International Law and China in the Early 21st Century

Author: Zeng Lingliang, Editor-in-Chief
Publisher:
Publishing Date: 2005-03-01
Features: This work was organized and completed by the author, along with some full-time and part-time researchers from the International Law Research Institute of Wuhan University, as the final outcome of the major project "Trends of International Law in the 21st Century and China's Theoretical and Policy Responses" funded by the Ministry of Education's Key Research Bases of Humanities and Social Sciences. Since its approval, as a phased research achievement, the project leader and key researchers have made more than 30 keynote speeches or submitted papers on the subject of this project at domestic and international seminars, published more than 30 papers, and participated in nearly 10 legislative seminars at the provincial and ministerial level or submitted advisory reports. Two related monographs have been published. The book reflects some representative phased research achievements. After the project was approved, China completed the 14-year-long "Re-entry into the GATT" and "Accession to the WTO" negotiations in November 2001 and finally became a formal member of the WTO. At the same time, the WTO officially launched its first round of multilateral trade negotiations—the Doha Development Agenda; in 2003, the United States and the United Kingdom launched the shockingly world-changing war on Iraq. These three major international events at the beginning of the new century, whether from the perspective of the development of international law or from China's practical situation, have had significant and far-reaching impacts and implications. Therefore, the project has made appropriate adjustments to some content, focusing the research emphasis and difficulties on the many cutting-edge issues of international law and China's corresponding responses related to the Iraq War, the Doha Round, and China's accession to the WTO at the beginning of the 21st century. For the same reason, as the final outcome, the title of this book is The International Law and China of the 21st Century. The book is divided into four parts, with a total of 24 chapters.
Part I: Trends of International Law at the Beginning of the New Century: Macro-Theories
This part consists of two chapters.
Chapter 1 examines the 21st-century international law and international order from a macro-perspective of public international law, through a historical and realistic review of modern international law and the international order, offering a forward-looking outlook on the construction of international law and the international order in the 21st century. On this basis, it proposes and discusses the following important viewpoints: establishing a just and reasonable new international order in the 21st century requires, first, a substantial enhancement of the normative role of international law and the establishment of its primary position in international politics; second, ensuring that the common interests of humanity take priority in the value orientation of international law.
Chapter 2 examines the macro-perspective of international economic law, reviewing the major achievements of international commercial law in the 20th century and focusing on a scientific argument for the development trends of international commercial law in the 21st century. It concludes that the "globalization" and "non-domestic law" characteristics of international commercial law will become increasingly prominent, the legislative methods of international commercial law will primarily rely on empirical methods with a supplementary role for reasoning methods, the role of soft law in international commercial law will be further highlighted, its coordination and balance will be strengthened, its scope will be further expanded, and the litigation system of international commercial law may achieve breakthrough developments.
Part II: The Iraq War and International Law: Dilemmas and Challenges
Although the battlefield battles of the Iraq War have long ended, the situation in Iraq remains highly unstable, with frequent terrorist incidents such as armed attacks, suicide bombings, hostage-taking, and even hostage beheadings. The international debate over the legality of this war has not ceased, with its intensity seemingly no less than the war itself. This part examines and refutes the background, basis, and arguments of various legal justifications emerging from this discussion, such as the "continuation of collective self-defense theory" or "series of resolution authorization theory," the "premature self-defense theory" or "preemptive self-defense theory," and the "first strike theory." Based on the United Nations Charter, it argues from both the substantive and procedural aspects of the collective security system that the war was illegal under current international law. It analyzes the misleading and harmful essence of compromising theories such as the "theory of legal degree," the "theory of legality despite illegality," and the "theory of beneficial flexibility." The basic viewpoint of this part is that the dilemmas the Iraq War has brought to international law have been accompanying its formation and development from the beginning, and have become more prominent, sharper, and more urgent through this war. The Iraq War's impact on international law is like two sides of a coin: on one hand, the war has severely tested and significantly setbacks the value and effectiveness of international law; on the other hand, the fundamental values, vitality, and progressiveness of international law should not be doubted due to this war. The immediate task is to seriously reflect on and learn from the lessons of this war, uphold multilateralism, discard unilateralism, and enhance and improve the temporal adaptability, practical operability, representativeness of decision-making and execution bodies, and the effectiveness of collective action in the collective security system.
