relations, 126–27.

81.

Wendt, Social Theory, 209.

82.

Hans Kelsen, “Sovereignty and International Law,” in W. J. Stankiewicz, ed., In Defense of Sovereignty (New York: Oxford University Press, 1969), 116–17.

83.

See Hans Morgenthau, Politics Among Nations.

84.

Janice E. Thompson, “Sovereignty in Historical Perspective: The Evolution of State Control Over Extraterritorial Violence,” in James Caporaso, ed., The Elusive State (Newberry Park, CA: Sage, 1989), 227–54. See also Jens Bartelson and Cynthia Weber.

85.

Alexander Wendt, “Anarchy Is What States Make of It: The Social Construction of Power Politics,” International Organization 46, no. 2 (Spring 1992): 412.

Notes

259

86.

George Sansom, The Western World and Japan (New York: Knopf, 1948).

87.

Zhang Yongjin, China in the International System 1918–20: The Middle Kingdom at the Periphery (Hounsdworth: MacMillan, 1991), 11–12.

88.

Joseph Sebes, trans. and ed., The Jesuits and the Sino-Russian Treaty of Nerchinsk: The Diary of Thomas Pereira (Rome: Institutum Historicum S. I., 1961), 15–120, cited in Yang Ziwei, “Jindai Guojifa Xuru Zhongguo ji qi Yingxiang” [The Absorption of Modern International Law into China and Its Influence[, Faxue yanjiu no. 3 (1999): 123.

89.

See James Hevia, Cherishing Men from Afar: Qing Guest Ritual and the Macartney Embassy of 1793 (Durham, NC: Duke University Press, 1995).

90.

Ibid.

91.

Ibid. This was retrospectively made one of the most important “causes” behind the Opium War. Incidentally, the word “kowtow” first enters the English language after reports of Macartney’s mission were received.

92.

In defending the prosecution of the First Opium War in the House of Lords, Lord Wellington saw the casus belli as the right of Englishmen not to be subjected to Chinese law. See Gregory Blue, “Opium for China,” in Timothy Brook and Bob Wakabayashi, eds., Opium Regimes: China, Britain and Japan 1839–1952 (Berkeley and Los Angeles: University of California Press, 2000), 36.

93.

Lin Tse-hsu, “ Moral Advice to Queen Victoria, 1839,” in Ssu-Yu Teng and John K. Fairbank, eds., China’s Response to the West: Documentary Survey 1839–1923 (New York: Athenaeum, 1970), 24–25.

94.

Yang, “Jindai Guojifa,”127.

95.

James Matheson, who rallied support for an expedition against China in support of the opium merchants from British Foreign Secretary Lord Palmerston, also cited Emmerich de Vattel in support of his cause, arguing that no government had the right to stop its subjects from enjoying the benefits of free trade. See Brian Inglis, The Opium War (London: Hodder and Stoughton, 1976), 131.

96.

The opium trade with China supplied between 10 tand15 percent of the revenues of British India. See John King Fairbank, The United States and China (New York: Viking, 1962), 123.

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97.

Westel W. Willoughby, Foreign Rights and Interests in China (Baltimore: Johns Hopkins University Press, 1927); G. W. Keeton, The Development of Extraterritoriality in China, vol. II (facsimile edition) (New York: Fertig, 1969); Wesley R. Fishel, The End of Extraterritoriality in China (Berkeley and Los Angeles: University of California Press, 1952).

98.

The British, including the foreign secretary in his addresses to Parliament, never specifically referred to opium as the interest over which the war was fought. The key issue was diplomatic status, or sovereignty. See Inglis, The Opium War.

99.

Keeton, The Development of Extraterritoriality in China, vol. I, 2.

100. Ibid., 11. 101. Ibid., 13. 102. Yang, “Jindai Guojifa,”126. 103. See Masataka Banno, China and the West, 1858–1861: The Origins of the Tsungli Yamen (Cambridge, MA.: Harvard University Press, 1964), 3–24. For the ways in which the court interpreted the treaty system see John K. Fairbank, The United States and China. 104. Lydia H. Liu, “Legislating the Universal: The Circulation of International Law in the Nineteenth Century,” in Lydia H. Liu, ed., Tokens of Exchange: The Problem of Translation in Global Circulations (Durham, NC: Duke University Press, 1999), 156. 105. Gerrit Gong, The Standard of “Civilization” in International Society (Oxford: Oxford University Press, 1984), 29. 106. Immannuel C. Y. Hsu, China’s Entry into the Family of Nations: The Diplomatic Phase 1858–1880 (Cambridge, MA: Harvard University Press, 1960), 130. 107. Japanese translators of the word right initially had great difficulty with this term. At first the temptation was to translate it as bun or fen, the Confucian term that means acting in accordance with one’s social station or role. Subsequently, in translating the word rights, the Japanese translator, educator, and publicist Fukuzawa Yukichi used the Confucian term tsugi or tongyi, which corresponded to a notion of something thoroughly in accord with the principles of righteousness. Quanli, however, subsequently became the preferred translation in Japanese also.

Notes

261

108. George Sansom, The Western World and Japan (New York: Knopf, 1948). 109. See Marius B. Jansen, ed., The Cambridge History of Japan, vol 4: The Ninenteenth Century (Cambridge: Cambridge University Press, 1989), 31–33. 110. Article XII of the commercial treaty contained this promise by Great Britain: “China having expressed a strong desire to reform her judicial system and to bring it into accord with that of Western Nations, Great Britain agrees to give every assistance to such reform and she would also be prepared to relinquish her extraterritorial rights when she is satisfied that Chinese laws, their arrangement of their administration and other contents warrant her so doing.” Cited in G. W. Keeton, The Development of Extraterritoriality in China, vol. II (New York: Fertig, 1969), 12. 111. Mary Clabaugh Wright, China in Revolution: The First Phase 1900–1913 (New Haven: Yale University Press, 1968), 4. 112. P’eng-yuan Chang, “The Constitutnionalists,” in Wright, China in Revolution, 154. 113. Zhang, China in the International System, 34. 114. Jianfu Chen, Chinese Law: Towards an Understanding of Its Nature and Development (The Hague: Kluwer, 1999), 21. 115. Joseph Levenson, Liang Ch’I-ch’ao and the Mind of Modern China (Berkeley: University of California Press, 1967), 116. 116. Bernard Hung-kay Luk “State, Nation, Country, and Fatherland,” (Unpublished MS presented at the University of Toronto, September 2000), 117. “Zhonghua minzu linshi Yuefa” [Provisional Constitution of the Chinese Nation], in Dong Yunhu and Liu Wuping, eds, Shijie Renquan yuefa zong lan [Compendium of world human rights charters] (Chengdu: Sichuan Remin Cubanshe, 1991), 734. 118. Cited in Lucien Bianco, Origins of the Chinese Revolution 1915–1949 (Palo Alto, CA: Stanford University Press, 1971), 42. 119. Cited in Tu Weiming, “Intellectual Effervescence in China,” Daedalus 121, no. 2 (Spring 1992): 279.

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120. See Henrietta Harrison, China: Inventing the Nation (New York: Oxford University Press, 2001). 121. Margaret MacMillan, Paris 1919: Six Months That Changed the World (New York: Random House, 2002), 322–44. 122. Fishel, The End of Extraterritoriality in China, 57. 123. Liu Jie, Jingji Quanqiuhua Shidai de Guojia Zhuquan [National Sovereignty in Times of Economic Globalization] (Beijing: Changzheng Chubanshe, 2001), 241–42. See also Willoughby, Foreign Rights and Interests in China, and Keeton, The Development of Extraterritoriality in China, vol. II, 32. 124. Liu Jie., Jingji Quanqiuhua Shidai, 242. 125. Fishel, The End of Extraterritoriality in China, 219. 126. See William C. Kirby, “The Internationalization of China: Foreign Relations at Home and Abroad in the Republican Era,” in Frederick Wakeman and Louis B. Edmonds, eds., Reassessing Republican China (New York: Oxford University Press, 2000), 186–87. 127. Fishel, The End of Extraterritoriality in China, 213. 128. Townsend Hoops and Douglas Brinkley, FDR and the Creation of the UN (New Haven: Yale University Press, 1997), 70;. See also Tang Tsou, America’s Failure in China 1941–50 (Chicago: University of Chicago Press, 1969), 38–58. 129. Hoops and Brinkley, FDR and the Creation of the UN, 70. 130. Liu, Jingji Quanqiuhua Shida, 244. 131. Ibid., 245–47.

Notes

263

C HAPTER 2

1.

Yongjin Zhang, China in International Society Since 1949: Alienation and Beyond (New York: St. Martin’s Press, 1998), 13.

2.

Hedley Bull and Adam Watson, The Expansion of International Society (New York: Oxford University Press, 1984).

3.

For the idea of sovereignty as a “status” see Frederick C. Whelan, “Legal Positivism and International Society,” in David Mapel and Terry Nardin, eds., International Society: Diverse Ethical Perspectives (Princeton: Princeton University Press, 1998), 36–53. For the notion that “international society” as a collectivity of equal sovereign states is complemented by imperial domination and colonialism see Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002).

4.

James Hevia describes the encounter between Great Britain and the Qing court at the time of Lord Macartney’s mission as one between two “imperial formations.” See James Hevia, Cherishing Men from Afar: Qing Guest Ritual and the Macartney Embassy of 1793 (Durham, NC: Duke University Press, 1995).

5.

Wang Mingming, “Tazhe de yiyi: lun xiandai renleixue de houxiandaixing” [The Meaning of “the Other”: On Post-Modernity in Anthropology], in Zhao Ningyang, ed., Xiandaixing yu Zhongguo [Modernity and China] (Guangzhou: Guangdong Jiaoyu Chubanshe, 2000), 279–313. The author warns against casting the West in the role of “the other” for China’s modernization project. He sees facile latching on to Western critiques of the West by Chinese scholars as a barrier to self-understanding that will only leave China perpetually behind.

6.

Hedley Bull insists that the rights of sovereign states derive from the rules of the international community, and states cannot exist outside these rules. See Hideaki Shinoda, Re-examining Sovereignty: From Classical Theory to the Global Age (New York: St. Martin’s Press, 2000), 138.

7.

“The nation can be grasped as a ‘sacred communion of citizens,’ a felt and willed communion of those who assert a particular moral faith and feel an ancestral affinity.” See Anthony D. Smith, “The Sacred Dimension of Nationalism,” Millennium 29, no. 3 (2000): 792.

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8.

James Mayall, Nationalism and International Society (Cambridge: Cambridge University Press, 1990), 20.

9.

Mao Zedong, Selected Works of Mao Tse-tung, vol. 5 (Beijing: Foreign Languages Press, 1977), 15–18. www.people.com.cn/GB/shizheng/ 8198/30446/30452/2199907.html.

10.

Yongjin Zhang refutes the idea that the PRC engaged in a policy of isolation in its first two decades. He argues, instead, that the policies of the United States and its allies alienated China. There is truth to his argument, but it is also true that Mao’s foreign policy subordinated recognition by international society to other priorities, namely, effective sovereignty over the frontier and effective sovereignty by the CCP within the state. The latter necessitated curtailing transborder interactions as a practical and ideological matter. For Zhang’s views see China in International Society Since 1949, especially 18–20. For proof of Mao’s ambivalence about joining the United Nations see “Guanyu huifu Zhongguo zai Lianheguo de hefa xiwei wenti” [On Restoring China’s Lawful Seat at the UN] (based on a talk with Indonesian President Sukarno, September 30, 1956), in Selected Works of Mao Tse-tung, vol. 7, www. people.com.cn/GB/shizheng/8198/30446/30452/2196034.html.

11.

See “Directive of the Central Committee of the Chinese Communist Party on the Abolition of the Six Codes and the Establishment of the Principles of the Judicial System in the Liberated Areas” (February 1949), cited in Han Yanlong, Zhongghua Renmin Gongheguo Fazhi Tongshi [A Comprehensive History of the Legal System of the People’s Republic of China, vol. 1 (Beijing: Zhonggong Zhongyang Dangxiao Chubanshe, 1998), 18.

12.

See Jianfu Chen, From Administrative Authorization to Private Law: A Comparative Perspective on the Developing Civil Law in the People’s Republic of China (Leyden: Martinus Nijhoff, 1995), 33–35.

13.

Mao Zedong, Selected Works IV (Beijing: Foreign Languages Press, 1967).

14.

For Mao’s decision making on entering the Korean War see Shu Guan Zhang, Mao’s Military Romanticism: China and the Korean War 1950–1953 (Lawrence, KS: University Press of Kansas, 1995), 55–94, especially 81, where Mao argues that a passive response to U.S. intervention in Korea would leave China’s northeast frontier vulnerable. That, in turn, would allow the United States to consolidate a favorable geopolitical position in East Asia, further allowing attacks on China from Taiwan and Southeast Asia. For other sources see Sergei Goncharov, John W. Lewis, and Xue Litai, Uncertain Partners: Stalin, Mao and the Korean

Notes

265

War (Palo Alto, CA: Stanford University Press, 1993), 155–99. For an older book that still stands up remarkably well see Allen S. Whiting, China Crosses the Yalu: The Decision to Enter the Korean War (New York: MacMillan, 1960). 15.

Mao Zedong, “Cengqiang Dangde tuanjie, jicheng dang de chuantong” [Strengthen the Party’s Unity, Inherit the Party’s Tradition] (speech to the preparatory meeting of the Eighth Party Congress, August 30, 1956), in Mao Zedong Wenji [Collected Writings of Mao Zedong], vol. 7. http://zg.people.com.cn/GB/shizheng/8198/30446/ 30452/2196047.html.

16.

This quote is derived from Mao’s words of encouragement at the time of the U.S. invasion of Cambodia in 1970. Of course, the irony is that Mao was at the very moment planning to improve relations with the United States.

17.

For the music and recording of this song see http://www.soopu.cn/ html/59cd8230a95e9d58.shtml.

18.

Tang Tsou, “Revolution, Reintegration, and Crisis in Communist China,” in Ping-ti Ho and Tang Tsou, eds., China in Crisis, vol. 1, book 1 (Chicago: University of Chicago Press, 1969), 319.

19.

Xiaomei Chen, Occidentalism: A Theory of Counter-Discourse in PostMao China (New York: Oxford University Press, 1995), 7.

20.

Fan Baocun, “Lun Dangdai guojia zhuquan de fazhan” [On the Contemporary Development of Sovereignty], Faxue Yanjiu, no. 6 (1999): 2.

21.

John Garver, “More from the ‘Say No’ Club,” The China Journal, no. 45 (January 2001): 158.

22.

For more on this theme see Thomas G. Moore, “China and Globalization,” Asian Perspectives 23, no. 4 (1999): 65–95.

23.

Jiang Zemin, “Speech to Fortune Global Forum 2001” (emphasis added).

24.

