Xi Jinping’s Impact on China’s Legal Development: Domestic and International
When Xi Jinping came to the United States for a state visit in September 2015, questions about China’s posture toward the rule of law, domestically and internationally, were scattered across Washington’s agenda. The perennial question of human rights had again become an urgent and law-related concern, with the crackdown on rights protection lawyers in mid-2015, and with a pending law on NGOs, threatening groups that ranged from Chinese civil society organizations to US foundations and, perhaps, universities operating in China. Concerns about China’s approach to law for the economy ranged from long-ongoing complaints about inadequate protection of foreign-owned intellectual property to newer allegations of selectively foreigner-targeting enforcement of competition law. International legal issues were high on the list as well, including familiar disagreements over trade and currency, newer questions of how to address climate change negotiations at the year-end Paris conference, increasingly tense disputes over legal claims in the South and East China seas, and recently friction-producing problems of cybersecurity and Chinese hacking of US targets.
These concerns came against the backdrop of increased emphasis on law in rhetoric and policy statements under Xi. The October 2014 Fourth Plenum of the Eighteenth Central Committee—the “Rule of Law Plenum”— declared the rule of law to be a guiding force in pursuing the Chinese Communist Party’s major tasks, including economic development, “modernization” of the system of governance, and Xi’s “China Dream.”1 Xi has placed “comprehensively governing the country according to law” among his “Four Comprehensives.”1 These statements amplified earlier commitments, including Xi’s declaration on the thirtieth anniversary of the 1982 constitution, that China “must firmly establish throughout society, the authority of the constitution and the laws,”3 and pledges at the Third Plenum in 2013 to “move forward with building a rule of law country,” “strengthen rule of law guarantees,” and “safeguard the authority of the constitution and the laws.”4 This Xi-era stress on law contrasts with a decline in official support for law during much of the Hu Jintao period, which brought preferences for informal dispute resolution, skepticism toward the idea that the courts should be guided primarily by law, and an apparent sense that law had failed to fulfill its promise in advancing the regime’s aims.5
China’s engagement with international law has shifted as well, continuing to move away from hoary complaints about China’s exclusion from making international legal rules that others, i.e, the United States and the West, imposed on it. Xi’s China has defended many of its actions abroad—including moves to increase control over disputed islands and maritime zones—as consistent with international law, while presenting Xi-era initiatives in international economic relations—such as the Asian Infrastructure Investment Bank (AIIB) and Regional Comprehensive Economic Partnership (RCEP)—as complementary to established legal and law-related institutions and rules. The Fourth Plenum declared that China must “vigorously participate in the formulation of international norms” and strengthen its “discourse power and influence in international legal affairs”—statements that promised enhanced participation, but not acquiescence, in the international legal order.6
Rhetoric does not reliably translate into reality,7 but some features of the conception of law and its roles at home and abroad under Xi have emerged. For domestic law, the approach appears to be still reformist-developmentalist (providing frameworks for economic growth and means for checking threats to prosperity, including those emanating from the party-state) and more Leninist (less liberal, more centralized, and more narrowly instrumentalist). For international law, the Xi-era perspective appears to be more nationalist (and thus instrumentalist in advancing China’s interests and preferences) and at least potentially revisionist (challenging currently dominant rules and interpretations).
Ruling the Country by Law
Xi and the fifth generation leadership have extended their predecessors’ strongly instrumentalist view that law is valuable primarily as a means to policy ends—reflected in the long-standing phrase “ruling the country by law,”8 narrowing and sharpening it. Law is one organizational weapon of Xi’s evidently more energetic and top-down party-state. The communique of the 2014 “Rule of Law Plenum” is notable in declaring law “an important tool/device” for governing the country and that the “rule of law” and “Party leadership” are “identical / inseparable.” It called for stronger party leadership over rule of law work, endorsing building stronger “rule of law work teams”—a term generally referring to professionally educated judges, prosecutors, and lawyers, which also evokes Leninist language of the Mao era. These teams were to emphasize political and ideological concerns and—in a disconcerting echo of Hu-era Supreme People’s Court president Wang Shengjun’s “three supremes”—were to be loyal to the party, state, and people, as well as the law.9
Law for economic reform
In this instrumental vision, law is called upon to advance specific policy goals, one of which is implementing economic reform to sustain development (a familiar function of law in China) and to do so in the more challenging environment of a “new normal” of slower growth and an identified need to undertake the most significant round of economic reforms in more than two decades. The Fourth Plenum’s elaborate agenda for law followed, tellingly, the Third Plenum’s articulation of policies for economic change and statements at both plenums that giving markets their promised “decisive” role in allocating resources would rely on legal frameworks.10 In the Fourth Plenum policy document’s language, China’s socialist market economy “is essentially a rule of law economy.”11
The Third Plenum’s program foresaw legal reforms to address unresolved problems with non-market-regarding state enterprises. It promised implementation of a “modern enterprise system” for state-owned enterprises, support for a “mixed ownership economy” of state, collective, and private capital, and improved protection for hitherto insecure property rights (primarily non-state ones).12 It included promised changes in laws to address a financial system that has continued to distribute capital on noncommercial bases, and to a state fiscal system that has sometimes ill-served stated economic reform goals.13 Under Xi, China’s relatively new Anti-Monopoly Law (effective in 2008) has been enforced more zealously. Official accounts stress protection of Chinese consumers against unfair practices and fairness to all firms (although critics complain about selective enforcement against foreign companies).14
The Xi leadership also has turned to law to address behavior that could imperil the prospects of market-oriented economic reforms, old and new. The Fourth Plenum acknowledged public perceptions that law and courts are not fair and just. Its policy document, the Supreme People’s Court’s most recent Five-Year Plan for judicial reform, and other initiatives have pledged to make courts more available and effective for those seeking to protect economic-related legal rights. They promised progress toward a more just, efficient, and authoritative justice system that could better adjudicate cases independently, fairly, according to law, and with proper regard for parties’ lawful interests.15 Specific reforms, some of which quickly began to be implemented, moved to limit courts’ discretion to reject cases and took on long-standing problems of judicial corruption and “local protectionism,” which has provided a “home court” advantage to litigants who are rooted, well-connected, and receive preferential treatment in local courts. Measures included creating circuit courts of appeal delinked from provinces and localities, permitting transfer of some types of cases to courts in other jurisdictions, increasing centralization of court finances, giving greater roles to higher-level courts in promoting judges, promoting professionalization of the judiciary (including recruiting into the judiciary experienced lawyers and “legal experts”), holding judges responsible (for life) for erroneous decisions, requiring disclosure of attempts by officials to intervene in individual cases, and including the judiciary among the targets of anti-corruption efforts.16
Some of these reforms exist only on paper, and some may prove impossible, or not intended for implementation, but certain steps already have been taken. Some of the promised agenda has roots in earlier reform efforts, and much of it reads as a coherent program for how law can be a means to economic policy ends that Xi and his colleagues appear to take seriously.
