Human Rights – European Chinese Law Research Hub

Chinese State-Owned Companies and Investment in Latin America and Europe

29. August 2023

A new paper draft by Larry Catá Backer

In the United States at least, there has been an increasing worry about the state of US relations (economic and political) with Latin American states. Increasingly that is measured by the extent of Chinese development of its own political and economic relations with Latin American and Caribbean states. Europeans, more than most, worry about this shift in the sources of overseas investments from the perspective of their now decades long objectives to embed human rights more directly in economic activities and political life.

US military leaders have also expressed fears about Beijing’s influence on Mexico’s communications industry, where 80 percent of telecoms are provided by Chinese companies, according to General Glen VanHerck, commander of both the US Northern Command and the North American Aerospace Defense Command. China is also extending its reach into the ‘Lithium Triangle’ which spans Argentina, Bolivia and Chile: The Chinese battery company Catl recently struck a deal worth more than $1 billion to develop Bolivia’s lithium reserves. Some analysts have speculated this resource-grab constitutes a ‘lithium monopoly in the making’. The benefits gained from these investments are coupled with the willingness of Latin American countries to accept loans worth tens of billions of dollars from China.

At the center of Chinese overseas investment are their state-owned and controlled enterprises. The Chinese state-owned enterprise (CSOE) presents an anomaly in the operation of the well-ordered construction of a self-referencing and closed system of liberal democratic internationalism, especially as that system touches on business responsibilities under national and international human rights and environmental law and markets driven norms. The anomaly is sourced in the increasingly distinct and autonomous framework principles within which it is possible to develop conduct-based systems respectful of both human and environmental rights which are emerging in between liberal democratic and Marxist-Leninist systems.

This essay considers the forms and manifestations of these disjunctions where CSOEs are used as vehicles for the projection of Chinese economic activity beyond its borders. The essay first situates the CSOE within the political ideology of its home state. These CSOEs are both creatures of the political-economic system from which they are constituted and economic actors seeking to maximize return for investment in a risk reducing environment. CSOEs are instruments of state power and its political-economic objectives, as well as value maximizing market participants. They seek to avoid risk and maximize value-but their calculation of risk and value are a function of the normative system from which they are constituted. That, in turn, affects their engagement with human rights and the sustainability impacts of their operations.

To better understand the CSOE especially as they operate in host states is especially necessary as global and national systems for compliance and accountability are refined, and as national security regimes increasingly constrain the extent and form of inbound public investment. To that end the essay focuses on the formal structures for CSOE supervision by state organs that operationalize the guiding ideology through which they are conceived and operated. This provides the basis for a deeper consideration of the way that the projection of CSOEs abroad is structured within a conceptual cage of policy objectives: specifically, emerging conceptions of socialist human rights, including environmental rights and obligations, and an operational framework in the form of the Chinese Belt & Road Initiative. It is only in the complex interplay of these layers of law, principle, regulation, and guidance described above, that one can begin to see the outline of the normative cage within which human rights can be understood and practiced by CSOEs.

Nonetheless, at its core, the study is about risk- its ideology and the way it is expressed through governance expectations and principles. One speaks here about legal risk (to align the discussion with the 1st Pillar of the UN Guiding Principles), but also of business risk (aligning the markets driven, private law structures of the UNGP 2nd Pillar). More importantly, the sort of risk that one encounters here, in comparing the liberal democratic and Marxist-Leninist models of human rights and sustainability, is intimately tied to the principle of “prevent-mitigate-remedy”, and its administrative-compliance overlay. In a sense, when one speaks to human rights and sustainability, and especially climate change, one is using the qualitative language of rights to speak to the quantitative probabilities of risk of harm, and more importantly risk of irremediable harm. The function of those principles, then, framed through the prevent-mitigate-remedy principle is to provide a formula for valuing those risks, and for placing them within a hierarchy of risk tolerance. Increasingly in liberal democratic regimes, risk tolerance for strategies that do not privilege prevention (and then mitigation and last remedy) are reduced, or in some cases, risk aversion is implicitly or explicitly the result of the application of the “principles” analysis. That is fair enough and represents the culmination of conversation about value choices. Nonetheless, Marxist-Leninist systems approach risk, and risk tolerance, in a different way. That difference is in part a function of differences in the conceptualization of both human rights and sustainability as a function of development and collective prosperity. But it is also in part a reflection, effectively, of what might be preferences for mitigation-remediation (or otherwise exit if the costs of prevention exceed the anticipated vale of an activity), at least indifference as between the strategies as a function of expected value. That poses some challenges for any project that seeks global consensus on what had once been the unchallenged valuations and framework of liberal democracy.

Larry Catá Backer is a W. Richard and Mary Eshelman Faculty Scholar and Professor of Law and International Affairs. He does research in Legal Fundaments, Political Economy and International Relations. Currently working on “Next Generation Law”–data driven governance; the emergence of new global trade regimes (Belt and Road Initiative and America First); and the emergence of new theories of Leninist state organization as they may apply to non-Leninist institutions.

China’s Normfare and the Threat to Human Rights

16. February 2022

A new paper by Tanner Larkin

^{“President Cyril Ramaphosa at 2018 Forum on China-Africa Cooperation” by GovernmentZA is licensed under CC BY-ND 2.0}

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 larkin.tanner@columbia.edu or through LinkedIn.

