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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Marxist Approaches to International Adjudication

Anthony Carty, Lizhi Zhao

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 24 September 2022

Political violence — International procedural law — Arbitration — Theory of international law

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

The structure of this entry is to align Western nominally Marxist discussions of international law and the possibility of judicial or arbitral dispute settlement with contemporary discussions of the same subject in China. It is desired to include China directly in consideration of the question because it understands itself as a Marxist State and especially since the presidency of Xi Jinping there has been a renewed interest in integrating Marxist thinking into China’s general vision of the future—the Chinese Dream (Bougan, 2018). In addition, President Xi himself stresses the importance of the international rule of law, while finding his regime accused of adhering to ‘rule by law’ rather than ‘rule of law’, ie law as an instrument of policy rather than a standard of restraint. This further allows examination of crucial issues from some kind of rule of law perspective—ie a rule that strives for impartiality between opposing views.

Key areas which lend themselves to such general analysis are: the world trade war, centered on the rules of the World Trade Organization (WTO); the Chinese Belt and Road Initiative (‘BRI’), seen in the West in geopolitical terms as a Chinese attempt to appropriate the Eurasian landmass, but which China sees as an exercise in solidarity for development and expansion of globalization; and the South China Sea dispute (South China Sea Arbitration (Philippines v China)), which both China and the West see in terms of their interpretations of international law.

The integration of the two themes of Western Marxism and the rule of law and China has proved surprisingly easy because of a close alignment of focus of the two on a central issue. At present, the Western discussion is dominated by the work of China Miéville (2005) titled Between Equal Rights: A Marxist Theory of International Law. He follows the Soviet legal theorist Evgeny Pashukanis, who in turn follows Marx himself with the latter’s expression that between equal rights force will decide—the equal rights being capital and labor. The fundamental paradoxical aspect of Pashukanis’s theory is that, despite ever-present coercion, he treats the relationship of exchange between States as equal legal subjects with respect to the territory and population as property of the State. Miéville’s own interpretation of this paradigm is that it is always and entirely coercive, resting on a changing balance of power. This contention is disputed fiercely by Susan Marks (2007, 199–211), by Robert Knox (2009, 413–36), and, above all, the book-length refutation of Bhupinder Chimni (2017). These all insist that Marxist theory and practice leaves a space for ‘the proletariat’ and recent modifications of this class do have a space within legal processes for some attainment of legal justice.

The striking feature of Chinese theory centers around the Bandung Principles of Peaceful Coexistence which include, centrally, the idea of sovereign equality and relations based upon mutual benefit. The key Chinese concept, so close in practice to Pashukanis, is what the Chinese call ‘Charter liberalism’, which, in the words of Zhao, ‘transplants classical liberalism onto the context of the international community’, so that the rights of States become an international edition of individual rights in municipal law (Zhao, 2016). Then the Charter, as an international constitution, maintains world peace and order. While not specific about whether significant issues can be subject to adjudication, this theory is optimistic about the possibility of ‘win-win’ agreements among States as equal partners. Indeed, under President Xi this theory is developed even further towards communism at a global level by the concept of a ‘Community of Shared Future for Mankind’ (‘CSFM’). This is now heralded as a development of Marx’s thought of a ‘community of free individuals’.

However, it is precisely here, with this latest Chinese development, that a backlash has developed in the West around China’s supposedly hegemonic striving for world domination, thereby threatening the so-called rule-based international order. This debate exists at present more at the level of political think tanks than legal journals, but it actually reinvigorates the dispute between Miéville and his opponents. The issue boils down, as well, to the question of whether relations among States are always ‘power struggles’. Some will definitely say that Miéville buys into a nineteenth century ‘Hegelian realist’ vision of world society (Carty, 2008, 122–25) and more accurately represents the struggle for power, especially through economic resources, at present. The difficulty is the ideological nature of this debate. In so far as States are characterized as ‘liberal’ or ‘authoritarian’ as irreplaceable labels of distrust, there cannot be any international rule of law. Such a rule of law has to abstract all subjects as equal before the law regardless of individual characteristics. China is acutely aware of this which is why it resolutely excludes ideology from its theory of international law. The question remains whether this exclusion is credible. An aspect of that is the exact extent to which China is prepared to accept a role for adjudication. It seems it will to a large measure in the area of commercial and economic transactions.