Law, accountability, and the anti-corruption drive
The Xi leadership appears to see law as an instrument to address party-state behavior that poses potentially existential threats to the regime, including, most prominently, corruption.17 Xi’s energetic campaign against corruption has coexisted with broader calls on cadres to improve their “rule of law thinking,” pledges to make “rule of law construction” and following the laws factors in cadre evaluations, and undertakings to punish abuses of administrative power and discretion.18 Specific measures in the same vein have included changes to administrative law that, among other things, expand the range of state actions subject to judicial review, limit courts’ discretion to reject cases without legally adequate and specifically stated reasons, permit cases to be adjudicated or reviewed by courts that are not part of the same local government structures as the defendants, and mandate more robust mechanisms to enforce judgments.19
The anti-corruption drive itself has brought prosecutions, under the criminal law’s prohibitions of bribery, embezzlement of state assets, and various forms of abuse of official power. Those targeted have included former Chongqing party chief and one-time aspirant to top leadership posts Bo Xilai (whose troubles began before Xi formally took power), former Politburo Standing Committee member and public security system chief Zhou Yongkang, and several other high-ranking “tigers” in the government and military, as well as many more lower-level “flies.” Decades of official statements praising law, which have continued and in some respects intensified under Xi, have given legal mechanisms sufficient legitimacy that foregoing judicial processes in major corruption cases would exacerbate already-widespread concerns that the attack on graft will be partisan rather than public-interest-protecting. Relying on court proceedings raises little risk to Xi’s anti-corruption drive because the party’s discipline inspection system is the gatekeeper to prosecution; top authorities can control—and trust that courts and official media will follow—the leadership’s preferred narrative in high-profile cases.
The legal system is only one of several instruments—and a relatively limited and late-stage one—for tackling corruption and kindred problems of party-state misbehavior that might imperil the regime’s economic priorities or weaken the institutions charged with implementing development strategies and maintaining order. Prospects are limited that the leadership will rely primarily on legal means to address such challenges, given the perceived seriousness of corruption and indiscipline, the ingrained habits and structures for addressing such problems through intra-party processes, the advantages of opaque and informal procedures in obscuring factionalism or other illegitimate factors that distort an ostensibly principled drive against corruption, and Xi-era tendencies to gather increased power in the party and at its top levels.
Law, accommodation, and illiberal values
Law’s long-standing roles in addressing sources of social disorder and pressure for liberal or democratic political change have been extended, with a broadly familiar but, in some respects, new mix of accommodation and repression.20 Official positions on law reform under Xi have endorsed accountability and limits on state power. The Fourth Plenum proclaimed that the laws must win public acceptance as being fair and just, the party-state and its agents must not appear to be above the law, there must be “rule of law government,” and power must be exercised within a “cage” of institutions.21 Promised or adopted legal reforms that accommodate public concerns have been numerous and wide-ranging: pledges to expand the reach and reliability of administrative lawsuits against state actors for law-violating actions, authorization of public interest litigation on environmental issues, measures to combat local protectionism in courts and the insulation it has given abusive lower-level power-holders and their associates, moves to entrench and expand opportunities for stakeholders and the public to comment on proposed regulations (despite the continuing absence of a national administrative procedure law) or draft legislation, ongoing experiments in informal consultation with local residents over administrative decisions affecting neighborhood or city-level issues (such as pollution, redevelopment or public expenditures), and “open government information” rules.22
Yet, the more striking aspects of law’s place in politics under Xi have been illiberal and repressive. Many accountability-enhancing reforms are new and their implementation cannot yet be fully assessed. Notwithstanding the near-boilerplate democratic rhetoric in the Third Plenum’s communique and policy document,23 legal reform to expand or deepen democratic accountability has not been on the Xi leadership’s agenda. The late Hu Jintao-era Wukan incident—in which villagers had some success in challenging local elections and land-taking that violated relevant laws—remains a relatively isolated occurrence and not a harbinger of broader change. Although much-enhanced and possibly still growing, opportunities for public input in making legislation and rules remain far short of democratic rights to influence lawmaking or select lawmakers.
