The Chinese Model of Law, China’s Agenda in International Law, and Implications for Democracy in Asia and Beyond
A more influential Chinese model of law and approach to international law poses challenges for the rule of law’s contributions to democracy in other states, particularly in East Asia. These challenges stem in part from: the contrast between China’s paradigm for law’s place in domestic governance, and China’s positions on key international legal norms, and the more liberal-democratic alternatives that have held sway in the region and beyond in the post-cold war and post-WWII eras; and China’s recently growing ability and apparent will to propagate its legal model and press its international legal preferences abroad. As Sino-US tensions mount, the prospect grows that competition between China and the United States with its allies and partners will extend to the struggle over democratization in Asia and how the rule of law plays a vital role.
China’s Model of Law and Undemocratic Politics
One threat, or potential threat, to democratic governance in other countries is the possible replication of China’s model of undemocratic politics. A factor that has increased the prospects of its international propagation is the long-emerging “pull” of the Chinese example. China’s record of economic growth and transformation has given the Chinese model luster in developing countries, especially with authoritarian rulers attracted by the prospect of increasing national wealth without endangering the regime’s political power. The appeal of a model derived from the Chinese experience has grown as China has accumulated a lengthening list of economic accomplishments: becoming the world’s second largest economy, being on track to become the largest; weathering the Asian financial crisis of the late 1990s and the global financial crisis of the late 2000s with less disruption than wealthier, market-capitalist democratic states in East Asia and beyond; and emerging as a global force across many economic sectors, including technologically advanced ones.1
In recent years, a “push” factor has become more potent. Chinese policy discourse had been skeptical about the possibility, and ambivalent about the desirability, of promoting the Chinese model abroad. China’s once much-touted soft power had evident limitations. Its political system did not hold broad appeal. Even during the heyday of the “China Model” and “Beijing Consensus” in the 2000s, observers doubted that there was a coherent “model” to be distilled from incremental and experimental economic reforms that others could try to implement. Chinese sources expressed concern that other countries might lack conditions and capabilities to reproduce what China had achieved, and failures could undermine China’s reputation.2
This reticence to promote a Chinese model of development has faded. A striking indication of this were Xi Jinping’s remarks in his report to the 19th Party Congress: “Socialism with Chinese characteristics [is] blazing a new trail for other developing countries to achieve modernization [and] offers a new option for other countries and nations who want to speed up their development while preserving their independence.”3 This shift has occurred as levers for influence with other states have grown through the international stature and influence that comes with near-superpower status, and with China’s emergence as a major—and in many cases the most—important economic partner for states in its region and beyond.
With prospects for propagation of the Chinese model almost surely rising, questions about the model’s content and implications for democracy in countries that might try to implement it are salient. The reform-era Chinese model is generally persuasively, depicted as one of impressive economic development (through a turn to market-oriented policies at home and deepened international engagement through trade and investment) and authoritarian politics (which are impressively resilient and adaptable amid the collapse of Soviet-style regimes and the advent of the since-receding third wave of global democratization), with a limited role for law.
China’s legal reality has fallen short of official declarations, reiterated and revised under leaders from Deng Xiaoping through Xi Jinping, that China is building a robust “rule of law” regime. There is less consensus about much else concerning law’s place in a Chinese model and the implications of law’s role for democracy.
Authoritarian Politics and Lack of Law
On a minimalist account, China has achieved economic growth and development despite the absence of reliable legal protection for property rights and other economic interests. From this perspective, China is possibly a fundamental challenge to claims of the Washington Consensus and some law-and-development theories, that the rule of law or rule by law is important, and perhaps indispensable, for economic success.4
The political analogue to this view of law for the economy sees little role for law in sustaining an authoritarian regime. Among the features supporting this view are the notably undemocratic content of Chinese law, including: the absence of legal requirements and procedures for direct democratic elections of representatives beyond the most basic level units of governance in the rural areas; the failure to implement fully the modest democratic requirements of the village election law; and the special legal status (including leadership over the state) accorded to the Chinese Communist Party. When ordinary citizens seek redress from, or influence with, their government, they rarely rely on the often ineffectual or unavailable ballot box or the formal legal remedies promised by administrative law. They are more likely to employ informal means, such as “letters and visits” beseeching officials to take discretionary action (including against unlawful behavior by lower-level authorities).5
Suppression and deterrence of heterodox opinions and dissent, including advocacy for democratic change, often is achieved through means outside the legal system: incarceration in the form of “reeducation through labor,” detention in “black jails” of petitioners traveling to Beijing or provincial capitals to complain of law-violating abuses by local officials, and other informal modes of detention. These have been the targets of legal reforms in recent years, but similar practices persist. In urban areas, chengguan or stability maintenance organizations, rather than the regular police, are often relied upon to address perceived threats to order. Despite formal legal prohibitions, coerced confessions persist in the criminal process, including in cases where the motivation for prosecution appears to be the political opinions and aims of the defendants, rather than the law-breaking behavior they are alleged to have undertaken. Especially in the late 2000s and again in 2015, “rights protection lawyers” (whose work includes defending those who criticize regime behavior, advocate political change, or are themselves fellow rights protection lawyers) have been harassed, repressed, and prevented from doing their legal work.