Part III: The Doha Development Agenda and International Law: Quagmire and Solutions
This part first explores the status of WTO law in the international legal order. On one hand, through comparative research on social foundations, legal attributes, and the basis of effectiveness, it argues as a whole that WTO law shares commonalities with general international law. On the other hand, through a specific examination of WTO practices, it reveals that WTO law has certain particularities in terms of legal formulation and the basis of effectiveness, and it has brought new changes or challenges to international organization law, treaty law, international responsibility law, and international dispute settlement law. Then, it focuses on analyzing the shadow cast on the WTO Doha Round by the failure of the Cancun Conference, and its uncertain future due to the WTO members, especially developed member countries, shifting their focus to regional trade agreements and other variables. Therefore, the author argues that to extricate the Doha Round from the quagmire, it is necessary to learn from the lessons of the Cancun Conference, adhere to the principle of "win-win" and "seeking common ground while reserving differences," and maintain a global liberalization path with multilateralism as the mainstay and regionalism as a supplement, firmly abandoning unilateralism, and continuing multilateral negotiations and seeking consensus around the core issue of the Doha Round—development. The ultimate test of whether the Doha Development Agenda is successful does not lie in whether the Doha Round concludes on schedule or how many agreements it signs in terms of quantity, or whether it expands the scope of trade-related areas. The key lies in the extent to which the Doha Round addresses the issue of development, whether the newly reached multilateral trade agreements will promote the vertical and horizontal development of global trade liberalization, and whether the operation of the WTO, as the institutional guarantee of global trade liberalization, will become more democratic, transparent, and efficient. Subsequently, this part elaborates in detail the significance of the Doha Round for the future development of international development law, analyzes the problems encountered by the TRIMs Agreement, TRIPS Agreement, and DSU negotiations in the Doha Round, and conducts in-depth research on controversial hot issues such as trade and the environment and trade and labor rights within the WTO framework. Moreover, to address the problems mentioned above faced by the WTO and the Doha Round, the author proposes corresponding recommendations and strategies for China to respond to these issues.
Part IV: The Development of International Law and China: Impacts and Countermeasures
This part focuses on several major issues in the development of international law that are directly related to China's core interests. First, it analyzes some international law issues involved in the great cause of national reunification, such as the participation of Hong Kong in the activities of international organizations, the legal status of Macao under international law, and the issue of international law and the recognition of Taiwan. Then, it specifically elaborates on the recent development trends of the responsibility system in international law and proposes several suggestions for China to adapt to this trend. Next, it focuses on specific discussions of WTO exception clauses, safeguard measures, the Government Procurement Agreement, regional agreements, and legal service issues in dispute settlement, targeting the legal and policy impacts on China in these areas and proposing corresponding countermeasures. Finally, with a focus on the development trends of international trade in services in the 21st century and China's status and role in the WTO, it specifically proposes constructive arguments for the reform of China's legal education, particularly the idea of establishing WTO law and business master's degrees and calling for institutional innovation in WTO legal talent.
The researchers who participated in the research of this project and contributed to this book are, in order of chapter sequence:
Professor Zeng Lingliang (International Law Research Institute of Wuhan University): Preface, , III, VI, VII, IX, XX, XXI, XXII, XXIII
Dr. Huang Zhixiong (International Law Research Institute of Wuhan University): , Chapters 7
Professor Yin Sheng (Law School of Zhongnan University of Economics and Law): Chapter 2
Lecturer Xu Junhua (Research Institute of Political Science and Law of Hubei Provincial Academy of Social Sciences): Chapter 5
Master Qian Wei (Law School of Wuhan University): Chapter 9
Dr. Feng Jiehan (International Law Research Institute of Wuhan University): Chapter 10
Professor Yu Minyou (International Law Research Institute of Wuhan University): Chapter 11
Doctoral Student Chen Xifeng (Law School of Wuhan University): Chapter 11
Doctoral Student Lan Hua (Law School of Wuhan University): Chapter 12
Dr. Li Xueping (WTO College of Wuhan University): Chapter 13
Professor Rao Geping (Institute of International Law of Peking University): Chapters 14, 15
Dr. Fan Hongyun (Shenzhen Municipal Party School): Chapter 16
Dr. Li Shouping (Law School of Beijing Institute of Technology): Chapter 17
Dr. Chen Weidong (School of Law of University of International Business and Economics): Chapter 18
Dr. Yao Yanxia (School of Law of Beijing Foreign Studies University): Chapter 19
Since the research content of this book belongs to the cutting-edge theoretical and practical issues of China and the development of international law in the 21st century, it is extensive and profound. Many issues are highly controversial and remain unresolved, even at the preliminary stage of exploration. Therefore, it is inevitable that there are views or errors in the book that require further discussion. Moreover, as the authors have different writing styles, despite the editor-in-chief's efforts to coordinate, the overall style of the book may lack consistency. We sincerely welcome criticism and guidance from scholars and practitioners in theory and practice.