B.  Contemporary Western Debates about Marxism and International Disputes Settlement

There is neither, in Western nor Chinese literature, any specific literature on Marxist approaches to judicial settlement of disputes under international law (Judicial Settlement of International Disputes). However, there is a very hot debate about whether international law has a part to play in resolving disputes among States. Miéville says that the relations are always completely coercive, constantly readjusting as the balance of forces changes. As Carty says in his review, Miéville

rejects the idea that law is an ideological cloak for class or socioeconomic interest, which could be overthrown by a socioeconomic revolution … Assuming that legal arguments are resolved only by force, the issue is not whether the state is legally obliged to observe international law. The state is simply what it is. Its decisions constitute its actions … Some states are able to actualize a particular interpretation of reality and make it stick in the world (2008, at 122–25; Miéville, 2004, 284–85).

So Miéville is absolutely not a denier of international law as a phenomenon. It is all pervasive in international relations, as what the strongest State or States can make stick.

Others contend that Marxist theory, particularly of Lenin and Pashukanis, says there is always some space for legal resolution of disputes. While these theorists give no concrete examples to support their case in contemporary international relations, conceptually they are conceding a necessary place for adjudication of international disputes. Chimni is a very strong exponent on this point. He devotes great space to perusing Lenin’s writings on the importance of the proletariat using the judicial process as part of their struggle. His conclusion is that Marxism is what Marxists say it is and Miéville has not properly studied their doctrinal work (Chimni, 2017, 517–24). Marx recognized the potential for change in existing society. Knox develops this further (2009, at 423). There are progressive forces within States which can exploit inconsistencies and force compromise. Indeed, Pashukanis regarded legal nihilism—that law played no role except as a cloak for force—as deeply uneconomical for the bourgeoisie. They had to leave some space for resistance.

So, it may be wise to broaden the topic of Marxism and adjudication to embrace the international rule of law. The rule of law supposes an impartial standard applying to legal subjects regardless of individual characteristics—which presumably indicates that a third-party adjudicator, Adam Smith’s ‘impartial spectator’ could, at least in theory, determine whether that rule of law has been broken. The logic of consistency and the ruling out of double standards would be central to such an enterprise.

Such a turn actually presents us with an entry into the most burning controversy at present—whether new ‘authoritarian’ powers are threatening the existing international rule of law, or, to use another expression ‘threatening the rules based international order’ (Escobar, 2019; Thayer and Friend, 2018). This is actually quite helpful to focus the topic because it opens up the debate to its highly political character. The so-called post-war (1945) international order—which is now supposedly threatened—is one which enshrines the values of liberal democracy, market economy, and also the territorial settlement or lack of it, which followed the Second World War particularly in East Asia. It would be a challenge for ‘authoritarian’ States to understand how such a set of rules should apply to them for the reason that the rules in question are not universal and distinguish States according to ideological characteristics, which must have at least some dimension of the subjective. A most extreme example of the Western political tendency to treat countries such as China as ‘ethnically’ other is given by United Kingdom Foreign Office Minister of State for East Asia, Mark Field (House of Commons Foreign Affairs Committee 2019). Field speaks of the values of the Anglo-Saxon English-speaking nations, with their shared love of the values of freedom, democracy, and the rule of law, so alien to a civilization such as China’s. Obviously this, if true, presents an insuperable obstacle to the rule of law since such cultural difference cannot be readily altered.

10  Chimni goes on to widen the concept of proletariat to cover all supposedly oppressed groups such as women, ethnic minorities, gay and lesbian groups, and the third world poor. Chimni stresses that class relations in any society also intersect in complex ways with gender, race, and caste relations. He does not call for abandonment of the concept of class, but it will have more traction if it integrates gender and race. This is developed further by Rose Parfitt, who wants to make a definite move beyond Pashukanis’s theory of the legal subject. To economic class struggle she adds the ideas of hybridity and resistance. Here law appears to be, in Foucault-like terms, part of an authoritarian, disciplinary order to be constantly resisted as being the root cause of ‘false’ constructions of the person, legal or otherwise. With a particular focus on indigenous peoples, Parfitt says new legal subjects have to resist constantly if they are to constitute their subject-hood in their own terms. So it is not necessarily desirable to reconstitute the collective self in the traditional ‘authoritarian, disciplinary’ state (Parfitt, 2019, 34–56; Craven and Parfitt, 2018). In fact, the moves by Chimni and Parfitt are ‘game changers’ among the so-called ‘Left’ among Western international lawyers (Marks, 2008). It is not so easy to integrate every theme of anti-authoritarianism into any model which could serve as a rules-based, or legal process–based, international order. At the route of this ‘turn’ is a postmodern and poststructuralist perspective which not merely downplays the idea of economic structures but actually denies any possibility of a totality of vision—the arch ‘crime’ of a tyrannical modernity. Parfitt stresses she has no desire to offer conclusions, when her entire aim is ‘to open up and not to close down’ debate.

