Scholarly article on topic 'Regime Change, the Security Council and China: Table 1'

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Academic research paper on topic "Regime Change, the Security Council and China: Table 1"

© The Author 2015. Published by Oxford University Press. All rights reserved doi: 10.1093/chinesejil/jmv060; Advance Access publication 19 November 2015

Regime Change, the Security Council and China

Matthias Vanhullebusch*

Abstract

China's stance on its Five Principles of Peaceful Coexistence is diametrically opposed to its evolving attitude within the Security Council in a number of dossiers where it has lent its support either tacitly or affirmatively to resolutions adopted that endorsed, facilitated, reversed and prevented regime change since the end of the Cold War. Rather than measuring such developments from a conflictual perspective, China's increasing contribution in the international legal and political order, with a view to promoting a so-called harmonious world, may be seen in light of the international law of co-progressiveness and theory of relationality and relational governance respectively espoused by two Chinese international law and relations scholars Sienho Yee and Yaqing Qin.

Assistant Professor of Law, Executive Director of the Asian Law Center, KoGuan Law School, Shanghai Jiao Tong University (PhD, School ofOriental and African Studies, University of London); Series Editor of Brill's Asian Law Series and the Routledge Studies on Asia in the World. The author wishes to thank the editors and the anonymous reviewers for their useful comments on this paper. The paper was completed on 21 September 2015. Contact: matthias.vanhullebusch@gmail.com Noah Feldman, Cool War: The Future of Global Competition (2013).

I. Introduction

1. The on-going humanitarian and political crises in Syria have been symptomatic of V

the present stalemate between Western allies versus China and Russia.1 The end of the unipolar world and asymmetrical power relations across the globe have serious implications upon the Security Council's willingness and ability to assume responsibility in the face of international threats. Ranging from an authorization to use of force under the collective security framework pursuant to Chapter VII of the UN Charter to a referral of a situation to the International Criminal Court (ICC) under the same Chapter has been ever subject to conflicting values of sovereignty and humanitarian-ism. Such tensions have undermined the legitimacy of the Security Council to act

14 Chinese Journal of International Law (2015), 665—707

responsibly, overcome its intransigence and transcend its conventional reproaches of selectivity and inconsistency.

2. At the heart of these most recent calamities, lies the discussion to influence regime change2 through those various tools at the disposal ofthe Security Council. Their deployment - through the adoption of a resolution - can mark a significant precedent, change international legal discourse and have serious consequences on the power relations within the Council and amongst regional and domestic share- and stakeholders in o such on-going conflicts. China has been very cautious to express its attitude on a par- l ticular issue before the Security Council and has balanced between intervention and d

respect of the territorial integrity and the political independence of nations as prescribed r

by the UN Charter and its own Five Principles of Peaceful Coexistence, namely mutual 3

respect for each other's territorial integrity and sovereignty, mutual non-aggression, :

mutual non-interference in each other's internal affairs, equality and mutual benefit, h

and peaceful coexistence.3 S

3. Noticeably, in at least five cases - Haiti, Sudan, Ivory Coast, Libya and Mali - o China has defined and refined its standpoint concerning regime change where it 0 either reversed, triggered, approved, attempted or prevented such change of leadership ° as a(n) (in)direct outcome of the Security Council's decision regarding the situation 3 in those nations. Depending on the nature of the on-going conflict - coup d'état, r terrorism, rebellion or foreign intervention - which threatened international as well 3 as regional peace and security and the nature of the regime in place - democratic or n authoritarian rule, the Security Council adjusted its strategy to accommodate the § particular needs on the ground. The nature of intervention ranged from (multilateral) 3 military operations - including peacekeeping and coalition missions under the p Responsibility to Protect (R2P) doctrine - and referrals of situations before the

Regime change is understood here as attempts of the Security Council to influence internal as well as external conditions to challenge and respond to the survival or capitulation of a political or military leadership in a particular nation - regardless whether this leadership has come to power initially through a democratic process or by violent means or has been ousted by internal rebellion or foreign intervention -within or outside the UN framework of individual or collective self-defence. Christophe Holland, Chinese Attitudes to International Law: China, the Security Council, Sovereignty and Intervention, NYU JILP Online Forum (2012 July), 1; Phil C.W. Chan, A Keen Observer of the International Rule of Law? International Law in China's Voting Behaviour and Argumentation in the United Nations Security Council, 26 Leiden JIL (2013), 875; Joel Wuthnow, Chinese Diplomacy and the UN Security Council: Beyond the Veto (2013). China has also marked the 60th anniversary of the proclamation of its "Five Principles of Peaceful Coexistence" on 28 June 2014. See XI Jinping, Five Principles of Peaceful Coexistence Are Not Outdated, 28 June 2014 (http://big5.xinhuanet.com/gate/big5/news.xinhuanet.com/english/ china/2014-06/28/c_133445548.htm).

ICC. They have been the outcome of a deliberative process amongst the members of the Security Council at that given moment in time.

4. In each respective case, particular values of the international legal and political order were at stake, namely peace, humanity and accountability, which warranted a response of the international community and the Security Council in particular to ensure their respect. Depending on the additional resources and support of other nation States

as well as other regional organizations, the Council has designed often multi-layered o

solutions in redressing the infringements against those values at stake. In this regard, l

particular action aiming to restore democracy or sovereignty respectively in the case d

of Haiti and Mali, to enhance protection for the civilian population in the case of r

Ivory Coast and Libya, and to prosecute alleged perpetrators of international crimes 3

falling under the jurisdiction of the ICC in the case of Sudan and Libya, were in :

most of those cases here either preceded or followed by a (hybrid) UN peacekeeping h

mission in the country in question. S

5. Consequently, only coordinated and complementary measures taken by the o Council could resort proper effect, namely the restoration and maintenance of inter- 0 national peace and security. Moreover, such actions under the paradigm of human se- ° curity have further blurred the boundaries of the normative framework of intervention a and use of force since Kosovo until Ivory Coast and Libya. Those shifts within the nor- r mative framework from State sovereignty towards community concerns affecting the a interests of the international community as a whole have not only expanded the n grounds for the Security Council to act upon new threats to international peace and se- r curity - regardless whether they were inadvertently affecting regime change, they have P undeniably broadened the modus operandi of the Council to tackle those broader cat- p

egories ofviolations of human rights in a given jurisdiction prior and after intervention - S

yet generally with the consent of the host State. a

6. What distinguishes those rather successful cases dealt with by the Security Council - 3 ■ at least at the level of decision-making rather than in its actual outcome on the ground, is r

that they have been exemplary in defining and broadening the scope of intervention in 3

line with the other parallel on-going political and legal developments such as the World F

Summit Outcome establishing R2P and the Rome Statute granting referral powers to ^

the Security Council. Beyond the qualification of new threats to international peace and 3

security, the dire humanitarian necessities met in most situations have widened the P

scope for members of the Council to take immediate action and consequently build 2 up greater consensus in particular amongst the permanent members to seek solutions which can alleviate human suffering of the civilian populations affected by violence. Simultaneously, the Council made sure that in the majority ofthose cases its interference would be further supported by the parties involved in and affected by those conflicts, whether nationally, regionally or internationally alike.

7. China however has not only paid sufficient attention to the crystallization of international norms affecting the competence of the Security Council as well as the

fundamental principles and purposes of the UN Charter, it has equally raised questions as to how the practice of the Council can really meet the threshold to shape international custom within the meaning of Article 38 of the Statute of the International Court of Justice and whether or not such new norms may actually find universal application if they were not supported by a majority of States. Western international law and relations scholarship has traditionally interpreted China's attitude towards non-interference as

being conflictual in its enunciation, interpretation and application.4 As a result, o

China's position has often been reduced along contradictory realist or liberal perspec- l

tives on non-interference especially in light of its ambivalent position with regard to d

those situations of regime change discussed before the Security Council here. Such mis- r

understandings have not only affected the decision-making on behalf of Western 3

powers in the Security Council, they are equally reflective of the distinctive epistemo- :

logical frameworks which have driven those particular outcomes and more importantly h

their premises.5 S

8. In this regard, there is a growing need to transcend much of these differences which o

inevitably will increase as China is willing - and at the same time expected - to assume 0

greater responsibilities on the international scene and in particular through the Security °

Council. This article will draw on the theoretical frameworks of two Chinese international a

law and relations scholars to shed light on China's contribution towards the so-called r

international law of co-progressiveness or on the basis of the theory of relationality as a

advanced respectively by Sienho Yee and Yaqing Qin. Though China's international n

4 Hungdah Chiu, Communist China's Attitude Toward International Law, 60 AJIL (1966), 245; Jenny Clegg, China at the Global Summit Table: Rule-taker, Deal-wrecker or Bridge-builder? 17 Contemporary Politics (2011), 447; Jacques deLisle, China's Approach to International Law: A Historical Perspective, 94 ASIL Proceedings (2000), 267; James V. Feinerman, Chinese Participation in the International Legal Order: Rogue Elephant or Team Player? 141 China Q (1995), 186; Ann Kent, China's Participation in International Organisations, in: Yongjin Zhang and Greg Austin (eds.), Power and Responsibility in Chinese Foreign Policy (2001), 157; Ann Kent, Compliance v Cooperation: China and International Law, 13 Australian ILJ (2006), 19; Samuel S. Kim, The People's Republic of China and the Charter-based International Legal Order, 72 AJIL (1978), 317; Andrew C. Mertha and Ka Zeng, Political Institutions, Resistance and China's Harmonization with International Law, 182 China Q (2005), 319.

5 Barry Buzan and Richard Little, World History and the Development of Non-Western International Relations Theory, in: Amitav Acharya and Barry Buzan (eds.), Non-Western International Relations Theory: Perspectives on and Beyond Asia (2010), 197; Lily H. Ling, Worlds Beyond Westphalia: Daoist Dialectics and the 'China Threat', 39 Review of International Studies (2013), 549; Chengxin Pan, Understanding Chinese Identity in International Relations: A Critique of Western Approaches, 51 Political Science (1999), 135; Yaqing Qin, Why Is There No Chinese International Relations Theory? 7 International Relations of the Asia-Pacific (2007), 313.

image has casted doubts on its potential contribution to the international legal system, there is still enough room to explore here how international law - in particular sensitive areas where sovereignty and community interests are in conflict - can move forward progressively as long as there is sufficient trust amongst the various participants in international society by virtue of mutual understanding and cooperation between those international actors. Through the prism of regime change, one can identify from the Western and Chinese perspective how cooperation and conflict are essential ingredients in a harmonization process where the synthesis can ultimately become an effective norm in international law whose application is eventually supported by all members of the international community.

9. Therefore, this article will firstly address the cases discussed before the Security Council which have or may have impacted regime change in a number of countries and explore the Chinese position in the various debates leading to the adoption or the failure to adopt a resolutions. Secondly, it will situate China's evolving and often seen as contradictory stance on non-interference from the perspective of the theory on the international law of co-progressiveness and its role as a future leader State to shape international law accordingly. Thirdly, it will examine - from the Chinese perspective of relationality - how the process leading towards new international legal developments contributes to its ambition to achieve a harmonious world order.

II. Regime change and the Security Council II.A. The right to democracy

10. Regardless of the nature of the regime of the respective members of the Security Council, the Council has been seized with several situations which relate to the change of a democratic or authoritarian regime in a particular country that affected a

international and regional security. Other than the context of democratic elections and political negotiations, the Security Council traditionally condemns when such change of regime - irrespective of its legitimacy or legality - is accompanied with a degree ofviolence that triggers its mandate to maintain and restore peace and security. Evidently, the exercise of its responsibility is bound by the constraints of the UN Charter,6 namely a resolution either denouncing or reversing such regime change through the use of force has to be adopted with a qualified majority by the members of the Security Council - without the exercise of a veto by one of its permanent members.7

11. As early as 1994 when the transition of the apartheid regime moved South Africa towards a democratic and inclusive society, across the Atlantic, in Haiti, the new democratically elected President Bertrand Aristide was ousted of power by the

6 UN Charter, art. 24.

7 UN Charter, art. 27.

military. The US warned immediately about the destabilizing effect of this regime change for regional peace and security. As the guarantor of regional security in the Americas it brought the matter before the Security Council who adopted resolution 940 under Chapter VII of the UN Charter that authorized

8 SC Res 940 (1994), para.4.

9 SC Res 867 (1993). It is worth mentioning that China voted in favour of the establishment of the UN Mission in Haiti (UNMIH). Traditionally, China does not agree to support those peacekeeping operations in countries which entertain diplomatic relations with Taiwan. Haiti has formally recognized the self-governing island of Taiwan since 1954. China still considers Taiwan to be a part and province of Greater China. See Bates Gill and Chin-Hao Huang, China's Expanding Role in Peacekeeping, SIPRI Policy Paper, 25 November 2009, 14.

10 See Alex van Sickle and Wayne Sandholtz, The Emerging Right to Democracy, in: Wayne Sandholtz and Kendall W. Stiles (eds.), International Norms and Cycles of Change (2008), 310-311.

