Chinese Legal Development Assistance: Which Rule of Law? Whose Pragmatism?

Author:Seppanen, Samuli
 
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TABLE OF CONTENTS 1. INTRODUCTION 102 II. CHINESE FOREIGN DEVELOPMENT ASSISTANCE: 111 AN OVERVIEW A. Small Donor, Large Development 111 Financier B. Turn-Key Projects instead of Support 114 for Governance Institutions III. THE ROLE OF LAW IN CHINESE FOREIGN 119 DEVELOPMENT ASSISTANCE A. Qualified Resistance to Transnational 119 Human Rights and Rule of Law Standards B. Stage-based Narrative of Development 122 C. Tolerance for Legally Ambiguous 125 Practices as a Development Strategy IV. THE SCOPE AND NATURE OF CHINESE LEGAL 127 DEVELOPMENT ASSISTANCE A. Advice on Law Reform 127 B. Legal Capacity-Building Programs 131 1. Training Modalities in the 131 Legal Sector 2. Substance and Intended Effects 135 of Training Courses C. Regulatory Compliance Support 140 D. Chinese Legal Development Assistance 141 in Comparison V. AN IDEOLOGICAL CHALLENGE? 143 A. Commonsense Assumptions, 143 Commercial Interests, and Strategic Objectives B. Incoherent Objectives and Ideological 149 Disagreements C. Exporting Political Conventions-- 153 and Taboos VI. CONCLUSIONS 157 I. INTRODUCTION

China is both a recipient and a donor of foreign development aid. As a donor state, China primarily seeks to support commercially viable infrastructural projects in developing countries. China insists that it does not interfere in the internal affairs of foreign states, and it criticizes Western human rights conditionality and rule of law advocacy in development cooperation. Due to this non-interventionist posture, Chinese foreign development aid is commonly seen to exclude politically sensitive assistance for governance reform. As regards governance assistance to the legal sector, in particular, China is seen as a recipient of foreign aid rather than as an exporter. (1)

This Article demonstrates that Chinese foreign development aid (or "cooperation") does, in fact, include a distinct legal component. Relying on scarce Chinese government sources and interviews of Chinese development experts and legal scholars, this Article describes the basic outlines of Chinese legal development assistance to developing countries. (2) This Article shows that China provides (i) advice on law reform in developing countries; (ii) capacity-building programs for lawyers from developing countries; and (iii) regulatory compliance support for Chinese state-owned enterprises and private companies operating in developing countries. Chinese legal development assistance is a particularly visible part of China's ambitious foreign policy project, the "Belt and Road Initiative," but it predates this initiative and extends to countries that do not participate in it. (3)

To be sure, Chinese legal development assistance is marginal compared to the rule-of-law projects undertaken by international development organizations and large Western donor states. Nevertheless, the resources spent on Chinese legal development assistance seem comparable to rule-of-law aid from small European donor states. (4) China is particularly active in offering legal capacity-building programs. Each year, the Chinese government provides training courses and legal conferences to hundreds of foreign lawyers. (5) From a historical perspective, some aspects of Chinese legal development assistance are comparable to the first flourishing of the Law and Development movement in the United States in the 1960s and 1970s. (6)

Although Chinese legal development assistance is small-scale, even tentative efforts to export legal knowledge from China raise far-reaching questions about the role of law in development assistance. Why is China, a critic of Western human rights and rule of law advocacy, setting up its own projects on legal development assistance? Contemporary Western development policies stress the instrumental and intrinsic importance of the rule of law for social and economic development. (7) Does China accept Western assumptions about the rule of law in its development cooperation? (8) Or does it advocate a specifically "Chinese" approach to the relationship between law and development, a possible alternative to the Western "rule-of-law orthodoxy"? (9) Does such an approach constitute part of a new Chinese development model, which China's President Xi Jinping now offers to "countries and nations who want to speed up their development"? (10) Chinese legal development assistance also influences development policymaking in the United States and other Western donor states. Western donors now face competition from China, not only for economic development projects, but in legal development assistance, too.

