A new paper by Shucheng Wang
Can authoritarian regimes use the ‘law’ – as construed from a liberal-rational legal perspective – to solidify and legitimize their rule? Scholarship increasingly pays attention to the role of law in authoritarian regimes. As far as Chinese law is concerned, Mary Gallagher, Hualing Fu & Michael Dowdle, and Taisu Zhang & Tom Ginsburg have investigated the role of law for China’s Party-state, among others.
Against the backdrop of the rise of illiberal democracy, this short article titled “Authoritarian Legality and Legal Instrumentalism in China” engages with this scholarship by unpacking the dynamics of authoritarian legality. As the term indicates, authoritarian legality refers to legal norms advanced by authoritarian regimes, where an active adherence to law may nonetheless thrive without political or democratic reform. The article describes two pure types of authoritarian politics namely, normal politics, and exceptional politics. In normal politics, the law is relatively stable and predictable, particularly on issues relating to apolitical matters. In exceptional politics, however, the law may be adjusted, redefined or even suspended in order to accord with specific socio-political goals.
Using China as a case study, the article takes note of the effort that has been made in establishing a comprehensive system of positive law and in institutionalizing authoritarian legality through a politically controllable congress and court system. Yet, these efforts remain counterintuitive – since legality requires institutionalisation, predictability, and certainty – all of which are seemingly absent in an authoritarian regime. This is not to say that the ‘law’ still does not serve as a crucial instrument for distinguishing ‘lawful’ from ‘unlawful’ actions, but rather, that law is inextricable from politics. The inner logic of authoritarian legality is therefore revealed in the existence of political penetration – either explicit or implicit – into formal laws and informal practices. In essence, while authoritarian legality indicates the legalistic aspirations of illiberal regimes, the legality of the laws is often premised on illiberal fundamentals.
The article identifies three pure types of instantiations of legal instrumentalism, based on the variance of political ideologies: liberal, apolitical, and illiberal. The theory of legal instrumentalism posits that laws should not be seen as a manifestation of universally fixed norms, but rather as a tool for promoting the interests of society and the State. This theory has largely been delinked from the religious and historical roots of western jurisprudence. Legal instrumentalism, therefore, has become far more reflective of a non-Western context and may have found a widespread resonance beyond the differences between liberal and illiberal political ideologies.
The rest of the article argues that legal instrumentalism as instantiated in China’s illiberal context provides a stronger explanatory framework for the law’s function as a crucial instrument in developing the enterprise of legality grounded in illiberal principles than Marxist or Confucian legal theories. Overall, unlike the liberal instantiation of instrumentalism posited within liberal ideologies, the illiberal instantiation of instrumentalism in China shows a dimension of law as an instrument for facilitating China’s development and developing the enterprise of legality grounded on illiberal principles.
Shucheng Wang’s paper Authoritarian Legality and Legal Instrumentalism in China was published in the The Chinese Journal of Comparative Law, a free draft is available here).
Shucheng Wang is an Associate Professor at the School of Law, City University of Hong Kong and an affiliated researcher of the Law and Religion in the Asia Pacific Region program at The University of Queensland, Australia. He was a Fulbright Scholar (Emory University) and a Clarendon Scholar (Oxford University). He has authored four books, including most recently Law as an Instrument: Sources of Chinese Law for Authoritarian Legality (Cambridge University Press 2022 forthcoming), as well as over fifty articles.
A review by Xu Qian of G. Matteo Vaccaro-Incisa’s new book
China’s success in attracting foreign direct investment (FDI) in the past decades is unprecedented. It is currently the second largest FDI recipient in the world, which is a success partially due to China’s efforts to enter into international investment instruments, such as BITs and free trade agreements (FTAs). Since its first bilateral investment treaty (BIT) with Sweden in 1982, China has signed BITs with more than 130 countries. In addition, Chinese investment treaties have typically provided international forums for settling investment disputes such as the International Centre for the Settlement of Investment Disputes (ICSID). Being both a capital importing and a capital exporting nation, China is in a need to maintain a balance of such dual role through its international investment instruments, attracting inward FDI and, at the same time, protecting outward FDI.
In the early stage, China’s BITs mainly follow the template as established by western countries, yet with the rapid economic growth, China is more willing to set up its own discourse. The Belt and Road Initiative, and the separate negotiations with the EU and US regardless their ultimate fate reveal China’s proactive approach to participate in the global economic governance. China’s dual role regarding FDI and its investment strategies is efficiently transforming its role as a reliable rule-maker in the global economy. China has also reviewed its BIT policy and practices owning to the experience in dealing with the cases filed by foreign investors against China. Against this background, Dr. Vaccaro-Incisa’s book offers the most comprehensive and detailed account of China’s treaty policy and practice in international investment law and arbitration published to date.
Through his comparative and analytical study, this book reviews the changing role of China in international investment. It provides a detailed analysis of the contents of all of China’s agreements from 1982 to 2015 by considering the role of investment treaties in China’s economic policy. This book also provides a summary of key literature in discussing China’ BITs and their characteristics, application and pitfalls. By interpreting the key provisions of the BITs and discussing the evolution and features of these investment treaties, this book successfully identifies trends in major areas of Chinese investment treaty making. It produces objective assessment of investment arbitration of China’s treaty practice. This book without doubt represents a significant accomplishment in clearly laying out the content and systemically examining China’s treaty making practices in a broader context. Overall, this book represents not only a valuable and necessary addition to the literature but also a point of departure that invites further research in China’s practice in this area.
