Shubhangi Agarwalla

OBOR is a perfect opportunity to undertake the task of critically engaging with non-western perspectives of international law.

Much has been written about the One Belt One Road initiative (hereinafter OBOR), and understandably so. It is one of the most visible foreign policy agendas of an otherwise closed and arguably self-contained country. That the OBOR has importance in the Chinese political agenda is evident from its continuous reinforcement in various international forums, joint statements by Ministers, inclusion in the 2016 Five Year Plan and the Constitution of China. While there is vast scholarship on the potentiality of the initiative, whereas there is scant attention paid to the potential structural implications of the OBOR on international law. This post aims to remedy that by looking at the ideational dimensions of the initiative. A limitation of my work lies in the fact that the BRI and its different ramifications is a continuously evolving one, especially with respect to the legal instruments underlying the initiative.

A prima facie glance at the discussion surrounding the initiative would lead you to believe that China’s aim is to launch a massive infrastructure and connectivity project. The acquisition of Hambantota Port may demonstrate the the Chinese aim is much more proximate, ie  gaining spatial control over strategic regions. However, it might not be wise to assume that there is a singular Chinese aim.  While the events unfolding in Sri Lanka can lead one to argue that China is simply couching its hegemonic objectives in inclusive and participatory language, the fact that there is a certain historical claim underpinning the OBOR project to revitalise the Silk Road spirit which is “historic and cultural heritage shared by all countries around the world” a trend towards “a multi-polar world” makes it less easy to dismiss the project purely as “Chinese Hegemony.” I contend there is also a visible contestation to the ‘universal’ tenets of international law. This is also particularly significant given that the OBOR potentially stands out in a region which is on the whole rather characterised by a lack of a unified voice, a certain reluctance to engage within international organisations and with international obligations.

I begin with a brief clarification of how I understand universalism and particularism. Several scholars have defined the term differently. Under the classical understanding, universality signifies that international law is valid for, and binding on all states on a global scale and if thus defined by its inclusiveness and global reach. On the other hard, some scholars have pointed out that international law is Eurocentric in its epistemology and colonial in its genesis (see Anghie) which impedes it from achieving true universality. Some locate their criticism of universalism in the unequal economic and power relations in international institutions or the culturally constructive character of post-colonial international law. In a nutshell, contrary to classical thinkers, what international law calls universal is often with particular and exclusive reference to the West. Thus, there can be many particular approaches to international law that have equal legitimacy (or the lack thereof) and my argument is that China has been offering one such approach, which due to the potential and magnitude of the OBOR project cannot be further ignored.

In the 1970s, China’s formerly isolationist approach to international law gave way to one that was influenced by the Panchsheel Treaty signed by India and China. The core tenets of the treaty heavily emphasise the concept of “state sovereignty”, i.e. a State’s full right and power to govern itself and control its affairs without any outside interference from any other state. These principles have been frequently invoked by China to oppose outside interference in issues such as the Tibetan independence movement, which impinge on her sovereignty and territorial integrity. China considers certain treaties, known as “unequal treaties”, as non-binding. “Unequal treaties”, a term coined by China, refer to a group of treaties through which she was coerced to concede certain territorial rights to Western powers. Given that the treaties were signed during the heyday of imperialism, China feels that the treaties violate its sovereignty and integrity since it negotiated them from an unequal position.

The claims made by China in the South China Sea dispute are a useful point of reference, as they represent a strong Chinese contestation to international law as it currently stands. The case was brought under the UN Convention on the Law of the Sea (UNCLOS) by the Philippines against China. The tribunal had in 2015 assumed jurisdiction over parts of the dispute and formally reaffirmed those conclusions and reasoning in its award on the merits in 2016. This was done despite a 2002 China–ASEAN Declaration on the Conduct of Parties in the South China Sea, the Chinese declaration of 2006 under Art. 298 UNCLOS by which the State had activated the exceptions to the compulsory dispute settlement, and China’s non-appearance in the proceedings. The award of 2016 rejected Chinese claims to historic rights over islands and rocks. In its claims, China made no distinction between island and sea areas, and made the case that the long history of “trade, navigation and fishing in relevant areas of the South China Sea” prove something more than the exercise of high seas freedoms because this history was accompanied by Chinese efforts to exercise jurisdiction over relevant waters including through “establishing administrative setups, strengthening defense at sea, conducting naval patrols, mapping, combating piracy and rescuing foreign ships in distress.” This was clearly contrary to how the law of the sea works. For historic rights or title to be found there must be evidence not only of their continuous assertion of rights by the claimant State but long standing acquiescence on the part of other States. In any event, this award fueled new suspicion against international law. It strengthened the China’s belief that it was the unfairly treated party in the international order.

