This is the third in a series of articles addressing the strategic role of international law in an environment where realpolitik dominates. The authors examine the extent to which international law may function as a "guardrail" that may deter a State from the most flagrant violations of international norms. Focusing on four well-known Chinese violations of international legal norms, the authors conclude that while international law is an effective means of marshalling international support, it remains limited as a means to deter violations, particularly when large state actors are involved and the treaties restricting policy space lack strong enforcement mechanisms.
"Even the finest warrior is defeated when he goes against natural law. By his own hand he is doomed and all creatures are likely to despise him."2
Introduction
This is our third piece examining the role of international law in strategic studies. Realists now dominate strategic thinking and frame international relations through a state-centric lens where power and wealth take precedence. Within this framework, we set out to address the strategic role that international law can play in an environment where realpolitik dominates.
In our first article3 we established that international law plays a strategic role in international relations and more specifically in strategic thinking. Nations wield international law to: (i) chart a moral roadmap, (ii) coalesce rules of international behaviour, (iii) construct an international consensus, and (iv) provide a basis for economic and political measures including alliances among like-minded nations.
In our second article4 we examined the treatment of rule-breakers – focusing on the retaliatory measures that may follow serious breaches of international law – specifically, the political and economic actions taken by western allies against Russia following its invasion of Ukraine. We concluded that a nation's failure to abide by its international legal obligations may distance it from the community of nations,5 weaken its international influence, and result in economic and political sanctions. We also concluded that had the Unted States and Europe opted for a more aggressive legal approach in the form of treaty admitting Ukraine to NATO, or perhaps the EU, Russia would have been far less likely to invade Ukraine.
In our third article, we examine the extent to which international law functions as a "guardrail" that may deter a State from the most flagrant violations of international norms. We focus on four well-known Chinese violations of international legal norms: its actions in Hong Kong, the South China Sea, its treatment of the Uyghurs, and under WTO rules.6 We conclude that while international law is an effective means of marshalling international support, it remains limited as a means to deter violations, particularly when large state actors are involved and the treaties restricting policy space lack strong enforcement mechanisms.
A) Hong Kong: Bilateral Treaty Violations
On 19 December 1984, the governments of the United Kingdom and China signed The Sino-British Joint Declaration on the Question of Hong Kong. Important provisions of the Declaration include China's decision to grant Hong Kong a high degree of autonomy except in foreign and defence affairs;8 maintain basically unchanged the laws currently in force in Hong Kong;9 maintain unchanged the current social and economic systems and Hong Kong's life-style; and ensure by law rights and freedoms in the Hong Kong Administrative Area, including freedom of speech, press, assembly, and association.10 These short-lived guarantees were supposed to endure for 50 years beginning 1 July 1997.11
In a 2023 report, the US State Department listed numerous human rights violations in Hong Kong including:
[…] credible reports of: arbitrary arrest and detention; serious problems regarding the independence of the judiciary; political prisoners or detainees; transnational repression against individuals outside of Hong Kong; arbitrary interference with privacy; serious restrictions on freedom of expression and media freedom, including unjustified arrests or prosecutions of journalists and censorship; substantial interference with the freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; restrictions on freedom of movement and on the right to leave the territory; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious government restrictions on domestic and international human rights organizations; and significant restrictions on workers' freedom of association, including coercive actions against independent trade unions and arrests of labor activists.12
China's bilateral agreement with the United Kingdom established parameters within which China and the United Kingdom were expected to operate. However, as this agreement had no meaningful mechanism to ensure compliance, China was not deterred from violating its provisions. China's violation of the Joint Declaration reduced the international community's trust in China and negated the trust necessary for President Xi to reach a deal with Taiwan's leadership on peaceful unification. Had China fulfilled its legal commitments vis-à-vis Hong Kong, a one country two systems arrangement between China and Taiwan may have been more tenable. But, as one country two systems did not work in Hong Kong, it is even less likely to work in Taiwan given the present level of its democracy.
B) The South China Sea Arbitration: Breach of UNCLOS
On June 7, 1996, China ratified the United Nations Convention on the Law of the Sea (UNCLOS),14 agreeing to the Treaty's compulsory dispute settlement provisions.15 Despite acceptance, China refused to participate in The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China)16 which then proceeded based on Annex VII, Article 9 of the Treaty.
The South China Sea Arbitration involved China's extensive territorial claim over land masses in the South China Sea predicated on the so-called "nine-dash line".17 The Tribunal's 12 July 2016 Final Award found that "there was no legal basis for China to claim historic rights to resources within the sea areas falling within the 'nine-dash line' and that "none of the features claimed by China was capable of generating an exclusive economic zone".18
China's decision to ignore the Tribunal's final award has impaired its relationship with Malaysia, Vietnam, the Philippines, and Brunei all of which have territorial claims in the South China Sea.19 China's military, naval, and coast guard presence in the region continues to grow, as do its naval grey zone operations.20 These actions have further damaged China's international legal standing, and relationship with these countries.
