DEMOCRATIC FUTURES POLICY PAPERS | New order of values?
Xi Jinping Thought of the Rule of Law and Beijing’s goal to redefine international norms
Dr. Moritz Rudolf, Yale University
In the shadow of increasing political tensions between the US and China and the Russian invasion of Ukraine, the PRC introduced a wide array of measures at the beginning of 2023. Those measures underline Beijing’s global claim, to set standards within the realm of international law.
On February 3rd, the Chinese Ministry of Foreign Affairs published a position paper called “The U.S. Willful Practice of Long-arm Jurisdiction and its Perils”, criticizing Washington for violating international law. On February 16, the inauguration ceremony of the Preparatory Office of the International Organization for Mediation took place in Hong Kong. It will be the first international intergovernmental institution focusing on international conflict resolution via mediation, which aims to provide a new platform for the peaceful resolution of international disputes. On February 21st, the PRC issued the “Global Security Initiative Concept Paper”, China’s vision of a reformed system of collective security (in a post-Ukraine war world).
Following the announcement of State Councilor Wang Yi during the Munich Security Conference, on February 24th, Beijing issued China’s Position on the Political Settlement of the Ukraine Crisis.
While (as expected) thin in substance, the document is still remarkable as it marks the first time that the PRC provided input to resolve a conflict on European soil. Two days later, on February 26th, the Chinese Communist Party (CCP) issued the “Opinions on Strengthening Legal Education and Legal Theory Research in the New Era”. The document describes comprehensive reform plans for legal education in China. Also, it proclaims the goal to expand China’s international law expertise. Furthermore, the CCP announced the development of a Chinese theory of international law.
The density and versatility of those announcements are remarkable. They underline a trendline, which has been developing for a couple of years: The Chinese leadership strives to become a global actor in the realm of international law and to redefine international rules.
Since 2014, Beijing has been in capacity-building mode when it comes to international law. During the 4th Plenary Session of the 18th CPC Central Committee, Xi called upon the PRC to utilize international law to “safeguard China’s sovereignty, national security, and development interests.” While the PRC did not participate in the South China Sea Arbitration (2013-2016), today it confidently uses international law, to defend its political position. This is a remarkable new development. For instance, during the “spy balloon” affair, Beijing argued that it cannot be determined whether US law and the ICAO are superseded by outer space law (since the balloon was flying at an altitude of 18km). Also, the Chinese Foreign Ministry referred to force majeure and criticized the shoot-down of the balloon as a violation of international law.
Within the UN, the PRC has become more active in reinterpreting and defining international legal termini.
This can be witnessed, for instance, within the UN Human Rights Council (UNHRC). The PRC has a collectivistic understanding of human rights, and it enjoys a high degree of discourse power within the UNHCR. Beijing can rely on a majority of UNHRC members, to pass (legally non-binding) resolutions, to defend its views regarding the human rights situation in Xinjiang or Hong Kong. The PRC has become more strategic to organize majorities within the UN system, for instance, when it advocated for its position or when it succeeds to get preferred candidates elected to crucial UN positions.
Also, the PRC has become more vocal across the entire UN system. Traditionally the PRC did play a significant role within the sixth (legal) committee of the UN. Today, Chinese officials participate in very large numbers. They come very well-prepared, take the floor and outline the Chinese position in a well-structured manner.
It is important to highlight, that Beijing views and utilizes the law within the framework of “socialism with Chinese characteristics” (中国特色社会主义) and “Xi Jinping Thought on the rule of law” (习近平法治思想). The function of the law in the PRC context deviates significantly from a European understanding. There is no inherent value of the law in the PRC’s approach.
Following Marxist legal tradition, Beijing regards the law as a tool to achieve the (material) development goals of the party. Under Xi Jinping, this is primarily the so-called “China Dream” (中国梦) of the great rejuvenation of the Chinese nations. Accordingly, by 2049 the development of China into a “modern socialist country, which is rich, powerful, democratic, civilized and harmonious” shall be completed.
Xi Jinping Thought on the rule of law is built on the idea, that a functioning legal system is necessary to achieve the development goals of the party-state. It is, therefore, not surprising that party leadership constitutes the cardinal rule of “Xi Jinping Thought on the rule of law”. An independent judiciary and the principle of checks and balances are rejected as “erroneous western thought”. Beijing strives to build a competent and loyal judiciary and cultivate a law-abiding population. High technology shall help to generate efficiency gains for the legal system (e.g. digital courts). By 2027, Beijing wants to “improve the socialist rule of law with Chinese characteristics”. By 2035, it wants to establish a “law-based country” (依法治国). Those goals have absolute priority for the Chinese leadership.