OBOR is the latest issue that gives us a peek into Chinese ambitions to influence both geographical space and legal discourse. On the one hand, the OBOR speaks in a universal language to all states concerned, in pursuance of traditional universal values of international law and global governance goals. However, on the other hand, there is as much a flavour of a certain specific Chinese approach, through China’s emphasis of an absolutist concept of sovereignty and non-intervention and the like.  This approach is encapsulated by the characterisation of the OBOR project as one that will promote a “Community of Common Human Destiny” and “Community with Shared Future for Mankind.” This is consistent with how it has operated in the past. It has claimed that the UN will continue to remain the “most universal and authoritative organization of sovereign States, has a place and role in the world that cannot be supplanted by any other international organization (…)” while simultaneously expressing that it seeks the “establishment of a new international order”, which will be based on ‘multi-polarity’ where “(a)ll countries, large or small, strong or weak, rich or poor, are equal members of the international community (…)” which is seemingly a direct reference to the fact that the UN system with its entrenched preferences for the West has not adequately responded to the voices of the ‘rest.’

The most visible site of contestation is how it envisages the functioning of the Asian Infrastructure Investment Bank (hereinafter AIIB) as opposed to the IMF or the World Bank. It is crucial to make the point that the AIIB was not established to solely drive investments comprising the BRI and nor was it conceived to finance project solely in Asia. In fact, the founding Charter or the rules under the AIIB makes no reference to the OBOR. The importance of considering the AIIB lies nonetheless in the fact that academics and policy analysts have variously argued that both the AIIB and the Silk Road Fund were the twin set of financial institutions that were conceived for the purposes of facilitating the BRI.

First, while West-centric institutions like the IMF and WB, where the developing nations voting-share have been always disproportionate to their size and influence in the global economy, the AIIB would have a more appropriate representation of the East.

Second, another critique of World Bank and IMF policy conditionality is that the development financing arms of these institutions place an unacceptably high number of detailed conditions on loan recipients, who are often among the world’s poorest countries. Many of these conditions promote policy goals that may be politically controversial such as the privatisation of basic services or trade liberalisation. They are seen as closely connected to the policy prescriptions favoured by the United States. On the other hand, AIIB Statute Art. 31 (2) clearly states-“…The Bank, its President, officers and staff shall not interfere in the political affairs of  any member…Only economic considerations shall be relevant to their decisions...”

Lastly, while the IMF and WB took several decades to develop and recognise the importance of social and environment impact of its conditionality measures, and only after repeated protests, the AIIB makes social and environmental impact a priority, so much so that it is included in its constituting document.

However, at the same time it is clear from its Articles Of Association of the AIIB that China will have an undoubtedly significant voting-share as compared to the rest of the partners. Since a significant amount of funding within the BRI will be undertaken bilaterally through Chinese domestic and policy banks, conditionality is as much a part of the lending programmes. The kind of conditionality when it comes to aid is almost entirely political; for example, a Chexim concessional loan requires recipient countries to maintain diplomatic relations with the PRC. Indeed, all the African countries to which Chinese policy banks have lent money have diplomatic relations with the PRC (with the exception of Swaziland). Another kind of condition could be to support China’s positions on various global issues. This has larger trade implications as China is known to have asked its trading partners to support the diplomatic isolation of Taiwan.^[1] As an example, Beijing pressured Hanoi to exclude Taiwan from the APEC summit in Vietnam in 2006. When Hanoi refused, Beijing temporarily halted aid to Vietnam.

There is also significant literature on how China is massively investing in information technologies through the OBOR to rewrite the rules of the cyber-space.^[2] In fact, the OBOR white paper calls for “jointly improving the transparency of technical trade measures” and creating an “Information Silk Road,” or a digital Silk Road. Based on public documents, China’s cyber strategy is determined to achieve cyber sovereignty. In principle, this describes the idea that sovereign nations should be granted control over networks and data within their borders, to manage as they see fit. Interestingly, in its section on “Reform of the Global Internet Governance System”, the white paper says that “China will push for institutional reform of the UN Internet Governance Forum to enable it to play a greater role in Internet governance, strengthen its decision-making capacity, secure steady funding, and introduce open and transparent procedures in its member election and report submission.” Thus, it is questionable whether the Western historical pedigree of international law is fundamentally denied by China. It does not seem to be demanding a structural upheaval of the international order but to influence and inform the current IL discourse internally. Moreover as demonstrated by the shortcomings of the AIIB, it is also questionable whether the realisation of China’s vision offers an actual alternative to the Western infused universalism.  But what is apparent is that international law scholars and practitioners must use the OBOR as a perfect opportunity to undertake the task of critically engaging with non-western perspectives of international law.

^[1] Farnsworth, E. (2011) “China‟s emerging role in the Americas”. Current History, vol. 110 pp 56-61

^[2] Francoise Nicole, “Economic development as a motor of Chinese Engagement” pp 56, 59

Shubhangi Agarwalla is a III Year BA LLB (Hons.) student at National Law University, Delhi. She has an active interest in Public International Law, and has recently completed an internship at the Max Planck Institute in Germany. 

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