11  Marks, Parfitt, Chimni, and Miéville are all close to David Kennedy and Martti Koskenniemi. Their stance suggests two contradictory points. Firstly, critical legal studies here function as a form of legal realism. This disputes the determinacy of legal rules as objective standards and says that judges have effectively absolute discretion to decide cases. They describe the judicial process as one of political argument and choice. They believe, however, that one may engage in this process—with presumably some prospect of success. There is a fatalism here. It is the human condition that there is no objective standard. However, one somehow has to make do and try. The implications for any possibility of the rule of law or the usefulness of adjudication are nihilistic.

12  Miéville does not allow this approach, which he admires, to affect his Marxism. Critical legal studies allow him to support the argument that there can be no rationality or objectivity in human relations, and so no emancipatory space which can be opened through law. There is no resolution of conflict, for instance, between aggressive and defensive use of force, between territorial sovereignty and self-determination of peoples, between foreign investment and host country economic interest (Carty, 2008, 123). However, Koskenniemi does not understand that the interplay of contradictory material forces is the root of legal indeterminacy. Miéville brilliantly castigates the postmodernist Koskenniemi for thinking ‘the problem is solved’ through ‘reflexivity’. This supposes one solves a problem merely by being aware of it. This is postmodernism leading into a cul-de-sac (Miéville, 2004, 58). Miéville agrees that the contradictions exposed by critical legal studies are beyond resolution, but the reasons rest not in linguistic, semantic, or cultural contradictions. They rest in contradictions between capitalism and its prey. The only practical solution is in fact coercion by the stronger party. The States themselves are all bourgeois and so international law does not even directly engage the proletariat, but is a struggle among bourgeois capitalists.

13  It is Marks who provides the ‘death-blow’ to a continuation of Marxist analysis in poststructuralist terms. The essential feature of Marxism is that it purports to give a picture of the totality, a complete vision of the world, history, and humanity. Firstly, she opposes Miéville’s Lenin-style vision of the world-wide struggle of imperialist States, dominated by their nationalist bourgeoisie, the Hardt-Negri vision that contemporary Empire is not an affair of States, still less of a particular State, ie the United States (‘US’), but an all-encompassing, heterogeneous, and partially de-territorialized order (Marks, 2008, 206; Hardt and Negri, 2000). In other words, no one has an overview and no one can escape entanglement in oppressive tendencies, although resistance against all, not just economic, forms of oppression must be continuous—now the standard view since, through Parfitt’s co-authorship with Craven, it finds its way into the 5th edition of Evans, International Law. The objection to the ‘overview’, what is sometimes described as ‘the God’s eye view’, is metaphysical. Marks explains how Miéville’s ‘total vision’ has to give way to Fredric Jameson’s realization that one cannot represent totality. No account can ever sufficiently specify all the social and historical forces that make things what they are. Miéville ends up being dogmatic, although failing in a liberal spirit, ‘not helped perhaps by his very frequent and at times slightly shouty use of italics’ (Marks, 2008, 209). All that Marks will allow—as a means of resistance, as with Chimni, and following the Marxist literary critic, Terry Eagleton—is the possibility to see how, through ideology critique, contradictory aspects of dominant discourse can be revealed, affording a way to emancipation (Marks, 2008, 208). Of course, even such a limited analysis could possibly afford a space for adjudication, provided one accepts that ‘grand’, and presumably indiscernible, structures do not overwhelm the micro-relations favoured by Marks and Chimni.

14  Whether this space for adjudication exists is, in my own view, not a metaphysical issue but an empirical one. The primary empirical question may appear ‘theoretical’, but it should only be subjected to an empirical test, the philosophical musings of postmodernists such as Marks notwithstanding. Knox appreciates this question very well by conceding that Miéville is most probably sound on what he calls the structural question. This affects the very possibility of adjudication. As Knox says, bilateral legal argument cannot deal with the logic of structures of totality (2009, at 431). Legal forms are always bilateral, but structures of capitalism are global (2009, at 432).

15  In my attempt at a Marxist vision of international law, I put the argument onto a level different from Marks and Chimni, not a critique of Marxist doctrine but a more empirical review of actual international economic structures and relations. The argument is that since the sixteenth century the capitalist, imperial project has gradually reduced the rest of the planet to a position of economic and also political subordination reaching its apex in the interwar years of the twentieth century (Carty, 2007, Ch 6). Since the 1970s there has been some measure of political independence of so-called third world countries but my own argument on Marxism and international law is that empirically conditions of reciprocity do not exist in such matters as foreign investment in third world countries and in terms of financial credit in other forms. This is evidenced by coercive economic practices against third world attempts to appropriate added value to commodity production and to systematic seizure of third world equity in the context of debt default by these countries (Carty, 2007, Ch 6).

