It is often taken for granted that human rights law embodies the pursuit of individual rights and freedom, but that link can no longer be taken for granted. As I discuss in my forthcoming Note in the Columbia Law Review, the People’s Republic of China (PRC) is attempting to transform human rights into an instrument of 21st century global authoritarianism.
Specifically, China is engaging in what I call “normfare” by strategically promoting an illiberal doctrine of human rights. By undertaking efforts around the world to socialize other actors into its preferred human rights norms, China is mounting a serious challenge to human rights as we know it.
Human Rights With Chinese Communist Party Characteristics
China’s government and the Chinese Communist Party (CCP)—the two are deeply enmeshed and not always distinguishable—have long possessed a distinctive human rights doctrine quite different from what one would encounter in the classrooms of most law schools or the boardrooms of most international nongovernmental organizations. Underlying the PRC’s vision is a tenacious, absolutist view of state sovereignty and noninterference. Another tenet of China’s human rights catechism is that developing states should prioritize the right to economic development over all other rights, especially civil and political ones. Generally, the PRC accepts the universality of human rights—which typically means that people across all societies are entitled to the same rights—while in the same breath adding the oxymoronic qualifier that states are entitled to choose their human rights practices on the basis of their own political, economic and cultural conditions. Finally, rather than individual rights, the PRC stresses collective rights vested in the state and obligations that individuals owe to society.
According to this doctrine, “human rights” is more about states than humans and more akin to privileges than rights. What’s more, the CCP contends that foreigners should not interfere with a state’s sovereignty by speaking or acting on its internal human rights situation. What emerges is a concept of human rights that is conducive to autocratic rule and inimical to outside advocacy.
That the Chinese party-state holds such views on human rights is not new. What is new, especially since Xi Jinping’s ascent to power in 2012, is China’s revisionist posture. In the past, China brought up its human rights doctrine largely to shield itself from outside criticism. Now, it is promoting its vision across the globe as an alternative human rights framework that is superior to the liberal status quo.
In making this shift, China has dual motivations. The first is external. As persuasively argued in Rush Doshi’s recent book, “The Long Game: China’s Grand Strategy to Displace American Order,” China is currently pursuing a strategy of global expansion meant to build Chinese power and blunt U.S. influence, displacing the United States as the global hegemon. Yet China’s noxious human rights record has stymied its quest for global legitimacy and soft power. By displacing a liberal human rights regime that impedes Chinese geopolitical influence with a more amenable illiberal alternative, China can help realize a new international order.
The second motivation is internal. Like most authoritarian regimes, China’s party-state harbors a deep fear of being toppled by the Chinese people. Many Chinese leaders see liberal values such as human rights and democracy as an existential threat to the survival of the regime. By spreading a version of human rights that’s more tolerant of oppressive, authoritarian governments, the CCP hopes to neutralize an existential threat.
If warfare is the use of arms to achieve political objectives, and lawfare is the use of legal instruments to achieve political objectives, then China’s international human rights strategy is a policy of “normfare”—the strategic promotion of favored interpretations of international norms for political ends. The international relations scholar Stephen Krasner defines norms as “standards of behavior defined in terms of rights and obligations,” as distinguished from rules, which are “specific prescriptions or proscriptions for action.” Norms can affect state behavior on their own or through codification in international human rights law by treaty, custom or nonbinding soft law.
International norms are not static. Rather, they develop largely at the instigation of actors known as “norm entrepreneurs.” To explain how norm entrepreneurs change international norms, Harold Hongju Koh, former dean and current professor at Yale Law School professor and former legal adviser at the U.S. Department of State, has proposed the transnational legal process model, which involves three stages. First, the norm entrepreneur provokes an interaction or series of interactions with other actors. Second, these interactions force a particular interpretation or enunciation of a relevant international norm. Third, other actors internalize the new interpretation of the norm into their own internal normative systems. Successfully internalized norms may ultimately shape state behavior.
China’s human rights normfare neatly maps onto Koh’s theory. China is acting as a norm entrepreneur, provoking interactions with other actors and forcing the interpretation of norms in the manner favored by the PRC, with the potential result of foreign actors internalizing a set of norms constituting a deeply illiberal doctrine of human rights. To get a better sense of how this strategy plays out in practice, it’s useful to consider a case study of China’s human rights engagement on the African continent.
China’s Engagement With Africa
As Sino-African political, economic and cultural ties have deepened in recent years, Africa has become a key arena in which China challenges liberal international norms, in part because of the large number of African votes at the United Nations. For their part, many African actors are receptive to Chinese engagement as a way to boost Africa’s status on the world stage, provide a model for development, affirm anti-Western sentiment and, especially, obtain development assistance without unwelcome conditions for democracy, good governance or human rights.
