I The Evolving Rule of Law with Chinese Characteristics
The development of the Chinese legal system and discourse on law and governance have in the past four decades undergone major shiftsFootnote 1 that have spawned a great deal of insightful research.Footnote 2 However, much of the accumulated scholarship has adopted a state-centered approach, neglecting interest and normative divisions within the regimeFootnote 3 and underappreciating the influence of China’s international context. Authoritarian states are neither monolithic nor static.Footnote 4 Shifting dynamics of domestic elite politics change policy priorities and modify the official perceptions and preferences about law and governance, as well as the academic debates. Meanwhile, as in other countries, scholarly debates in China also have direct impacts on the legal reforms and subtle effects on the official narratives about the rule of law.Footnote 5 Moreover, post-Cultural Revolution China increasingly interacts with the rest of the world, and the interactions have led to domestic realignment of power and facilitated exchanges of ideas.Footnote 6 Thus, the following analytical survey of Chinese legal reform and rule of law discourse incorporates three interwoven aspects: political contestations among Chinese ruling elites, academic debates about law and governance, and China’s interactions with the outside world.
Soon after taking power in 1949, the Chinese Communist Party (CCP) formed an alliance with the Soviet Union and imported its model of legal institutions and legal education. Though the alliance collapsed,Footnote 7 the inchoate Chinese legal institutions continued to operate according to the Soviet design, and Soviet-trained teachers dominated Chinese law schools, indoctrinating students with the Marxist and Leninist view of courts as a tool for social ordering and class oppression.Footnote 8 The basic institutional structure for socialist rule by law, however, suffered severe damages during the Cultural Revolution (1966–76), which paralyzed much of the state apparatus. At the time, all Chinese law schools were shut down, along with any meaningful academic debate about law and governance.Footnote 9
Mao’s death in 1976 paved the way for the ascent of Deng Xiaoping and his allies, who ended the “legal nihilism” and ushered in an era of reform.Footnote 10 Having personally suffered the chaotic and arbitrary rule of Mao’s totalitarian dictatorship, the reformers deemed rule of man to be “very dangerous, not reliable”Footnote 11 and were determined to reestablish basic legal institutions. For instance, the first order issued in 1979 by the resurrected Standing Committee of the National People’s Congress (SCNPC) amended the Regulations of the People’s Republic of China on Arrest and Detention, which provided better legal protection for individual freedom and imposed more stringent procedural requirements for its deprivation.Footnote 12 Meanwhile, Chinese courts and procuratorates reclaimed their authority, enforcing a growing number of statutes aimed at preserving political, social, and economic order. This period between the end of the Cultural Revolution and Deng’s Southern Tour in 1992 featured pragmatic institutional experiments, policy uncertainties, and intense political debates. While a faction of the ruling elites advocated political reforms that would create a more liberal and democratic state relatively separated from the CCP,Footnote 13 the conservative faction strongly opposed the “corrosive influence of bourgeois ideas.”Footnote 14
This same period witnessed a sea change in Chinese academic discourse on law, as law schools and departments reopened and law professors were reinstated. While many of them received direct or indirect Soviet-style legal training,Footnote 15 China’s opening-up policy allowed legal scholars access to Western political and legal thought. Having personally suffered the lawless atrocities of the Cultural Revolution, many became highly receptive to core tenets of liberalism and the rule of law.Footnote 16 For them, the ultimate objective of legal reform in China should be to achieve legal constraint over state power. In that regard, their voice resonated with a cohort of reformers among the CCP leaders. For instance, Peng Zhen, then chairman of the Legal Committee of SCNPC, insisted that “the law be superior to the Party.”Footnote 17 The normative tensions among the ruling elites manifest in the drafting and promulgation of the Administrative Litigation Law of the People’s Republic of China in 1989, which for the first time in Chinese history codified a rather comprehensive statutory procedure for victims of governmental mistreatment to seek legal remedy,Footnote 18 yet at the same time exempted actions taken by the CCP from such challenges.
