CSCC 4th Annual Conference: The U.S., China, and International Law

 The contemporary international legal order remains, to a great extent, the set of rules and institutions created or affirmed in the Post-World War II Era, principally underwritten by the United States and its allies, supported by the major Western and developed states, and attaining unprecedented global reach in the post-Cold War period.  Today, the rise of new powers—and especially the rapid rise of China to the status of the “number two power”—poses challenges to and possibly opportunities for the status quo legal order and its capacity to address international economic, political, and other problems.

Partly, this is the legal face of the realignment of power in international politics.  But it also reflects specific elements of the legal dimension of the most important bilateral relationship of the contemporary world.  And the U.S., China, and the interactions between them are likely to matter profoundly in reshaping the rules of the international legal order for a new era.

Indications of this pattern are regularly prominent in the news today. The Obama administration has depicted the Trans-Pacific Partnership agreement—which is, at base, a treaty setting forth elaborate legal rules for trade, investment, environment, intellectual protection, labor rights, and dispute resolution—as a potentially decisive development in determining the rules for the international economy in the twenty-first century.  Chronic and periodically acute disputes between the U.S. and its allies and partners in the Western Pacific, on one side, and China, on the other, over the South China Sea and East China are among the more significant concerns for international peace and security today.  They too focus, fundamentally, on disagreements over a complex set of international legal issues and rules, including territorial sovereignty, the law of the sea, and the national security rights of states.  These two prominent issues are merely the tip of the iceberg.  In many of the key areas of international law, the U.S. and China are engaging as never before in ways that may reinforce, or alter, international legal norms and rules.  And those international legal norms and rules are highly relevant to many of the major international policy issues of our times, including climate change, international conflict, human rights, and much else.

Until the relatively recent past, China rejected wholesale the international legal order that the U.S. and other Western states forged over the course of the modern era and especially in the postwar period.  China has long complained that it was excluded from the making of the rules and institutions that dominate international law today.  For several decades following the beginning of China’s Reform Era in the late 1970s, China sought to join international legal regimes on status quo-accepting terms.  More recently, a more powerful and confident China has become more vocal and assertive in pressing reformist, even revisionist views—some new and some longstanding.  The United States has generally welcomed China’s fuller engagement in the international system—including its legal aspects—and has viewed that engagement as a means to promote China’s acceptance of existing structures and their underlying norms.

At the same time, the U.S. has grown increasingly wary of a more powerful China’s agenda and concerned about the threat it may pose to a long-standing legal order, and a related institutional order, that the U.S. generally sees as still providing vital international public goods and serving both U.S. and wider global interests, including China’s interests.  Even if that order as a whole can accommodate a rising China, substantive law and law-making and law-interpreting institutions will have to adapt in ways that may alter the normative content, as well as specific rules, of the system. Those tensions and possible shifts are already evident across a wide range of subfields of international law.