CHINA, INDIA AND INTERNATIONAL LAW
2011/2012, Semester 2
Modular Credits: LL4003 ( 4 ) / LL5003 ( 4 ) / LL6003 ( 4 )
The rise of China and India has resulted in a shift of power from the West to Asia. It present a biggest opportunity of shaping a more just and equitable international legal order away from an existing order shaped through hegemonic power first during the period of colonialism and then during the ascendancy of the US. There is a movement away from these paradigms to a multipolar world in which China and India have begun to exert considerable influence. This course seeks to examine the potential that the rise of China and India, two ancient cultures, sharing much in common but yet having disparate modern political systems, will have on the future course of international law.
Seminars and presentations for 10 weeks. The teacher will meet with individual students to provide supervision on their paper writing, upon request.
There will be lectures on ten themes. Each lecture will be followed by a discussion by a group of students who will be assigned the topic so that they could structure and lead a discussion in the last hour of the seminar.
The themes that are explored in the course are the following:
The origin and history of the relationship between developing countries (as represented by China and India) and international law.
January 25, 2012)
Here we look at past interactions between the two countries in order to emphasize some common philosophical perceptions both as to life as well as to political organization. This gives rise to the romantic vision that China and India will contribute to the laying of an ethical foundation for international law. This vision is sealed by the common stances to the anticolonialist struggle as well as to post-colonial visions for the developing world. The principle of self-determination is isolated for study as a distinct contribution of the two states to international law. The disagreement is as to the use of violence. The subsequent application of this principle to minorities within the states (Kashmir, Xinjian and Tibet) are resisted. Students should look out for issues that arise in this context.
The Hegemonic Order and Instrumental International Law; Is there a Chinese-Indian Response. TWAIL Perspectives on International Law. Chinese views on International law.
The pattern of international law in the 19
centuries were Eurocentric with the United States assuming a dominant role after the end of the Second World War. The colonial order denied China and India a role in international law on the basis of the standard of civilization. In the post colonial world, China and India were in the forefront of creating a new order both in the political and economic front. The non-aligned stance was furthered by both states. They promoted the New International Economic Order.
But, in the last two decades of the twentieth century, the Third World cohesion breaks down with the ascendancy of American hegemony based on promotion of political democracy and economic neo-liberalism as the twin concepts. The changes driven are the recasting of the use of force to promote American supremacy (eg. Haiti, Kosovo) and economic dominance (eg. WTO).
The romantic notion of the Five Principles of Co-existence supported by both states. The Chinese concept of Harmony under the Heavens. The philosophical and historical similarities of approaches. But, realistic notions are based on strong and different self-interest of both states which are in conflict.
Is the articulation of the Principles of Co-existence and Harmony under the Heavens a sham to cloak the pursuit of national interests by China and India.
Concept of Sovereignty as the Basis of Resistance.
January 2012 (Sorna)
Chinese resistance to the emergence of global rules of governance has been strong. India has an ambivalent resistance as it is less resistant to the movements in the human rights sphere. But, initial notions of sovereignty are strong in both states particularly in the economic sphere as evidenced by the nationalization programmes. But, softer approaches come to be taken in both states when it comes to the liberalization measures adopted in the 1990s. The stances of both states to liberalization must be noted. Here, the emergence of the two states as economic powers leads to adoption of legal stances both domestically and in international law.
But, sovereignty is conserved by China. Its views on the emergence of ius cogens, on the notion of sovereign immunity (eg. recent Hong Kong decision) are strongly affirmative of sovereignty. Also, need to take such stance when it comes to human rights both internally due to dissent and externally due to Tibet.
India is ambivalent. It is defensive when it comes to Kashmir and internal civil strife. But, its role in ending apartheid in South Africa has been strong. Its acceptance o human rights norms internally also has been supported by strong political movements. The role of TWAIL, which is largely and Indian initiated academic movement, must be noted. No significant Chinese contribution to TWAIL exists. There is a strong African component.
CHINA, INDIA AND SOVEREIGNTY.
The stress on sovereignty by China. One traces this to past dealings, particularly to the subjection of China after the Opium War to the practice of extraterritoriality. “Pain and humiliation” of such subjection.