Deng’s Southern Tour in 1992 moved the factional balance decisively in favor of the reformers, who undertook a series of structural reforms.Footnote 19 To establish a “Socialist market economy,” a wide range of enabling institutions were put in place that embodied major attributes of their Western equivalents. To expedite and consolidate the reform, the pro-market faction negotiated China’s entry into the WTO.Footnote 20 Its subsequent integration into the global economy further strengthened the reformers and facilitated the implementation of their policy agenda.Footnote 21 Meanwhile, the official narrative on law shifted from enacting laws and reestablishing basic legal institutions to promoting the “rule of law,”Footnote 22 and considerable efforts were made to professionalize the judiciary and elevate its status.Footnote 23 For instance, the Judges Law of the People’s Republic of China was enacted in 1995 and established merit-based staffing of Chinese courts, which used to recruit from retired military officers without any formal legal training.Footnote 24 Also, as shown in Figures 13.1 and 13.2, the number of civil and administrative lawsuits surged in the first half of this period. However, the official narrative of legal reform no longer contemplated the separation of the CCP from the state organs, including the judiciary. Without major reform of the political–legal structure, Chinese courts, subject to various institutional constraints such as personnel and resource control by local CCP leadership and other government bodies, proved less effective in resolving disputes than expected or portrayed by the reformers. And, the number of civil and administrative cases plateaued in the second half of this period (see Figures 13.1 and 13.2).
Number of first instance civil and criminal cases in China (1978–2020).
Number of first instance administrative cases in China (1983–2020).
The contemporaneous debates in the legal academy largely continued the liberal trajectory.Footnote 25 Growing interactions with international actors socialized Chinese officials, scholars, and practitioners in varying degrees to core liberal norms.Footnote 26 At one point, Western legal theories so dominated the jurisprudential discourse in China that a prominent legal scholar expressed grave concerns about his colleagues’ collective “cultural aphasia.”Footnote 27 However, this marked shift in discourse and massive institutional transplantation also sparked backlashes. The tensions peaked and triggered nationwide debates in 2005 and 2006 when the reformers’ plan to enact a property law based on German law principles was temporarily shelved after a legal scholar trained in the former Yugoslavia published an open letter alleging the protection of private property ownership would undermine the socialist nature of the Chinese political system as enshrined in the Constitution,Footnote 28 galvanizing fierce resistance from the conservative faction. While the national legislature eventually adopted the property law as proposed, Chinese socio-legal scholars have since demonstrated more interest in value-neutral comparisons with foreign legal systems,Footnote 29 as well as in rediscovering the values of China’s domestic institutions for resolving disputes and delivering substantive justice.Footnote 30 Interestingly, as shown in Figure 13.3(a), the rule-of-law discourse outside China also reached a turning point around the year 2006. Given how tightly China had been integrated in the global system at the time, the rebalancing of the rule-of-law debate in China might have simply reflected the global trend.
Google NGram search result by “rule of law” from 1949 to 2019: frequency with which the term appeared in English publications during the search period.
Google NGram search by various Chinese terms relating to rule of law, 1949–2019: frequencies with which the terms appeared in Chinese publications during the search period.
