From ideology to pragmatism: China's position on humanitarian intervention in the post-cold war era.

• Author: Davis, Jonathan E.

ABSTRACT

This Article fills a gap in the literature by examining in depth China's state practice and official pronouncements in respect of nine post-Cold War cases typically cited by academics when considering the international legal status of humanitarian intervention. The majority of today's commentary and scholarship holds that the People's Republic of China's position on sovereignty and intervention remains inflexible and absolutist, much as it was for the PRC's first four decades. This Article contends that this view is outdated and overly simplistic: while China continues to champion a strong conception of state sovereignty in interstate relations, it has signaled a shift from an ideological insistence on noninterference toward a more pragmatic approach to humanitarian crises. In particular, this can be seen in China's willingness to acquiesce in and even actively support multilateral humanitarian interventions that obtain both Security Council authorization and target state consent, as well as in China's willingness to use its growing economic and diplomatic leverage to help secure consent to intervention.

TABLE OF CONTENTS I. INTRODUCTION II. HUMANITARIAN INTERVENTION AND INTERNATIONAL LAW III. HISTORICAL CHINESE ATTITUDES TOWARD INTERVENTION IV. CHINESE ATTITUDES TOWARD HUMANITARIAN INTERVENTION IN THE 1990S A. Iraq: The Northern and Southern No-Fly Zones B. Somalia C. Haiti D. Rwanda E. Bosnia F. Kosovo G. East Timor V. CHINESE ATTITUDES TOWARD HUMANITARIAN INTERVENTION IN THE 2000S A. The Responsibility to Protect B. Darfur VI. ANALYSIS: CONTINUITY AND CHANGE IN CHINESE ATTITUDES TOWARD HUMANITARIAN INTERVENTION VII. CONCLUSION I. INTRODUCTION

The rise of the People's Republic of China (PRC) raises many questions about the country's perceptions of international law, as well as how China conceives of its role as a great power in the international system. With its growing economic, political, and military power, as well as its increasing assertiveness in international relations, China is now a relevant actor in a broad range of issues that transcend national borders. (1) Historically, China has expounded an absolutist conception of sovereignty, which stands in contrast to the sovereignty-eroding characteristics of many solutions to today's most pressing transnational problems. (2) Whether and how China adapts its traditional views of sovereignty to meet these challenges will say a lot about China's rise and its future role in the international system.

One particularly instructive lens through which to examine China's changing attitudes toward sovereignty and intervention is its response to humanitarian crises, which have been--and are almost certain to remain--a common feature of international relations in the post-Cold War world. The role China plays in future humanitarian crises will depend in large part on its position on the limits of sovereignty and the international legal constraints on humanitarian intervention.

Surprisingly little has been written about China's position on humanitarian intervention, notwithstanding the country's ability to shape or obstruct the development of international norms in this area. As one commentator put it, "[e]ither China is perceived to be irrelevant to emerging post-Cold War norms in this area or it is viewed as simply an insurmountable obstacle, so far out of step with the rest of the world that it should be ignored." (3) This Article suggests just the opposite. With its great-power status and privileged position as a permanent member of the United Nations Security Council, China has considerable influence over the development of the international law of humanitarian intervention. Additionally, although China's position often conflicts with the position of those who promote a right of humanitarian intervention, it is hardly "far out of step" with global trends. In fact, China's position on humanitarian intervention corresponds to that of a large number of other states.

This Article examines China's state practice and official pronouncements in the following post-Cold War cases typically cited by academics when considering the international legal status of humanitarian intervention: the no-fly zones established in Iraq after the first Gulf War; the conflicts in Somalia, Haiti, Rwanda, Bosnia, Kosovo, and East Timor; the development of the "responsibility to protect"; and the conflict in Darfur. (4) During these events, China was forced to decide whether to support, acquiesce in, or oppose outside intervention to relieve the suffering. Each of these events led Beijing to define and clarify its attitude toward core international legal principles, including state sovereignty and nonintervention.