On Global Constitutionalism and the Community of Common Destiny for Mankind

29. July 2021

A new paper by Björn Ahl

Ministry of Foreign Affairs, Beijing Wikimedia Commons

China is stepping up its ambitions to become a norm-making power and its capability to achieve this has become a key question in the debate over the international order. In the realm of international law, the government of the People’s Republic has put forward the concept of a ‘community of common destiny for mankind’ which stresses some long-standing norms of global constitutionalism, neglects others and further introduces new ones to the field.

In order to better delineate China’s plans for international law and to identify the values and structures of the future international legal order envisaged by China, Björn Ahl in his latest paper observed both Chinese legal scholarly debates and government statements revolving around the community of common destiny for mankind as well as global constitutionalism and its substantive ingredients: jus cogens, human rights, democracy and the rule of law. Whereas the public debate by no means embodies the full picture of the direction where the PRC’s take on international law is heading towards, it does reveal which elements are accepted and which are rejected.

Although part of that scholarship affirms in general terms the value of the rule of law, human rights and democracy, those who discuss the substantive elements of global constitutionalism in more detail often give them distinctly different interpretations or even refute them.

The Chinese debate on global constitutionalism began with China’s accession to the WTO in 2000. While generally supporting the interpretation of international law in constitutionalist terms, many scholars also point out the dominance of Western viewpoints and call to better align international law with Chinese interests. For instance, peremptory norms of international law (jus cogens), are regarded as one constitutive element of global constitutionalism, however official statements show a very narrow reading of it that is not in line with the scholarly understanding that jus cogens norms have universal binding force and a higher status than ordinary norms of international law.[1] Ahl explains that jus cogens norms as norms imposed on states without their consent empower non-state actors, domestic courts and international tribunals, and are thus not conducive to furthering the interests of authoritarian states like the PRC which seek effective control over the judiciary and civil society.

The rule of law was first officially introduced to the PRC Constitution in 1999 with a significant twist: ‘Socialist rule of law’ emphasizes the supremacy of the party over the law and denies full legal autonomy, features that make it difficult to apply it to the realm of international law. The official debate around the rule of law in China defends the instrumentalist ‘socialist rule of law’ as a legitimate local variation of the international rule of law.

Socialist rule of law is an ideological rather than legal concept, the meaning of which is not determined and/or fleshed out by legislation and the courts but by party documents. […] The concept is a variation of the principle of socialist legality, where stability and flexibility are combined within a dialectical relationship.

A general trend towards democratisation in international law has been widely acknowledged by Chinese authors in the sense of a power shift away from US dominance. They have also claimed that the dominant notion of democracy as well human rights is limited and advocates Western ideology. One strand of arguments projects the Chinese development model onto the global arena, holding that top-down considerations can better serve developmental goals than antagonistic and individualistic rights-based approaches. Through stating that it “offers Chinese wisdom and solutions for global governance of human rights”[2], the government makes it clear that it works towards disseminating its own official human rights approach in order to bring international human rights standards in line with domestic practices.

The concept of the community of common destiny for mankind is in the scholarly discourse at hand regarded as a precondition for recognising a hierarchy of norms in international law. Scholars argue that the community of common destiny concept contains a set of binding principles of international law. Ahl’s paper dives into official and scholarly takes on these principles: for instance is the very prerequisite for the principle ‘durable peace’ found to be sovereign equality including a free choice of political system and development path. The principle ‘universal security’ is regarded to also cover the political risks to authoritarian systems.

The community of common destiny is seen as a new source of legitimacy for international law that is based on the shared interests of the community of states.

He concludes that the reinforcement of the existing order and fundamental change to that order are both components of the community of common destiny concept. Whereas formal aspects of global constitutionalism overall are viewed favourably, it is also criticized as turning a blind eye to US dominance.

Find Björn Ahl‘s full paper ‘Chinese Positions on Global Constitutionalism, Community of Common Destiny for Mankind and the Future of International Law’, forthcoming in the Chinese Journal of Comparative Law, on SSRN here.

Björn Ahl is Professor and Chair of Cologne University’s Chinese Legal Culture. Before joining the University of Cologne in 2012, he was Visiting Professor of Chinese Law, Comparative Public Law and International Law in the China EU School of Law at the Chinese University of Political Science and Law in Beijing. Prior to that he held a position as Assistant Professor of Law in the City University of Hong Kong. He has also worked as Associate Director and Lecturer in the Sino German Institute of Legal Studies of Nanjing University and as a Researcher at the Max Planck Institute of Comparative Public Law and International Law in Heidelberg. Find him on LinkedIn.

[1] Permanent Mission of the PRC to the UN, ‘Statement by Mr. XU Hong, Director General of the Department of Treaty and Law, Ministry of Foreign Affairs, People’s Republic of China at the 71st Session of the UN General Assembly on Agenda Item 78, Report of the International Law Commission on the work of its sixty-eighth session (Part II: Chapters 7, 8, 9, 10, 11, 12)’ (chnun.chinamission.org, 27 October 2016) last accessed 18 July 2021

[2] State Council Information Office, ‘Seeking Happiness for People: 70 Years of Progress on Human Rights in China’ (gov.cn 22 September 2019 last accessed 18 July 2021.

European Chinese Law Research Hub

Tag: Human Rights

A new paper draft by Larry Catá Backer

A new paper by Tanner Larkin

A new paper by Björn Ahl