11 See also Steven Wheatley, Democracy, Minorities and International Law (2005), 129.

Member States to form a multinational force under unified command and control and, in this framework, to use all necessary means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti.8

12. The "Operation Restore Democracy" led by the US to reinstate Aristide into power took place simultaneously with the UN authorized peacekeeping mission in Haiti (UNMIH)9 that would smoothen the transition back to democracy.

13. It was unparalleled that the Security Council would profile itself as a staunch fore-fighter of democratic values and civil and political rights - something which ultimately belongs within the sovereign realm of nations and the self-determination of their peoples. However, when a State incarnating the sovereignty of its people does not respect those values, the international community intervened to safeguard democracy and human rights accordingly.10 This was the first time that the Security Council endorsed an operation that allowed for the return of a head of State back into his office after a coup d'état. Understandably, the moral leadership of the US after the end of the Cold War and the consecutive worldwide pull towards democratic governance have created a context conducive towards a universal respect for democratic values and a warning of the security risks it entails not to intervene at all - remember the lack of inaction of the international community during the 1994 Rwandan genocide.11 As a |

result, the US almost gained an unconditional support of most Caribbean and Latin American States in fostering such agenda of rebuilding the democratic foundations - including its leadership - of a virtually collapsed State like Haiti.

14. China however — still recovering from the Tiananmen incident — argued that an opposing trend towards peaceful and so-called "patient" negotiations of disputes and conflicts was developing in the aftermath of the Cold War instead. Acknowledging that the regime change in Haiti constituted regional instability and affected many countries in the Caribbean, it formally disagreed that pressurizing or resorting to use of force would solve the problem in Haiti accordingly and would rather deteriorate the situation. Although the Security Council determined that exceptional grounds were o present that justified the deployment of military means,12 China found that the UN l Charter doesn't permit such actions. It continued that "the practice of the Council's d authorizing certain Member States to use force is even more disconcerting because § this would obviously create a dangerous precedent".13 Consequently, China abstained 3 from its vote and emphasized its long-term commitment to engage in a dialogue and : peaceful negotiations to solve international disputes.1 h

15. Though only at a later stage, when evidence had shown that the security situation | did improve, China repeated that despite the success of the multinational intervention o it strongly opposed "interference in the domestic affairs of other countries and the use or ° threat of the use of force in international relations".15 Thus, freeing a people with ° outside force has never proven to be sustainable or desirable - for example in the a case of Afghanistan and Iraq by the US or of the Crimea by Russia.16 On the other § hand, one could argue that in this exceptional case where the Security Council author- a ized the use of force to restore a democracy, the implicit consent of the legitimate gov- n ernment in exile would still respect the principle of non-interference.17 In spite of its § warnings on precedents, China has always upheld this principle. The exceptional 3' means however chosen to resolving this crisis ran against China's stance on the use p

of force in international relations. The parallel pull towards a unipolar world and the |

consecutive management of regional and global security by the US remained a deep a

concern of China and would necessitate a new approach on its behalf to balance 3 ■

power within the Security Council and outside. r

12 SC Res 940 (1994), para.3. 3

13 Speech of Chinese Ambassador Mr LI Zhaoxing before the Security Council, S/ „3 PV.3413 (31 July 1994), at 10. 1

14 Speech of Chinese Ambassador Mr WANG Xuexian before the Security Council, S/ ^ PV.3430 (29 September 1994), at 6.

15 Speech of Chinese Ambassador Mr LI Zhaoxing before the Security Council, S/ PV.3470 (29 November 1994), at 5.

16 Arthur I. Applbaum, Forcing a People to Be Free, in: Lukas H. Meyer (ed.), Legitimacy, Justice and Public International Law (2009), 278.

17 Jonathan E. Davis, From Ideology to Pragmatism: China's Position on Humanitarian Intervention in the Post-Cold War Era, 44 Vanderbilt JTL (2011), 217, 235.

18 SC Res 1368 (2001).

19 SC Res 1373 (2001). See also Curtis A. Ward, Building Capacity to Combat International Terrorism: The Role of the United Nations Security Council, 8 J Conflict & Security Law (2003), 289, 294.

20 UN Charter, art. 51; North Atlantic Treaty, 34 UNTS 243, art. 5.

21 The Taliban government was only recognized by Pakistan, Saudi Arabia and the United Arab Emirates.

22 Speech of Chinese Ambassador Mr TANG Jiaxuan before the Security Council, S/PV.4414 (13 November 2001), at 19.

23 Speech of Chinese Ambassador Mr WANG Ying Fan before the Security Council,

S/PV.4497 (26 March 2002), at 14.

II.B. The war on terror

16. Since the terrorist attacks of 9/11, the Security Council was facing another type of violence which has fundamentally changed international peace and security. It authorized that by all means the international community should combat terrorism and by way of individual or collective self-defence the members and international community as a whole can respond to such actions of terrorist groups. In addition, deeper cooperation and information gathering and sharing between States shall permit to stop terrorist networks to flourish transnationally and to cut off their financial resources.19 In particular, on 7 October 2001, the US launched "Operation Enduring Freedom" against Afghanistan and the Taliban regime which until then had harboured Al-Qaeda who was responsible for the 9/11 attacks. By virtue of collective self-defence under the UN and NATO Charter,20 this intervention helped containing the terrorist threat emanating from that region.

17. The succeeding power vacuum after the defeat and change of the Taliban regime21 has been a major concern of the international community and the Security o Council in particular. While the global war on terror announced a new response to ° secure the world from terrorists, it did not fill the gap concerning the governance struc- ° tures and representation needed to replace those regimes which have been aligning with 3 terrorists. The diverse and tense political landscape of Afghanistan in particular has r made reconciliation across political factions, warlords, ethnic and religious groups a even more difficult. China has expressed its deep worries about "the greater dangers n of large-scale social chaos" and its repercussions for such a volatile region. A transitional S administration ought to represent the variety of interests of all groups in Afghan society § whose linkages can also be traced back to its neighbours. A comprehensive political p settlement with the support of the UN could improve the overall security and humani- g tarian conditions of the Afghan people.22 V

18. Since China is a neighbour of Afghanistan, "China has always been committed to B. the full settlement of the Afghan question", not only politically, security-wise, for hu- b manitarian reasons but also economically.23 Within this global logic of securitization, y China along with the other members of the international community has staged a §

unified front in combating terrorists across the world.24 China therefore urged to work

more closely together with the other countries in the region through its own collective

security framework of the Shanghai Cooperation Organization.25 Needless to say that

China in the Western autonomous region of Xinjiang has also been engaged in its own

fight against terrorism and separatist movements of the Uighur people who has ethnic

ties across many Central Asian countries.26 The spill-over of violence from Afghanistan

into Pakistan and its Waziristan region has renewed the global war on terror against the o

Taliban outcasts. Meanwhile, terrorist bombings and attacks have equally intensified in §

China and in particular in Xinjiang. Clearly, the cause of transnational terrorism pre- ^

cluded observing the principles of non-intervention and non-use of force. This prece- r

dent has been a catalyst for other nations in the world to reinforce and strengthen their |

efforts to suppress terrorism within their borders and beyond.27 p

19. In pursuit of the global war on terror, the US and its coalition of the willing h

intervened unilaterally in Iraq in 2003 - without the authorization of the Security S

Council - under the pretext that the weapons of mass destruction allegedly possessed .

by the regime of Saddam Hussein as well the latter's support for international terrorism 0

constituted a threat to international peace and security.28 In hindsight - after the US- 0

led intervention, the mandate of the Council was triggered since the security in Iraq a

continued to constitute a threat to peace and security and the Council had to deal 0

with the issue of belligerent occupation, transition and transfer of power to the new a

Iraqi authorities.29 While the Council did not address the (il)legality of the intervention, 3

it did endorse the change of regime and a new form of democratic governance advanced by r

the occupying authorities without the consent of the Iraqi people. Such adoption turns Jy

out to be consistent with the previous practice in Haiti and Afghanistan.30 China P

24 Kendall W. Stiles, Terrorism: Reinforcing States' Monopoly on Force, in: Waye Sandholtz B and Kendall W. Stiles (eds.), International Norms and Cycles of Change (2008), 128. B.

25 Speech of Chinese Ambassador Mr LIU Jieyi before the Security Council, S/PV.7085 b (17 December 2013), at 9. See also M. Taylor Fravel, Regime Insecurity and Inter- J national Cooperation Explaining China's Compromises in Territorial Disputes, 30 o International Security (2005), 46, 78 -79; David L. Shambaugh, China Engages e Asia Reshaping the Regional Order, 29 International Security (2004-2005), 64, U 73. China has used such regional organization not only to exercise regional influence 3 but also to constrain the US' involvement in Central Asia. p

26 Dana Carver Boehm, China's Failed War on Terror: Fanning the Flames of Uighur 1 Separatist Violence, 2 Berkeley J Middle Eastern & Islamic L (2009), 61, 63. 6

27 Hans KSchler, The United Nations Organization and Global Power Politics: The Antagonism between Power and Law and the Future of World Order, 5 Chinese JIL (2006), 323, 329-330.

28 Marc Weller, Iraq and the Use of Force in International Law (2010), 136.

29 SC Res 1546 (2004), para.4.

30 Steven Wheatley, The Security Council, Democratic Legitimacy and Regime Change in Iraq, 17 EJIL (2006), 531, 548.

31 Speech of Chinese Ambassador Mr WANG Guangya before the Security Council, S / PV.4987 (8 June 2004), at 6.

32 The Security Council firmly rejected the independence of Awazad. See SC Res 2056 (2012).

33 On 22 March 2012, the Malian President Amadou Toumani Toure was set aside by the Malian army who was frustrated about his inability to defend the territorial integrity against the MNLA forces.

34 SC Res 2085 (2012), para.9.

35 Karine Bannelier and Theodore Christakis, Under the UN Security Council's Watchful Eyes: Military Intervention by Invitation in the Malian Conflict, 26 Leiden JIL (2013), 855, 865-867.

supported the very resumption of sovereignty by the Iraqi people and its rejoinder as an equal member to the international community. In addition, it further praised the restored unity of the Security Council to continue to assume its mandate and function "in a constructive spirit and with a pragmatic and cooperative approach". The Chinese Ambassador to the Council, Mr WANG Guangya, continued that "collective wisdom" finally prevailed and that "that is an imperative ofhistory and ofreality, and it is the international community's only viable option".31 Balancing the powers and restoring confidence between the permanent members within the Security Council - after unilateral action by one of them - has been a key target of China.

20. Different from the Afghan intervention aimed at removing the Taliban regime who supported and harboured Al-Qaeda, about one decade later on the African continent, Mali has come into the picture after the fall of the Kaddafi regime in Libya in 2012. Ever since the end of the Kaddafi era former Touareg mercenaries - equipped with sophisticated weaponry - previously fighting on the Kaddafi side in the Libyan conflict were fighting for more autonomy in the Northern part of Mali also called Azawad. Their . National Movement for the Liberation of Azawad (MNLA) took control of the region 0 in April 2012 and called for its independence.32 Shortly after, other Islamist groups o popped up in the power vacuum which the central government had lost after poorly a handling the crisis in Awazad. Consecutively, they took over power from MNLA.33 r Soon these Islamist groups having close connections to Al-Qaeda in the Magreb a (AQIM) imposed their own version of Islamic law in Awazad and were threatening n to impose their rule over the entire country. |

21. France - aformer colonial power with vested interests in Mali's mining industry - 3 brought these terrorist actions destabilizing Mali and the Sahel region to the attention of p the Security Council. The latter authorized the deployment of AFISMA (African-led g International Support Mission in Mali) to support the Malian authorities in their pro- v

tection of their people against terrorist groups whose aim was to topple the regime in Bamako.34 From 11 January 2013 onwards, France with the consent of the reinstated rr

Mali government, intervened with its troops and air force in the crisis in order to crack 3

down the Islamist terrorists operating from the Northern part of Mali.35 From April F

2013, the Security Council called for the transformation of AFISMAto MINUSMA (UN Multidimensional Integrated Stabilization Mission in Mali) who was responsible from July 2013 onwards to assume civilian and military capacities in stabilizing and assisting the Malian government in their transition towards peace.36

22. China who was left out of the Libyan crisis - ever since it remained ambivalent about the Kaddafi regime - has been trying to reposition itself concerning its stance on non-interference within the domestic affairs of States. The conflict in Mali has much wider consequences which it previously had denied in the Libyan conflict. The resourceful yet poor Sahel region connects the Western part of Africa with its Horn. The migratory demographics of this region and the lack of security apparatus of nations within that region make them more susceptible to transnational terrorist forces. China has become fully aware of the potential risks if the actions of these terrorists cannot be contained and repressed. It formally believes though that such concerted efforts ought to be supported by regional actors and organizations if they wish to bear fruit in the long-term.37 Evidently - traditionally - it remains committed to its political stance concerning a comprehensive political negotiation which aligns all interests of the parties involved in the Malian crisis in order to preserve "national unity and territorial integrity".38

23. Much of these interventions addressing regime change - triggered internally and/or with foreign backing of terrorist networks - have been approved by the

36 SC Res 2100 (2013), para.7. Besides the African countries which were already present t under the ECOWAS flag, China is the first country to dispatch a peacekeeping battal- 0 ion in Mali under MINUSMA. This is the first time that China dispatched a fighting e battalion overseas since the thirty years that China has participated in UN peacekeep- § ing forces. Part of the mandate is to secure Mali and another important component V concerns the training of security forces. China certainly has built up its reputation | in handling terrorism in its volatile autonomous region of Xinjiang which borders i Afghanistan and Pakistan - both notable for terrorism and insurgency. Hence, its a dual track strategy to enhance security and development simultaneously is pursued 0 especially in those places like Mali and Afghanistan as well as its own autonomous F region of Xinjiang in order to address the threats and remove their roots. Iraq's and £ Syria's most recent confrontation with international terrorist networks such as I Islamic State (IS) - formerly know as Islamic State of Iraq and Syria (ISIS) - have ^ equally called upon the international community and the Security Council in particu- 2 lar to take action. The latter adopted Resolution 2178 on 24 September 2014 which 6 did not endorse a military operation but rather focused on strengthening cooperation between different players in the region and international organizations in the fight

against terrorism. See SC Res 2178 (2014).

