Initiative for U.S.-China Dialogue on Global Issues

Eleanor M. Albert: Today our guest is Thomas Kellogg, the executive director of the Center for Asian Law at Georgetown [University], where he oversees various programs related to law and governance in Asia. He is a leading scholar of legal reform in China, Chinese constitutionalism, and civil society movements in China. Tom, welcome to the show. It's a pleasure to have you!

Thomas E. Kellogg: Thank you for having me.

Eleanor M. Albert: I tend to start most of my conversations from a humanizing perspective. So before we dig into policy or research questions, I was curious about your journey into studying law and then how China fits into that equation.

Thomas E. Kellogg: Well, first of all, I want to say thank you for having me on. I'm really excited to be talking about this important topic of China and international law. I actually came at it first from the China perspective in terms of studying Chinese at Hamilton College where I know you have a connection. Once you start learning the language, you want to understand the culture more, you want to understand the place more, you want to understand the history more, you want to understand the politics more.

For me, that grew into an interest in human rights in China, and also in terms of the political legal system. That then grew into going to law school. And then my current focus on both the domestic Chinese legal system and China and international law. So it was a very organic process.

One thing I will say about that is just the huge benefits and impact that are there for people studying inside China. I worry a little bit that we're losing that. You see the complexity of the place, the complexity of the issues that we're all grappling with and thinking about when you have the incredible opportunity to spend time on the ground, you see such an amazing people, and culture, and a place, an actual place. I worry that the conversation in Washington sometimes gets a little bit too abstract. So that was also part of my process of thinking about China, and then also thinking about the role that law plays in China, and then China's engagement with international law.

Eleanor M. Albert: That's fascinating. It mirrors a little bit of my journey, though law was not the direction I took. But I studied the Chinese language for two years before having spent any time over there. I went and I spent a summer. And every time I stepped foot in China, I wanted to be back there because it was just so complex and so rich.

So I very much echo and hope that there will be not necessarily a turning of the tide. We still need to have an ability to understand the subtleties and the dynamics. And that gets really hard when you don't have an ability to spend time in a place to try and understand it better.

Thomas E. Kellogg: Just make one other quick point on this. This is a little bit of an aside, but I want to recommend for your listeners: Jeff Wasserstrom, a professor actually of history out at UC Irvine [University of California Irvine], did a great piece in The Chronicle of Higher Education, talking about his own set of questions around whether or not to go to China and how to advise students and colleagues about going to China.

He echoed some of these points that we're talking about in terms of the importance of spending time on the ground, understanding that complexity, understanding the rich history of the place and the people that are there, but also having eyes open to the shortcomings of the political system, the very real human rights abuses that are in play.

So it’s by no means a thought that you go there and youonly see the good. Of course, you see the good, the bad, the areas of improvement, and the areas where things are getting more difficult.

Eleanor M. Albert: We're going to transition into talking about our theme today, which is China and international law. Before we apply it to the Chinese context, it'd be good for us to just have a quick conversation about international law in general.

Are there specific components, principles, or institutions that we can point to to understand the areas in which various international legal norms have emerged and developed? I think we think about international law these days as being this set, established thing, and yet it has been what I would describe as a relatively rapid developing thing in terms of other institutions that we have.

Thomas E. Kellogg: So I'm going to do that professorial thing and recommend to your listeners a book called Governing the World by a Columbia [University] scholar named Mark Mazower. It's not China focused at all, but it is a history of efforts to build up international law and build up international institutions. My takeaway was that whatever shortcomings are there in the current international system and whatever shortcomings are there for international law, we still have a system that is so much more functional, and so much more able to tackle common challenges that we have, than anything that's come before.

I think Americans have a history of some degree of skepticism of international law and international institutions, perhaps born of being a big country that has two oceans. That gives us some degree of distance, at times, from the problems of the world. But we also have this amazing history of being a leader in the creation of the existing international system.

So that book can give readers a sense of “this is how we got to where we are today,” and it's been a bumpy road, and you may have a little bit more empathy for the system that we have, warts and all.