Chinese scholars often quote Jean Bodin on the supremacy, illimitation, perpetuity, universality, indivisibility, and inalienability of sovereignty, as though the prescriptions of the sixteenth century were still valid today. See Liu Wenzong, “Cong guojifa lun zhuquan buke fenge ji Taiwan Falu diwei” [The Legal Status of Taiwan as Touched upon by the Principle of the Indivisibility of Sovereignty under International Law], Xinhua Wenzhai, no. 11 (1999): 1–3.

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25.

Deng Xiaoping, “Our Basic Position on the Question of Hong Kong,” (September 24, 1982), in Selected Works, vol. 3., cited more recently in Yi Bin, “Zhongguo de zhuquan buke fenge”—bo Lu Xiulian de Taidu miulun” [China’s Sovereignty May Not Be Divided—Refuting Annette Lu’s Taiwan Independence Nonsense], Qiu Shi, no. 9 (2000): 26.

26.

Gerald R. Segal, “Does China Matter?” Foreign Affairs 78, no. 5 (September–October 1999).

27.

Ibid., 33.

28.

Merriam-Webster’s dictionary defines dramatic irony as “incongruity between the situation developed in a drama and the accompanying words or actions that is understood by the audience but not by the characters in the play” (emphasis added).

29.

For the concept of a “quasi-civil society” in relation to China see Baogang He, The Democratic Implications of Civil Society in China (New York: St. Martin’s Press, 1997).

30.

Zhang Wannian, Dangdai shijie junshi yu Zhongguo guofang [Military Affairs in the Contemporary World and China’s Defense] (Beijing: Junshi Kexue Chubanshe, 1999), 169–70.

31.

Jiang Zemin, “Zai quanguo kanghong qianxian zongjie biaoshan dahuizhande jianghua” [Speech on the occasion of the national meeting to honor the participants in the frontlines of the campaign against flooding], Qiushi, no. 19 (October 1998): 4–5.

32.

Ibid., 7.

33.

Jiang Zemin, “Zai Lianheguo Qiannian shounao huiyi shang de jiang hua 2000.9.6” [Speech to the Millennium Summit of the United Nations] quoted in Renmin Ribao (Overseas Edition), September 7, 2000: 1.

Notes

267

C HAPTER 3

1.

“The theory that every independent state necessarily possessed the sovereign power of legislation points the way towards showing how law was able to possess autonomy without recourse to some external authority. For sovereignty itself was a legal concept, and if positive law could be defined in terms of sovereignty then there was a self-sufficient pattern by which legal validity could be tested and demonstrated unhampered by extralegal considerations.” Dennis Lloyd, The Idea of Law (Harmondsworth, UK: Penguin, 1976), 175.

2.

James Mayall, Nationalism and Internationsl Society (Cambridge: Cambridge University Press, 1990), 15.

3.

Ibid., 24.

4.

Ibid., 45.

5.

For more on this see the author’s “The Cultural and Political Determinants of the Chinese Approach to Human Rights,” in Errol Mendes and Anne-Marie Traeholt, eds., Human Rights: Chinese and Canadian Perspectives (Ottawa: Centre for Human Rights Research and Education Centre, 1997), 25–74.

6.

Ann Kent describes the astonishment of the Chinese when the Committee against Torture, set up pursuant to the Convention against Torture (of which China was a signatory), questioned the adequacy of China’s report given in December 1989. Ann Kent, China, The United Nations and Human Rights (Philadelphia: University of Pennsylvania Press, 1999), 95.

7.

See, for example, Hungda Chiu, “The Nature of International Law and the Problem of Universalization,” in Shao-chuan Leng and Hungda Chiu, eds., Law in Chinese Foreign Policy (Dobbs Ferry, NY: Oceana Press, 1972), 7–10, and James Chieh Hsiung, Law and Policy in China’s Foreign Relations (New York: Columbia University Press, 1972), 40–43.

8.

See, for example, Zhou Jianun, “Lue lun Renquan yu Guojia Zhuquan de Guanxi” [On the Relationship between Human Rights and State Sovereignty], in Zhongguo Renquan Yanjiuhyui [The Chinese Association for the Study of Human Rights], ed., Lun Renquan yu Zhuquan: jian bo “renquan gaoyu zhuquan” lun [On Human Rights

268

The Empire’s New Clothes / Jeremy T. Paltiel and Sovereignty: Simultaneously Refuting the Theory that Human Rights Are Higher Than Sovereignty] (Beijing: Dangdai Shijie Chubanshe, 2001), 149–56.

9.

This point was made long ago by the venerable scholar of public international law Louis Henkin, How Nations Behave, 2d ed. (New York: Columbia University Press, 1979), 109–10. Cited in James V. Feinerman, “Chinese Participation in the International Legal Order: Rogue Elephant or Team Player,” in Stanley B. Lubman, ed., China’s Legal Reforms (Oxford: Oxford University Press, 1996), 188.

10.

Jon Elster, The Cement of Society (Cambridge: Cambridge University Press, 1989), 101–2.

11.

Gerrit Gong, The Standard of Civilization in International Society (Oxford: Oxford University Press, 1984), 14–15.

12.

This is made explicit not just by Gong (The Standard of Civilization in International Society) but also by Hedley Bull in the introduction to that book: “[T]he basic idea that governments aspiring to membership of international society should be able to meet standards of performance (as in protection of basic rights of their citizens, standards of honesty and efficiency in administration, capacity to adhere to rules of international law and to enter into diplomatic relations, and avoidance of slavery and other practices similar to those which European states expected of each other) rested not upon ideas of superior right but a need for reciprocity in dealings between European and non-European powers, which the latter were either not able or not willing to meet” viii (emphasis added).

13.

“If one examines the current positions of the People’s Republic of China, it is quite difficult to discern anything ‘typically Chinese’ about them. If at all, this label could be applied to the strategic approach with which Western criticism of China’s human rights record is analyzed.” Harro Von Senger, “Chinese Culture and Human Rights,” in Wolfgang Schmale, ed., Human Rights and Cultural Diversity (Goldbach, Germany: Keip Publishing, 1993), 314.

14.

This statement contradicts Alexander Wendt, who argues that “sovereignty does not presuppose a society of states, that it is intrinsic to the state, not contingent,” in Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 209. However, I would argue that my own position is consistent with his statement that the mutual recognition of state sovereignty has a mitigating effect on international anarchy (208).

Notes

269

15.

H. L. A. Hart, The Concept of Law (New York: Oxford University Press, 1961).

16.

Gong Renren rightly points out the development of international law and municipal law in the direction of dualism while acknowledging the common basis in the natural law of Hugo Grotius. See Gong Renren, “Guoji Renquanfa yu Bijiao xianfa” [International Human Rights Law and Comparative Constitutionalism], in Bai Guimei, ed., Guojifa yu Fazhan Zhongguo yu Jianadade Shiiao [Human Rights and Development: Chinese and Canadian Perspectives] (Beijing: Falu Chubanshe, 1998), 81.

17.

“The sociologist seeks to describe how the behavior of individuals is causally influenced by their own normative commitments to the law and by their beliefs regarding the similar commitments of others.” See Anthony T. Kronman, Max Weber (Palo Alto, CA: Stanford University Press, 1983), 12.

18.

For a debate over China and the principles of the rule of law, see Randall Peerenboom, “Let One Hundred Flowers Bloom, One Hundred Schools Contend: Debating Rule of Law in China,” Michigan Journal of International Law 23, no. 3 (Spring 2002): 471–544.

19.

This dichotomization derives from Richard Baum’s pioneering work on China’s post-Mao legal reforms. See Richard Baum, “Modernization and Legal Reform in Post-Mao China,” Studies in Comparative Communism 19, no. 2 (Summer 1986): 69–104.

20.

L. Oppenheim, International Law, vol. 1 (London: Longmans 1905), 19–20, cited in Leo McCarthy, Justice, the State and International Relations (London: Macmillan, 1998), 151.

21.

Ian Brownlie, The Rule of Law in International Affairs (The Hague: Martinus Nijhoff, 1998), 213.

22.

This discussion is deeply informed by the discussion in McCarthy, Justice, the State and International Relations, 150–67.

23.

Emmanuel Adler and Michael Barnett define a community in terms of three characteristics: “First, members of a community have shared identities, values and meanings. Secondly, those in a community have many sided and direct relations … that form face-to-face relations in numerous settings. Thirdly, communities exhibit reciprocity that expresses some degree of long term interest and perhaps even altruism. Long term interest derives from those with whom one is interacting and altruism

270

The Empire’s New Clothes / Jeremy T. Paltiel can be understood as a sense of obligation and responsibility.” Emmanuel Adler and Michael Barnett, Security Communities (Cambridge: Cambridge University Press, 1998), 31.

24.

J. S. Watson, “Legal Theory, Efficacy and Validity in the Development of Human Rights in International Law,” University of Illinois Law Forum 3 (1979): 611.

25.

Terry Nardin, Law, Morality and The Relations Of States (Princeton: Princeton University Press, 1983), 5.

26.

In Grotius’s conception of international society, natural law has a central place. Princes are persons, and states or peoples are collections of persons. A basic reason why relations among princes and states are subject to law is that they are subject to rules of natural law, which bind all persons in the great society of mankind. Hedley Bull, Benedict Kingsbury, and Adam Roberts, Hugo Grotius and International Relations (New York: Oxford University Press, 1992), 78.

27.

Allan C. Hutchinson and Patrick Monahan, “Democracy and the Rule of Law,” in Hutchinson and Monahan, eds., The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987), 101.

28.

Ibid., 102.

29.

A. C. Dicey, Inroduction to the Law of the Constitution (Eighth Edition) Available online at http://www.constitution.org/cmt/avd/law_con .htm.

30.

Ian Brownlie defines the rule of law in a manner much closer to the thick, or liberal, version than to its thin formalist version. He adduces five principles. • • •

•

Powers exercised by officials must be based on authority conferred by law. The law itself must conform to certain standards of justice both substantial and procedural. There must be a substantial separation of powers between the executive, the legislature and the judicial function. Whilst this separation is difficult to maintain in practice, it is at least accepted that a body determining facts and applying legal principles with dispositive effect, even if it is not constituted as a tribunal, should observe certain principles of procedural fairness. The judiciary should not be subject to the control of the executive.

Notes • •

271

All legal persons are subject to rules of law which are applied on the basis of equality. To the elements offered above, it should be added that the Rule of Law implies the absence of wide discretionary powers in the Government which may encroach on personal liberty, rights of property or freedom of contract.

Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (Boston: Martinus Nijhoff Publishers, 1998), 213–14. 31.

Hans Kelsen, Law and Peace in International Relations (Cambridge, MA: Harvard University Press, 1942), 5.

32.

Ibid., 8.

33.

Ibid., 52.

34.

“That war is in principle a delict and is permitted only as a sanction is a possible interpretation of international relations but not the only one. We choose this interpretation … with the intention of strengthening … all the possible elements of present-day international law which tend to justify this interpretation and to promote the evolution we desire.” Ibid., 55.

35.

For a discussion of the Chinese legal tradition in comparative perspective see Ronald C. Keith, China’s Struggle for the Rule of Law (New York: St. Martin’s Press, 1994), 39–53. For an excellent discussion of the legalist tradition in China see William P. Alford, “The Inscrutable Occidental: Implications of Roberto Unger’s Uses and Abuses of the Chinese Past,” Texas Law Review 64 (1976): 915–72. Reprinted in Tahirih V. Lee, ed., Basic Concepts of Chinese Law (New York: Garland Publishing, 1997), 173–230.

36.

As recently as 2001, Chinese President Jiang Zemin called for rule by virtue and explicitly connected this with the best in China’s cultural traditions.

37.

For the contrast between the approaches of Plato and Aristotle see Ernest Weinrib, “The Intelligibility of the Rule of Law,” in Hutchinson and Monahan, eds., The Rule of Law, 57–84.

38.

William C. Jones, “Studying the Ch’ing Code–The Ta Ch’ing Lu li,” The American Journal of Comparative Law 22 (1974): 356 (emphasis in original), cited in Keith, China’s Struggle for the Rule of Law, 58. Derk

272

The Empire’s New Clothes / Jeremy T. Paltiel Bodde and Clarence Morris make the same point about law as an instrument of state in Law in Imperial China (Cambridge: Harvard University Press, 1967).

39.

See Xiaohong Liu, Chinese Ambassadors: The Rise of Diplomatic Professionalism since 1949 (Seattle: University of Washington Press, 2001), 20–26.

40.

Right in the turmoil between ideological extremism and the effort to return to some kind of institutional normalcy at the beginning of the 1970s, a lengthy critique of Mao’s arbitrary rule (with some tacit official support) appeared on the streets of Guangzhou in November 1974. See Li Yizhe (a pseudonymn abbreviating the names of its dissident authors Li Zhengtian, Chen Yiyang, and Wang Xizhe), “On Socialist Democracy and the Legal System,” reprinted and translated in Gregor Benton, ed., Wild Lilly, Prairie Fire (Princeton: Princeton University Press, 1995), 134–45.

41.

For an extensive discussion of post–Mao Zedong debates on the rule of law see Keith, China’s Struggle for the Rule of Law, especially 1–38.

42.

Pitman B. Potter has termed the pattern of legal development stimulated by this mechanism “selective adaptation.” See “Globalization and Economic Regulation in China: Selective Adaptation of Globalized Norms and Practices,” Washington University Global Studies Law Review, no. 1 (2003): 119–50.

43.

Pitman B. Potter has examined this process through the career of the veteran revolutionary and apparatchik, Peng Zhen, who was instrumental in reviving China’s legal and legislative institutions in the first decade of Deng Xiaoping’s reforms. See Pitman B. Potter, From Leninist Discipline to Socialist Legalism: Peng Zhen on Law and Political Authority in the PRC (Palo Alto, CA: Stanford University Press, 2003).

44.

On this point see James V. Feinerman, “The Rule of Law Imposed from the Outside: China’s Foreign-Oriented Legal Regime since 1978,” in Karen G. Turner, James V. Feinerman, and R. Kent Guy, eds., The Limits of the Rule of Law in China (Seattle: University of Washington Press, 2000), 304–24.

45.

This was evident in the dualistic system of law, dating from 1979, that dealt with foreigners and domestic actors. Thus, contract law had a counterpart in the Foreign Economic Contract Law; the law on Joint Ventures (1979) was entirely separate from, and for some time had no

Notes

273

counterpart in, the Enterprise Law (1987); the Corporation Law (1994) eventually superseded both. 46.

These were enshrined in Article 45 of the 1978 PRC Constitution. See also Deng Xiaoping, “The Present Situation and the Tasks Before Us,” Selected Works II. http://english.peopledaily.com.cn/dengxp/vol2/ text/b1390.html.

47.

For a recent reiteration of this approach see “Full Statement of Li Peng’s Message to Human Rights Magazine.” http://english.peopledaily.com .cn/200202/10/eng20020210_90286.shtml.

48.