Struggle against colonialism. Chinese support and Indian leadership. Support for decolonization. The Declaration on Granting of Independence to Colonial People. After that, support for economic self determination. China nationalized without compensation on the basis of ideology of state ownership of property. Supported nationalization with low compensation. The New International Economic Order and the restructuring of the global economy. Until 1979, when fervour ends.
Third World leadership. TWAIL: China’s relative absence in.
The communist ideology and communist attitudes to international law. Theory of auto-limitation as the basis of international law. View shared by Chinese and Soviet scholars emphasizing treaties as the basis of international law.
Chinese adherence to the view that the Charter of the United Nations emphasizes sovereignty. Artice 2(4) and Article 2 (7).
This accords with the positivist vision of international law but not with the view that many modern international lawyers hold that sovereignty has been eroded by human rights and by globalization.
But China adheres to the Five Principles of Co-existence. It was first articulated in the 1954 Treaty between India and China relating to Trade in the Region of Tibet.
The five principles are: i. Mutual respect for each other’s territorial integrity and sovereignty; ii. Mutual non-aggression; iii Mutual non-interference in each other’s internal affairs; iv. Equality and mutual benefit and v. Peaceful coexistence. These five principles are broadly consistent with Westphalian sovereignty.
The five principles and Panchasila at the Bandung Conference. Sovereignty becomes central to developing nations as well but in a very attenuated form.
Chinese scholars interprete the UN Charter as consistent with these five principles and regard the United Nations system as consistent with the Chinese vision of the world.
China resists three ideas that India seems to accept along with other states of the world. The resistance is based on sovereignty.
(i) That sub-state groups like the Tibetans and the Muslims in Xinjiang have rights in terms of international law.
(ii) That neo-liberal ideology has brought about common norms relating to the free market and that these should be recognized.
(iii) human rights are more important than sovereignty and that advances in human rights have eroded the concept of sovereignty.
(iv) there is an emergence of standards of global governance based on democratic legitimacy.
China rejects all four trends that modernists would claim. The Indian practice differs on each of these four propositions.
On (i), the Chinese and Indian practices are similar. The Chinese would readily create autonomous regions though there is the charge that there is Han migration into these autonomous regions. India creates autonomy through its federal system. Both states would renounce secession. Secession will be a modern problem and will pose problems for both states.
(ii) despite their open door policy, neither China nor India adopt a free market approach as the major model for their economies. The claim that China progressed because of an adoption of a market economy appears to be without foundation. China practices what is described as state socialism, which is ownership of production through state companies and by well chosen national champions. India seems to be similar. China has two large sovereign wealth funds. Its state petroleum companies are aggressive seekers of energy.
India also practices state capitalism to a degree. Its private national champions like Tata and HMT are promoted and markets are kept from external competition. The feature of state capitalism is to use profits for political purposes.
On human rights, China and India differ. India has accepted the modern human rights movement fully, with its Supreme Court receiving most of its norms into domestic law.
India does not accept that domestic sovereignty shields a state from international scrutiny. It was in the forefront in the struggle against apartheid beginning from 1948, denouncing South African claim that the policy was one of domestic sovereignty. But, Kashmir poses a problem for the Indian stance.
China has not supported intervention in other states and condemned the NATO intervention in Kosovo. It is ambivalent when persons of Chinese origin are attacked in other countries. Compare India and Fiji.
China rejects notions of democratic legitimacy as a test for international norms. It rejects democracy as constituting the standard of governance. It works on the basis of a plurality of systems giving place to its own system.
Gao Feng, China and the Principle of Sovereign Equality in the 21
Century” in Sienho Yee and Wang Tieya,
International Law in the Post-Colonial World
(Routledge, 2001) pp. 224-239.
Democratic Repuplic of Congo v FG Hemisphere Associates (2010, Hong Kong Court of Appeal).
Is it important for the rest of the world that China and India support common norms of international order relating particularly to human rights, the environment and economic affairs? Should they have autonomy to decide on these issues?
The Role of International Law on Domestic Law in India and China.
February 2012 (Jiangyu)
Monism and Dualism. China is committed to a strong dualist approach which does not receive international law into domestic law. This is not so in India where the Supreme Court has played a dominant role in receiving human rights documents and shaping domestic international law in accordance with international standards.
This raises interesting questions. The perception of the effect of ius cogens norms is different in the two countries. The role for international criminal law will be watched with concern by both states due to Xinjiang, Tibet and Kashmir. The internal constituencies of the two states are different so that responses cannot be similar.
