Ronald T. P. Alcala is a Major in the United States Army. He is an Assistant Professor in the Department of Law at the United States Military Academy (firstname.lastname@example.org).
Eugene (John) Gregory, Ph.D. is a Colonel in the United States Army. He is director of the Chinese Academic Program and in the Department of Foreign Languages at the United States Military Academy and Director of the Center for Languages, Cultures, and Regional Studies (email@example.com).
Shane R. Reeves is a Lieutenant Colonel in the United States Army. He is an Associate Professor and the Deputy Head of the Department of Law at the United States Military Academy, West Point, New York (firstname.lastname@example.org).
Originally published in the HIR Fall 2018 Issue.
The Communist Party of China is in the midst of an extraordinary campaign to convince the international community that China has become a fazhi nation or “country under the rule of law.” Its preoccupation with rule of law transformation is evident throughout China, where the the phrase “fazhi” (法治 or 法制, depending on usage) has become ubiquitous. In China today, fazhi is heralded in all forms of media, from simple banners and posters, to pop-up ads on the Internet. Indeed, China has become so enamored with the idea, the Party dedicated an entire session of the 18th Party Congress to the subject in 2014. President Xi Jinping even established an annual Constitution Day highlighting the importance of law and the Chinese Constitution to establishing fazhi. Then, for the first time in Party history, President Xi swore an oath to the Constitution, just like the leader of a rule of law nation would. As encouraging as these outward signs of progress may appear, however, we should be cautious of accepting China’s endorsement of the rule of law at face value. China’s notion of fazhi—and its conception of law more generally—differs substantially from how rule of law is universally understood. Recognizing how China’s cost-benefit approach to law erodes international norms and institutions should serve as a reminder that a stable, cooperative, rules-based international order requires a commitment to the restraining power of the law.
What is the Rule of Law?
Although the meaning of “rule of law” remains a subject of academic debate, the basic demands of rule of law are widely understood. For example, a 2004 report on Rule of Law and Transitional Justice issued by the Secretary General of the United Nations observed that central to the rule of law is the requirement that the State itself is accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. The report also cited other principles, including “supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, and avoidance of arbitrariness and procedural and legal transparency,” that characterize adherence to the rule of law. Ultimately, while the recognition of certain substantive rights is not necessarily a requirement of rule of law, at a minimum rule of law requires that state power be subordinate and accountable to—that is, restrained by—the law.
Structural social differences, including what Lawrence Friedman described as internal and external legal cultures, help differentiate China from a nation under the rule of law. While the structure of Chinese and Western law is relatively comparable—legislators, law enforcement, trial and appellate courts, lawyers, judges, plaintiffs, bar associations—the internal legal culture (attitudes and practices of legal professionals) of China supports Party supremacy rather than rule of law. Transgressions of the rule of law by the Party, therefore, regularly go unremarked and unaddressed. For example, it would never occur to a Chinese judge to issue an injunction against an order of President Xi—and even if the judge wanted to, he would recognize that China’s external legal culture (attitudes of the general population) would not support his decision either. In contrast, the internal and external legal cultures of a nation committed to the rule of law can help identify and address violations of legal norms. In the United States, for example, a federal judge may issue a binding nationwide injunction against an executive order of the President. The civil society in which the U.S. federal judge operates empowers the injunction, and if the President were to ignore the judge’s ruling, civil society—including many who may have believed the court overreached—would still hold the law supreme.
China’s commitment to “rule of law” has, nevertheless, produced some rule of law-like results, particularly in the predictability of routine applications of the law. However, the Party’s emphasis on legality must be understood in the context of fazhi and the broader Chinese conception of law. Over the past twenty years, China has generated a considerable body of sophisticated, high quality legislation. Meanwhile, an explosion in legal education—as measured by the increase in credentialed lawyers—has cultivated an impressive bar of domestic and international legal experts. Rapid construction of China’s legal infrastructure, to include courthouses and procuratorate (or prosecutors’) offices, has also progressed at an unprecedented pace. Collectively, these developments lend credibility to China’s claim of support for the rule of law. However, accepting these outcomes at face value risks misconstruing fazhi’s focus on legality for a genuine commitment to rule of law principles.