In addition, there is significant overlap between China’s model of human rights and the approaches long taken by many African and Asian states, which have emphasized principles of sovereignty and noninterference as well as the primacy of economic, social and cultural rights over civil and political rights. But despite China’s rhetoric that it champions the human rights vision of the Global South, in many respects contemporary African human rights norms are considerably more liberal than those pushed by the PRC. For example, in 2001, African leaders declared that “development is impossible in the absence of true democracy, respect for human rights, peace and good governance.” And sovereignty and noninterference are not necessarily viewed as absolute. The African Union has sometimes been willing to interfere in the internal affairs of its member states in response to widespread human rights abuses, and apex courts in Tanzania and the Seychelles have recognized that international human rights law may curtail state sovereignty. China, though, is attempting to shift African norms in a different direction.
As the first step in the transnational legal process, China is fostering interactions between Chinese and African state officials, party functionaries and scholars. One key setting for such interaction is the Forum on China-Africa Cooperation (FOCAC). Launched in 2000, FOCAC is a multilateral body that brings together China and nearly every African country and is structured so that Beijing sets the agenda and controls the outcomes. Another way China fosters interactions is through recurring, officially sanctioned conferences that convene human rights scholars and officials from around the world in Beijing, until 2017 for the Beijing Forum for Human Rights and since 2017 for the South-South Human Rights Forum (SSHRF). Additional catalysts for potential interaction on human rights norms include programs targeted at legal, governmental, party, academic and other elites, as well as “human rights dialogues” between Chinese officials and their counterparts from South Africa and the African Union. The PRC thus empowers numerous transnational actors to rub shoulders and participate in the transnational legal process.
The Chinese party-state uses these interactions to enunciate its favored interpretations of human rights norms. FOCAC and the SSHRF are significant because each operates as what Koh calls an “interpretive community,” articulating and endorsing a common set of norms that together make up an illiberal model of human rights. In the case of FOCAC, this is evident from the “declarations” and “action plans” through which China and African states formulate common positions on international issues, including human rights. Take, for example, the 2009 “Sharm El Sheikh Action Plan,” in which “[t]he two sides reaffirmed their respect for the principle of universality of human rights, with no prejudice to the cultural and social particularities with regard to perceiving and applying the concept, and with priority on the right to development.”
Another example is the 2019 South-South Human Rights Forum hosted in Beijing and attended by 27 government officials from 23 African states. The 2019 SSHRF built on the Beijing Declaration adopted at the 2017 SSHRF, according to which “[t]he right to subsistence and the right to development are the primary basic human rights” and “[e]ach State should adhere to the principle of combining the universality and specificity of human rights and choose a human rights development path or guarantee model that suits its specific conditions.”
The clear implication of such language is that a state’s government may marginalize otherwise-universal civil and political rights as obstacles to development or not in keeping with the state’s culture. The focus in 2019 was on building a coalition to promote the vision of the Beijing Declaration.
According to a summary of the 2019 SSHRF prepared by Chinese scholar Shang Haiming, the sentiment of the conference was that “a great number of international human rights norms didn’t fully reflect the appeals of developing countries due to their inadequate participation” and that the Universal Declaration of Human Rights is an unrepresentative, Western document.
Indeed, Shang paraphrased numerous African officials who were reportedly of this view. For instance, Dheerujlall Seetulsingh, president of the National Human Rights Commission of Mauritius, reportedly praised China as “the model of human rights development, civilization and progress,” and Kadara Harith Swaleh, an official in Kenya’s ruling Jubilee Party, reportedly said it was “time to break the monopoly of Western human rights values” that emphasize civil and political rights but neglect social and economic rights.
According to the summary, the SSHRF delegates’ agreed-upon solution to the perception of Western hegemony over human rights was, essentially, Chinese hegemony: “The participants … universally expected that China could propose the idea of human rights suitable for developing countries and lead human rights development in the new era.” That is likely an exaggeration—but one reflective of China’s own aspirations.
The final stage in Koh’s theory is the internalization of the norm into the transnational actor’s own normative system. Koh distinguishes among social internalization, when the norm acquires widespread public legitimacy; political internalization, when the norm gains acceptance by political elites; and legal internalization, when the norm is incorporated into the domestic legal system. Qualitative evidence indicates that PRC-backed norms have gained sway over a significant swathe of African political and academic elites, while also influencing governmental policy and legislation.