G. Matteo Vaccaro-Incisa’s monograph China’s Treaty Policy and Practice in International Investment Law and Arbitration – A Comparative and Analytical Study is published with Brill.
Dr. Xu QIAN is Associate Professor & “Hundred Talents Program Fellow” at Zhejiang University (ZJU), School of Law and Affiliated Expert, Asia Pacific FDI Network (APFN). She is also an active member of Asia Society of International Law, and Academic Forum on Investor-state Dispute Settlement. She specialises in transnational law and researches in a diverse range of cutting-edge cross-border issues, including water and sanitation law, Alternative Dispute Resolution (ADR), International Economic Law and Public International Law. She may be contacted via email at: qianxuxu [at] zju.edu.cn.
A new paper by Jasper Habicht and Eva Lena Richter
Multiple nationality is a highly controversial subject in international literature and its acceptance varies geographically. Hostility between nation-states has long been regarded as driving the endorsement of a single nationality policy, but as interstate conflicts have decreased, states’ support of multiple nationality has swelled.
While recent policies issued by the Chinese government advocate the return of overseas Chinese and the attraction of skilled foreign nationals to the country, the People’s Republic of China still rejects the recognition of dual nationality and sticks to arguments that root back to the time of the foundation of the People’s Republic. This seems to reflect a conceptualisation of sovereignty as embracing “national strength”, in combination with notions of racial nationalism, which does not allow for a permeable nationality law that ignores factors of ethnicity and descent. Furthermore, the concern for separatism, as well as the legitimacy of the Communist Party, especially with regard to the legal status of the Republic of China may well be fundamental reasons to maintain the status quo. The effective Nationality Law of 1980 does not explicitly prohibit dual nationality but states that dual nationality is “not recognised”.
Despite this fact, Chinese citizens may de facto hold another nationality due to several reasons of which some can be traced back to the implementation of certain Chinese laws and regulations. It is these legal inconsistencies or even conflicts that Jasper Habicht and Eva Lena Richter shed light on in their recent paper “De Facto Dual Nationality in Chinese Law and Practice”.
The authors do this by discussing three main scenarios where de facto dual nationality may occur: children who acquire Chinese and foreign nationality by birth, former Chinese citizens that do not cancel their household registrations upon naturalising elsewhere, and Chinese officials who naturalise but are denied the right to voluntary expatriation by the Chinese state and are treated as single nationals.
By examining these three scenarios, the authors show that legal and procedural inconsistencies of the Chinese state have created inconsistent implementation of nationality law that can lead to cases of de facto dual nationality. Public administration of nationality law and the Chinese household registration (hukou) system are often conflicting and represent another problem area. Finally, China’s diplomatic efforts of holding up single nationality as the sole legal rule contradict the maintenance of control over former citizens, especially officials, who naturalise elsewhere.
The authors point to the discrepancy of the Chinese state to hold up a policy of single nationality while, at the same time, aiming to attract foreign talent to China. The authors suggest that the possibility to apply for permanent residence and the rights attached to it should be enhanced to safeguard participation in social security and political life, especially for foreign children and skilled foreign nationals. Since enhanced cooperation and data sharing between authorities is a declared goal of recent administrative reforms, problems related to the enforcement of the single nationality rule will become ever more obvious.
The authors also argue that the parallel nature of hukou and nationality is problematic and should be addressed as a high priority to solve the continued appearance of de facto dual nationality and related problems. Last but not least, the Chinese state needs to end its practice of claiming authority over former citizens while holding on to a single nationality policy. Such practice not only violates international law, it also results in political uncertainty which may deter foreign individuals and enterprises from investing in China.
The paper De Facto Dual Nationality in Chinese Law and Practice has now been published in China: an International Journal (Volume 20, Number 1).
Jasper Habicht received his PhD in Regional Studies China from the University of Cologne. His main research interests are Chinese immigration legislation, Chinese nationality legislation and Chinese immigration politics. Get in touch with him via LinkedIn.
Eva Lena Richter is a PhD candidate at the Chair of Chinese Legal Culture, University of Cologne and a Research Associate at the University of Oxford “China, Law and Development” project. Her research focuses on skilled migration to China. Get in touch with her via LinkedIn.
Grace Yu Mou’s book The Construction of Guilt in China – An Empirical Account of Routine Chinese Injustice was published with Hart Publishing
To start off: What drove your interest in criminal justice in China?
My research interests in Chinese criminal justice came from my experience when I first observed a criminal trial as a teenager. The crime scene, as described at the beginning of my book, was strange to me: I was expecting some form of cross-examination, just like those commonly seen in television court dramas. The trial, however, had no drama and did not make much sense to me at the time. The prosecutor read out the case dossier in an aggressive manner. The defence lawyer, whose response was not addressing the issues raised by the prosecutor, sheepishly read her pre-prepared defence statement. The trial was by no means exciting – it was a boring presentation of the criminal case dossier. Sitting in the audience, I was at a loss to understand what they were talking about. The case dossier apparently was a critical instrument, which was passed on from the prosecutor to the judge to decide the guilt or innocence of the defendant. This encounter of criminal justice prompted me to think about the way in which criminal justice is conducted in China; but differing from the criminal justice literature which focuses on why witnesses are absent, the question that piqued my curiosity was – if case dossiers play such an important role, determining the outcome of the case, how are they created? Are they truly reliable? Have the criminal procedures provided sufficient safeguards to ensure that the convictions made on the basis of the dossier are really safe? These questions motivated me to think about criminal justice from a different perspective.