16  More particularly in the area of pure finance it is clear that the conditions do not exist for impartial standards of adjudication. On the one side there is the US-dominated financial private sector, connected to US sovereign power over the dollar as the global currency. This rests primarily on US political and military supremacy, asserting itself markedly with Iran. The US is easily able to threaten its subordinate allies and set terms not only for granting finance, but also for storing it in banks and facilitating its free circulation for commercial transactions (Carty, 2017, Ch 4). In turn the West sees its national security as threatened by the capacity of China to use State power in a manner to direct strategic investments of Chinese private companies, especially in high technology. In other words, there is no agreement at all on principles of law separate from the individual character of the major participants, the West being the US and its allies on the one hand and China and those who will cooperate with her on the other hand. The contemporary newspaper reports on this are legion. At present the focus has been on the ‘Huawei Threat’ (Bond, 2019).

17  These empirical assertions merely set the agenda for massive empirical research about the quality of foreign investment arbitration. The review by José Alvarez of what he calls ‘The International Law of Property’ (especially of Bonnitcha, Poulsen, and Waibel) shows the difficulty of scientifically conclusive research results. He uses the language of balance and objectivity (2018, at 771). However, countries of radical persuasion, supposedly Marxist, such as Chile (1973), the Congo (1961), and Iran (1953) have been disposed of with Western military aggression. The controversy over Venezuela shows the extent of the field of inquiry which it would be necessary to consider in order to resolve the controversies satisfactorily.

18  This difficulty of analysis is partially a function of the idea that the international law of the post war world since 1945 rests upon the benign hegemony of ‘the West’, headed by the US and its North Atlantic Treaty Organization (NATO) allies. Therefore, any ‘challenge’ to this order will also have economic implications and so the economic aspects of any international agreement will be seen in their geo-political aspect. For instance, Iran is seen by the US, under President Trump, as benefiting from the lifting of sanctions to use its renewed economic resources to expand its military-political profile in the Middle East region. It is fundamental US geopolitical strategy not to allow the emergence of regional hegemons which may challenge its global hegemony, which it sees as necessary to the maintenance of the international rule of law. The Venezuela conflict also has an ideological dimension. The ‘authoritarian’ powers, particularly China, are so economically entangled with the present Venezuela government through loans that they are under pressure to purchase its oil. This can only be seen as a violation of the Monroe doctrine by the US (Doctrines (Monroe, Hallstein, Brezhnev, Stimson)).

19  China as a ‘Marxist’ State is seen as not part of a free global order at present in a number of respects. The BRI is seen by China as an attempt to offer infrastructure support to central Asia, an area where the World Bank and the Asian Development Bank have not been willing to venture. However, it is seen by the European Union and the US as schemes of entrapment in debt, which have to be strategically countered. The Chinese investment in Africa, primarily motivated by a search for raw materials, is also characterized as a ploy for hegemony. The supposed link between Chinese private sector technology companies and the government is also the cause of deep suspicion in the West.

20  All of this empirical material strongly suggests that there is an urgent need to engage with China’s concept of the rule of law and see whether, in the medium term, it will be possible to reach a compromise. The Rand Corporation study of this issue considers that China is not challenging the existing international order but merely wants to help to reshape it. China stands to lose if it is seen as a country which does not respect the rule of law. That is why it makes positive efforts, especially with the BRI, to institute dispute settlement mechanisms. The issue at the moment becomes the highly technical one of agreeing common standards to be applied in adjudication. Chimni devotes his main attention to try to develop new standards for foreign investment disputes, but even he remains at a very high level of generality (2018, at 1).

21  Our conclusion from these discussions is that the analysis of Miéville is most likely correct and it corresponds to President Trump’s ‘transaction’ approach to politics. In essence the ‘transaction’ approach to the rule of law as an idea is that it incorrectly misunderstands the possibility of general rules being applied impartially to a series of parties. Instead, in a version of subject-hood similar to Miéville’s interpretation of Pashukanis, as can be seen in China-US trade negotiations, transactions are concluded between relative equals which have a measure of success because of the sanction of retaliation which is built into them. The criticism can be made that such a perspective is ‘realist’, not Marxist. I would agree with this criticism but would trace it back to the link between Marxist materialism and the joining of the Hegelian idealist view of the State with the Machtstaatsdenken which developed in Germany at the time of Marx’s maturity (1840–90).

