China's agendas in international law and their implications for democracy

Another challenge, or potential challenge, to democracy, or prospects for democracy, in Asia (and elsewhere) comes from Beijing’s agendas in, and perspectives on, international law, and the PRC’s growing ability and inclination to press for acceptance of its preferences. For much of the period since the regime adopted policies of reform and opening to the outside world in 1979, China’s engagement with international law mostly has followed a path of accepting the established order and many of its principal norms. To be sure, China has long chafed at the notion that it should be bound to accept existing doctrines of international law, many of which developed in the 19th century or the early post-Second World War decades and without much participation by China (or other developing or postcolonial countries). During the reform era, China’s official support for status quo international laws and legal institutions sometimes has been limited or largely rhetorical. Nonetheless, departures from the Mao-era rejection of liberal or Western international have been striking and enduring.

China’s reform-era engagement with international law has included another long-standing and persisting Chinese position that overlays formal acceptance of the status quo order on a more complex pattern: claiming that China’s favored interpretations—often undemocratic or anti-democratic ones—are part of existing international law. In recent years, China has gone beyond such purportedly merely interpretive arguments and attempted glosses. Increasingly, it has sought to shape the rules and institutions of international law and—unsurprisingly—to do so in ways that suit Beijing’s often anti-democratic and sometimes revisionist preferences and interests. One of the most pointed expressions of this more muscular approach came early in the incumbency of Xi and the fifth-generation leadership, when the Fourth Plenum of the 18th Central Committee—often called the “rule of law” plenum—proclaimed that China must “vigorously participate in the formulation of international norms” and strengthen its “discourse power [/inayuquan] and influence in international legal affairs.”22 More recently, orthodox Chinese statements have framed a signature foreign policy phrase of the Xi era—the “community of shared future/common destiny for humankind” [renlei mingyun gongtongti]—as a “Chinese program” [Zhongguo fang’an] for “global governance” [quanqiu zhilt].2i

Alongside this increasingly ambitious agenda, China has developed considerable, and rapidly growing, means. Beginning with its retaking of the Chinese seat at the United Nations in the 1970s, the PRC has held one of the “Permanent Five” positions in the UN Security Council, with the attendant right to veto actions by the UN’s most powerful body. For decades, a Chinese judge has sat on the International Court of Justice. China has joined nearly every important international institution that makes, or relatively directly affects, international law. Many major international legal and law-related organizations—including UN-linked specialized agencies—now have Chinese nationals in leadership positions. Collectively, and in many cases individually, such institutions’ substantive reach is broad, extending to many issues that bear on democracy and related issues of human rights and encompassing the legal authority to take measures ranging from advice to censure to authorizing uses of force.

More broadly, China’s rising hard power and the political leverage derived from China’s position as a key source of international trade, investment, and aid enhance Beijing’s ability to influence the positions on international legal issues taken by many other states, especially in Asia and the developing world. This is a significant asset for the PRC in an international legal system where rule-making and norm-creation are decentralized and reflect (formally and, to some extent, in practice) the views of majorities or pluralities of the members of the community of formally equal states. Moves to create new Chinese-led institutions and initiatives (such as the Asian Infrastructure Investment Bank (AIIB), the Regional Comprehensive Economic Partnership, the Belt and Road Initiative, or the Shanghai Cooperation Organization) augur still greater capacity for China to affect international legal rules—especially for the adjacent region and primarily in economic affairs, but with implications for matters that include political democracy. The correlative decline in the relative influence of the United States and—at least while Donald Trump was in power—the United States’ reduced interest in sustaining prevailing international law and related institutions further reinforces China’s potential for influence.24

With the prospect that China will shape international law thus significant and likely growing, the democracy-implicating content of the PRC’s views is a more salient concern for Asia and the wider world. Three elements of Beijing’s perspectives are illustrative and particularly significant: support for a robust notion of sovereignty in international law; a non-democratic perspective on international human rights law; and an emphasis on treaties and state-based international institutions as favored sources of international law.