37 Statement by Chinese Ambassador Mr WANG Min at the Security Council Briefing on the Situation in the Sahel Region, 19 June 2014 (http://www.china-un.org/eng/ hyyfy/t1168833.htm).

38 Speech of Chinese Ambassador Mr LI Baodong before the Security Council, S/PV.6882 (10 December 2012), at 20.

international community. The Security Council with the support of China - except for the earliest case of Haiti - has made rational calculations when assessing the security risks that threaten particular regions, such as the Caribbean, Central Asia, the Middle East and the Sahel. Also Western countries and China alike are witnessing terrorism on their soil against and by their own nationals. The lack of a strong leadership in those poor, underdeveloped and politically unstable countries like Haiti, Afghanistan and Mali and Iraq has highlighted the necessity to question the concept of sovereignty which has eroded in those places. The Security Council will necessarily take in account those changing realities in the field, broaden and assume its responsibility to maintain and secure international peace and security accordingly and work more closely together with regional organizations including the Organization of American States, the African Union and the Arab League. Based on those prior security considerations, it has mandated international coalitions or UN peacekeepers to restore and reinforce the regime of those particular nations if it wants to uphold the value of peace globally. China in particular has increasingly stepped up its commitment and contribution to such peacekeeping operations as a way to "project a positive and constructive side to its rising prominence and power on the global stage", as Gill and Huang observe, in the face of rising uncertainties as to its military capacity and strategy in its region and the world at large.39

II.C. The responsibility to protect i

24. The international community has ever since the Kosovo crisis and the global war on t.

terror further refined its position concerning its responsibility rather than its right to f

intervene within the domestic affairs of States. The Security Council traditionally man- e

dated to maintain and restore international peace and security has done so extensively y

but has received other tools of the international community and the General Assembly g

in particular to frame its obligations to interfere under a specific set of conditions. Those L

were defined and shaped by the growing concern regarding the humanitarian situation a

of civilians affected by internal strife and conflict in their nations regardless of the legal 0

categorization of violence, whether States are fighting rebel groups or terrorists or the e

latter groups are fighting each other. Amidst the fighting groups, the civilian population a

is increasingly subjected to their violence either deliberately or unintentionally. 2

25. The international community acknowledged that States in the first instance bear 22

the primary responsibility to protect their own civilian population against the worst 6 international crimes of genocide, war crimes, crimes against humanity and ethnic cleansing. The international community should lend its support in enabling States to protect their civilian populations accordingly. If a State fails to exercise such

39 Bates Gill and Chin-Hao Huang, The People's Republic of China, in: Alex J. Bellamy and Paul D. Williams (eds.), Providing Peacekeepers: The Politics, Challenges, and Future of United Nations Peacekeeping Contributions (2013), 144 -145.

responsibility and refuses the support of the international community, the Security Council can authorize different measures to give effect to such protection within the respective nation. China has unequivocally supported the doctrine of R2P formulated about 10 years ago. Its first manifestation in Libya however has caused reluctance on behalf of China to insert itself in this humanitarian logic and as a result it has repositioned itself concerning the international legal framework and its own Five Principles of

Peaceful Coexistence. d

26. In this regard, the operationalization of R2P with a civilian protection mandate in l Libya authorized by the Security Council 1 in March 2011 was initially hailed as a d victory over inaction which has plagued the international community ever since the hu- r manitarian crisis in Kosovo. Rather than being preoccupied with the internal affairs of 3 Libya, the Security Council would act responsibly in the face of international crimes : committed by the Kaddafi regime against its civilian population rather than supporting h the rebel forces who were fighting against the Kaddafi troops - though in practice the | former covertly received training, logistical and intelligence support of some Western o countries, including France and the United Kingdom.42 The NATO aerial bombing ° campaign to enforce the no-fly zone has ultimately led to a forceful regime change of ° the Kaddafi government which was replaced by the rebel forces.43 3

27. China had major reservations as to the absence of clarity concerning such use of r force advanced in resolution 1973 and as a result abstained from its adoption. Instead, it 3 furthered that the international community should "respect the sovereignty, independ- n

40 GARes 60/1 (2005), paras.138-139.

41 SC Res 1973 (2011).

42 Jason D. Meyer, From Paralysis in Rwanda to Boldness in Libya: Has the International Community Taken "Responsibility to Protect" from Abstract Principle to Concrete Norm under International Law, 34 Houston JIL (2011), 87, 105. Prior to the adoption of resolution 1973, the Security Council adopted resolution 1970 that endorsed the concept of R2P and acknowledged the urgency of the Libyan situation. The same resolution referred the Libyan situation to the ICC. See SC Res 1970 (2011).

43 Mehrdad Payandeh, The United Nations, Military Intervention, and Regime Change in Libya, 52 Virginia JIL (2012), 355.

44 Speech of Chinese Ambassador Mr. LI Baodong before the Security Council, 17 March 2011 (http:// www.china-un.org/eng/lhghyywj/smhwj/2011new/t807544.htm).

ence, unification and territorial integrity ofLibya, and help resolve the current crisis in Libya through peaceful means". In furtherance of the Security Council Open Debates on the Protection ofCivilians in Armed Conflict, China responded repeatedly that the mandate of the Libya resolution has been interpreted too extensively and violated the principles of the UN Charter as a result. In its view, the consecutive 3

events that have followed the intervention of NATO were an "attempt at regime change or involvement in civil war by any party under the guise of protecting

civilians".45 While it acknowledged that a civilian protection mandate felt within the scope of humanitarian action authorized by the Council, other political motives of the permanent members - the United Kingdom and France in particular -which have driven such action beyond this mandate, according to the Chinese view, have put the credibility and ability of the Security Council at stake. It could no longer judge impartially and with fairness those situations which triggered the

responsibility of the Council to take action.46 o

28. The swift action of the NATO bombing campaign and ascent to power of the Libyan National Transitional Council has left China once again alone with its princi- d ples of non-interference and respect for State sovereignty. Put de facto before this new § outcome of regime change, it did pledge that a negotiated political settlement between 3 the former regime and opposition groups was indispensable to the reconciliation and : reconstruction process of Libya and its people. The UN ought to play an important h role in resolving the crisis through political means where China - as it claimed - | has been playing a constructive role during and after the crisis in proposing political 0 avenues to solving such international crises rather than merely supporting those ° nations with economic aid.47 In this regard, the establishment of the UN Support ° Mission in Libya (UNSMIL) - consented by the new Libyan authorities - received a full backing of China. The latter mission is mandated to restore security, strengthen § the establishment of new and accountable institutions and support the economic a recovery of this war-torn country. g

29. The Arab Spring which engulfed the Middle East and North Africa and which § led to a number of regime changes and new allies has made China and other members of 33 the international community particularly cautious after the end of the Kaddafi regime p

in Libya. Ever since the Western-led intervention, China has been adamant on urging |

for peaceful and political means in solving those on-going political and humanitarian a

crises.50 In particular, the armed conflict in Syria has caused a deep rift between 3 ■

45 Statement by Chinese Ambassador LI Baodong at the Security Council Open Debate on the Protection of Civilians in Armed Conflict, 10 May 2011 (http: / / www.china- e un.org/eng/gdxw/t823976.htm).

46 Statement by Chinese Ambassador LI Baodong at Security Council Open Debate on Protection of Civilians in Armed Conflict, 9 November 2011 (http: // www.china-un. org/eng/chinaandun/securitycouncil/thematicissues/civilians_ac/t875762.htm).

47 Speech of Chinese Ambassador Mr. LI Baodong before the Security Council, S/PV.6620 (16 September 2011), at 4-5. See also Xuetong Yan, How Assertive Should a Great Power Be? The New York Times, 31 March 2011.

48 SC Res 2009 (2011), para.12.

49 Pierre Thielbörger, The Status and Future of International Law After the Libya Intervention, 4 Goettingen JIL (2012), 11, 31.

50 See also Christine Gray, A Crisis of Legitimacy for the UN Collective Security System, 56 ICLQ(2007), 157, 167-168. A split between developed and developing nations

Western allies and China and Russia. Such divide seen by China as one between developed and developing nations cannot set fundamental principles of non-interference aside for the sake of the former and at the expense of the latter - where the majority of those interventions take place in the first place - and "world peace and stability".51 Any measures in defiance of the UN principles on behalf of a Security Council resolution would rather complicate the resolution of the conflict if the Council would decide to pressurize the Syrian regime in one way or another.52 Moreover, China expressed once again its deep concern about the disunity within the Council that jeopardized the role, authority and thus functioning of the Council as such. The world could not afford to slide back into its Cold War rhetoric.53

30. Alternatively, China has increased its commitment to seek diplomatic solutions within the Middle Eastern region with the different stakeholders including the Assad government, the united opposition and the Arab League.54 It kept emphasizing the importance ofthe international community to continue to support the mediation efforts of the UN-Arab League Special Envoys Mr Koffi Annan and Mr Lakhdar Brahimi in

has already been present and accentuated in previous debates on the operationalization of R2P - a tool at the disposal of powerful States to interfere within the domestic affairs of the countries of the South. Such underlying motivations have ever since influenced the decision-making process within the Security Council.

51 Speech of Chinese Ambassador Mr LI Baodong before the Security Council, S/ PV.6627 (4 October 2011), at 5. This was the first out of four vetoes which China has casted in the Syrian crisis. See also Ramesh Thakur, R2P after Libya and Syria: Engaging Emerging Powers, 36 Washington Q (2013), 61, 63; Aglaya Snetkov and Marc Lanteigne, "The Loud Dissenter and its Cautious Partner" - Russia, China, Global Governance and Humanitarian Intervention, 15 IR of the Asia-Pacific (2015), 113. v

52 Speech of Chinese Ambassador Mr LI Baodong before the Security Council, S/PV.6711 (4 February 2012), at 9-10. This is the second time that China vetoed a draft resolution on the Syrian crisis.

53 Speech of Chinese Ambassador Mr LI Baodong before the Security Council, S/PV.6810 (19 July 2012), at 13-14. This is the third time that China vetoed on a draft resolution on the Syrian crisis. See also XI Jinping, Follow the Trend of the Times and Promote Global Peace and Development (23 March 2013), in: XI Jinping, The Governance of China (2014), 299.

54 Along the efforts ofthe international community, China pursued a number ofpropo-sals to solve the Syrian crisis, namely: the Six-Point Propositions, A Leading Official of the Foreign Ministry Makes Remarks to Further Elaborate on China's Position on the Political Resolution of the Syrian Crisis, 5 March 2012 (http:// www.fmprc.gov.cn/ ce/ceno/eng/sgxw/t911079.htm); the Four-Point Proposals, "China Elaborates Proposals on a Political Resolution to the Syrian Conflict, Ministry of National Defense of the People's Republic of China", 1 November 2012 (http:// www.mod. gov.cn/opinion/2012-11/01/content_4410325.htm); and the Five Principles, "China Stands for Five Principles in a Political Settlement of the Syrian Issue", 21 January 2014 (http://ae.china-embassy.org/eng/xwdt/t1121020.htm).

55 Speech of Chinese Ambassador Mr WANG Min before the Security Council, S/PV.6816 (25 July 2012), at 18.

56 Speech of Chinese Ambassador Mr LI Baodong before the Security Council, S/PV.6826 (30 August 2012), at 33.

57 Statement by the President of the Security Council on "The Situation in the Middle East", S/PRST/2015/15 (17 August 2015), at 1.