Restrictions on Internet speech have continued to become more severe,25 tightening “real name” registration requirements for users, and authorizing criminal penalties for those whose postings transgress vague standards of defamation or rumor-mongering and are viewed by more than 5000 people or reposted by more than 500—outcomes beyond the control of the initial poster—or where prohibited postings lead to mass incidents, social disorder or other problematic outcomes. These restrictions were especially chilling for so-called “Big Vs”—weibo users with large followings and, thus, influence or potential influence. Disconcertingly for opponents of such restrictions, the cyberlaw-related discussions during Xi’s state visit focused not on such human rights-implicating issues but rather on cooperation against economics-related cybercrime—which might also be invoked to support additional restrictions and monitoring.
In the offline world, the Xi leadership has launched a new assault on rights protection lawyers, with more than 200 detained and targets including less radical lawyers, such as Pu Zhiqiang, whose high-profile representation of dissidents and critical blog posts had long been tolerated. Affiliates of civil society organizations that seek to promote legal change or to protect civil rights in sensitive areas—such as the HIV and hepatitis B advocacy organization Yirenping or feminists who have focused on issues of domestic violence—have faced police detention, criminal charges of “picking quarrels and provoking troubles,” or prosecution for “disturbing social order” (by small public protests or street theater) or engaging in “illegal business operations” or tax evasion (which NGOs face because difficulties in registering as NGOs drive them to register as businesses).
Some Chinese activists characterize these uses of law as “legalist repression,”26 and more restrictive laws are in the works for civil society organizations, including legislation to regulate the activities of foreign NGOs, restrict foreign funding for Chinese NGOs, and to authorize measures to enhance state security. During his state visit, Xi heightened concern when he apparently referred, albeit obliquely, to impending new rules for “non-profit” organizations—a category generally seen as broader than “nongovernmental organizations” and possibly including foreign universities and think tanks.27
These developments have been unfolding in the context of critiques of constitutionalism and Western values that brought amplifications of pre-Xi-era rejections of Western-style principles of limited government, separation of powers, and liberal rights. Key moments under Xi have included: an article in a party theoretical journal by a non-legal academic asserting that Western-style constitutionalism was unsuited to China, which prompted heated debate in scholarly circles and the mass media; Central Committee Document Number 9 of 2013, which sought to limit discussion of seven pernicious ideas, including Western constitutional democracy, universal values, civil society, neoliberalism, and Western ideas about journalism; and official calls in early 2015 not to teach Western ideas—in law as well as in other fields—to Chinese students.28 Such jeremiads and proscriptions reveal much about the leadership’s views on law, liberalism, democracy, and the relationships among them.
Engaging the International Legal Order
China under Xi has engaged international law in ways that continue, or pledge to continue, long-standing support for status quo rules and institutions, but that also newly focus on pursuing, or creating foundations for pursuing, distinctly Chinese national interests and at least potentially revisionist agendas. A few major areas illustrate the broader—and notably mixed—pattern.
International economic law: Trade agreements and financial institutions
China has continued reform-era traditions of interacting with international economic law and related institutions on regime-supporting terms. Fifteen years after joining the World Trade Organization (WTO), China is one of the most frequent—if often unsuccessful—parties to WTO dispute resolution processes, defending its laws (many of which have changed to meet WTO requirements) and actions as compliant with WTO rules and asserting that other members have breached obligations to China.29 The Xi administration has continued vigorous pursuit of regional agreements to increase trade and economic integration, most prominently, RCEP, covering one-third of global GDP and 40 percent of international trade.30
On China’s legislative agenda is a Foreign Investment Law that will integrate, harmonize, and reform laws governing diverse legal forms, special zones, and sectors available for investment. Restrictions are to be transformed into a “negative list” of parts of the economy not open to foreign investors.31 Some of these reforms are to be embodied in new bilateral investment treaties (BITs), notably one with the United States—a long-pending accord that did not have the anticipated breakthrough during Xi’s visit.32 Such BITs are part of the openness to foreign businesses that Xi affirmed in his visit.33 China’s new-generation BITs arguably are more suited to China’s recently growing role as an outbound investor, and also may reprise Zhu Rongji’s strategy for China’s pursuit of WTO membership: making legal commitments abroad that give impetus to reforms at home, many implemented through domestic legal changes.34
Under Xi, China has led in establishing new institutions with potentially significant implications for the international economic legal order. According to Beijing, the AIIB, the BRICS-centered New Development Bank (NDB), a related emergency lending facility (to address balance of payments crises), and other moves are consistent with existing legal norms and institutions and are much-needed—and multilateral—responses to the failure of the International Monetary Fund (IMF) and World Bank to adapt by making more capital available to debtor and developing countries or giving China and other rising economies larger roles in governance.35 China has pledged that the new organizations’ lending, although foregoing some of the neo-liberal conditions insisted upon by established institutions, will be at least broadly complementary to the World Bank and IMF.36
But these Xi-era moves have prompted concerns in Washington that China is developing means—and may be seeking to use those means—to leverage its economic power to remake international legal rules and organizations to fit its preferences, at the expense of those that the United States has shaped and supported.37 The largely China-centered RCEP includes several states that are also members of the US-led Trans-Pacific Partnership (TPP), and reflects a different model of legal agreements to govern international economic relations. RCEP demands less thoroughgoing liberalization of national trade regimes, reaches less deeply into areas of domestic economic law, including intellectual property rights, labor rules, and environmental protection, and reaches less widely into sectors beyond trade in goods, including trade in services, and foreign investment.38