22  Miéville’s basic argument is that international law is merely a reflection of temporary compromise among bourgeois-dominated States. However, it is simplistic to treat nationalist third world States such as India and Marxist States such as China as bourgeois capitalist. There is an ongoing struggle where different value systems are in play. It is not clear that there is any theoretical aversion to adjudication in a Marxist perspective, but equally, it is not clear whether any standards have evolved or are evolving which could serve as impartial measures of judgment in financial or economic matters.

C.  Specific Chinese Perspectives

1.  China’s General Attitude towards and Practice in International Law after 1949

23  Despite the tension with the West as a result of the Korean War (1950–53), the People’s Republic of China successfully won back its global reputation to a considerable degree through its participation in the Geneva Conference (1954) and the Bandung Conference (1955). It provided China with a greater say on international law. Undoubtedly, the most significant contribution of China in this period is the formulation of the Five Principles of Peaceful Coexistence (‘Five Principles’), namely: mutual respect for each other’s territorial integrity and sovereignty; mutual non-aggression; mutual non-interference in each other’s internal affairs; equality and cooperation for mutual benefit; and peaceful coexistence. The Five Principles have henceforth constituted the pillar of China’s foreign policies regardless of leadership changes. The Five Principles are apparently but the reiteration of the basic principles of sovereign equality, non-intervention, prohibition of the threat or use of force, and international cooperation, but it is China that demonstrably insisted on the entirety of those individual principles for the first time in history (Lingliang, 2018, 43).

24  There is inevitably a hierarchy within the Five Principles, though. Refusing to go over the humiliation it had experienced for over one hundred years, China has deemed respect for sovereignty and territorial integrity to be the foundation of international law and international relations from the very beginning. Its firm adherence to the inviolability of sovereignty can be evidenced by the clear dichotomy within its attitude toward self-determination in international law. On the one hand, as one of the main advocates of decolonization after the First World War, China never hesitates to display its sharp-cut favour upon the claims for self-determination of peoples under colonial domination and foreign occupation. On the other hand, China is generally very reluctant to recognize the internal aspect of self-determination—either the controversial right of sub-State groups to secede from a sovereign State or linking self-determination with facilitating the right of peoples to democratic governance, particularly when foreign interference is involved—especially when such issues are directly relevant to its own interests, such as that of Tibet, Xinjiang, Hong Kong, and Taiwan. On the latter account, China always refrains from supporting post-decolonization secession movements occurring in other States as well, and it may publicly stand by foreign governments fighting against such movements if necessary. Such an attitude can be exemplified by the standpoints expressed by the Chinese government regarding Kosovo, Crimea, Scotland, and Catalonia.

25  It is noteworthy that peaceful coexistence, both the theme of the entirety of the Five Principles and the title of the fifth principle, embodies the meaning of dispute settlement in peaceful manners. But for China the scope of such matters may be limited to non-judicial approaches, such as bilateral or multilateral negotiations, considering its distrust in the fairness of third-party intervention in sovereign affairs. Beijing had not participated in the activities of the International Court of Justice (ICJ) until the 1980s. Although, apart from Judge Vikyuin Wellington Koo from the Republic of China, there have been three Chinese judges performing their duties in the ICJ, namely Judges Ni Zhengyu, Shi Jiuyong, and Xue Hanqin, China still insists that disputes concerning the integrity of sovereignty or territory shall not be arbitrarily included as part of the jurisdiction of third-party judicial or arbitral bodies. This standpoint can be characterized for example by: China’s reservations about the provisions on third-party dispute settlement mechanisms in all multilateral treaties including such provisions it has joined; its misgivings about the authority of the prosecutors of the International Criminal Court (ICC) (Wenqi, 2007, 142); its position on certain codification by the International Law Commission such as the limitation of immunity of State officials from foreign criminal jurisdiction; and its firm rejection of the recent arbitration award by the provisional South China Sea Tribunal, based on its clear reservation about certain clauses of the United Nations Convention on the Law of the Sea (‘UNCLOS’), concerning its disputes with the Philippines. Chinese scholars have particularly sharply criticized the recent inclination of third-party tribunals, established under Annex VII UNCLOS, to broaden their jurisdiction concerning sovereign issues in mixed maritime disputes (Xiaoyi, 2015, 29–32).

26  Last but not least, however, the fourth principle, equality and cooperation for mutual benefit, tells you that the seemingly sovereignty-centred application of international law is far from the whole story of China’s practice. According to the Chinese government, mutual benefit leads to ‘true and material equality’ between the States. The maintenance of a State’s own interest necessarily means appropriately taking into account the interest of others (Lingliang, 2018, 88). Even during the era of relative seclusion before 1978, China had generously contributed to infrastructure construction in Africa and other underdeveloped countries. Despite the growing tension in the South China Sea, China has continued to offer joint exploration with other parties pending the territorial disputes. In recent years, China even has the opportunity to describe itself as a main supporter of free trade, advocating new development cooperation projects like the Asian Infrastructure Investment Bank (AIIB) and the BRI, when the US appears to resurrect protectionism by advocating ‘America First’ in contrast.