Now coming to your question of how does the current international system work. This is obviously going to be super compressed, but basically it is a system that is meant to be a liberal international order in which all states are, at least vis-à-vis their rights and responsibilities within the system, meant to be created equal.

We had the UN General Assembly up there in New York and all of the world leaders are getting together. That's a demonstration of how the system is meant to reflect what the experts call the sovereign equality of states. We're all coming together to try to push forward on solving common problems, whether it be climate change for example, whether it be the war in Ukraine, or what's happening in Israel-Palestine. All of these hot-button issues, states are coming together to try to solve some of these problems on the basis of, as we said, sovereign equality and on the basis of international law, and then working through international institutions.

One of the things that is very different about this international order as opposed to the pre-World War II picture is that you have different institutions that are there that are meant to grapple with different problems. I don't want to give any of our listeners PTSD, but coming out of the COVID[-19] pandemic, the prominence of the World Health Organization in terms of responding to that pandemic and the positive and negative elements of their response were a part of certainly U.S. discourse and global discourse more generally. That's just one example of the different kinds of specialist institutions.

I think another element of the international system today is especially after the end of the Cold War, you see a bit more expansion. For all of the skepticism of international law and international institutions that we were talking about a moment ago, vis-à-vis the U.S. and of course some other countries as well, you've seen a steady proliferation of new institutions, new norms, new treaties, new frameworks to combat these things.

One quick example on that: the Paris Agreement on climate change. You have there an effort to grapple with what I think a lot of us think is one of the most significant global challenges of our time. It took a while to get there in terms of false starts and lack of progress at different moments of time. But now we have that international agreement, and that's a good example of how the international community tries to find ways and vessels to tackle some key problems.

Eleanor M. Albert: I want to unpack a little bit more about some of the institutions. I think one of the elements of international law that seems to be different than, say, domestic legal systems is this question of enforcement, and it's a question of arbitration about where these things are adjudicated.

When I think about international law, the first two things that come to mind are the International Criminal Court and the International Court of Justice. How do these fit into it? I'm just curious about the relationship between this concept of a liberal international order. How does the law fit into that when we think about certain principles, for example, of sovereign equality or other principles and norms that have come out? How do those then apply to states? And so how do these institutions manage this idea of applying international law?

Thomas E. Kellogg: No, I think that's absolutely right. The greater degree of fuzziness that is there in the international context in terms of some cases, almost complete lack of an international enforcement mechanism. In other cases, very weak enforcement mechanism. In other cases, experimentation with more robust enforcement mechanisms or at least dispute resolution mechanisms. I'm thinking here of the Law of the Sea and international trade, which [are] two areas I'm sure we will talk about vis-à-vis China.

That fact of life, which does, as you say, differ from the domestic law, partially a function of states, and how states have their own ambivalent relationship to international law and international institutions, and how many states, and certainly including the U.S., sometimes hesitate to take on truly binding norms and enforcement mechanisms that will limit their freedom of action and that will limit their sovereignty. Say, "Yes, I will do this."

It's another thing, as we all know, to submit to having another body looking over your shoulder and having some degree of authority to say, "No, you haven't followed the law in this case," and whether penalties or maybe repercussions will ensue. This is a real problem.

Let's take for example, the war in Ukraine, right? So Russia invaded Ukraine and there was an international response, but the role of law in that response was in some way secondary to the response of other states. Of course, Russia violated one of the most fundamental norms of international law, that of state borders should not be changed by force. Military invasion of another country is an attempt to abrogate the sovereignty of another country in, again, perhaps the most fundamental way we can think of.

Now of course, the ICJ has issued an advisory opinion on the war in Ukraine, and apparently there is an ongoing role of the ICC in the violation of the laws of war and the war crimes that have taken place in Ukraine committed by Russian military forces. But I think we all know that those bodies and international law more generally will take a backseat to, for example, U.S. military and humanitarian assistance to Ukraine, European assistance to Ukraine. So that's just one example of how as much as we want to talk about the role that international law does play in global affairs, we know there are some real limits.

