"Authoritarian International Law" in Action? Tribal Politics in the Human Rights Council.

• Author: Chen, Yu-Jie

TABLE OF CONTENTS I. INTRODUCTION 1204 II. THE UNITED NATIONS HUMAN RIGHTS COUNCIL 1211 III. POLITICAL DYNAMICS IN THE HUMAN RIGHTS COUNCIL 1215 A. The United States 1215 B. The People's Republic of China 1219 C. The European Union 1221 D. HRC under Authoritarian Shadow 1223 E. Political Coalitions and Group Dynamics in the HRC 1226 IV. AN "AUTHORITARIAN INTERNATIONAL HUMAN RIGHTS SYSTEM"? A CONTRADICTION IN TERMS 1228 A. Contesting Norms 1230 B. Weakening Institutions 1241 C. Further Polarizing Politics 1242 V. "AUTHORITARIAN INTERNATIONAL LAW" IN ACTION? ITS IMPLICATIONS 1245 A. How Will Authoritarian International Norms Be Developed? 1245 B. Democratic Integrity and Coalition 1247 C. Engagement and Cooperation? It's Politics 1251 IV. CONCLUSION 1254 I. INTRODUCTION

The global protection of human rights is often intertwined with international politics. Governments develop foreign policy strategies that dictate how they pursue their agendas in the multilateral international system. Major powers often have designs to influence the international regime in their favor and invest great resources to that effect. Their agendas, however, do not always converge in the direction of better protection of human rights. Contentions and contestations among countries of different regime types and ideologies are inevitable, and they, in turn, have a bearing on the norms, institutions, and politics of the international human rights regime. It is essential to understand these political dynamics to evaluate their impact on global human rights governance.

As one of the world's most important intergovernmental human rights institutions, the United Nations (UN) Human Rights Council (HRC) provides an excellent window for examining the multilateral politics of the international human rights system. The HRC, established in 2006 to promote "universal respect for the protection of all human rights and fundamental freedoms for all," (1) is an institution with forty-seven member states. Each member state, unsurprisingly, has its own perceived interests in, and ideas about, human rights.

As the influence of the major powers in the international system ebbs and flows, the dynamics that shape human rights norms, institutions, and politics in the HRC also change. In recent years, observers have been alarmed by the growing efforts of authoritarian states to promote their agendas in key international fora, including the human rights system. The goals pursued by autocracies, however, are often incompatible with internationally recognized human rights principles.

This concern has been heightened since the United States withdrew its membership from the HRC in June 2018. (2) On the other hand, the People's Republic of China (China)--an increasingly authoritarian, repressive state--has sought to dictate the global governance agenda. International attention has turned to whether and how Xi Jinping, China's Communist Party General Secretary and President, views the United States' retreat from the HRC as evidence of democratic weakness and an opportunity for China to push its "international discursive power" (huayu quan). (3)

Human rights have long been the weakest link in China's foreign relations. Beijing sees human rights criticisms as obstacles to its bilateral and multilateral diplomatic goals, undermining the "great power" image it wants to project and delegitimizing the Chinese Communist Party's standing on the international stage. This gambit of enhancing China's "international discursive power" seeks to tilt the international order in favor of the Chinese party-state's interests in monopolizing its own domestic rule, diminishing international scrutiny of its human rights practices and enhancing its international legitimacy. (4)

The changing dynamics that exist between authoritarian and democratic countries in the international system should not be surprising. International law, after all, is formally neutral among regime types, as pointed out by Tom Ginsburg's recent, thought-provoking work Authoritarian International Law? (5) Both democracies and autocracies try to exert influence in the international regime to shape norms, institutions, and politics to their advantage. Yet, as the post-war international human rights system has mainly been created and developed by liberal democracies and nonstate actors for the better protection of human rights, greater influence wielded by autocracies has the potential to undermine human rights norms many consider universal.