27  Seeking mutual benefit in international relations also helps China adjust to the development of international third-party dispute settlement. The Chinese government has summarized its perspectives on international adjudication as follows (Lingliang, 2018, 376): (i) China generally agrees that dispute settlement through international arbitration or justice is a crucial part of international rule of law; (ii) arbitration and justice is generally not suitable for solving the dispute involving national dignity, territories, or vital sovereign interests; (iii) China welcomes that disputes on economy, trade, and culture, which have stronger legal characteristics and do not involve vital sovereign interests, are solved through arbitration or justice. Particularly, China has embraced all WTO dispute settlement mechanisms, including the Panel (Panel: Dispute Settlement of the World Trade Organization (WTO)), the Appellate Body (Appellate Body: Dispute Settlement of the World Trade Organization (WTO)), and the arbitration procedure under Article 21.3 WTO Dispute Settlement Understanding, since its accession to the organization in 2001. For most of the time, China would peacefully accept its losing certain individual cases on trade dispute, believing that such outcome can hardly be seen as a victory or loss. When the US was blocking appointments and reappointments of the Appellate Body’s members for over a year, China allied itself with the European Union and other members to safeguard the authoritative entity.

2.  Relationship between International Law, Marxism, and Liberalism

28  Practice is necessarily guided by theories. Now the question is by which theory China has been directing its interpretation and application of international law on earth. It is surprising that one may hardly find consensus among Chinese international lawyers and in their works in reality, although in the average person’s eyes there ‘should’ be a connection between international law and Marxism, the absolute official ideology in China.

29  According to classical Marxists, law arises from the interactions of human beings within social structures that contain economic class distinctions. Class divisions within societies create conflict and disorder, and hence law comes into existence to deal with the conflict. Overall, law is nothing more than a reflection of the desires of the dominant class. But does international law fall into this definition as well? Regarding themselves the orthodox successors of Karl Marx, international lawyers from the Soviet Union have responded positively to that question. Soviet textbooks defined international law as a law regulating the relations concerning conflicts and cooperation between States, which reflects the desires of the dominant classes of those States. It is seconded by certain Chinese international lawyers, and they further explain that such desires are merely the harmony of the desires of dominant classes from States with different polities and interests, instead of a single and common one (Lingliang, 2018, 25–26).

30  The above opinions of Soviet and Chinese international lawyers show their recognition of the existence of a ‘bourgeois international law’, at least for a period in history. Similar to Engels’s denunciation of the nature of the treaties of Vienna concluded in 1815 (1848) Chinese Marxist international lawyers consider the international law in the time of Marx reactionary rather than progressive, since even the most valuable Westphalian principles, such as the inviolability of sovereignty and non-intervention, thoroughly gave way to the bloody primitive accumulation of capital by Western powers and colonialism all over the third world (Yunzhen, 2014, 202). They further point out that violations of international law in recent decades have been closely linked with the new rounds of global capital expansion by developed powers as usual (Yunzhen, 2014, 202–11). The unspoken subtext is that the main obstacle to democratic international relations is still class oppression by developed capitalist States, which to a large extent shares the similar views of Soviet lawyers in the last century (Hildebrand, 1968, 162–66).

31  Notwithstanding the considerable influence of Soviet thinking upon China, Chinese scholars and diplomats have displayed noticeable divergence in international law from their Russian comrades since the 1950s. Taking the Five Principles as an instance, although both Soviet and some Chinese scholars regard Vladimir Lenin’s idea of coexistence as the main origin (Fuyong, 2016, 90) they have taken quite different views on the true implication of the phrase ‘peaceful coexistence’. Leading Soviet international lawyers, such as Grigory Ivanovich Tunkin, believed that the principles of non-aggression and peaceful coexistence could only apply between a socialist State and a capitalist State (1965, at 280). For relations within the Socialist world, Tunkin and other Soviet lawyers instead emphasized that the principle of ‘socialist internationalism’ must take precedence (1965, at 31–45; Kozhevnikov, 1985, 19). Such a doctrine was no doubt consistent with Moscow’s leadership in Eastern Europe under the Warsaw Pact, and became the theoretical basis of arbitrary intervention in the internal affairs of Moscow’s satellite States, noticeably in the name of the Brezhnev Doctrine. Chinese authorities and scholars, on the contrary, have insisted that the Five Principles are supposed to be applicable among all members of the international community, regardless of their political, economic, and social systems, from the very beginning.

