Fourth Plenum: Implications for China’s Approach to International Law and Politics

At the recently completed Fourth Plenum of the 18th Party Congress, Chinese leaders directed efforts to reform existing international institutions and laws and promote alternative values, political principles and legal arguments that better accord with China’s needs. These directions reflect a broader, whole-of-government effort to compete with the United States for influence, especially in Asia. At the same time, however, the instructions in the Fourth Plenum open opportunities for the two countries to increase cooperation on shared interests as well as expand dialogue on divergent issues.

Much of the media attention surrounding the recently concluded Fourth Plenum has understandably focused on the topic of the Chinese Communist Party’s (CCP) approach to law (Xinhua, October 28). While the fourth plenum of any Central Committee has traditionally focused on such “Party building” topics, it is worth underscoring that they also contain important instructions for every other policy topic. For example, former Chinese president Hu Jintao designated the expansion of international propaganda a “major strategic task” at a propaganda conference in 2003 (Xinhua, December 8, 2003), a task the Fourth Plenum of the Sixteenth Party Congress carried the following year. The same 2004 plenum decision document also carried the strategic directive to “contain Taiwan independence,” an important adjustment that would define PRC policy toward Taiwan for years to come (People’s Daily, September 20, 2004).

CCP and Law: Links to Policy, Values and Authority

Because of the strong linkages between domestic and foreign policy, analysis of the latter necessitates some analysis of the former for context. Much ink has been spilt on the best way to translate the Party’s pursuit of the phrase, “to use law to rule the country” (yifa zhiguo), a central theme of the recently concluded Plenum. As others have pointed out, the Party’s interest in bolstering the country’s legal infrastructure stems from its pursuit of a more balanced, sustainable model of economic growth and the development of reliable and efficient government and social services to address the root causes of social discontent (New York Times, October 20).

One way to understand the Party’s approach to law for domestic policy is to thus recognize that the CCP seeks the development and enforcement of laws and institutions under the conditions that these: first, serve the Party’s political objectives; second, reflect values that reinforce the legitimacy of the CCP’s authority and its political system; and third, enable China’s leaders to retain final say over the enforcement of the laws. Since these tenets of the Party’s views on law also guide the Chinese government’s international actions on legal issues through Chinese foreign policy, these points merit closer examination.

The Party’s rule through law starts with its policy objectives. Indeed, Chinese officials routinely depict the Party’s policies and the government’s laws as intricately related. At a central work conference on law and politics, Chinese President Xi Jinping explained that the CCP’s policies and the country’s laws “both reflect the people’s fundamental will and are essentially in conformity with each other” (Seeking Truth, January 8).

The Party’s top strategic priorities remain the elevation in the comprehensive standard of living for the people and the revitalization of the nation as a great power, ideas at the center of President Xi’s “China Dream.” To achieve these goals, Party leaders recognize that they must increase their overall governance ability, which in turn requires a greater reliance on laws, institutions and policy mechanisms. At a conference earlier this year, Xi stated that the Party’s “mission” is to find a “stable and effective governing system” to ensure the nation’s rejuvenation (Xinhua, February 17). A People’s Daily commentary has elaborated on this point, explaining that the development of “leadership and organizational systems” is “more fundamental, comprehensive, stable and long lasting” than less institutionalized forms of authority (People’s Daily, April 14).

In addition, the CCP regards its system of law as based on a set of values that reaffirms its authority. One scholar explained that a country’s core values represent its “ideological sovereignty.” He explained that adherence to the Party’s core values provides an “institutional guarantee” that the legal and governance system do not conflict with the political system dominated by the Party (Seeking Truth, April 16). Reflecting this point, in December 2013, the CCP issued detailed directives aimed at “bolstering socialist core values” and promoting the “Chinese dream of national rejuvenation.” Among the socialist core values sought by the CCP are “national values” of “prosperity, democracy, civility, harmony, freedom, equality, justice and rule of law.” It also includes “individual values” of “patriotism, dedication, integrity and friendship” (Xinhua, December 23, 2013).

The belief that laws and institutions should serve the needs of the CCP’s political objectives and support the legitimacy of its political system is reinforced by the principle that the Party should control the articulation and implementation of law. This principle can be seen in the idea, captured in the Plenum decision, that the Party holds a “leadership position” in all steps of developing and enforcing law. The basic idea is that the Party leaders set the policy goals and then develop laws and legal mechanisms to help the Party realize its objectives in a stable, efficient manner.

Under these conditions, law is not an alien, “objective” tool of statecraft that can help or hinder the Party in realizing its goals. Instead, the CCP views a robust system of laws and institutions as a necessary and useful tool for realizing policy objectives in a manner that reinforces its legitimacy. Just as the Party wants Chinese law to serve its domestic policy objectives at home, the Chinese government wants international law to serve China’s international policy objectives abroad.

