Beyond History and Sovereignty

375 Pages·2013·1.99 MB·English

Beyond History and Sovereignty
China and the Future of International Law

Wim Muller

Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute
Florence, September 2013 (defence)

European University Institute
Department of Law
Beyond History and Sovereignty
China and the Future of International Law

Wim Muller

Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute
Examining Board
Professor Martin Scheinin, EUI Supervisor
Professor (emeritus) Francesco Francioni, EUI
Professor Wenqi Zhu, Renmin University, China
Dr. Jonas Grimheden, EU Fundamental Rights Agency, Vienna

© Wim Muller, 2013
No part of this thesis may be copied, reproduced or transmitted without prior
permission of the author

European University Institute
Department of Law
Beyond History and Sovereignty
China and the Future of International Law
Wim Muller
Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute
Examining Board
Professor Martin Scheinin, EUI Supervisor
Professor (emeritus) Francesco Francioni, EUI
Professor Wenqi Zhu, Renmin University, China
Dr. Jonas Grimheden, EU Fundamental Rights Agency, Vienna
© Wim Muller, 2013
i No part of this thesis may be copied, reproduced or transmitted without prior
permission of the author
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Summary
Since the beginning of its ‘reform and opening up’ policy in 1978, the People’s Republic of
China has grown into a major power in international relations. This thesis explores the
implications of this development for public international law, which itself has grown and
undergone structural changes since the end of the Second World War. The number of actors
has grown, the place of the individual has been enhanced and efforts have been made
towards the development of normative hierarchy and in the views of some even
constitutionalisation. Yet the PRC has retained an outlook firmly rooted in the concept of
state sovereignty, emphasising non-interference and equality of states. This approach stems
from the history of China’s encounter with the international legal order in the nineteenth
century, when its own sinocentric world order fell victim to its violent encounter with
western international law. The current international legal order still retains traces of the
legacy of imperialism, although international law has also served as a vehicle for the
realisation of the humanitarian ideals of its practitioners and participants. In China’s
sovereigntist approach to international law, the rhetoric and the interests of the developing
world play a major role, as China tries to combine the sometimes contradictory roles of a
‘responsible great power’ on the one hand, and leading developing nation on the other. This
thesis analyses its practice in international human rights law, the law of armed conflict,
international criminal law, and various areas related to international peace and security, at
normative levels from general political and diplomatic discourse to the acceptance and
interpretation of positive law. This analysis demonstrates that China brings a welcome
alternative voice to a still western-centric international legal system. Its defensive
adherence to sovereignty, however, creates the risk of normative erosion or dilution in
various areas in which it claims to have accepted existing international norms. China is not
yet a creator of new norms, but has grown very adept at modifying and reshaping existing
norms, both legal and societal, to bring them more in line with its preferences. This
presents both challenges and opportunities.
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To my parents
袁以慧
Franciscus Clemens Antonius Muller
In memory of
Christopher Kevin Boyle
(1943 – 2010)
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