Your book is extraordinarily rich in empirical data on a field that is very hard for scholars, and non-Chinese scholars in particular, to observe. Can you also tell us a little bit about the data collection process?
I was lucky enough to access the field site at a time when criminal justice institutions (the procuratorate and the courts in particular) were still open to researchers. The data gathering process was a mixed experience. After staying at the prosecutor’s office for a period of time, it was relatively easy to strike-up a conversation with different people who came to the procuratorate on business. I had lots of conversations with police officers, defence lawyers and sometimes victims in the prosecutor’s offices. Those conversations were extremely informative in revealing various aspects of the criminal justice process. My understanding of how criminal cases were constructed, for example, was initially described to me by some police officers and prosecutors during an informal conversation. Surprisingly, I found it more difficult to set up formal interviews with defence lawyers. I approached a number of defence lawyers after I finished my observation in the prosecutor’s office in 2012. But quite a few defence lawyers declined the interview request (some of them declined in the last minute), expressing their concerns about the topic and how it could affect them in a deleterious way.
The most frequently mentioned fact about the PRC’s criminal justice system is probably the extremely high rate of convictions – over 99.9%. What explanations have you found?
The exceptionally high conviction rates can serve as a useful indicator of the functions of the criminal justice institutions. With the high conviction rates, we can say with confidence that acquittal is not a commonly accepted result of court decisions. For this we must question the function of the courts and their truth-finding mechanism. A lot of questions will inevitably follow. Are judges allowed to acquit criminal cases? If not, why? What are the implications of an acquittal? Are the overwhelmingly majority of prosecution cases strong enough to convict? To answer these questions, we have to understand the pre-trial process, especially the role of the prosecutor and how the criminal cases are constructed. For example if the courts are divested of the power of acquittal (apart from exceptional cases), how are weak cases filtered out of the system? What role do the prosecutors play? How do they scrutinise the police evidence and evaluate the persuasiveness of the case? Since the courts rarely exercise the power of acquittal, the defence lawyers need to engage earlier in the process with the true decision-maker in order to make an effective impact. What are the relationships between the prosecutor and the defence lawyer like? Can the defence lawyer positively influence the prosecutorial decision-making? To answer all these questions, we need to comprehensively assess the pre-trial process and understand the practices on the ground. These areas are featured in Chapters three, four and five of my book, which depicts a depressing picture of the ways in which criminal justice operates on the ground.
Your book addresses the complex question of how the police makes out the facts of the case, the truth of what happened – or as they call it, create the ‘official version of truth’. How is diverging evidence treated and how is the police’s account treated in court? Has the practice of ‘aligning later evidence’ become common practice?
To begin with, introducing new evidence to challenge the police/prosecution case at trial is extremely difficult in China. It is well documented that defence lawyers who tried to contact the witnesses to verify the prosecution case in the past were arrested and prosecuted for perjury contrary to Article 306 of the Criminal Law. Defence lawyers may expose themselves to various professional hazards in the course of collecting evidence in favour of their clients. Due to such constraints, it is challenging to present an alternative version of the facts at trial. There are a very small number of cases in which defence lawyers have managed to creatively construct a defence case to contradict the prosecution case (without sacrificing their own safety) and have then secured an acquittal. But these cases are very rare. Of course, the courts may decide not to admit the defence evidence which contradicts the prosecution evidence and to reject the alternative version if they are not convinced with the story of the defence.
Why do police officers try to align evidence? What incentives does the police have – and how do they work together with the prosecutor?
The reason why the police construct their case in such a way is because few witnesses come to the court to testify and the court relies on the case dossier to determine the guilt or innocence of the accused. According to Article 200 of the Criminal Procedure Law, convictions should be based on a chain of evidence that points to the same guilty facts without reasonable doubt. Therefore, in order to formulate a persuasive narrative against the accused, the police have to ensure that different accounts from witnesses, the victims and the accused corroborate each other, or at the very least they do not contradict each other in order to prove the guilt of the suspect. It would be very difficult for judges to make a decision if the items of evidence contradict one another. This is also necessary as the evidence contained in case dossiers are a manifestation of the objective facts, which are treated as ‘objective’ in the sense that whoever reads the dossier will come to the same conclusion that the accused is guilty. This is also a protecting mechanism for judges, as the facts presented in the case dossier can be repeatedly reviewed, by their leaders and the higher court. To achieve this result, police and prosecutors have to make sure that the facts are well supported by the evidence.
What role does the guilty plea play in China? Since 2019, if a suspect admits the crime and accepts the penalty, the punishment may be reduced – 认罪认罚. Is this procedure a step towards improving the criminal justice system?
The guilty plea system has a profound impact on criminal justice in China. In a chapter that I recently completed on Leniency for Pleading Guilty and Acceptance of Punishment (LPGAP, 认罪认罚), I have argued that the guilty plea system under the principle of LPGAP has paved a route to miscarriages of justice en masse. This is very much due to the fact that the system has significantly empowered the prosecutor, who has taken on the roles of a policymaker, case manager, adjudicator and sentencer. Judges have retreated from the substantive decision-making process (including sentencing). The rights of the accused are further eroded and safeguards diminished. The guilty plea system is largely dominated by the procuratorate and has largely replaced the traditional criminal justice system.