Strong sovereignty and anti-interventionism

Although China’s emergence as a more confident and assertive great power with far-flung interests and system-shaping ambitions has begun to erode China’s once extremely pro-sovereignty positions, China’s commitment to a strong notion of state sovereignty remains vigorous.25 This position has deep roots for China: colonial and quasi-colonial encroachments that began in the mid-19th century and which, in the PRC’s view, will persist at least until Taiwan is “reunified” with the motherland; Cold War isolation, first by a hostile US-led West and then by the once-supportive Soviet Bloc; and long-running assertions of solidarity with the large cohort of developing countries that obtained often-fragile sovereignty as independent states through post—Second World War decolonization. With its origins in times of perceived and often real vulnerability, Beijing’s emphasis on state sovereignty has persisted into the current era of China’s much greater security and strength.

In the orthodox PRC view, a sovereign state’s government enjoys almost plenary power and great discretion in governance at home. In international law, as in diplomacy, China generally—and often pointedly—eschews judgment about other states’ internal orders. China’s positions contrast with US and European approaches that press for democratic or potentially democracy-supporting reforms in other states. Beijing’s posture offers international political advantages for China, particularly (but not solely) in the form of diplomatic support from authoritarian regimes that face criticism, pressure, or sanctions from the West.26 With the PRC’s emergence as a major power and influential actor in law-related international institutions, Beijing’s stance increasingly poses a threat to the relatively fragile and still-contested legal norms supporting (or at least tolerating) transnational democracy-promotion.27

In recent times, and especially during the Xi Jinping era, China’s pro-sovereignty stance in international law has again become more pointed. Key developments have focused on issues related to China’s territorial sovereignty, but with unavoidable implications for Beijing’s broader positions on international legal rules. China’s insistence that it has incontrovertible sovereignty and expansive rights over disputed islands and marine formations in the South China Sea has provided a claimed basis for adopting laws to govern and regulate the contested areas and dismissing as a mere scrap of paper an international arbitration panel’s rejection of China’s claims to the region as inconsistent with international law.28 Of course, the largely uninhabited rocks and reefs of the South China Sea are not themselves significant spaces for the advance or retreat of democracy in Asia. But they may have symbolic significance in that several of the PRC’s rival claimants to the cartographically vast region are democracies (most notably Taiwan, but also Malaysia and the more troubled case of the Philippines). More importantly, the strident positions Beijing has articulated in this context resonate with, and reinforce, a PRC posture on territorial sovereignty that is at odds with the normative and legal claim that undemocratic governance inside a state is a legitimate matter of international concern.

For Xinjiang, China has linked its most repressive domestic governance to principles of sovereignty in international law. The authorities have defended harsh crackdowns and internments as necessary—or at least permissible—to combat “separatism” (the more common term for secession in official PRC legal and political discourse) and internationally linked terrorism. Here, Beijing’s position implicitly appeals to and resonates with—and may reinforce—some of the less democracy-friendly aspects of international law and politics. A state’s efforts to suppress secession or stop transnational terrorism are two purposes for which international legal and political norms are most deferential toward states’ resorts to exceptionally undemocratic and arguably human rights-infringing measures. Tellingly, Beijing has leaned hard on such notions and state sovereignty in rejecting, as inconsistent with international law, UN-based, and other foreign, condemnations of its actions in Xinjiang. This PRC stance concerning its handling of Xinjiang in the mid-2010s echoes, and greatly amplifies, Beijing’s defense of its handling of ethno-religious unrest in Tibet around 2008, when repressive measures provoked similar international reactions and legal arguments.29