32  Such a disagreement may have covered more intriguing things. In any event, it is very hard to deny that the class character of international law is not so obvious compared with that of municipal law, which inevitably brings about confusion. This is even admitted by the most radical Chinese Marxist international lawyers, who want to formulate a ‘universally applicable thought of international law’ to take the place of the contemporary international legal system dominated by developed capitalist States (Fuyong, 2016, 236–38). Wang Tieya, one of the most eminent Chinese international lawyers in the twentieth century and former Judge of the International Criminal Tribunal for the Former Yugoslavia (ICTY), explicitly stated that Marx’s definition of law did not apply to international law at all (1998, at8). It appears that the present mainstream Chinese academia of international law has inherited this idea more or less, corroborated by the lack of academic publications on the relationship between Marxism and international law in China. In reality, China’s practice of international law seems to follow so-called ‘Charter liberalism’, mentioned in the previous part. Such an idea applies liberal political doctrine to international relations with a municipal analogy simply equating sovereign States to citizens and an imaginary ‘world federation’ to a civil society (Zhao, 2016, 196). In many ways, ‘Charter liberalism’ and Marxism may co-constitute the foundation of the Chinese notion of international rule of law in modern times, although the applicability of liberalism in Chinese international law is bona fide contentious considering the official ideology.

3.  International Rule of Law as Part of the ‘Community of Shared Future for Mankind’

33  First it is necessary to clarify the concept of ‘international rule of law’. In Kofi Annan’s report in 2004, the former United Nations (‘UN’) Secretary-General (United Nations, Secretary-General) defined ‘rule of law’ as follows:

It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

34  Beyond question the first half of such a definition perfectly applies to municipal law, but is there the same case for international law? Theoretically, since States are accountable to laws, definitely including international law, international rule of law is supposed to be viable, presuming that the contemporary international law in its entirety can be publicly promulgated, equally enforced, and independently adjudicated, not to mention the comprehensive inclusion of human rights into international law after the Second World War. However, everything is more easily said than done. Since the time of John Austin, there have been legal philosophers doubting whether international law, apparently lacking absolute binding force as municipal law, can be truly categorized as a law. The general response by Chinese international lawyers to this question is that they do not deem the several differences between municipal and international law convincing enough to fundamentally deny the nature of international law. They adopt a seemingly consequentialist approach that the normativity of international law can be evidenced by the general observation of most international legal principles and rules by most States for most of the time (Guimei, 2015, 5–6; Henkin, 1979, 47).

35  The real problem is, subject to these standards, how international rule of law works in reality. Is international law promulgated publicly? Technically it might be the case for the four sources of international law provided by Article 38 (1) Statute of the ICJ in general. Nonetheless, treaties usually only apply to specific high contracting States; customary rules and general principles (General Principles of Law) have too much space for interpretation concerning their identification and scope of application, and judicial decisions and the teachings of publicists (Teachings of the Most Highly Qualified Publicists (Art. 38 (1) ICJ Statute)) are only subsidiary means for the determination of rules. Is international law equally enforced and independently adjudicated? Perhaps it is unfair to completely negate the independence of all international courts and tribunals, while there is a common sense that there is not any enforcement mechanism of international law in the world at all. Such a dilemma is rooted in the simple fact that international law arose from the harmony of the conflicting will of equal States at the outset.

36  It is such dissatisfaction that provides China with a non-negligible chance to advocate its own version of international rule of law, an important component of President Xi Jinping’s spectacular ambition of building a CSFM with the whole world. Theorists of the Communist Party of China (‘CPC’) state that the concept of CSFM is the inheritance and development of Marx’s idea of world history, which is a significant early stage of the so-called ‘community of free individuals’ (Ge, 2018). According to Xi and Chinese diplomats, international rule of law plays the role of laying the solid foundation of CSFM on the global level (Xu, 2018, 3; Xi, 2017) The factors and objectives of CSFM include enduring peace, universal security, common prosperity, openness and inclusiveness, and undefiled environment, all considered as having rich meanings in international law (Hong, 2018, 6–8).

37  Xu Hong, Director-General of Department of Treaty and Law, Ministry of Foreign Affairs of China, declares that a big trend after the Cold War is the transformation of international law from ‘the law of coexistence’ to ‘the law of cooperation’ (2018, at 6). To formalize the trend and to achieve the above five objectives of CSFM, members of the international community should ensure that international legal rules (i) are made in a democratic way by all States, (ii) are observed in good faith (Good Faith (Bona fide)) by all States, and (iii) are enforced impartially by domestic and international courts and tribunals (Hong, 2018, 11). Moreover, it is also noticeable that the CSFM perspective on international law also slightly touches human rights by emphasizing the ‘mankind-centred’ aspect of international law (Hong, 2018, 11; Jinping, 2017). Quite clearly, all these elements highly correspond to the first half of Annan’s definition of rule of law. Resorting to the systematic construction of the discourse on CSFM, China describes itself as a firm and ‘true’ advocate and constructor of international rule of law in the twenty-first century (Hong, 2018, 3, 5, and13).

