China Modernizes: Threat to the West or Model for the Rest?

Randy Peerenboom

Director China Rule of Law Programme, Oxford Foundation for Law, Justice and Society

Research Fellow, Oxford University Center for Socio-Legal Studies

Professor of Law, La Trobe University in Melbourne

East Asian “Model”

1. Emphasis on economic growth rather than civil and especially political rights during the initial stages of development, with a period of rapid economic growth occurring under authoritarian regimes;

2. Pragmatic approach to reforms, with governments following some aspects of the Washington Consensus and rejecting or modifying others;

3. As the economy grows and wealth is generated, the government invests in human capital and in institutions, including reforms to establish a legal system;

EAM continued

4. Democratization postponed until a relatively high level of wealth is attained;

5. Nascent but limited constitutionalism begins during the authoritarian period: constitutional norms; stronger institutions; civil society 

6. Greater protection of civil and political rights after democratization, including rights that involve sensitive political issues, although with ongoing abuses of rights in some cases and with rights frequently given a communitarian or collectivist interpretation rather than a liberal interpretation

Economic Development: WC or BC?

Follow basic macro principles for the domestic economy; Reject or modify neoliberal aspects that reduce role of state through rapid

privatization and deregulation; state more active in reducing poverty and in ensuring minimal material standards to compete in more competitive economy;

Modify relationship between domestic and global economy by gradually exposing domestic economy to int’l competition while offering some protection to key sectors and some support to infant industries;

Mercantilist? Yes, to some degree, but int’l trade rules are hardly fair – surge mechanisms, anti-dumping, Unocal, IP rules, ag subsidies, etc. China more open than Taiwan, Japan, India

Future – retrenchment, or more of the same?

Retrenchment? restrictions on car manufacturers to encourage local brands and stimulate

domestic product development; restrictions on foreign banks’ expansion of retail branches; limits on large-scale retail outlets; telecom rules make it difficult for foreign companies for companies to

control ICP companies established in China through an offshore vehicle; the limitations on foreign invested real estate companies push to establish unions in foreign invested enterprises new policy championing national companies: 2006 seven industries

under “absolute” state control: arms, electricity, oil, telecom, coal, civil aviation and shipping. Others under “relatively strong” state control: automobiles, electronics, architecture, steel, metallurgy, chemicals, surveillance, science and technology

Anti-Monopoly Law to prevent market access by foreigners

Continued reforms

Generally live up to WTO commitments, except with respect to IP, few other areas

Overhaul of approval process Adjust central-local relations in many areas Banking/finance reforms New Bankruptcy Law creditor friendly; labor loses Labor Contract Law – power of unions and rights

of workers scaled back Property Law passed after ideological struggle

Two competing versions of modernization theory

The first emphasizes economic development as the motor for other reforms; the second puts freedom and democracy first

China and Asian countries support first, both in terms of successes and failures

Development need not lead to democracy, and in particular liberal democracy

Figure 4.1. Wealth Effect (GDP) on Rights Performance

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Table 10.1. Correlation of Wealth, Human Rights and Measures of Development

Human Rights in China: ducks and pianos

China outperforms average in income class in major indicators except c-p rights:

Socio-economic “rights”: UNDP HDI (poverty, infant mortality, life expectancy, primary school enrollment, literacy)

Income equality: two variants in Asia; China similar to HK, Singapore and typical pattern in developing countries; now addressing imbalances

Women’s rights Physical integrity rights: 4, probably 3 Way below average on civil and political rights Double standard?

Assessing Civil and Political Rights

What is the proper standard? Developed countries? Still low score relative to wealth Liberal rights – US, intl law? More problematic

Legal standards Restrictions prescribed by law; serve legitimate purpose; necessary Case by case versus broader approach

Bottom line: many unreasonable (and unnecessary) restrictions + severe procedural problems;

Why? Many problems factually, politically, economically, legally and socially

controversial Problems of stability; lack of resources; weak institutions; Central-local political contract

Next Challenge – Ratify ICCPR?