See Andrew J. Nathan, Chinese Democracy (New York: Columbia University Press, 1985), 113–16.

49.

“Moreover, they have raised such sensational slogans as ‘oppose hunger’ and ‘give us human rights,’ inciting people to hold demonstrations and deliberately trying to get foreigners to give worldwide publicity to their words and deeds. There is a so-called China Human Rights Group which has gone so far as to put up big-character posters requesting the President of the United States to ‘show concern’ for human rights in China. Can we permit such an open call for intervention in China’s internal affairs? There is also a so-called Thaw Society which has issued a declaration openly opposing the dictatorship of the proletariat on the ground that it ‘divides mankind.’ Can we tolerate this kind of freedom of speech which flagrantly contravenes the principles of our Constitution?” Deng Xiaoping, Uphold the Four Cardinal Principles, March 30, 1979. http://english.peopledaily.com.cn/dengxp/vol2/text/b1290 .html.

50.

Jianfu Chen, Chinese Law: Towards an Understanding of Its Nature (The Hague: Kluwer, 1999), 116–20, and Randall Peerenboom, China’s Long March toward the Rule of Law (Cambridge: Cambridge University Press, 2002). Both Chen and Peerenboom point to the absence of clear demarcations of jurisdiction in the legislative arena; see “The Legislative Arena: Battling Chaos,” in Peerenboom, China’s Long March, 23–28.

51.

See, for example, Christine Sypnowich, “Utopia and the Rule of Law,” in David Dyzenhaus, ed., Recrafting the Rule of Law (Oxford: Hart Publishing, 1999), 178–95, especially at 179–80.

52.

For an extended discussion of the debate on law and policy in China during the early 1980s, see Keith, China’s Struggle for the Rule of Law, 11–18.

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53.

Roberto Unger, Law in Modern Society (New York: The Free Press, 1976).

54.

This process is the explicit rationale behind Xia Yong’s Zouxiang Quanli de Shidai [Toward an Era of Rights] (Beijing: Zhongguo Zhengfa Daxue Chubanshe, 1995).

55.

This discussion forms the backdrop to the discussion in David Dyzenhaus, ed., Recrafting the Rule of Law.

56.

This is, in an important respect, a restatement of Barrington Moore’s hypothesis concerning the importance of a balance of power between the bourgeoisie and the crown in the democratic transition in England. See Barrington Moore, The Social Origins of Dictatorship and Democracy: Lord and Peasant in the Transition to the Modern World (Boston: Beacon Press, 1966). I have not, however, seen this insight applied in relation to the rule of law per se, but this is also consistent with the argument laid out by Reinhard Bendix in Kings or People (Berkeley: University of California Press, 1978). Whereas the former emphasizes the question of social structure, the latter emphasizes ideas. I argue both are necessary.

57.

This is precisely the theme explored by Jose Maria Maravall and Adam Przeworski, eds., Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003), especially 2–3. See also in the same volume Stephen Holmes, “Lineages of the Rule of Law,” especially 22–37.

58.

See Jeremy Paltiel, “China: Mexicanization or Market Reform?” in James Caporaso, ed., The Elusive State (Newberry Park, CA: Sage, 1989), 255–78.

59.

This is precisely the point made by Stephen Holmes in “Lineages of the Rule of Law,” in Maravall and Przeworski, eds., Democracy and the Rule of Law, 24.

60.

Chinese courts have consistently declined jurisdiction in any action where any organ of the CCP has been a party. See Anthony R. Dicks, “Compartmentalized Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform,” in Lubman, ed., China’s Legal Reforms, 82–109, especially 96–97.

61.

Chapter 1, Article 3, of the Constitution of the Communist Party of China obliges all members of the party to (1) “uphold and carry out the Party’s basic line, policies and orientations”; (2) “put the interest of the Party and people above their personal interest and above all else”; and (3) “self-consciously follow Party discipline, be an example in following

Notes

275

State law, strictly guard State and Party secrets, carry out Party resolutions, follow the dispositions of the organization, and actively carry out Party duties.” www.idcpc.org.cn/cpc/dangzhang_01.htm. 62.

Pitman B. Potter makes precisely this point about Chinese state intentions through the laws with respect to foreign investment. See Pitman B. Potter, “Foreign Investment Law in the People’s Republic of China: Dilemmas of State Control,” in Lubman, ed., China’s Legal Reforms, 135–85, especially at 169–70.

63.

Andre Gunder Frank, “The Development of Underdevelopment,” in Robert I. Rhodes, ed., Imperialism and Underdevelopment: A Reader (New York: Monthly Review Press, 1970), 4–17.

64.

This determination was the explicit purpose behind Deng Xiaoping’s famous “southern tour” in 1992. He expressly intended to settle the issue of whether the Special Economic Zones could be considered “socialist” or “capitalist” or, in other words, if they were to be considered foreign enclaves. He determined not only that “public ownership is the mainstay” but also, more importantly, that these zones enabled the Chinese state to levy taxes on foreign capital and to provide labour services. The bottom line, however, was that “we have the political power in our own hands.” “Record of Comrade Deng Xiaoping’s Shenzhen Tour.” http://english.peopledaily.com.cn/200201/18/ eng20020118_88932.shtml.

65.

Li Buyun, “Shishi Yifa zhiguo zhanlue lungang” [A Program for the Realization of Ruling the Country by Relying on Law], Xinhua Wenzhai, no. 9 (1999): 12–15.

66.

Ibid., 14.

67.

A. C. Dicey, Inroduction to the Law of the Constitution (Eighth Edition) Available online at http://www.constitution.org/cmt/avd/law_con .htm.

68.

Gu Anliang, “Lun yifa zhiguo zhilu” [On the Road to Regulating the Country by Relying on Law], Faxue Zazhi, no. 6 (1999): 4.

69.

Ibid., 5

70.

Ibid., 4.

71.

Li, “Shishi Yifa zhiguo zhanlue lungang,” 15.

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72.

Rosemary Foot, Rights Beyond Borders: The Global Community and the Struggle over Human Rights in China (New York: Oxford University Press, 2000), 175.

73.

Ronald Dworkin, the renowned scholar of rights jurisprudence, reported on his visits to several Chinese law schools in the spring of 2002, where he encountered many Chinese legal scholars who espoused liberal ideals but who, in Dworkin’s view, failed to live up to these ideals by not denouncing current Chinese state practice. In reply, a Chinese legal scholar criticized Dworkin for his facile approach to dialogue with Chinese scholars and the Chinese regime and, more importantly, for failing to recognize the contribution of Chinese legal scholars in bringing about procedural changes. See Ronald Dworkin, “Taking Rights Seriously in Beijing,” The New York Review of Books, September 26, 2002, and, in reply, Fang Liufang, “Taking Academic Games Seriously,” Perspectives 3, no. 7.

74.

See William Alford, “Tassled Loafers for Barefoot Lawyers: Transformation and Tension in the World of Chinese Legal Workers,” in Lubman, ed., China’s Legal Reforms, 22–38.

75.

For an example of a Chinese legal professional explicitly calling for an independent role for legal professionals in China’s legal reforms see Hao Tiechuan, “Lun faxuejia zai lifazhong de zuoyong” [On the Role of Jurists in the Legislative Process], Zhongguo Faxue, no. 4 (1995): 36–40, cited in Ronald C. Keith and Lin Zhiqiu, Law and Justice in China’s New Marketplace (New York: Palgrave, 2000), 4. For an earlier example of a view of “legal workers” and the legal system as a function of Communist governance see Chen Shouyi, “A Review of Thirty Years of Legal Studies in New China,” Journal of Chinese Law, no. 2 (1988): 181–200, reprinted in Lee, Basic Concepts of Chinese Law, 275–94. See also Zhang Zhiming, “Dangdai Zhongguo de Lushiye: yiminquan wei jiben chidu” [Lawyers in Contemporary China: A Civil Rights Perspective], in Xia Yong, ed., Zouxiang,133–208, and He Weifang, “Tongguo Sifa Shixian Zhengyi: Dui Zhongguo Faguan de xianzhuang de yige Toushi” [Princes or Servants? The Present Status of Judges in China], in Yong, ed., Zouxiang, 212–87.

76.

For the emerging pluralization of Chinese jurisprudence see Keith and Lin, Law and Justice in China’s New Marketplace, 1–47.

77.

See Cai Dingjian, “Guanyu Xianfa de duihua” [A Dialogue on the Constitution], Xinhua Wenzhai, no. 3 (2000): 10–12. A couple of recent court cases may have begun to make the Chinese Constitution a justiciable document. See, for example, The Economist, March 1, 2002.

Notes

277

78.

For a good analysis see Keith and Lin, Law and Justice in China’s New Marketplace, 178–231.

79.

Ibid., 230–31.

80.

On this point see Pitman B. Potter, The Chinese Legal System: Globalization and Local Legal Culture (London and New York: Routledge, 2001), 10–11.

81.

See Allan Hutchinson, “Reconceiving the Rule of Law,” in Dyzenhaus, ed., Recrafting the Rule of Law.

82.

Pitman B. Potter, “The Chinese Legal System: Continuing Commitment to the Primacy of State Power,” in Richard Louis Edmonds, ed., The People’s Republic of China After 50 Years (Oxford: Oxford University Press, 1999), 121.

83.

Article 4 of the Regulations on the Work of Selection and Employment of Leading Cadres specifically mandates that cadres in the Supreme Court and the Supreme Procuracy, as well as leading cadres in the courts and procuracy at the county level and above, fall under the regulations. http: news.www.sina.com.cn. 2002-07-23/1341646066.html.

84.

See Margaret Y. K. Woo, “Law and Discretion in Contemporary Chinese Courts,” in Turner, Feinerman, and Guy, eds., The Limits of the Rule of Law in China, 163–95, especially 179–81. See also Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao (Palo Alto, CA: Stanford University Press, 1999), 261–63.

85.

See Professor Zhu Suli of Peking University, cited in Lubman, Bird in a Cage, 262. Randall Peerenboom has also made the same point in communication with the author.

86.

“According to a recent survey only 5 percent of judges nationwide have an undergraduate degree and only 25,000 have graduate degrees. In Beijing where education among judges is among the highest in the nation, 75 percent of the 45,000 judges have dazhuan [college-level] justice training program, which includes two-year non-Bachelor level programs diplomas but 60 percent of these are from televised education or part-time colleges. Among 10 percent with regular university degrees, it was unclear how many graduated in law. Between 1984 and 1998 only 20 percent of nearly 2000 graduates of colleges of politics and law went into the judiciary.” Qianfan Zhang “The People’s Court in Transition:

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The Empire’s New Clothes / Jeremy T. Paltiel The Prospects of the Chinese Judicial Reform,” Journal of Contemporary China 12, no. 34 (February 2003): 79.

87.

See Peerenboom, China’s Long March Toward the Rule of Law, 324.

88.

Cai Dingjian describes three stages in the evolution of the rule of law. He refers to the status of courts prior to the reform period as a “knife handle of dictatorship” used to enforce criminal sanction. During the reform period, Deng Xiaoping pushed a development in the direction of law as a “conductor’s baton” used by the state to coordinate social activities. Cai Dingjian looks toward a role for law as a “horse’s bridle”— ”law to control government power,” but he concedes that China has far to go before this third stage is achieved. For a comprehensive view of China’s legal evolution and the forms and sources of judicial corruption, see Cai Dingjian, “Development of the Chinese Legal System Since 1979 and Its Current Crisis and Transformation,” Cultural Dynamics 11, no. 2 (July 1999): 135–66.

89.

Zhu Suli, “Ganshou Zhongguo falu de xiandaixing” [Tasting the Modernity of Chinese Law], in Xiandaixing yu Zhonggu [Modernity and China] (Guangzhou: Guangdong Jiaoyu Chubanshe, 2000), 48–76. This provides yet another perspective on the issue of “local protectionism” that has garnered so much attention in the context of China’s accession to the WTO. On this point see He Weifang, “Tongguo difa shixian shehui zhenyi: dui Zhongguo Faguan xianzhuang de yige toushi” [Realizing Social Justice Through the Adjudication: An Insight into the Current State of the Chinese Judiciary], in Xia Yong, Zouxiang, 212–87. See also Lubman, Bird in a Cage, 266–69.

90.

By the end of 1997 nearly 2 million court decisions awaited enforcement. See Zhang, “The People’s Court in Transition,” 80.

91.

Cai, “Development of the Chinese Legal System,” 155–66.

92.

Zhang, “The People’s Court in Transition,” 99.

93.

On December 4, 2002, Hu Jintao delivered his first major speech as general secretary on the constitution, and he held a Politburo Standing Committee meeting on the subject of the constitution and the rule of law on December 26, 2002. According to Vivien Pik-Kwan Chan, “Hu uses the constitution to tighten his grip on power by stressing the rule of law. Analysts say the new leader hopes to prevent Jiang from becoming the

Notes

279

power behind the throne.” Vivien Pik-Kwan, South China Morning Post, January 20, 2003. 94.

Very recently the Chinese state has tried to address this by parsing the Administrative Approvals Law. This law invalidates administrative approvals that are not specifically based on legislation.

95.

“Dangzheng Lingdao Ganbu xuanyong gongzuo tiaol” [Regulations on the Selection and Employment of Party and Government Leading Cadres]. http://news.sina.com.cn./2002-07-23/1341646066.html (accessed on July 24, 2002).

96.

Chapter 1, Article 4, of the cadre regulations makes judges of the Supreme Court and leading judges from the county level up subject to the appointment regulations within. See http:news.www.sina.com.cn. 2002-07-23/1341646066.html.

97.

Legal Daily, August 6, 1999, cited in Chapter 1, Article 4, 100.

98.

Cai, “Development of the Chinese Legal System Since 1979,” 135–66.

99.

Wei Pan, “Towards a Consultative Rule of Law Regime in China,” Journal of Contemporary China 12, no. 34 (February 2003): 3–43.

100. Ibid., 9. 101. Ibid. 102. See Holmes, “Lineages of the Rule of Law,” in Maravall and Przeworski, eds., Democracy and the Rule of Law, 19–61. 103. As an example, see the work of journalist and sociologist He Qinglian. Although she has by now been forced abroad, her book Zhongguo fazhan de xianjing [China’s Descent into a Quagmire], was initially published in China. For this work see Chinese Economy 34, no. 2 (March–April 2001), especially chapter 4, “Origins of Rent Seeking Behavior in the Chinese Economy,” 49–72. On page 56 she concludes, “[E]ven if a sound legal system is established, the likelihood is that we will still see a situation of a ‘legal state ruled by men’ rather than a legal state ruled by law.” 104. Jiang Jingsong, The National People’s Congress of China (Beijing: Foreign Languages Press, 2002), 73.