Even the regime’s attempts to deal with serious misbehavior and lawlessness in its own ranks, including the official corruption that has been the target of Xi Jinping’s signature campaign, has relied heavily on non-legal means. Corrupt or lawless officials have been far less likely to face criminal prosecution than to be subjected to the Party’s internal discipline mechanisms, including the shuanggui system, with consequences as severe as those often imposed by the judicial system.
On this legal-minimalist account, an actually or potentially influential Chinese model is both politically authoritarian and lacking in law. It is, at the very least, plausible to argue that such a low level of legality and highly authoritarian politics correlate and likely are causally related. Such an assessment is consistent with cross-national comparative data, and with empirical claims and normative assumptions of post-WWII (including some “law and development” thinking) and post-cold war (including rule of law-promotion projects targeting the former Soviet areas) US foreign policy and international NGO work. On this view, the China model is a rival template in law and politics (and, more ambiguously, economics) to the liberal or neo-liberal democratic rule-of-law model favored by the United States and like-minded states and institutions. And its relative rise in influence, possibly enhanced by Chinese policy initiatives, accordingly may undermine prospects for legality and democracy in affected countries.
Authoritarian Politics with a Distinctive Role for Law
The minimalist account may fail to capture the roles for law in the Chinese model.6 The reform-era Chinese regime has made significant investments, both tangible and ideological, in building law and legal institutions. Law has been a durable theme since 1978, when the reform era’s founding charter, the Communiqué of the Third Plenum of the 11th Central Committee, called for a new turn to law. The Jiang Zemin years brought calls for “ruling the country by law” and “building a socialist rule of law state.” Hu Jintao called the constitution the country’s “fundamental” and inviolable law and mentioned law repeatedly in his political work report to the 17th Party Congress in 2007. The 18th Party Congress political work report directed the party to operate “within the limits of the constitution and the law” and to uphold their authority. On the thirtieth anniversary of the 1982 Constitution, Xi announced that “we must firmly establish, throughout society, the authority of the constitution and the law.” The 18th Central Committee’s Third Plenum in 2013 pledged to “strengthen rule of law guarantees” and constrain power within a “cage” of institutions and rules. The Fourth Plenum—often called the “rule of law plenum”—declared the “rule of law” a guiding force in the CCP pursuit of major tasks. Xi included “governing the country according to law” among his “four comprehensive” goals, reiterated at the 19th Party Congress in 2017.
During the reform era, the National People’s Congress or its Standing Committee has enacted hundreds of major laws and many more lesser ones. The State Council and its subordinate commissions and ministries, and local people’s congresses and governments, have adopted tens of thousands of regulations and other rules with legal effect. China has opened or reopened more than six hundred law schools that have trained hundreds of thousands of lawyers, judges, prosecutors, and others who have taken legal training into jobs in the public sector. Legislatures and regulatory bodies have enhanced their law-making and law-interpreting abilities by expanding legal staffs, upgrading skills, and turning to China’s leading, often partly foreign-trained, legal scholars as advisors. These developments have been accompanied by large-scale propaganda, media, and outreach efforts to increase popular knowledge of law and legal rights. Courts annually address hundreds of thousands of suits against the state and its agents.