Foreign Policy Through International Law

These points provide necessary context for analyzing the Fourth Plenum’s directives on foreign policy. China’s leaders do have a strong incentive to support a more rigorous enforcement of international laws, but they have an equally strong incentive to revise those laws to better accord with the Party’s strategic objectives and political values at home and abroad. In addition, China has a strong incentive to promote reforms in the international order that enhance its ability to control the terms of enforcement.

The Fourth Plenum decision clearly directed officials to support and enforce international law. It called for officials to “perfect internationally oriented legal and regulatory systems.” Senior Chinese leaders in recent speeches have also emphasized the importance of upholding international law. In one speech, President Xi argued that all countries should “jointly promote the rule of law in international relations.” He explained that this required all parties to “abide by international law and well-recognized basic principles” (Xinhua, July 7). Similarly, Foreign Minister Wang Yi recently declared that countries should “make joint efforts to promote the rule of law in international relations” and “abide by international law and universally recognized basic principles governing international relations.”

However, the Fourth Plenum decision also makes clear that upholding of international law is strongly influence by how much those laws serve China’s strategic objectives. As an increasingly powerful nation, China is finding the possibility of employing and shaping international laws and institutions an attractive option for maximizing its interests. As Wang Yi put it, the promotion of international rule of law “serves China’s inevitable needs for peaceful development (Chinese Foreign Ministry, September 28). The most important of these strategic objectives remains the imperative to shape a favorable security environment and to secure core interests.

The imperative to shape a favorable security environment can be seen in the directives to increase involvement in the creation and enforcement of international law and in the instructions to control transnational threats. The fourth plenum directed officials to “vigorously participate in the formulation of international norms” and “strengthen our country’s discourse power and influence in international legal affairs.” The decision also called for expanding involvement in international judicial efforts to target international “terrorists, separatists and religious extremists,” as defined by Chinese authorities. This suggests China may be more willing to provide some level of support to international law enforcement or political efforts that target terrorist or other extremist groups, but only if Beijing judges that such groups could contribute to unrest in Xinjiang and Tibet.

These instructions also reflect broader currents that seek a revision of international norms to favor Chinese interests. In one recent speech, President Xi declared that the five basic principles of peaceful coexistence have become the “basic norms governing international relations” as well as the “basic principles of international law.” Reflecting a desire to cultivate political allies to balance against the industrial West, Xi stated that the principles had “effectively upheld the rights and interests of the developing world” and “played a positive role” in building a “more equitable and rational” international political and economic order (Xinhua, July 7). China’s promotion of international groups that elevate the voice of developing powers or limit the role of the United States, such as the Shanghai Cooperation Organization (SCO), Conference on Interaction and Confidence Building Measures in Asia (CICA) and the East Asian Summit, exemplify this imperative.

The Plenum also carried directives to use law to “safeguard the country’s sovereignty, security, and developmental interests,” longstanding code for China’s core interests. This suggests China will invest more resources into shaping international norms, principles and laws to better defend China’s right to control its core interests. A symptom of this trend is the Fourth Plenum’s directive to “strengthen internationally oriented legal services” and “safeguard the proper interests of our country’s citizens and persons abroad.” This suggests China will invest more resources toward legal support to the implementation of trade agreements, civil and economic litigation, disputes over property rights and the defense of Chinese businesses from anti-dumping and other trade protection measures, among other needs (see, for example, the China International Conference for Commercial Legal Services, held May 29–30).

But the directive also carries important implications for China’s approach to sovereignty disputes with other countries. It is clear Chinese officials do not see greater engagement in international law as a risk to its sovereignty claims. As President Xi has repeatedly emphasized, China has no intention to “compromise its core interests” (Xinhua, March 11). An improvement in the use of legal and administrative measures merely serves instead to complement the government’s use of economic, civil, maritime and military resources to consolidate de-facto control of all of its claims. This does not mean China will now participate in the international legal venues preferred by the United States and its allies, however. The United States, after all, has traditionally shown considerable reluctance to back international courts that rule against its interests. In the legal case before the International Tribunal on the Law of the Sea (ITLOS) put forward by the Philippines, China is similarly unlikely to participate in the suit because the outcome is not likely to favor its interests. Moreover, participation in the suit would represent an internationalization of an issue China has long sought to keep bilateral (see China Brief, June 4). China will instead likely invest more resources into devising and disseminating new and retooled legal arguments that reaffirm its sovereignty over the South China Sea and de-legitimize the involvement of Association of Southeast Asian Nations (ASEAN), the United States and other international actors.