To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. […] A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.
Given the high conviction rate, how powerful are defence lawyers? Which strategies do they adopt and what are their limits?
Defence lawyers have never been powerful in Chinese criminal justice. They are marginalised by the criminal justice system, which is dominated by the Iron Triangle – the police, the procuratorate and the courts. As mentioned in my answer to Q4, defence lawyers are subject to various obstacles, which include (and are not limited to) criminalisation pursuant to Article 306 of Criminal Law when they engage in the proactive construction of defence cases, difficulties in meeting their clients in detention centres and in accessing the case dossier in a timely manner. To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. In Chapter five of my book, I described that a defence lawyer did successfully challenge the prosecution case and secure an acquittal through creatively using Google’s satellite map and the weather report. A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.
What problems have officials in charge of improving the criminal justice system identified, which suggestions do they make and which ones do you think are promising?
The main problem of the way criminal justice operates in China is miscarriages of justice. Since 2014, a series of reforms have been carried out to re-shape criminal justice in China. For example, a quota system (员额制) was introduced in 2017 to classify the working staff within the procuratorate and the courts into three categories, namely quota prosecutors/judges, auxiliary prosecutors/judicial staff and administrative staff. Only a fixed, small number of quota prosecutors/ judges now count as professionally recognised judicial staff, who are expected to lead criminal prosecutions or adjudicate criminal cases. There was also a devolution within the procuratorate and the judiciary to de-bureaucratise the internal approval process. For example, in 2019, the departments within the procuratorate formerly in charge of various facets of criminal procedures, that is the Department of Public Prosecution and the Department of Investigative Supervision in particular, were merged (捕诉合一), with prosecutors being re-grouped into new cohorts and dedicated to handling specific types of cases from investigation to trial. Apart from a small categories of cases which are still required to be signed off by the Chief Prosecutor and/or discussed by the prosecutorial committee, the internal hierarchical reviews appear to be relaxed and prosecutors are accorded more autonomy in the vast majority of instances. More significantly, a lifelong accountability reform was introduced to tie judges’ and prosecutors’ reputation and career perspectives to the quality of the cases regardless of their employment status. Realising the crucial role that prosecutors play in the criminal process, the Procurators Law from 2019 has required prosecutors to be bound by the facts and law and adhere to an objective and just position (秉持客观公正的立场) in performing their functions. In my article on prosecutorial accountability, I have argued that the building of judicial and prosecutorial professionalism would be a welcome advance to improve the criminal justice system. However, as we have seen in practice, aside from restructuring the institutions, little has been done in practice to cultivate professional integrity, which lies at the heart of minimising miscarriages of justice. Hitherto no systematic review of criminal justice took place. Judging from the on-going criminal justice reform, eliminating institutional vulnerabilities has not been the chosen route in those reforms. With the mass implementation of the guilty plea system under the principle of LPGAP, wrongful convictions are likely to remain numerous but more difficult to detect.
In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions.
Your illustration of day to day criminal justice in China offers rather bleak prospects. Do the problems you identify not undermine the judiciary’s legitimacy and more broadly, that of the government or Party?
Miscarriages of justice can certainly undermine the legitimacy of the judiciary and that of the rule of the Party. For example, the wrongful conviction of Zhang Yuhuan reported in August 2020 had long-lasting repercussions on public trust in the criminal justice system. The criminal justice institutions, including the courts, are fully aware of the damaging effect. In 2014, the Supreme People’s Court announced that miscarriages of justice had a damaging effect on public trust in the judicial system and said that to resolutely combat the problem, “systematic pitfalls must be tackled at the institutional level.” In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions. The current reforms appear to be on an ad hoc basis and lack in creating an overarching principle or guidance.
Based on your findings, what do you think the judicial reforms in the next years hold for the criminal justice system?
Although the judicial reforms may enhance the awareness of the problem of miscarriages of justice and curtail wrongful conviction to a certain degree, the effort can be easily offset against political agendas, according to which the criminal justice system should first and foremost be perceived as the ‘dagger’ (刀把子) in maintaining the social security of the Party-state regime. Alongside the judicial reforms, there has been a backlash that prioritises procedural economy at the expense of suspects’ rights as well as political pressures to reinforce the punitive nature of the public prosecution crime control in the last two years. For example, the trial centred reform initiated in 2018 which attempted to introduce cross-examination to the trial proceedings came to a halt recently. There are a lot of uncertainties as to how the system will evolve in the future. Although I hope that the reform gradually improves the system, it will be very difficult to implement in practice and may take much longer than most people expect.
Dr. Grace (Yu) Mou is a lecturer in criminal justice at SOAS University of London where she teaches criminal justice, Chinese law, and law and justice in contemporary China. Her new book, The Construction of Guilt in China: An Empirical Account of Routine Chinese Injustice, is based on extensive fieldwork in a local procuratorate. She previously discusses her book at the U.S.-Asia Law Institute, the recording is available here.