Eleanor M. Albert: Those are great examples, and I want to definitely bring the China factor in here. You started out by saying the U.S. has this history of being a little bit ambivalent about international law in general. I think this is something that actually the U.S. and China share, and it has not spoken about regularly enough.

Thomas E. Kellogg: Yes, that's a great point.

Eleanor M. Albert: But I was curious if given your background and all of your studying of China, and the legal approaches, do they have a distinct approach compared to other countries about certain elements of international law? What does it accept? What does it reject? Some of this might be how willing it is to engage in arbitration. But it's also to say that China also likes to pride itself as having had diplomats that played a role in building some of these institutions, albeit they were not part of the People's Republic of China at the time, but it is something that historically they like to point to when it comes to the Universal Declaration of Human Rights.

But upfront, what is China's take on international law and institutions? Where is it willing to play ball, and what does it wholesale reject?

Thomas E. Kellogg: Let me try to break your question into two parts if I can in terms of, as you rightly alluded to, the history of Chinese ambivalence, which has some parallels to U.S. ambivalence, but of course comes from its own historical background and context. And then the question of, is there a theory of China's approach to international law?

On the first one, I think we do have to take China's history into account, and that sometimes painful history of Western and particularly European aggression in China, and how international law was actually used to justify intervention by European powers. Then in the case of Hong Kong, for example, formalize it in the form of various so-called unequal treaties, right? We're still living with the legacy of that history today in all sorts of ways.

So that history is there. There's a sort of underappreciated story for the historians among your listeners about China's more positive approach to a prior iteration of international law and international institutions during the Republican era, and a desire to be a part of that new order as it was emerging after World War I. But then Japanese aggression making that effort, again, very limited.

Then during the People's Republic era, one having obviously an extremely radical approach to both domestic politics and international affairs born out of the Communist Revolution succeeding in 1949, but then also being shut out of the international system and really having that almost singular history of being locked out of the UN from 1949 all the way up to 1971. One struggles to think of other full-fledged states that were locked out of the UN system for so long. Certainly one can have a conversation about Palestinian representation at the UN and one can talk about certain microstates that are in or not in and the role of the Vatican and whatnot.

But with China, you have one of the leading states in the international community, a state with a long history, being kept out by, let's face it, a U.S.-led effort for close to two decades after the 1949 revolution. That understandably colored Beijing's view of the U.S.-led international system. If they can't even have the most basic and fundamental right of participation and membership in the system, of course they're going to sort of say, "Well, this must be a waste of time."

So no doubt, China's exclusion had an impact during that two-decade period. But we have to also take account of the primary domestic factors that are shaping domestic Chinese politics and its approach to the international scene.

Now, coming to the second part of your question in terms of, where is China now, and is there a theory of China's approach to international law? I would say that that skepticism and the history we were just talking about aside, there are few countries that have benefited as much as China has since let's say 1979 (when the economic reform and opening era began) from the existing international system. China for many years was a leading recipient of World Bank loans for example. In the '80s and into the '90s—with a short interruption after the 1989 Tiananmen Square massacre—you had all sorts of different agencies that were offering technical assistance to China.

China had, after 1971 when it got its UN seat back, P5 membership. So it is not just at the table when decisions are being made, but it has a level of power within the system and voice within the system that only four other states have. The list goes on and on.

So whatever isolation was there, whatever exclusion was there, quickly moved to the center of the system, and it took a very strategic approach to engaging with the system. It wanted economic development. It got economic development assistance from entities like the World Bank and other institutions. It wanted better security and it has participated on that front. And again, one of the positive elements of China's engagement with the UN system in recent years has been its contributions to UN peacekeeping, right? We're going to talk about some of the more problematic elements of China's approach to international law, but there are some positive stories there as well.

