The Playground of International Law: China’s Perspective

By Professor Bob Berring

China’s actions in the world of international law puzzle some commentators. China has signed on to a wide variety of international treaties, appearing at times to view them as aspirational rather than binding. Having never recovered from reading Lakoff and Johnson’s Metaphors We Live By, I turn to that tool of analysis. Perhaps it will help.

Children on a playground are a fine metaphor to employ when considering issues of international law and sovereignty. On this playground no adults are present. The children play amongst themselves. Each child is a separate being, governed by her own free will, possessing her own set of attributes. Some children are large and powerful, some are small and weak. Some are inclined to be cooperative and conciliatory, others are aggressive. Bullies, cowards, saints, and devils make their appearances. The children form alliances, make friends, and try to construct agreements. If one large bully emerges, others may group around her, motivated by fear, admiration, or the need to follow a leader. Weaker, smaller children may try to propitiate the larger ones, or they may band together to protect themselves. Some children may wish to remain apart from the others, to join no group. Some may be wealthy, some may be poor. The very poor children may be preyed upon or simply left alone by the more organized. There is no equity in the distribution along any vector: size, strength, attitude, wealth, and health vary widely. So long as there is no adult enforcement, things play out among the children.

Each child has a history, but the conditions on the playground frequently change. The general climate may be better or worse. One child might possess a new device that gives her a distinct advantage. Each has a memory of what went before and governing emotions may conflict internally but if the child is to project herself as strong enough to maintain her independence, let alone to project her will, then she must show singularity of purpose. Alliances shift, arrangements change but in the end, sans adults, strength and cunning rule the day.

One day, the children sought to create a rule structure to regulate behavior on the playground, because the playground would function much more smoothly if the children agreed to basic rules about day-to-day life. Many of the rules simply made sense, and everyone agreed to them. Some rules were more demanding. While everyone might agree with them in principle, in application they caused difficulty. Some children would join in the promises only with reservations. Some would join with the thought in mind that the promise was a good idea, though not one that should impede self-actualization. One big set of promises were built around a “United Children” group that included each child as an equal. While this made the smaller children feel much better, the strongest children never really had to obey, though they did so long as compliance caused them no harm. Lacking an adult with power, the strongest child could always assert her independence. In such a case, all of the children could join together to compel cooperation, but many had no stomach for a fight, and a truly powerful child, who was rich enough to have the best tools, might prevail anyway. Such children often had friends who would join them for any of an array of motives. History taught that when most of the strongest children chose sides in a bilateral fight, widespread damage affected everyone. Fresh in the children’s consciousness was the memory of two enormous brawls that had ravaged great stretches of the playground, after which many children were never heard from again. All-out conflict made no sense to anyone in this setting, but the threat was ever-present.

My Playground

During my youth, two strong children dominated the playground. The Soviet Union and the United States each were large, powerful, and convinced that they knew how the playground should be run. Others gathered around them as allies, willing or otherwise. Some tried to stay out of the way. Bigger children often ignored or simply observed the smallest and least wealthy children. The Soviet Union’s fall from the top of the monkey bars left the United States as the most powerful child. Some theorists believed that the playground would no longer be the site of major confrontation, since the world had changed. But the United States found that being the sole power was more difficult than most had imagined. Some of the smaller children at the edges of field caused great problems. Keeping them in line took time. They were quick and they had little to lose. Some even threw rocks at the U.S. New groups began to form based on religious beliefs; a development that happened over and over again over time and could bring great grief. Some children thought that the U.S. was too selfish, that it should share some of its wealth. As often happens, the U.S. also came to take its place for granted, as if given to it by a higher power. A growing ego combined with less attention to exercise made the U.S., big and strong as it was, vulnerable.

One of the children, China, had once been strong, but for many years a cavalcade of problems had weakened him. China mostly stayed on his own side of the playground trying to mend. Stronger aggressive children exploited China ruthlessly. They decided that no rules applied to China. For China, so long a powerful, independent child, one proud of his accomplishments, these were terrible days. China wandered, lost and bereft, for so long that everyone forgot about his past glories. Some thought that China might disappear.

But in time, China began to heal. The speed of the rejuvenation was amazing. The U.S. wanted to help this child, to show the way, to teach him about how the playground should work. The way that the playground should work included the continued suzerainty of the U.S. China, waxing more and more powerful, did not see it that way. China knew from harsh personal experience that the promises of other children were worth nothing. Now that he was strong, China wanted more than anything to be viewed as one of the strongest, smartest and richest children. In the period of his sickness China had gained bitter wisdom of the ways of the playground. Rules that protected the U.S. and its friends did not offer surcease to China. The strong children had lied to China, cheated it, stolen from it. One of the reasons that China wished to grow strong was to assert itself. It wished to shed the image of the sickly older child and to evolve into a vibrant strong man. Strong enough to protect himself and his interests and never to be subject to any rules that it did not choose to follow. China discovered that by joining in some of the shared promises, he more easily could gain entry into the world of the big children. But China knew that the strong children broke promises as needed, indeed they had made secret promises that hurt China. China would play the game, but he always remembered that in the end, strength and independence was more important than anything else.

China and International Law

For China, a major element of global acceptance as a modern power translates into joining in international compacts. The Chinese are signatories to a wide array of international treaties. Given continuing criticism of China’s human rights policy by the United States, China’s accession to a wider range of human rights treaties than the United States is puzzling. A welter of reasons explain this phenomenon but the playground metaphor focuses on China’s view of sovereignty. While signing an international treaty may set aspirational principles, China never loses sight of its self-determination. A sovereign nation’s business is just that, its business. What happens within a sovereign nation’s borders is not subject to outside intervention. In the 19th Century China learned how disastrous external intervention, complete with high-minded talk of modernization, civilization, and even religious enlightenment can be. Ergo China on the one hand is an eager participant in treaty formation, but on the other hand is a reluctant actor when matters of enforcement arise. This tracks China’s actions on the United Nations Security Council. One may disapprove of the Syrian regime, but intervention is a mug’s game. The world taught China a pragmatic lesson in the conduct of international law and the value of paper agreements. China wants a seat at the table, but cannot countenance interference in internal matters. None of the really strong children ever have done so. That’s the rule of the playground.

Note

Two reports, written fifteen years apart in 1998 and 2013, illustrate the aspirational versus the enforceable.