Home / Articles / Dragon and (Legal) Eagle: International Law and American Interests in U.S.-China Relations beyond the Hu-Obama Summit
Like U.S. President Barack Obama’s trip to Beijing a little over a year earlier, Chinese President Hu Jintao’s state visit to Washington in January 2011 did not produce breakthroughs. There were, to be sure, agreements and pledges on issues ranging from cooperation on clean energy to possible terms for new engagement on North Korea to incremental or narrow progress on trade-related issues. Much of the summit’s significance lay not in concrete substance but in broad symbolism: Hu enjoyed the U.S.’s recognition of his and China’s status that came with a full state visit free of the glitches and embarrassments that marred his formally lower-status trip to Washington in 2006. Dogged by perceptions that he had been too accommodating or weak at the 2009 Beijing summit, Obama struck a tougher stance through several cabinet secretary statements in the run-up to the summit and the president’s pointed comments to Hu about possible redeployment of U.S. forces to address the North Korean threat. And both sides sought to dial back the tensions that had mounted sharply during the year and more preceding the 2011 summit—a “lite” version of hitting the reset button in bilateral relations.
In this context, a modest turn—or return—to international law is a promising strategy for the United States. The summit offered a few hints and possible starting points for this approach. The Joint Statement referred, at least obliquely, to treaties on international human rights, arms control and anti-proliferation, and international trade and investment. At the two presidents’ joint press conference, Obama explained that he had emphasized to Hu the U.S.’s “fundamental interest” in maintaining “respect for international law” in East Asian regional security affairs. More broadly, Obama declared that the United States wanted to “make sure” that China’s rise “reinforces international norms and international rules”—terms often synonymous (or at least closely symbiotic) with international law.
Much more is possible, and some of it was immanent in Hu’s state visit. International legal questions run through the key and troublesome areas in U.S.-China relations, including those that variously saw limited commitments, marginal progress or near-total inattention at the 2011 summit. On many specific issues, international law is more closely aligned with Washington’s interests and aims than with Beijing’s. In the more diffuse arenas of political alignment and soft power, the United States. is better positioned than China—and increasingly so—to claim that it supports legality (and, in turn, stability and, sometimes, justice) in international affairs.
On trade-related issues, the United States has arguments, ranging from colorable to convincing, that the Chinese policies and practices that have been the focus of U.S. complaints (including at the summit) are at odds with international legal rules or at least in tension with the norms that underpin them. Although the Obama administration (like the Bush administration before it) has repeatedly foregone labeling China a “currency manipulator” under U.S. law and although currency undervaluation is a difficult basis for a case asserting that China is violating World Trade Organization obligations, international legal rules do proscribe predatory exchange rate practices and the systematic maintenance of a too-low exchange rate is inconsistent with the liberal, free-and-fair-trade principles that are core to the WTO-centered international regime of which the United States and China are especially important members.
Although China’s intellectual property laws largely meet international standards and although China has taken steps—and at the summit renewed pledges—to improve protection of foreign-owned intellectual property rights, the United States can invoke international legal norms to buttress its economic complaints. To be sure, the checkered patterns of enforcement on which many U.S. complaints focus are not easily actionable within the WTO’s formal legal system. Nonetheless, the widespread piracy and insecure protection for intellectual property rights that U.S. criticisms recount fall short of the goals and expectations of robust and consistent global protection contemplated by the WTO’s Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS). Although China is not yet a party to the WTO’s Agreement on Government Procurement, Beijing has indicated its desire to join. Aspects of its “indigenous innovation” policy—which required government purchasers to favor Chinese-created or at least Chinese-owned technology (and threatened to put great pressure on United States and other foreign intellectual property owners to transfer rights to Chinese firms)—are incompatible with the GPA’s requirements. Notably, China appeared to soften the policy months before the summit and, at the summit, Hu promised to delink the policy from government procurement.
Although the record has been mixed (with the United States losing on some issues and conceding on others), the United States has been relatively successful in bringing, and defending, cases against China in the WTO’s formal dispute resolution processes. The United States has won on such matters as China’s restrictions on foreign-invested firms’ access to media distribution sectors, China’s refusal to grant copyright protection to censored foreign works, China’s resale of seized trademark-violating goods, China’s export subsidies (in the form of tax rebates) to semiconductor manufacturers, and U.S. restrictions on surging exports of Chinese tires and subsidized exports of Chinese tires and other goods. On other issues, China has accepted U.S. positions or reached a compromise in the shadow of pending WTO claims. Before the summit, the United States launched new claims alleging that China violates WTO legal obligations through discrimination against U.S. financial services providers (specifically, electronic payment services), restrictions on Chinese imports of U.S. steel (specifically, antidumping and anti-subsidy measures), restrictions on Chinese exports of certain raw materials, and provision of subsidies to Chinese manufacturers of green energy equipment. Lurking in the background are bigger deal—if legally more problematic—prospective claims that cheap credit from Chinese state-linked banks are WTO-violating subsidies to Chinese firms and that Chinese censorship of Google and other service providers violates Beijing’s WTO commitments on services.