A new paper by Aleksandr Alekseenko
Investors increasingly diversify their investment portfolios by investing in cryptocurrencies. Cryptocurrencies however are not a safe haven for investors. Bitcoin is extremely volatile and can bring both exceptionally high profits and terrible losses, seemingly due to market manipulations. The question of how cryptoassets should be regulated is approached differently by jurisdictions. This paper compares the current regulatory frameworks for cryptoassets of Mainland China, Hong Kong, Macau and Taiwan.
China is among the world’s leaders in e-commerce and FinTech, but despite this fact the Peoples Bank of China (PBOC) banned cryptocurrencies and initial coin offering (ICO). From 2013-2021 the PBOC issued several notices which obliged financial institutions not to provide transactions of digital financial assets. The People’s Republic of China also proclaimed that Bitcoin and ICO’s are tools for illegal fundraising, money-laundering, and scamming, and that therefore all activities using them violate national laws and regulations. The worries are not unfounded: In one case tried before the Heilongjiang High Court, the defendant had exchanged illegal gains money from RMB into 1,200 Bitcoins and transferred them to Macau, there converted the Bitcoins into Hong Kong Dollar and consequently exchanged them for RMB to transfer the money back to mainland China.
In addition, PRC authorities have pointed out that cryptocurrency production requires a lot of electricity. At the same time, energy is needed by organizations that produce goods and suffer from a shortage of electricity. Therefore, the second reason for prohibition is energy efficiency and concern for the environment. In order to discourage citizens from investing in projects based on digital tokens, Mainland Chinese courts do not protect the rights of investors, indicating that investors themselves are violators who expect to receive illegal income.
Macau’s authorities closely cooperate with mainland China to prevent money laundering through digital financial assets and therefore prohibited transactions with Bitcoin and banned ICO. It reduces opportunities for illegal activities and protects investors from investing in projects that exist as a pyramid scheme. In comparison with Mainland China and Macau, Taiwan has a more liberal approach to cryptoassets regulation and restricts only financial institutions from dealing with Bitcoin. Other companies may sell and buy goods for Bitcoins.
In Hong Kong, cryptocurrency and tokens are only strictly regulated by the Hong Kong Securities and Exchange Commission (SEC) if they have the characteristics of securities, bonds or futures. The SEC doesn’t regulate Bitcoin because it is neither a means of payment nor any other regulated asset. Hong Kong’s authorities pay most attention to digital platforms, which provide opportunities for ICO’s and cryptofundraising. In this regard, the SEC has issued some standards that clarify the licensing procedure for cryptocurrency exchanges and organizations that manage digital financial assets.
Thus, although Hong Kong does not create a liberal haven for crypto business, an entire segment of Hong Kong’s digital assets market is in a regulatory “gray” area. As a result, both Taiwan and Hong Kong de facto serve as bridges from the market of digital financial assets to the PRC. Mainland investors may use them as a “crypto-hub”. For the case of Hong Kong, this situation fully fits the principle of “one country – two systems.”
Find Dr. Aleksandr Alekseenko’s paper, published with the China and WTO Review, here. Dr. Aleksandr Alekseenko is an Associate Professor in the Faculty of Law of the Saint-Petersburg State University, with a research focus on Commercial Law, Investment Law and Legal Regulation of digital Financial Assets. He received his LL.M from the Far Eastern Federal University (Vladivostok) and a PhD in laws from the Ural State Law University (Yekaterinburg). He studied Chinese language at the Linyi Normal University and is the principal investigator and participant of scientific project of Russian Foundation for Basic Research on the topic of e-commerce legal regulation and new technologies in the sphere of investments.
A new paper by Tanner Larkin
International human rights law is often associated with the progressive expansion of justice and freedom. But today that link cannot be taken for granted. As I discuss in my forthcoming Note in the Columbia Law Review, the People’s Republic of China (PRC) is attempting to transform human rights into an instrument of 21st century global authoritarianism. To that end, the PRC is undertaking efforts at the regional, national, and sub-national levels to socialize other actors into its preferred human rights norms through visits and exchanges, academic conferences, multilateral fora, and other means.
The PRC has long possessed a distinctive human rights vision. It recognizes the validity of human rights as a concept, but stresses an absolutist view of sovereignty according to which states are entitled to choose their human rights practices without interference; stability and development are pre-conditions for promoting human rights; and human rights are centered on the state rather than the individual. This doctrine is thus highly conducive to authoritarian rule. That the PRC holds such views on human rights is not new. What is new, especially since Xi Jinping’s ascent to power in 2012, is China’s revisionist posture in promoting its vision across the globe and in treating its conception of human rights as an alternative human rights framework, superior to the liberal status quo. This shift is powered by China’s dual aims of augmenting its soft power (and thus geopolitical influence) and neutralizing the perceived threat of liberal human rights norms to the survival of the Chinese Communist Party regime.
China’s international human rights strategy can be thought of as “normfare,” a neologism that refers to the strategic promotion of favored interpretations of international norms. Its normfare in the human rights field is illuminated by applying Harold Koh’s transnational legal process model for how international norms develop and take root. Per Koh’s model, this occurs in three stages. First, the norm entrepreneur provokes an interaction or series of interactions with other actors. Second, the interaction forces an interpretation or enunciation of a relevant international norm. Third, the transnational actor potentially succeeds in causing the other parties to internalize the new interpretation of the norm into its own internal normative system. Successfully internalized norms may ultimately determine state behavior.