Although rhetoric has not translated fully into reality, law is (on the non-minimalist account) part of a Chinese model of undemocratic politics. Law has been expected to play—and, to some extent, has played—significant roles. Most notably, it has been relied upon to support development of an economy that has transitioned from Soviet-style socialist planning toward the market, from international isolation to global engagement, and from poverty to relative prosperity. Economic policies that support and reflect these transitions have been cast heavily and, for China, unprecedentedly in legal form. Laws governing contracts, disparate forms of enterprises, property and intellectual property rights, corporate governance, finance, taxation, bankruptcy, and foreign trade and investment have moved toward foreign market-oriented models and international standards. This agenda has been reaffirmed repeatedly, from the call at the 11th Central Committee’s Third Plenum in 1978 to protect the ownership and decisional autonomy rights of production units through Xi Jinping’s 19th Party Congress speech associating achievement of a moderately prosperous society with “basic” achievement of the rule of law, and from constitutional commitments to a “socialist market economy” (which a 2014 Central Committee document declared to be “essentially a rule of law economy”) to the identification of economic progress as a guiding principle in the opening articles of many laws.
Early Xi-era promises to undertake bold legal reforms to deepen economic liberalization have proven particularly hollow.7 Policies and practices favoring state-owned and state-linked enterprises, and foreign criticisms of rising Chinese protectionism and playing fields increasingly tilted against foreign firms (by China’s aggressive use of national security and anti-monopoly review, coerced transfers of intellectual property, and industrial policies that favor Chinese technology firms, among other measures), have been notable features of the Xi years. Yet, they do not, as yet, show a fundamental shift in a Chinese model in which broadly market-oriented and internationally open laws pursue economic development that promises to help sustain authoritarian politics (partly through performance legitimacy).
A second role for law has been to help address corruption, local protectionism, abuses of power or abdication of responsibility by those wielding power, and related phenomena that can undermine economic progress (and, in turn, performance legitimacy) or prompt social unrest and political protests that would signal, and perhaps accelerate, erosion of public support or tolerance for the Party’s authoritarian rule. Even formally private law remedies address breaches of contracts, non-performance of fiduciary duties to corporate shareholders, and mass torts from dangerous products or polluting factories that sometimes stem from unlawful activities of state or state-linked actors or those who count on protection from friendly or corrupt officials. In public law, administrative lawsuits monitor and can correct state decisions that harm a wide range of citizens’ vital economic and personal interests, ranging from denials of licenses to takings of property, to failures to regulate threats to public health and safety.
Criminal and administrative sanctions address behavior that is directly or indirectly inimical to political and social stability and regime legitimacy. Such state-imposed sanctions target government and party functionaries who infringe rights that laws grant to citizens and flout substantive and procedural obligations that laws impose on officials. At the same time, Chinese authorities routinely use criminal law and laws authorizing non-criminal sanctions to punish or deter individuals and groups in society that are seen as threatening social order and political control. Targets range from political activists who push for democratic change or protection of human rights, to restive Tibetan and Uyghur minorities, to peasants and workers who complain of land seizures or unpaid wages, and beyond. Legal means range from anti-terrorism laws and prohibitions of acts threatening state security (which echo now-repealed provisions on “counter-revolutionary crimes), to ostensibly apolitical offenses of disruption of social order, destruction of state property, assaults on police officers, or (especially for NGOs and dissidents) tax evasion, to the notoriously vague and capacious “pocket offenses” (which include, among other things, “picking quarrels and stirring up trouble”).
Under Xi, these issues of party-state indiscipline and social-political disorder have been especially prominent foci for law. Xi’s exceptionally ardent attack on corruption has framed the issue as a near-existential problem. Criminal prosecutions have been a prominent component of the anti-corruption campaign, targeting high-level “tigers” such as Chongqing Party chief and Politburo Standing Committee aspirant Bo Xilai, former public security chief and ex-member of the Politburo Standing Committee Zhou Yongkang, and senior military leader and former first vice chair of the Central Military Commission General Guo Boxiong, as well as numerous, lower-ranking “flies.” The Xi era also has brought increasingly sharp drives against those who are perceived to threaten order, including individuals and groups pressing a variety of pro-democracy goals, broadly defined. Notorious examples include the 709 crack-downs (including criminal charges) against rights protection lawyers, detentions (including for “pocket offenses”) of activists for the rights of women and other groups facing discrimination, and the internment of hundreds of thousands of Uyghurs in Xinjiang without formal or specific charges. Legal restrictions on Internet speech, which have always been extensive, have become more severe under Xi, with tougher “real name” registration requirements, and potential criminal liability for postings that are deemed defamatory or rumor-mongering and are viewed or reposted on even relatively modest scale, or that lead to social disorder
Although such roles for law are not new in China, they represent a two-fold Xi-era turn: within the party-state, a turn (or return) to a more Leninist conception of law as a tool for enforcing discipline and making the party-state apparatus more responsive to directives from above; and, toward society, a turn toward emphasizing threat-suppression (relative to redressing party-state-linked behavior that often underlies such threats).