At the international level, the Chinese leadership aims to utilize the law as a tool to safeguard China’s core interests and to carry out international struggles (国际斗争). The Chinese leadership has identified the following priority areas:
First, building more international law expertise. On 6 December 2021, Xi Jinping declared that the PRC needs better-trained international lawyers and a larger number of professionals who have “a global outlook, a good command of foreign languages and understanding of international rules, as well as international negotiations skills.” Also, Xi has repeatably encouraged Chinese diplomats to “participate in global governance, to make rules and to set agendas,” prioritizing the areas of global security, health, climate, economics, and cyber affairs.
Second, focusing on “foreign-related rule of law” (涉外法治). Improving “foreign-related rule of law” means, that Beijing wants to strengthen its ability to protect Chinese citizens and entities from foreign sanctions, “interference, and abuse of long-arm jurisdiction”. The PRC leadership puts a lot of emphasis on this since Beijing has a lot of catching up to do in this area (especially when compared to the US). Also, more laws with an extraterritorial application shall be formulated. Over the past 10 years, Chinese laws with extraterritorial clauses have increased significantly (e.g., Art. 27 of the Counter-Espionage Law (2014), Art. 11 of the Anti-Terrorism Law (2015), Art. 75 of the Cybersecurity Law (2017), Art. 82 of the Nuclear Security Law, Art. 37 and 38 of the Hong Kong National Security Law (2020), Art. 44 of the Export Control Law (2020), Art. 2 of the Data Security Law (2021), Art. 2 of the Personal Information Protection Law (2021), and the Anti-Foreign Sanctions Law (2022)). Another aspect of “foreign-related rule of law” is that Chinese courts are increasingly applying foreign law. The reason for this development is the Chinese Belt and Road Initiative, which over 140 countries have joined. Besides, Beijing has expressed the goal to train more Chinese jurists to understand and apply foreign law.
Third, setting international rules. The PRC aims to play a decisive role in formulating international rules in key strategic fields. The Chinese leadership has defined the following areas: the high seas, polar regions, cyberspace, outer space, nuclear security, anti-corruption, and climate change. Also, China has determined the following domestic regulatory priorities: development of the digital economy, internet finance, artificial intelligence, big data, and cloud computing. In those areas, Beijing also wants to set international standards.
Fourth, increasing international judicial cooperation, in particular cooperation in the field of law enforcement.. Beijing explicitly wants more international cooperation in the fight against violent terrorism, ethnic separatism, religious extremism, drug trafficking, and transnational crime. The PRC wants to expand international anti-corruption cooperation, to “increase efforts in overseas pursuit of stolen goods, repatriation, and extradition.” Since 2019, those efforts have been incorporated into the BRI (“clean silk road”). For this purpose, Beijing has been building a global network of bilateral extradition treaties. Since the European Court of Human Rights decision from November 2022 will prevent any extraditions from Europe to China, Beijing is primarily focusing on the global south for those efforts.
Fifth, building modern international dispute resolution mechanisms. With the so-called BRI International Commercial Courts, the PRC aims to break the western dominance in international arbitration (so far only with moderate success). Also, it aims for more cooperation between arbitration tribunals from China and BRI countries. The establishment of “one-stop” dispute resolution constitutes a real innovation. Accordingly, the parties can select between litigation, arbitration, and mediation. Beijing’s successful facilitation between Saudi Arabia and Iran and its recent efforts concerning the war in Ukraine underline that China wants to assume an international role in bilateral conflict resolution.
Even if the PRC challenges the so-called rules-based international order, it is impossible to wish away the PRC. We are merely witnessing the first phase of a more self-confident China which utilizes the law to pursue its interests at the global level. China is a global stakeholder and plays a determining factor in the future development of the global order. Political decision-makers in Europe should anticipate (and prepare) to face better-trained Chinese diplomats and international lawyers, negotiating complex international legal issues. Comprehensive knowledge of the Chinese positions is imperative for any future negotiation. Therefore, a technical debate and exchanges between Berlin/Brussels and their Chinese counterparts on international legal issues should occur rather sooner than later.
Even if the Chinese proposal to end the war in Ukraine won’t solve the conflict, it shows that the PRC is aiming for a central role in negotiations about the post-war arrangement. The PRC will most likely be sitting at the table when a fundamental reform of the UN system will be up for debate. Political decision-makers need to face this realistic scenario and plan accordingly. The PRC views the existing international order as the outgrowth of century-old power asymmetries favoring western states. Many states of the global south share Beijing’s view that a fundamental reform of the global order is overdue. For western political decision-makers, it is, therefore, crucial to regain ground within existing international institutions. To achieve realistic political goals, the room for maneuvering a values-based foreign policy approach will be very small. To attain majorities, it is necessary to reach out (pragmatically) to “third states” and to build political coalitions beyond the G-7. Given the PRC’s ambitions in the realm of international law, hybris and cynicism will not be enough to uphold the international order.
Dr. Moritz Rudolf is a Research Scholar in Law and Fellow at Yale Law School’s Paul Tsai China Center, where he focuses on the implications of China’s rise for the international legal order.