Randall Peerenboom, China Stands Up: 100 Years of Humiliation, Sovereignty Concerns, and Resistance to Foreign Pressure on Prc Courts

• Citation: Vol. 24 No. 2
• Publication year: 2010

CHINA STANDS UP: 100 YEARS OF HUMILIATION, SOVEREIGNTY CONCERNS, AND RESISTANCE TO FOREIGN PRESSURE ON PRC COURTS

Randall Peerenboom^*

Two hundred years ago, Napoleon famously declared: "Let China sleep, for when she wakes, she will shake the world."¹Today, China has awoken and begun to shake the world. Fueled by decades of coal-fired growth and mercantilist policies, China is now not only the manufacturer of the world, but also the banker of the world.²With the world economy weak and out of balance and the climate change threat looming larger every day, China has emerged as a key contributor to global economic prosperity and the survival of the human species. Not surprisingly, China is now attracting heightened scrutiny in the West as a result of its larger economic and geopolitical footprint.

China's enviable success in achieving rapid growth and reducing poverty has been widely and rightly praised. However, China's ethnic policies have attracted criticism over the violent uprisings in Tibet in 2008 and in Xinjiang in

2009, followed by a tough crackdown to restore order.³Meanwhile, the harsh sentences meted out to Tibetans and Uighurs involved in the 2008 and 2009 disturbances,⁴the execution of a British citizen of Pakistani descent despite claims of mental illness,⁵and the unexpectedly long prison term given to Nobel Prize Winner Liu Xiaobo, the organizer of the political manifesto

"Charter 08,"⁶have led to international condemnation of the legal system.

In response, government spokespeople have repeatedly brushed off criticisms of China's ethnic policies and the courts' handling of controversial cases involving terrorism, national security, or the exercise of civil and political rights as unwarranted interference in China's domestic affairs and thus an infringement of China's sovereignty.⁷

What accounts for the aggressive defense of China's ethnic policies and its handling of these controversial cases in an era when international law is increasingly influential in domestic legal systems and China is increasingly seeking to rebrand itself as a responsible stakeholder in global affairs? Part I begins with a brief history of China's 100 years of humiliation at the hands of the colonial powers to provide some context for the rather strident claims of sovereignty. Part II presents a brief overview of Beijing's general approach to Tibet and Xinjiang and focuses on economic development and autonomous zones, and the problems with this approach, including terrorism, uprisings, and increasing tensions. Part III examines the government's response to the latest disturbances. Part IV discusses some of the problems in handling cases involving terrorism, state secrets, or high profile political or criminal cases. These include procedural problems such as lack of transparency and Beijing's unwillingness to be seen as bowing to external pressure from foreign governments or international organizations, including human rights organizations.

I. CHINA'S 100 YEARS OF HUMILIATION

For most of the last millennium, China was undeniably one of the world's great civilizations and more advanced than Europe by most indicators, including Gross Domestic Product ("GDP"), urbanization, living standards, and technological innovation.⁸However, by the mid-nineteenth century, spurred on by the industrial revolution, the exploration, and the colonization of new territories, Europe had surpassed China in terms of GDP.⁹The Opium Wars from 1839 to 1842 demonstrated Europe's military and technological superiority beyond any shadow of doubt.¹⁰

For the next 100 years, China experienced a period of national humiliation. Foreign powers compelled China to sign a series of unequal treaties, forcing open trade ports and establishing foreign concessions in major cities, while demanding reparations from the weakened Chinese government.¹¹Under the principle of extraterritoriality, Chinese courts were denied jurisdiction over foreign citizens charged with crimes.¹²Missionaries were allowed to come and go as they wished, proselytizing and seeking converts.¹³Japan invaded and occupied Manchuria, and carried out brutal military campaigns in other parts of China.¹⁴Foreign entities dominated the commanding heights of the economy, controlling the salt tax, postal service, customs, railways, shipping, and the manufacturing and distribution sectors.¹⁵Growth came to a standstill, and living conditions deteriorated. GDP per capita was $600 in 1829, compared to $530 in 1870, $552 in 1913, and $439 in 1950.¹⁶