So you see an interest-based approach that maps out China's approach to engagement with the system as a whole. But especially for the first few decades after let's say again 1979, you see a willingness to engage even on issues where they are more hesitant, more skeptical, see more risk, more potential downside.

Let's take human rights for example. That is an issue area where China's domestic political system, and its one one-party authoritarian political structure, means that it is less open and it sees less benefit to engagement with UN human rights mechanisms. But there was some effort to engage, again, perhaps pressed by other states with a system that again, it saw as a latent threat, especially after 1989.

I think in the past decade or so under Xi Jinping, you've seen a more assertive approach in which China is trying to neutralize and even reshape that system so that it's more toothless. That interest-based approach is there in terms of trying to engage where it sees a benefit. But being more cautious and defensive where it sees potential problems or even a potential threat. So something of a mixed picture, I'm afraid.

Eleanor M. Albert: I think that's very telling. We can talk about various different types of mechanisms. After it joined the WTO, it is a very active member, both as someone filing complaints, but also as the target of [complaints]. And it [has] a certain amount of willingness to engage in the dispute resolution mechanism at the WTO. That isn't terribly surprising, given the way that China's role in the world economy. It would make sense that that would be in its favor.

You have other instances. You gave the example of human rights as a big place where it's going to be more defensive now, but we can even talk about the Law of the Sea. There was the big court case with the Philippines, and their expansionism, and the development of non-islands, and who controls the South China Sea.

I'm curious in this kind of mixed picture, when we talk about the human rights, from your perspective, talking about making the institution more “toothless.” What does a country as powerful as China, having such a speckled relationship with international law, do to general efforts to strengthen this type of system? For a long time, there was a proliferation of institutions. Is China playing a role in changing the general outlook on what these institutions are doing? Or is it becoming a bit of a scapegoat for problems that are existing, that are a factor of the structure of the system and how things are enforced? What's that tension like, and how can we approach it?

Thomas E. Kellogg: We are at a moment in time where the existing liberal international order and some key institutions are in a state of flux. We have a lot of conversation and asking the question of, are we seeing the re-emergence of two blocks on the international scene? We have the U.S. group on one side—in particular the NATO countries, and then countries like Japan, Australia, and others on one side. And then China, Russia, Iran, North Korea on the other. If that set of two blocks emerges more fully, then that can really do damage to the international system. The Cold War historians among us know that during the Cold War, you saw very limited development in some areas of international law and international institutions because the Cold War sort of froze in amber certain issue areas and made it impossible to make as much progress as could have been made.

So are we moving into that space as a result of that geopolitical shift? I personally think it's too early to tell, and China has certain common interests with countries like Russia, or Iran, or others, and it has grown to more deeply distrust the United States. And this is obviously a low point for U.S.-China relations.

But at the same time, Europe is still a key market for China. So China, I think, it should actually rethink its approach to international affairs that it's taken over the past decade. One doesn't hear the term wolf-warrior diplomacy as much anymore as we did a few years ago, but the legacy of that kind of rhetoric and that more assertive approach is still with us. And of course, Xi is still running the show, so we have a sort of difficult moment.

The sort of lack of clarity among many different players on some of these key international institutions is also playing a role, right? You mentioned the WTO a moment ago. When I used to teach China's approach to the WTO in years past (you have to go back ways now, even a decade or so ago), you could paint a picture of China's integration into global trade. Its joining of the WTO I believe in 2001. Then, as you were pointing out just a moment ago, a willingness to be bound by dispute resolution, reasonable amount of compliance, however imperfect, and a trajectory that could be described as a progress narrative.

That picture has gotten more muddy in recent years. But at the same time, the U.S. has reevaluated its approach to free trade, right? Now there's a more complicated picture there in terms of the costs and benefits, and we can certainly talk about that. But at the end of the day, the U.S. is no longer a key supporter of the international trade regime as formulated under the Bretton Woods system all of those decades ago.