Is Fazhi Equivalent to Rule of Law?
At its core, fazhi differs fundamentally from rule of law as internationally understood, and the Party is quick to distinguish fazhi—at least domestically—from other concepts of rule of law. To begin with, all aspiring Chinese lawyers—according to the study material for one bar exam preparation course—must commit to the belief that law is subject to the “leadership of the Party.” The same bar review material states that the fundamental principle of Chinese rule of law is to “maintain the rule of the Party.” Moreover, a recent bar exam question affirmed that “Western Capitalist Rule of Law Thought” is not an “origin” of Chinese rule of law. Rather than promote basic principles such as the supremacy of law, legal accountability, judicial independence, and fair treatment before the law, fazhi is instead used as a rhetorical tool to legitimize the Party’s rule. It is the Party’s will restated in seemingly neutral and distinctly legal language, the use of which has characterized Chinese legal discourse over the longue durée of Chinese history.
Attempting to understand fazhi from the perspective of Western rule-of-law development risks conflating the two and imbuing China’s “rule of law” endeavor with a liberal democratic quality the Party wholeheartedly rejects. When China instructs its lawyers that its legal system has no ideological roots in the West, we should take heed. Indeed, China’s fazhi project should be understood in the context of how law has traditionally been viewed in Chinese society. Since imperial times, legal discourse in China has evolved its own distinct and sophisticated language, which includes semantic usages, syntactic eccentricities, and an organizational writing structure considered unique to Chinese legal writing. While the language of Western legal discourse developed similar idiosyncrasies, the substance of the discourse differed significantly. Chinese legal discourse had nothing to do with legal supremacy. Rather, legal rhetoric was employed to address issues of power, routine, and reviewable decision-making related to the resolution of disputes and the punishment of offenders in a credible way. Law in imperial China was never distinguished by its independence from political authority or its stewardship by independent legal agencies. Accordingly, from a Chinese historical perspective, China’s recent implementation of fazhi with no intent to establish an independent judiciary is fully consistent with its traditional approach to the law.
It is not surprising, then, that despite President Xi’s apparent enthusiasm for the Chinese Constitution, Chinese judges are still prohibited from citing the Constitution as a source of law. The Party smartly does not want to open that Pandora’s Box because doing so could wreak havoc on the Party. The heady days of Qi Yuling versus Chen Xiaoqi, decided in 2001, when the People’s Supreme Court cited the Constitution for the first time and appeared to signal a “sprout” of true Constitutionalism in China are long over. While the Party wants “rule of law”—in the sense of an abundance of published law recognized and followed by the people—the highest levels of the Party do not want to be subject to the law or have the Party’s will ever be challenged by the law. This is a tall order as the Party needs the system to cast a wide and credible legal net (fawang huihui 法网恢恢) without creating the potential to ensnare the Party itself. Moreover, the Party needs the law to give the appearance of objective impartiality while simultaneously and reliably addressing cases that are of concern to the Party. More bluntly, the Party wants the credibility of impartial and independent law without the political danger.
To successfully navigate these competing interests, the Chinese legal system has become both increasingly routine (often impartial at the case-adjudication level) yet also highly and efficiently responsive to the will of the Party. This emphasis on routine impartiality adds plausibility to China’s claims to rule of law transformation, yet ultimately, the Chinese legal system remains an instrument of the Party. This is why it is possible for a petty criminal in Beijing’s Xindian District to receive a fair trial (as one of the authors observed two years ago) while a disgraced politician like Bo Xilai may be subjected to a show-trial. The Party’s current rule of law campaign sincerely and energetically seeks to promulgate laws and to compel the Chinese people to follow the law—or, as the Chinese saying goes, “to have law to follow” and to “follow the law that exists.” However, while adherence to fazhi may resemble a commitment to ideals such as legal accountability, legal certainty, and equality before the law, in fact “law” in China is a rhetorical restatement of the Party’s discretionary will using legal discourse. This should not be mistaken for rule of law as the animating (or constraining) force is not the supreme authority of law, but the will of the Party.
Does Fazhi Matter Internationally?