58 SC Res 2118 (2013).

59 Speech of Chinese Ambassador Mr WANG Yi before the Security Council, S/PV.7038 (27 September 2013), at 9.

60 Christian Henderson, International Measures for the Protection ofCivilians in Libya and Côte d'Ivoire, 60 ICLQ(2011), 767, 772-773.

finding a resolution through political means.55 While the disconnect persisted between the so-called consensus of the international community to seek an inclusive dialogue and political process in resolving the Syrian crisis and the actual dire humanitarian reality on the ground, China argued that it has acted equally in a "consistent and responsible" fashion in the face of such stalemate on the battlefield and in the Security Council. It firmly "oppose[d] any externally imposed solution aimed at forcing a regime

change". Eventually, the Security Council has started to realize that only a political o

solution could effectively address the humanitarian situation which remains the l

primary responsibility of the Syrian government. As a result, the Council viewed its d

current role rather limited to creating such environment conductive to negotiations r

if confidence between the warring parties were restored.57 3

31. Nonetheless, by an unusual course of events, the Security Council did manage to : align its divergent interests on the humanitarian issue of chemical weapons where it h decided to impose a timetable for Syria to destroy and dismantle respectively its chem- |

58 j■

ical arsenal and facilities. In this respect, China praised the Security Council's "role o

and solidarity" which was lost ever since the beginning of the Syrian crisis and the 0

heated discussion on the use of force to respond to the Ghouta incident where sarin °

gas was deployed on 21 August 2013. Such use of chemical weapons was also a dark a

reminder of China's suffering from such attacks by the Japanese on its territory r

during Second World War.59 a

32. In a rather unfamiliar case, the call for protection of civilians in Ivory Coast in n 2011 with the intervention of a UN peacekeeping mission (UNOCI) authorized by r the Security Council has led to the consecutive removal and arrest of the still-sitting 3' President Laurent Gbagbo by French armed forces. The latter refused to resign and p

hand over power after the democratic victory of its opponent Mr Alassane Ouattara. |

This power struggle went hand in hand with physical violence against the civilian popu- a

lation supporting either side. Unlike the unpronounced intentions ofthe Libyan inter- 3

vention,60 the Security Council in the case of Ivory Coast was crystal-clear and decided r

unanimously: 3

Urges all the Ivorian parties and other stakeholders to respect the will of the people and the election of Alassane Dramane Ouattara as President of Cote d' Ivoire, as recognized by ECOWAS, the African Union and the rest of the international community, expresses its concern at the recent escalation of violence and demands an immediate end to the violence against civilians, including women, children and internally displaced persons.

33. China's rhetorical commitments to a political and inclusive settlement of the dis- n

putes have once again been reiterated. The impartial support of UNOCI should further ^

"help to peacefully settle the crisis [...] and avoid becoming a party to the conflict".62 f

34. China's principled attitude towards the development and operationalization of | the doctrine of R2P has shown proof of great reluctance towards the normative basis for p such action within the UN Charter without violating the principles of non-interference c and respect for the political independence and territorial integrity of nations.63 An §'

enormous weight lay on the shoulders of the Security Council, namely not to take l

the decision lightly to balance between these opposing interests. China intended to f

assume its power as a permanent member responsibly and watched over the course j

of action of the Security Council that could "pass the test of history" as it argued g

upon the adoption of the resolution to address the issue of chemical weapons in o

Syria. In fact, past interventions in the Middle East have led to greater instability nation- </.

ally, regionally and beyond - such as in the Sahel and Iraq nowadays. The volatility of U

the regional order and security as well as the unpredictability of further regime change e triggered by internal and external factors have made China's position even more vulnerable to criticism. Rather than siding with Russia or any particular party to the conflict, it

persistently pursued a dogmatic approach securing its impartiality and yet loyalty with n

the current regimes within the oil-rich Middle East.65 It remains to be seen whether V

China's exploration and exploitation of natural resources within the South China 1.

Sea will lessen its energy dependency on the Middle East and affect its foreign policy b

and impartiality in the long-term. y

35. Nevertheless, there have been situations where international intervention to protect the civilian population were put on the table before the Security Council but

61 SC Res 1975 (2011), para.1.

62 Speech of Chinese Ambassador Mr LI Baodong before the Security Council, S/PV.6508 (30 March 2011), at 7.

63 Andrew Garwood-Gowers, China and the "Responsibility to Protect": The Implications of the Libyan Intervention, 2 Asian JIL (2012), 375, 388.

64 Speech of Chinese Ambassador Mr WANG Yi before the Security Council, S/PV.7038 (27 September 2013), at 9.

65 Frank Ching, The Era of Abstention by China is Gone, New Strait Times, 16 February 2012; John F. Murphy, International Law in Crisis: Challenges Posed by the New Terrorism and the Changing Nature ofWar, 44 Case Western Reserve JIL (2011), 59, 87.

where China did not lend its support. In this regard, under the pretext of humanitarian grounds, the NATO bombing campaign against Serbia during the Kosovo crisis of the late 1990s was, according to China, a "bad precedent" with the risk of further igniting "separatist and terrorist forces" across the Balkans and thus facilitating regime change. For centuries the region has suffered over conflicting claims for self-determination from its diverse multi-ethnic and religious groups. According to China - paradoxically enough - in spite of these historical parameters, the ethnic cleansing and humanitarian crisis in Kosovo did not constitute a threat to international peace and security and as a result did not trigger the mandate of the Security Council. It remained a matter within the internal affairs of the Federal Republic of Yugoslavia. The consecutive unilateral intervention outside the collective security framework raised deep concerns with China regarding the authority of UN and the Security Council and the "extremely dangerous precedent in international relations" which bypassed the Council and softened the rules on the use of force.68 e

36. Further erosion of the legitimacy and credibility of the Security Council deepened on the issue ofthe Kosovo crisis ever since its peoples unilaterally declared independence on 17 February 2008. While the whole crisis was once considered being an internal matter, it has now serious consequences on "the peace, security and stability of the Balkan region and even Europe at large" as the Chinese Ambassador WANG Guangya argued before the Security Council after the declaration. The territorial integrity and political independence of Serbia ought to be safeguarded and only a negotiated solution could lead to long-term stability and peace.69 The stronger presence of the e

European Union in the Balkan region as part of its neighbourhood policy aimed at a further integration ofits neighbours within the Union. Kosovo has been an experimental case to transform a region ofa particular country and give it the tools to establish its own regime in support of the democratic aspirations of its people. l

II.D. International criminal justice

37. The efforts undertaken by the Security Council are not limited to preserve and

restore peace and humanity in those hot spots across the globe. The Council has

equally been preoccupied with holding those responsible accountable for the most

66 Speech of Chinese Ambassador Mr QIN Huasun before the Security Council, S/PV.3930 (23 September 1998), at 3-4.

67 Speech of Chinese Ambassador Mr QIN Huasun before the Security Council, S/PV.3937 (24 October 1998), at 14.

68 Nico Kirsch, International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 EJIL (2005), 369, 395.

69 Speech of Chinese Ambassador Mr WANG Guangya before the Security Council, S/PV.5839 (18 February 2008), at7- 8. See also Zoran Oklopcic, Populus Interrup-tus: Self-determination, the Independence of Kosovo and the Vocabulary of People-hood, 22 Leiden JIL (2009), 677, 691.

heinous crimes. The ad hoc international criminal tribunals authorized by the Security Council have been instrumental in prosecuting and trying civilian and military superiors and their subordinates for their commission of genocide, crimes against humanity and war crimes in the Balkans and Rwanda.70 The relationship between those tribunals and the Security Council is entirely different in terms of mandate, operation and accountability than the Council with the ICC. These ad hoc tribunals are subsidiary organs of the UN pursuant to Article 7(2) of the UN Charter unlike the ICC whose authority is derived from the Rome Statute.71 The latter has put the Security Council in close relationship with the ICC when it comes to triggering its jurisdiction under Article 16 of the same Statute. Consequently, the Security Council can act under Chapter VII of the UN Charter and refer a situation to the ICC when it considers that a threat to or breach of peace exists.72 Only in two cases did the Security Council affirmatively adopt a resolution to refer a situation to the ICC for further investigation, namely for Darfur/Sudan73 and Libya.74 In both situations the Court issued arrest warrants S

against leading high-ranking officials and thus particularly targeted the top leadership I

of those countries, namely President Omar al-Bashir and the late Colonel Muammar °

Kaddafi. -I

38. The referral of the Darfur situation to the ICC was preceded by a tense involve- 3

ment of the Security Council in assessing the security conditions in the rebellious prov- r

ince of Darfur in Western Sudan. Only one year after the violence ignited in Darfur in 3

2003, the Security Council labelled the Darfur conflict as a threat to international peace n

and security and regional stability and urged the Sudanese government to disarm the §

Janjaweed militias which were slaughtering the civilian population

of Darfur.75 The J

70 China voted in favour of resolution 827 that established the International Criminal s Tribunal for the former Yugoslavia (ICTY) and abstained with respect to the creation 3 of the International Criminal Tribunal for Rwanda (ICTR). See SC Res 827 (1993) § ■ and SC Res 955 (1994). r

71 Dan Sarooshi, The United Nations and the Development of Collective Security: The J Delegation by the UN Security Council of its Chapter VII Powers (2000), 89. §

72 UN Charter, art. 39. «

73 SC Res 1593 (2005). J

74 SC Res 1970 (2011). 0

75 SCRes 1556 (2004). China abstained in its vote. It argued that the time was not right g to adopt such kind of resolutions. See Nsongurua J. Udombana, When Neutrality is a 6 Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan, 27

HRQ (2005), 1149. Many have argued that China's oil interests in the region prevented it from denouncing the Khartoum regime and loose its support accordingly. See Kenneth A. Rodman, Darfur and the Limits of Legal Deterrence, 30 HRQ (2011), 529, 555; Payam Akhavan, Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism, 31 HRQ (2009), 624, 646-647. Others on the other hand highlighted that the declining ties between oil-rich rogue regimes and Western powers - due to the former's

rebel forces of the Darfur region were fighting both government armed forces and those irregular militias siding with the Khartoum regime. The consecutive UN Commission of Inquiry on Darfur confirmed the existence of a non-international armed conflict triggering the applicability of international humanitarian law to the violence raging in the Darfur province.77 Two months later, the Security Council decided to refer the Darfur situation to the ICC for further investigation. China - together with the US -abstained in the vote to adopt resolution 1593.78

39. Though China was of the opinion that those responsible for the crimes committed in Darfur should be held accountable, the international community should equally be concerned with the ways to fight impunity without backlashing on the political and humanitarian crises in Darfur and the on-going North-South peace process. These wider implications have to be taken into account and as a result, national prosecution should be preferred above international investigations in a country such as Sudan which is not a party to the Rome Statute in the first place. In this regard, China argued that it would be unlikely for non-State parties to cooperate with the Court.79 Two days prior to o

the referral, China also deplored the Security Council's action to pressurize the Khar- °

toum regime80 in spite of the "positive momentum" which reigned in the Council since °

the authorization of the UN Mission in Sudan (UNMIS).81 It confirmed that further 3

sanctions against those responsible on either side of the conflict combined with the lack r

of respect for national judicial sovereignty further disregarded the complexity of the 3

Darfur crisis and made it more difficult to solve it.82 g

politically risky environment, have created a vacuum which China was able and willing f

to fill. See Philip Andrews-Speed and Roland Dannreuther, China, Oil and Global e

Politics (2011), 156. |

76 Zeray Yihdego, Darfur and Humanitarian Law: The Protection of Civilians and 3 Civilian Objects, 14 J Conflict & Security L (2009), 37, 45-46. I■

77 Report of the International Commission of Inquiry on Darfur to the United Nations b Secretary-General pursuant to Security Council Resolution 1564 of 18 September y 2004 (Geneva, 25 January 2005), para.75. g

78 With the adoption of the Rome Statute of the ICC, China and the US were amongst J? the 7 countries which voted against. China argued that the imposition of obligations 3 upon States non-parties to the Rome Statute as well as the ICC's interference in the 3 judicial sovereignty of a nation obliged it to vote against its adoption. See Andrea p Birdsall, The International Politics of Judicial Intervention: Creating a More Just 1 Order (2009), 122. 6

79 Speech of Chinese Ambassador Mr WANG Guangya before the Security Council, S/PV.5158 (31 March 2005), at 5.

80 SC Res 1591 (2005).

81 SCRes 1590 (2005);seeSpeechofChineseAmbassadorMrWANGGuangyabefore the Security Council, S/PV.5153 (29 March 2005), at 4-5.