The question of how is China going to engage with international trade and the institutions of international trade is clouded by the fact that we don't know where the regime is going right now. It is very much in flux. And so where that is going to go from here, what the U.S. is going to do three and five years from now vis-à-vis international trade, I don't think we know. And how China is going to both set its own agenda and what it's going to do, I don't think we know. There are other areas like that where the situation is in flux as a result of different players doing different things, and China is very much in that mix.

Eleanor M. Albert: It's interesting that perhaps inevitably, a multilateral system depends on multiple players all buying into it for there to be able to have some sort of agreement on how a regime is maintained and managed. It's rather intuitive, but you have some changes.

On the international front, you opened talking about some of the more contemporary issues that are taking place, and we've also talked a little bit about the domestic environment where China is perhaps the most sensitive to being targeted by an international institution; human rights comes to mind the most there.

Are there areas in which China has turned away or is more willing to perhaps not accept or reject, or try and muddy the waters a little bit when it comes to international law? Perhaps in the example of the Ukraine case. Perhaps there are other areas.

Keeping in mind that China was a party to the JCPOA [Joint Comprehensive Plan of Action on Iran]. It was a part of trying to negotiate a pretty landmark international agreement. It has instances of buying in and wanting to be a party to something that tied the hands of a country that is perhaps now more in this block that's bifurcating the system today. But are there more instances in global affairs that are of raising alarm of China either turning away or turning to international law?

Thomas E. Kellogg: Sad to say on the turning away side, of course we have to talk about Law of the Sea, and the conflict in the South China Sea, and China's comprehensive of rejection of the arbitral award in favor of the Philippines [in 2016]. That award is one of the most comprehensive decisions ever issued by an international tribunal on the meaning of the Law of the Sea convention and China's responsibilities under it. It was an incredibly detailed and sweeping decision that constituted a pretty far-reaching rebuke of China in terms of their artificial land building in the South China Sea, its efforts to keep the Philippines [away from the area], and they weren't a party to it but [keeping] other Southeast Asian states, from exercising their resource exploitation rights in areas of the South China Sea.

China in that instance was moving step by step toward a position of outright noncompliance with a key international regime that of the Law of the Sea. And then with the award and China's combative response to it, you now have, again, a situation where they're mounting sort of a full-frontal assault on that regime and that may affect the trajectory of the Law of the Sea going forward.

Just quickly, on the U.S. front, of course the [United States] has signed but not ratified the UN Convention on the Law of the Sea. I think both in this area and on all the different issue areas that we've been talking about over the course of our conversation, the U.S. response should be to bolster its own support for these international institutions and international, well, in the case of the UN convention and international treaty, as a means to show the international community, "Look, we're serious about this stuff." China has signed and ratified UNCLOS. We largely abide by it in all of the key areas of U.S. engagement with the Law of the Sea, but we haven't ratified it. And that to me is just a very unfortunate mistake. So on that issue and some of the other issues, I hope that we will have progress, but we'll have to wait and see.

Eleanor M. Albert: My concluding question, one is to ask about if there are fields in which China is actively trying to shape norms. So not necessarily degrade existing ones, but playing a role in creating or being a part of the development of a regime?

Thomas E. Kellogg: One area where China has been an active shaper of new norms has been climate change. You have China being quite recalcitrant in terms of having the concern that an agreement on capping carbon emissions would have a negative impact on its economic growth trajectory, which, of course, it has viewed, not without basis, as fundamental to its domestic political legitimacy.

In that context, they were not sure if they could resolve the contradictions between their economic growth model and an agreement to cap carbon emissions. As they started to move towards higher quality growth in the 2000s and into the 2010s, that gave them more space to negotiate and to play a more positive role. That was a factor that led to the Paris Agreement.

I would also say that they also realized that high levels of pollution, of which carbon emissions are a part, were causing so many domestic problems. So recognizing that a lot of Chinese citizens were also wanting action to be taken, I think was also a factor in leading to a more constructive approach.