The power dynamics within the Chinese ruling elites tilted further in favor of the conservatives after 2008, when the global financial crisis severely eroded the normative appeal of free market capitalism and its enabling institutions, and the massive stimulus program implemented by the Chinese government to salvage the economy materially empowered the state sector. A systematic “turn against law” ensued.Footnote 31 The leadership began to emphasize the role of Chinese courts to construct a “harmonious society.”Footnote 32 Remarkably, an official without any formal legal training was appointed president of the Supreme People’s Court in 2008 and promoted a “Three Supremes” doctrine: “in enforcing the law, judges should take into account first the supremacy of the Party’s undertaking, second the supremacy of the popular interest, and only third the supremacy of the law.”Footnote 33 During this period, the academic discourse on law and governance also intensified.Footnote 34 While the “legally trained elites” continued to favor “more expansive, liberal and state-constraining conceptions of law,”Footnote 35 critiques of the liberal legal order began to enjoy a larger audience. The critiques also became more sophisticated, frequently quoting and referencing works by prominent US legal realists and critical legal theorists.Footnote 36 After decades of searching for ideal institutional models elsewhere, first in the Soviet bloc, then the Western world, a growing number of Chinese legal scholars started to look inward for theoretical inspiration.Footnote 37
After 2012, when Xi Jinping assumed top Party leadership, the CCP embarked on a multiyear campaign to build “socialist rule of law with Chinese characteristics.”Footnote 38 Having managed to consolidate and expand his power to a level comparable to that of Mao,Footnote 39 Xi advocated for a “comprehensive rule of law” (or, in Xi’s words, “containing power in the cage of institutions”Footnote 40) and constitutional governance.Footnote 41 However, the “rule of law” so propagated deviates from the liberal concept,Footnote 42 as it is “predominantly about fortifying and legitimizing the CCP’s leadership through law over state institutions,”Footnote 43 constituting a form of rule by law. The campaign aimed to have the Party “lead all rule of law activities including legislation, law enforcement, administration of justice and law observance.”Footnote 44 The CCP supremacy was finally enshrined in the Constitution.Footnote 45 And the official rhetoric publicly denounced the “erroneous” Western legal models.Footnote 46 In 2020, during the first central CCP conference on work related to “overall law-based governance,” Xi summarized his thought on the rule of law in “eleven upholds,” the top three of which were “upholding CCP leadership,” “taking a people-centered approach,” and “staying on the path of the socialist rule of law.”Footnote 47 Meanwhile, the official narrative began to integrate the socialist rule of law with “rule by moral virtue.”Footnote 48 Some scholars view this moralistic turn in the official rhetoric as nothing but a revival of traditional Chinese philosophies on governance – that is, the coexistence of legalism, which emphasizes governance with legal instruments, and Confucianism, which stresses governance through moral guidance and rites,Footnote 49 repackaged by sleight with esoteric Marxist concepts such as the dialectical unity of two terms with conflicting meanings.Footnote 50
All these attributes of the Chinese legal reform under Xi’s leadership suggest that China is moving away from the rule-of-law concept defined as imposing legal constraints over powerholders.Footnote 51 The power of Xi and his allies, wielded through the CCP decision-making mechanism, is free from any legal restraint.Footnote 52 Nonetheless, the CCP is increasingly relying on legal institutions to govern,Footnote 53 and, in the process, Xi’s campaign has shown positive effects,Footnote 54 as it provides more accessible forums for challenging low-level exercise of power, enhances predictability of published rules, and promotes reason-giving.Footnote 55 These effects are, for instance, the centralization of the court system, to shield judicial decisions from local politics;Footnote 56 rendering judges individually accountable, arguably to enhance independent adjudication and reduce shirking and corruption;Footnote 57 mitigating substantive review for case registration, to enable easier access to justice; and a broadened scope for legal challenges of government malfeasance, to rein in abusive officials.Footnote 58 As a result, the arbitrary exercise of power may have abated in certain issue areas that do not pose a threat to the regime. Routine civil cases, for instance, may receive neutral and fair treatment in Chinese courts, especially when the litigants are similarly situated in the power hierarchy.Footnote 59 The same is true for lawsuits against local government actors, the number of which surged in 2015, when the case registration reform took effect (see Figure 13.2).
Meanwhile, however, cases of significant social, economic, or political consequences continue to be avoided or “harmonized.”Footnote 60 For instance, the implementation of the zero-COVID policies has upended the lives of millions of people in China, yet courts have been largely silent. Businesses can be shut down and individuals locked up without minimal due process or any legal remedy. Moreover, the prosecution of activists in China has been growing, often with charges based on the ambiguous crime of “picking quarrels and provoking trouble.”Footnote 61 In short, the “comprehensive rule of law” campaign remains contested in terms of its impacts,Footnote 62 with many considering its effects to be “partial,”Footnote 63 “uneven,”Footnote 64 or “dualist.”Footnote 65 That being said, scholars generally agree that the campaign’s ultimate goal is no more than instrumentalist governance by law and regime preservation.
