ArticlesVol. 1, No. 2, Fall 1987

The Development of International Law in Post-Mao China: Change and Continuity

Abstract

International law as a behavioral guide in international relations seems to be in a precipitous decline in its traditional strongholds in the West, especially in the United States under the Reagan Adminis- tration. The constitutional mandate that “all Treaties… shall be the Supreme Law of the Land” seems to have fallen by the wayside, and the UN Charter, an international treaty of the highest order, has long since lost its normative potency and relevance in constitutional debates on U.S. foreign policy.

However, to extrapolate about the future prospects of interna- tional legal order from the global unilateralism of one superpower is to miss the context of a larger, evolving global reality. The perception of the role of international law in the context of international affairs has changed considerably in the hitherto forgotten two-thirds of humankind. Translating its numerical power into “normative power,” the Third World as a collective global actor has now turned the United Nations General Assembly into the central global forum for projecting its will as the opiniojuris communis and for establishing itself as the shaper of the future international order. The case of Nicaragua v. United States is the latest expression of a new willingness of a socialist David to challenge a capitalist Goliath in the principal judicial organ of the United Nations. Yet another reminder of the changing nature of contemporary international law is the legal development that has taken place in post-Mao China.

This article is concerned with the legal dimension of Chinese international relations in the post-Mao era. Specifically, the article centers on the question of how and to what extent the changes in leadership and policy at home have affected Chinese attitudes toward, and principles and practices of, international law. While its focus is largely limited to the post-Mao period of 1977-1986, the article attempts to provide a diachronic analysis, drawing upon relevant findings about China’s principles and practices during the Maoist period as a baseline for assessing the changes and continuities in the Chinese theory and practice of international law in the past decade.