Now, I will editorialize a little bit here in terms of saying the Paris Agreement was a significant step forward. But it also shows that the international community—and both China and the United States included—have not quite gotten to the level that they need to in terms of significant steps that need to be taken to deal with climate change. Those of us here in the U.S. are seeing the devastation of the significant weather events in the American South. That's a product of climate change, however indirect. China has dealt with flooding in major cities like Shanghai and along different rivers.

So that is also a lived reality for China that should further incentivize more action. As you know, the Paris Agreement is about states setting their own targets for reducing their carbon footprint. That was the best that the international community could do, but it may not be enough going forward. But again, coming back to your question, China was at the table. It did play a role in reaching the Paris climate accord, and I hope that it will do more as the United States and other leading countries will do more in the years to come.

Eleanor M. Albert: I think it's really interesting. China plays a kind of pivotal role as a developing country and also increasingly as a country that has better relations with the Gulf states and could potentially help with some of their willingness to be part of a greener climate initiative. So there's perhaps a silver lining.

My final question is to talk about the interplay between international law and domestic law in China's context. Historically, China, as it became more integrated into the international system, actually looked to various other models, whether they were other domestic models or even international laws. They were exposed to different standards and regulations to reform their own system. Is that continuing to be the case? Or do we see perhaps a bit more of an inverse in which China is trying to take things from its system and trying to implant them in the international? It's possible that both could be happening simultaneously. I don't think it's purely unidirectional. But are there instances where you have seen this? Is there some type of nexus between the international legal arena that China navigates in and its own domestic environment?

Thomas E. Kellogg It's a great question, and it's something that I think a lot about in this difficult moment for Chinese domestic politics in terms of increasing repression under Xi Jinping. Where are the avenues of opportunity for positive influence?

First as an aside, one success story. Now much more murky in terms of China, the domestic and international law nexus is actually Hong Kong.

When China reasserted sovereignty over Hong Kong in 1997 with the handover, it agreed that Hong Kong could remain a party to all of the key international human rights treaties, including the ICCPR [International Covenant on Civil and Political Rights]. That gave an opportunity for Hong Kong courts to use international human rights jurisprudence to decide cases in Hong Kong. And Chinese scholars have studied this phenomenon.

First of all, it led to a significant advance in domestic human rights protections in Hong Kong itself and the kind of fleshing out of what we would call constitutional rights under Hong Kong's Basic Law. It's been a constitution and the role that international human rights law played in fleshing out that piece of Hong Kong law. I think it is important.

Now, obviously we all know that Hong Kong is a small piece of the larger Chinese picture. And of course we know that after the historic 2019 pro-democracy protest and the draconian 2020 national security law, a lot of that advancement on the human rights front has been dramatically curtailed. [I'm] not suggesting otherwise. But in terms of success cases that perhaps China could go back to and learn from in future, it has one right on Chinese soil there that I think is worthy of note.

And there are other success stories as well. This again, is also somewhat of a mixed picture in light of COVID[-19], but after SARS, there was a lot of WHO engagement in China with the development of their own public health infrastructure and disease outbreak alert mechanisms that was positive and played a positive role for several years after SARS in 2003. That stress test apparently tragically failed in 2020 with COVID[-19], as of course we all know and lived through. But that public health infrastructure is still there. Some of those laws are still on the books.

So when you have either a Communist Party leadership or other political leadership that takes a different stance to the international community than Xi Jinping himself does, there's an opportunity to revisit some of that legal change that has taken place and some of those international relationships that have been there in the years to come. I am a short-term pessimist in terms of where China is right now in terms of its relationship to international law and the potential for positive domestic change. But there are some prior examples that can be looked to. And over the long term, I think China will come back to them. So one has to be hopeful.

Outro

The U.S.-China Nexus is created, produced, and edited by me, Eleanor M. Albert. Our music is from Universal Production Music. Special thanks to Shimeng Tong, Tuoya Wulan, and Amy Vander Vliet. For more initiative programming, videos, and links to events, visit our website at uschinadialogue.georgetown.edu. And don’t forget to subscribe to our podcast on Apple podcasts, Spotify, or your preferred podcast platform.