Pro ratification Int’l pressure to sign Increase in soft power Improvement in rights? Not likely:

general studies: ratification does not lead to improvement Problems will not go away

Against ratification Gap between rights and reality Rights stated at high level of abstraction – ICCPR HRC and hr

community generally more liberal interpretation than China China would need to ratify with blanket reservation or many

examples

Limitations

Causal direction: both push and pull Not clear how to promote economic growth,

establish rule of law Too much focus on courts, property rights Legal system facilitates commerce Elide rule of law with liberal democracy and

protection of human (ie civil and political) rights

Conflicts and complexities: the challenges facing reformers

1. Economic reforms had led to a much more pluralistic society, with citizens deeply divided in their interests and normative views

2. State organs also have different interests, and support or oppose reforms based on whether they serve their institutional interests.

3. Economic reforms and the government’s efforts to promote rule of law and rights-consciousness among citizens have led to greater demands on the legal system

More Challenges

4. Judiciary is being asked to handle many cases for which it lacks adequate competence, authority and independence

Lacking effective channels for resolving the conflicts generated by economic, social and political reforms, citizens are taking to the streets to seek justice: sharp rise in protests - 58,000 in 2003 to over 74,000 in 2004

5. Police & procuracy in bind: rising crime, but less power

6. Lack resources to throw money at problems

The Need for Deeper Reforms

No more easy solutions: winners and losers Politics of reform now more complicated Generalizations about rule of law, balance of

efficiency and rights, etc. no longer sufficient

Toward a solution

1. Prevention: address some of the major social cleavages - rural-urban; regional; intra-urban gap

2. Strengthen current mechanisms for handling conflicts sort out institutional conflicts make tough policy decisions and follow through allow citizens to challenge government acts and to

lawyers to represent their clients in controversial economic, criminal or political cases

3. Macro-level planning: which institutes will handle what type of disputes

Solutions continued

4. Strengthen existing, and develop new, procedural mechanisms to handle the increasingly diverse views in society - increase public participation

5. More attention to procedural justice in mechanisms for resolving disputes, whether through mediation, the letter and visits system, court cases or other means. Participants must perceive the mechanisms to be fair

6. Explain the proper role and the limits of the legal system and rule of law: legal system is not the proper forum for resolving all contentious issues.

The Politics of Reform – Implications for C-P Rights and Constitutional Development

Conservative view: more repression

Liberal view: rapid liberalization

Moderate view: bit of each – stick to EAM

Is China trapped in transition?

Still many problems with rights, rule of law, governance

But trapped? too early to tell – middle-income blues Still growing Following EAM 17th Party Congress: Hu-Wen consolidate power:

harmonious society

Rule of Law, Democracy and Human Rights: All Good Things Need Not Go Together

Rule of law, democracy and rights: necessary relationship? HK: non-democracy + rule of law + rights

Guatemala, Kenya, Papua New Guinea: all score high on democracy (8-10 on Polity IV Index) and yet low on rule of law (below the 25th WB index)

Non-linear relationship between democracy and rights: murder in the middle: as political space opens, the ruling regime is subject

to greater threats to its power and so resorts to violence no general improvement in PTS or torture; India PTS 4, Phil. 3, SK 3

Bueno de Mesquita: hr progress only reliably appears toward end of the democratization process.

Democracy does not mean liberal rights: EA countries generally outscore average in income class on econ. rights, good governance, law and order; but lower on civil and political liberty. Eg. Free speech, freedom of press

Democracy

Democratization at low levels of wealth not likely to succeed

Nonliberal elitist democracy likely – imperial to imperiled to impeached

Democracy no panacea: economic growth, trade tensions rule of law: institutional development human rights: poor, women, criminals, environmental,

religion/minorities clash of civilizations? Impact on hr rights regime

geopolitical stability