The Obama administration could not have been clearer in casting RCEP and TPP as fundamentally different and potentially system-defining. Although doing so partly to win congressional support for “fast track” trade promotion authority, Obama declared that TPP was necessary to prevent China from writing the rules for the global economy in the twenty-first century,39 and restated this when the final TPP deal was struck shortly after Xi’s visit, despite prior efforts to persuade China that TPP was not an “anyone but China” accord and was an institution that China should seek eventually to join.40
Despite optimism about prospects for enhanced investor protection under the still-pending BIT, other foreign companies have complained that Chinese authorities use existing laws to tilt the playing field against them, e.g., enforcing the Anti-Monopoly Law selectively against foreign companies, preventing them from acquiring prominent Chinese entities or pressing them to license technology to Chinese parties at more favorable rates.41
The AIIB, NDB and other initiatives have raised concerns in Washington that, notwithstanding Beijing’s representations, they might challenge the World Bank and IMF-centered status quo. The NDB’s website describes the institution as an “alternative to the existing, US-dominated” World Bank and IMF.42 Washington tried, with little success, to dissuade its friends and allies from joining the AIIB, ostensibly not just because it would enhance China’s influence but also because China could exercise its influence in the new entity to undermine the Bretton Woods system.43 Norms and practices that have long faced criticism from developing countries, whose support Beijing cultivates, may be particularly vulnerable to challenge, e.g., IMF demands for neo-liberal domestic legal changes as conditions for lending, the WTO-linked and US-backed escalation of legal protections for intellectual property, and what China sees as some international institutions’ efforts to promote liberal democracy.44
International law and international security: Territorial and maritime disputes
Xi’s visit came amid sharply increased tensions over territorial and related maritime disputes in the South and East China seas, as Tokyo grappled with legislation to implement the Abe cabinet’s reinterpretation of Article IX and to give the Self Defense Forces (SDF) greater latitude to act and cooperate with allies—responses to China’s perceived assertiveness that enhanced Japan’s potential contributions in the recently reaffirmed US-Japan security alliance. Xi encountered a US administration that had mounting concern over the implications of China’s land-reclamation projects in the South China Sea.
The lack of progress on these security issues during Xi’s state visit was unsurprising. Since the 1990s, China has accepted many of the status quo legal norms and institutions relating to maritime issues, joining the major framework treaty (the United Nations Convention on the Law of the Sea (UNCLOS)), passing implementing legislation, and asserting its rights—in terms that track UNCLOS categories—to territorial seas, contiguous zones, continental shelves, and exclusive economic zones in areas adjacent to land that China claims as its territory.45 But these steps have coincided with unorthodox and system-challenging positions on key legal issues.46 Beijing has continued to assert rights over the area within the “9-dash line” that encloses most of the South China Sea and reaches near the main coastlines of several rival claimant states, refusing to repudiate an interpretation of it as a claim of sovereign waters. China has asserted “indisputable” sovereignty over contested landforms in the two seas, claiming the islands have been China’s territory “since ancient times.”47 China’s argument departs from prevailing views of international law in placing greater weight on early discovery and according less significance to more recent history and long-standing exercises of control by other states. Other PRC arguments are similarly heterodox—and especially sharply at odds with US views—in rejecting some treaties that purported to affect sovereignty over the landforms, while insisting upon the binding character of the less formal Cairo Declaration and Potsdam Declaration (which set forth the WWII allies’ intent—but not, in the US view, treaty commitments—to restore territories taken by Japan).
China’s assertions of rights over maritime zones also have been at odds with predominant and US-supported views of international law. Responding to close-in surveillance and other activities by the US Navy, China has asserted or implied very broad and legally dubious rights to limit foreign activities (especially those entailing a military presence) on the waters and in super adjacent airspace. It has: characterized military reconnaissance and monitoring in exclusive economic zones (EEZs) as “maritime scientific research” subject to Chinese state regulation; seemingly tried to revive the principle—rejected in the process that produced the current law of the sea regime—that states have security rights over their EEZs; and argued that some US Navy activities violate international legal obligations—under Beijing’s highly expansive interpretations —to use the seas peacefully, to show “due regard” for China’s rights, and not to “abuse” rights of navigational freedom. Agreements on military contacts and incident-avoidance reached during Xi’s state visit and before have not closed these gaps on legal principles.48
China’s legal views—and the frictions with Japan, Southeast Asian states, and the United States that they helped produce—predate Xi’s coming to power, but UN Chinese sources have begun to articulate another revisionist legal argument, asserting “historic rights” (primarily in the South China Sea), ostensibly grounded in customary international law that preceded and has survived accession to UNCLOS—a position at odds with the prevalent view of the UNCLOS regime and the customary international law it embodies.49 Under Xi, China has made several moves—in response to what Beijing characterizes as provocations by rival claimants—that have altered the status quo of actual control over disputed areas and, thereby, strengthened China’s case on the factor that matters most in determining territorial sovereignty and, to a lesser extent, maritime jurisdiction under contemporary international law. Principal examples include: stringing a net across Scarborough Shoal, closing off fishing grounds that the Philippines had primarily controlled; deploying fishing boats, coast guard vessels and navy ships close to the Senkaku (Diaoyu) Islands; stationing—twice, but briefly and largely symbolically—a giant oil exploration rig in waters between disputed islands off Vietnam’s coast and Vietnam’s mainland (leading to clashes with Vietnamese ships); and undertaking unprecedentedly vast land reclamation on seven contested landforms in the South China Sea. Beijing also declared an Air Defense Identification Zone (ADIZ) over much of the East China Sea that was, in terms of asserted rights if not actual enforcement, more restrictive than ADIZs previously adopted by China’s maritime neighbors over some of the same area.50 In the South China Sea, China has been considering proclaiming another ADIZ (which, given the geography, would be a much more radical departure from common practice),51 and PRC forces have invoked inchoate or questionable legal claims when warning the US military away from the landforms China has been building up—recorded, on one occasion, by a CNN crew aboard a US plane.52