The Fourth Plenum also underscored China’s interest in strengthening international institutions over which it wields significant authority, especially the United Nations. Foreign Minister Wang pointed to the UN Charter as a “solid foundation for building international rule of law through the true and universal application of international law in all countries.” China’s possession of a veto vote makes the United Nations an appealing vehicle for articulating and enforcing international law. Wang also called for diluting the power of the United States and its industrialized allies when he advocated for “an equal and democratic participation in making international rules” by increasing the role of developing powers. This is likely to mean that China will keep seeking ways to advocate for the interests of itself and other rising powers through institutions such as the G-20 and working groups within the United Nations, such as the International Telecommunication Union (ITU). Wang also argued for an interpretation of law more responsive to Chinese preferences when he stated, “national and international judicial institutions should avoid overstepping their authority in interpreting and applying international law” (Chinese Foreign Ministry, September 28).

Implications for the United States: More Competition and Cooperation

China’s growing interest in international law and institutions should not be read as a sign of growing sympathy for the exercise of U.S. power. On the contrary, it is more accurate to view this development as evidence that China intends to compete more effectively with the United States in the “court” of international opinion and legal authority, even as it seeks to sustain stable and cooperative bilateral ties. In this sense, such behavior in the field of international law would complement its competition with the United States for influence in the domains of finance, trade and political influence, especially in Asia (see China Brief, November 7, 2013). At the same time, there remains considerable ground for China and the United States to sustain international cooperation.

Beijing is developing a competitive philosophy of international law to displace those elements of the international order that do not serve its purposes. China has put considerable energy behind the ideas and concepts related to the five principles of peaceful coexistence, which reverberate through many important Chinese diplomatic concepts, such as the “new Asian security concept,” “new type great power relations,” and the “harmonious world.” The principles and derived concepts at bottom support the development of a multi-polar order characterized by a functional equivalent of spheres of influence through which great powers address common threats and resolve disputes in overlapping regions via negotiation and dialogue.

Chinese authorities appear intent on turning on its head the argument that China should “adhere to international norms and laws” by casting the United States and its allies as the irresponsible outliers to internationally accepted behavior. Reflecting themes commonly seen in Chinese commentary, Foreign Minister Wang stated that the main obstacles to the promotion of international rule of law rested with countries that practiced “hegemonism, power politics and all forms of ‘new interventionism,’ ” which he said pose a “direct challenge” to “basic principles of international law.” He sharply criticized the “double standard approach to international law” in which the same unnamed countries “use whatever suits their interests and abandon whatever does not.”

And yet, despite clear signs of growing competition, China retains with the United States powerful incentives to maintain high levels of cooperation. The economies of both countries dominate the world economy and remain deeply intertwined. Moreover, although China chafes at aspects of the international order, it remains a major beneficiary of the system overall. China gains enormously from the trade and financial regimes defined by the World Trade Organization and related institutions, as well as the authority granted it within the United Nations and related bodies. Moreover, the expansion of economic and other interests into the far reaches of the globe and the proliferation of transnational threats drives China to seek greater cooperation with the United States and other nations. The agreement by U.S. President Obama and President Xi to cooperate politically at some level against the Islamic State organization is merely the latest symptom of this reality (Reuters, November 2). As Foreign Minister Wang acknowledged, “The more China develops, the greater its needs to cooperate closely with other countries and the more it desires a peaceful and stable international environment” (Chinese Foreign Ministry, September 28).

Whatever one may think of the legitimacy of China’s proposed principles, values and legal arguments, these will almost certainly appear with greater frequency and emphasis in the coming years. China’s successful collaboration with Russia to push for a revision of norms and constrain U.S. authority in cyberspace should be seen as a harbinger of future Chinese and Russian collaboration (Bloomberg, March 3). Beijing will continue to scan the existing architecture of international norms and principles, upholding those that serve its purposes and seeking partners to revise or circumvent those which it finds counter to its interests. While this may always have been true in the past, the sheer amount of resources available to an increasingly powerful China carries considerably more consequences for the world today.

China’s growing appreciation of the utility of international law opens opportunities for the United States to develop policies that accommodate Chinese concerns while upholding the integrity and stability of norms and principles favored by the great majority of the world’s nations. To the extent that the United States and its allies demonstrate to China that existing norms, laws and institutions provide the best means of addressing its concerns, the United States can minimize the damage to its credibility and protect the overall stability of the international order. Balancing the demands to defend U.S. interests, maintain the integrity of the international system and respond to Chinese concerns will require considerable creativity, flexibility and courage on the part of the United States, China and world policy makers to meet the challenge.