In parallel, partially due to the resurrection of personalistic authoritarianism under Xi and the disrupted factional power balance,Footnote 66 the space for academic debates shrank considerably.Footnote 67 The state tightened its control over views inconsistent with the government’s rhetoric, and the escalating geopolitical rivalry with the United States alienated Chinese legal scholars more receptive to liberal values or leaning toward normative pluralism. Nonetheless, rule-of-law debates continued among Chinese scholars who have become well versed in relevant Western literature on law and governance.Footnote 68 The liberal voice has been subdued, but not extinguished.Footnote 69 And more scholars have joined in the search for novel alternative theories.Footnote 70
Finally, China’s interactions with the outside world also have altered its state ideology. Granted, the components of orthodox Marxism advocating class struggles have lost practical relevance and been largely abandoned,Footnote 71 hence the widely accepted claim that China has “entered a post-ideological age.”Footnote 72 However, basic causal beliefs and worldviews integral to dialectical materialism and historical materialism still offer the most salient cognitive framework for Chinese ruling elites in interpreting complex and ambiguous social and political phenomena such as law’s role in, or relationship with, governance.Footnote 73 Briefly, political institutions, as a category of the societal superstructure, are determined by the mode of production, and legal institutions are regarded as tools of oppression and regime preservation employed by the ruling class. Because members of the Chinese ruling elites must demonstrate mastery of the state ideology in order to advance in the fiercely competitive political system,Footnote 74 they have internalized the core ideological remnants, which, I argue, gives rise to three shared perceptions of law and legal institutions: legal instrumentalism, economic determinism, and linearity of institutional changes.
To be concrete, the Chinese ruling elites have generally perceived law and legal institutions as a means to achieve other objectives,Footnote 75 be it political oppression,Footnote 76 reducing corruption,Footnote 77 facilitating an efficient market economy,Footnote 78 maintaining social order and stability,Footnote 79 sustaining regime legitimacy,Footnote 80 enhancing the government’s international reputation,Footnote 81 enabling modernization,Footnote 82 or symbolizing social and cultural progress.Footnote 83 Teleologically conceptualized,Footnote 84 the rule of law has never acquired the same normative appeal in China as in the West.Footnote 85 Additionally, the shared view of economic determinism underlies Chinese government policies and the official narrative about law and governance. Reformers and conservatives alike contend that the characteristics of economic relations in China necessitate a more professional and independent judiciary or, on the contrary, justify preserving the institutional status quo, or even reverting to Mao-era practices.Footnote 86 Moreover, prior studies in China have either concluded, or adopted the assumption, that modes of production determine legal institutions in a linear fashion, so economically developed regions and countries will feature professional and independent courts, whereas developing ones will be characterized by dysfunctional courts and incompetent judges.Footnote 87 As will be demonstrated, these ideology-shaped perceptions also modify China’s interactions with the international legal order.
To summarize, this first part of the chapter has offered a nuanced recounting of Chinese legal reform and its evolving rule-of-law discourse by examining the contestations among China’s ruling elites and the influence of external normative and geopolitical environments. Xi’s assumption of CCP leadership ushered in a new era of legal reform marked by greatly tightened CCP control and centralization of judicial power. Meanwhile, the CCP has exhorted Chinese officials and scholars to “vigorously participate in the formulation of international norms[,] … strengthen [China’s] discourse power and influence in international legal affairs[,] … [and] use legal methods to safeguard [China’s] sovereignty, security and development interests.”Footnote 88 And empirical data indicates that in 2012, when Xi became the party secretary, the Chinese rule-of-law discourse clearly diverged from that of the Western world.Footnote 89 All these changes render it timely and important to analyze China’s actual or potential impacts on the international legal order.