China’s human rights engagement with Africa demonstrates at least a de facto strategy of normfare to diffuse favored norms in a manner that maps onto Koh’s transnational legal process model. In the interaction phase, the PRC creates opportunities for transnational actors to engage with Chinese counterparts and learn about the PRC’s human rights vision, including through new fora such as the Forum on China-Africa Cooperation and the South-South Human Rights Forum, as well as by visits and exchanges involving African political parties, experts, lawyers, and other actors.
These interactions lead to the interpretation of norms in a manner favored by China, thus legitimizing and building consensus for China’s norms. These processes of interaction and interpretation are fueling internalization. This involves (1) social internalization, suggested by the embrace of PRC-style human rights norms by some prominent African academics; (2) political internalization, indicated by the rhetoric of certain African leaders; and (3) legal internalization, evidenced by African states such as Tanzania, Nigeria, and Zimbabwe adopting PRC-style internet-regulation statutes.
The PRC’s human rights normfare may contribute to the construction of an alternative, authoritarian international law and the furtherance of an illiberal, China-dominated global order. To avoid these outcomes, actors—above all, the United States—should push back to blunt the effects of the PRC’s normfare and rebuild a more resilient liberal human rights regime, including by implementing counter-normfare.
China’s human rights normfare poses a grave threat to the international human rights system. By fashioning an illiberal, authoritarian “human rights” doctrine, the PRC debases the coinage of human rights, supplying a currency that will prop up authoritarian regimes and undermine human rights defenders. Now is the time for action to preserve the integrity of human rights as a check on arbitrary state power and a guarantor of individual liberty.
Tanner Larkin’s paper is forthcoming with the Columbia Law Review and a draft is available here. Tanner Larkin is a second-year J.D. student at Columbia Law School, where he is a Hamilton Fellow and a James Kent Scholar. He is also a Senior Editor of the Columbia Law Review and a board member of the Columbia Society for International Law. Tanner graduated summa cum laude and Phi Beta Kappa from Georgetown University’s School of Foreign Service in 2019. He can be reached at email@example.com or through LinkedIn.
A new paper by Stuart Hargreaves
Hong Kong’s Court of Final Appeal (CFA) typically sits as a five-member panel composed of the Chief Justice, three ‘permanent’ judges, and a fifth member that may be drawn from one of two panels. The non-permanent ‘local’ panel is composed of retired members of the CFA or of the Court of Appeal. The non-permanent ‘overseas’ panel is composed of senior jurists drawn from other common law jurisdictions, in practice primarily but not exclusively from the United Kingdom and Australia.
The possibility of inviting judges from overseas to serve on the CFA was agreed to in the Sino-British Joint Declaration governing the transition of sovereignty over Hong Kong, and is codified in Hong Kong’s quasi-constitution, the Basic Law. The Basic Law, however, provides only that the CFA “may as required” invite such overseas members to serve, with no further specifics.
Hong Kong’s first Chief Justice, Andrew Li, chose to draw the fifth member from the overseas panel to join whenever possible, rather than alternating between the two non-permanent panels. This in essence became a constitutional convention and for the first twenty years of the CFA’s existence nearly every substantive case was heard by a panel that included an overseas member. They serve on renewable three-year contracts, but are not actually present in Hong Kong for that entire period – they typically fly in for a month each year to hear the cases to which they have been assigned (during COVID they have continued to participate remotely via video conference).
It is unusual that a wealthy, well-developed jurisdiction continues to import judges from overseas. While importing judges remains common in the microstates of the South Pacific, Hong Kong in no way lacks local legal talent in the same way that might justify a need to import judges. While Singapore also invites overseas judges to serve, it limits them to sitting only on a commercial court. In contrast, Hong Kong places no restrictions on the roles that the overseas judges take – when sitting they are treated as a full member of the bench.
The system is thus not without controversy. It is fair to argue that judges who make critical decisions about a community or society ought to be drawn from that society, absent good reason – yet there can be no more of an outsider than a well-paid judge flown in for one month each year. The overseas model also has an uncomfortable colonial echo to it – the judges have primarily been drawn from Hong Kong’s former colonial ruler, all have been white, and all but two have been men. There are also fair questions regarding sovereignty that may be raised – though China did agree to the system in the Joint Declaration, the historical context and China’s experience during the 19th and 20th centuries necessarily will make the role a sensitive one.
But despite these issues, for many years the overseas judges have all been regarded as jurists of the highest quality and they have contributed significantly to the CFA’s output. Previous academic work found that in the Court’s first decade they wrote roughly one-quarter of the lead opinions coming out of the CFA. These opinions dealt with an unrestricted range of matters, including some key developments in local constitutional jurisprudence.
My paper updates this research and shows that the role has shifted in the years since, with the overseas judges now accounting for little over 15% of the Court’s output annually. Moreover, they no longer appear to write decisions related to fundamental rights or inter-jurisdictional questions related to the relationship between Hong Kong and the rest of China. I argue that this is a strategic decision by the CFA as a political actor in its own right, in an effort to preserve its institutional role. The paper suggests that the CFA perceives threats to its ability to serve as a check on an executive branch that is becoming more deeply entwined with policy initiatives that come directly from the central government.