While legal scholars need not object to China’s internal conception and application of law, they may rightly object to the Chinese appropriation of the term “rule of law” to describe what it is doing. At the very least, it is important to understand how China’s pragmatic use of law, and its refusal to be restrained by inconvenient law, correlates internationally, particularly as China uses its newfound wealth to demand greater roles in international rule-making and adjudication. Ultimately, it should not be taken for granted that China’s obeisance to international institutions and legal norms—like its acknowledgment of “rule of law” domestically—reflects a genuine commitment to international law. Each instance of compliance—even large scale routine compliance—is a cost-benefit exercise for the Chinese.
Although domestic law in China almost never openly conflicts with the Party’s will, the Party’s ability to bend international law to its will is far more restricted. Consequently, China has embraced international law and institutions when they could be used to advance its interests and has ferociously denounced them when they have not. Admittedly, this approach to international legal norms is merely pragmatic, and many States, including the United States, commonly engage in similar behavior. However, while States understandably interpret and apply international legal norms in ways that promote their national interests, China is conceptually incapable of viewing international law—with its collection of constraints and obligations—with the same deference as the rules-based international community. China simply does not believe that law by nature of its unique normative position has the power to constrain the will of the Party itself, either domestically or internationally, and this view is supported by both China’s internal and external legal cultures. China may comply with certain international norms that conflict with its national interest, not out of a respect for the rule of law, but rather as part of a pragmatic cost-benefit analysis.
China’s establishment of an Air Defense Identification Zone (ADIZ) in the East China Sea provides one example of China’s acceptance and use of an international legal norm to advance its national interests. ADIZs were historically employed to deconflict air traffic and protect coastal states from unwanted intrusions into their sovereign airspace. Rather than use the East China Sea ADIZ to protect its sovereign airspace, however, China instead employed the ADIZ to assert sovereignty over the disputed Senkaku Islands. As one commentator described it, China’s “extraterritorial layering of sovereignty rights reverses the underlying rationale of ADIZ from defensive to offensive, from the protection of national sovereignty to the coercive extension of sovereignty beyond territorial limits.” Nevertheless, China readily adopted the ADIZ because it served a purpose consistent with the will of the Party. Moreover, it cast the Party’s will in the context of a rules-based, safety-oriented international legal norm.
In contrast, China vehemently denounced the 2016 arbitral award in the South China Sea Arbitration because it conflicted with its national interests and the will of the Party. Established pursuant to Annex VII of the 1982 U.N. Law of the Sea Convention (UNCLOS), to which China is a signatory, the arbitral tribunal rejected China’s claim to sovereign rights or jurisdiction over marine areas within China’s self-proclaimed “nine-dash line” in the South China Sea. Notably, China refused to accept the arbitral tribunal’s jurisdiction from the start, arguing that the essence of the arbitration was “territorial sovereignty,” which was “beyond the scope of the Convention” and did not concern “the interpretation or application of the Convention.” The arbitral tribunal, however, held that it did have jurisdiction over almost all of the Philippines’ submissions and noted that despite China’s non-appearance at its proceedings, “China remains a Party to these proceedings, with the ensuing rights and obligations, including that it will be bound by any decision of the Tribunal.” Moreover, under UNCLOS, the international legal basis for arbitration and the effect of an award are clear: The award of an arbitral tribunal “shall be final and without appeal” and “shall be complied with by the parties to the dispute.”
China’s response to the arbitral award, however, was dismissive. After first denouncing the Philippines’ “unilateral initiation of arbitration” (Article 1, Annex VII of UNCLOS provides that “any party to a dispute may submit the dispute to the arbitral procedure”) without first seeking to settle the dispute through negotiation (the arbitral tribunal found the Philippines “did seek to negotiate with China”), the statement then proceeds to repudiate not only the award but the tribunal itself. The statement asserts that the award is “null and void” and of “no binding force,” and declares that “China neither accepts nor recognizes it.” More ominously, the statement then attacks the integrity of the arbitral tribunal, claiming that its conduct and award “completely deviate from the object and purpose of UNCLOS,” “substantially impair the integrity and authority of UNCLOS,” and are “unjust and unlawful.”