Commercial dealings in the two states have also to be looked at in the light of international norms. Both states have considerable corruption. Arbitration norms are in a state of evolution with both states proving resistant to the acceptance of international norms. Here, as the two states begin an important role in international commerce, the role of their courts in giving effect to international standards will have to be watched.
The significance of this question relates to emerging views on standards of international governance, the idea of global constitutionalism and global administrative law.
LECTURE OUTLINES. (Sorna: for India).
DOMESTIC LAW AND INTERNATIONAL LAW: INDIA, CHINA AND THE REST OF THE WORLD.
China, committed to sovereignty, is averse to receiving international law as a part of its domestic system. See case on sovereign immunity. But, its commitment to international economic law through its membership in the WTO, will make this field different as it has an international obligation to bring the law up to the standards in the WTO instruments. National interests are not inconsistent with such an approach. So too, in other commercial areas like investment or international business eg. Arbitration.
China adopts a dualist policy. India, a common law jurisdiction, willingly and enthusiastically embraces a monist position, to a far greater extent than any common law jurisdiction. It stands in stark contrast to China and is more liberal in its attitudes than the UK, Australia or the US.
Monism-Dualism. Early monism of English law. Somersett Case. The Amistad. But, R v Keyn. (1876). Getting back to monism. Pinochet Case. Customary international law is a part of English law. Treaties on the other hand have to be reduced into legislation and enacted by Parliament before it can become law.
Australia. Change as to aborigines. Mabo v Queensland. Teo v Minister of Immigration(1994) 183 CLR 273. Justice Kirby. Bangalore Principles.Ruth Bader Ginsburg, Justice Bhagwati.
US. Homosexuality and death penalty (Knight v Florida, Stephen BreyerJ). Must look at international law (Stephen Breyer); Wrong to look at international law (Scalia and Clarence Thomas). Debate on terrorism. (impermissible to look at international law: Jonathan Yoo; Eric Posner. Separation of powers; founding fathers and their constitution. The original federal compact; judicial activism v democratic legitimacy.
The Indian position. History of borrowing. Borrowed ideas of constitutionalism. Clearly monism except when it comes to treaties that involve areas other than human rights and the environment where there is cautiousness.
Public interest litigation. Activist Supreme Court. Chandrima Das v Railway Board  1 SCR 480 ( Sovereignty has no role in a welfare state. Though stated in early decisions, it has no relevance to the modern welfare state). Vishaka v State of Rajasthan  Supp.3 SCR 404. Reads in Cedaw.
How to reconcile with separation of powers. Democratic legitimacy. Answer: Field is not occupied. Executive, represented in Parliament, had voted for Cedaw. If displeased, can pass overriding legislation. Also the field is not occupied but is fresh.
Environment. Vellore Citizens’ Welfare Forum v Union of India  Supp 5SCR 241. Sustainable development and precautionary principle are part of Indian law.
Union for Civil Liberties v Union of India (1997) 3 SCR 433. Terrorism and liberty.
India has discarded sovereignty in favour of human rights to a large extent and receives international law norms more readily due to an activist Supreme Court.
Argue the case for (or against) the view that the courts of the two countries should adopt uniform views that accord with international norms.
Political and international conflicts.
February 2012 (Sorna)
The obvious and continuing source of conflict is the disputed border between China and India. The legal conflict reflects China’s position on unequal treaties. The Chinese claim to Arunachal Pradesh irks relationship between the two states.
Conflicts will arise in the maritime sphere. The competition to control the Indian Ocean could strengthen. Indian entry into the South China Sea will also provide sources of friction. The Straits of Malacca will assume significance. The Straits of Taiwan does not concern India but the strategy of containing China will increase Indian involvement. Again, these conflicts have legal dimensions.
Conflicts in the pursuit of energy and natural resources will intensify. Both states will seek to invest in Africa and elsewhere, intensifying conflicts. The contract methods used will differ and show disrespect for human rights and a negation of ideas of economic self-determination hitherto expressed by both states.
Investment treaties will assume a new role with China and India being the capital exporters protecting their investments. Both states may use trade laws against developing states.
INDIA AND CHINA: HOSTILE POSTURES AND THE LAW.
The Law on Territorial Claims.
Acquisition through conquest and control. Island of Palmas Case.