In response, the United States and its allies have begun to act, including their own grey zone operations. In April 2024, the United States, Japan, Australia, and the Philippines21 conducted naval drills off the coast of the Philippines, and the United States is asserting its maritime rights in the South China Sea through Freedom of Navigation Operations.22 Indonesia, Vietnam, and Malaysia also continue to pursue oil and gas projects in contested areas.23
The UNCLOS Treaty established guardrails within which signatories are expected to act. But again, there is no way short of force to enforce Philippine and other claims. China's breach of its UNCLOS treaty obligations has heightened regional tension, increased the risk of confrontation, and reduced China's stature worldwide. Once again, a nation's failure to abide by its international legal commitments has distanced it from its neighbours and weakened international trust. Nevertheless, international law has only proven effective to marshal international support. It has proven ineffective to curtail China's territorial ambitions.
C) The Uyghurs: Human Rights Abuses
On 31 August 2022 the Office of the United Nations High Commissioner for Human Rights reported on China's treatment of the Uyghurs.24 The report documented deprivations of liberty, arbitrary detention based on ethnic identity without due process, allegations of torture and other forms of cruel, inhuman or degrading treatment, sexual and gender-based violence including rape, restrictions on Muslim religious practices, indications of violations of reproductive rights, indications of coercive employment schemes, and patterns of family separation.25
Citing China's genocide against the Uyghurs,26 the United States imposed import, export, investment, and visa restrictions on China under the Uyghur Forced Labor Prevention Act (UFLPA).27 These sanctions target companies, individuals, and the trade of products associated with China's human rights violations in western Xinjiang region.28 Europe has also imposed a limited travel ban.29 In addition, products produced by Uyghur forced labour may run afoul of the EU's new Forced Labour Regulation30 and its Due Diligence Directive.31
China's violations of international law in Xinjiang Province serve as a basis for US and EU economic sanctions, and EU Directives and Regulations. This response demonstrates the utility of international law to establish a moral roadmap, unify public opinion, and strengthen alliances among like-minded nations. These responses are consistent with the American and European trend to use economic policy as a lever to advance human rights, labour rights, and environmental goals. Again, these are normative guardrails. Although international law has proven effective to corral public opinion, it has yet to improve the plight of the Uyghurs.
D) WTO Treaty Violations
The United States accuses China of systematically violating treaty obligations arising under international economic law, specifically the WTO Agreement. In a report issued near the end of the Biden Administration, the United States Trade Representative, characterised China's WTO compliance as "poor" and its trade regime as "predatory".32 The United States faulted China for its "state-led, non-market approach to the economy and trade, which relies heavily on significant interventions in the market by the Chinese government…".33 It also criticised China for many other violations of the WTO Agreement: adopting subsidy-based industrial policies that seek to dominate certain targeted industries, violations of the WTO Agreements transparency provisions, according impermissible preferences to its state-owned enterprises, theft of intellectual property, trade secrets and confidential business information, impermissible efforts to favour the incorporation of local content in Chinese made products, and establishing unique national standards that favour Chinese producers. It also accused China of lax enforcement of environmental rules, and persistent violation of generally accepted international labour law norms (forced labour, absence of collective bargaining, etc.).34
This report built on an earlier USTR report accusing China of violating the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement).35 The United States Trade Representative's "2024 Special 301 Report" devoted considerable attention to China's alleged TRIPs violations.36 China is cited for inadequate trade secret protection and enforcement,37 the production, distribution, and sale of counterfeit medicines, fertilizers, pesticides, and under-regulated pharmaceutical ingredients.38 China is also cited as a leading source for the sale of counterfeit goods through e-commerce, widespread online piracy and the production and sale of systems that facilitate copyright piracy,39 obstacles to patent enforcement,40 bad faith trademark registrations,41 erroneous trade mark refusals,42 the grant of poor quality patents,43 and the "decrease in transparency and the potential for political intervention" in its judicial system.44 China remained on the US Priority Watch List for 2024, meaning its intellectual property system was subject to monitoring.45 China is also listed as the European Union's "Priority 1" country for IP monitoring,46 and was until 2 April 2025 the subject of a WTO intellectual property dispute settlement proceedings brought by the EU.47
China's alleged WTO violations have aggravated its trade relationships with the United States and the European Union and brought into question China's desire to adhere to its WTO commitments. China's actions and inaction are providing considerable ammunition for the newly elected Trump administration which seems intent upon targeting China's trade policies.
Again, international law, in this case international economic law, has set clear norms for WTO members, but it has proven relatively ineffective at deterring violations by larger nations. Nevertheless, China has made some progress improving its IP regime. This suggests that export dependent nations, like China, may be more inclined to strengthen conformity with international economic law (WTO rules) since these rules further their direct economic interest.