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105. Lu Xianfu, “Gaige he wanshan dang de lingdao fangshi” [Reform and Improve the Party’s Mode of Leadership], Zhongguo Gongchandang, no. 2 (2003): 69. 106. Ibid., 70. 107. Gao Simei, “Ren Zhaozheng Zhizheng Fangshi fazhihua: Yike gaige he wanshan dang de zhizheng fangshi de lixing” [The Legalization of the Mode of Governance: A Rational Look at the Reform and Perfection of the Party’s Mode of Governance], Zhongguo Gongchandang, no. 2 (2003): 74. 108. Jon Elster, in Jon Elster and Rune Slagstad, eds., Constitutionalism and Democracy (New York: Cambridge University Press, 1988), 15. 109. Pitman B. Potter, “Legal Reform in China: Institutions, Culture and Selective Adaptation,” Law and Social Inquiry 29, no. 2 (Spring 2004): 476. 110. Gao, “Ren Zhaozheng Zhizheng Fangshi fazhihua,” 74. 111. Ibid., 75. 112. The “three represents” is the ideological posture that then- General Secretary Jiang Zemin created and is now incorporated into the CCP’s Constitution. The first of the three represents requires the CCP to represent the forces of advanced material and technological production. The other two are representing the interests of “the forward advancement of Chinese culture” and “the basic interests of the overwhelming majority of the people.” See the report of Jiang Zemin’s inspection of work in Guangdong in Renmin Ribao, February 26, 2000, 1. 113. Keith and Lin speak of a dialectic of “internationalization” and “localization” based on Chinese discussions of the rule of law. Significantly, they too argue that the extent of “internationalization” has been underappreciated. See Keith and Lin, Law and Justice in China’s New Marketplace, 232–46, especially 234. 114. Randall Peerenboom, China’s Long March Toward the Rule of Law, 478. 115. Shi Tianjian, “Cultural Values and Democracy in the People’s Republic of China,” in Larry Diamond and Ramon Myers, eds., Elections and Democracy in Greater China (Oxford: Oxford University Press, 2000), 176–96.

Notes

281

116. Ren Shaofang, “Zhidu jianshe yu wenhua xuanze” [System Construction and Cultural Choice], Guoqingguoli Luntan [Forum of National Conditions and Strength] (February 2000): 4–5 (emphasis added).

C HAPTER 4

1.

Ann Kent, China, the United Nations and Human Rights: The Limits of Compliance (Philadelphia: University of Pennsylvania Press, 1999), 2.

2.

Thomas Risse and Kathryn Sikkink, “The Socialization of International Human Rights Norms into Domestic Practice,” in Thomas Risse, Stephen Ropp, and Kathryn Sikkink, eds., The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999), 1–38.

3.

Ibid., 23.

4.

Barry Buzan, “International Society and International Security,” in Rick Fawn and Jeremy Larkins, eds., International Society After the Cold War: Anarchy and Order Reconsidered (London: MacMillan, 1996), 261–87, and Barry Buzan, “From International System to International Society: Structural Realism and Regime Theory Meet the English School,” International Organization 47, no. 3 (summer 1993): 347.

5.

Mark D. Evans, “Weak States, State Making and Humanitarian Intervention with a View from the People’s Republic of China,” in Mark Davis, Wolfgang Dietrich, Bettina Scholdan, and Dieter Sepp, eds., International Intervention in the Post–Cold War World: Moral Responsibility and Power Politics (Armonk, NY: ME Sharpe, 2004), 104–22.

6.

Rosemary Foot, “Chinese Power and the Idea of a Responsible State,” The China Journal, no. 45 (January 2001): 18–19.

7.

For a perspective from a well-known Chinese scholar who develops this theme see Zhu Feng, “Human Rights and the International Community: The Case of China,” in Prime no. 4 (July 1996): 37–60. Zhu argues that the primary problem in China is the lack of separation between

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The Empire’s New Clothes / Jeremy T. Paltiel state and society. He rejects the notion that foreign pressure can have any positive effect on human rights implicitly because it forces the state into a defensive position to defend its sovereign prerogatives. “The social composition of modern nation-states reflects different levels and forms of separation between economics and politics, the state and the individual. In a system of nearly total government and party control, such as existed previously in China, moving toward the separation mentioned here is a very complicated and painful process of partition and disconnection”(41). “What China needs at present is greater freedom and the rule of law with political and economic reforms in process now. These have a direct relationship to human rights and will advance the popularity of human rights thinking. This will in turn aid the process of democratic development. The dynamism of keeping the advancement of human rights can only derive out of China’s internal evolution”(57).

8.

For a Chinese perspective that explicitly reiterates this claim see Shi Xiuyin, “Zhongguo Shehui zhuanxing shiqi de quanli yu quanli: guannian fenxi” [Public Power and Rights during the Transformational Period in China], in Xia Yong, ed., Zouxiang quanli de shidai [Toward an Era of Rights] (Beijing: Zhengfadaxue chubanshe, 1995), 70–134.

9.

The clearest demonstration of this is the arguments put forward by Deng Xiaoping: “After we put down the rebellion [referring to June 4, 1989, and the Tiananmen Square demonstrations], the Group of Seven summit meeting issued a declaration imposing sanctions on China. What qualifies them to do that? Who granted them the authority? Actually, national sovereignty is far more important than human rights, but they often infringe upon the sovereignty of poor, weak.” See, Deng Xiaoping, “We Must Adhere to Socialism and Prevent Peaceful Evolution Towards Capitalism” (November 23, 1989), Selected Works, vol. 3. http://english.peopledaily.com.cn/dengxp/vol3/text/d1090.html. In Chinese, Deng does not use the formal term for sovereignty, zhuquan; instead, he refers to guoquan, which translates as state power or state rights. He also used the latter term in his conversation with former U.S. President Richard Nixon: “People who value human rights should not forget the rights of the state.” Deng Xiaoping, “The United States Should Take the Initiative in Putting an End to the Strains in SinoAmerican Relations” (October 31, 1989), Selected Works, vol. 3. http://english.peopledaily.com.cn/dengxp/vol3/text/d1060.html.

10.

This view is prominently associated with David Held. See also, Tony Evans, US Hegemony and the Project of Universal Human Rights (London: MacMillan, 1996), 21.

11.

Evans, US Hegemony, 22.

Notes

283

12.

Li Long and Wan Yuxiang, Renquan Lilun yu Guoji Renquan [Human Rights Theory and International Human Rights] (Wuhan: Wuhan Daxue Chubanshe, 1992), 124.

13.

Ann Kent, Between Freedom and Subsistence: China and Human Rights (New York: Oxford University Press, 1993), 30.

14.

Zhu Majie, “Contemporary Culture and International Relations,” in Yu Xintian et al., Contemporary World Configuration (Shanghai: Shanghai Institute of International Studies, 2002), 207–8.

15.

See Rosemary Foot, Rights Beyond Borders: The Global Community and the Struggle over Human Rights in China (Oxford: Oxford University Press, 2000), 122, and Kent, China, the United Nations and Human Rights, 62.

16.

See Renmin Ribao, September 22, 1995, 1.

17.

Ibid (emphasis added).

18.

Li Dongyan, “Shilun Lianheguo yu zhuquanguojia guanxi de yanbian” [A Preliminary Thesis on the Changing Relationship between the UN and the Sovereign State] Shijie Zhengzhi yu jingji, no. 5 (2000): 45.

19.

Luo Fuhui, Zhongguo minzuzhuyi sixiang lungao [A Theoretical Manuscript on Chinese Nationalist Thought] (Wuhan: Huazhong Shifandaxue Chubanshe, 1996), 11 (emphasis added).

20.

Ibid., 2–3.

21.

Xiaomei Chen, Occidentalism: A Theory of Counter-Discourse in PostMao China (New York: Oxford University Press, 1995), 4.

22.

Pang Zhongying, “Zuchun, zhongzu yu minzu” [Ethnicity, Race and Nation], in Zi Zhongjun, ed., Guojizhengzhi lilun tansuo zai Zhongguo [Explorations of International Relations Theory in China] (Shanghai: Shanghai Renmin Chubanshe, 1998), 103.

23.

Ibid., 109.

24.

This is the conclusion of Marianne Bastide in her book China from the Opium Wars to 1 (New York: Pantheon, 1976).

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25.

Harro Von Senger, “From the Limited to the Universal Concept of Human Rights: Periods of Human Rights,” in Wolfgang Schmaele, ed., Human Rights and Cultural Diversity (Kohlbach, Germany: Koep Publishing, 1993), 45–100.

26.

See Ming Wan, Human Rights in Chinese Foreign Relations: Defining and Defending National Interests (Philadelphia: University of Pennsylvania Press, 2001), 111, and Kent, China, the United Nations, and Human Rights, 56–60.

27.

See Guo Daohun, “Guan yu 1991 Disan Qi Faxue ben kan pinglunyuan wenzhang ‘Shenru kaizhan renquan yu fazhi de lilun yanjiu’” [On the 1991 Commentator’s Article, “Deepen the Study of the Theory of Human Rights and the Rule of Law,”], in Guo Daohun, Li Buyun, and Hao Tiechuan, eds., Zhongguo dangdai faxue zhengming shilu [Documentary Reports of Contemporary Controversies in Chinese Jurisprudence] (Changsha: Hunan Renmin Chubanshe, 1998), 376.

28.

Dong Yunhu, “‘Renquan’ ruxian: Zhongguo Renquan fazhan de zhongyao lichengbei” [‘Human Rights’ enter the constitution: an important milestone in the development of human rights in China], Renmin Ribao, March 15, 2004.

29.

See Dong Yunhu and Liu Wuping, eds., Shijie renquan yuefa zonglan [World charters of Human Rights ] (Chengdu: Renmin Chubanshe, 1991).

30.

Guo Daohun, “‘Renquan’ ruxian,” 379.

31.

See, for example, Wang Linxia, “Jianlun Woguo renquan lilun jianmshe de lishi yu fazhan” A Brief Discussion of the History and Development of the Construction of Human Rights Theory in Our Country], in Renmin Daxue baokan fuyin ziliao, Zhongguo zhengzhi, no. 7 (2004): 41–51.

32.

“In this great and sacred system of human rights, the right to subsistence takes pride of place.” Li and Wan, Renquan lilun yu guoji renquan, 31–32.

34.

See Alastair Iain Johnston, “Learning Versus Adaptation: Explaining Change in Chinese Arms Control Policy in the 1980s and 1990s,” The China Journal, no. 35 (January 1996): 27–62.

35.

See Li and Wan, “Liangzhong duili de renquanguan” [Two Opposing Outlooks on Human Rights], in Renquan lilun yu guoji renquan, 3–27.

36.

Kent, China, the United Nations and Human Rights, 61.

Notes

285

37.

“Western Anti-China Draft Rejected,” Beijing Review 32, no. 12 (March 21–27 1994):, 32.

38.

Kent, China, the United Nations and Human Rights, 2.

39.

See Hedley Bull, The Anarchical Society (New York: Columbia University Press, 1977); Hedley Bull and Adam Watson, The Expansion of International Society (New York: Oxford University Press, 1984); and Gerrit Gong, The Standard of Civilization in International Society (Oxford: Oxford University Press, 1984).

40.

Foot, “Chinese Power,” 18–19. Foot argues that China’s efforts to dichotomize Western and developing country views of human rights undermine China’s quest for great-power status and have the effect of stressing an identity as a weak and marginalized power that China otherwise seeks to shed.

41.

Ming, Human Rights in Chinese Foreign Relations, 117–18.

42.

See “China’s Viewpoints on Human Rights Widely Supported by Developing Nations’ Official.” http://english/peopledaily.com.cn/200010211_90294.html.

43.

Maurice Cranston, What Are Human Rights? (London: Bodley Head, 1973), 37–38.

44.

“The Condition of Human Rights in China” (Beijing: State Council Information Office, 1991).

45.

Kent, Between Freedom and Subsistence, 30.

46.

See Ed Broadbent, “Democracy, Capitalism and Foreign Policy: Ten Propositions about the New World Order,” Canadian Foreign Policy 1, no. 2 (spring 1993): 6.

47.

Jiang Zemin, “Zai Lianheguo Qiannian shounao huiyi shang de jiang hua 2000.9.6” [Speech to UN Millenium Summit] Renmin Ribao, September 7, 2000, 1.

48.

Chinese Representative Shen Yongxiang at the 59th Session of the UN Human Right Commission on Civil and Political Rights. http://www .wjb.gov.cn.

49.

Xu Jian, “Heping jueqi shi Zhongguo Zhanlue Kuaize” Peaceful Rise is China’s Strategic Choice], Zhongguo Waijiao, no. 5 (2004): 27–28.

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50.

Ibid.

51.

Ibid., 12–15.

52.

Ibid., 15.

53.

“Guoqing tegao: heping fazhan de Zhongguo zhuoli cengqiang ruan shili” [Special Feature: China’s Peaceful Development Powerfully Strengthens “Soft Power”]. http://news.xinhuanet.com/newscenter/200409/27/content_2029983.htm (accessed September 27, 2004).

54.

See James Mann, About Face: A History of America’s Curious Relationship to China from Nixon to Clinton (New York: Knopf, 1999), 354–63, and Foot, Rights Beyond Borders, 211, 219.

55.

See, for example, Ming, Human Rights in Chinese Foreign Relations, 71–73, and Foot, Rights Byond Borders, 209–20.

56.

See State Council Information Office, Progress in China’s Human Rights in 1998 (Beijing: China Intercontinental Press, 1999), 35.

57.

“High Commissioner for Human Rights Highlights Progress and Challenges at End of Visit to China,” UN Press Release: Friday, September 2, 2005. http://www.unhchr.ch/huricane/huricane.nsf/view01/ 54AF64AF3083ABB7C12570700036E932?opendocument (accessed September 13, 2005).

58.

See the report of the UN Special Rapporteur on Torture: “The Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak,” E/CN.4/2006/6/Add.6, March 10, 2006.

59.

Mo Jihong and Song Yafang, “Lun Guojirenquan gongyue yu guonei xianfa de guanxi” [On the Relationship between International Human Rights Covenants and Domestic Constitutions], Zhongguo Faxue, no. 3 (1999): 62–63.

60.

Ibid., 66.

61.

Dong Yunhu, “Lun Guojiguanxizhong de renquan yu zhuquan guanxi” [On the Relationship between Sovereignty and Human Rights], Qiushi, no. 6 (2000): 22–23.

Notes

287

62.

Consider this: “Ever since the legal reforms at the end of the Qing dynasty, legislative reference to ‘Western universal principles’ has become an old habit. Whatever rights are listed in Western law become what we must pay attention to, such that rights norms have come to have more or less common concepts, terminology and structure [quanliguifan you you dazhi tongyong de gainian, shuyu , jiegou]. Therefore even when laws established purely out of considerations of strengthening public order must lay out citizen rights.” See, Xia Yong, ed., “Xiangming gongfa quanli de shengcheng” [The Emergence of Public Law Rights for Rural People], in Zouxiang quanli de shidai, 716, note 45.

63.

