Many international lawyers all over the world will doubtless have experienced a surge of surrealism over the past weeks, witnessing dramatic contrasts emerging between American and Chinese foreign policies seeking to redefine the global order – with the latter veering towards deepening strategic international cooperation around the world, and the former emphatic about the insularity of its ‘America First’ policy (read: ‘walls’ could be literaland figurative). In January 2017, Chinese President Xi Jinping gave a rousing defense of economic globalization at Davos, pointing to the inevitability and irreversibility of the global economy, where for China, “the right thing to do is to seize every opportunity, jointly meet challenges and chart the right course for economic globalization.” A month later, American President Donald Trump delivered his Address to the US Congress stridently pronouncing the country’s shift towards a “direct, robust, and meaningful engagement with the world…American leadership that is based on vital security interests…[where] partners must meet their financial obligations…[and where] America is willing to find new friends, and to forge new partnerships, where shared interests align.” The historic first meeting this week between US Secretary of State Rex Tillerson and Chinese President Xi Jinping was the first high-level commitment towards greater joint cooperation between the United States and China, possibly suggestive of softening stances between the established hegemon and the rising world power in containing shared threats, such as North Korea’s demonstrable nuclear ambitions.
The United States’ emerging abandonment of the same postwar multilateral architecture it largely created – in favor of much thicker versions of protectionism, bilateralism, and unilateralism – is ironically taking place at a time when China is gaining confidence in rising to defend the global order and the enduring value of international institutions. It is nothing less than a sharp reversal of the “New Great Game” dynamics I observed four years ago, characterizing the United States as the “unipolar hegemon that incorporates international law justification as part of its operational code in international relations”, and China as the “rising power whose operational code in international relations remains facially deeply sovereigntist but latently appears to be shifting towards some instrumental internationalism – quite consistent with the ideological hybridity bred by ‘socialist modernization’ or what Ronald Coase [described as] ‘Chinese capitalism’.” (at p. 370).
The Trump administration does not resonate the United States’ historic use of international law justifications (or standard international legal cover) when furthering American strategic interests in the international system. In the past few weeks, for example, the United States released its 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program which sets four broad priorities – “(1) defending US national sovereignty over trade policy; (2) strictly enforcing US trade laws; (3) using all possible sources of leverage to encourage other countries to open their markets to US exports of goods and services…and (4) negotiate new and better trade deals with countries in key markets around the world.” (Agenda, at p. 2.) The Trump Administration has publicly announced it would ignore certain rulings of the World Trade Organization that it deemed to affect US sovereignty, withdrew from the US-led Trans-Pacific Partnership, and demands swift renegotiation of the North American Free Trade Agreement (NAFTA). Jack Goldsmith at Harvard Law School has called out the “Trump Onslaught on International Law and Institutions”, capsulized by “a belief that international law does not reflect American values but threatens American institutions, and a related belief that “American peace, prestige, and prosperity were not being served by our foreign policy.” The American Civil Liberties Union (ACLU) has repeatedly attacked the Trump Administration’s travel and refugee bans as open violations of treaties ratified by the United States such as the 1951 Refugee Convention and its Protocol. The US State Department has been besieged by an unprecedented exodus of career senior officials – an obviously precarious situation for what Harold Koh used to call “the most outstanding international law firm in the world”. [Harold Koh, “Foreword: America’s Conscience on International Law”, at p. xiii, in Michael P. Scharf and Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, CUP 2010.] It is highly doubtful, at this point, if international law justifications and global institutions would have any enduring place in the future within the Trump Administration’s ‘America First’ foreign policy canon.