This Article demonstrates that while China continues to champion a strong conception of state sovereignty and noninterference in interstate relations, its actions since the Cold War evince a willingness to acquiesce in, and even actively support, multilateral humanitarian interventions that obtain both Security Council authorization and target state consent. Furthermore, Beijing has adopted certain tenets of the concept of "the responsibility to protect," suggesting that China is not as inflexible on sovereignty and intervention as some suppose. (5)

This is not to say that China shows signs of supporting the further development of the international law of humanitarian intervention; rather, China is likely to remain a "persistent objector" to claims of a unilateral right of humanitarian intervention for the foreseeable future. On a more practical level, however, these trends suggest that Beijing may be willing to undertake, support, or acquiesce in military action to prevent or end atrocities, crimes against humanity, genocide, or other humanitarian catastrophes if its two preconditions to intervention--Security Council authorization and target state consent--are met. This concession may be of little comfort to those seeking a robust norm of humanitarian intervention, especially given China's ability to block Security Council authorizations and the high bar of target state consent. Yet signs of greater flexibility in Beijing's position--including its willingness to consider situations of humanitarian need as threats to international peace and security and to use its growing global influence to secure target state consent--indicate that China might not stand in the way of multilateral action in future cases of extreme humanitarian suffering.

Ultimately, China's rising power cuts both ways, placing Beijing in a strong position to shape the future development of international norms on humanitarian intervention as well as to block or oppose future interventions. As a result, Beijing's position on humanitarian intervention cannot be ignored.

2. HUMANITARIAN INTERVENTION AND INTERNATIONAL LAW

   The legal status of humanitarian intervention remains unsettled under international law. (6) For the purposes of this Article, humanitarian intervention is defined as the use of force by a state (or group of states) in another sovereign state's territory to protect the host state's citizens from gross human rights abuses, mass atrocities, crimes against humanity, or genocide. Thus defined, humanitarian intervention is in direct tension with the norms of state sovereignty and nonintervention that arose out of the settlement at Westphalia in 1648. (7)

   The origins of modern humanitarian intervention can be traced to British and French interventions in the nineteenth century. (8) However, there is little support for the claim that a customary international legal right of humanitarian intervention arose during the nineteenth or early twentieth century as a result of state practice and opinio juris. (9)

   Even if a right of humanitarian intervention had developed by the early twentieth century, the enactment of the United Nations Charter cast serious doubt on the continued validity of any such right under international law. (10) Article 2(1) of the Charter implicitly incorporates the customary international law principle of nonintervention by reaffirming the "sovereign equality" of all member states. (11) Additionally, Article 2(4) explicitly prohibits the use of force, with only two exceptions: the use of force in self-defense and the use of force pursuant to a Security Council-authorized enforcement action under Chapter VII of the Charter. (12) Furthermore, Article 2(7) incorporates a principle of noninterference by prohibiting the United Nations from intervening "in matters which are essentially within the domestic jurisdiction of any state." (13) Chapter VII, the only exception to this noninterference principle, authorizes the Security Council to declare any situation to be "a threat to international peace and security" and thereafter take enforcement measures, including the use of force. (14)

   Certain commentators argue, in light of both the Charter's constraints on the use of force and insufficient state practice and opinio juris in the post-Charter era to establish a new norm of customary international law, that international law does not recognize a right of humanitarian intervention. (15) In part, opposition to the recognition of a right to humanitarian intervention arises out of a concern that granting such a right will lead to its abuse. (16) Nonetheless, a significant number of scholars argue that a right of humanitarian intervention exists in the post-Charter era. Some proponents argue that Article 2(4) of the Charter left open a loophole for humanitarian intervention, (17) while others argue that a right of humanitarian intervention has emerged as a norm of customary international law through sufficient state practice and opinio juris during the 1990s and 2000s. (18) Still others posit a theory of "sovereignty as responsibility," which holds that if a state proves unable or unwilling to prevent mass atrocities or genocide from taking place within its territory, certain...