Many scholars and development experts are interested in the idiosyncratic legal underpinnings of the Chinese development experience. The ongoing backlash against globalization has called into question the legal architecture of international trade and domestic laws, which facilitate neoliberal economic policies. (11) In contrast to the "Washington Consensus," (12) the Chinese development model is recognized for its protectionist measures and heavy state intervention, (13) as well as for its ambivalent approach to the rule of law. (14)

The Chinese approach to development has also been described as self-consciously "pragmatic." Beijing is seen to promote incremental, context-specific solutions, which arc not derived from a uniform and universally applied policy framework. (15) The notion of pragmatism is tied to the Chinese government's tolerance for legally ambiguous practices, as well as to its anti-formalist approach to law. (16)

The association between the seemingly successful Chinese development model and the anti-formalist approach to law fits the perception that heterogeneous ideas about law are replacing the formalist preferences of the Washington Consensus. (17) Development experts have long argued that the commonsensical assumptions about the beneficial nature of rule of law aid are elusive and ill justified. (18) Some development organizations, most notably the World Bank, now extol the virtues of pragmatism and localism in the design of legal reforms. (19)

While such economic and political considerations might induce the Chinese government to start promoting a pragmatic and ambivalent approach to law in foreign countries, China is also one of the largest investors in the world. As a consequence, China benefits from the investor-friendly laws and international trade agreements previously advocated under the Washington Consensus. (20) Indeed, as the United States has adopted a revisionist approach to globalization, the Chinese leadership is positioning itself as the principal advocate of trade liberalization. (21) In light of China's foreign commercial interests, economic protectionism, heavy state intervention, and antiformalism no longer appear as self-evidently positive development policies for the Chinese government--although China continues to rely on these policies domestically. The question is whether the Chinese government can reconcile its newly assumed global role with its long-standing objections to Western rule-of-law promotion and its ambiguous commitment to legal formalism at home and abroad. (22)

The first step in answering this question is to establish some elementary facts about the scale and nature of China's legal development assistance. In many other jurisdictions, this would be a straightforward task. In China, gathering even basic information about foreign development assistance presents a formidable challenge. (23) Information about Chinese foreign development assistance is considered a state secret. (24) Not even the highest legislative organ in China, the National People's Congress, appears to be able to obtain detailed information about development spending from the Chinese government. (25) When the Chinese government releases information about its foreign development assistance, it most likely underreports its development projects abroad. (26)

The Chinese government has released some information about its development programs--most notably, two white papers on China's foreign aid in 2011 and 2014--but these documents are cursory and mostly silent on legal development assistance. (27) Legal development assistance is a particularly sensitive topic for the Chinese government, which has long insisted that Chinese development assistance is non-ideological. (28) Academic scholarship on Chinese legal development assistance is scarce both in China and abroad, (29) and Chinese government officials are generally unwilling to discuss the details of Chinese development programs with a foreign researcher. (30)

Still, some information can be found on China's legal development assistance programs. This Article benefits from discussions with ten Chinese individuals who are involved with Chinese development assistance as development experts or as scholars. (31) It is also possible to talk to foreign participants in Chinese legal capacity-building programs (provided that one is able to identify such individuals). This Article makes use of information and course materials obtained from three foreign participants in Chinese legal training courses. (32) Finally, Chinese government agencies and newspapers have released some information about Chinese development programs. This information is useful for piecing together and corroborating information received from Chinese development experts and foreign lawyers. Working papers published by the International Poverty Reduction Center in China (IPRCC), a research center established by the Chinese government to share Chinese development experience with developing countries, (33) are particularly helpful for illustrating Chinese development experts' (often implicit) attitudes toward law.

On the basis of this no doubt incomplete information, it is possible to form a general image of the aims and impediments of Chinese legal development assistance. Part I of this Article demonstrates that legal development assistance is marginal in the...

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