In International relations, China is usually assimilated to a mysterious giant, and it has, generally throughout history, maintained a central position in the games of global politics. However, various social policies instituted in recent years clearly overstep the limits represented by the values of fundamental rights which have become a central topic of legal discussion in the last several decades. Naturally, international human rights organizations, both governmental and non-governmental, have readily criticized the Chinese government for these breaches of the principle of legality - yet, at each instance, the government has replied that its policies are in full conformity to the principle, and that it is in fact committed to ensuring the application of legality in the Chinese legal system. This stark contrast in statements leads to the natural inquiry as to which argument is true. However, an analysis of the historical evolution and traditions of the Chinese legal system demonstrates that perhaps the answer to the above question is not as obvious as appears. In fact, the complex architectural structure of Chinese law demonstrates that, perhaps, Western powers, while acting with just and ethical aims, may be approaching the issue from the wrong perspective. The concept of rule of law originates from the European continent, however, its practical implications vary according to different geographical and historical contexts, and also across legal cultures and traditions. The foundations of the rule of law were already present in the Western European continent in the middle ages, where basic forms of limitations of power can be noted. For instance, in England in the XVII century, the King is subject to God, his court, and the law. Nevertheless, the consolidation of the principle is greatly advanced by the invention of the doctrine of constitutionalism in the modern age. In fact, the doctrine places as its central objective the limitation of state power, while also extending its reach to other elements commonly associated with the rule of law, such as that of democratic legitimation and the impartiality of the judiciary system. In the XIX century, sovereign power in the Western European continent assumed the form of the liberal state, characterized by the maximal limitation of the state, whereby the state was only to intervene when it was absolutely necessary for the aims of social cohesion and defense of state borders. It is in this legal context that emerges the idea of law as the result of a democratic process and as the expression of the will of the people, as well as the idea that the law is supreme. At this stage, however, the principle of legality assumes a merely formal form - its complete cementation will have to wait until after World War I. Although the principle of legality is not uniform in its minute details, and its development has certainly been gradual, it is evident that the central idea of the principle, being the limitation of sovereign power, has for a long time been a topic of discussion in the European continent. The specific elements of the principle, and the various practical implementations thereof across Europe and in the U.S. have specifically been tailored for the needs of the particular legal context, across a time span of approximately five centuries.
On the other hand, China has a long and complex legal history that has, in many of its elements, developed autonomously in respects to the legal traditions of the West. Consequently, the concept of the principle of legality was for a long time foreign to Chinese jurisprudence. The concept of law served as a tool to strengthen the Imperial power, and not to limit it, by governing citizens. These elements continue to characterize the rule of law, and more generally, the role of law in China to this day. Subsequently, with the establishment of the Communist Party of China (CPC), the theoretic basis of law was additionally integrated with the Marxist doctrine, according to which the law is the expression of the will of the ruling class. Pursuant to international pressure, in 1997 the CPC declared the goal to establish a rule of law with Chinese characteristics and adapted to socialist ideals by 2010. Two years later, in 1999, the Five Year Reform program was published with the goal of promoting judicial justice and impartiality so as to restore public confidence in the judiciary system. These interventions were developed in a moment in which China was implementing a policy of ‘opening’ the country to international relations, after a period of marked isolationism during the beginnings of the CPC. Nonetheless, China is determined to develop a unique legal system tailored to its Confucian legal heritage as well as the single party ruling system currently still in place. The complications of the development of the rule of law in China stem from a number of incompatible, or unlikely to be reconcilable, legal concepts that are forcibly integrated in a rule of law with Chinese characteristics. For example, there are many difficulties in adjusting the abstract notion of rule of law with the ruling communist party, where the law is dependent on the will of the dominant class and serves the needs of this class, without limitations. Another difficulty is represented by the fact that Chinese jurisprudence and legal doctrines indicate that no distinction has ever been made between the idea of rule of law and that of rule by law. In western legal theories, there is a strong emphasis on the division of the two notions: The former indicates the restraints that are placed on the power of the state by the law itself, while the latter connotes the instrumental use of law as a tool of political power. It emerges from Chinese legal doctrines that, not only have these two terms never been differentiated one from another, but they are also used interchangeably. Finally, the persistent espousal of Legalism in China, a school developed circa 400 B.C. which emphasized the necessity of strict enforcement of law by the authorities in order to achieve social order, further obstacles the development of legal limitations on the power of the state. While the intentions of China to rise to international standards regarding the rule of law, as a result of international pressure, are considerable, the complications analyzed above indicate that, for deeply ingrained historical and cultural reasons, the Chinese legal system may not be prepared for the adoption of this notion. In late 2017, the United Nations declared it had credible reports that revealed China was executing a policy of arbitrary and mass detention of Uyghur and other predominantly Muslim
minorities; Four years later, precisely on the 31st of August of 2022, the Office of the United Nations High Commissioner for Human Rights releases a report concluding that “serious human rights violations” have been committed against these religious groups in the Xinjiang Uyghur Autonomous Region (XUAR). The policies were enacted by the Chinese government pursuant to anti-terrorisc and de-radicalization efforts that were to be operated in detention centers. The UN report gives account of “allegations of torture, sexual violence, ill-treatment, forced medical treatment, as well as forced labour and reports of deaths in custody” taking place in these detention centres. Furthermore, it states that the arbitrary and discriminatory detention severely restricts human rights and fundamental freedoms, including religious freedom and the right to movement, constitutes a violation of international law and international standards of protection of rights. The report concludes with a series of recommendations addressed to the Chinese government to remedy the situation, among which the UN urges China to promote and ensure the full application of the principle of legality in its territory. The Chinese government contests the claim of discrimination, and replies by stating that all officials employed in the detention centers act in accordance to the principle of equality, and that the de-radicalization efforts in question do not constitute “suppression of ethnic minorities”. In particular, China assures that the policies have been adopted and executed in full accordance with the rule of law. Finally, the government encourages the UN, as well as other international human rights organizations to investigate “the human rights disasters caused, and numerous crimes committed, by the US and some other Western countries, both at home and abroad.” This final call for international actors to turn their attention and criticisms on the West represents a greater tension caused by the tendency of international organizations to, on the one hand, privilege the West when granting beneficial services, and on the other hand, to condemn most harshly the human rights violations of countries outside of the Western power axis. Another policy that has been contested internationally for its violation of fundamental rights is the social credit system, which entails general and arbitrary surveillance for the purposes of a reward and punishment in relation to determined behaviors. The system pursues a duality of goals, one on a more general field and the second on a more subjective level. The former consists in the aim of increasing the amount of ‘trust’ within Chinese society and to ensure that parties conclude business transactions with all available information at hand. The second aim is embodied in the intention to supervise the ‘trustworthiness’ of individuals, corporations, and governmental entities. The development of the Social Credit System has been gradual, and the proposal was first announced in 1999. At the time, the focus was economic, and concentrated mostly on debt default, contractual breach, and regulatory non-compliance. This path would be pursued until 2014, when the “Planning Outline for the Construction of a Social Credit System” was published, to be in force until 2020. It was at this moment that the end-state goal of the system emerged: a unified record of real-time surveillance of people, businesses, and the government.