Doctrine of intertemporality.
Acquisition through discovery. Clipperton Island Case. Sipadan Island.
Modern role of self-determination.
Western Sahara Case
. Both in Xinjiang, Tibet and Kashmir, the problem arises for China and India who firmly deny the right beyond colonial context.
Birth of Pakistan and Independent India. PRC in 1949. India first to recognize PRC.
The border dispute. Starts during imperial days with the drawing of different boundary lines. Different imperial policies in the context of conflict between Russia and Britain for control. The principal line in contention now is the McMahon line drawn in 1913 agreed to by Tibet but not by China. China regards the line as involving an unequal treaty. The doctrine of unequal treaties.
In 1950, China takes over Tibet. In 1954, Nehru claimed Aksai Chin as Indian. No Chinese protest. In 1954, Five Principles stated in treaty. In 1956-57, China built a road through Aksai Chinn connecting Xinjiang and Tibet. In 1959 Dalai Lama flees to India.
1962 war. Line of control established with withdrawal from Arunachal Pradesh; still claimed by China.
Basis of claims. Historical contacts. Rao in ICLQ. China largely through Tibet. For the present stalemate. Both states maintain armies at line of control.
Problem of self-determination and Tibet. Is there a right to secession in international law?
South China Sea:
Chinese claim on the basis of historic title and later treaty of San Francisco. Clipperton Island type of claim relating to prior discovery.
Claim of Taiwan not opposable. Claim for one China.
Claims of ASEAN states. ASEAN parleys. Agreement not to proceed aggressively. 2009 statement of China in response to joint Malaysian-Vietnamese EEZ claim before UN Commission on Delimitation of the Continental Shelf.
Indian entry in 2012 with contract between ONGC (India) and Petrovietnam for offshore exploration. INS Virat. Claimed it as free seas.
American view that the area are free seas.
String of Pearls and the Indian Ocean.
Importance of the Indian Ocean for China. Access to the Ocean and the Straits of Malacca.
The encirclement of India.
. Is there a counter through the encirclement of China.
Are China and India the new aggressors and imperialists?
China India and the International Law on Foreign Investment.
February 2012 (Sorna)
Both China and India liberalized investment flows rapidly. China became the new exponent of “state capitalism” with the view that it did not matter whether the cat was black or white as long as it caught mice. But, China retains its state owned companies. India is a qualified exponent of “state capitalism” supporting strong private enterprise companies and its large list of state owned companies. State capitalism is further manifested in China by its large sovereign wealth funds. State capitalism is different from western capitalism in the political role played by the state in the use of profits generated by the state companies.
China and India will emerge as stronger exporters of investment capital.
China, India and the International Economic Order.
February 2012 (Jiangyu)
The role of China and India will be studied. Particular reference will be made to TRIPS and human rights. The role of China and India in this area shows similarities and joint effort. The impact of the Doha round and the role of the two states indicates common efforts which makes optimists see a revival of concern for the developing states.
“One swallow does not indicate spring”. The cooperation on some WTO issues does not show the resurgence of Third World interests of China and India which are bent on an imperialist and confrontational path.
Will China and India end up supporting the same norms as the United States even as the United States gives them up?
China, India and Climate Change.
March 2012 (Jiangyu)
China and India have taken roughly similar stances to Climate change viewing restrictions as deterring development. This segment will look at the views expressed by these two states as against the views taken by the developed states.
China, India and the Law of the Sea
12 March 2012 (Sorna)
This section will look at the competition between the two states in maritime areas.
China India and the Use of Force.
March 2012 (Sorna)
The views taken on the use of force have undergone dramatic changes in recent times. The post 9/11 events saw a loosening of standards in the fight against “terrorism” justifying the use of harsh measures against secessionist groups. Humanitarian intervention became a broader concept as used in Kosovo. The Bush Doctrine was announced. Secessionist violence affected both India and China. This segment looks at the views taken by India and China to these different developments.
Class participation and presentation: 30% of the total marks
Research paper: 70% of the total marks
Submission deadline: 5:30PM on 13 April 2012
Workload Components : A-B-C-D-E
A: no. of lecture hours per week
B: no. of tutorial hours per week
C: no. of lab hours per week
D: no. of hours for projects, assignments, fieldwork etc per week
E: no. of hours for preparatory work by a student per week