International environmental law and climate change
Xi’s visit brought new commitments to bilateral and multilateral cooperation and announcements of unilateral moves (including an emissions trading system for China) to address global warming. These developments fell between two other noteworthy moments of US-China engagement on international legal issues related to climate change: the surprise announcement at the November 2014 Xi-Obama summit of parallel commitments by the world’s two largest greenhouse gas producers to curb their emissions, and the December 2015 UN climate change conference in Paris, a major focus of the agreements reached during Xi’s Washington visit.53
China appears to have converged with emerging international soft law norms, moving far from the awkward spectacle of Chinese representatives avoiding Obama at the Copenhagen climate meeting in 2009.54 By 2014, China had softened its long-standing commitment to “common but differentiated responsibilities” (CBDR) for addressing climate change, with developing countries bearing only burdens consistent with their “respective capabilities” (CBDR-RC).55 China accepted new qualifying language, adopted at the Lima climate conference, that CBDR-RC also meant taking into account “different” or “distinct” “national circumstances”—terms that envisaged potentially more burdensome obligations for developing countries, including China.56
Although these changing positions and soft commitments are mostly long-term and might be shirked, several factors have favored China’s evolution toward more accommodation. They include international pressure that has risen along with China’s carbon emissions, and China’s self-interest in mitigating the looming severe impact of climate change on China, as well as other adverse effects of the polluting activities that foster climate change.
Cybersecurity and international law for the internet
Rising complaints from US businesses about China-based cybertheft of intellectual property, recent high-profile hacks of US government computer systems attributed to Chinese perpetrators, and US indictments in absentia of individuals with links to the Chinese military for cyberespionage made cybersecurity a high priority for Washington during Xi’s visit. The visit yielded much-noted law-related commitments, including bilateral pledges not to undertake or knowingly support cyber-enabled theft of intellectual property with the intent to benefit commercially one’s own firms, an agreement to establish enhanced law enforcement cooperation and top-level communications to address economic cybercrime originating in one another’s territory, and a vaguer pledge (in Xi’s words) to cooperatively “explore the formulation of appropriate state behavior and norms” in cyberspace.57
Yet, prospects for progress on cyberspace issues appear limited. Obama accompanied the announcement of the modest bilateral accords with open skepticism about whether China’s words would be followed by adequate action—a concern reinforced by Xi’s denial in his interview with the The Wall Street Journal that China has engaged in or encouraged cybertheft of intellectual property. China and the United States are on opposite sides in the new and highly polarized struggle over shaping international legal rules for governing cyberspace. China has zealously advocated “Internet sovereignty” and pushed for international norms recognizing states’ rights to adopt rules that restrict content including simply censoring material deemed unlawful, imposing liability on Internet service providers who fail to delete or block illegal content, and requiring ISPs to provide information about users to state authorities. It convened an International Internet Conference in November 2014 on the theme of “An Interconnected World Shared and Governed by All.” Governance by “all” was code for a challenge to prevailing liberal norms preferred by the West. Xi’s China has called for regulation based on “common ground” (international rules acceptable to China and other states favoring tighter domestic legal restrictions on the Internet), “better” (more constraining) Internet governance, and revival of a failed effort by China and other members of the SCO to revise the UN “International Code of Conduct for Information Security.”58 China’s positions also challenge the established but legally informal international architecture of open, decentralized Internet governance in which much regulation is left to non-governmental bodies such as the Internet Corporation for Assigned Names and Numbers (ICANN).
China’s positions on these international law-related issues have had domestic legal correlates under Xi. A July 2015 National Security Law declared “cyberspace” an important national security interest akin to territorial integrity and national unity and mandated measures to strengthen control over the Internet. China also unveiled a draft Cybersecurity Law that sought to codify and, in critics’ assessments, threatened to increase controls over “illegal” content and obligations of ISPs to censor content and disclose users’ information to authorities.59
The Xi-Era Approach to Law and Its Limits
The Xi-era agenda for law—economically reformist and developmentalist, politically illiberal and Leninist at home, nationalist and at least incipiently revisionist abroad, and instrumentalist everywhere—may not be implemented fully or effectively. Some of what has been proclaimed will not have been seriously meant. Other aspects will prove too difficult or too costly to the pursuit of other goals. Also, as Marx warned, people—even extraordinarily powerful leaders—do not make history entirely as they choose. Domestic resistance, international pressure, or the functional dependence of some policy ends on legal means may limit the regime’s options, primarily (although far from exclusively) pushing Xi and his colleagues toward something closer to the “rule of law,” as that term is understood in the outside world and by the relatively beleaguered proponents of more liberal or democratic legal reform within China.