II Impacts on the International Rule of Law
During the Cultural Revolution, China was largely isolated from the rest of the world, and the ruling elites were deeply skeptical and inimical toward both the US-led Western international order and the Soviet-dominated rules governing relations between states within the Communist bloc.Footnote 90 Running an autarky, the Chinese government saw little need for international rules to facilitate cross-border transactions. Moreover, the CCP leaders, steeped in orthodox Marxism, regarded the existing international laws as primarily a hegemonic instrument of oppression.Footnote 91 As noted, the post-Cultural Revolution reforms reconnected China with the international community, giving rise to functional needs for international agreements. While some members of the ruling elites continued to view international institutions as favoring the United States and its allies,Footnote 92 and rejected the rules of the game as they were made when China was “absent from the world stage,”Footnote 93 others, realizing the necessity and benefits of accommodating the US hegemon, began to socialize with the international legal community. After Deng’s Southern Tour, the Chinese government, then dominated by reformers, stepped up its efforts to integrate into the global economy by, among other steps, joining the WTO.Footnote 94 Today, China is a party to hundreds of bilateral and multilateral treaties in a broad range of subject-matter areas, such as anti-corruption, arms control, environmental protection, and avoidance of double taxation.Footnote 95 The Chinese government also has assumed a more prominent role in drafting and amending international agreementsFootnote 96 and aspired to profoundly reshape the international legal order.Footnote 97
China’s rise and its actual or potential impacts on international law and institutions have stimulated heated debates. Some contend that China’s growing influence will have significant, detrimental effects on the liberal international legal order.Footnote 98 Others view China as a manageable threat.Footnote 99 By contrast, some scholars emphasize the positive effects of China’s participation in making and reforming international law.Footnote 100 Still others have taken an empirical approach, documenting China’s evolving and varying policies regarding international law and international institutions.Footnote 101 Still others consider international law largely irrelevant in the China-driven shift of global geopolitics.Footnote 102
While consensus is lacking, the bulk of the literature features a shared methodological approach – treating the sovereign state as the unit of analysis.Footnote 103 Such a simplified conceptualization, commonly adopted by realists in international relations, makes the corresponding analytical model too blunt a tool to explicate the heterogeneity of the interactions between multiple relevant Chinese actors and non-Chinese actors in various international legal fields. Again, applying the analytical frame of transnational legal ordering,Footnote 104 this chapter contends that China’s impacts are more nuanced and varied, and researchers will gain more insights by penetrating the sovereign facade and focusing on different cohorts of key Chinese international law actors. Given the subject matter of the field, lawyers, legal scholars, and legally trained government officials often play important roles. Moreover, depending on the specific issue area, conservative state actors lacking any formal legal training and two types of organizational actors – business organizations (i.e., domestic and multinational firms) and civil society organizations (e.g., NGOs) – may also occupy the interfaces between China and international law. These Chinese actors differ in their interests, internalized norms, ideologies, and causal beliefs, which shape their interactions with and impacts on international law.
Let me begin with interests. At the risk of overgeneralizing, Chinese lawyers seek higher income and professional status, which are intimately interconnected; Chinese legal scholars desire status and prestige associated with their academic and policy impacts and, to a lesser extent, higher income; Chinese government officials, much like their US counterparts, typically crave power and status and avoid risk; business organizations in China maximize profits, though state-owned firms often prioritize government policy objectives; Chinese civil society organizations, heavily state-dependent and systematically subdued, seek to make issue-specific impacts in areas tolerated by the authoritarian government.
Additionally, embedded in the Chinese institutional context, these actors naturally adopt its dominant normative framework,Footnote 105 which enables them to define, interpret, and appropriately carry out interactions with foreign international law parties. However, the actors may deviate from the default set of schemas and norms because of extensive socialization with outside or subcultural groups. Among these key groups of Chinese actors, lawyers and legal scholars tend to be more socialized in the global legal community. As alluded to earlier, the post-Cultural Revolution Chinese legal ecosystem evolved along with expansive statutory and theoretical transplantation from Western countries, and in the past few decades a growing number of Chinese law students and practitioners have received advanced legal education in European and US law schools. After years of intensive socialization, many among these two groups have internalized the core elements of international legal norms.
The exposure of Chinese government actors to the outside world varies widely. Reformers tend to dominate in some functional areas (e.g., trade, foreign affairs, and finance), where senior government officials are legally trained, globe-trotting career bureaucrats; some have even received degrees from prominent foreign universities.Footnote 106 In other state organs (e.g., security and defense), the conservative faction reigns, and the high-ranking officials rarely engage extensively with foreign peers, let alone with members of the international legal community. Thus, their internalized domestic normative framework remains largely intact.