82 Bingbing Jia, China and the International Criminal Court: The Current Situation, 10 Singapore YIL (2006), 1.

40. After lengthy investigations of the ICC Prosecutor, the Pre-trial Chamber of the ICC confirmed the charges of genocide, crimes against humanity and war crimes against a number of high-ranking officials within the Sudanese government including the sitting President Omar al-Bashir and issued the first warrant of arrest on 4 March 2009 and a second one on 12 July 20 1 0.83 Meanwhile, China - concerned with its international image in the run up to the Beijing Olympics - had changed its stance

on resolving the Darfur crisis and advised the Sudanese government to start negotiating o

with the rebels and continue an open dialogue with the UN authorities.84 While it has l

lost its battle on international investigation and prosecution of a sitting head of State at d

the expense of its principle of national judicial sovereignty, China thus removed its at- 3

tention back to the humanitarian conditions of the civilian population of Darfur and 3

the necessity to improve their fate.85 In this respect, the establishment of the hybrid :

UN-African Union Mission in Darfur (UNAMID),86 according to China, would h

give new impetus to address the security, stability and humanitarian assistance in the |

long-term aside the on-going political process of dialogue and negotiation between o

the major stakeholders in the conflict in Darfur.87 °

41. Though this two-track strategy to solve the Darfur crisis has been pursued by the 0 international community, "mutual political trust" remains an essential "lubricant of 3 problem-solving" and has unfortunately been missing between the parties. According 3 to the Chinese position, it continued that it "has made unremitting efforts for the ap- 3 propriate settlement of the question".88 One week later, China equally supported the n efforts of the ICC to resolve the problem of impunity which needed to go hand in hand 3 with the dual track strategy, namely the advancement of the political process and the 3' deployment of peacekeepers.89 Less than one month before the 2008 Beijing p

Games, the ICC Prosecutor requested the Pre-trial Chamber to issue an arrest |

83 ICC, Darfur, Sudan Background Information (http://www.icc-cpi.int/en_menus/ b icc/situations%20and%20cases/situations/situation%20icc%200205/background% 3 20information/Pages/default.aspx). 0

84 Yun Sun, Syria: What China Has Learned from its Libya Experience, 152 Asia Pacific e Bulletin (2012), 1. 3

85 Ian Taylor, China's New Role in Africa (2009), 50-54. 2

86 SC Res 1769 (2007). 3

87 Speech of Chinese Ambassador Mr WANG Guangya before the Security Council, 2 S/PV.5727 (31 July 2007), at 10. China was also the first country outside Africa

that sent troops to the hybrid mission. See Jochen Prantl and Ryoko Nakan, Global Norm Diffusion in East Asia: How China and Japan Implement the Responsibility to Protect, 25 International Relations (2011), 204, 214.

88 Speech of Chinese Ambassador Mr WANG Guangya before the Security Council, S/PV.5784 (27 November 2007), at 16.

89 Speech of Chinese Ambassador Mr LIU Zhenmin before the Security Council, S/PV.5789 (5 December 2007), at 11.

warrant against the Sudanese President Omar al-Bashir.90 The then Vice-President XI Jinping warned about the negative impact such request could have on the on-going political process towards a peaceful settlement of the Darfur crisis.91 The first confirmation of the arrest warrant against al-Bashir by the ICC Pre-trial Chamber was once again a blow to China's principled attitude towards non-interference especially since it has been brokering for a "peaceful situation in Darfur and Sudan".92 Nonetheless, the lack of patience and respect towards China' s diplomatic efforts did not appear to have affected China's national pride - at least on the surface.

42. With respect to the Security Council's referral of the Libyan situation to the ICC in February 2011,93 China voted in favour of such action and thus supported that this situation would be investigated by the ICC Prosecutor. The urgency to secure Libya, restore order and stability and solve the crisis through dialogue as well as the growing concerns of Arab and African nations changed China' s mind on the principle of non-interference.94 The importance of regional and international stability since the be- |

ginning of the Arab Spring and the isolation of the Kaddafi regime within the inter- 0

national community would have made China a lonely dissenter if it had given an °

absolutist interpretation to its non-intervention principles. Instead, it wanted to 0

bolster its reputation as a responsible great power capable of shaping the norms of a

the international legal and political order concerning the intervention in the domestic I

affairs of States under certain conditions.95 Those circumstances have been met here a

according to China's position especially since its strategic and economic interests n

were at stake.96 I

90 ICC, ICC Prosecutor Presents Case Against Sudanese President, 14 July 2008 (http:// s www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation a %20icc%200205/press%20releases/Pages/a.aspx). a

91 China Warns Against Damaging Darfur Peace Process, 29 July 2008 (http:// b lr.china-embassy.org/eng/majorevents/t479087.htm). y

92 Foreign Ministry Spokesperson QIN Gang's Remarks on the Issuance of Arrest § Warrant to Sudanese President by the International Criminal Court, 7 March J? 2009 (http://zm.china-embassy.org/eng/fyrth/t540971.htm). 2

93 SC Res 1970(2011). 2

94 Speech of Chinese Ambassador Mr LI Baodong before the Security Council, 22 S/PV.6491 (26 February 2011), at 4. 2

95 Shogo Suzuki, Why Does China Participate in Intrusive Peacekeeping? Understanding the Paternalistic Chinese Discourses on Development and Intervention, 18 International Peacekeeping (2011), 271, 271 -272. See also Courtney J. Richardson, A Responsible Power? China and the UN Peacekeeping Regime, 18 International Peacekeeping (2011), 286.

96 More than 30.000 Chinese were working at the time of the Libyan crisis in particular in the oil-related industries. Securing their safety as pronounced by Chinese Ambassador Mr LI Baodong was an essential motivation for China to support this

43. The Western powers welcomed China's changing position on Libya since it adopted a resolution that advanced such norms - affecting the regime in Libya -which it had refused to support before. Nothing however was less true. In September 2011, China published its White Paper on China's Peaceful Development which reaffirmed the old dogmas of its foreign policy.97 Prior to this publication, the Chinese Special Envoy for Middle Eastern Affairs, Mr WU Sike, outlined in July 2011 that China' s position was much more sophisticated than at first sight. The procedural steps taken by the international community were in full compliance with China's principles of non-interference. While the situation in Libya was in the first place a matter of national sovereignty and subject to the decision of Libyan people, its classification as a threat to peace however by an authorized international body - the Security Council -in accordance with the UN Charter, permitted the international community to take action under Chapter VII of the same Charter.98 In spite of this legalist approach,99 its very justification casted doubts about the precepts of this position. Moreover, Chinese officials repeatedly reiterated that the Libyan case was "entirely exceptional" and "[did] not set a precedent for the future of Chinese foreign policy".100

44. The latter was particularly wary about the interference of the ICC within the domestic judicial sphere ofnations such as Libya and Sudan. Therefore, China reaffirmed that the jurisdiction of the ICC was entirely dependent on the Security Council's referrals in those situations.101 In terms of the obligations to cooperate with the Court's

decisive action of the Security Council. See Speech of Chinese Ambassador Mr LI Baodong before the Security Council, S/PV.6491 (26 February 2011), at 4.

97 Information Office of the State Council of the People's Republic of China, China's Peaceful Development, 6 September 2011: "The internal affairs of a country should be decided by its own people, international affairs should be decided by all countries through consultation on an equal footing, and every country's right to equally participate in international affairs should be respected and upheld [...] China respects the right of the people of other countries to independently choose their own social system and path ofdevelopment, and does not interfere in other countries' internal affairs."

98 Ministry of Foreign Affairs ofthe People's Republic of China, "WU Sike, China Special Envoy for Middle Eastern Affairs, Interview with Egyptian 'Pyramid' Newspaper)", 27 July 2011, http://www.fmprc.gov.cn/mfa_chn/ywcf_602274/t843153.shtml.

99 See also Ann Kent, Compliance v Cooperation: China and International Law, 13 Australian ILJ (2006) 19, 30.

100 Konstantin Antipov, Events in the Arab East and China's Position, 40 Far Eastern Affairs (2012), 8, 9.

101 Ministry of Foreign Affairs ofthe People's Republic of China, Deputy Representative Wang Ming's Statement to the United States on the ICC, 2 November 2011 (http://www.fmprc.gov.cn/mfa_chn/dszlsjt_602260/t873328.shtml); Ministry of Foreign Affairs of the People's Republic of China, Deputy Representative Wang Min's Statement to the United Nations on the ICC and Libya, 16 May 2012 (http:// www.fmprc.gov.cn/mfa_chn/zwbd_602255/t932570.shtml).

investigations, however, non-members to the Rome Statute were not bound under such conventional framework - which was the case of Libya and Sudan. Nonetheless, similar obligations stipulated in the referral resolutions of the Security Council bound all members of the UN to cooperate accordingly. In practice on the other hand, African States - most of which are members to the Rome Statute - thus having obligations under the UN Charter and Rome Statute were particularly cautious about these developments at the ICC concerning the Darfur referral.102 Once again an African leader was o charged with international crimes and an international arrest warrant was issued against l a president in office.103 Since the call of the members of the African Union has not been d

heard to defer the situation pursuant to the same Article 16 of the Rome Statute, they r

decided not to cooperate with the ICC's investigation in order to avoid having al-Bashir 3

tried in The Hague and thus removing him from power.104 China - who is Africa's :

greatest economic partner - was aware of such suspicion and yet committed to h

solving problems which have threatened regional peace and security even through inter- |

national criminal justice. However, its "position on international judicial bodies remain .

[ed] unchanged".105 O

45. While Libya has been a legal testing ground to advance both R2P and ICC refer- o

rals aiming at the replacement and prosecution of its leaders, Syria would no longer be a

the site where such experiments could alter the development of international law and r

relations on such intrusive terms. In this regard, on 22 May 2014, China casted a a

fourth veto against a draft resolution calling for a referral of the Syrian situation to n the ICC. It argued that such referral would undermine the chance to seek

long-term political settlement between the parties to the conflict. The international 3

community should continue instead to support such political negotiation rather p

than antagonizing one or the other party to the conflict thus creating only more distrust. g

According to China, the current split amongst the members of the Security Council on a

102 See Charles C. Jalloh, Dapo Akande and Max du Plessis, Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court, 4 African JLS (2011), 5.

103 AU Assembly's Decision on the Application by the International Criminal Court (ICC) Prosecutor for the Indictment of the President of the Republic of the Sudan, 12th Ordinary Session, Addis Ababa, Ethiopia, 1 - 3 February 2009, Assembly/ AU/Dec.221 (XII), para.6.

104 Decision on the meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc. Assembly/AU/13(XIII), 13th Ordinary Session of the Assembly of the AU, Sirte, Libya, 1 - 3 July 2009; Decision on the progress report of the Commission on the implementation of decision Assembly/AU/ Dec.270 (XIV) on the second ministerial meeting on the Rome Statute of the International Criminal Court (ICC), Doc. Assembly/AU/10 (XV), 15th Ordinary Session of the Assembly of the AU, Kampala, Uganda, 25 -27 July 2010.

105 Speech of Chinese Ambassador Mr LIU Jieyi before the Security Council, S/PV.7059 (14 November 2013), at 15.

the Syrian crisis has even widened and further exposed the Council's intransigence to seek compromise at the expense of a united front that is capable to work out solutions.106 The Arab Spring has not come to an end yet and the Security Council has never been so divided on moving forward through these political and humanitarian crises. Either unspoken or blatant support for the ever changing regimes in this volatile and unpredictable region have pushed China to seek shelter under its umbrella principles of non-interference - either military or judicially - in order to avoid any particular asso- d

ciation with a current Arab regime or isolation from a particular ally, including Russia. n

III. Towards the international law of co-progressiveness m?

III.A. The theory p

46. Beyond the traditional observations - discussed above - along realist and liberal h

premises on China's attitude regarding the crystallization of new norms within the S

Security Council where authorized use of force or other forms of interference in the .

domestic affairs of States in the context of the right to democracy, war on terror, R2P 0

and international criminal justice which have affected regime change in the countries jo

in question, one can try to approach such developments from the theory on the 3

international law of co-progressiveness instead. Since his seminal paper on 'Towards o

an International Law of Co-progressiveness" in 2001, Sienho Yee has further refined 3

his conceptual framework to understand the development of international law as it is n

and how it should be.107 Such international law on co-progressiveness, as Yee defines, g

"is characterized by a spirit of being all-encompassing (hence 'co'), preoccupied with jy

advancements at an appropriate speed in moral and ethical terms more than in other P

respects and having human flourishing as its ultimate goal (hence 'progressiveness')".108 n

47. Unlike postmodern legal scholarship109 - though useful for establishing geneal- V

ogies of the international legal argument - which contests such a content-driven I.

106 'Explanatory Remarks by Ambassador Wang Min After Security Council Voting on 3 Draft Resolution on the Referral of the Situation of the Syrian Arab Republic to the International Criminal Court', 22 May 2014 (http://www.china-un.org/eng/ lhghyywj/smhwj/2014/t1161566.htm).

107 Sienho Yee, Towards an International Law of Co-progressiveness, in: Sienho Yee and Tieya Wang (eds.), International Law in the Post-Cold War World: Essays in Memory of Li Haopei (2001), 18; Sienho Yee, Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States, 7 Chinese JIL (2008), 99; Sienho Yee, The International Law of Co-progressiveness and the Co-progressiveness of Civilizations, 12 Chinese JIL (2013), 9; Sienho Yee, The International Law of Co-progressiveness: Descriptive Observation, the Normative Position and Some Core Principles, 13 Chinese JIL (2014), 485.