Each individual would be awarded with 1,000 points at birth, with the possibility of accumulating a maximum of 1,300 points, or the risk of falling to 600 points. Points are awarded for behaviors such as donating blood, helping the poor, or praising the government on social media. On the other hand, points are lost for not visiting aging parents regularly enough, cheating in online games, ‘illegally’ protesting against authorities, or posting anti-government messages on the internet. High-range points are associated with benefits such as priority for school admission and employment, cheaper public transportation, tax breaks, and shorter wait times in hospitals. Conversely, low-range points are attributed punishments such as denial of licenses and permits as well as denial of access to some social services, exclusion from booking flights and high-speed trains, restricted access to public services and preclusion from private schools. Another notable punishment imposed on citizens with low points is public shaming, for example by publicly exposing the IDs and photos of blacklisted citizens, or through a government-mandated phone dial announcing when a “dishonest debtor” is calling. The point system above illustrated creates a second-class category of citizens, qualified as such on the basis of determined behaviors of individuals. In identifying behaviors that are labeled as “good” or “bad”, the Chinese government imposes on its citizens a specific role in society to be carried out and a rigid model of behavior that must be followed; The roles of a citizen in Chinese society and the behavioral model it must follow are parallel to those imposed on the familial structure in Chinese society since the ideals of Confucius. In fact, the Confucian ideas of family roles constitute the foundations of all social organizations. The husband represents the apex of the structure of the family, and he is expected to exhibit dominance and kindness towards his wife, who in return is to be obedient and loving towards her husband. The father is to offer guidance and protection towards his children, who in return must respect and be obedient towards their father. Similarly, the government assumes the role that in family life is attributed to the father/husband, while the citizen must be obedient and respectful of the law and the government institutions. The internationalization of legal discussions, by which different legal systems confront national legal issues and solutions, is, in great part, due to the development of the field of international relations, also through comparative law studies. While the increased accumulation of knowledge surely constitutes a significant advance in international law and global cooperation, its focus is almost entirely on Western legal orders. In fact, in the initial stages, legal systems outside of the European continent and the U.S. were largely ignored, and when studies of comparative law would finally begin to turn towards the ‘others’, there was a marked connotation of superiority and paternalism. To this day, comparative studies are almost exclusively conducted from an American and Western European perspective, and are generally focused on Western legal traditions. There is a similar inclination of international organizations, such as the United Nations and the Human Rights Watch, which tend to be rather ineffective in granting aid to non-Western
countries - in some cases because the mechanism of aid is modeled on Western theories and therefore inadequate in a non-Western context, in others because of a paternalistic tendency to grant an excessive amount of aid that creates a relationship of dependency. There are even some instances in which such organizations have completely abandoned non-Western countries in moments of need. One such instance is the withdrawal of the UN peacekeeping forces in Rwanda when the Tutsi massacre erupted; it is believed that the peacekeeping forces could have significantly curtailed the number of deaths.
International relations, in general, tends to be overly favorable towards, and even defensive of, Western countries, to the extent that the West is identified as the ideal normative reference in world politics. However, in order for global cooperation to work properly, mutual trust and respect is necessary, while a dismissive and condescending attitude towards non-Western countries certainly precludes such cooperation. The attitude of the West towards China is an example of this, although it is far from being the only case. Without a doubt the fundamental rights violations that are taking place in China, at this moment, are abhorred. However, it may be precisely the aggressive and close-minded approach Western governments and international organizations have adopted that is precluding any form of cooperation with China on the matter.
Bibliography →
- https://journals.sagepub.com/doi/full/10.1177/0263395718805401
- https://sites.temple.edu/ticlj/files/2017/02/24.1.Zhang-TICLJ.pdf
- https://news.un.org/en/story/2022/08/1125932
- https://www.ohchr.org/en/press-releases/2022/08/un-human-rights-office-issues-assessme nt-human-rights-concerns-xinjiang
- https://nhglobalpartners.com/china-social-credit-system-explained/
- https://culturalatlas.sbs.com.au/chinese-culture/chinese-culture-family
Anna Karhausen
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