The exponential growth of the Chinese economy in the past few decades has projected numerous Chinese firms onto the global stage for trade and investment, exposing them to different business and societal norms. The extent of their normative adaptation, however, turns on multiple factors, including, among others, the degree of exposure, the importance of the foreign market, and the institutional distance they must traverse.Footnote 107 Nonetheless, most Chinese non-state-owned firms have proved highly pragmatic and adaptable in finding efficient solutions to their cross-border business problems.Footnote 108
Along with China’s reform and opening-up, civil society organizations with tight, extensive international connections mushroomed from bare existence. Many such organizations are clan-based and historically have played a key role in attracting foreign direct investment. In the past three decades, civil society organizations also emerged to push for various legal reforms, and before Xi consolidated his power, US and European NGOs (e.g., the Ford Foundation and the American Bar Foundation) used to fund rule-of-law-themed programs in China, many of which were implemented in close collaboration with China’s domestic organizations.Footnote 109 In short, before the Chinese government tightened its control over foreign NGOs, they maintained broad and close contacts with social legal organizations in China, immersing them in the global legal community.
1 Actors, Organizations, and Issue-Specific Norms
A heterogeneity of interests and normative frameworks guide various groups of Chinese actors populating the interfaces between China and international law. As international legal issues vary, so do the coalitions of the actors. I propose that the varying combinations of interests the actors pursue and norms they have internalized offer a new theoretical angle that helps to explain the variations in China’s approaches to, and impacts on, the international legal orders governing different issue areas.
Take international commercial arbitration as an example. In this issue area, a variety of Chinese actors occupy the field, including Chinese firms, lawyers, domestic arbitration commissions, scholars, judges, and reform-minded government officials immersed in international legal norms. For reasons such as cultural affinity and cost concerns, China-based businesses prefer to resolve their international commercial disputes before Chinese arbitral tribunals.Footnote 110 This demand has spurred an explosive growth in China’s arbitration service market. To maximize revenue, Chinese lawyers and law firms compete fiercely for a larger share of the growing business, as do more than two hundred local arbitration commissions. Market pressure motivates nonstate Chinese actors to adopt international best practices. While the field of international commercial arbitration used to be dominated by a “small cadre of elite arbitrators,”Footnote 111 who were mostly US and European lawyers, the expansion of China-related arbitration business will inevitably give Chinese elite lawyers more voice and influence in the international community. Likewise, Chinese arbitration institutions will see their influence grow. Meanwhile, reform-minded state actors, by virtue of extended socialization in the international legal community, have adopted policies and reforms that reflect a mixture of domestic normative preferences and international norms governing commercial arbitration. For instance, the Chinese government was among the first to sign the Singapore Mediation Convention.Footnote 112 Also, the government has created international commercial courts as alternatives to commercial arbitration, and the courts were designed to be one-stop-shops for cross-border dispute resolution, reflecting the instrumentalist view of law commonly shared among the Chinese ruling elites.Footnote 113
By contrast, China’s approach toward, and impact on, international law governing territorial disputes is dramatically different, as illustrated by its handling of the South China Sea arbitration with the Philippines government under the United Nations Convention on the Law of the Sea. Nonstate actors were largely absent in this issue area. While multiple state actors historically played a part in the issue area, Xi consolidated the decision-making power and elevated the role of the Chinese military. Thereafter, powerful conservative constituencies in the defense and national security sectors reacted to the arbitration in a way that reflected their internalized normative contempt for judicial dispute resolution. They adopted a position of “Four Nos”: “no participation, no acceptance, no recognition and no enforcement.”Footnote 114 This attitude led to China’s attack against both the Permanent Court of Arbitration and its decisions, which were widely regarded as “an overwhelming victory for the Philippines and a heavy defeat for China.”Footnote 115 Since then, the Chinese government has made repeated efforts to modify the international norm regarding the jurisdiction of international tribunals to adjudicate territorial disputes.