In contrast, China has been deepening its engagement with the international legal system [See Jacques Lisle, China’s Approach to International Law: A Historical Perspective, 94 ASIL Proceedings (2000), pp. 267-275], as it moves rapidly to consolidate its economic superpower status with technological competitiveness and expand its Silk Road Economic Belt and Maritime Silk Road (“One Road, One Belt”) initiative of debt-financed infrastructure developments encompassing over 60 countries around the world. China has taken the lead in seeking to forge a powerful 16-country trade bloc through the Regional Comprehensive Economic Partnership (RCEP) and floating the idea of a Free Trade Area for the Asia-Pacific (FTAAP). China also won its very first investor-State arbitration this March 2017, successfully defending itself against a claim by South Korean investors (Ansung Housing Co. Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25, Award, 9 March 2017. Tribunal composed of Prof. Lucy Reed (President), Dr. Michael Pryles, and Prof. Albert Jan van den Berg).
What would be most crucial in the “New Great Game” between the United States and China, is how both would possibly respond to demonstrable internationally wrongful conduct by the other in the future, and what contours would emerge from the tenuous United States-China cooperation recently initiated under the Donald Trump and Xi Jinping governments. Would there be policies of confrontation, accommodation, or strategic engagement between the United States and China, especially when a senior Trump Administration official has declared the “end of the Pivot to the Pacific”, and US Defense Secretary Jim Mattis already belied any military action for Chinese assertions in the South China Sea?
In pondering these questions, it is worth recalling a 2012 essay by the famous American diplomat Henry Kissinger, The Future of U.S.-China Relations: Conflict is a Choice, Not a Necessity, where he presciently observed:
“Some American strategic thinkers argue that Chinese policy pursues two long-term objectives: displacing the United States as the preeminent power in the western Pacific and consolidating Asia into an exclusionary bloc deferring to Chinese economic and foreign policy interests. In this conception, even though China’s absolute military capacities are not formally equal to those of the United States, Beijing possesses the ability to pose unacceptable risks in a conflict with Washington and is developing increasingly sophisticated means to negate traditional U.S. advantages. Its invulnerable second-strike nuclear capability will eventually be paired with an expanding range of antiship ballistic missiles and asymmetric capabilities in new domains such as cyberspace and space. China could secure a dominant naval position through a series of island chains on its periphery, some fear, and once such a screen exists, China’s neighbors, dependent as they are on Chinese trade and uncertain of the United States’ ability to react, might adjust their policies according to Chinese preferences. Eventually, this could lead to the creation of a Sinocentric Asian bloc dominating the western Pacific. The most recent U.S. defense strategy report reflects, at least implicitly, some of these apprehensions.
No Chinese government officials have proclaimed such a strategy as China’s actual policy. Indeed, they stress the opposite. However, enough material exists in China’s quasi-official press and research institutes to lend some support to the theory that relations are heading for confrontation rather than cooperation…
If challenged, the United States will do what it must to preserve its security. But it should not adopt confrontation as a strategy of choice. In China, the United States would encounter an adversary skilled over the centuries in using prolonged conflict as a strategy and whose doctrine emphasizes the psychological exhaustion of the opponent. In an actual conflict, both sides possess the capabilities and the ingenuity to inflict catastrophic damage on each other. By the time any such hypothetical conflagration drew to a close, all participants would be left exhausted and debilitated. They would then be obliged to face anew the very task that confronts them today: the construction of an international order in which both countries are significant components.
The blueprints for containment drawn from Cold War strategies used by both sides against an expansionist Soviet Union do not apply to current conditions. The economy of the Soviet Union was weak (except for military production) and did not affect the global economy. Once China broke off ties and ejected Soviet advisers, few countries except those forcibly absorbed into the Soviet orbit had a major stake in their economic relationship with Moscow. Contemporary China, by contrast, is a dynamic factor in the world economy. It is a principaltrading partner of all its neighbors and most of the Western industrialpowers, including the United States. A prolonged confrontation between China and the United States would alter the world economy with unsettling consequences for all….
What this situation calls for is not an abandonment of American values but a distinction between the realizable and the absolute. The U.S.-Chinese relationship should not be considered as a zero-sum game, nor can the emergence of a prosperous and powerful China be assumed in itself to be an American strategic defeat.
