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Jeremy Daum and Moritz Rudolf explain why the Chinese challenge of cooperation with Western systems is as technical as it is political

Public Policy / opinion
Jeremy Daum and Moritz Rudolf explain why the Chinese challenge of cooperation with Western systems is as technical as it is political
Chinese guard

By Jeremy Daum and Moritz Rudolf

recent report by the NGO Safeguard Defenders about the existence of “secret Chinese police stations” in cities around the world, including New York, has sparked investigations in several European countries and attracted the attention of the FBI. But while these investigations aim to protect the rule of law from subversion, they also highlight how unprepared Western democracies are to grapple with China’s growing international influence.

In their eagerness to appear “tough on China,” Western media and government officials alike have demonstrated their inability – or perhaps unwillingness – to evaluate the Safeguard Defenders report, which is plagued by mistranslations and misunderstandings of Chinese and international legal norms. China’s rising power requires careful technical debate and strategising rather than crude populist appeals.

Since emerging as a global economic and political power, China has increasingly focused on shaping international norms and institutions. Chinese leaders have indeed made extraterritorial jurisdiction a national priority in recent years, adding clauses to domestic laws that aim to expand their reach beyond China’s borders. But China’s extraterritorial influence is a natural consequence of its growing economic and political interconnectedness with the rest of the world. As its clout grows, policymakers in China and elsewhere must figure out whether or how Chinese law can be reconciled with Western legal systems.

Criminal justice is a small but illustrative example. China has been increasingly aggressive in seeking to repatriate criminal suspects and fugitives, focusing primarily on areas of great concern to the Chinese public, such as online fraudsters targeting China and corrupt local officials who have fled abroad. Pursuing such criminals and recovering stolen assets is viewed as an essential component of deterrence and a legitimising demonstration aimed at Chinese citizens of the state’s ability to protect their interests anywhere in the world.

Here, China has studied and largely mimicked the practice of established powers, particularly the United States. It has employed various methods to enforce Chinese laws abroad, including extradition and formal international cooperation, exerting pressure by seizing suspects’ domestic property, and promising leniency to those who return willingly.

But while China borrows from other countries’ legal toolkits, it often lacks the capacity to extend the reach of its laws, owing to a shortage of extradition treaties, professional resources, and international influence. It seems clear that strengthening China’s ability to enforce its laws abroad will remain a high priority for the authorities.

To be sure, legitimate concerns about China’s pursuit of political dissidents affect how its extraterritorial tactics are viewed around the world. While China’s overseas enforcement has not focused primarily on dissidents, it is essential to consider their plight, as well as the inadequacy of procedural protections for all defendants in China’s criminal justice system.

At a more fundamental level, the ruling Communist Party of China’s understanding of the rule of law differs from Western conceptions. In China, Party leadership is considered an “essential feature and inherent requirement” of its “socialist rule of law with Chinese characteristics.” In the context of Chinese communism, the law is primarily a tool for maintaining domestic stability and CPC rule.

Moreover, the CPC rejects institutional checks on government power, such as constitutionalism, separation of powers, and judicial independence, as “incorrect Western concepts.” Whether such a legal system can ensure basic fairness and reduce arbitrariness to protect the rights of both Chinese and foreign citizens is a question that anyone, including other governments, must seriously consider before interacting with China’s legal system.

Compared to other areas of the law, the matter of criminal procedure seems relatively straightforward. Developed countries’ legal systems are well equipped to determine whether China’s contact with its citizens abroad amounts to illegal intimidation, harassment, or improper action by a foreign government. The European Court of Human Rights’ recent landmark decision to block the extradition from Poland to China of a Taiwanese man accused of fraud shows how legal processes could be used to avoid complicity in Chinese violations of due process and other basic human rights.

The calculus will likely be more complex in other areas, such as cross-border disputes and setting standards involving new technologies or data transfers. Given that such cases involve a greater number of jurisdictions, a broader diversity of interests, and fewer clearly established legal norms, easy resolutions seem unrealistic. As China asserts itself, more robust frameworks will be required to protect all parties’ rights.