108 Sienho Yee, Co-progressiveness, 13 Chinese JIL (2014), 485, 486.

109 Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buffalo Law Review (1979), 211; David Kennedy, The Forgotten Politics of International Governance, 2

approach given the indeterminacies resulting from conflicting interests which compete for the creation, interpretation and application of international norms - especially with respect to the interference within the domestic affairs of States by virtue of the doctrine on R2P, this approach instead postulates that moral and ethical considerations primarily are the driving forces behind the development of international law. The latter has moved from an international law of coexistence during the Cold War whose content and enforcement were dependent upon States, to an international law of cooperation °

during the period of détente whose subjects include States and individuals and |

whose enforcement relied on membership sanctions, to now, as Yee argues, the inter- d

national law of co-progressiveness in the post-Cold War era. The latter's content is f

shaped by additional actors such as non-governmental organizations and its compliance g

is guaranteed by an "image sanction" instead.110 p

48. Given the importance of morality in the enunciation of international values h

which give direction to the international legal and political order whose primary goal §

is human progress, a number of other determinants in this approach have been taken .

into account to give proper content to such values and their corresponding regulatory o

framework which secure their realization on the international plane. Firstly, the non- O

coercive nature of a dialogue between members of the international community g

assists those processes within States to engage with such moral advancement at their o

own pace. Thus, a successful internally-driven and self-propelled internalization </.

process within a State is conditional upon the respect for the latter's "appropriate U

speed" on behalf of the other participants in the international community on the <T

one hand and external inducement - rather than coercion - must take into account the specific and diverse circumstances of each nation to achieve co-progressiveness g

subject to the latter's compliance for "the most fundamental obligations under inter- g

national law" on the other hand.111 Secondly, is the role of leader States in steering the v

development of international law towards human progress while respecting the sovereign equality of other States in the formulation and realization of their vision of a harmonious world. The latter has particularly been advanced by China since the leadership of former President HU Jintao in

2005. In this

regard, multilateralism is key in the protection of peace, humanity and accountability which are indispensable to such a vision. In spite of China's image problems to shoulder responsibility in the international community and to promote the rule of law, its civilizational attitude toward these

European Human Rights Law Review (2001), 117; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2006).

110 Sienho Yee, Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States, 7 Chinese JIL (2008), 99, 103.

111 Sienho Yee, Co-progressiveness, 13 Chinese JIL (2014), 493, 496.

112 Jintao Hu, Build Towards a Harmonious World of Lasting Peace and Common Prosperity, 15 September 2005, UN Summit (http://www.china-un.org/eng/zt/ shnh60/t212915.htm).

universal values may well induce progressiveness through dialogue with other civilizations and States in this world.

49. The following sub-sections will explore how the fundamental values of the international law of co-progressiveness have been discussed before the Security Council, namely peace, humanity and accountability, in the cases examined above. Their content as well as enforcement in those situations where regime change and thus sovereignty at the same time were at stake have been subject to discussion. China's particular position concerning the conflicting interests in each of those cases which are shaped by its own Five Principles of Coexistence as well as its general attitude to foster incremental change of the international legal order in pursuit of its harmonious world view should thus be seen in light of the international law of co-progressiveness. Image sanctions can be served as outside inducements rather than coercion for States including China to boost their "internal engine for advancement and progressiveness"114 and thus their willingness to assume greater responsibility in the international system and promote the respect for the international rule of law through their exemplary efforts.

III.B. Peace

50. China's harmonious world order involves a reaffirmation of its Five Principles of Peaceful Coexistence where harmonious coexistence between States can only be guaranteed if multilateral institutions like the UN further democratize and when power politics makes room for sovereign equality of States and mutual respect instead. Therefore, international cooperation to safeguard international peace and security must be strengthened as well as the role of the Security Council to exercise its mandate accordingly in accordance with the principles and purposes of the UN Charter which uphold the sovereignty of States and prohibit interference within their internal affairs as well as unlawful use and threat of use of force against them. China' s peaceful development depends on and contributes to "the common progress of mankind" both in moral and materials terms.115 China will pursue these goals through international organizations and by respecting the rule of law in its relationship e

with other nations.11

51. From this Chinese perspective, diversity in international affairs is an essential ingredient to peaceful cooperation, good-neighbourliness and a harmonious world. China has ascribed much of its peaceful and diplomatic attitude to its civilizational

113 Sienho Yee, The International Law of Co-progressiveness and the Co-progressiveness of Civilizations, 12 Chinese JIL (2013), 9, 13.

114 Sienho Yee, Co-progressiveness, 13 Chinese JIL (2014), 485, 491.

115 Hu, above n.112.

116 HanqinXue, China's Open Policy and International Law, 4 Chinese JIL (2005), 133, 139.

wisdoms which it has gained over its 5000 year history.117 Peaceful means of conflict resolution and security cooperation through multilateralism within regional and international bodies such as the Shanghai Cooperation Organization and the Security Council can truly address security threats common to mankind. Communication and dialogue between countries, religions and civilizations are necessary to achieve peace and common prosperity for all peoples in this world. While dialogue and cooperation may govern international relations amongst States and other international actors, o the peoples of each nation shall continue to exercise their sovereign rights independent- l ly and determine their domestic affairs by themselves.118 Here too, a non-coercive dia- d logue could externally induce an opening up in the traditional and often rigid view of r some countries, including China, on the principle of non-intervention as Yee would 3 argue. Yet, the internalization process requires respect for the pace by which States : are engaging with the international law of co-progressiveness domestically. h

52. In the pursuit of its harmonious world order, China equally defends greater par- | ticipation in international rule-making which governs the relationships between actors o on the international plane in favour of the principle of sovereign equality which it still 0 considers to be dominated by Western perspectives.119 An international law of co- ° progressiveness which puts human progress - commonly shared by all members of a humanity - central to the realization of its normative goals of peace, security, r common prosperity and development may well be conducive to a more equitable and a fair international legal, economic and political order.120 If only States would be driven n by such morality and universal values, new modes of complementary and interdependent §

n ;; 121 i

inter-State relationships can be molded so as to reach the "next destination", namely 3

"a harmonious world of common development and enduring peace".122 p

53. While the will of the people and their well-being - security, social and eco- | nomic alike - as well as their correlative sovereignty should be preserved in the Se- a curity Council's mandate to restore and maintain international peace and

security, 3

117 Zhaoxing Li, Peace, Development and Cooperation - Banner for China's Diplomacy in the New Era, 4 Chinese JIL (2005), 677, 678. e

118 Jielong Duan, The Concept of the "Harmonious World": An Important Contribution to International Relations, in Sienho Yee & Jacques-Yvan Morin (eds.), Multi-culturalism and International Law (2009), 62-63.

119 Yi Wang, China: a Staunch Defender and Builder of the International Rule of Law, 13 Chinese JIL (2014), 635, 637-638.

120 Zhenmin Liu, Following the Five Principles of Peaceful Coexistence and Jointly Building a Community of Common Destiny, 13 Chinese JIL (2014), 477,479 -480.

121 Sienho Yee, Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States, 7 Chinese JIL (2008), 99.

122 HongXu, The Chair's Summary of the Colloquium on "The Five Principles of Peaceful Coexistence and the Development of International Law" Held in Beijing on May 27, 2014, 13 Chinese JIL (2014), 501, 504.

China has responded differently with respect to the restoration of democracy in Haiti, of sovereignty after the occupation in Iraq and in the fight against international terrorism in Mali as well as Afghanistan. In each of these cases international peace and security was at risk and necessitated a response from the Security Council which interfered into the domestic affairs of these States, resulting in implications on the change of regimes in those respective countries. Nonetheless, the adoption of Security Council resolutions taking particular measures including the authorization of the o use of force by certain member States or multinational forces was accompanied by l additional actions prior or after such intervention on behalf of the international com- d

munity and in particular by the deployment of UN peacekeeping operations in those r

theatres of conflict. 3

54. Though China formally supported the return of President Aristide to respect the : sovereign will of the Haitian people who had elected him, it disagreed concerning hh the use of force by the US to achieve those goals and thus abstained from the vote. | Yet, the presence of the UN peacekeeping mission in Haiti did constitute an appropri- o ate measure to peacefully restore democracy in the country. One could argue that 0 this first case of regime change needs to be further contextualized in the period of ° détente after the end of Cold War. Consequently, at that time the international a law of cooperation would still be enforced upon the basis of membership sanctions, r namely the excommunication of Haiti from the Western hemisphere under whose a leadership the US has been the guarantor of the democratic aspirations of the n peoples of the Americas. Despite the relatively positive outcome of the US' interven- r tion, China kept but stressing the importance of a negotiated and thus peaceful 3' solution to domestic disputes which constituted threats to international peace and p

security. |

55. The fight against international terrorists — as the common enemy of mankind — a however has dramatically changed China's position within the Security Council - 3 ■ where it voted affirmatively - towards interference within the domestic affairs of r

States and as a result in favour of the authorization of use of force against such targets 3

which may affect regime change inadvertently in countries like Afghanistan and F

Mali. In particular in the latter Malian crisis the authorization of multinational military ^

operations followed by a UN peacekeeping mission with the consent of the Malian gov- 3

ernment would necessitate sustained and concerted efforts of other regional actors 3

including ECOWAS to preserve peace within the region. In addition, like in the 2 Afghan conflict, a domestic political solution must go hand in hand with regional and international efforts in the war on terror if the territorial integrity and political independence of those nations should be secured. Such encompassing spirit shared by national, regional and international actors can truly contribute to the international law of co-progressiveness since sufficient agency and sovereignty induces nation States to commit themselves to those international values of peace and security and thus to

assume their obligations in the international community - especially in the context of

^U - 123

the war on terror.

III.C. Humanity

56. The Security Council has also acted beyond the mere preservation of international peace and security and has authorized the use of force for the sake of protecting humanity - the second cardinal value of the international legal and political order and thus of the international law of co-progressiveness. In two instances the Council operationalized the doctrine of R2P yet through different military operations, either led by a regional organization such as NATO in the case of Libya or the UN in Ivory Coast. While China voted a few months earlier in favour of a referral by the Security Council of the Libyan situation to the ICC, it abstained with respect to the use of force to intervene in the on-going civil war in Libya. Instead, the Council ought to have explored other peaceful means to solve the humanitarian crisis in Libya where its civilian population was under attack by the Kaddafi regime who had in the meantime lost its legitimacy internationally. Moreover, the resulting regime change ever since the intervention ofNATO under the guise ofR2P defied, according to the Chinese position, the nature and purpose of multilateral action, namely to uphold humanity through peaceful means. This has been exemplified by the later presence of a UN peacekeeping mission in the aftermath of the Libyan conflict.

57. China was not the only country that abstained in the adoption of resolution 1973 by the Security Council which operationalized R2P in Libya. Brazil, Germany, India and Russia also made reservations as to the prospects of a successful implementation of a military intervention, the parties and resources involved, and the potential protracted nature of the conflict where an international coalition by virtue of NATO would become a party to the conflict siding with the rebel groups and thus causing a more harm to the civilian population which it initially wanted to redress. From the perspective of the international law of co-progressiveness, also these other members of the international community - in addition to China - are reluctant to induce a solution to a humanitarian crisis through outside coercion in order to alleviate human suffering at the expense of the territorial integrity of Libya and the peace and security of a region in transition which may further compromise the mandate of the Security Council to maintain and restore international peace and security in this regard. As long as an immediate ceasefire cannot be established between the fighting parties it will remain difficult for any intervention to strike such a balance which respects the sovereign equality of States and a peaceful resolution of the conflict.

58. In this respect, R2P remains a primary responsibility for States to protect their own civilian population and yet they may be challenged if internal armed conflicts prevent them from assuming this responsibility accordingly. In practical terms, a

State may not be able to exercise such R2P over parts of the territory where it has lost control in favour of rebel groups. This has been also the case in the Syria, where only more recently after more than three years of conflict, the Security Council acknowledged such division of labour concerning the operationalization of the doctrine of R2P especially since the Council has not reached consensus in the past - where China and Russia casted their veto against the use of force to protect the civilian population - to authorize the operationalization of such responsibility in second in- °

stance. Since the doctrine of R2P has not formally evolved into an international legal §

norm,124 progressiveness towards protection of the humanity of a civilian population d

within or outside the context of an armed conflict thus relies on a self-propelled f

effort of the responsible State in the first place. Nonetheless, the international commu- g

nity in second instance may also externally induce respect for such cardinal value of hu- p

manity without coercion.125 The non-coercive dialogue conducted by the UN-Arab h

League Special Envoys Mr Kofi Annan, Mr Lakhdar Brahimi and by the UN Special §

Envoy Mr Staffan de Mistura with the warring parties in Syria should be seen in this .

light. Individual State practices which advance humanity under R2P internally ^

rather than through external initiation at their own appropriate speed may all together O

crystalize into the international law of co-progressiveness. An image sanction may g

further incentivise States to assume primary responsibility in protecting the humanity o

of their citizens.126 Yet, in such process of progressive development of international 1

norms equal participation of all States should be observed though leader States - espe- U

cially the permanent members in the Security Council - may project their vision and <T

convince others to follow, like China through its harmonious world view.127 y

59. Unlike Libya and Syria where concerns were expressed as to the involvement or g

potential hegemony of particular States or regional organizations such as NATO into an §

on-going civil war, the operationalization of R2P to protect the civilian population in v

Ivory Coast by an international peacekeeping force, i.e. UNOCI, under a UN flag -resulting in the change of regime of the sitting President Gbagbo who lost election against his counterpart Mr Ouattara - received unanimous support of all members of the Security Council. The clarity of the mandate to respect the democratic wishes of the people of Ivory Coast meant that interference on behalf of the international community would no longer have an influence on the political process and thus political independence of Ivory Coast as such. Thus, the mandate would be rather limited to

124 Carsten Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm? 101 AJIL(2007), 99.

125 Sienho Yee, Co-progressiveness, 13 Chinese JIL (2014), 485, 493.

126 Sienho Yee, Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States, 7 Chinese JIL (2008), 99,103; Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders, 107 AJIL (2013), 295, 296.