A third way in which law figures in a model implied by the reform-era Chinese pattern is as a means to help avoid, preempt, or co-opt pressure for broadly democratic change.8 This function overlaps with the first two. In facilitating market-oriented, internationally open growth, law contributes to fulfilling the regime’s side of an implicit social contract: the regime delivers material well-being, and society does not challenge its authority. In addressing official and state-linked abuse and misbehavior, law provides some accountability and reduces pressure for political reform. The prospect that official lawlessness and malfeasance can foster discontent and demands for fundamental change is among the reasons for an authoritarian regime’s turning to law both to sanction wayward officials and silence activists and dissidents.
The third role for law in the Chinese model includes more quasi-democratic elements as well. Elections under the village election law have allowed public political participation, monitored or provided outlets for potentially explosive discontent in rural areas, and sought to strengthen capacity for governing. Elections sometimes have removed ineffective or despised local authorities and recruited new leaders who command popular support. On rare occasion (as in Wukan, Guangdong in 2011-12), grassroots elections have survived attempts by local authorities to overturn results and quash criticism. Legal mechanisms offer other means for popular input into lawmaking at higher levels. A law on legislation and rules on administrative procedure provide for hearings, comments, and other public input on proposed laws and rules.
But incidents such as Wukan are rare, and contested elections have not extended to higher-level offices. Opportunities for public input on laws and regulations are episodic and modest, and proposed measures often draw so many varied comments that they fail to constrain drafters who are not required to provide reasoned explanations. These forms of participation are low-level, atomized, or weakly institutionalized—and, thus, not strongly democratic. They can provide aggrieved constituents with steam-valves for expressing discontent, authorities with information about public sentiment that can make authoritarian rule both more effective and modestly responsive, and the broad citizenry with law-based mechanisms that may partly satisfy and undercut what would otherwise become demands for democratization.
Under Xi, this pattern has continued amid high-profile ideological commitments emphasizing legal accountability of officials and “rule of law” government. But there have been signs of an authoritarian turn in this dimension of law’s roles. The leadership has sharpened its predecessor’s rejection of liberal and democratic ideas related to law as not suited to China, notably in an early Xi-era debate on constitutionalism which rejected limited government and separation of powers, and a Central Committee document that denounced pernicious, mostly law-related ideas (including Western-style constitutional democracy, universal values, civil society, and so on).9 Some civil society activists have characterized the toughened moves against them as “legalist repression.”10 In an especially high-profile move, the NPC amended the constitution in 2018 to eliminate the two-term limit for China’s president, thereby removing a notable formal legal restraint on the top ruler’s power.
On this non-minimalist account of law in a potentially influential Chinese model, law is not an absent complement to missing democracy. It is a partial substitute for democracy. The assumptions of the liberal-democratic-legalist model addressed and evangelized by the United States and others may in the long run prove correct, and the role of law and democratic politics may in the end be interdependent and mutually reinforcing. But a model plausibly derived from recent Chinese experience and seemingly reflected in Chinese strategy suggests that law may serve—at least over some relatively extended period—as a complex but viable substitute for democracy. The suggestion that this is so may resonate with rulers and other influential groups in developing countries who are inclined toward authoritarian politics, and may be more potent as China has become both less chary in asserting that others may learn from its example and more influential economically and politically in potentially affected states.
China’s Agenda in International Law and Its Implications for Democracy
A second potential challenge to prospects for democratic governance in other countries stems from a Chinese perspective on international law that is unsupportive or adverse to democracy, and China’s growing ability to press for acceptance of its preferences. For much of the reform era, China’s engagement with international law has generally followed a path of largely accepting the established order and many of its principal norms. To be sure, China has long chafed at the notion that it should accept doctrines of international law—much of which was developed in the 19th century or the early post-WWII era—that China (and other developing or post-colonial countries) had little role in shaping. China’s support for status quo international laws and legal institutions often has been limited or merely rhetorical.