1. Communiqué of the Fourth Plenum of the 18th Central Committee of the Chinese Communist Party, October 23, 2014.
2. “Renmin Ribao shouci quanwei dingyi Xi Jinping ‘Sige quanmian,’” Renminwang, February 24, 2015. The other three of the Four Comprehensives include “building a moderately prosperous society,” “deepening reform,” and “strictly governing the party”—all goals in which law has a role to play according to official agendas.
3. “Xi Jinping Pledges to Implement Rule of Law,” China Daily, December 4, 2012.
4. Communiqué of the Third Plenum of the Eighteenth Central Committee, November 12, 2013, par. 14; Central Committee of the Chinese Communist Party, Decision concerning some Major Questions in Comprehensively Deepening Reform (Third Plenum Decision), November 12, 2013, XII.47, IX.30.
5. Carl F. Minzner, “China’s Turn Against Law,” American Journal of Comparative Law 59 (2011): 935-984; Benjamin L. Liebman, “Legal Reform: China’s Law-Stability Paradox,” Daedalus 143 (Spring 2014): 96-109; “Wang Shngjun: ‘Sange zhisheng’ shi fayuan shizhing jianchi de zhidao sixiang,” Fazhi Ribao, June 23, 2008, http://news.xinhuanet.com/legal/2008-06/23/content_8420938.htm.
6. 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).
7. The Communique of the Fourth Plenum and the Fourth Plenum Decision § III stress the implementation problem, declaring implementation to be the “vital force” and basis of authority of the law.
8. Jacques deLisle, Traps, Gaps, and Law: Prospects and Challenges for China’s Reforms (Oxford Foundation for Law, Justice and Society, 2007).
9. ommunique of the Fourth Plenum; Fourth Plenum Decision §§ I. II, VI, VII; Supreme People’s Court, Outline of the Fourth Five Year Plan for Reform of the People’s Courts (2104-2018) (Court Reform Plan), July 2014, § II
10. Communique of the Third Plenum; Third Plenum Decision, pts. 2, 3; see also Fourth Plenum Decision §§ I, II, III.2.
11. Fourth Plenum Decision, § II.4.
12. Communiqué of the Third Plenum, par. 15; Third Plenum Decision, pts. 5-8, 11, 20-23; Fourth Plenum Decision Sec. II.4.
13. Third Plenum Decision, pt. 12; Adam Hersh, “China’s Path to Financial Reform,” Center for American Progress, October 8, 2014, https://www.americanprogress.org/issues/economy/report/2014/10/08/98477/chinas-path-to-financial-reform/; Communique of the Third Plenum (declaring finance “the basis of national governance”); 60 Points, pts. 17-19.
14. These issues are discussed below in the context of engagement with the international economic legal order.
15. Communique of the Third Plenum; Third Plenum Decision, pt. 32; Communique of the Fourth Plenum; Fourth Plenum Decision §§ I, IV, V; Court Reform Plan, §§ II, III and pt. 16.
16. Third Plenum Decision, pts. 32-33; Communique of the Fourth Plenum; Fourth Plenum Decision §§ IV, VI.1: Court Reform Plan, § III.1,2,16,48-52,55.
17. Andrew Wedeman, “Xi Jinping’s Tiger Hunt and the Politics of Corruption,” China Currents 15 (2014), http://www.chinacenter.net/2014/china_currents/13-2/xi-jinpings-tiger-hunt-and-the-politics-of-corruption/; Third Plenum Decision, pts. 36-37.
18. Communique of the Fourth Plenum; Fourth Plenum Decision § III.3-5.
19. Administrative Litigation Law (as amended 2014); Fourth Plenum Decision, § IV.1-2; Court Reform Plan, pts. 1,2,4,59.
20. See 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 (London: Routledge, 2014), 126-140.
21. Communique of the Fourth Plenum; Fourth Plenum Decision, §§ II.3, III, IV-V.
22. Communique of the Fourth Plenum and Fourth Plenum Decision §§ II.3, III.6 ; Court Reform Plan, pt. 7; Cao Yin, “Top Court Issues Interpretation on Civil Environmental Cases,” China Daily, January 6, 2015; Wang Xixin and Zhang Yongle, “The Rise of Participatory Governance in China,” University of Pennsylvania East Asia Law Review (forthcoming 2015); Wang Xixin, “Public Participation and its Limits,” (May 28, 2003), http://www.law.yale.edu/documents/pdf/Intellectual_Life/CL-PP-Wang_Xixin_-_Public_Participation_and_Its_Limits.pdf; Jamie P. Horsley, “Toward a More Open China,” in Ann Florini, ed., The Right to Know (New York: Columbia University Press, 2007).
23. Communique of the Third Plenum; Third Plenum Decision, pts 27-29.
25. Jacques deLisle, Avery Goldstein, and Guobin Yang, “The Internet, Social Media and a Changing China,” and Rogier Creemers, “The Privilege of Speech and New Media,” in Jacques deLisle, Avery Goldstein, and Guobin Yang, eds. The Internet, Social Media and a Changing China (Philadelphia: University of Pennsylvania Press, 2016).
26. “Matching Resistance to Repression in China,” Chinese Human Rights Defenders, April 17, 2015, http://chrdnet.com/2015/04/matching-resistance-to-repression-in-china/.
27. Full Text from President Xi Jinping’s Speech, September 22, 2015, https://www.ncuscr.org/content/full-text-president-xi-jinpings-speech; “Full Transcript: Interview with Chinese President Xi Jinping,” The Wall Street Journal, September 22, 2015 (question 10); “White House Sends Tough Message on NGOs as Xi Visits,” Agence France-Presse, September 23, 2015; US-China Perception Monitor, “NGOs are a No Go,” September 25, 2015, http://www.uscnpm.org/blog/2015/09/25/ngos-are-a-no-go-how-the-chinese-governments-proposed-law-will-affect-international-relations/.
