Published: 29 August 2023 Author: Stefan Talmon
On 13 July 2023, about one month after the unveiling of Germany’s first ever National Security Strategy (NSS), the Federal Government adopted its long-awaited comprehensive Strategy on China. The 64-page document aimed ‘to present the Federal Government’s views on the status of and prospects for relations with China’. In both, the Strategy on China and the NSS, China was identified as a ‘partner, competitor and systemic rival’. In a keynote speech at the annual China Forecast event of the Mercator Institute for China Studies in Berlin in January 2022, the Minister of State at the Federal Foreign Office, Tobias Lindner, had stated with regard to FUTURE Sino-German relations that ‘[w]e want to cooperate with China, wherever this is possible based on international law and within the framework of the rules based international order.’ International law and the rules-based international order thus featured prominently in the new China Strategy.
The Strategy referred to ‘international law’ sixteen times. Compliance with international law was identified as one of the Federal Government’s core values and interests. It was said in the document:
Compliance with international law standards and agreed commitments forms the basis for peace and makes international relations predictable. All UN members are obliged to resolve conflicts peacefully. Respect for all states’ sovereignty and territorial integrity and the prohibition of the threat or use of force are fundamental principles of the international order.
By expressly focusing on compliance with international law in its China Strategy, Germany intimated that China was not complying with some of its obligations under international law, including China’s obligation under customary international law to readmit its nationals, its obligations under the United Nations Convention on the law of the Sea, its obligations under the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, and its obligations under the WTO agreements. Most importantly, the Federal Government took issue with China’s human rights record and accused it of ‘relativis[ing] … the status of human rights.’ It said:
The expansion of the role played by the Communist Party of China and the focus on security and stability have been accompanied by backsliding on civil and political rights, including freedom of the press and opinion. Ethnic and religious minorities’ cultural expression and identity are also under pressure; examples of this include human rights violations in the Autonomous Regions of Xinjiang and Tibet reported by the United Nations, among other bodies. Contrary to its pledges and commitments under international law, China has eroded Hong Kong’s autonomy, curtailed civil liberties in the region and reduced its people’s scope for action in the political sphere.
The Federal Government also took issue with China’s approach to human rights more generally. Unlike Germany, China focused less on individual rights and freedoms, but rather stressed collective rights vested in the State and obligations that individuals owe to society. It prioritised the right to economic development over all other rights, especially civil and political ones. Another tent of Chinese human rights doctrine was that States were entitled to implement their human rights obligations on the basis of their historical, political, economic and cultural conditions. China also advocated a more traditional concept of State sovereignty and therefore considered any criticism of its human rights record as unlawful interference in its internal affairs. The Federal Government countered this approach with its own vision of human rights, stating:
We respect every country’s individual history and culture. At the same time, universal human rights cannot be watered down. They are inalienable and apply worldwide. Germany is committed to promoting and upholding universal human rights. Economic development and human rights are not a contradiction in terms. …
The Universal Declaration of Human Rights states clearly that rights and freedoms apply equally to all people. In our relations with China, we will continue to call for human rights to be upheld, including in concrete individual cases. This applies in particular to serious human rights violations, including against the Uighurs in Xinjiang, which have been reported also by the United Nations, the situation in Tibet and Hong Kong and the situation of ethnic and religious communities, as well as the significantly worsened situation facing human rights defenders. We will support freedom of opinion and the press online and offline, scope for civil-society work, and respect for the rights of social minorities.
The Federal Government vowed to continue to speak out on grave violations of human rights in China, saying:
Respect for human rights is one of the three pillars of the UN system. We will continue to issue statements on the human rights situation in China, together with partners, in the UN Human Rights Council, in the United Nations General Assembly Third Committee and, if appropriate, also in the Security Council and the specialised agencies.
The Federal Government also committed to protect human rights in China, including by using the European Union (EU) global human rights sanctions regime. It also stated that it would use export controls to ensure that goods and technologies from Germany that are subject to authorisation would not be used for systematic human rights violations in China. In addition, human rights protection would influence Germany’s trade policy and investment in China.
For Germany, China’s human rights record, however, had not only a legal but also a political dimension. The Federal Government stated:
Respect for human rights is not only a fundamental obligation under international law but also has an economic aspect. No competitive advantages may be allowed to arise from human rights violations. China has ratified both of the International Labour Organization’s fundamental standards prohibiting forced labour; the comprehensive practical application of these standards is of particular importance to the Federal Government, which is committed to preventing products made by forced labour from being sold on the European internal market.
In order to ensure a level economic playing field, Germany announced that it would support EU measures banning products made by forced labour, including products from China.