In Ginsburg's argument, a future authoritarian international order that is now being shaped by autocracies may likely have the following characteristics: "the development of new norms to facilitate internal repression, regulation of cyberspace, and the dilution of democratic concepts and institutions." (6) Moreover, cooperation among authoritarian states appears to favor weaker commitments and non-mandatory dispute resolution. (7) Most to the point of this Article is Ginsburg's observation that authoritarian states are likely to cooperate across borders to repress regime opponents. (8)

Indeed, the utmost priority for autocracies is their own survival and monopoly on power. Dictatorial leaders therefore seek to repress dissent in order to guarantee domestic rule without challenge, and the logic of repression impels crushing different voices not only at home but also abroad so as to maintain the regime's domestic and international security. (9) Shaping international norms to accommodate or even legitimate such repression appears to be a near-definite feature of an authoritarian international order.

This Article contributes to the theoretical discussion of a potential authoritarian international order with a case study of China's practice and interaction with other countries in the HRC. Furthermore, while the existing discussion focuses on what an authoritarian international order would look like, this Article narrows in on how such an order may be shaped, examining the mechanisms that authoritarian countries--such as China--use to influence the international system, "turn[ing] general international law more authoritarian." (10) More specifically, this Article examines how an international organization can be used to promote certain authoritarian ideas.

The finding of the Article suggests the importance of studying group dynamics and political coalitions in any given intergovernmental organization to better understand competition (as well as cooperation) between democracies and non-democracies and where the power lies in that organization that shapes international norms. This finding points to new territories of future study of the international system that is increasingly under authoritarian influence.

Why China? While there are many states that are considered authoritarian in their regime type, (11) the Chinese party-state is the most resourceful among them. (12) It is also making more headlines than ever with its increasingly egregious human rights violations, including state crimes in Xinjiang, (13) repression of liberties and freedom in Hong Kong, (14) and continuing crackdowns targeting rights activists and lawyers. (15) It is a prime example of how an authoritarian regime uses various mechanisms to promote its own illiberal agenda on the international stage.

The Article also investigates in particular the interactions between China and other countries as well as leading democratic actors in the HRC (i.e., the United States and the European Union (the EU)) to understand the evolving political dynamics in the HRC and the interplay among authoritarian and democratic regimes.

Selecting these three actors--China, the United States, and the EU--as the main subject of this Article is not to deny that other countries can also influence the agenda of the HRC nor does it reject the agency of other countries and nonstate stakeholders. Yet, given that China and the United States are two of the world's superpowers and that the EU has long represented the most substantial bloc of support for the multilateral human rights system as known today, a focus on their practice in the HRC for analytical purposes helps shed light on the politics and competition among different political regimes in this important human rights institution.

Moreover, this Article examines the implications of such dynamics for the development of international human rights norms and institutions. China is playing what the Article calls tribal international politics in the HRC, aligning itself with other authoritarian countries and some developing countries under the umbrella of the so-called "Like-Minded Group" (LMG) (16) to blunt the power of the existing international human rights system.

The concept of "tribalism" or "tribal politics" is not new. (17) According to the Blackwell Encyclopedia of Sociology, the term tribalism has been used, extended, and discredited among the community of anthropologists over time, but a contemporary idea of tribalism has been revived in other disciplines to refer to in-group members who own a collective identity based on shared ideologies. (18)

In the realm of politics nowadays, tribalism is commonly used to emphasize the divide between different groups whose views are "seen as incommensurate with those of nongroup members." (19) The concept is repurposed to emphasize the loyalty to the in-group members based on not only some collective identity but also a sense of insecurity against those who are thought to belong to out-groups. (20) This accompanies distinguishing "them" from "us." Borrowing this concept, this Article uses "tribal international politics" to denote the phenomenon of the current entrenched division between authoritarian states and liberal democracies in the international system as well as the sense of victimization shared by China and countries in the global South.

It is worth noting that the term "tribal" in this Article intends no negative connotation often...