The global ambitions of Chinese law
A recent report by the NGO Safeguard Defenders about the existence of "secret Chinese police stations" in cities around the world, including New York, has sparked investigations in several European countries and attracted the attention of the FBI. But while these investigations aim to protect the rule of law from subversion, they also highlight how unprepared Western democracies are to grapple with China's growing international influence.
In their eagerness to appear "tough on China", Western media and government officials alike have demonstrated their inability -- or perhaps unwillingness -- to evaluate the Safeguard Defenders report, which is plagued by mistranslations and misunderstandings of Chinese and international legal norms. China's rising power requires careful technical debate and strategising rather than crude populist appeals.
Since emerging as a global economic and political power, China has increasingly focused on shaping international norms and institutions. Chinese leaders have indeed made extraterritorial jurisdiction a national priority in recent years, adding clauses to domestic laws that aim to expand their reach beyond China's borders.
But China's extraterritorial influence is a natural consequence of its growing economic and political interconnectedness with the rest of the world. As its clout grows, policymakers in China and elsewhere must figure out whether or how Chinese law can be reconciled with Western legal systems.
Criminal justice is a small but illustrative example. China has been increasingly aggressive in seeking to repatriate criminal suspects and fugitives, focusing primarily on areas of great concern to the Chinese public, such as online fraudsters targeting China and corrupt local officials who have fled abroad. Pursuing such criminals and recovering stolen assets is viewed as an essential component of deterrence and a legitimising demonstration aimed at Chinese citizens of the state's ability to protect their interests anywhere in the world.
Here, China has studied and largely mimicked the practice of established powers, particularly the United States. It has employed various methods to enforce Chinese laws abroad, including extradition and formal international cooperation, exerting pressure by seizing suspects' domestic property, and promising leniency to those who return willingly.
But while China borrows from other countries' legal toolkits, it often lacks the capacity to extend the reach of its laws, owing to a shortage of extradition treaties, professional resources and international influence. It seems clear that strengthening China's ability to enforce its laws abroad will remain a high priority for the authorities.
To be sure, legitimate concerns about China's pursuit of political dissidents affect how its extraterritorial tactics are viewed around the world. While China's overseas enforcement has not focused primarily on dissidents, it is essential to consider their plight, as well as the inadequacy of procedural protections for all defendants in China's criminal justice system.
At a more fundamental level, the ruling Communist Party of China's (CPC) understanding of the rule of law differs from Western conceptions. In China, Party leadership is considered an "essential feature and inherent requirement" of its "socialist rule of law with Chinese characteristics". In the context of Chinese communism, the law is a tool for maintaining domestic stability and CPC rule.
Moreover, the CPC rejects institutional checks on government power, such as constitutionalism, separation of powers, and judicial independence. Whether such a legal system can ensure basic fairness and reduce arbitrariness to protect the rights of both Chinese and foreign citizens is a question that anyone, including other governments, must seriously consider before interacting with China's legal system.
Compared to other areas of the law, the matter of criminal procedure seems relatively straightforward. Developed countries' legal systems are well equipped to determine whether China's contact with its citizens abroad amounts to illegal intimidation, harassment or improper action by a foreign government. The European Court of Human Rights' recent landmark decision to block the extradition from Poland to China of a Taiwanese man accused of fraud shows how legal processes could be used to avoid complicity in Chinese violations of due process and other basic human rights.
The calculus will likely be more complex in other areas, such as cross-border disputes and setting standards involving new technologies or data transfers. Given that such cases involve a greater number of jurisdictions, a broader diversity of interests and fewer clearly established legal norms, easy resolutions seem unrealistic. As China asserts itself, more robust frameworks will be required to protect all parties' rights.
While China has mostly been following other countries' lead in establishing itself as a major global player, it will likely seek a greater impact on rule-making, particularly in areas of emerging law. Addressing the challenges involved with China's growing influence will require new rules of engagement, as well as fact-based analysis and technical debate. China has made great efforts to learn from, emulate and adopt global legal practices. European and US policymakers must cultivate an equally accurate understanding of China's actions and ambitions.
Painting China as an irrational agitator seeking to impose its will on the rest of the world is an easy way to curry popular support. But sensationalist reports of "secret police stations" do not contribute to sustaining a rules-based international order. In fact, this simplistic narrative grossly underestimates China and the challenges posed by its sophisticated and strategic efforts to use the law to promote its national interests. ©2022 Project Syndicate
Jeremy Daum is a senior fellow at Yale Law School's Paul Tsai China Center, focused on Chinese criminal procedure and law enforcement. Moritz Rudolf is a fellow at Yale Law School's Paul Tsai China Center, focused on the implications of China's rise and the international legal order.