I propose that one way in which the CFA is responding to this change is to reduce the prominence of the overseas judges whilst continuing to invite them to serve. The goal appears to be retention of the benefits they bring (in particular the idea that their presence indicates to both the international and local community that Hong Kong’s judicial independence remains intact) whilst minimizing the chance that politically sensitive decisions could be delegitimized through direct association with an overseas member. The CFA may be concerned that such delegitimization may serve to ground subsequent arguments that the concept of judicial neutrality itself is so suspect that ‘judicial independence’ should not extend to anything more than the resolution of disputes between private parties.
It is true that the neutrality or objectivity of judges is often overstated – they are all humans who are the product of cultures, upbringings, educations, environments, and so on. But this is an argument for increasing the diversity of the bench at all levels rather than an argument for curtailing the role of the courts as traditionally understood in Hong Kong. Of course, whether or not reducing the prominence of the overseas members will in fact help preserve the scope of the CFA’s role is an open question. It is unlikely to be enough on its own.
Find Stuart Hargreaves’ paper “Canaries or Colonials? The Reduced Prominence of the ‘Overseas Judges’ on Hong Kong’s Court of Final Appeal”, published in the Asian Journal of Comparative Law, here.
Prof. Hargreaves is an Associate Professor in the Faculty of Law of the Chinese University of Hong Kong, with a research focus on privacy law and constitutional law. He has law degrees from Osgoode Hall Law School (JD), the University of Oxford (BCL), and the University of Toronto (SJD), and qualified as a solicitor and barrister with the Law Society of Ontario.
A new paper by Michael Bohlander
Chinese criminal law scholars have increasingly been establishing links with colleagues in other jurisdictions and drawing benefits from comparative research, and more than anything else with those from Germany. As both Germany and China are at their core civil law systems, and German scholarship in criminal law historically had, and still has, a reputation abroad for a high degree of doctrinal sophistication that may appeal to other legal systems with a similar conceptual DNA. One major factor which keeps recurring in the recent Chinese debate is the dramatically increasing level of interest in a particularly Teutonic tool of legal scholarship, the code commentary.
China is currently carefully reconsidering its previous stance with regard to substantive criminal law, in that reliance on the old Soviet-based criminal code is gradually being replaced by a concept that is owned by Chinese legal scholars, practitioners and law-makers, and shaped to the indigenous principles influencing and guiding modern Chinese culture and society. In other words, Chinese criminal law is increasingly progressing to a Sino-centric understanding of law based on the founding principles of the People’s Republic, the current policies of the CPC and the more recent wider guidance by Xi Jinping Thought as expressed for example in the two volumes of collections of President Xi Jinping’s ideas, The Governance of China.
Addressing the need to ground any law reform on the prevailing conditions in China and the need to lay the “emphasis on what is practical, what is contemporary and what is quintessentially Chinese”, Xi Jinping expressly realises the benefits and risks of international and comparative engagement in the context of law reform:
“Basing our work on reality does not mean that we can develop the rule of law in isolation from the rest of the world. The rule of law is one of the most important accomplishments of human civilization. Its quintessence and gist have universal significance for the national and social governance of all countries. Therefore, we must learn from the achievements of other countries. However, learning from others does not equate to simply copying them. Putting our own needs first, we must carefully discern between the good and the bad and adopt the practices of others within reason. Under no circumstances can we engage in “all-out Westernization”, or a “complete transplant” of the systems of others, or copy from other countries indiscriminately.”
Using a “Western” tool does not eo ipso equate to crafting Western things with it, in other words: process does not equal substance. From the point of view of a Chinese domestic debate about the pros and cons of commentary use it is ultimately irrelevant whether Western lawyers approve or disapprove of the material and political essence of the legal system which the commentary is meant to elucidate. Elucidation is a worthwhile and unobjectionable aim in and of itself and, as the inevitably patchy practice of the SPC in issuing interpretative guidelines has shown, something for which the need is clearly felt at the highest echelons of the Chinese legal establishment.
The choice of analytical or conceptual lenses is paramount for the contribution a commentary can make to the development of any area of law, but certainly in the field of criminal law. This process of choice begins, however, even with the meta-question of who decides these analytical parameters: Will they be ordained by the Party structures or the SPC or will each academic (team) be free to choose their own? In the former case, it is to be expected that a much wider array of society- or community-related criteria will find entry into the project and serve as a more or less tight strait-jacket for the development. Even if the overall tendency might be to move away from the old Soviet-style model, it is unlikely that a major shift towards an ideology incompatible with modern Sino-socialist thinking would be advocated or tolerated.
It might be highly beneficial for the Chinese context to rethink the relationship between academia and practice. Judicial and wider practitioner involvement in commentary writing would appear to be crucial in order to achieve a harmonious blend of scholarly penetration of the material on an analytical basis with the views and practical experience of seasoned – and ideally also scholarly-minded – judges, prosecutors and counsel.
Finally, what shape should Chinese commentaries adopt? The easy avenue of copying the mere phenotype of the various German commentaries may make it difficult, if not to say unattractive, for the Chinese debate to reflect on its own approach from scratch, as it were. One might be tempted to say that the desire for a working commentary culture and the apparent respect for the German experience may have forestalled a proper fundamental debate within the Chinese legal community about the merits and aims of engaging in commentary writing, its underlying philosophical parameters and policy directions – in other words: Is there a particularly Chinese DNA that would give rise to a different genotype?