38  In the internal aspect, the contemporary Chinese official notion of international rule of law constitutes a significant element of ‘the Thought on Socialism with Chinese Characteristics for a New Era’ put forward at the 19th CPC National Congress. On the other hand, as an integral part of China’s current foreign policy, it reiterates the spirit of the Five Principles. But it is undeniable that, despite its resemblance to Annan’s definition, the Chinese version of international rule of law has never been elaborated by the Chinese government in a more detailed way on public occasions. The most visible flaw of such a notion may concern the second half of Annan’s definition of rule of law, where the ‘complete body’ of rule of law requires specific measures or procedures to ensure the effectiveness of the whole mechanism. In Chinese legal traditions, on the contrary, ‘results overweighing procedures’ has played a considerable role. It is reflected in the Chinese official notion of international rule of law that it mainly focuses on the objective, namely all States sharing the results of human development in a fair way (Hong, 2018, 11) notwithstanding the absence of proposals for due procedures—except the role of dispute settlement in international trade and investment. As a result, it may not be easy for such a notion to be cleared of the suspicion of being a political apology, which is said to inherit Marxism domestically and to inexplicably vindicate a liberal order among the States under the United Nations Charter internationally.

4.  Is There a Non-Ideological Paradigm of International Rule of Law?

39  Still, it may not be correct to assert that the contemporary Chinese official notion of international rule of law is ideological in essence. Marxism with Chinese characteristics, regardless of how it is interpreted, is more like an official totem which is used to bring the people, especially the members of the ruling party, together to realize the great renaissance of the Chinese nation under the CPC’s leadership. Externally, on the other hand, China has always avoided creating opposition over ideologies among States in international fora, in particular since the 1970s when it began to implement the policy of reform and opening up. It may also be inappropriate to blame China for neglecting the importance of due procedures in the building of international rule of law. No doubt it is partially linked with China’s own legal tradition, while the controversy over the existing mechanisms of the enforcement or implementation of international law, as well as the open refusal to resolution provided by third-party dispute settlement institution, is extremely common for the international community. The predicament is rooted in the peculiarity of State-centred law-making in the international sphere, which creates and will continue to create distrust between States, especially powers, due to their conflicting interests or different expectations of the international order.

40  The contemporary Chinese official notion of international rule of law only demonstrates what the ideal international rule of law looks like and what objectives it aims to achieve. Other Chinese scholars have seriously attempted to get rid of the coat of ideology and further explain in what way international rule of law can be run, only to find that currently the dominant and perhaps the most reliable form is still that of law-making by States rather than by ‘all people’ (Zhipeng, 2004, 363–64). The most remarkable result of such attempts is actually the rediscovery of a number of obstacles to international rule of law, such as regional differences, ‘West-centralism’ in international law, unfair and unequal international economic and political order, hegemonism upheld by certain powers, the failure to prevent powers from monopolizing the UN Security Council (United Nations, Security Council), double standard in global issues handling, and so on (Zhipeng, 2004, 366–71). Western international lawyers and governments will undoubtedly be quite reluctant to accept the above conclusion, which brings it all right back to where they started. It has apparently been a rhetorical habit of the West to blame China for not integrating itself into the ‘rules-based global order’ (Leslie, 2016), only to be retorted by China as a unilaterally arbitrary ‘distortion’ of international law (Hong, 2018, 13). Such a dilemma may partly be the result of ideological opposition, but one also cannot ignore the influence of different views of history between the West and China.

41  Therefore, the question presented here is only half correct. In accordance with China’s consistent standpoint about peaceful coexistence and cooperation, there is supposed to be a positive answer to the question, at least to a certain degree in certain areas (Zhipeng, 2004, 337–71). But considering the State-centred nature of contemporary international law, one should not be overoptimistic about the effectiveness of international rule of law, whether it is ideological or not. It can be dangerous, even destructive, to anxiously advocate international rule of law in ‘immature’ fields of global affairs (Zhipeng, 2004, 372) at least before States can find their real common ground on what the rules of international law are and how to identify and implement them in a universally feasible manner. For China, the most ‘mature’ field where it strives to carry forward international rule of law may be regional commercial arbitration, especially the relevant cooperation under the BRI, for now.

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