Whatever their merits as matters of fairness and policy, principal Chinese complaints about U.S. economic policies and practices have not gained and, in current form, cannot gain much traction as international legal claims. Examples include: ostensibly national security-based restrictions on Chinese investments in certain U.S. firms and sectors; restrictions on high tech or sensitive technology U.S. exports to China; and U.S. fiscal and monetary measures that are at odds with Beijing’s view of what Washington needs to do to get the U.S.’s financial house in order.
On security-related issues, the U.S.’s positions generally draw more support from international legal rules and principles than China’s do. Claims of territorial sovereignty are one key set of issues. Whatever the merits of the underlying claims, China’s stances have been less accepting of the status quo and, thus, more immediately in tension with the international legal obligation (in principle embraced by the PRC) to resolve such disputes peacefully. This pattern sharpened in the months preceding the Washington summit as Beijing: pointedly (re)asserted that disputed areas in the South China Sea were part of China’s “core interests” (and thus in principle subject to the same kind of zealous protection from foreign encroachment as other Chinese sovereign territory); escalated a confrontation with Japan over the seizure of a Chinese fishing boat near the contested Diaoyu / Senkaku Islands; shifted from a relatively agnostic to a more pro-Pakistan position and from a relatively cautious to a more assertively pro-China position on regions variously claimed or long-governed by India. The warming in cross-strait relations that has followed Ma Ying-jeou’s ascension to the presidency in Taiwan and the earlier shift of emphasis from reunification to anti-secession in Hu Jintao’s Taiwan policy have lowered the temperature on the Chinese territorial sovereignty issue that has long been most threatening to regional stability and U.S.-China relations. (The United States explicitly “applauded” this trend in the January 2011 summit Joint Statement.) As the Joint Statement also predictably reconfirmed, however, there has been no change in Beijing’s fundamental position that Taiwan is part of China’s sovereign territory, that the PRC’s diplomatic partners must accept some version of a “one China” policy, and that China asserts the right to reunify Taiwan by force if need be.
On many of the territory-related issues, the legal merits are enduringly and extensively contested and in some cases are relatively close. This limits the U.S.’s (and others’) ability to invoke international law to push back against Chinese positions. On some of the relevant questions, however, the Chinese view is more clearly outside the international legal mainstream. Important instances of this include: claims to the South China Sea that are based on “historic” seas, a convex U-shaped line, or sovereignty (with attendant rights to adjacent waters) over tiny land masses that are uninhabitable or semi-submerged; claims to a legal right to exclude or restrict U.S. naval ships operating within China’s 200 nautical mile Exclusive Economic Zone (an area in which coastal state rights are generally seen as limited to regulating economic and related activities), and assertions that the three U.S.-PRC Joint Communiqués and World War II-era Cairo and Potsdam Declarations create binding legal obligations from the United States to China concerning the status of Taiwan.
The PRC’s recent behavior has not included the clear and significant violations of international law on the use of force or weapons proliferation that would give powerful legal force to U.S. criticisms. Still, China’s current positions on some related issues clash with international legal norms and aspirations in ways that the United States’s do not. The prospect of regime-toppling U.S. action in North Korea has receded greatly from its highpoint during the George W. Bush administration. U.S. intervention in Iran is seemingly a remote possibility. The U.S. interventions in Iraq and Afghanistan are “old news” (in both cases) or are winding down (in the former case) or have clear international legal bases (in the latter case). In this context, China now is responsible for relatively much of the relevant legally problematic behavior. It continues to back North Korea, even in the face of Pyongyang’s proliferation-threatening nuclear weapons program and the legally indefensible attacks on the South Korean naval ship Cheonan and the South Korean village of Yeonpyeong. China has impeded multilateral efforts to use the principal international legal mechanism—the UN Charter-based authority of the Security Council—to impose sanctions targeting Iran’s nuclear program (as well as North Korea’s). Notably, the summit’s Joint Statement recognized and memorialized China’s gradual movement toward the U.S.’s (and others’) positions on the Iran and North Korea questions. And the statement did so in passages adjacent to its reiteration of the U.S.’s and China’s joint support for anti-proliferation international legal instruments, including the Comprehensive Nuclear Test Ban Treaty and a Fissile Material Cutoff Treaty (and, concerning Iran, the Non-Proliferation Treaty).