For Hong Kong, Beijing’s adoption of a National Security Law in 2020 dramatically extended another long-standing, sovereignty-emphasizing approach. Sharpening and extending a PRC view about the nature and scope of the Central People’s Government’s authority to make law for Hong Kong, and the weakness of the constraints imposed by the treaty-like Joint Declaration that defined the framework for Hong Kong’s return to China from British colonial rule, the National Security Law rests on a long-evolving claim that China has plenary sovereign power to determine the system of governance and the scope of civil rights and liberties in Hong Kong. Following on a series of National People’s Congress Standing Committee interpretations of the Basic Law (Hong Kong’s PRC-enacted mini-constitution) that had rejected calls for more rapid implementation of promised progress toward democracy, the National Security Law was part of a harsh reaction to a burgeoning pro-democracy movement in Hong Kong that erupted in 2019. The legislation was followed by arrests of prodemocracy activists and politicians, the articulation of standards that would (not for the first time) disqualify pro-democracy candidates for the local legislature, an announcement that those elections would be postponed (ostensibly because of the COVID-19 pandemic), and rejection of US, UK, and other foreign responsive measures as unlawful encroachments on Chinese sovereignty. In terms of its content, the National Security Law for Hong Kong focused on areas where international law gives sovereign states a wide berth to adopt undemocratic, human-rights-constraining, and civil liberties-limiting laws and policies: secession, subversion, terrorism, and collaboration with foreign forces to endanger national security.30

The PRC’s Xi-era push for expansive and strong views of sovereignty has extended to an emerging field of international law that is important for democracy-promotion and democracy-protection: the international law of cyberspace. China (along with Russia) has been a leading advocate for “Internet sovereignty” as a principle in international law.31 On this view, the Internet is properly governed by states, which are free to impose laws restricting cyberspace in ways closely analogous to their regulation of the physical space within their territories. Adoption of this and kindred norms (and, short of that, preventing the emergence of pro-openness rules) in the international law of cyberspace would authorize authoritarian regimes to restrict severely a potent channel for the dissemination of heterodox and pro-democratic ideas.

China’s embrace of a strong, black box-like conception of sovereignty has dovetailed with its support for anti-interventionism as a key principle of international law. On this view, the state is largely immune—even opaque—to legitimate international criticism, including on such matters as its lack of political democracy and its shortcomings on many democracy-related human rights. Intervention—especially forcible intervention—in another state is permissible only on very limited grounds, such as self-defense or with the authorization of the United Nations Security Council (where Beijing wields a veto). On the Chinese view, so-called humanitarian intervention (to address severe human rights violations or to stop or prevent a humanitarian catastrophe) is generally not lawful, at least when undertaken without proper Security Council authorization. Neither is forcible intervention for the promotion or restoration of democracy in targeted states (or for other ostensibly benign purposes). From Beijing’s perspective, purported cases of humanitarian or benign intervention (such as the US-led intervention in Kosovo)—and some cases of initially legitimate intervention pursuant to proper institutionalized collective security procedures or to repel breaches of international peace (such as the initial intervention in Libya or the response to Iraq’s invasion of Kuwait)—were from the beginning or (in the cases of Libya or Iraq) became illegitimate efforts to effect regime change, often with the goal of installing liberal democracies.

In recent years, China has been skeptical—albeit decreasingly so—of emerging international legal ideas such as “responsibility to protect” (R2P) or “responsible protection” or “responsibility while protecting.” For China, the limited appeal of these doctrines is that they are less unattractive than “humanitarian intervention.” They are somewhat more protective of target-state sovereignty and wary of ostensibly benign forcible intervention. China’s position continues to emphasize the primary and principal role of states in addressing issues of human rights and related questions of governance within their territorial jurisdictions.32

Lesser forms of intervention and attempts to influence other states’ domestic governance are, in orthodox or official Chinese views, unlawful or at least suspect. China has long chafed at US efforts to promote democratic change—and related protections for human rights—in China, denouncing Washington’s strategy as one of “peaceful evolution.”33 Under Xi, this perspective has persisted. It has been extended to new issues, including legal regulation of foreign NGOs operating in Chinese territory and other transnational connections of PRC citizens and organizations, with especially strict limits being placed on those perceived as having potentially regime-threatening, possibly color revolution-like, and therefore pro-democracy, agendas.34