These features have coexisted with another long-standing and persisting Chinese position on international law: claiming that China’s favored interpretations—often undemocratic or anti-democratic ones—are part of existing law. In recent years, China increasingly has sought to shape the rules and institutions of international law and—unsurprisingly—to do so in ways that suit its preferences and interests. One of the most pointed expressions of this more muscular approach came early in the incumbency of Xi and the fifth-generation leadership, when the 18th Central Committee’s “rule of law” plenum proclaimed that China must “vigorously participate in the formulation of international norms” and strengthen its “discourse power [huayuquan] and influence in international legal affairs.”11
Alongside these motivations, China has had considerable, and rapidly growing, means. Since the 1970s, Beijing has held one of the “Permanent Five” positions in the UN Security Council. For decades, a Chinese judge has sat on the International Court of Justice. China has joined nearly every important international institution that makes, or relatively directly affects, international law. Many major international legal and law-related organizations—including UN-linked specialized agencies—now have Chinese nationals in leadership positions.
More broadly, China’s growing hard power, and the political leverage derived from China’s stature as a key source of trade, investment, and aid, enhance its ability to influence the positions on international legal issues held by numerous other states. This is a significant factor in an international legal system where rule-making and norm-creation are decentralized and reflect (formally and, to a limited degree, in practice) the views of the members of the community of formally equal states. Moves to create new, Chinese-led institutions and initiatives (such as the Asian Infrastructure Investment Bank, the Regional Comprehensive Economic Partnership, or the Belt and Road Initiative) augur still-greater capacity for China to influence international legal rules, especially for the adjacent region, and primarily in economic affairs, but with implications for matters that include political democracy. The correlative decline in US influence and, especially since Donald Trump came to power, interest in sustaining prevailing international law and related institutions reinforces China’s potential influence.12
With prospects for China’s shaping international law thus significant and likely growing, the democracy-relevant content of China’s views is correspondingly more relevant. Three elements are especially relevant: China’s support for a robust notion of sovereignty in international law; China’s non-democratic perspective on international human rights; and the implications, in the context of the BRI and other policies, of China’s emphasis on treaties and state-based international institutions as favored sources of international law.
Strong Sovereignty and Anti-Interventionism
Although China’s emergence as a confident great power with far-flung interests and system-shaping ambitions has begun to erode China’s once-purist positions, China’s commitment to a strong notion of state sovereignty remains vigorous.13 This position has deep roots for China: colonial and quasi-colonial encroachments that began in the mid-19th century and, in Beijing’s view, will persist at least until Taiwan is “reunified” with the motherland; Cold War isolation, first by a hostile US-led West and then from the once-supportive Soviet Union; and long-running claims of solidarity with the large cohort of developing countries that secured often-fragile sovereignty through post-WWII decolonization. With origins in China’s era of real or perceived vulnerability, the emphasis on state sovereignty has persisted into the current era of China’s much greater security and strength. In the orthodox Chinese view, a sovereign state’s government enjoys almost plenary power and great discretion in governance at home. In international law, as in diplomacy, orthodox Chinese positions eschew judgment about other states’ undemocratic internal orders. Here, China’s positions contrast with the US and European ones that press for democratic and potentially democracy-supporting reforms in other states, and promise possible international political gains for China and potential harm to the relatively fragile and somewhat contested legal norms legitimating transnational democracy-promotion.
During the Xi Jinping era, this pro-sovereignty stance in international law has extended to an emerging, democracy-relevant field: the law of cyberspace. China (along with Russia) has been a leading advocate for “Internet sovereignty” as a principle in international law.14 On this view, the Internet is properly governed by states, which are free to impose laws governing and restricting cyberspace in ways closely analogous to their regulation of the physical space within their territories. Adoption of this and kindred norms for the international law of cyberspace would permit authoritarian regimes to restrict severely a potent channel for the dissemination of heterodox and pro-democratic ideas.