Finally, on human rights, key international legal norms track U.S. agendas and push China into a defensive posture. The U.S. critique of China’s human rights record long has routinely invoked the civil and political liberties that are enshrined in the customary international law of human rights and the principal multilateral treaty, the International Covenant on Civil and Political Rights (ICCPR). In the run-up to the Washington summit, the Obama administration shifted from its previously subdued tone, which had drawn criticism as soft and ineffective and which seemed especially hard to sustain at a summit that would bring together the preceding year’s Nobel Peace Prize laureate and the imprisoner of the most recent winner. The renewed U.S. emphasis on the issue led to the summit Joint Statement’s relatively prominent mention of human rights and specific reference to “international [human rights] instruments” (implicitly, the ICCPR and other major UN treaties). The summit also affirmed commitments to resume the dormant bilateral human rights dialog (suggestively, in close proximity to commitments to resume cooperation on rule of law issues). At the joint press conference, Obama reiterated the “core views [of] Americans” that freedoms of speech, religion and assembly are universal.
Faced with this, the PRC’s language in the Joint Statement and Hu’s public statements in Washington did little more than restate China’s familiar and limited rejoinders. Having long publicly accepted the universality of human rights, having signed (but not ratified) the ICCPR and having joined many of the other UN human rights treaties, China has been reduced to asserting its rights to be free from external interference, to choose its own path in “implementing” human rights and to take into account its particular national circumstances and cultural traditions.
More assertive elements in the Chinese repertoire—detailing areas in which China claims the United States falls short of the standards of international human rights norms and law—generally have not matched the impact of the critique of China’s record concurrently advanced by the United States (including the annual State Department reports), governments of other liberal-democratic states and numerous human rights NGOs. Although such Chinese efforts sometimes have landed blows (for example, in the wake of the Abu Ghraib scandal and the Justice Department’s “torture memos”), their force has been undercut by Chinese support for human rights-violating regimes (for example, al-Bashir’s Sudan). And such tit-for-tat tactics were, understandably, abandoned at a summit where China sought to accentuate the positive in the recently troubled U.S.-China relationship.
International Law and Foreign Policy
For the United States to have international law largely on its side in many areas of disagreement with China may seem to be an exceedingly trifling benefit. As the foregoing survey reflects, there are relatively few areas in which the United States is indisputably in the right, and China clearly in the wrong, as a matter of international law. Even where that is the case, prevailing on an international legal point will not lead reliably or simply to substantive victories for the United States in many contexts (with the WTO dispute resolution process being a significant, if incomplete, exception). And the approach is not without its risks and costs, given that China also will claim—sometimes effectively and sometimes with justification—that international law is on its side.
The benefits are more diffuse and indirect, but that does not make them illusory or unimportant in the relatively informal politics of international relations. Being able to claim credibly the mantle of legality can make a difference amid what surely will be mutual charges of irresponsible, opportunistic or narrowly self-interested behavior and protracted competition for trust and support from other states in East Asia and beyond. Persuasive assertions of international legal compliance or violation can make it harder for opponents and onlookers to dismiss disputes as merely conflicts of interests, unsusceptible to principled resolution and of no more than prudential concern to third states. The cloak of international legality can help insulate against charges that purportedly principled positions only reflect quests for power or pursuit of national policy preferences.
Moreover, a limited turn toward international law fits well with proclivities and strengths of the Obama administration’s China policy and foreign policy. After all, the administration’s efforts in these areas are led by a lawyer-president and a lawyer-secretary of state (whose early forays into international politics included the U.N. conference on human rights for women held near Beijing). Its foundational foreign policy aims included redressing the reputation of disdain for international law that the United States had acquired during the preceding administration. Many of the international legal arguments targeting China that the Obama administration has deployed, or that are available to it, align well with arguments from U.S. friends in the region that are troubled or threatened by China’s positions and actions. Giving international law a higher profile also complements U.S. efforts—rooted in the previous administration and before—to press China to behave as a responsible stakeholder in the international system, as a state that lives up to its much-touted pledges to abide by international legal obligations (on matters ranging from human rights to treaty observance to peaceful dispute resolution), and as a rising power that supports the basic international status quo and, in Obama’s words at the summit, “reinforces international norms and international rules.”