China abandons international law, and prospects for world leadership

No nation which defies the United Nations Charter and International Law can lead the world.

China by it actions in the South China Sea and in Hong Kong has chosen a course of such defiance, and in doing so has thrown away any chance it might have had to assume the mantle of world leadership.

In the some 200 nations that make up the world, there is no more certain lodestar, no more certain roadmap, to international peace and security than the United Nations Charter, and the many international treaties and institutions that have been signed and established to achieve its overarching goals: international peace and security, respect for international law including the prohibition against the  use of force across frontiers, and the good-faith observance of treaties.

The commitment of the vast majority of states to the United Nations Charter and the goals and principles it embodies is deep. Even states which violate one or another of its provisions do not reject the Charter itself.

Regional organizations, from the European Union to the Organization of Southeast Asian Nations, the African Union, the Organization of American States, the Arab League, and the Gulf Cooperation Council, are established pursuant to and in accordance with the Charter of the United Nations.  Important security organizations such as the North Atlantic Treaty Organization (NATO), the Organization for Security and Co-operation in Europe (OSCD), and other regional and bilateral security arrangements are established within the international legal framework of the United Nations Charter.  Other organizations, such as the Organization of the Islamic Conference, are also established under and subordinate to the provisions of the United Nations Charter.

International treaties and conventions, governing virtually all domains of human activity, have been established under the auspices and authority of the United Nations.  Among the most important is the Law of the Sea Convention, which China is violating in the South China Sea.

For the vast majority of the some 200 nations in the world, the United Nations Charter is in effect the Constitution for the World,  The U.N. ,and its subordinate organizations.and other organizations such as those mentioned above, make up the fabric of governmental institutions and processes which order and in effect govern world affairs, from international trade (WTO) to intellectual property (World International Property Organization, or WIPO), international mail (International Postal Union),and  international aviation (International Civil Aviation Organization, or ICAO).

In the field of international health, as the corovirus pandemic has shown and will continue to demonstrate, the World Health Organization (WHO) remains–notwithstanding current polemics–a critical international institution for the coordination of information and efforts to control disease.

In a world of 7.66 billion people, the organization and governance of world affairs is an inherently complicated and multi-faceted undertaking. At the apex stands the United Nations Charter, the Constitution of the World.

Now comes China, a great nation with a great history as a superpower in its part of the world, aspiring to assume what it considers its rightful place as a leading power in the world of the 21st century, choosing to go down a false and ultimately self-defeating path.

Many countries in the world are already recoiling from the cultural arrogance and insensitivity displayed by Chinese leaders and officials from the People’s Republic of China, as they deploy and seek to exercise their power and influence around the world.

China’s recent moves in the South China Sea are in defiance of international law; and its de facto abrogation of the Chinese-U.K. treaty transferring sovereignty over Hong Kong to the PRC is also in flagrant violation of international law.  The UK agreed to hand back Hong Kong to China in exchange for iron-clad guarantees for Hong Kong’s autonomy, under the slogan of “Two Systems-One China”.   Its abrogation of the Understanding” or treaty that led to the handover of sovereignty in 1997 defies one of the most fundamental obligations of states in international law:   “Treaties are to be observed” (pacta sunt servanda).

The United Nations Charter has a supremacy clause, and takes precedence over any conflicting provision in any other treaty or international agreement. Article 103 provides:

Article 103
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Now China has turned its back on decades of cooperation with the international community of states. Bowing to the short-sighted considerations driving myopic officials, China in Hong Kong and the South China Sea has now headed down a wrong path which will foreclose the possibility of its becoming a great power which can have a decisive impact in leading  the world.

On its current collision course with the United Nations Charter and all of the nations and citizens which believe in and support what is in effect “The Charter of Mankind”, China will never achieve a global leadership role.

Not only China but all nations must squarely face the fundamental question:  What is the alternative to pursuing the United Nations path?

Neither China nor Russia has any answer to this question.  For the answer, which neither could openly avow, is a future of international anarchy and authoritarian governments, in which the ravages of war, disease, and violations of the rights and dignity of the human person are endemic. The goals of international peace and security, respect for human rights, and joint efforts to improve economic and social conditions will recede into the background, as war, disease human rights atrocities, and inaction on climate change define the human condition.

China has been a great nation, and today has great potential. But so long as China continues down the false path of defying the United Nations and the noble project set forth in its Charter, the developed countries and other democracies in the world should let China know that its actions are unacceptable.  They should adopt sanctions against those particular Chinese officials who are responsible for drafting, approving, and implementing the new security law, which will violate the UK-PRC “Understanding” (a treaty under international law) that led to the handover of Hong Kong in 1997.

A treaty is defined in Article 1(a) on the 1969 Vienna Convention on the Law of Treaties as follows:

1. For the purposes of the present Convention:
(a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation./

China became a Party to the Vienna Convention on September 3, 1997.

Larry Diamond of Stanford University, one of the world’s leading academic experts on democracy, has specified precisely the kinds of sanctions that should be adopted by the United States and other democracies against China. See.

Citizen News, “Beijing leaders and pawns in Hong Kong now crossing a Rubicon,” CitizenNews (HKC News) May 24, 2020.

In an interview, Diamond was quoted as follows:

The United States and Britain and other established democracies should make it clear that if the PRC and HKSAR authorities are going to violate the human rights of the people of Hong Kong and trample all over their commitments under the Sino-British Joint Declaration and the Basic Law, they are going to be held accountable by the world’s democracies.:… Insofar as possible, this accountability should not perversely punish the people of mainland China or of Hong Kong for the sins of their rulers.

Rather, hw continuted,

…(sanctions)should punish very specific individuals: the political authorities and their families. I would say to all these people who are dismantling Hong Kong’s autonomy, civil liberties, and rule of law, “You can’t have it both ways. You can’t send your families over here to study and to live, to buy property and recycle wealth, you can’t park and launder your assets in our country, while you rampage over the rights of the people of Hong Kong.” So yes, I strongly favor invoking targeted visa and economic sanctions. The Beijing leaders and their pawns in the HKSAR are now crossing a rubicon. We need to show we understand that things have changed in a fundamental way, and act on that.

If China is going to abandon its adherence to international law, other countries need to let China know that there can be no business as usual with the democratic countries of the world.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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