As China extends ‘global legal reach’, US should more actively engage to counter influence, top panel hears

Witnesses paint fuller picture of Beijing building a ‘Chinese version of rule of law’ while emulating Western legal practices
US urged to take more leading role in shaping international laws, including in space, technical standards and maritime rules

US-China relations

Bochen Hanin Washington

Published: 7:00am, 5 May 2023

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The US should take a more active role in countering China’s efforts to influence global legal standards, even if that involves engaging more with Beijing on the subject, witnesses told a top American congressional panel in Washington on Thursday.

In testimony before the US-China Economic and Security Commission (USCC) on Beijing’s “increasingly global legal reach”, a fuller picture emerged of the mainland government building a “Chinese version of rule of law”, including a lack of judicial independence, while emulating Western legal practices.

“Ninety per cent of the time, the Chinese courts rule fairly because that allows China’s economy to function and that ultimately benefits the CCP,” said Dan Harris, a partner at law firm Harris Bricken, referring to China’s Communist Party.

“But if a case is critical to CCP power and control, fairness gets tossed out the window. That 10 per cent is lawfare,” he added, describing the use of a legal system to hurt opponents.

American companies often get caught in those cases of lawfare, Harris continued, and the US government should help them exit China, particularly those with manufacturing operations.

He believed the US should provide “loans and grants” to allow such companies to move their manufacturing stateside or to an American ally, apart from helping them navigate the complex process for doing so.

But Moritz Rudolf, a scholar at Yale Law School’s Paul Tsai China Centre, cautioned that it was in America’s interest “to work in the [international] system and not draw out of it looking for other countries which already share the same vision”.

Rudolf advocated a bilateral exchange of jurists to help the US get a clearer sense of China’s legal system, saying implementation of the law in China tended to diverge from what was on the books there.

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A debate over how to disentangle from China proved a core theme at Thursday’s hearing convened by the USCC, an independent panel set up by Congress in 2000 that reports directly to lawmakers about the national security implications of the bilateral relationship in trade and economics.

The goal of the hearing, as explained by its co-chair, USCC commissioner Carte Goodwin, was to assess “how the CCP views law as an instrument of its authoritarian power” both internationally and domestically. This, Goodwin said, was “crucial to managing US-China competition”.

The hearing comes amid multiple signals from China that it seeks to expand its legal role in the international system. In February, China announced it would upgrade the status of international law studies in its education system, aligning with a CCP plan to “actively participate in the formulation of international rules”.

China was trying to change the international system without undermining it, witnesses testified.

“The PRC acts to a remarkable degree within the system, trying to reform it from within, making it less Western and more Chinese,” said Rudolph, adding that “they know they can’t” displace the system.

China on the global stage was “more interested in particular laws”, according to Vivienne Bath, a professor at the University of Sydney Law School in Australia, highlighting the law of the sea and human rights law as examples.

And there are domains it has not actively undermined, witnesses said. In international space law, Beijing was in fact being “mostly constructive”, said Brian Weeden of the Washington-based Secure World Foundation.

Beijing was “changing the environment, not the rules themselves”, added Isaac Kardon of the Carnegie Endowment for International Peace.

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To counter what they described as Beijing’s increasing attempts to influence the global system, witnesses urged the US to take a more leading role in shaping international laws, including in space, technical standards and maritime rules, without excluding China.

Kardon said this would entail ratifying the UN Convention on the Law of the Sea and de-emphasising freedom of navigation operations that the US currently conducts in the Indo-Pacific.

“Our self-exemption from certain binding rules is too legalistic to provide any leadership to the international community,” he added, saying America’s interest “in maintaining free navigational norms” was not broadly shared and undermined effective diplomacy.

The US could also forge broad coalitions beyond the Group of 7, witnesses said. Bath believed the US should prioritise engagement with developing countries to improve their laws, judiciary, and dispute settlement mechanisms so they could competently negotiate with actors like Beijing.

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In addition, the US needed to look at its own legal system, they said. Witnesses spoke of how American judges treated China without due scepticism and how American courts had been weaponised by the Chinese government to target their dissidents.

US judges were “uncomfortable with getting involved in cases that affect foreign policy”, said Diego Zambrano, a Stanford University law professor.

To counter Beijing’s efforts, the US should enact a federal statute on anti-strategic litigation against public participation to expedite the process for defendants to file to dismiss a case, he said.

Zambrano believed this would help remedy any financial or emotional harm arising from frivolous lawsuits out of Beijing.