127 Sienho Yee, ibid., 104.

protecting the humanity of the civilian population instead. China argued that the UN should be part of the peaceful resolution of the conflict rather than become a party to it instead. The concerted UN peacekeeping operation in Ivory Coast as a multilateral effort equally contributed to give content to the doctrine of R2P if all States can participate in its operationalization to protect humanity and thus assume their obligations vis-à-vis the international community as a matter of the international law of 128

co-progressiveness. III.D. Accountability

60. The respect for the third value of the international law of co-progressiveness, i.e. accountability, has equally been guaranteed by the Security Council in pursuit of its mandate to maintain and restore international peace and security by virtue ofa referral of a situation in a country - where international crimes are allegedly committed which constitute a threat to international peace and security - to the ICC. On three occasions the Council has dealt with the question of referrals, namely regarding Darfur, Libya and Syria. While in the former two a resolution was adopted to refer the situation to the Court, concerning Syria, the Council did not reach an agreement to do so. Though the Rome Statute of the ICC has put the Security Council in a formal relationship with the Court with respect to triggering the jurisdiction of the Court, China has always been suspicious whether or not such actions of the Council may be part of the peaceful resolution of a conflict rather than part of the problem. The Council's interference in the domestic affairs of States when holding particular individuals accountable before the ICC as opposed to others may compromise the political negotiations within such country in favour of one or the other party. Yet, the urgency to act upon the dire humanitarian situation both in Darfur and Libya was addressed by a separate yet complementary effort of the Security Council to respectively address matters of a humanitarian assistance and the protection of the civilian population.

61. Absent such dual track resolution in the conflict in Syria, the Council argued that a referral of the situation of Syria to the ICC could not bring solace to the humanitarian situation without other measures which would enjoy the consent of the host State in case of a UN peacekeeping mission and would instead compromise the political negotiations between the various warring parties in Syria. The referral of the Darfur situation was initially not approved unanimously by the Council' s members given the lack of clarity on future peacekeeping missions that would address the humanitarian situation on the ground too. In addition to China, Algeria, Brazil and the US abstained in the vote on the Darfur referral to the ICC, arguing that such jurisdiction over alleged perpetrators of international crimes who are nationals of States which are not a party to the ICC touches upon the sovereignty of those States to subject their nationals to an international court. Such prosecution may well become further politicized which in turn affects the

credibility and legitimacy of the Court in the long run as well as an internally driven inducement of States to pursue criminal justice for international crimes domestically.

62. Moreover, it would be increasingly difficult to expect cooperation from those States such as Libya and Sudan who were not States parties to the Rome Statute and thus do not have any treaty obligations under such separate regulatory framework although the adoption of the referral resolutions by the Security Council under Chapter VII of the UN Charter would supersede such obligations to comply with o the resolution pursuant to Article 103 of the same Charter regardless whether the tar- l geted country is a party or not to the Rome Statute. In practice, member States - in d particular African nations - who feared politicized prosecutions absolved themselves r from their treaty obligations under the Rome Statute when signing bilateral agreements 3 with Sudan to avoid extradition obligations with the Court in case the suspects would : find themselves in their jurisdiction. h

63. Under the international law of co-progressiveness, cooperation continues to be a | background note to co-progressiveness.129 Therefore, the asymmetrical set of treaty 0 obligations under the UN Charter and the Rome Statute which come closer together 0 in the exercise of the Security Council's mandate to refer a situation to the ICC ° has also two types of sanctions by virtue of membership for those States parties to a the Rome Statute or the UN Charter in case of failure to cooperate with the ICC r or through an image sanction for States non-party to the Rome Statute. Despite a the absolution of the membership sanction under the Rome Statute in particular n by African States parties to the same Statute, the image sanction both for China r as well as the targeted States would be more difficult to circumvent. While China 3' is trying to bolster its image as a leader State in particular in the pursuit of accountability p

of international crimes, it has been equally confronted with an image sanction |

imposed by those African nations whose membership sanction under the Rome a

Statute has become in vain given their revisited support to the ICC since the Darfur 3 ■

referral. r

64. Those genuine fears of politicized prosecution before the ICC by virtue of a 3 Security Council resolution to refer a situation before the ICC which in practice resulted F in an absolution of cooperation obligations of States parties to the Rome Statute and the

UN Charter show proof of the intrusive and thus coercive nature of international 3

criminal proceedings into the domestic affairs of States - implicating a possible „3

change of regime - even though the Court would operate only upon the basis of com- 2 plementarity vis-à-vis its member States if they were unwilling or unable to prosecute alleged perpetrators of international crimes falling under its jurisdiction. The unanimous adoption of the Security Council's resolution to refer the situation of Libya to the ICC removed many of those anxieties given the fact that all member States of the

129 Sienho Yee, Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States, 7 Chinese JIL (2008), 99, 102.

Council, according to the Chinese position, could equally participate in the consensus-building efforts and thus fully supported such concerted decision by the Council who acted in accordance with the principles of non-interference. Here too, China as a future leader State had to shoulder responsibility in the face of international crimes which constituted a threat to international peace and security, pay effort to promote the international rule of law and pursue its harmonious world through multilateralism and along its Five Principles of Peaceful Coexistence if it wished to avoid losing face before the other members of the Security Council and the international community at large. Moreover, as seen from the perspective of the international law of co-progressiveness not only China but other members of the Security Council and African nations in particular were not entirely convinced that through external coercion alone accountability can be secured.

IV. On the theory of relationality and relational governance IV.A. The Theory

65. The promotion of peace, humanity and accountability through the international law of co-progressiveness cannot be seen in isolation of the actual actors which are involved in the formation of the law, its content and enforcement as explained by Sienho Yee in his work on this very topic.130 Yaqing Qin adds that the actual relationships themselves between such actors equally matter in the enunciation, interpretation and application of international norms (in the making) at the national, regional and international level alike and thus creating sufficient convergence on the expectation of certain norms as rule-based governance would advance. As a result, the governance of such relationships at various levels of decision-making has been the primary objective towards an effective implementation of international law as well as a major concern of China. Rather than using the individual actor itself as the departure point and unit of analysis and measure how conflicting interests between them may shape the interpretation and application of international norms, the relationship itself between actors which are objects and subjects of the international law of co-progressiveness ought to be examined with an eye to establishing e a harmonious world order rather than merely ruling its individual actors.131 Managing and harmonizing qualitative relationships by "enhancing people-to-people trust" are, according to Qin, the indispensable means to relational and thus sustainable governance.

130 Sienho Yee, Co-progressiveness, 13 Chinese JIL (2014), 485, 493.

131 Yaqing Qin, Culture and Global Thought: Chinese International Theory in the Making, 100 Revista CIDOB d'Afers Internacionals (2012), 67, 79.

132 Yaqing Qin, Rule, Rules, and Relations: Towards a Synthetic Approach to Governance, 4 Chinese JIP (2011), 134.

133 Ibid., 133.

134 Yaqing Qin, International Society as a Process: Institutions, Identities, and China's Peaceful Rise, 3 Chinese JIP (2010), 129, 138.

135 Kuang-Hui Yeh, Relationalism: The Essence and Evolving Process of Chinese Interactive Relationships, 3 Chinese J Communication (2010), 76; Kwang-Kuo Hwang, Constructive Realism and Confucian Relationalism: An Epistemological Strategy for the Development of Indigenous Psychology, in: Uichol Kim, Kuo-Shu Yang and Kwang-Kuo Hwang (eds.), Indigenous and Cultural Psychology: Understanding People in Context (2006), 74; John B. Cobb, Chinese Philosophy and Process Thought, 32 J Chinese Philosophy (2005), 163; Jay Goulding, New Ways Toward Sino-Western Philosophical Dialogues, 34 J Chinese Philosophy (2007), 99.

136 Yaqing Qin, above n.131, 81 -82.

66. Such relational governance is defined by Qin "as a process of negotiating sociopolitical arrangements that manage complex relationships in a community to produce order so that members behave in a reciprocal and cooperative fashion with mutual trust evolved over a shared understanding of social norms and human morality".133 Such emphasis on relationality differs from rule-based governance in particular in the context of international law and relations. As result, international law and international institutions are not there to govern individual actors on the international plane as such but o rather are there to harmonize relationships between those actors within international l society instead.134 In this respect, the harmonization of relationships - as argued d here - will in turn create a fertile soil for international norms to be applied effectively r once the necessary support is enjoyed and given by the actors involved and affected by 3 specific international norms. Indeed, the realization of the values of the international : law of co-progressiveness relies heavily on the particular contexts at a given moment h in time in which actors on the international plane relate to each other. Such understand- | ing on relationality is deeply rooted in Chinese Confucian thinking, philosophy and 0 practice135 and may assist in examining China's evolving attitude towards international ° law and governance through its practice in the Security Council seen from the prism of 0 regime change mapped earlier on. a

67. The theory of relationality applied to relational governance sees the development r of international norms as a process of cooperation and conflict between actors on the a international plane which are complementary and whose interaction is directed n towards a harmonization of opposite interests evolving into a new synthesis in the r long-term.136 From the perspective of relational governance, such negotiating process 3' by its nature is dynamic, complex and open-ended given the diversity of actors and inter- p

ests involved. The maintenance of the process itself is more important than its tangible |

and immediate outcomes. The mere participation of actors in the process enhances the a ties between them as well as their understanding which ultimately assist in the

main- 3

tenance of those "cooperative relationships" in the first place. Rather than controlling r

such processes, the governance of relationships is focused on developing positive 3

connections - and thus mutual trust - between the respective actors for the mutual benefit of all - preferably through multilateralism.

68. The following sections will examine the conditions for the international law of co-progressiveness to develop through relational governance with respect to the challenges faced before the Security Council which have affected regime change in the respective countries in question. Firstly, trust is essential between the decisionmakers as well as those affected by the rules on the ground to implement the resolution of the Security Council re-establishing peace, securing humanity and fostering accountability. Secondly, the relationship between the actors involved in and affected by these negotiating processes in the Council as well as in the field have to be managed and harmonized. Finally, trustful relationships themselves may result in support of a particular international norm or even progress into the crystallization of new norm if such fertile soil is present, desirable and available amongst the members of the international community.

IV.B. Trust o

69. Without trust between actors on the international plane - regardless whether this § involves risks and their acceptance, sincere relationships cannot be built, restored or sus- r tained.138 Thus, trust is the utmost important factor in relational governance towards a t harmonious world order. Though from the Confucian perspective, trust was situated i within an entirely hierarchical society, such would be impossible to imagine in accordance with China's contemporary Five Principles of Peaceful Coexistence. Instead, 3

within a harmonious world order restraint and discipline of individual actors naturally P

coexist with the trust each actor has vested into the other so that each actor itself can §

develop itself harmoniously with the other members of a national or international a

society. Such process of self-cultivation which is intimately dependent and shaped 3

through the interaction with other actors is a long-term endeavour which contributes r

to profound relationships with others based on relatedness discovered through knowl- 3

edge of the other. Only over time and through learning can individual actors on the §

international plane relate to each other and internalize such morality which puts |

human flourishing central to the international order and its norms as Yee would Jy

advance. Constructivists such as Alexander Wendt would also agree that trust is realized 3

137 Yaqing Qin, above n.132, 138-139.

138 Robert L. Swinth, The Establishment of the Trust Relationship, 11 J Conflict Resolution (1967), 343; Aaron M. Hoffman, A Conceptualization of Trust in International Relations, 8 EJIR (2002), 377; Brian Rathbun, Before Hegemony: Generalised Trust and the Creation and Design of International Security Organizations, 65 International Organization (2011), 243; Vincent Charles Keating and Jan Ruzicka, Trusting Relationships in International Politics: No Need to Hedge, 40 R Int'l Studies (2014), 753.

through "external constraints" like outsider States or international institutions and by restraining oneself - thus by holding oneself back, others may step forward.139

70. Such virtuous practice developed only through profound relationships over a period of time can constitute the basis for relational governance on the international plane. Qin continues that such practice based on mutual trust is part and parcel of China's own historical experience and socio-cultural context yet can assist in defining

a sense of community, both nationally and internationally alike, and shape accordingly o

the behaviour of its various members. Unlike rule-based governance which holds l

that trust is an important factor to reduce transactional costs in the implementation d

and enforcements of international norms, relational governance holds that trust r

binds international actors by virtue of the encounters and thus relationships which I

they have established between each other over a course of time. In addition, such intern- :

alization of trust is key to effectively governing the international order not merely h

through its rules but through relationships based on trust from which international S

norms derive their normativity and binding character. As a result, the lack of trust .

between actors on the international plane in a given situation where conflict between O

them emerges will render the application of one or the other international norm to o

resolve their internal problems more difficult. a

71. With respect to the protection of the moral values underpinning the internation- O al law of co-progressiveness, namely peace, humanity and accountability, the Security a Council in the cases studied above had to evaluate carefully the feasibility to adopt § measures which affected regime change in the countries in question, consider the pre- r cedential value of its interference in the domestic affairs in the long-term vis-à-vis the I other members of the international community and the international order at large p as well as the consequences of its action upon the different members of the Council § itself and its credibility as one of the principal organs of the UN in matters of inter- v national peace and security. The action of the Security Council on such sensitive | ■ matters was not undertaken in isolation of the context in which those measures were b to be implemented - where the Council also decided to take additional measures | prior or after its authorization on the use of force by a multilateral coalition or peace- F keeping force as well as its referral of a situation before the ICC. To the contrary, it is u the precise context of the countries where those measures were to be implemented y and in particular the nature of the relationships between the various stake- and share- I holders in those respective societies as well as the trust vested within the Security 1 Council itself which were the primordial determinants of the success of the Council's measures in those particular countries and beyond.