To summarize, the rise of China has certainly brought more actors onto the global legal stage in certain issues areas, especially those pertinent to cross-border commerce and investment. China’s growing go-it-alone power also has boosted its capacity to establish new international organizations “in which its political power is more commensurate with its economic power.”Footnote 116 Moreover, in some issue areas, Chinese actors have been striving to alter the existing international law norms, with varying degrees of success. However, as will be discussed below, China has not mounted any systematic challenge against the fundamental norms on which the liberal international legal order is premised.
2 Fundamental Norms Underlying the International Legal Order
The rest of this chapter concentrates on China’s impact on the fundamental norms and worldviews undergirding the international legal order, which enable international actors to form their identities, preferences, and objectives and formulate legitimate means to achieve them. As noted in Part I, Chinese ruling elites share three basic causal beliefs about law and legal institutions: legal instrumentalism, economic determinism, and linearity of institutional changes. Because of these perceptions, the Chinese government has approached international law with mainly its instrumental value in mind.Footnote 117 Echoing the shared ideological view, Deng, in the late 1980s, remarked that the core values of liberalism were “designed only to safeguard the interests of the strong, rich countries, which take advantage of their strength to bully weak countries, and which pursue hegemony and practice power politics.”Footnote 118 Government officials were urged to be “adept at using international law as a ‘weapon’ to defend the interests of our state and maintain national pride,” and to “strengthen China’s ‘discourse power and influence’ in international legal affairs.”Footnote 119 The instrumentalist approach explains the shift in the government’s position with regard to investment treaties. When China was a net capital importer, its investment treaties with other countries curtailed foreign investors’ recourse.Footnote 120 But as soon as the country turned into a net capital exporter, the government negotiated broader investor protection in its bilateral investment treaties to safeguard the interests of Chinese outbound investors.Footnote 121 Following the same instrumentalist logic, in issue areas where the Chinese government anticipates to win some and lose some, it has been an active participant. China’s engagement with the WTO dispute settlement mechanism serves as a good example.Footnote 122
Of course, the instrumentalism is not narrowly material. Much of China’s engagement with international law (e.g., human rights treatiesFootnote 123) is driven by concerns about building the regime’s legitimacyFootnote 124 or intentions to facilitate domestic reforms.Footnote 125 Even the Chinese academic discourse on international law stresses the value of safeguarding the core interests of China,Footnote 126 including, among others, “maintaining the fundamental institutions, sovereign and territorial integrity, and social and economic stability and development,”Footnote 127 or more broadly facilitating China’s modernization, improving its international image, and enhancing the welfare of the global community.Footnote 128 Because instrumentalism is inherently issue-specific and nonstatic, this shared perception undermines any effort to formulate systematic contestation of fundamental international legal norms.
Moreover, economic determinism, rooted in historical materialism, also shapes the international law strategies of the Chinese government. Under this doctrine, major shifts in the international economic order will bring about a new international legal order.Footnote 129 In other words, international law will inevitably evolve in China’s favor as long as the Chinese economy continues to grow. The causality belief partially explains the willingness of the Chinese government in the early stage of the reform period to accept much of the existing international legal order, “bide its time,”Footnote 130 and be content with incremental changes of international law. The shared belief in economic determinism also partially explains the relative passivity of the Chinese ruling elites in proposing comprehensive reforms of the existing international legal order and their demonstrated preferences for incremental changes.