A cooperative approach challenges preconceptions on both sides. The United States has few precedents in its national experience of relating to a country of comparable size, self-confidence, economic achievement, and international scope and yet with such a different culture and political system. Nor does history supply China with precedents for how to relate to a fellow great power with a permanent presence in Asia, a vision of universal ideals not geared toward Chinese conceptions, and alliances with several of China’s neighbors. Prior to the United States, all countries establishing such a position did so as a prelude to an attempt to dominate China.
The simplest approach to strategy is to insist on overwhelming potential adversaries with superior resources and materiel. But in the contemporary world, this is only rarely feasible. China and the United States will inevitably continue as enduring realities for each other. Neither can entrust its security to the other — no great power does, for long — and each will continue to pursue its own interests, sometimes at the relative expense of the other. But both have the responsibility to take into account the other’s nightmares, and both would do well to recognize that their rhetoric, as much as their actual policies, can feed into the other’s suspicions….
The key decision facing both Beijing and Washington is whether to move toward a genuine effort at cooperation or fall into a new version of historic patterns of international rivalry. Both countries have adopted the rhetoric of community. They have even established a high-level forum for it, the Strategic and Economic Dialogue, which meets twice a year. It has been productive on immediate issues, but it is still in the foothills of its ultimate assignment to produce a truly global economic and political order. And if a global order does not emerge in the economic field, barriers to progress on more emotional and less positive-sum issues, such as territory and security, may grow insurmountable…”
The accusations of violations of international law, ironically, have been mutual, and at times, even ambiguous. The Trump Administration has previously threatened a trade war with China for alleged unfair trade practices, while China has objected strenuously to the lawfulness of US freedom of navigation operations in the South China Sea. US Senators recently proposed bipartisan legislation seeking to impose sanctions against China for its militarization of the South China Sea. Recently, notwithstanding the Philippines v. China arbitral award rejecting China’s assertion of any supposed historic rights over Scarborough Shoal and finding that China had caused severe harm to the marine environment with its island-building activities, however, China announced it would start building “environment monitoring stations” over Scarborough Shoal. The announcement contravenes Chinese President Xi Jinping’s supposed promise to Philippine President Duterte that China would never build an artificial island over the disputed Scarborough Shoal. While White House spokesman Sean Spicer had previously stated that the United States would “prevent China from taking over territory in international waters in the South China Sea”, the mercurial Trump Administration – including US Secretary of State Tillerson – has so far been silent on the announced Chinese plans to build an artificial island over Scarborough Shoal. (Note that White House Chief Strategist Steve Bannon previously predicted in March 2016 that the United States “would go to war in the South China Sea in five to ten years.”) Thus far, since the 12 July 2016 arbitral award in Philippines v. China, some scholars have reported that China appears to have already complied with some of the tribunal’s rulings, while continuing not to comply with others. This nascent result – less than a year since the arbitral award was issued – is not at all unexpected, when one takes a wider lens (and longer time-frame) when examining the horizon of State compliance with international judgments.
Kissinger’s observations, in my view, capsulize a neorealist pragmatism that will likely be observed by both the United States and China towards international law, its strategic uses (and disuses), and the utilitarian purposes of global institutions for nationalist interests. As the United States government under the Trump Administration signals a retreat from its traditional discursive approaches to international law justification, China has demonstrated its ability to selectively and strategically engage international law, global institutions, economic partnerships. It remains to be seen if today’s initiative towards hegemonic cooperation between the United States and China – both of which appear to dismiss principles of international law at will or disengage from international cooperation as easily – could ultimately forge conditions for hegemonic rivalry, if not ultimate succession, given the reconfiguring constellations of nationalisms and populisms within today’s international legal system under fire. Much remains to be seen on the myth systems and operational codes of both world powers towards international law and the future shape of global order. The “New Great Game” is still being played.