China’s embrace of a strong, black box-like, conception of sovereignty has dovetailed with anti-interventionism. In this international legal mindset, the state is largely immune—even opaque—to legitimate international criticism, including on such matters as its lack of political democracy and its shortcomings on many democracy-related human rights. Intervention—especially forcible intervention—in another state is permissible only on very limited grounds, such as self-defense or with the authorization of the United Nations Security Council (where Beijing wields a veto). In the Chinese view, so-called humanitarian intervention (to address severe human rights violations or to stop or prevent a humanitarian catastrophe) is generally not lawful, at least when undertaken without proper Security Council authorization. Neither is forcible intervention for the promotion or restoration of democracy in the targeted states (of for other ostensibly benign purposes). From Beijing’s perspective, purported cases of humanitarian or benign intervention (such as US-led interventions in Kosovo)—and some cases of initially legitimate intervention pursuant to proper institutionalized collective security procedures or to repel breaches of international peace (such as the initial intervention in Libya or the response to Iraq’s invasion of Kuwait were from the beginning or (in the cases of Libya or Iraq) became illegitimate efforts to effect regime change, often of an at least aspirationally democratic type.
Lesser forms of intervention and attempts to influence other states’ domestic governance are, in orthodox or official Chinese views, unlawful or at least suspect. China has long chafed at US efforts to promote democratic change—and related protections for human rights—in China, denouncing Washington’s agenda as one of “peaceful evolution.” In recent years, China has been skeptical—albeit decreasingly so—toward “responsibility to protect” (R2P) and “responsible protection” (partly as an alternative to the more newly emerging notion of “responsibility while protecting”), but China’s position continues to stop well short of accepting a general doctrine of humanitarian intervention and continues to emphasize the primary and principal role of states in addressing human rights issues within their territorial jurisdictions.15
Undemocratic and Illiberal Human Rights
As this opposition to international legal norms that would broadly authorize intervention to promote democracy in other states or legitimize criticism of states’ undemocratic internal governance suggests, China’s views on international human rights law do not include a robust right to democracy or other related human rights. To be sure, China’s formerly rejectionist posture toward international human rights law has moderated significantly. China has accepted the notion of universal human rights since the early 1990s and, since the early 1980s, China has joined and participated in many key international human rights treaties. Nonetheless, China retains a view of international human rights law that is distinctly, and in some respects distinctively, undemocratic. Although China has acceded to most of the major UN-linked human rights conventions, it has merely signed but not ratified the International Covenant on Civil and Political Rights, which includes a right to participation in self-governance and many democracy-related civil and political liberties.
Official and orthodox Chinese accounts insist that core international human rights include a right to sovereignty and a right to economic development—both of which can overshadow and provide arguments for delaying or sacrificing pursuit of liberal political rights associated with democracy. This purported human right to sovereignty implies or entails the right of each state (or the people of a state) to choose a form of political system, including an undemocratic one, suited to its own conditions. A right to democratic governance16—which remains somewhat contested in international human rights law—is not one that China has officially accepted. China has an ambivalent position on the core human right of self-determination—a right that is aligned, albeit imperfectly, with democracy (in part through a presumption that plebiscites or similar mechanisms are the preferred mode for implementing the right, at least where the creation of a new state is a possibility). Although Beijing long has voiced support for international legal rights of decolonization and, at times, national liberation movements, it has rejected arguments that Tibetans, Uyghurs, and other minority groups in China, or the people of Taiwan, enjoy the international legal right to self-determination, which could include the right to separate states.
China’s positions include the assertion that it is permissible to prioritize (in terms of importance or temporal sequencing) economic, social, and cultural rights over civil and political ones. They also seek to excuse China’s (and, at least by implication, other states’) asserted shortcomings on civil and political rights as the consequences of still relatively low levels of economic developments or the legacies of past political problems (in China’s case, primarily the Cultural Revolution and associated depredations of human rights). Chinese discourse, including statements form top leaders, has adopted some variants of cultural relativism in human rights. Although never fully signing onto the “Asian Values” arguments of the 1990s, Chinese statements did endorse the view that the meaning of universal human rights varies by national circumstances, which includes history and elements of culture.17
Treaties and Prospects for Influence
China consistently has favored treaties and the outputs of state-based international organizations as means for creating international legal obligations, and China has disfavored customary international law (based in the practice and opinion of states), general principles common to major legal systems, and other such relatively diffuse and less clearly state-consent-based sources.18 This seemingly technical and doctrinal point has potentially important implications for the role of the international rule of law in supporting democracy.