28. Samson Yuen, “Debating Constitutionalism in China: Dreaming of a Liberal Turn?” China Perspectives no. 4 (2013): 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; Dan Levin, “China Tells Schools to Suppress Western Ideas, with One Big Exception,” The New York Times, February 9, 2015.
29. Kong Qingjiang, “China in the WTO and Beyond,” Tulane Law Review 88 (2014): 960-980; Stuart S. Malawer, “U.S.-China Trade Relations—Litigation in the WTO since 2001,” International Law Practicum 26 (2013): 122-130.
30. Jiangyu Wang, “China’s Regional Trade Agreements,” Singapore Yearbook of International Law 8 (2004): 119-147; Singapore Ministry of Trade and Industry, “Factsheet on the Regional Comprehensive Economic Partnership,” November 2012, http://www.fta.gov.sg/press_release%5CFACTSHEET%20ON%20RCEP_final.pdf; Murray Hieber and Liam Hanlin, “ASEAN and Partners Launch Regional Comprehensive Economic Partnership,” Center for Strategic & International Studies, December 7, 2012, http://csis.org/publication/asean-and-partners-launch-regional-comprehensive-economic-partnership.
31. Luo Weiteng, “Game-Changing New Law a Boon to FDI,” China Daily, February 13, 2015; Ministry of Commerce, Foreign Investment Law of the People’s Republic of China (Draft for Comments), January 2015.
32. “CEOs Urge Obama to Prioritize BIT Talks with China,” The US-China Business Council, https://www.uschina.org/media/inthenews/ceos-urge-obama-prioritize-bit-talks-xi; “Xi’s U.S. Visit to Promote Bilateral Investment Treaty,’ Xinhua, September 19, 2015, http://news.xinhuanet.com/english/2015-09/19/c_134640124.htm.
33. “Interview with Chinese President Xi Jinping,” (question 9); Full Text from President Xi Jinping’s Speech (in Seattle).
34. Robert Zoellick, “International Treaties Can Once Again Help China Advance,” Financial Times, March 10, 2014; “Why a US-China Bilateral Investment Treaty Matters,” Paulson Institute, February 13, 2015, http://www.paulsoninstitute.org/paulson-blog/2015/02/13/why-a-us-china-bilateral-investment-treaty-matters/. This idea, arguably, is explicit in the Third Plenum Decision, pts. 23-24.
35. “Interview: AIIB has Opportunity to Establish Right Standards for Multilateral Development Banks: Expert,” Xinhua, June 30, 2015, http://news.xinhuanet.com/english/2015-06/30/c_134366519.htm; Dingding Chen, “3 Reasons the BRICS’ New Development Bank Matters,” The Diplomat, July 23, 2014; “$100bn BRICS Monetary Fund to be Operational in 30 Days,” BRICSPost, July 1, 2015, http://thebricspost.com/100bn-brics-monetary-fund-to-be-operational-in-30-days/#.VhiZe_lVhBc; “Why China is Creating a ‘World Bank’ for Asia,” The Economist, November 11, 2014; Cary Huang, “China Frustrated by Delayed Reforms to Increase its Say at IMF,” South China Morning Post, April 20, 2015.
36. “Interview with Chinese President Xi Jinping,” (question 1); Koh Gui Qing, “China’s AIIB to Offer Loans with Fewer Strings Attached,” Reuters, September 1, 2015; Hua Shengdun, “World Bank, IMF: Will Work with AIIB,” China Daily, April 17, 2015.
37. “Why China is Creating a New ‘World Bank’ for Asia,” The Economist, November 11, 2014; Geoff Raby, “China’s AIIB Bank: Part of a Much Bigger Master Plan,” National Interest, April 28, 2015; Shintaro Hamanaka, “Trans-Pacific Partnership versus Regional Comprehensive Economic Partnership: Control of Membership and Agenda Setting,” ADB Working Paper Series on Regional Economic Integration, no. 146 (2014).
38. Sancha Basu Das, “RCEP and TPP: Comparisons and Concerns,” ISEAS Perspective, January 7, 2013; “What’s the Big Deal?,” The Economist, March 28, 2015.
39. The White House, “President Obama: ‘Writing the Rules for 21st Century Trade,” February 18, 2015, https://www.whitehouse.gov/blog/2015/02/18/president-obama-writing-rules-21st-century-trade
40. The White House, “Statement by the President on the Trans-Pacific Partnership,” October 5, 2015, https://www.whitehouse.gov/the-press-office/2015/10/05/statement-president-trans-pacific-partnership; Min Ye, “China Liked TPP—Until U.S. Officials Opened Their Mouths,” Foreign Policy, May 15, 2015, http://foreignpolicy.com/2015/05/15/china-liked-trans-pacific-partnership-until-u-s-officials-opened-their-mouths-trade-agreement-rhetoric-fail/; Nash Jenkins, “China Expresses Hesitant Support for the Trans-Pacific Partnership,” Time, October 6, 2015, http://time.com/4062442/tpp-china-free-trade-deal/.
41. “Competition Policy and Enforcement in China,” US-China Business Council, September 2014, https://www.uschina.org/sites/default/files/AML%202014%20Report%20FINAL_0.pdf; Paul Mozur and Quentin Hardy, “China Hits Qualcomm with Fine,” The New York Times, February 9, 2015; Jamil Anderlini, “China’s Li Assures Foreign Investors in Wake of Fines,” Financial Times, September 10, 2014.