While China has mostly been following other countries’ lead in establishing itself as a major global player, it will likely seek a greater impact on rule-making, particularly in areas of emerging law. Addressing the challenges involved with China’s growing influence will require new rules of engagement, as well as fact-based analysis and technical debate. China has made great efforts to learn from, emulate, and adopt global legal practices. European and US policymakers must cultivate an equally accurate understanding of China’s actions and ambitions.

Painting China as an irrational agitator seeking to impose its will on the rest of the world is an easy way to curry popular support. But sensationalist reports of “secret police stations” do not contribute to sustaining a rules-based international order. In fact, this simplistic narrative grossly underestimates China and the challenges posed by its sophisticated and strategic efforts to use the law to promote its national interests.


Jeremy Daum is a senior fellow at Yale Law School’s Paul Tsai China Center, focusing on Chinese criminal procedure and law enforcement. Moritz Rudolf is a fellow at Yale Law School’s Paul Tsai China Center, focusing on the implications of China’s rise for the international legal order. Copyright: Project Syndicate, 2022, published here with permission.

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12 Comments

Pfft. Call me when the dictatorship has been toppled. 

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In China, Party leadership is considered an “essential feature and inherent requirement” of its “socialist rule of law with Chinese characteristics.” In the context of Chinese communism, the law is primarily a tool for maintaining domestic stability and CPC rule.

There, I have shortened your article for effiecency without removing any material information.

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The Emperor has new clothes.

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Moreover, the CPC rejects institutional checks on government power, such as constitutionalism, separation of powers, and judicial independence, as “incorrect Western concepts.

I don't know about the rest of you but that seems like a showstopper.

 

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That's a NO from me.

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China remembers many of the injustices it experienced at the hands of Whites in the 19th century. In the 19th century, all across the world, White travellers from the colonial powers were not under local jurisdiction but their national homeland's jurisdiction. 

It is also notable that the remaining Western power, the United States, also believes it has the right to impose its law around the world. It will extradite and arrest people all over the world, assassinate foreigners whom it considers terrorists or enemies and does so with impunity.

The idea that China has to impose Western style law as we have here, when it has its own legal tradition dating back over three thousand years is immensely arrogant on the part of this Yale Law professor. It has a fundamentally different philosophical and legal jurisprudence from a different cultural and historic point of view.

The author seems upset that globalists, international corporations and subversive NGOs aren't allowed to play all their games to loot China.

Good on China for executing its billionaires, using the state to direct and control its capital while developing itself immensely in the last 40 years. Compare it to New Zealand where we are actively looted by foreign firms for all sorts of goods and services, where we are effectively debt slaves to the banks for 50% of our incomes each pay check and where we have no say over who lives here or over the policies which are imposed on us by either the red or blue team.

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Here here. 

We have it all wrong. Better to have a dictator, re-education camps (prison) for minorities, no public say in who leads the country, people that live in fear and a police that control through fear.

Cant believe we value freedom over bowing to a one party one leader system who rules through fear. Bloody stupid westerners. 

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I for one welcome our new glorious leaders

PS: please don't kill me or my family

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Nobody is going to kill you Pa.  Get over the fear and live.

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China remembers history of Europeans dominating in the 19th century.  They remember both because it happened and because their govt reminds them regularly.  What also happened but is rarely remembered is that when they had a choice the Chinese flocked to Hong Kong. An almost barren rock had a rapid influx of Chinese despite their knowing all the top jobs in govt and business were held by Europeans.  They did so because Hong Kong had a rule of law whereas in mainland China they hadn't. 

Checkout the Esing Bakery incident - Cheong Ah-lum was found not guilty despite this statement by Attorney General Thomas Chisholm Anstey: ""better to hang the wrong man than confess that British sagacity and activity have failed to discover the real criminals"". 

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Funny, I don't see a rush of Europeans wanting to immigrate to China. In contrast I see a lot of Chinese moving to Australasia, the USA, Canada and Europe. The Japanese are xenophobic and won't take them (good) and latin america is still underdeveloped, corrupt and a general shit storm so limited appeal.

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If you think that's bad, wait to you read what the new resource management act has in store.

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