Ibid.

64.

Lu Shilun and Shi Zhong “Suowei ‘buheshiyi’ de renquanlun” [An Untimely View of Human Rights], in Guo, Li , and Hao, eds., Zhongguo dangdaifaxue zhengming shilu, 382–90.

65.

See Bai Guimei, “Are There Any Hierarchies of Human Rights in International Law?,” in Peter R. Baehr et al., eds., Human Rights: Chinese and Dutch Perspectives (The Hague: Kluwer, 1999), 133–42.

66.

A telling instance is found in an article profiling John Kamm, the businessman turned human rights activist . Tina Rosenberg quotes Zhang Yijun: “Sometimes it is useful to strike a bargain with the United States government, but never do it under pressure. If it is done with foreign intervention, it’s counterproductive—people here have a radical reaction. I’d rather release a prisoner as a gift to a friend who comes to talk to me.” See “John Kamm’s Third Way” (titled “John Kamm’s List” in the printed version of The New York Times Sunday Magazine, March 3, 2002). www. Nytimes.com/2002.

67.

“In 1991 sweeping changes took place in the Soviet Union and East Europe. As the cold war era came to an end, the united States and some other Western countries for ideological reasons and reasons of value, lost no time in launching a ‘human rights offensive’ on China. They adopted resolutions and issued reports in which China’s human rights conditions were pictured as hopeless, constantly creating various fallacies against China. Amid this anti-China hue and cry, some politicians in these countries sought to integrate the so-called human rights issue of China to the relations with the country, and began proposing anti-China resolutions at the United Nations Commission on Human Rights. So the so-called human rights issue was turned into a matter of weight directly affecting China’s international reputation and state interests” (emphasis added). http://english/peopledaily.com.cn/200010211_90294 .html.

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68.

An interesting example concerning fairness in judicial proceedings is found in an article by He Jiasi, who argues that Chinese collectivism yields a different approach than Western individualism with respect to the rights of the accused in criminal proceedings. He Jiasi feels such procedural guarantees as the “Miranda Rule” are excessive, and he does not agree with Blackstone that “it is better that ten guilty persons go escape than one innocent suffer” (cited in English!). Still, in looking at situations where guilt cannot be proven beyond a reasonable doubt and where the Chinese instinct is to convict nonetheless (citing the “social harm” that would result if the guilty should go free), He Jiasi nevertheless argues that to convict the innocent actually constitutes a double “mistake” since it not only punishes the guiltless but also lets the guilty go free, whereas to let the guilty go free is only a “single” mistake. See He Jiasi, “Sifa Gongzhenglun” [On Judicial Fairness], Faxue, no 2 (1999): 11–19.

69.

Zhao Qizheng, Director General of the State Council Information Office, quoted in “China’s Viewpoints on Human Rights Widely Supported by Developing Nations: Official.”

70.

Ibid.

71.

Ibid.

72.

For example, this logic is evident in Xia, Zouxiang quanli de shidai. See also Gu Anliang and Lin Laichu, “Guifan Xianfa de Tiaojian he Xianfa guifan de biandong” [On the Conditions for a Normative Constitution and the Transformation of Constitutional Norms], Faxue Yanjiu 21, no. 2 (March 1999): 34–49.

73.

Ren Shaofang, “Zhidu jianshe yu wenhua xuanze” [System Construction and Cultural Choice], Guoqingguoli luntan [Forum of National Conditions and Strength] (February 2000): 4–5.

74.

Li and Wan, Renquan Lilun yu guoji renquan, 138.

75.

Inoue Tatsuo, “Liberal Democracy and Asian Orientalism,” in Joanne R. Bauer and Daniel A. Bell, eds., The East Asian Challenge for Human Rights (London: Routledge, 1999), 27–59.

76.

Xia, ed., Zouxiang quanli de shidai.

77.

A similar point was made recently with respect to bilateral sanctions policies. See Yitan Li and A. Cooper Drury, “Threatening Sanctions When Engagement Would Be More Effective: Attaining Better Human Rights

Notes

289

in China,” International Studies Perspectives 5, no. 4 (November 2004): 378–94.

C HAPTER 5

1.

This chapter draws heavily on my paper “Hinges and Latches on the Open Door,” presented at the Conference on Political Economy, Fudan University, Shanghai, May 20, 2002.

2.

Long Yongtu, “On the Question of Our Joining the WTO,” translated in Chinese Economics 32, no. 1 (January–February 2000): 15, 31.

3.

Yongjin Zhang, China and International Society Since 1949 (New York: St. Martin’s Press, 1998), 195.

4.

This is the approach initially taken in the report to Congress of the U.S.China Security Review Commission, July 15, 2002, The National Security Implications of the Economic Relationship Between the United States and China. www.uscc.gov/ch3_02./htm.

5.

For this approach see, for example, Pitman B. Potter, The Chinese Legal System: Globalization and Local Legal Culture (New York: Routledge, 2001), especially 125–42. Potter specifically warns against expecting specific compliance(141). See also Sylvia Ostry, “China and the WTO: The Transparency Issue,” UCLA Journal of International Law and Foreign Affairs 3, no. 1 (Autumn 1998): 1–22.

6.

China’s consistent position with respect to the operation of the international human rights regime has been to resist any direct accountability for its legal processes before international bodies. See Ann Kent, China, the United Nations and Human Rights: The Limits of Compliance (Philadelphia: University of Pennsylvania Press, 1999), and Rosemary Foot, Rights Beyond Borders: The Global Community and the Struggle over Human Rights in China (Oxford; Oxford University Press, 2000).

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7.

Cao Jianming and He Xiaoyong, “Jiaru WTO yu woguo duiwai jingmao lifa” [WTO Accession and Our Country’s Foreign Trade Legislation], Zhongguo Faxue, no. 1 (2000): 3–12.

8.

John G. Ruggie, “International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order,” in Stephen Krasner, ed., International Regimes (Ithaca: Cornell University Press, 1983), 195–231.

9.

Duncan Snidel and Kenneth W. Abbott, “Hard and Soft Law in International Governance,” International Organization 54, no. 3 (Summer 2003): 52.

10.

Claude Barfield and Mark Groomridge, “Avoiding Deadlock,” in Sylvia Ostry, Alan Alexandroff, and Rafael Gomez, eds., China and the Long March to Global Trade (London: Routledge, 2002), 31.

11.

Alan Alexandroff, “China and the World Trade Organization: Can Economic Engagement Triumph over Containment?” in Richard Rosecrance, ed., The New Great Power Coalition (Lanham, MD: Rowman and Littlefield, 2001), 353.

12.

Long Yongtu, “Jiaru Shimao Zuzhi, Rongru Guoji Shehui Zhuliu” [Join the WTO, Flow into the Mainstream of International Society], Xinhua Wenzhai, no. 12 (1999): 59.

13.

Liu Guanxi, Zhongguo yu “Jingji Lianheguo”—cong fuGuan dao “rushi” [China and the “Economic UN”] (Beijing: Zhongguo Duiwaimaoyi Chubanshe, 1998), 21.

14.

Tan Dizhou, WTO Guanmao Chongjipo he Zhongguo Jingji mianling de jiyu yu taozhan [The WTO/GATT Shock and the Opportunities and Challenges Facing China] (Tianjin: Tianin Renmin Chubanshe, 1998), 74.

15.

Ibid., 74.

16.

The classic statement of this is found in Alastair Iain Johnston, “Learning Versus Adaptation: Explaining Change in Chinese Arms Control Policy in the 1980s and 1990s,” The China Journal 35 (January 1996): 27–62.

17.

See Sylvia Ostry, “China and the WTO,” 1–22.

Notes

291

18.

William Scheuerman cites both Max Weber and Karl Marx in support of this proposition. The term “elective affinity” is, of course, Weber’s. See William Scheuerman, “Economic Globalization and the Rule of Law,” Constellations: An International Journal of Critical and Democratic Theory 6, no. 1 (March 1999): 3–25. See also William Scheuerman, “Globalization and the Fate of Law,” in David Dyzenhaus, ed., Recrafting the Rule of Law (Oxford: Hart Publishing, 1999), 245–52. For a Chinese author who emphasizes this point (at the conceptual level, not just at the formal level of the obligations of WTO accession) see Lin Laichu, “Guifan xianfa de tiaojian he xianfa guifan de biandong” [The Conditions for a Normative Constitution and Changing Norms of Constitutionalism], Faxue Yanjiu 21, no. 2. (March 1999): 34–47.

19.

A. Claire Cutler, “Linking Public Law Domains: The Juridification of Local and Global Political Economies,” manuscript prepared for the DAAD/University of Toronto Symposium, “The Reconstitution of Political Authority in the 21st Century: Cosmopolitan, Regional and National Perspectives Compared,” March 16, 2002.

20.

Tan, WTO Guanmao Chongjipo, , 76.

21.

Chinese officials are forthright about the government’s strategy. Liu Guanxi was special assistant to China’s chief GATT/WTO negotiator Long Yongtu. See Liu, Zhongguo yu “Jingji Lianheguo,” 26.

22.

Sean Leonard, The Dragon Awakens: China’s Long March to Geneva (London: Cameron May, 1999), 16–21.

23.

Tan, WTO Guanmao Chongjipo, 76.

24.

Margaret Pearson, “The Case of China’s Accession to GATT/WTO,” in David Lampton, ed., The Making of China’s Foreign and Security Policy in the Era of Reform (Palo Alto, CA: Stanford University Press, 2001), 340.

25.

See Tan, WTO Guanmao Chongjipo, 79–82.

26.

Ibid., 82.

27.

Ibid., 83.

28.

See Alexandroff, “China and the World Trade Organization,” 624, note 23. See also Zhang Hanlin, Jiedu Zhongguo Rushi [An Analysis of China’s Entry into the WTO] (Beijing: Jingji Ribao chubanshe, 2002), 357.

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29.

Leonard, The Dragon Awakens, 98.

30.

From 1990 to 1997 the percentage of Chinese trade accounted for by foreign firms who had invested in China rose from 17.4 percent to 48 percent. Liu, Zhonggguo yu “jingji Lianheguo,” 99.

31.

See David M. Lampton, “America’s China Policy in the Age of the Finance Minister: Clinton Ends Linkage,” China Quarterly, no. 139 (September 1994): 597–621.

32.

See David M. Lampton, “China and Clinton’s America: Have They Learned Anything?” Asian Survey 32, no. 12 (December 1997): 1112. See also Philip C. Saunders, “Supping with a Long Spoon: Dependence and Interdependence in Sino-American Relations,” The China Journal, no. l (January 2000): 78.

33.

For more on the role of centralization and Zhu Rongji’s agenda see Jeremy Paltiel, “Jiang Talks Politics—Who Listens? Institutionalization and Its Limits in Market Leninism,” The China Journal, no. 45 (January 2001): 113–21.

34.

See Susan Shirk, The Political Logic of Economic Reform in China (Berkeley: University of California Press, 1993).

35.

Donald C. Clarke, “The Execution of Civil Judgments in China,” in Stanley B. Lubman, China’s Legal Reforms (Oxford: Oxford University Press, 1996), 66.

36.

Perhaps the best example of the former is the compendium of essays edited by Xia Yong, Zouxiang Quanli de Shidai [Toward an Era of Rights] (Beiing: Zhengfa Daxue Chubanshe, 1995). In administrative law we see a pattern of attention to economic arguments, with Chinese jurisprudence beginning to look at arguments of economic efficiency associated prominently with Judge Richard A. Posner in the United States. See, for example, Bao Wanchao, “Xingzhengfa Pingheng Lilun Bijiao Yanjiu” [A Comparative Analysis of the Theory of “Balance” in Administrative Law], Zhongguo Faxue, no. 2 (1999): 58–67. Wang Xigen specifically argues that: “The constitution is an economic charter for a rule-of-law state to strengthen the nation.” Wang Xigen, “Xianfa dui gouzao fazhi guojia de jiazhi” [The Value of the Constitution in the Formation of a Rule-of-Law State], Xinhua Wenzhai (March 2000): 8–10.

37.

Yu An, “Fazhan fuhe shijie Maoyi zuzhi guifan de woguo xingzheng fa” [Develop Domestic Admninistrative Law in Keeping with the Norms of the WTO], Xinhua Wenzhai, no. 2 (2000): 5.

Notes

293

38.

For the background and inside story of this trip see Zong Hairen, Zhu Rongji in 1999, translated in Chinese Law and Government 33, no. 1 (January 2002): 36–53.

39.

Long Yongtu, “On the Question of Our Joining the WTO.”

40.

Ibid.

41.

Wang Yizhou, “Zhongguo yu duobianzhuyi waijiao” [China and Multilateral Diplomacy], Shijie jingjiyu zhengzhi [World Economics and Politics], no. 10 (2001): 5.

42.

Thomas G. Moore, “China and Globalization,” Asian Perspectives 23, no. 4 (1999): 88.

43.

See, for example, Yu Xindong, “Zhongguo jiaru WTO hou chanye baohu he chanye anquan yanjiu ji duice” [The Study of and Countermeasures for Manufacturing Protection and Manufacturing Security Following China’s Accession to the WTO], Xuexi yu Tansuo 127, no. 2 (2000): 4–11.

44.

Ruggie, “International Regimes, Transactions, and Change,” 195–231.For more on the concept of “instrumental liberalism” in post–Cultural Revolution China see Jeremy Paltiel, “Self and Authority in Contemporary China,” East Asian Institute Occasional Papers, 1993. See also Chloé Froissart, “La rennaissance du libéralisme chinois dans les annés 1990” [The Renaissance of Chinese Liberalism in the 1990s], Esprit, no. 12 (Decembre 2001): 112–25.

45.

See Yongnian Zheng, “Contending Visions of the Chinese State: New Liberalism vs. the New Left,” in Globalization and State Transformation in China (Cambridge: Cambridge University Press, 2004), 162–86.

46.

Russell Leigh Moses, “Chinese Views on Globalization,” ChinaOnline 4/14/2000. Cited in David Zweig, “China’s Stalled Fifth Wave: Zhu Rongji’s Reform Package of 1998–2000,” Asian Survey 41, no. 2 (2001).

47.

Tan, WTO Guanmao Chongjipo, 252–53.

48.

Wang Shuying and Jiang Yan, “Lun Chanye Quanqiuhua he Woguo chanye zouxiang quanqiuhua de zhengce xuanze” [On the Globalization of Production and Policy Choices of Our Country on the Way to Globalization], Shijie jingji yu Zhengzhi, no. 254 (October 2001): 49.

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49.

Zhang Wenmu, “Minzu, Guojia yu Quanqiuhua” [Nation, State and Globalization[, Zhongguo Guoqing Guoli (July 2000): 1.

50.

Li Shenming, “Quanqiuhua yu Disan Shijie” [Globalization and the Third World], Qiu Shi (neibu can), no. 7 (2000): 4. Lest readers think this extreme view is expressed only at the margins, Li is the vice president of the Chinese Academy of Social Science.