Treaties—the term international law uses for legally binding international agreements, regardless of their formal name—have become a significant device in China’s expansion of its international economic reach and, in turn, political influence. Such agreements set the terms for investments, loans, and dispute resolution procedures in China’s Belt and Road projects and beyond, and thereby facilitate China’s acquisition of possible economic-based political leverage over partner states in Asia and beyond. In the extreme case, the result can be a debt trap, as arguably happened with China’s port investments in Sri Lanka.19 Even in less dramatic instances, the result can be considerable Chinese sway over host-country governments. And that influence is not likely to be exercised in ways that promote, or do not impede, democracy or democratization. Indeed, critics have asserted that China’s large economic presence and modest foreign aid have entailed support for, and entanglement with, authoritarian regimes.20
International institutions make and shape international legal obligations and rules, and China has been increasing its influence in them. China sought, successfully, to become a charter member of the UN Human Rights Council in 2006 (when it succeeded the UN Commission on Human Rights as the principal organ overseeing the ICCPR). From this perch, it has been able to deflect and mute criticism of its own alleged violation of international human rights law and violations by other states with authoritarian regimes.
Especially in the wake of the global financial crisis of 2007-08 and China’s cooperative role in addressing it, Beijing pushed hard for greater power for itself (and other large emerging economies) in the World Bank and the International Monetary Fund. At the same time, China has taken a leading role in creating new institutions, such as the New Development Bank and the Asian Infrastructure Investment Bank, which provide international legal means for imposing political conditions on economic assistance. Similarly, China has energetically pursued the Regional Comprehensive Economic Partnership and other China-centered regional trade agreements. These accords are international legal mechanisms for possibly linking trade opportunities to member states’ performance on other issues. Beijing has pledged that the NDB and AIIB will follow international norms and best practices, and China’s RTAs are legally obliged to conform to WTO requirements. Nonetheless, these new lending institutions and trade pacts are potential rivals to their longer-standing, universal-multilateral counterparts, and they are less likely to be venues or mechanisms for promoting democratic or democracy-supporting change in targeted countries than has been the case (albeit rarely and weakly) with status quo bodies and agreements.
China’s model for law at home and China’s agenda in international law are, in terms of their content, undemocratic. Whether they pose challenges, and potential threats, to the rule of law and, in turn, democracy elsewhere depends on how influential they become and in what ways. The potential for propagation of a Chinese model of law and authoritarian governance has been rising with China’s evident economic success accompanied political stability, and with the Chinese regime’s warming to the idea of promoting emulation of the Chinese model abroad. But, for now, the ambiguities of law’s place in the China model and the limited soft power of the Chinese example, among other factors, have limited the model’s prospects abroad. China’s embrace of international legal norms that do not support democracy is long-standing (although not static) and China’s ability and will to influence international law have been rising. But the effects, for now, remain largely inchoate. China may become more assertive in shaping international law, or it may press international legal norms (including ones with undemocratic content) in ways that undermine contrary status quo views or more broadly erode the coherence of international law and, thus, the international rule of law. If this occurs, the threat to the rule of law and democracy in other states will become more serious.
1. Jacques deLisle, “Soft Power in a Hard Place,” Orbis, Fall 2010, pp. 493-524.
2. S. Philip Hsu, Yu-Shan Wu, and Suisheng Zhao, In Search of China’s Development Model: Beyond the Beijing Consensus (Abindgon, UK: Routledge, 2011).
3. Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era,” Political Work Report to the 19th National Congress of the Communist Party of China, October 18, 2017.
4. See, e.g., Donald C. Clarke, “Economic Development and the Rights Hypothesis: The China Problem,” American Journal of Comparative Law 51 (2003): 89-111; Frank K. Upham, “From Demsetz to Deng: Speculations on the Implications of Chinese Growth for Law and Development Theory, NYU Journal of International Law and Politics 41 (2008-09): 551-593.
5. Carl F. Minzner, “China’s Turn Against Law,” American Journal of Comparative Law 59 (2011): 935-984; Teng Biao, “China’s Empty Promise of Rule by Law,” The Washington Post, December 28, 2014.
6. This subsection draws on Jacques deLisle, “China’s Legal System,” in William A. Joseph, ed. Politics in China (Oxford and New York: Oxford University Press, 3rd ed., forthcoming 2019), Ch. 7; and Jacques deLisle, “Chasing the God of Wealth while Evading the Goddess of Democracy: Development, Democracy, and Law in Reform-Era China,” in Sunder Ramaswamy and Jeffrey W. Cason, eds. Development and Democracy (Middlebury, Vt.: Middlebury College Press, 2003), pp. 252-294.