43. Jane Perlez, “Stampede to Join China’s Development Bank Stuns Even Its Founder,” The New York Times, April 2, 2015.
44. Rebecca Liao, “Out of the Bretton Woods,” Foreign Affairs, July 27, 2015, https://www.foreignaffairs.com/articles/asia/2015-07-27/out-bretton-woods.
45. Declaration of the Government of the People’s Republic of China on China’s Territorial Sea (September 4, 1958); Law of the PRC on the Territorial Sea and the Contiguous Zone (1992); Declaration on Ratification of the United Nations Convention on the Law of the Sea, China (1996); Law of the PRC on the Exclusive Economic Zone and the Continental Shelf (1998).
46. Jacques deLisle, “Troubled Waters: China’s Claims and the South China Sea,” Orbis 56, no. 3 (2012): 608-642; Peter Dutton, “Three Disputes and Three Objectives,” Naval War College Review 64, no. 4 (2011): 42- 67.
47. The White House, “Remarks by President Obama and President Xi of the People’s Republic of China in Joint Press Conference,” September 25, 2015, https://www.whitehouse.gov/the-press-office/2015/09/25/remarks-president-obama-and-president-xi-peoples-republic-china-joint; “Interview with Chinese President Xi Jinping,” (question 4).
48. Mark J. Valencia, “US-China Military Agreements Dodge Deep Differences,” The Diplomat, October 10, 2015, http://thediplomat.com/2015/10/us-china-military-agreements-dodge-deep-differences/.
49. Zhiguo Gao and Bing Bing Jia, “The Nine-Dash Line in the South China Sea: History, Status and Implications,” American Journal of International Law 107, no. 1 (2013): 98-123.
50. Zheng Wang, “China’s Puzzling ADIZ Decision Making,” The Diplomat, December 18, 2013; Jane Perlez, “China Explains Handling of B-52 Flight as Tensions Escalate,” The New York Times, November 27, 2013; Michael D. Swaine, “Chinese Views and Commentary on the East China Sea Air Defense Identification Zone,” China Leadership Monitor, no. 43 (2013).
51. Feng Zhang, “Should Beijing Establish an Air Defense Identification Zone over the South China Sea?” Foreign Policy, June 4, 2015, http://foreignpolicy.com/2015/06/04/should-beijing-establish-an-air-defense-identification-zone-over-the-south-china-sea/; Li Bao and Si Yang, “Experts Worry China May Soon Establish South China Sea ADIZ,” VOA News, July 29, 2015, http://www.voanews.com/content/experts-concerned-china-may-soon-establish-southern-adiz/2882795.html.
52. Jim Sciutto, “Behind the Scenes: A Secret Navy Flight over China’s Military Build-Up,” CNN, May 26, 2015, http://www.cnn.com/2015/05/26/politics/south-china-sea-navy-surveillance-plane-jim-sciutto/; Asia Maritime Transparency Initiative, “Flight of the Poseidon: New Navy Footage Released,” May 21, 2015, http://amti.csis.org/flight-of-the-poseidon-new-navy-footage-released/.
53. The White House, “U.S.-China Joint Announcement on Climate Change,” November 12, 2014, https://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change; U.S. Department of State, “United States and China Strengthen Climate Change Cooperation,” June 24, 2015, http://www.state.gov/r/pa/prs/ps/2015/06/244168.htm.
54. Darren Samuelsohn and Lisa Friedman, “Obama Tries to Rally U.N. Climate Conference, but Deadlock Persists,” The New York Times, December 18, 2009.
55. “China: Common but Differentiated Responsibilities on Climate Change,” CCTV News, June 19, 2012, http://english.cntv.cn/program/newshour/20120619/110990.shtml; “China Urges Combating Climate Change under Principle of ‘Common but Differentiated Responsibilities,” China Climate Change Info-Net, January 2, 2008, http://en.ccchina.gov.cn/Detail.aspx?newsId=31875&TId=96%22%20title=%22China%20urges%20combating%20climate%20change%20under%20principle%20of%20%22common%20but%20differentiated%20responsibilities%22.
56. “Xi Reaffirms China’s Climate Ambition, Urges Concrete Action,” Xinhua, September 27, 2015, http://news.xinhuanet.com/english/2015-09/28/c_134668045.htm.
57. The White House, “Fact Sheet: President Xi Jinping’s State Visit to the United States,” September 25, 2012, https://www.whitehouse.gov/the-press-office/2015/09/25/fact-sheet-president-xi-jinpings-state-visit-united-states.
58. 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; United Nations General Assembly, 69th Session, Agenda Item No. 69 A/69/723, January 13, 2015, https://ccdcoe.org/sites/default/files/documents/UN-150113-CodeOfConduct.pdf; “Interview with Chinese President Xi Jinping” (question 10).
59. National Security Law of the PRC, art. 25 (2015); Chen Haying, “China Adopts New National Security Law), Global Times, July 2, 2015; “China Passes New National Security Law Extending Control over Internet,” Agence France Presse, July 1, 2015; “The ‘Chilling Effect’ of China’s New Cybersecurity Regime,” Foreign Policy, July 10, 2015 (interviews with human rights NGO experts); Austin Ramzy, “What You Need to Know About China’s Draft Cybersecurity Law,” The New York Times, July 9, 2015.