Undemocratic/illiberal views of human rights

As the PRC’s opposition to international legal norms that authorize intervention to promote democracy in other states or legitimize criticism of states’ undemocratic internal governance suggests, China’s views on international human rights law do not include a right to democracy or other related human rights. To be sure, China’s formerly rejectionist posture toward international human rights law has moderated significantly. Since the early 1990s, China has accepted the principle of universal human rights, and, since the early 1980s, China has joined and participated in many of the major international human rights treaties.35

Nonetheless, China retains a view of international human rights law that is distinctly, and in some respects distinctively, undemocratic. Although China has acceded to most of the principal UN-linked human rights conventions, it has merely signed but not ratified the International Covenant on Civil and Political Rights, which includes a right to participation in self-governance and many democracy-related civil and political liberties. Although Beijing routinely submits human rights performance self-reports mandated under the UN system, China’s performance on democracy and related norms has been sufficiently poor that it has drawn criticism that the PRC violates its international legal duty not to act in ways inconsistent with the Covenant’s object and purpose and the ultimate performance of China’s expected future obligations.36

Official and orthodox Chinese accounts insist that core international human rights include a right to sovereignty and a right to economic development—both of which can overshadow and provide arguments for delaying or sacrificing pursuit of liberal political rights associated with democracy. The purported human right to sovereignty implies or entails the right of each state (or the people of a state) to choose a form of political system, including an undemocratic one, suited to its own conditions. The right to democratic governance—the scope and strength of which remains contested in international human rights law—is not one that China has accepted, at least in the broadly liberal and participatory sense embraced by proponents of the right.37

China holds at-best ambivalent positions on the core human right of self-determination—a right that is aligned, albeit imperfectly, with democracy (in part through a presumption that plebiscites or similar mechanisms are the preferred mode for implementing the right, at least where the creation of a new state is a possibility). Although Beijing long has voiced support for self-determination rights in the context of decolonization and, at times, national liberation movements, it has rejected the view that Tibetans, Uyghurs, and other minority groups in China, or the people of Taiwan, enjoy an international legal right to self-determination that could include a right to separate statehood, or that such a right is to be realized through democratic processes among the people in the relevant territory. In recent years, Beijing’s views on these matters have taken on a harder edge: the harsh crackdown, severe human rights violations, and thoroughgoing rejection of autonomy in Xinjiang—and defense of such moves as advancing human rights-related goals of poverty alleviation and anti-terrorism; the National Security Law and other measures in Hong Kong that erode local political autonomy and promises of democratization; and the ongoing rejection of the proposition that Taiwan’s increasingly consolidated democratic politics and governance are relevant to the question of unification with the PRC.

China’s positions on international human rights law also include assertions that a state permissibly may prioritize (in terms of lexical ordering or temporal sequencing) economic, social, and cultural rights over civil and political ones (including those most relevant to liberal democracy). Beijing’s arguments also seek to excuse China’s (and, at least by implication, other states’) asserted shortcomings on civil and political rights as the consequences of still relatively low levels of economic development or the legacies of past political crises (in China’s case, primarily the Cultural Revolution and associated depredations of human rights). The Chinese perspective, including in statements from top leaders, has included some variants of cultural relativism in human rights. Although never fully signing on to the “Asian Values” discourse of the 1990s, Chinese assessments have endorsed the view that the meaning of universal human rights varies by national circumstances, which include history and elements of culture. In a partly overlapping line of argument, orthodox and official Chinese positions offer a gloss on democratic rights (most notably in the context of defending measures to suppress dissidents, including advocates for liberal democracy): the human rights of the few cannot outweigh—or be allowed to undermine—the human rights of the majority.