51.

See Feng Shaolei, Qin Wenhui, and Fanjun, “Guanyu quanqiuhua yu minzuxing de duihua” [A Dialogue on Nationalism and Globalization]. This quotation is from Feng, Xinhua Wenzhai, no. 11 (1999): 12.

52.

Cao Jianming and He Xiaoyong, “Jiaru WTO yu woguo duiwai jingmao lifa” [WTO Accession and Our Country’s Foreign Trade Legislation], Zhongguo Faxue, no.1 (2000): 3–12.

53.

Xie Weiqun, “ShanghaiShi Renda Changweihui weihe qiyong dongyiquan” [Why Did the Shanghai People’s Congress Standing Committee Use Its Power to Make Legislative Motions?]. www.people.com.cn/GB/shizheng/19/20020205/662949.html.

54.

Wang Jian et al., WTO Guize yu zhengfu zhineng zhuanbian [WTO Rules and the Transformation of Governance] (Beijing: Jingji kexue chubanshe, 2002), 44.

55.

Ibid.

56.

Ruan Chengfa, WTO yu Zhengfu Gaige [WTO and Government Reform] (Beijing: JingjiRibao Chubanshe, 2001), 216–30.

57.

Guo Guangdong, “Cong Qingmo Xiulu dao Rushi bianfa” [From Legal Reform at the End of the Qing to the Legal Reforms with WTO Accession],in n.a. Nanfang Zhoumo Yanzhong de WTO [WTO in the Eyes of Southern Weekend] (Giuangzhou: Nanfang Ribao Chubanshe, 2002), 51.

58.

“Rushi duidifang fazhi jianshe de yingxiang” [The impact of WTO accession on local lawmaking]. www.npcnews.com.cn./gb/paper8/7/ class/000800001/hwz181974.htm.

59.

One such example is the enactment of the “Law on Administrative Approvals,” promulgated July 1, 2004. See “Zhuanjia wen Xingzhenxukefa jiang dui xingzheng guanli chansheng juda yingxiang” [Experts write that the law on administrative approvals will have a huge impact on administrative management]. http://news.xinhuanet.com/

Notes

295

newscenter/2004-07/01/content_1560736.htm (accessed July 2, 2004). 60.

Again, this was recognized by Chinese scholars. See Yu An, “Fazhan fuhe Shijie Maoyi Zuzhi guifan de Woguo Xingzhengfa” [Our Country’s Administrative Law Developing in Accordance with WTO Norms], Xinhua Wenzhai (February 2000): 5–6.

61.

See chapter 2 of The Empire’s New Clothes.

62.

See, for example, He Jiayin, “Sifa gongzhenglun” [On Judicial Fairness), Zhongguo Faxue no. 2 (1999): 11.

63.

Long Yongtu, “On the Question of Our Joining the WTO,” 15.

64.

Ibid., 31.

65.

See Andreas Hasenclever, Peter Mayer, and Volker Rittberger, Theories of International Regimes (New York: Cambridge University Press, 1997), 136–210; and Alexander Wendt, The Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 246.

66.

Long Yongtu, “On the Question of Our Joining the WTO,” 33.

67.

See, for example, “China undergoes conceptual changes after WTO.” h t t p : / / e n g l i s h . p e o p l e d a i l y. c o m . c n / 2 0 0 2 0 1 / 1 7 / p r i n t / 20020117_88806.html.

68.

One newspaper reader asked whether it was proper for the education authority to be an exclusive marketer of test review materials and for the civil affairs authority to be the sole marketer of cremation urns in light of the WTO. The norm that he saw violated is: “How can you be both the athlete and the referee?” See Cao Qing, “Jiaru shimaole guhui hai yao ‘zhuanying’?” [Having entered the WTO must cremation urns still be ‘monopoly controlled’?]. http//peopledaily.com.cn/GB/guandian/26/20020322/692552.html.

69.

Long Yongtu, “On the Question of Our Joining the WTO,” 35.

70.

Ibid., 33–34.

71.

The limited liability company dates to 1830 and the British companies Act of 1862. Barry Buzan and Richard Little, International Systems in World History: Remaking the Study of International Relations (Oxford: Oxford University Press, 2000), 267–71.

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72.

See, for example, “Jinru WTO, Women xiang taguo xue shenmo?” [After entering the WTO what should we learn from other countries?]. www.people.com.cn.GB/guandian/183/6103/6104/20020129/ 658060.

73.

Again, Chinese legal scholars are not blind to this situation. See Long Fu, “RuShi yu falu de shijie yishi” [WTO Accession and Legal Cosmopolitanism), Xinhua Wenzhai (February 2000): 7–8.

74.

On March 12, 2002, Chinese MOFTEC minister, Shi Guangsheng, announced that the United States had violated WTO rules in imposing punitive sanctions on Chinese steel imports. On March 22, however, the Chinese delegation discussing this dispute in Washington insisted on China’s right to be treated as a developing country. It remains to be seen how this determination to be treated according to both “universal” and “exceptional” will play out in Geneva. See “Geguo dui Meiguo jiazheng gangtie shuishou de yingdui cuoshi” [The actions of various countries in countering U.S. punitive tariffs on steel]. www.people.com.cn./ GB/guoji/209/7668/20020325/694195.html

75.

Both Alexandroff (“China and the World Trade Organization”) and Ostry (“China and the WTO”) are examples of such skepticism. In return, Chinese officials have been vocal in their reassurance to the international community of the earnest implementation of WTO accession. See, for example, Shi Guangsheng, “Zhongguo renzhen luxing WTO de chengnuo” [China is earnestly observing its agreements on WTO accession]. www.people.com.cn./GB/jinji/31/179/ 20000409/705954.html.

76.

See Gerald Chan, “China and the WTO: the Theory and Practice of Compliance,” International Relations of the Asia-Pacific 4 (2004): 62.

77.

Mark A. Groombridge and Claude E. Barfield, Tiger by the Tail: China and the World Trade Organization (Washington: AEI Press, 1999).

78.

Ibid., 59–62. See also Alexandroff, “China and the World Trade Organization,” 353.

79.

See, for example, The [US] Congressional-Executive Commission on China Annual Report 2003, 67–70. www.cecc.gov/pages/annualRpt/2003annRpt.pdf.See also the General Accounting Office Report to Congressional Committees, “The WTOUS Companies Views on China’s Implementation of Its Commitments” (March 2004). www.gao.gov/new.items/d04508.pdf . The general pic-

Notes

297

ture is of uneven but incremental progress, with notable lapses in transparency issues. 80.

Richard Baum and Alexei Shevchenko, “Bringing China In: A Cautionary Note,” in Rosecrance, ed., The New Great Power Coalition, 327–44.See also Baum and Shevchenko, “China and the Forces of Globalization,” in Rosecrance, ed., The New Great Power Coalition, 65–85.

81.

See for example, the responses of China’s delegation to the WTO committees in the context of China’s transitional review. Some of this may be found in WTO G/SCM/111, 18 November 2003 (03-6162). In response to a request for a reply in writing from the Mexican delegate, the Chinese delegate replies: “To provide this would be to go beyond the mandate of paragraph 18 of the accession protocol” (item 51).

C HAPTER 6

1.

Valérie de Poulpiquet, Le territoire chinois (Paris: Librérie générale de droit et de jurisprudence, 1998), 41.

2.

Unryu Suganuma, Sovereign Rights and Territorial Space in Sino-Japanese Relations: Irredentism and the Diaoyu/Senkaku Islands (Honolulu: University of Hawaii Press, 2000), 145.

3.

Henrietta Harrison, Inventing the Nation: China (New York: Oxford University Press, 2001), 74.

4.

See Frank Hsiao and Lawrence Sullivan, “The Chinese Communist Party and the Status of Taiwan, 1928–1943,” Pacific Affairs 52, no. 3 (1979): 455–67.

5.

The divergent development of Taiwanese and Chinese nationalisms in the process of Taiwan’s democratization is the subject of Christopher Hughes’s book Taiwan and Chinese Nationalism: National Identity and Status in International Society (London: Routledge, 1997).

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6.

See “Japan-China oil dispute escalates,” The Washington Post, October 22, 2005. http://www.washingtonpost.com/wp-dyn/content/article/2005/10/21/AR2005102101933.html. See also “China: Differences remain in gas talks with Japan,” China Daily, July 9, 2006. h t t p : / / w w w. c h i n a d a i l y. c o m . c n / c h i n a / 2 0 0 6 - 0 7 / 0 9 / content_637007.htm (accessed July 19, 2006).

7.

See Byron Weng, “The Legal Status of Taiwan,” in Shao-chuan Leng and Hundah Chiu, eds., Law in Chinese Foreign Policy: Selected Problems of International Law (Dobb’s Ferry, NY: Oceana Press, 1972), 123–77.

8.

Interview with Deutsche Welle correspondent, July 9, 1999. Subsequently, on August 3, 2002, in a speech to supporters in Japan, Lee’s successor, Chen Shuibian referred to the existing status quo as “one state on each side of the Taiwan Strait.” http://gptaiwan.org.tw/~cylin/ China/2002/2002/_8_3.htm.

9.

See “Bo Li Denghui de ‘liangguo lun’” [Refutation of Lee Teng-hui’s ‘Two State’ Theory], Renmin Ribao, August 5, 1999; “The OneChina Principle and the Taiwan Issue,” released by the Taiwan Affairs Office and the Information Office of the State Council (hereafter referred to as the One-China White Paper), February 22, 2000; and “The Taiwan Question and Reunification of China,” Taiwan Affairs Office and Information Office State Council, The People’s Republic of China, August 1993, Beijing (hereafter referred to as the White Paper 1993).

10.

For an authoritative statement of this see Lee Teng-hui, “Understanding Taiwan,” Foreign Affairs 78, no. 6 (November–December 1999): 9–14.

11.

See Peking Review, no. 9 (March 3, 1972): 4–5.

12.

This is the subject of a PhD dissertation by Maxwell Der-yuan Wu, Institutional development and adaptability: Canada, Taiwan and the social construction of “One China,”.Department of Political Science, Carleton University, Ottawa, Ontario, Canada, 2000.

13.

Polling by Taiwan’s Mainland Affairs Commission (MAC) shows that between 75 and 85 percent of those polled consistently reject the “one country, two systems” formula for the resolution of problems across the strait. Support for the formula has never achieved more than 10 percent in the poll. See TECO News 2, no. 4: 9.

14.

Article 8 of the joint declaration makes it explicit that that declaration— which under Article 3, paragraph 5, guarantees the rights of free speech, press, assembly, and travel—and its annexes (number one of which deals

Notes

299

with the maintenance of the Hong Kong legal system and its independence under Section III) are equally binding under international law. 15.

The most recent illustration came in the resolution passed by the Fourth Plenum of the Sixteenth Central Committee: “For our Party to become the party in power was the choice of history, the choice of the people.”

16.

Yang Yongming, “Minzhuzhuquan: Zhuquanlilun xin quxiang yu Taiwan zhi shijian” [Democratic Sovereignty: Trends in the Theory of Sovereignty and the Experience of Taiwan], Lilun Yu Zhengce (Spring 1996): 31.

17.

Christopher Hughes, Taiwan and Chinese Nationalism: National Identity and Status in International Society (London: Routledge, 1997).

18.

The broadest interpretation leaves the status of Taiwan after unification—its international space, even the designation, flag, and form of a unified China—open to negotiation. See Suishheng Zhao, “Chinese Nationalism and Beijing’s Taiwan Policy: A China Threat?” Issues and Studies 36, no. 1 (January–February 2000): 95. Some of this was reiterated following the presidential election: Reflecting Mr. Jiang’s instructions, Mr. Tang said crossstrait negotiations would be conducted between equals, not between a central and a provincial government. In private, mainland officials have reiterated that the “one China” that would be formed after Taiwan’s reunification would not necessarily be named the People’s Republic of China.

19.

This was made explicit by President George W. Bush on December 9, 2003, as he stood beside PRC Premier Wen Jiabao. “We oppose any unilateral decision by Taiwan or China to change the status quo. And the comments and actions by the leader of Taiwan indicate that he may be willing unilaterally make decisions to change the status quo which we oppose.” Later, on October 25, 2004, U.S. Secretary of State Colin Powell stated explicitly, “Taiwan is not a sovereign state.” See also Michael Swaine, “Trouble in Taiwan,” Foreign Affairs 83, no. 2 (March–April 2004). www.foreignaffairs.org/2004/2.html.

20.

See the warning issued to Taiwan with respect to arms procurement issued by the director of the American Institute on Taiwan (the quasiembassy) in October 2006. http://www.ft.com/cms/s/ 453f891a-64e6-11db-90fd-0000779e2340.html

21.

Guidelines for National Unification, issued by the Mainland Affairs Council on February 23, 1991. http://ls.wustl.edu/Chinalaw/twguide .html (accessed June 12, 2006).

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22.

This is the formula that has been in place since August 2000. See Sheng Lijun, China and Taiwan: Cross-Strait Relations under Chen Shui Bian (London: Zed Books, 2003), 52. The English translation has been modified by this author to render it more accurate and idiomatic in English.

23.

“Gao Taiwan Tongbao Shu” [Declaration to Taiwan compatriots], Renmin Ribao, January 1, 1979. See also “Ye Jianying Xiang Xinhua she jizhe fabiao tanhua juinyibu chanming guanyu Taiwan Huigui zuguo shixian heping tongyi de fangzhen zhengce” [Ye Jianying talks with the correspondent of Xinhua news agency to further clarify the policies on the peaceful return of Taiwan to the Motherland], Renmin Ribao, October 1, 1981. For the statement about no administrative personnel being sent to Taiwan see “Deng Xiaoping Tan Zhongguo Dalu he Taiwan Heping tongyi de she xiang” [Deng Xiaoping speaks about his concept of reunification with Taiwan], Renmin Ribao, July 30, 1983.

24.

The most recent evidence of this came in September 2004, when Taiwan’s Central American allies attempted unsuccessfully to place the question of Taiwan’s representation on the agenda of the UN General Assembly.

25.

See Lee, “Understanding Taiwan,” and Lee’s book Taiwan de zhuzhang [The Assertion of Taiwan; the official translation of the title was The Road to Democracy] (Taipei: Yuan Liou Publishing, 1999).

26.

President George W. Bush, remarks on Good Morning America, April 25, 2001.

27.

See the One-China White Paper.

28.

PRC legal scholars are themselves skeptical about the depth of PRC constitutional law and the extent of the rule of law within the PRC. On the first problem see Lin Laifan, “Guifan Xianfa de tiaojian he xianfa guifan de biandong” [The Conditions for a Normative Constitution and the Changing Norms of Constitutional Law], Faxue Yanjiu [CASS Journal of Law] 21, no. 2 (March 1999): 34–47. On the latter point see, for example, Li Buyun, “Shishi Yifa zhiguo zhanlue lungang” [A Strategic Program for Instituting the Rule of Law), Xinhua Wenzhai, no. 9 (1999): 12–15.