The Federal Government also accused China of undermining international law through its conduct in the Indo-Pacific and, in particular, the South China Sea. It stated:
In the Indo-Pacific, China is being increasingly assertive in striving for regional hegemony and in this process calling principles of international law into question. …
The Federal Government is using bilateral dialogues to call on China to comply with its commitments under international law under the Convention on the Law of the Sea (UNCLOS) and the binding UNCLOS award of 2016 on the South China Sea. Germany and the EU also have interests in the South China Sea, as challenges in the fields of upholding international law, preserving security, and meeting the needs of foreign trade, climate change mitigation and biodiversity conservation overlap there. The Federal Government will advocate for the rights and freedoms of all states under UNCLOS on a regular basis and reinforce them through maritime patrol missions.
The situation in the South China Sea remains tense, due to unresolved territorial disputes and increasing militarisation. We support efforts to create a substantive and legally binding code of conduct between China and the ASEAN Member States that is in compliance with the UN Convention on the Law of the Sea. The stability, security and navigability of this important transit route for the international transport of goods and raw materials must not be jeopardised by the projection of military power and unilateral action that would violate international law.
THE RULES-BASED INTERNATIONAL ORDER
Germany had been a champion of the ‘rules-based international order’ for several years. It thus did not come as a surprise that the term also played a prominent role in the China Strategy paper. The document included fourteen references to the ‘rules-based international order’ and another four just to the ‘international order’. Surprisingly, however, there was no reference at all to the ‘free international order’ – a term that featured prominently in Germany’s NSS, which had been unveiled just a month earlier. In both documents, China was identified as a threat to the existing rules-based international order. It was stated that ‘China moves away from the norms and rules of the rules-based international order.’ For Germany, this order was based on ‘the UN Charter, universal human rights and international law’. It was ‘the foundation for balancing interests fairly between, large, medium-sized and small countries and the prerequisite for peaceful coexistence.’ It was ‘inclusive, not targeted against anyone, and facilitate[ed] cooperation with every country that respect[ed] its fundamental principles.’ The Federal Government identified the rules-based international order as one of the arenas where the ‘systemic rivalry’ between Germany and China would be played out. It stated:
This systemic rivalry is reflected in the fact that Germany and China have different concepts of the principles governing the international order in important areas. The Federal Government is observing with concern how China is endeavouring to influence the international order in line with the interests of its single-party system and thus to relativise the foundations of the rules-based international order, such as the status of human rights.
The Federal Government also stated that strengthening the rules-based international order was ‘at the core of our foreign policy.’ It vowed to defend and protect that international order against any reshaping by China.
For Germany, the future international order was being determined to a greater extent in the Indo-Pacific region than elsewhere. This explains Germany’s increased interest and focus on the Indo-Pacific, as evidenced by the adoption of the Federal Government’s Policy Guidelines for the Indo-Pacific in August 2020. China was seen as being increasingly assertive in striving for regional hegemony in the Indo-Pacific. In this connection, the Strategy paper expressly mentioned the unresolved territorial disputes and increasing militarisation in the South China Sea and the tensions across the Taiwan Strait. The Federal Government underscored its commitment to preserve and defend the rules-based international order in the Indo-Pacific ‘through discussions on international law’, but also through military and armaments cooperation with close partners in the region and through a temporary military presence there, including German naval patrols and German participation in multinational joint military exercises. The latter indicates that Germany assumes that the rules-based international order may ultimately have to be defended on the battlefield.
For Germany, the United Nations system – the United Nations and its specialised agencies – was ‘at the very core of the rules-based international order.’ Dealing with China in the United Nations was thus a key aspect of the Strategy on China. The Federal Government gave the impression that it had to protect the United Nations system against China. The Strategy document said in the relevant part:
The Federal Government notes that, in the United Nations, China places its own interests above multilateral principles and that, when it introduces new initiatives, it attempts to redesign UN policies and programmes to its own liking.
The Federal Government was also concerned that Chinese candidates for UN positions would not respect the principles of the organisation, would not place the interests of the UN system above those of their country of origin, and would not observe the principle of neutrality.
Despite the criticism of Chinese policies and practices, the Chinese Government’s reaction to the Federal Government’s Strategy on China was rather muted. The Chinese Embassy in Berlin issued a statement, which read in part:
China always attaches importance to developing relations with Germany and is willing to work with Germany to implement the outcomes of the seventh China-Germany intergovernmental consultation and deepen exchanges and practical cooperation in various fields. However, to develop bilateral relations, we must uphold the basic principles of mutual respect, equality and mutual benefit. China firmly opposes any interference in its own internal affairs related to Taiwan, Xinjiang, Hong Kong, maritime interests and human rights. China will firmly oppose any attempt to discredit China and undermine its core interests in order to defend its national sovereignty, security and development interests.
Given the geopolitical rivalry between China and the United States, one reason for the muted response may have been to avoid pushing Germany further into the US camp.
Category: International law in general