Treaties and prospects for influence

Throughout its history, the PRC consistently has favored treaties and the outputs of state-based international organizations as means for creating international legal obligations. China has disfavored customary international law (based in the practice and opinion of the community of states), the general principles common to major legal systems (a group long dominated by Western states), and other such relatively diffuse and less clearly state-consent-based sources of international law.38 This seemingly technical and doctrinal point has potentially important implications for the role of the international rule of law in supporting democracy.

Treaties—the term international law uses for legally binding international agreements, regardless of their formal name—have become an important device in China’s expansion of its international economic reach and, in turn, political influence. Such agreements set the terms for investments, loans, and dispute resolution procedures in China’s Belt and Road Initiative projects and beyond, and thereby facilitate China’s acquisition of economic-based political leverage over partner states in Asia and elsewhere. Some critics allege that the BRI—a signature initiative of Xi’s tenure—includes the creation of “debt traps” for unwary partner countries.39 Even absent malign gambits, Beijing’s treaty-facilitated trade, investment, and aid initiatives can create considerable Chinese sway over host-country governments. That influence is not going to be exercised in ways that promote, or even do not impede, democracy or democratization. Indeed, critics have asserted that China’s large economic presence and modest foreign aid have entailed support for, and entanglement with, authoritarian regimes that align—or can be induced to align—with China’s agendas in international law and politics.40

China’s approach to the international law of treaties, including principles of interpretation, pushes back against pro-democracy obligations—specifically for China and by implication more generally. As noted earlier, Beijing has advocated understandings of democracy-related obligations under international human rights treaties that demand very little. In recent years, and especially amid the growing controversy over China’s democracy movement-opposing intervention in Hong Kong in 2019 and 2020, Beijing has asserted that the PRC-U.K. Joint Declaration setting forth the terms of Hong Kong’s reversion has been fully executed and thus no longer gives Britain rights to challenge the National Security Law for Hong Kong or other measures that limit democracy in the former British colony. Alternatively, Chinese sources have argued, the Joint Declaration never included obligations to grant Hong Kong more democracy than it has enjoyed. This claim builds upon a longer-standing and more deeply rooted Chinese position that questions whether the PRC’s pledges in the Joint Declaration created any obligations to the UK. On this theory, the Joint Declaration could not have done so because the sovereignty that London purported to restore to China—as part of a quid pro quo—never had been lawfully transferred to Britain by means of the unequal, and therefore invalid, 19th century treaties).41

China has been increasing its influence in key international institutions—many of them based in treaties—that make and shape international legal obligations and rules relevant to democracy. China sought, successfully, to become a charter member of the UN Human Rights Council in 2006, when it succeeded the UN Commission on Human Rights as the principal organ overseeing the International Covenant on Civil and Political Rights (ICCPR). From this perch, and wielding influence born of China’s rising international political and economic power, Beijing has been able to recruit allies in the Council and thereby deflect and mute criticism from NGOs and other states of violations of international human rights legal obligations by China (and other states with authoritarian regimes).42

Especially in the wake of the global financial crisis of2007-2008 and China’s cooperative role in addressing it, Beijing pushed hard for greater influence for itself (and other large emerging economies) in major international financial bodies, including World Bank and the International Monetary Fund, which have long provided potent international legal mechanisms for imposing political conditions—sometimes including reforms that proponents argue are prodemocracy—on economic assistance. At the same time, China has taken a leading role in creating new institutions, such as the New Development Bank (NDB) and the Asian Infrastructure Investment Bank. China also has energetically pursued the Regional Comprehensive Economic Partnership and other China-centered regional trade agreements. International economic accords can and sometimes do provide international legal mechanisms for linking trade opportunities to member states’ performance on other metrics, including political ones. Although Beijing has pledged that the NDB and AIIB will follow international norms and best practices, and China’s regional trade agreements (RTAs) are legally obliged to conform to WTO requirements, these new lending institutions and trade pacts are potential rivals to longer-standing, universal or multilateral structures. Such China-centered arrangements are much more unlikely to be venues or mechanisms for promoting democratic or democracy-supporting change in targeted countries than sometimes has been the case with status quo bodies and agreements.

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