29.

See “Deng Xiaoping discusses his project for the peaceful reunification of Taiwan with the Mainland,” Renmin Ribao, July 30, 1983.

Notes

301

30.

“Anti Secession Law” (full text), People’s Daily (online). http://english.people.com.cn/200503/14/eng20050314_176746.html (accessed June 12, 2006).

31.

See Robert Ross, “Taiwan’s Fading Independence Movement,” Foreign Affairs (March–April 2006).

32.

See “Chen scraps NUC, guidelines into history,” Taipei Times, March 1, 2006. http://www.taipeitimes.com/News/front/archives/2006/ 03/01/2003295143 (accessed June 12, 2006).

33.

State Council Information Office, “China’s National Defense in 2004.” http://english.gov.cn/official/2005-07/28/content_18078.htm (accessed July 20, 2006).

34.

See Office of the Secretary of Defense, Military Power of the People’s Republic of China 2006, especially 24. http://www.defenselink.mil./pubs/ pdfs/China%Report%202005.pdf

C HAPTER 7 1.

Zhang Wannian, Dangdai Shijie junshi yu Zhongguo Guofang [Contemporary World Military Affairs and China’s Defense] (Beijing: Junshi kexue chubanshe, 1999), 140–41.

2.

Allen Carlson asserts unequivocally that China is being socialized. See Allen Carlson, “Helping to Keep the Peace (Albeit Reluctantly): China’s Recent Stance on Sovereignty and Multilateral Intervention,” Pacific Affairs 77, no. 1 (Spring 2004): 26.

3.

Zalmay Khalizdad’s assessment, which was influential in the first year of the George W. Bush administration, was indeed a realistic that viewed China as a challenger to the United States, at least regionally. See Zalmay M. Khalizdad et al., The United States and a Rising China: Strategic and Military Implications (Santa Monica, CA: RAND Corporation 1999), 63–75. For the views of the early Bush administration see Condoleeza Rice, “Campaign 2000: Promoting the National Interest”Foreign Affairs (January–February).

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The Empire’s New Clothes / Jeremy T. Paltiel http://www.foreignaffairs.org/20000101faessay5/condoleezza-rice/ campaign-2000-promoting-the-national-interest.html%3E.

4.

This is more or less the conclusion reached after exhaustive study by Alastair Iain Johnston, “Is China a Status Quo Power?” International Security, 27, no. 4 (Spring 2003): 5–56.

5.

See “Farewell, Leighton Stuart!” and “The Bankruptcy of the Idealist Conception of History,” Mao Zedong, Selected Works IV (Peking: Foreign Languages Press, 1969), 451–59.

6.

For background see Chen Jian, China’s Road to the Korean War (New York: Columbia University Press, 1994), chapters 2 and 3.

7.

Wu Zichen sees China’s adoption of a foreign policy posture of “peace and development” as the marker of this transition. See Wu Zichen, “China’s Twisted Road to Coexistence,” Heartland, no. 2 (2001): 37.

8.

Deng Xiaoping, “China Must Take Its Place in the Field of High Technology” (October 24, 1988), Selected Works III. http://english.peopledaily.com.cn/dengxp/vol3/text/c1920.html.

9.

All three of these terms appear in Jiang Zemin’s report to the Sixteenth Congress of the Communist Party of China, October 2002.

10.

Zhang Wenmu, “Daguo jueqi de luoji” [The Logic of the Rise of Great Powers], Zhongguo Shehuikexue, no. 5 (2004): 51.

11.

Ibid.

12.

Ibid.

13.

Ibid.

14.

Deng Xiaoping, “We must safeguard world peace and ensure domestic development” (May 29, 1984). http://english.peopledaily.com.cn/ dengxp/vol3/text/c1200.html.

15.

“The Overriding Need Is for Stability.” This Chinese mantra goes back to Deng Xiaoping. http://english.peopledaily.com.cn/dengxp/ vol3/text/c1940.html. See also “Nothing can be accomplished without a stable political environment.” http://english.peopledaily.com.cn/ dengxp/vol3/text/c1770.html.

Notes

303

16.

http://news.xinhuanet.com/english/2002-11/18/content_632571.htm.

17.

Thomas Christensen, “China’s Realpolitik,” Foreign Affairs 75, no. 5 (September–October 1996): 37.

18.

Zhang Wannian, Dangdai Shijie junshi yu Zhongguo Guofang, 37.

19.

Interview with Pan Zhongying, Tsinghua University, October 24, 2001.

20.

He Yao and Ren Xiao, “Junshi lilun fansi” [A Reconsideration of Balance-of-Power Theory], in Zi Zhongyun, ed., Guojizhengzhiu Lilun Tansuo Zai Zhonguo [Explorations of Theories of International Politics in China] (Shanghai: Shanghai Renmin chubanshe, 1998), 234.

21.

See, for example, Li Shaojun, “Lun Anquan lilun de jiben guainian” [On the Basic Concept of Security Theory), in Zhongyun, ed., Guojizhengzhiu Lilun Tansuo Zai Zhonguo, 144–76.

22.

See, for example, “Meeting challenges through multilateralism: Commentary.” http://english.peopledaily.com.cn/200409/13/ eng20040913_156887.html.

23.

Shen Jiru, “Duobian waijiao he duoji shijie” [Multilateral Diplomacy and a Multipolar World], Shijie Jingji yu zhengzhi, no. 10 (2001): 21.

24.

Meng Xiangqing, “Canyu duobian anquan hezuo: jishi taozhan, ye shijiyu” [Participation in Multilateral Security Cooperation: Both an Opportunity and a Challenge], Shijie Jingji yu zhengzhi, no. 10 ibid. 29.

25.

Ibid.

26.

See Brantly Womack, “China and Southeast Asia: Asymmetry, Leadership and Normalcy,” Pacific Affairs 76, no. 4 (Winter 2003–2004): 529–48.

27.

Ma Yanbing, “Dongmeng lengzhanhou de anquan zhanlue” [ASEAN’s Security Strategy after the Cold War] in Yan Xuetong et al., eds., Zhongguo yu YaTai anquan; lengzhanhou YaTai guojia de anquan zhanlue zouxiang [China and Asia-Pacific Security: post–Cold War Trends in Security Strategies of the States of the Asia Pacific] (Beijing: Shishi chubanshe, 1999), 166–69.

28.

See Womack, 529–48.

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29.

Rodolfo C. Severino, “The ASEAN Way and the Rule of Law.” www.aseansec.org/2849.htm (accessed July 27, 2004).

30.

See Amitav Acharya, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order (London: Routledge, 2001), 45–79.

31.

Nicholas Khoo, “Deconstructing the ASEAN Security Community,” International Relations of the Asia Pacific 4 (2004): 35–46.

32.

See Alastair Iain Johnston “Socialization in International Institutions: The ASEAN Way and International Relations Theory” in G. John Ikenberry and Michael Mastanduno, eds., International Relations Theory and the Asia-Pacific (New York: Columbia University Press, 2003), 107–62.

33.

Avery Goldstein, “An Emerging China’s Emerging Grand Strategy: A Neo-Bismarckian Turn,” in Ikenberry and Mastanduno, eds., International Relations Theory and the Asia-Pacific, 72–73.

34.

Hu Xuan, “Spying Reveals US Ambitions for War,” China Daily (Internet Version-WWW) in English, 0031 GMT Mar 7, 2003, opinion page.

35.

Yan et al., eds., Zhongguo yu YaTai Anquan, 257.

36.

Ashley Tellis seems to reach a similar conclusion in “A Grand Chessboard,” Foreign Policy (January–February 2005). http://www.foreignpolicy.com/story/cms.php?story_id=2751 (accessed February 18, 2005).

37.

In late October 2004, then-Secretary of State Colin Powell described the state of Sino-American relations in glowing terms, mentioning specifically the improvement in the wake of the EP-3 incident. See Susan W. Lawrence, “US diplomat stands firm: how China relations improved: an insider’s view,” Far East Economic Review, October 28, 2004.

38.

See Renmin Shidian, “Juzhao guoji junshi zhanlue geju ruhe tiaozheng” [Pinpointing how the international military strategic structure has been adjusting]. http://www.peoplecom.cn/GB/guardian/183/6103/ 7942/2625680.html.

39.

“Since the 9/11 incident, U.S. security strategy has undergone momentous reorganization, but the goal of proselytizing U.S. values globally

Notes

305

and establishing a global order under U.S. power has not changed. Under the pretext of eliminating global terrorism and preventing the proliferation of weapons of mass destruction, it has already fomented two wars in Afghanistan and in Iraq. With respect to the latter in particular, the United States has stood against the strong opposition of international society (including some of the major allies of the United States itself) for sidestepping the UN Security Council.” Zheng Ruixian, “Heping gongchu wuxiang yuanzi chansheng de lishi beijing he shidai yiyi” [The Historical Background to the Five Principles of Peaceful Coexistence and Their Epochal Importance), Contemporary Asia-Pacific Studies, no. 6 (2004): 8. 40.

China has participated as an invited guest on the fringes of the G-8 summit every year since 2003. Initially, under Jiang Zemin, China hesitated to tarnish its credentials as a member of the developing world by joining a club of the rich and developed. However, Hu Jintao seems to be more willing to appear as part of the policy of “peaceful rise.” Surrounding the St. Petersburg Summit in 2006, the Chinese press actively speculated on China’s credentials as a full member. See “Zhongguo yu Ba guo fenghui baochile yige bijiao shushide jiechu” [China has maintained a relatively comfortable contact with the G-8 Summit]. http://www.people.com.cn/GB/32306/54155/57487/4604364.html (accessed July 20, 2006).

41.

Susan Shirk, “One-sided Rivalry: China’s Perceptions and Policies Towards India,” in Harry Harding and Maxine Frankel, eds., The Sino-Indian Relationship (New York: Columbia University Press, 2004), 75–103.

42.

See “Indian Premier’s Talks in Beijing Signal Better Relations.” www.nytimes.com/2003/06/24/international/asia/24CHIN.html. See also “ZhongYin tianshu shuangbian guanxi yuanze yu quanmian hezuo de xuanyan” [China and India sign declaration on the principles for bilateral relations and all-round cooperation]. http://people.com.cn/GB/ shizheng/1024/1930439.html.

43.

See, for example, Qian Qichen, “US strategy seriously flawed,” China Daily, November 1, 2004.

44.

See the author’s paper titled “The Rise of China as a Challenge to International Relations Theory,” presented at the ISA in 2005 in Honolulu, Hawaii.

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45.

Liu Jie, Jingji quanqiuhua shidai de guojia zhuquan [National Sovereignty in Times of Economic Globalization] (Beijing: Changzheng Chubanshe, 2001), 150.

46.

Ibid.

47.

Hu Jintao expounded on this concept during his speech before the Central Party School on February 26, 2005. See “Building a Harmonious Society Crucial for China’s Progress.” http://english.people.com.cn/ 200506/27/eng20050627_192495.html (accessed July 17, 2006).

48.

Special feature: “China’s peaceful development powerfully strengthens ‘soft power.’” http://news.xinhuanet.com/newscenter/2004-09/ 27/content_2029983.htm (accessed September 28, 2004).

49.

Bruce Klingner, “Peaceful rising seeks to allay ‘China threat,’” Asia Times online, March 12, 2004. www.atimes.com/atimes/Front_Page/ DK29Aa01.html%20.

50.

Tian Zhongqing, “Asia-Pacific Security in the Post-Cold War Era,” in n.a., The Post–Cold War World (Shanghai: Shanghai Institute for International Studies, 2000), 242.

51.

Zhang, Dangdai Shijie junshi yu Zhongguo guofang, 176.

52.

For Chinese writing on the security dilemma see Li Shaojun, “Lun Anquan lilun de jiben guainian,” in Zi Zhongyun, ed., Guoji zhengzhi lilun tansuo zai Zhongguo, 144–76, especially 171–74.

53.

“China’s National Defense in 2002.” http://english.people.com.cn/ features/ndpaper2002/ndl.html (accessed December 9, 2002).

54.

Ibid., 49.

55.

See www.people.com.cn/GB/shizheng/3586/20021126/875061.html.

56.

Liu Ming, Guoji Ganyu yu Guoji Zhuquan [International Intervention and International Sovereignty] (Chengdu: Renmin chubanshe, 2000).

57.

In early 2004, General Secretary Hu Jintao formulated a policy position around China’s international engagement, titled peaceful emergence (heping jueqi). This formulation was apparently scuttled because of opposition from Jiang Zemin, who as chair of the Central Military Commission still held sway over military policy and apparently advocated a tougher military posture toward Taiwan. See “Former Leader Is Still a Power in China’s Life,” The New York Times (Internet edition), July 16,

Notes

307

2004. www.nytimes.com/2004/07/16/international/asia/16chin .html. See also Rober Suettinger “The Rise and Descent of ‘Peaceful Rise,’” China Leadership Monitor, no. 12 (2004): 1–10. 58.

Zheng Bijian, “Heping Jueqi de Xin daolu,” Xinhua wenzhai, no. 10 (2004): 1.

59.

Guo Shuyong, “Lun Zhongguo jueqi yu shijie zhixu de guanxi<” [On the Relationship Between China’s Rise and World Order], Taipingyang Xuebao, no. 6 (2005).

60.

See the remarks on September 21, 2005, of Robert Zoellick to the National Committee on U.S.–China Relations, “Whither China: From Membership to Responsibility,” NBR Analysis 16, no. 4 (2005): 5–14.

61.

This quotation from Deng Xiaoping around 1990 is confirmed in a number of Chinese sources. See, for example, Chen Xiangyang, “jiedu taoguang yanghui zhengce, reng shi Zhongguo duiwai zhanlue zijue xuanze” [reading the policy of ‘fleeing the light, biding time in the shadows’is still the conscious choice in China’s strategy to the outside world]. http://news.china.com/zh_cn/domestic/945/20050908/ 12638531.html. The Pentagon’s report to Congress on PRC military power cites a Hong Kong source in 1991. Ching Bao No. 172 pp.8486 November 5, 1991. See The Military Power of the PRC 2006 7.

62.

See Michael Pillsbury, China Debates the Future Security Environment (Washington: National Defense University Press, 2000).

63.

Such dissenting views were variously echoed by Qin Yaqing, Wang Yizhou, and Men Honghua. Both Qin and Wang entertained a specific intention to found and develop an indigenous foreign relations theory. Wang is specifically interested in the English School and the Copenhagen school.

64.

David Kang has reworked the Sino-Confucian model of international order in logical-formal terms. See “Hierarchy and Stability in Asian International Relations,” in Ikenberry and Mastanduno, eds., International Relations Theory and the Asia-Pacific, 163–90.

65.