72. From the rule-based governance perspective, the Chinese position within the Security Council was often seen as ambivalent regarding its voting behaviour with

139 Alexander Wendt, Social Theory of International Politics (1999), 359.

140 Yaqing Qin, above n.132, 137.

respect to the adoption of those resolutions affecting regime change in particular countries and regarding the measures advanced to achieve such ends in the pursuit of the protection of peace, humanity and accountability. Indeed, there was a 50% chance that China voted either in favour of or abstained regarding those measures.141 Unlike the rule-based governance perspective which focuses on the individual actor, i.e. China, in its analysis, the relational governance perspective would seek to find explanations in the actual context and thus various sets of complex and dynamic relationships - o both nationally, regionally and internationally alike - at a given moment in time which § may influence China's stance on and responsibility regarding the protection of those d

cardinal values of the international legal and political order through the Security r

Council. 3

73. Though in the case of Haiti's authorized "Operation Restore Democracy" all : conditions on the ground showed proof of sufficient trust amongst the population h and its democratically elected leader Aristide to return as well as the unconditional S

trust vested by all countries in the Americas in the capability of the US to lead the .

operation, China made reservations as to the precedential value of such authorization 0

of use of force to become a standard practice and thus becomes internalized in the o

Council's plight to defend the right to democracy which such means. Defending 3

peace against international terrorism in Mali received full backing by China as both 0

nationally and regionally all the right conditions to re-establish trust within the govern- 3

mental authorities to fight the terrorists in the Sahel region with the support of France n

and a regional as well as later UN mission were present. Moreover, the Security Council r

has been generally more united to tackle those questions of international terrorism. 3

74. China was equally split over the operationalization of R2P in Libya and Ivory p Coast. In the latter case, enough trust was vested in the newly elected Ouattara and §

the people of Ivory Coast as well as the clear mandate of the Council to intervene for ^

the very purpose of defending the humanity of the civilian population in the aftermath 3.

of the presidential elections in the country which was fully supported by regional orga- b

nizations as well as the international community at large. Regarding Libya, at the 3

moment of the adoption of the Security Council's resolution, China was concerned F

about the lack of clarity about the use of force and in hindsight about the purpose of u

intervention, namely to trigger regime change. Though trust in the Kaddafi regime y

to find a peaceful resolution was fully eroded regionally and internationally alike, the 3

Council's evaluation to seek a coercive solution in an on-going civil war has, according 1 to China, compromised the impartiality and credibility of the Council to judge and take peaceful measures accordingly. Such would affect the trust by the international community in the Council itselfwhich China wanted to preserve in the first place. Regarding the Syrian crisis, the Security Council and China came to the realization that much of the success of its intervention in the domestic affairs of Syria largely depended on the

141 See Table 1.

Vanhullebusch, Regime Change, the Security Council and China Table 1 Regime Change, the Security Council and China

Date Resolution Country Regime Threat to

China's Voting Record Measure

1994 S/RES/940 Haiti Democracy Peace

2012 S/RES/2085 Mali

2011 S/RES/1973 Libya

2011 S/RES/1975 Ivory Coast

2005 S/RES/1593 Sudan

Democracy Authoritarian Democracy Authoritarian

Abstain

Humanity Abstain Humanity Yes Accountability Abstain

2011 S/RES/1970 Libya Authoritarian Accountability Yes

Operation Restore

Democracy +

AFISMA +

MINUSMA

UNSMIL

ICC Referral +

UNMIS +

UNAMID ICC Referral

trust between the warring parties to find a political settlement for their conflict as well as upon the responsibility of the individual members of the Council to take a united stance on the protection of humanity while respecting the territorial unity and political independence of the country in question.

75. Undoubtedly, the Syrian crisis has been emblematic of the potential backlash upon the political negotiations within a particular nation and the seeds it may sow for further distrust amongst the conflicting parties. That's why China casted its veto against a referral of the situation in Syria before the ICC and why it abstained in its vote concerning the Darfur referral. Instead, China had always urged to re-establish mutual trust between the parties on all sides and considered it essential to the resolution of those protracted conflicts in Sudan and Syria. In addition, China feared that the relationship between the Security Council and the States parties to the ICC Statute would be further compromised as demonstrated in the reaction of the African States with respect to the arrest warrants issued by the ICC Prosecutor against the Sudanese leadership and their refusal to cooperate under the Rome Statute. Fully aware of those consequences, China vetoed in favour of the Libyan referral yet made reservations as to the precedential value of the Council's action and thus in its ability to judge impartially how to respond to such threats to international peace and security in the future.

IV.C. The governance of relationships

76. While trust is one of the essential ingredients to establish relationships between actors on the international plane, the task of relational governance is also directed towards harmonizing and thus managing relationships towards harmony by enhancing "people-to-people trust so that good governance can be lasting and sustainable", as Qin postulates.142 Without relationships society cannot exist according to Confucian philosophy, and if projected to international society, relationships between international ° actors are equally indispensable to the international order and its various members. o Qualitative relationships between actors rather than rule-abiding States and individuals e would from the relational governance perspective be more effective for global govern- o ance than the latter. Consequently, if the international order is driven and shaped by h harmonious relationships between the respective actors then international norms can / be entrusted to it since its subjects are ready to accept those norms even if they may i affect their individual interests negatively. A harmonious relationship necessarily can | withstand adversity and naturally evolves into other phases of a dynamic and o complex relationship in the first place. r

77. In addition, from this perspective, it is the normativity of international norms U which depends on the nature of the relationship which gives proper meaning to the 3 international order rather than only on the binding character of the rules themselves. r Though relationships between actors on the international plane are always in motion t and subject to other changes within the international environment, their cultivation n through mediation and peaceful resolution of conflicts between them - also pursuant to the purposes and principles of the UN Charter and the Five Principles of Peaceful 3 Coexistence, can transcend some of the differences which have divided them yet P only temporarily and bring them back to their almost natural state of harmony. Unsur- | prisingly, from the Chinese perspective, the development of international norms which 3 govern the use of force or other forms of coercion - in defiance of the moral values such 3 as peace, humanity and accountability - undermines the very nature and objective of its r harmonious world order.143 Only normative power will lead to a sustainable world 3 order whereas violence destroys the very fabric of relationships which constitute the F international order - hence the importance to govern and manage relationships | upon such basis and for such purpose. y

78. As one of most important bodies in international peace and security, the Security „3

Council has the capacity and mandate to take appropriate measures to restore and main- 1

tain international peace and security. As discussed above, trust must be present amongst the conflicting parties on the ground, vested in the Council itselfas well as amongst the members of the Security Council to be able to effectively implement its measures to restore and maintain peace and security in the countries in question. Such measures

142 Yaqing Qin, above n.132, 134.

143 Ibid., 137.

inevitably involve the governance of relationships between the conflicting parties and the unity of the Council to be able to take decisive action accordingly. Regarding the former, the Council's role is indeed limited to restoring relationships yet it can create such an "environment conducive to negotiations" as it emphasized most recently with respect to the Syrian crisis.144 The establishment ofvarious UN peacekeeping missions prior to or in the aftermath of the Council' s resolutions authorizing the use of force or a referral of a situation before the ICC demonstrated the Council's commitment to put in place all tools that may assist in bridging much of the differences during and in the aftermath of conflicts in those respective nations. In addition, China has persistently insisted on the need to find a comprehensive political settlement in places like Ivory Coast, Mali, Libya, Serbia, Sudan, and Syria thus urging the parties involved to sit at the negotiating table and work together on the restoration and maintenance of their fragile relationships as seen earlier on.

79. Like with any dynamic relationship, the relations amongst the members and in e

particular the permanent members of the Security Council have experienced their ups and downs and have affected the ability of the Council to exercise its mandate accordingly. China has often praised the restored unity of the Council and its capacity to function constructively again towards peaceful resolutions of conflicts across the world - especially in the aftermath of the Iraqi occupation by the US or when it found a consensus to address the humanitarian consequences of the chemical weapons used in Syria. From the relational governance perspective, the harmonization ofthe relationships between the members ofthe Council is indispensable in the exercise of its mandate.

IV.D. Synthesis through process

80. According to Qin, the theory of relationality "claims that relational networking in international society helps nation-States to form their identities and produces international power".145 In addition, the interaction between such identities and power of actors on the international plane itself gives meaning to the international order, the norms as well as those identities within that order. The very dynamic processes of the interplay of relationships between actors on the international plane establish an international order which in its turn gives meaning and thus identity to the subjects within. This is unlike the rule-based governance model which aims to govern individual actors on the international plane and submit them to international norms which themselves have been the product and outcome of a struggle of power between those actors leaning more towards a sovereignty or community driven approach respectively in

144 Statement by the President of the Security Council on "The Situation in the Middle East", S/PRST/2015/15(17 August 2015), at 1.

145 Yaqing Qin, above n.131, 80-81.

V. Conclusion

83. The role of the international law of co-progressiveness and the theory of relationality advanced respectively by Sienho Yee and Yaqing Qin have been instrumental in better understanding China's evolving attitude on its own Five Principles of Peaceful Coexistence which from a Western perspective have been at odds with its voting behaviour in the Security Council which authorized use of force and referrals of situations before the ICC which have affected regime change in a number of countries. In particular, the moral values underpinning the international law of co-progressiveness can - from the Chinese perspective - be realized by virtue of a process of internal inducement which propels nations to defend peace, foster humanity and enhance accountability. China's behaviour regarding the protection ofthese values through the various complementary modes of interference of the Security Council shows proof of its sensibility to ensure

favour of territorial integrity and political independence or interference and use of force within the domestic affairs of States.

81. Indeed, rule-based governance seeks to rule over those individual actors by virtue of abstract and universal norms whereas relational governance highlights the importance of a harmonious world order above rules whose sense of community and belonging is shaped by concrete relationships amongst its diverse members. Those often-conflict-ual relationships are inherently part of such order and naturally and gradually evolve into a new synthesis which combines opposing identities and power interests. Such an outcome remains conditional upon the responsibility of the actors on the international plane to fully participate in the negotiations on socio-political arrangements which manage the complexity of their relationship in a given community, international body or nation State so that expectations of those participants can be further aligned in a spirit of mutual trust and benefit. Such agency can contribute to the progressiveness of international norms which are commonly underpinned by a morality that puts e human flourishing central to its normative framework, i.e. in favour ofpeace, humanity and accountability.

82. As with the international law of co-progressiveness, the development of relationships towards a harmonious world order through a dynamic process of conflicting arguments in favour of sovereignty or community may well evolve into a compromise which accommodates those norms and institutions which protect the moral values of peace, humanity and accountability by virtue of their normative rather than through external coercive power. As examined in the cases before us, the internalization of such values may need more time to nurture as do the relationships between national, regional and international share- and stakeholders to restore and maintain the cooperative relationships in order for those responsible actors to find a common understanding on how to protect the very cardinal values which underpin the harmonious world order and the l international law of co-progressiveness through peaceful means.

that national, regional and international actors by virtue of internally-driven inducement at their own pace as well as non-coercive dialogue and external inducement can find a common understanding on how to protect those values in the first place. In addition, the theory on the international law of co-progressiveness - as developed by Sienho Yee - both in its descriptive observations and normative position is not limited to understanding China's behaviour and position towards the international legal order alone; it has broader applications as evidenced in the diverse stances by other members of the Security Council in the debates concerning the norms of noninterference and intervention affecting regime change discussed within its seat.

84. In order for certain practices of the Security Council especially with respect to the authorization of the use of force in situations which are not explicitly covered by the UN Charter to be fully internalized, a number of determinants are essential for the effective implementation and enforcement of existing and new international norms. According to Yaqing Qin's theory of relationality applied to relational governance, trust is the indispensable factor to build, restore or maintain relationships between national, regional and international share- and stakeholders to ensure that the application of international norms finds a fertile soil. Absent such a sustainable relationship, measures undertaken by the Security Council pursuant to its mandate to restore and maintain international peace and security will remain in vain. In addition, effective governance necessitates managing relationships between and amongst those various actors on the international plane in order to find a synthesis which is flexible enough to face adversity and future conflict. The complexity and dynamic nature of relationships however inevitably involves responsibility of all actors towards mutual cooperation and knowledge about the other. Such may also be a next step towards a more nuanced understanding of China' s idea of a harmonious world order.