7. For discussion of developments under Xi in the three aspects of law’s roles in a China model considered here, see Jacques deLisle, “Law in the China Model 2.0: Legality, Developmentalism and Leninism under Xi Jinping,” Journal of Contemporary China 103 (2017): 68-84.
8. Jacques deLisle, “Law and Democracy in China: A Complex Relationship,” in Kate Xiao Zhou, Shelley Rigger, and Lynn T. White III, eds., Democratization in China, Korea, and Southeast Asia? (Abingdon, UK: Routledge, 2014), pp. 126-140
9. Samson Yuen, “Debating Constitutionalism in China: Dreaming of a Liberal Turn?” China Perspectives, No. 4, 2013, pp. 67-72; General Office of the Central Committee of the Chinese Communist Party, “Communique on the Current State of the Ideological Sphere,” April 22, 2013, translation at http://www.chinafile.com/document-9-chinafile-translation; Chris Buckley, “China Takes Aim at Western Ideas,” The New York Times, August 19, 2013.
10. “Matching Resistance to Repression in China,” Chinese Human Rights Defenders, April 17, 2015, http://chrdnet.com/2015/04/matching-resistance-to-repression-in-china/.
11. Central Committee of the Chinese Communist Party, “Decision concerning some Major Questions in Comprehensively Moving Forward with Governing the Country According to Law (Fourth Plenum Decision),” October 23, 2014, § VII (7).
12. Jacques deLisle, “China’s Rise, the U.S. and the WTO: Perspectives from International Relations Theory,” University of Illinois Law Review, 2018, pp. 57-71.
13. Xue Hanqin, Chinese Contemporary Perspectives on International Law (Leiden and Boston: Brill-Nijhoff, 2012), pp. 88-124; Jacques deLisle, “China’s Approach to International Law: A Historical Perspective,” American Society of International Law Proceedings 94 (2000): 267-75;and forcomparison, Allen Carlson, Unifying China, Integrating with the World (Stanford, Cal: Stanford University Press, 2005) (arguing for a more variable and evolving concept of sovereignty in China).
14. “Better Internet Governance,” China Daily, April 30, 2014; “China Holds First World Internet Conference, Urges Better Governance,” Xinhua, November 20, 2014; Shannon Tiezzi, “The Internet with Chinese Characteristics,” The Diplomat, November 20, 2014.
15. On these issues, see, for example, Jonathan E. Davis, “From Ideology to Pragmatism: China’s Position on Humanitarian Intervention in the Post-Cold War Era,” Vanderbilt Journal of Transnational Law 44:2 (2011): 217-283; Zheng Chen, “China and the Responsibility to Protect,” Journal of Contemporary China 101 (2016): 686-700.
16. Thomas M. Franck, “The Emerging Right to Democratic Governance,” American Journal of International Law 86:1 (1992): 36-91.
17. For articulation and discussion of the positions addressed in this subsection, see China’s numerous Human Rights White Papers; China’s Universal Periodic Review Reports to the UN Human Rights Council; Jiangyu Wang, “China and Universal Human Rights Standards,” Syracuse Journal of International Law and Commerce 29 (2001-02): 135-158; Jacques deLisle, “From Economic Development to What—and Why? China’s Evolving Legal and Political Engagement with International Human Rights Norms,” in Guanghua Yu, ed., Rethinking Law and Development: The Chinese Experience (Abingdon, UK: Routledge, 2013), pp. 107-145.
18. Hungdah Chiu, “Chinese Views on Sources of International Law,” Harvard International Law Journal, 28:2 (1987): 289-307.
19. Daniel McDowell, “How Debt Traps from China’s Belt and Road Initiative Could Upend the IMF,” World Politics Review, August 14, 2018, https://www.worldpoliticsreview.com/articles/25522/how-debt-traps-from-china-s-belt-and-road-initiative-could-upend-the-imf; John Pomfret, “China’s Debt Traps around the World are a Trademark of its Imperialist Ambitions,” The Washington Post, August 27, 2018.
20. Stephanie Kleine-Ahlbrandt and Andrew Small, “China’s New Dictatorship Diplomacy,” Foreign Affairs, January-February 2008.