The state ideology has also cast an enormous shadow over Chinese academic debates about international law.Footnote 131 Largely in line with the official narrative, Chinese scholars have considered the international legal order as an institutional instrument that embodies and preserves the values and interests of the West.Footnote 132 With that ontological postulation, a great deal of the Chinese scholarship on international law has been either thematically critical or substantively doctrinal.Footnote 133 Motivated by the need to “garner state patronage, which is a prerequisite for funding, publishing, and policy impact,”Footnote 134 many Chinese international law scholars have oriented their research toward policy questions dovetailing with the governmental agenda, such as law’s role in preserving the hegemonic world order and how to expand China’s discourse power in the epistemic community of international law.Footnote 135
In sum, China in the near future will have no more than marginal impacts on the fundamental norms underlying the international legal order. For reasons noted above, China has failed to provide a coherent and novel alternative ideology.Footnote 136 Sinicized Marxism now furnishes mainly a set of causal beliefs and worldviews linking the material world with metapolitical institutions such as the international legal order.Footnote 137 Much of the Chinese academic discourse on international law has been in line with the relevant official narrative and has not yet articulated any alternative model of international legal ordering unmoored from selected concepts and values of ancient Chinese philosophies.Footnote 138 Hence, Chinese international law scholarship has added marginal theoretical value beyond neo-Marxism, legal realism, and other branches of critical legal theories.Footnote 139 A keen observer of Chinese international law scholarship recently lamented the field’s theoretical impoverishment.Footnote 140
Additionally, neo-authoritarianism, a term often used to label the Chinese political system taking shape in the past two decades along with China’s rise,Footnote 141 arguably offers an alternative model (also known as the China model, or the Beijing ConsensusFootnote 142) for some states to resist liberal democracy,Footnote 143 which might indirectly erode key international legal norms.Footnote 144 However, China under Xi’s leadership has been steadily reverting to prototypical authoritarianism and cult politics,Footnote 145 and as such the China model, for its lack of long-term stability and resilience, is losing its credibility and persuasive power.Footnote 146 The plummeting public opinion toward China around the world serves as a good illustration.Footnote 147
In short, Sinicized Marxism, or China exceptionalism, has guided Chinese interactions with the international legal community,Footnote 148 and, as a result, it has had very limited impact on the international legal order at the fundamental normative level.Footnote 149 Of course, the Chinese government has taken proactive measures to shape certain international law discourses, “strengthening its control and influence,”Footnote 150 especially those concerning its legitimacy. For instance, for years the government has tried to “articulate and justify new standards for human rights that comport with its own policy priorities.”Footnote 151 The government also implements socialization and training programs to spread its knowledge and norms to Global South states,Footnote 152 where it has found “generally positive reception” among the ruling elites.Footnote 153 And since the 19th Party Congress in 2017, the CCP has “sent international propaganda delegations abroad to introduce its programmes and opinions.”Footnote 154 It is likely that the Chinese government’s “norm entrepreneurship” will continue and be more impactful.Footnote 155 Yet, given the way the government has framed its arguments, the efforts appear to be primarily “normative resistance” against international criticism rooted in liberal values,Footnote 156 rather than a coordinated offense that formulates a coherent normative alternative.Footnote 157 Recent research confirms the lack of zeal for the Chinese government to export its legal institutions absent such threat or criticism.Footnote 158 The passive approach to international law renders China underprepared when it faces the pressure to be more engaged, as it lacks “the courage, keenness and self-confidence required to participate in the international rule of law.”Footnote 159 The diffusion of Chinese norms is limited outside certain subject-matter areas and a number of developing countries sharing similar political structures. In other words, until very recently China sought “a gradual modification of Pax Americana, not a direct challenge to it.”Footnote 160 Moving beyond that poses a daunting challenge, at the core of which is formulating coherent ontological and epistemological systems (as the foundation of a new international legal order) that are not anchored to China’s idiosyncratic social, political attributes. China’s reversion to totalitarian dictatorship in the past decade and stringent government censorship add to the challenge of that task.Footnote 161
To summarize, given its economic expansion and growing geopolitical influence, China will supply more international law actors (e.g., Chinese lawyers acting as international commercial arbitrators and Chinese judges sitting on international tribunals); create, or participate in the creation of, new international organizations and agreements (e.g., the Asian Infrastructure Investment Bank and the Regional Comprehensive Economic Partnership); and push for incremental reforms of existing international organizations. In some issue areas, the Chinese government has engaged in normative interpretation and contestation to serve its interests and policy preferences. Yet, for reasons elaborated in this chapter, China will have a marginal influence on the fundamental norms undergirding the existing international legal order. Put differently, in issue areas concerning trade and investment, China is expected to “champion the established rule and the international order based on it”Footnote 162 or propose incremental reforms; in other areas, it will likely embrace the Westphalian principles coalescing around sovereign supremacy.Footnote 163
Open access