The US has always been selective about which treaties it signs up to and has from time to time stood accused of claiming the status of ‘exceptionalism’ from the application of international law. But any reduced US engagement from leadership of the rules-based international system would open up a vacuum, which China may seek to fill.
Such a change would not happen overnight, but China has been quietly strengthening its international legal capabilities and a more isolationist US under President Trump could be just the opportunity for it to deploy law more effectively as part of its foreign policy agenda.
China may seem an unlikely beneficiary of any US pullback in this field, especially in light of its strong rejection of the recent South China Sea arbitral award and accompanying claims that international law is biased against it.
But Beijing has long admired US success in yoking international law to its interests and in recent years has resolved to emulate this feat.
In 2014, the Central Committee of the Communist Party called on China to strengthen its ‘discourse power and influence in international legal affairs’ and ‘use legal methods to safeguard China’s sovereignty, security and development interests’.
A Chatham House project on China and the future of the international legal order is tracking and evaluating delivery of this commitment. Concrete steps taken by China include new policy mechanisms to strengthen international law analysis, review proposed foreign policy decisions and improve coordination between ministries on international legal matters; a hiring spree of international law graduates for the Ministry of Foreign Affairs; and more legal postings to Chinese embassies and missions.
China has begun to project its stronger capabilities via an international law training and exchange programme with Asian and African countries. It is also experimenting with norm entrepreneurship in newer areas of international law, where it hopes to exert more influence, including cyber governance.
In many respects, and despite an air of confrontation building over such issues as the status of Taiwan and China’s sovereignty claims in the South China Sea, Beijing stands to profit from the shifts on international law signalled by Trump.
Proclaiming that America ‘cannot be the policeman of the world’, Trump has questioned the value for money of security pacts, such as NATO and those with Japan and South Korea, that are cornerstones of the post-Second World War collective security regime engineered by the US and underwritten by its vast military power.
Any US retreat from ‘liberal interventionism,’ especially military operations on humanitarian grounds, and human rights promotion will steer it into closer alignment with China (and Russia), which regards both as violations of the principle of non-interference in the domestic affairs of other states.
Traditionally, China has also opposed treaty-based military blocs, especially in its own backyard, even if it will also be alarmed by any moves that bolster Japan’s re-armament ambitions.
While Trump and China will both seek to harness international law for commercial ends, Trump’s agenda is protectionist – he has foreshadowed an end to US championing of free trade agreements by proposing to re-negotiate or withdraw from NAFTA and abandon the Trans-Pacific Partnership, which has not yet entered into force. In contrast, China is ever more outward looking, as its support for the pan-Asian Regional Comprehensive Economic Partnership demonstrates.
These sorts of developments present opportunities for China to contrast itself with the US as a champion of international legal norms and institutions.
Under Trump, US enthusiasm for initiatives designed to promote global public goods, or shore up the liberal international order, may be reduced in favour of a more hard-nosed, transactional approach driven by pursuit of economic gains. Withdrawal from the Paris Agreement on climate change, which Trump views as damaging to the US manufacturing sector, would be emblematic of this approach.
Already Chinese ministers are publicly warning that Trump’s threat to impose tariffs on Chinese imports ‘would be in violation of the rules set by the World Trade Organization’ and that any reversal of Obama’s leadership on international environmental law ‘won’t affect China’s commitment to support climate negotiations and also the implementation of the Paris Agreement’.
To date, the US has played a far more dominant role than China within the international legal order. But by drawing back at a time when China is building up, Trump could make this a site of real competition. China will not eclipse the US as an international law powerhouse anytime soon, but if Trump’s campaign rhetoric is translated into US policy, the tables may begin to turn.
Sonya Sceats has been an associate fellow in the International Law programme at Chatham House since 2005. Her area of expertise is international human rights law and institutions.