China’s reaction should not be surprising. In China, the Party can never violate the law because the Party’s will is the law. Similarly, an international decision that conflicts with the Party’s will is not merely wrong, but actually illegitimate. Meanwhile, an open assessment of China’s compliance with legal norms is not possible in Chinese society because the Party controls the machinery of discourse. While the internal and external legal cultures of another State might have pushed back and debated the disparagement of an international legal body, in China the Party mobilized every venue of public discourse to vilify and delegitimize the decision. In fact, the moment the arbitral decision was issued, the Chinese universally dismissed it as naoju (闹剧), literally a “noisy play” or “farce,” indicating that putatively-legal institutions, whether domestic or international—such as the arbitral tribunal—are only useful in so far as they comport with the Party’s will. This approach is consistent with China’s formal conception of the rule of law.
Distrust of the law and the political uncertainty that fidelity to rule of law principles may invite may also account for China’s cagey response to recent cyber norm-setting efforts at the international level. In 2017, for example, China purportedly rejected the proposed text of a report compiled by a body of international experts, known as the UN Group of Governmental Experts’ (GGE), tasked with developing norms of behavior in cyberspace. Formed at the request of the UN General Assembly, the UN GGE was asked to build on the conclusions of four previous experts’ reports “with a view to promoting common understandings,” including “how international law applies to the use of information and communications technologies by States.” However, despite adopting a relatively mild and uncontroversial approach to the applicability of international law to cyberspace, a handful of States rejected the UN GGE’s final report, dooming the effort in the process. Although only Cuba issued a formal declaration of non-concurrence, China also reportedly rejected the group’s final report.
China’s refusal to endorse the UN GGE’s conclusions offers further evidence that China will not bind itself to rules it cannot manipulate. China’s reluctance is particularly salient in cyberspace, where some finer questions of international law—such as the extent of an armed force’s responsibility to “passively” distinguish itself and its activities in the cyber domain—remain unsettled, and where uncertainty may cede advantage. The larger question of whether international law itself applies in cyberspace, however, has largely been resolved, and the three norms addressed by the UN GGE should not have disturbed the gradual progress of the UN GGE process as it did. Indeed, Michael Schmitt and Liis Vihul, two prominent cyber experts, characterized the norms at issue as “objectively legal soft-balls.” In short, the three legal principles and rules were (1) whether states may employ countermeasures in response to internationally wrongful acts; (2) whether self-defense applies in cyberspace; and (3) whether the body of international humanitarian law applies in the cyber context. Schmitt and Vihul speculated that “[s]ince no international lawyer can . . . deny their applicability to cyber activities, the failure of the GGE can only be interpreted as the international politicization in the cyber context of well-accepted international law norms.”
Tellingly, despite agreeing with the report of the third UN GGE, issued in 2013, that “international law, and in particular the Charter of the United Nations, is applicable” in the cyber context, China has since balked at even this simple acknowledgment. As Adam Segal of the Council on Foreign Relations observed, “Beijing has never liked the idea that international law applies to cyberspace, and began walking back the 2013 report almost as soon as the ink was dry. Chinese officials have consistently stressed the UN Charter and the importance of sovereignty without mentioning the rest of international law.” China’s preference for sovereignty—which in China is in fact the Party’s will—and its suspicion of the supremacy of law is starkly evident in the developing realm of cyberspace.
Can China be Trusted to Uphold International Legal Norms?
An effective rules-based international order requires that States accept the restraining power of the law. While China has acknowledged the importance of international law and observed legal norms when convenient, China’s cost-benefit approach to legal compliance ultimately rejects the supremacy and power of law as a restraining force. This view derives from its own conception of law as an expression of the Party’s will, nothing more. States that engage with China and those that consider China a reliable partner or fellow adjudicator in furthering the rules-based international order should understand its cost-benefit approach to the law and, consequently, how this influences its behavior. Of course, while undermining established norms and institutions that frustrate perceived interests may weaken respect for the rule of law over time, from the Party’s perspective it’s simply a matter of perfecting fazhi.
The views expressed here are the authors’ personal views and do not necessarily reflect those of the Department of Defense, the United States Army, the United States Military Academy, or any other department or agency of the United States Government. The analysis presented here stems from their academic research of publicly available sources, not from protected operational information.
A version of this article was originally published in the national security blog Just Security on June 28, 2018. Research presented by the authors was funded in part by a Minerva Initiative grant to study current rule of law efforts in China.