Qin Yaqing is vice rector of China’s Foreign Affairs College and the translator into Chinese of Alexander Wendt’s The Social Theory of International Relations. He was also the foreign affairs specialist called in by Hu Jintao early in 2003 to lecture the Politburo on foreign relations.

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66.

Men Honghua is a researcher at the Strategic Institute of the Central Party School and the author of “A Framework for the Construction of China’s Grand Strategy.”

67.

Director of the Institute of World Economics and Politics at the Chinese Academy of Social Sciences and editor in chief of World Economics and Politics, considered China’s most respected journal of international relations.

68.

Perhaps the best known is Yan Xuetong, Director of the Institute of International Relations at Tsinghua University, who was a student of Kenneth Waltz at the University of California, Berkeley. See, for example, Yan Xuetong et al., eds., Zhongguo yu YaTai Anquan, 257.

69.

On the significance of these see “NPC deputy calls for promoting Chinese,”China Daily, March 10, 2006, 3.

70.

Hu Jintao used the term “building a harmonious world” in his speech at the UN 60th Anniversary Summit in September 2005, and he repeated it in various international speeches. See “Goujian hexie shijie: Zhongguo waijiao sixiang de xintupo” [Building a harmonious world: a new breakthrough in Chinese diplomatic thinking], Study Times (the organ of the Central Party School), December 20, 2005. http://www .studytimes.com.cn/chinese/OP-c/1066412.htm (accessed March 20, 2006). Hu Jintao made building a harmonious society the centerpiece of his ideological worldview. See his speech to the study group of important cadres of provincial and ministerial rank, June 26, 2005. h t t p : / / w w w. c h i n a n e w s . c o m . c n / n e w s / 2 0 0 5 / 2 0 0 5 - 0 6 26/26/591331.shtml (accessed March 20, 2006).

71.

See Fei Xiaotong, From the Soil (Berkeley: University of California Press, 1992), chapters 4 and 5. Qin Yaqing explicitly refers to Fei when interviewed about Chinese approaches to international society. Author’s interview, Beijing, May 20, 2005.

72.

Men Hong Hua, Goujian Zhongguo Da Zhanlue de goujia [China’s Grand Strategy: A Framework Analysis] (Beijing: Beijing Daxue Chubanshe, 2005).

73.

Ibid., 331.

74.

Mencius (Meng Zi or Meng Ke) set down the initial normative opposition to power politics and ‘hegemony’ in the political context of the fourth century B.C.E. Warring States period.

Notes

309

75.

This is precisely the criticism leveled at ASEAN. See Khoo, “Deconstructing the ASEAN Security Community,” 35–46.

76.

Alastair Iain Johnston, “China’s Militarized Interstate Behaviour 1949–1992: A First Cut at the Data,” The China Quarterly, no. 143 (March 1998): 1–30.

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AUTHOR I NDEX

A Abbot, Kenneth W., 166 Alexandroff, Alan, 167 Anderson, Benedict, 11

D de Vattel, Emmerich, 36, 59–60, 96 Dicey, A. C., 99, 102, 124, 127 Dong, Yunhu, 284n28 Dworkin, Ronald, 134, 276n73

B E Barth, Frederick, 6 Baum, Richard, 189, 269n19 Brownlie, Ian, 270n30 Bull, Hedley, 31–32, 35, 149, 152, 263n6, 268n12 Buzan, Barry, 140

C Cai, Dingjian, 126, 128, 278n88 Carlson, Allen, 301n2 Chen, Jianfu, 261n114, 264n12, 273n50 Chen, Xiaomei, 10–11 Chou Tse-Tsung, 12 Chow, Rey, 246n16 Cranston, Maurice, 150 Crossley, Pamela K., 47

Elster, Jon, 132, 252n19

F Fei Xiaotong, 235 Finnemore, Martha, 16 Fishel, Wesley, 66 Foot, Rosemary, 149, 285n40

G Gao Simei, 131 Giddens, Anthony, 19 Goldstein, Avery, 224–5, 234

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Gong, Gerrit W., 149, 246 Gong, Renren, 269n16 Gu Anliang, 117

H Hart, H. L. A., 94, 97–98, 111, 257n77 He Weifang, 276n75, 278n89 He Yao, 221 Hevia, James, 57, 263n4 Hinseley, F. H., 39, 254n42 Hughes, Christopher, 200 Huntington, Samuel, 10, 152 Hutchinson, Allan, 98

I Ikenberry, G. John, 32 Inoue, Tatsuo, 160

J Johnston, Alaistair Iain, 3, 193, 234, 236, 242

K Kang, David, 234, 307n64 Katzenstein, Peter, 229 Keeton, G. W., 60–61, 261n110 Keith, Ronald C., 123, 280n113 Kelsen, Hans, 53, 100, 111, 144–5 Kent, Ann, 139–40, 148–9, 267n6 Krasner, Stephen, 6, 31–32, 252

L Levenson, Joseph, 11–12 Li Buyun, 114–9, 154, 157 Liu Jie, 68 Long Yongtu, 163, 167–8, 179, 291n21 Lu Shilun, 157–8 Lu Xianfu, 131 Luk, Bernard Hung-kay, 65 Luo Fuhui, 145–6

M Mayall, James, 73 Men Honghua, 234, 236, 308n66 Mo Jihong, 156–7 Monahan, Patrick, 98 Moore, Thomas, 180 Morgenthau, Hans, 54

N Nardin, Terry, 7, 97 Nathan, Andrew, 105, 108 Needham, Joseph, 48–9 Nye, Joseph, Jr., 15, 229

P Peerenboom, Randall, 135 Potter, Pitman B., 124, 238, 272nn42–3, 275n62, 289n5

Author Index

313

Q

W

Qin, Yaqing, 234–5, 307n63, n65, 308n71

Waltz, Kenneth, 54, 234 Wang, Yizhou, 234 Weber, Max, 7, 94, 100 Wei Pan, 128 Wendt, Alexander, 7, 16–17, 30, 33, 53, 235, 268n14 Wight, Martin, 30 Willoughby, Wesley 260n97, 262n123 Wright, Mary Clabaugh, 63 Wu, Maxwell Der-yuan, 298n12 Wu Zichen, 302n7

R Ren, Xiao, 221 Risse, Thomas, 140

S Schwartz, Benjamin, 37–38 Segal, Gerald, 83–84 Shevchenko, Alexei, 189 Shu, Guan Zhang, 264n14 Sikkink, Katherine, 140 Snidel, Duncan, 166 Song, Yafang, 156–7 Swaine, Michael, 5

X Xia Yong, 274n54 Xu, Jian, 153–4

Y T Tang Tsou, 76, 299n18 Tellis, Ashley 5 Thompson, Janice E., 258n84 Tilly, Charles, 51

U Unger, Roberto, 109

Yan, Xuetong, 227, 234

Z Zhang Wannian, 213, 231 Zhang Wenmu, 217–8 Zhang Yongjin, 56–57, 163, 264n10 Zheng Bijian, 232, 234 Zhu Feng, 161 Zhu Suli, 125

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S UBJECT I NDEX

A All-under heaven. See tianxia Anti-rightist campaign of 1957, 103, 119 Ambassador, 57 Anglo–Japanese Naval Treaty, 62 Association of Southeast Asian Nations (ASEAN): 223–4, 230; ASEAN “way,” 236, 304n29; and multilateral security cooperation, 234–5, 242, 246 237, 240, 309n75 ASEAN Regional Forum (ARF), 223–4, 226 Treaty of Amity, 223–224, 235

B Ba. See hegemony

C “China Threat,” 82, 186 Communist Party of China (CPC): 21, 26, 66; autonomy from

Moscow, 21; and the Chinese state 75, 78–9, 84–7, 90, 102–3, 106, 111–4; and the rule of law, 117, 120, 124–34, 138; organizational monopoly 133–135, 216, 239; and human rights 148, 155, 161; and market economics 175, 182, 186; and territorial sovereignty 199–200, 203, 209–10, 216; and development 214, 232; and globalization 242 Central Committee, 78, 111, 114, 124, 127, 133, 147, 168 Confucianism, 3–6, 10, 12, 22, 38, 41–2, 49, 100, 132, 247n19 Confucius, 4, 12, 23, 43–5, 50, 101, 234 Constructivism, 7, 29, 221, 234 Corruption, 106, 117, 126, 128–9, 177–8, 217 Cultural Revolution, 5, 22–3, 75–6, 102–5, 114, 134, 215 Culture: and identity 2–6, 9–21, 24–5; of anarchy 33; and ethics 41; and the state 51, 64, 75, ; and globalization 79–81, 184; and the rule of law 90, 101, 103, 109, 113, 115, 122, 132, 136–7; and human rights 144, 152–3, 158–60, 216–7, 219, 235–6

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D Democracy: and modernity 12, 62; and human rights 87, 98, 147, 153, 161–2; and the rule of law 105, 128–9, 145, 197, 203; in international relations 167, 183, 217, 226, 239; and selfdetermination for Taiwan 199–200, 203 Democracy Wall, 105 Deng Xiaoping, 6, 78, 83, 104–7, 112–3, 151, 173, 206, 215–6, 229–30, 233–4, 241, 250n46

E Embedded Liberalism, 155, 166, 180 Extraterritoriality, 59–60, 62–3, 66–7

G Great Britain, 57, 59, 63, 67–8 Grotius, 34–5, 52–3, 94, 96

H “Harmonious Society,” 230, 233, 235, 241 Hegemony, contrasted with the “kingly way” 33; ideological hegemony, 22, 73, 76, 120; international hegemony, 152–3, 174, 180, 214, 217, 232, 237; US, 222, 229

Hu Jintao, 126–127, 217, 232, 278n93, 305n40, 306n47, 307n65, 308n70 Human Rights: and universal values, 13, 22–6, 158; and international law 36, 58, 61, 9, 93, 118, 139–62; and natural law 48; sovereignty and, 83–4, 87, 91–2, 113, 140–143, 157, 198, 216, 238, 240; the rule of law and, 90–3, 95–7, 110, 123, 135; Chinese constitutionalism and 105, 108, 110, 113, 115, 118–20, 123, 135; contrasted with the international trade regime, 164, 167, 186, 188–9; and US trade 175, 188

I International Law: and sovereignty 2–3, 5, 14, 17–8, 23, 25–6, 29, 34–6, 66, 68, 77–8, 91–93; China’s introduction to 52–4, 56–63, 91–93, 102; and the Opium War 59–61; the rule of law and, 93–97, 99–100; and domestic compliance 157, 160, 185; and Taiwan 196–7, 200, 203; and world order 222 International Regimes, 98, 148, 164–7 International Relations Theory, 2–3, 16, 23, 53

J Japan: and the importation of modern legal-political concepts 23, 43, 46, 260n107; entry into

Subject Index the system of sovereignty 55, 61–4; war with China 67–8, 192 ; approach to the West 81, 101; in the international trading system 171, 173, 187; and Taiwan 192–6, 204: and Asia 237, 240 Jiang Zemin, 80, 87, 134, 147, 155, 182, 205, 218, 228

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N

Korea, 72, 171, 174, 187, 192, 215, 235, 237, 240, 242 Korean War, 5, 74, 194

National People’s Congress (NPC), 119, 160, 218, 250, 293 Nationalism, 11, 19, 23, 69, 73, 76, 84–86, 144–146, 153, 180, 182, 192–193, 199, 216 Nationalist Party (KMT), 66, 200, 203, 209 Natural Law, 34–6, 48–50, 53, 94, 97, 99–100 Nomenklatura, 41, 90, 114, 124, 126–7, 188, 216–7

L

O

K

Law: in China and the West 2–5, 14–20, 33–51, 90–91; and the foreign policy of China 23–6, 29 74, 77–8, 85, 147–154, 163–7, 171–6, 178–9; in the governance of the PRC, 103–109, 111–138, 141–2, 164–7, 176–7, 180–6, 238–9; 196–207 Lawyers, 3, 25, 53, 96, 119–20 Legalism (fajia), 106 Liberalism, 17, 66, 87, 99, 119, 155, 166, 180, 199, 229

“Occidentalism,” 9–10, 146 Opium Wars, 2, 5, 55–6, 71 “Orientalism,” 9–10, 146, 160

P “Peaceful Rise,” 153, 155, 217, 230, 232, 234–5 People’s Liberation Army (PLA), 98, 140 Politburo, 127, 132 Political-Legal Committees, 114, 124

M Mao Zedong, 9, 21–2, 71, 73–5, 78, 192, 214–5 Meiji: Restoration, 55, 61; Constitution, 61, 250n44, 256n61

Q Qing Dynasty, 43, 46–7, 57, 61, 63, 185

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R

T

Realism, 3–4, 7–8, 234, 236 Rights: in China and West 3–4, 8, 13, 22–6, 39–48, 56, 102; see also Human Rights; consciousness of, 135, 153; justiciability of, 137; and the multilateral trade regime, 165–8, 170–1 Rule of Law: 14–5, 20, 25–6; see Sovereignty and; 141, 153–4, 157, 160–7, 175, 184–9, 196–8, 200, 203, 205, 216–7, 220, 224, 226, 238–9 Russia, 56–7, 62, 96, 215, 225, 240

Taiwan, 26–7, 72, 83–5, 146, 168, 175, 192–211, 216, 218, 226, 233–4 Tiananmen, 10, 114, 156, 172 Tiananmen repression, 23, 112, 147 Tianxia (all–under heaven), 55, 69, 204, 259 Tibet, 39, 95 Treaty, 52, 55, 57, 59, 61–3, 66–8, 108, 193–4, 196–8, 223–4, 235; Of Nanking, 71, 73; Versailles, Treaty of, 66

S Social Construction, 2, 7–8, 53, 134 Socialization, 2, 8, 233–4 Sovereignty: 2–3, 6–8, 13–20, Western concepts of 29–37; Chinese tradition and, 37–48, 52, 56; export to Asia 54–64; and international trade, 165–7, 170, 179–80, 183, 185; and Taiwan 194–210; see also, Human Rights and International Law and, 5, 18, 32, 52–3, 55, 60–1, 77–8, 91–2, 94–7, 99–100, 102, 138, 196, 200, 238 Domestic, 25–6, 43, 74–5, 82, 84, 90–1, 93, 135, 165, 196, 200–1, 238 Soviet Union, 5, 67, 72, 77, 120, 171, 173, 193, 211, 215–6, 222, 225

U Unequal Treaties, 55, 59–2, 67, 71, 214 United Nations, 83, 87, 102, 143, 150, 196, 204, 226, 242 United States, 6, 15, 27, 67–8, 74, 78, 120, 143, 146, 155, 165, 172–5, 179, 187–9, 193–8, 203–4, 209–15, 219–22, 226–9, 233–7, 240, 242

W Washington Conference, 66 Westphalia system, 52, 55–6, 84, 96, 222, 224–5, 236–7, 239–40 World Trade Organization, 26, 71, 82, 108, 161, 163–89, 216, 220, 226, 228