Conclusion: International Law's Role in a Strat-Dominated World
From a statecraft perspective, international law served American and European interests politically after Russia invaded Ukraine. Russia's violation of Ukraine's sovereignty in defiance of international law resulted in a stronger NATO alliance and decreased dependence on Russian energy resources. Under the banner of international law, the Americans and Europeans gained the moral high ground, but at considerable economic cost. Is the same beginning to hold true with China? It is harder to say under the Trump administration. We nevertheless offer the following observations.
China's more aggressive military posture vis-à-vis Taiwan and the South China Sea has heightened its neighbours' suspicion, and that of the United States and Europe, and is helping to further a collective response. China's disregard for portions of The Sino-British Joint Declaration, UNCLOS, human rights instruments, and the WTO Agreement undermine China's long-term credibility and are sources of concern that influence collective decision-making. China's repeated disregard for its international legal obligations has enabled Western nations to strengthen their military, economic, and strategic partnerships in Asia. As a result, China now faces US trade and investment sanctions, travel restrictions, and coordinated naval manoeuvres. Its EU supply chains are also under increasing scrutiny.
Russia and China's violation of international norms governing state sovereignty, territorial integrity, trade law, and human rights have elicited concerted US and European responses. But these responses have not resulted in a major change in either Russian or Chinese behaviour. International law has proven to be an effective rallying cry, but only that. Russian troops remain in Ukraine. China continues to threaten Taiwan and mistreat the Uyghurs, and to pursue an expansionist agenda in the South China Sea. Under the Trump administration, the problem has become more complicated. It is difficult to predict how President Trump will respond to continued Russian aggression against Ukraine, or Chinese threats against Taiwan.
In conclusion we find that the role of international law in a strat-dominated world remains limited. It establishes guardrails that aid the United States and its allies to marshal public opinion but alone is unable to solve complicated international problems among major powers unless there is buy-in from the parties to a dispute. This guardrail function nevertheless remains important. Admittedly Russia ran roughshod over these guardrails, but China is a more careful actor. Of course, there are fundamental differences between Russian and China. China is much more integrated into the international economy, and much more dependent on the import of the primary products needed to produce the finished goods on which its prosperity depends. As a result of its trade dependencies, China may eventually become more sensitive to international economic law and may in the long-term value greater compliance with WTO rules.48 Again, this is difficult to predict given the unilaterally imposed tariffs which the Trump administration has levied against China.
For now, China seems to understand that political power does not always grow from the barrel of a gun – it can also bloom from peace and economic prosperity. China's domestic support is deeply intertwined with its economic development and prosperity. This prosperity is contingent upon stable supply chains, maintenance of its trade relationships with the United States, Asia, and Europe, and access to natural resources from the South. China appreciates that it is living in a world of complex interdependence and many of its actions suggest a level of pragmatism that the United States and Europe seem to appreciate. This would change were China to invade Taiwan or undertake direct military action in the South China Sea. Were China to do either, it would risk disruption of trillions of dollars in trade and financial flows, which would result in a sharp reduction in the prosperity of its citizens.
To harken back to Lao Tsu, China is far from being despised for its legal failings, but it has overplayed its hand in Hong Kong, Taiwan, the South China Sea, with the Uyghurs, and at the WTO. As in the case of Russia, the United States and the European Union continue to buttress their foreign policy and strategic thinking, in part, on China's disrespect for international law. Were China to strengthen its compliance with international law, it would find that its relations with the West and its prosperity would both improve. While international law is not the mightiest weapon in the US and European quiver, its vitality as a proven means to unite nations should not be underestimated, or at least until now. When we set out to examine the role of international law in a strat-dominated world, our intention was to focus on the US and European responses to alleged Russian, Chinese, and North Korean breaches of international norms. With the inauguration of the Trump administration, and the surprising change in US foreign policy, both political and economic, it may now be time to look at recent US actions from the perspective of public international law.
About the Authors
Arthur Appleton is a Senior Adjunct Professor at SAIS Europe, and a founding Partner of Appleton Luff – International Lawyers. Arthur is also a member of the Visiting Faculty and the Advisory Board of the World Trade Institute (University of Bern) and a faculty member of the Academy of International Economic Law and Policy (AIELPO) in Athens.
Justin Frosini is Robert J. Abernethy Adjunct Professor at SAIS Europe; Director of the Center for Constitutional Studies and Democratic Development; and Associate Professor of Comparative Public Law at Bocconi University where he directs the Bachelor program in Global Law. Prof. Frosini is the co-coordinator of a research group of the International Association of Constitutional Law devoted to Constitutionalism in Illiberal Democracies and he is a member of the Advisory Board of the Max Planck Encyclopedia of Constitutional Law published by Oxford University Press.
Footnotes
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