While the events may seem part of the distant past for Westerners and in particular for Americans with their short history, the 100 years of humiliation have left a deep mark on the collective psyche of Chinese citizens. Reminders of the great indignities suffered at the hands of foreigners remain standard fare in official and informal contemporary social and political discourse. The preamble to the 1982 Constitution, for instance, traces the long and glorious history of China.¹⁷The preamble also laments the national humiliation at the hands of foreign powers from the mid-nineteenth century until Mao Zedong and the Chinese Communist Party ("CCP") were able to defeat the collective historical forces of imperialism, feudalism, and bureaucratic capitalism to unify the nation and establish New China.¹⁸Furthermore, the preamble sets out some of the major achievements under the CCP in defending the nation against foreign aggression, developing the social and economic order, and improving the lives of citizens, before turning to major challenges.¹⁹Somewhat bizarrely to most foreigners, government spokespeople even today are quick to find "insults to the dignity of the Chinese people" in routine differences of diplomatic opinion, whether meeting with the Dalai Lama, selling defensive arms to Taiwan, or criticizing China's Internet policies.²⁰

Past humiliations also underlie the rapid rise of an aggressive nationalism in China today. Since the reform era began in 1978, China has adopted a strategy of biding its time and focusing on domestic issues-first and foremost economic development and political stability-as part of a national drive for modernization.²¹However, recent world events, most notably the global recession and the political awakening to the urgency of climate change, but also the proliferation of nuclear weapons in North Korea and Iran, the problems in Myanmar, and the ongoing development challenges in Africa, have forced China to assume a greater role in international affairs.²²Indeed,

China is increasingly cast in the role of the dealmaker or, perhaps more often, as the deal breaker, by the Western powers that want China to follow their lead. Although some level-headed commentators and policymakers have wisely warned that China is still a developing country that is weak and vulnerable on many fronts, many of their more ethnocentric colleagues have seen in recent events the ushering in of a new era where China once again assumes its role as a global leader and great civilization.²³

The recent reversal of fortunes of China vis-à-vis Western powers has led to more aggressive policies and greater resistance to foreign pressure or advice across a wide range of issues, including how to respond to ethnic unrest in Tibet and Xinjiang and foreign criticisms of the way Chinese courts handle controversial cases.²⁴

II. ETHNIC POLICIES IN TIBET AND XINJIANG

China's ethnic issues are daunting. Fifty-six ethnic groups in China account for 8.41% of the population.²⁵The vast minority live in border areas that contain 85% of China's nature reserves and key natural resources.²⁶Given the diversity and complexity of ethnic issues, the government has adopted a multi- prong approach "featuring equality, unity, regional ethnic autonomy, and common prosperity for all ethnic groups."²⁷

"Unity" refers to historical claims that minority regions were long part of China. The official government position, accepted by most Han Chinese citizens, is that most of contemporary China, including Yunnan and Xinjiang, was part of unified China by the end of the Han dynasty (206 BC-220 AD).²⁸

The Yuan dynasty (1206-1328) asserted claims over Taiwan and Tibet, which was "under the effective administration of the central government of China."²⁹

These historical claims continue to be debated by historians and contested by

Tibetans and Uighurs seeking independence or at least greater autonomy.³⁰

The legal regime for minorities is complex, with numerous autonomous zones, preferential policies, and a wide range of local regulations. Accordingly, different minority groups or even members of the same minority group are subject to different rules depending on where they are located.

By the end of 2008, there were 155 ethnic autonomous areas, including 5 autonomous regions, 30 autonomous prefectures, and 120 autonomous counties.³¹Seventy-one percent of the ethnic population lives in regional autonomous zones.³²

According to government sources, by the end of 2008, the ethnic autonomous areas formulated 637 autonomous and separate regulations, as well as adapted or issued supplemental regulations to national laws such as the Marriage Law, Inheritance Law, Election Law, Land Law, and Grassland

Law.³³

Affirmative action, including the training and appointment of minorities as government officials, is also one of the pillars of China's ethnic policies. By

2008, the number of minority party cadres exceeded 2.9 million-a 300% increase over 1978-and minority civil servants accounted for 9.6% of the country's total.³⁴Some minorities attained senior positions, including two vice chairpersons of the Standing Committee of the National People's Congress

("NPC"), two of the nine vice premiers and state councilors of the State Council, and five of the twenty-five vice chairpersons of the National Committee of the Chinese People's Political Consultative Conference ("CPPCC").³⁵

The Chinese government has made efforts to...