While the focus of this paper is on exploring the lessons that can be drawn from the German case, it is far from clear that this model is best-suited for the Chinese legal environment, possibly adding the further qualifier: At this time? The current relationship between academia and practice and the alleged lack of practitioner interest in scholarly exploration may militate in favour of a less ambitious format, at least initially: Judicial practice may be unlikely or unwilling to have recourse, leave alone contribute to commentaries if their impetus is too much focused on the academic debates of scholars and does not sufficiently address the needs of practitioners.
Overall, the situation appears rather more complex than it might seem at first glance. There are two Chinese proverbs, “Be not afraid of being slow, be afraid of standing still” (不怕慢, 就怕停), and “Teachers open the doors, you enter by yourself” (师父领进门，修行在个). In the debate about the proper use of the idea of commentaries in China, it seems that these proverbs may prove to be wise counsel.
Michael Bohlander’s paper, published with Peking University Law Journal, is now available here.
Professor Michael Bohlander holds high judicial office as the International Co-Investigating Judge in the Extraordinary Chambers in the Courts of Cambodia, having been on leave from Durham University and serving as a full-time judge at the Court in Phnom Penh from 2015 – 2019, and again since April 2020 after his re-instatement in the post by the United Nations Secretary-General, to deal with residual litigation. He is also on the roster of international judges at the Kosovo Specialist Chambers in The Hague, to which he was appointed in February 2017. His extensive published research on German, English, comparative and international criminal law has found wide reception, including outside academia. In his book series, Studies in International and Comparative Criminal Law with Hart, Liling Yue recently published Principles of Chinese Criminal Procedure.
A paper by Chun Peng
Since May 1 of 2008, the Regulations on Open Government Information (the OGI Regulations, English translation here) have formally triggered the legal mandate for information disclosure for all government agencies across China. Over the last ten years, much attention has been paid to how much progress towards transparency can be and has been made in a political system long dogged by secrecy, with an enormous amount of ink spilled on this area of law. Yet one issue remains relatively untrodden, if not unknown, among scholars and observers interested in the Chinese transparency regime. That is transparency for public enterprises and institutions.
As part of the legacy from the planned economy of the pre-reform era, public enterprises and institutions, in Chinese 公共企事业单位, also known as state-owned enterprises and state-sponsored institutions, continue to perform a variety of public functions and/or to receive public funds. They still loom large in Chinese people’s lives today, spanning from health care to education, from transportation to electricity. Against this background, the level of transparency of these quasi or non-governmental organizations bears much significance and warrants more attention. In this paper I attempt to fill the gap in the existing literature.
It starts by explaining the legal framework of open public enterprises and institutions in China, paying particular attention to its difference from the same regarding administrative organs and empowered organizations under the OGI Regulations. The previously unnoted dualistic structure within China’s transparency law is pointed out and the 2019 amendment to the OGI Regulations to reinforce such a structure be introduced. I then explain the fourfold conventional wisdom that underpins such a legal change, as articulated by officials entrusted with the drafting task: First, it was believed that because public enterprises and institutions do not qualify as administrative subjects, they are usually unable to enter into administrative litigation. Even if they become defendants, it is difficult, if not impossible, for the courts to review the legality of their disclosure decisions. Second, it was suggested that the responsibility of ensuring public enterprises and institutions’ transparency, including settling grievances arising from lack thereof, is better entrusted to the oversight departments than to the judiciary. Third, the drafters thought that public enterprises and institutions should be considered regulatees whose transparency obligations are different from the freedom of information requirements that apply more generally to the government, and closer to compulsory disclosure requirements imposed on listed companies or charitable organizations. The fourth and last official rationale is that globally, the freedom of information laws primarily target government agencies rather than non-government organizations.
The rest of the article dissects the above reasoning and puts forward counterarguments. It first reports and assesses the transparency performance of the Chinese public enterprises and institutions since the implementation of the OGI Regulations in 2008, particularly in comparison to that of the administrative organs. It will be made clear that public enterprises and institutions had a rather poor transparency record over the last decade or so, due to a lack of hierarchical pressure from the government departments responsible for overseeing their operation. In other words, although it became a legal requirement back in 2008 that public enterprises and institutions should be more open, there has remained a huge gap between the law on paper and law in action. In contrast, as a silver lining, this paper demonstrates that the Chinese judiciary has actually been active yet prudent in scrutinizing public enterprises and institutions’ compliance with the OGI Regulations, in spite of the institutional barrier created by the dualistic structure. The paper then argues that to incorporate public enterprises and institutions into the OGI Regulations is in line with both the Chinese constitutional imperative for participatory democracy and the international mainstream of including non-governmental entities performing public functions and/or receiving public funds in the freedom of information legislation. This means that the underlying rationale for enhancing the dualistic structure by the 2019 amendment is wrongheaded. The concluding part summarizes and makes proposals for further legal reforms in this area.
Chun Peng’s paper is published with the University of Pennsylvania Asian Law Review and available here.
Chun Peng is presently an assistant professor and assistant dean at Peking University Law School. He received his doctorate and master’s degree in law from the University of Oxford and holds a double degree in law and economics from Peking University. He has published widely on Chinese constitutional law, administrative law and comparative law in English and Chinese. Besides scholarly work, he writes op-eds on China and the world at The Diplomat, China Daily and Caixin. His book Rural Land Takings Law in Modern China: Origin and Evolution is published with Cambridge University Press. More recently, he is interested in data governance and privacy law and has published on China’s social credit system and the newly enacted PRC Personal Information Protection Law.