Penn Law Professor Jacques deLisle interviews Visiting Scholar Xinjun ZhangJanuary 05, 2019
Reposted from an earlier interview.
Q: Could you tell us about your areas of teaching and research and why you wanted to come to Penn Law School for the year?
A: I teach international law at Tsinghua University Law School in Beijing. International law, as we know, has many subfields. My research is mostly focused on the Law of the Sea and environmental issues. Last year, I was very fortunate to have the opportunity to be accepted as a Fulbright scholar to come to the US. My Fulbright research proposal was on law and climate change. Some would say that climate change is the new important issue in international law. It will become a “Law of the Air” after the Law of the Sea as a major issue area for the future of the international legal order. The U.S. and China, of course, will play very great roles in shaping that order. I wanted to come to Penn in part because of the long history of friendship and cooperation between Tsinghua and Penn. The famous Chinese architect Liang Sicheng studied here long ago. Our two law schools also have a strong history of cooperation. I felt I could contribute to and benefit from that. I also wanted to come to Penn because of Penn’s renown as a center for interdisciplinary approaches to legal research. Climate change is a topic that requires attention to more than purely legal issues. It has much to do with economics, environmental sciences, and more - all mixed together. I feel personally honored to have the chance to study and to carry on my research here.
Q: You just won an award for an article you’ve written on the precautionary principle in international environmental law. Could you tell us about that?
A: The precautionary principle is a revolutionary concept in international law. It requires states - and potentially other actors subject to international law - to take measures, or at least cost-effective measures, to prevent harms, including environmental harms, even where the usual standards of legal responsibility - the usual proof of causation of harm - are not met and where harm has not yet happened. If the precautionary principle becomes accepted, much will have to change in international law. States’ legal responsibilities could increase a great deal. It is really a very interesting topic and very hard. In the article that won the award, I addressed partly these issues of state responsibility. I also very much questioned whether the precautionary principle had the status of customary international law, as many international law scholars have argued. The fundamental reason that it probably does not is that many countries are not prepared to accept the economic costs that would come with adherence to the precautionary principle or to accept the idea of state responsibility without proof of traditional cause and effect links between state action and environmental consequences. The article was recognized as one of the best ten articles on international law in China from 2004 to 2009. I am very much privileged to have my paper included among them. It was a big surprise for me and something I received during my time at Penn. So I attribute that success to Penn.
Q: Congratulations, it’s a terrific honor! You mentioned that one of the reasons you wanted to spend your Fulbright year here was Penn’s interdisciplinary approach to legal scholarship. To what extent has interdisciplinary thinking affected legal scholarship, and particularly international law scholarship, in China?
A: Frankly, so far, not so much. Scholarship on international law is still an early stage. The immediate task has been to deepen knowledge and study the law itself rather than going very far beyond the field. That is my personal view. This will change. International law scholarship in China will become more interdisciplinary. It has already happened in some other related fields, including international politics and international relations. Major figures in those fields in China come from varied backgrounds, including the sciences. I think international law and the other fields of legal studies in China will welcome people from different academic backgrounds to engage in specific studies on issues related to their home fields.
Q: Could you tell us more about your experiences at Penn this year?
A: I sat in on two classes that were relevant to climate change and environmental law. What I learned about U.S. environmental regulations and cases and debates over climate change law will be very helpful for my future work on the subject. Unfortunately, the stalemate at the global climate change meeting at Copenhagen made me realize that climate change law is still in a very uncertain state. Much of my work on that may have to wait. I also sat in on Professor Jacques deLisle’s class on China and International Law. It was very interesting to discuss and listen to his and the students’ views on international law, approaches to international law in China and the roles of international law in China’s management of foreign relations, including of course with the United States. I also continued my research on Law of the Sea issues, especially in the context of China-Japan maritime territorial disputes. I had the opportunity to make two presentations on this issue with the Foreign Policy Research Institute. I developed an article from one of the speeches. And I managed to write much of a book on Law of the Sea issues.
Q: You have had a very productive year. You mentioned that in sitting in on my class - which we could more accurately describe as co-teaching my class - you had a chance to observe American perspectives on how China engages in international law. You obviously have a Chinese perspective on how China engages in international law. How would you characterize changes, if any, in China’s attitude toward international law in recent years or decades?
A: My personal view is that we somehow used to be very ideological in viewing international law. We pretty much saw international law as something for - maybe the word is not quite right - propaganda purposes. But today, I think that China sees international law at least as a very important instrument in handling its relations with the other countries. I think I am quite confident that the momentum of these changes and that the Chinese emphasis on international law to handle foreign relations issues will keep going. I think that international lawyers in China may contribute more in helping to support the positions by the government in terms of providing the professional opinions they need. I think that we Chinese international law scholars and international lawyers are also very much ready to cooperate with our colleagues in Japan and the U.S. and elsewhere to help with this trend, to develop a mutual or common understanding of the problems we collectively face and how to settle disputes among states through the rule of law.
Q: You observed American approaches to international laws when you were in China, and you have also seen them more up close in the U.S. this year. What would you see as some of the significant differences between the way China and the U.S. - or Chinese and Americans - approach international law issues?
A: I see some very different views and perceptions of international law in the U.S. During the past year, a symposium on Philosophical Foundations of International Law, hosted by Penn Law and organized by Professor Claire Finkelstein. To my surprise, the first topic was whether international law was really law. This kind of very fundamental question and philosophical thinking on international law is really interesting to me. In China, many of my international law colleagues work and think more like lawyers in practice. They were never taught the philosophical foundations of the field. They more often want to interpret doctrines and treaties or supply legal opinions to the government or other organizations.
Q: What effect do you think your time at Penn is likely to have on your work?
A: I think, what I learned here, and what I did here, on many subjects will contribute quite a lot in my future career. I am very grateful and thankful for such a good opportunity.
Q: It’s been a real pleasure for us having you here. And one of the highlights, for me, was your role in my seminar on China and International Law where you had an opportunity to observe a mixed group of students, mostly American law students, and some others as well. What struck you as the differences in the classrooms that you’ve experienced teaching in China, and what you saw teaching in my class here?
A: I think that students here are more active and more willing to argue, which is really good for law students. In China, I think we need to design some mechanism in the classroom to encourage students to think they can argue. That is also what I learned here.
(Response from Professor deLisle) I think you and your colleagues may already be doing that. You’ll recall that in the seminar that you and I participated in this year, one of the students who was most willing to express viewpoints and to take on the professors was a student from China.