First, the embrace of PRC-style human rights norms by some prominent African academics indicates social internalization. Rather than target the general public, China’s normfare is aimed at elites. Accordingly, some prominent African academics have latched on to China’s human rights model in order to affirm views of human rights similar to what the PRC is preaching, sometimes after participating in PRC-sponsored interactions.
For instance, Michael Njunga Mulikita, dean of the School of Social Sciences at Zambia’s Mulungushi University, participated in the 2019 SSHRF. There, he argued that “[d]eveloping countries should resist pressures from advanced countries to force them into prioritizing certain rights at the expense of [the right to development].” Other African academics have looked to China to argue that African states should learn from its prioritization of development over other rights, emphasize collective rather than individual rights, and achieve development by embracing the PRC’s foreign policy framework of building a “Community with a Shared Future for all Mankind.”
While it is difficult to assess how much traction China’s human rights approach has among African elites, anecdotal evidence suggests support may be widespread and genuine. Ian Taylor, a distinguished scholar in Sino-African relations, writes in his 2011 book, “The Forum on China-Africa Cooperation (FOCAC),” that “it is quite noticeable these days how touchy many African intellectuals are to any criticism of China and/or the suggestion that China is possibly not the savior of Africa, often defending Beijing’s record on human rights within the African context.”
Second, African state behavior also suggests political internalization. FOCAC summits, for instance, generate “action plans” for African states to implement cooperation based on the principles enunciated at the summits. Moreover, certain African leaders, such as President Emmerson Mnangagwa of Zimbabwe, echo China on the right to development.
And African votes have proved critical in supporting resolutions embodying China’s human rights norms at the U.N. Human Rights Council. In addition, many African states—including Muslim-majority ones—have refrained from criticizing China’s genocide in Xinjiang, which suggests acceptance of a very robust norm of noninterference.
Even if states are motivated by the practical aim of not offending the PRC in order to maintain good relations and foreign aid and investment, over time officials may internalize their own rhetoric. This type of internalization is clearer lower in African states’ domestic political hierarchies, as some party and government officials, including those with a human rights remit, have spoken fondly of China’s human rights approach.
Third, several African states’ adoption of PRC-inspired cyber statutes is a form of legal internalization. Norms are general standards of behavior rather than specific prescriptions for action, but elements of norms often inform or are explicitly codified in domestic law. China’s norms have informed its own cyber policies, which have served as a model for other states.
For instance, several African states—including Tanzania, Uganda and Zimbabwe—have enacted repressive cyber statutes and regulations modeled on China’s approach to state control of the internet and possibly instigated by China’s influence activities. As William Gravett points out, the China model of “internet sovereignty” reflects the PRC’s authoritarian concept of human rights as entailing a strong state furthering what it deems the collective good at the expense of individual freedoms. The fact that several African states are moving toward the PRC’s repressive internet policies suggests that China’s human rights normfare is already beginning to bear fruit.
What’s at Stake?
The PRC’s human rights normfare may contribute to two alarming trends: the construction of an alternative, authoritarian international law and the furtherance of an illiberal, Sino-centric global order. First, as PRC-backed norms are codified in international law, they might contribute to the rise of what Tom Ginsburg calls “authoritarian international law,” which he defines as “legal rhetoric, practices, and rules specifically designed to extend the survival and reach of authoritarian rule across space and/or time.” In Africa and elsewhere, authoritarian international law may fortify existing authoritarian regimes and encourage the development of new ones, while also contributing to the divergence of international law across regime types and even the retreat of liberal states from liberal norms.
Second, China’s human rights normfare may contribute to its efforts to realize a new world order. By undermining the foundations of the liberal world order, China’s revolutionary norm entrepreneurship may facilitate its efforts to build a significantly more Sino-centric, illiberal and authoritarian order, with a diminished role for human rights. In a sense, China would turn back the clock to a Westphalian international legal order in which states, but not individuals, have rights and obligations and can treat their citizens as they see fit. This would also be a world with reduced U.S. influence, one that is more multipolar and arguably more unstable. Yet the international community has enabled China’s efforts by generally failing to effectively confront the PRC on its interpretations of human rights.
As I discuss at greater length in my forthcoming Note, the United States has a critical role to play in blunting’s China’s global order-building in the human rights realm. An effective U.S. policy response to China’s human rights normfare would aim to blunt the PRC’s efforts, including by frustrating China’s attempts to co-opt international bodies such as the U.N. Human Rights Council and by providing the global public with evidence of how profoundly China’s conduct diverges from liberal norms and even the party-state’s own professed values. The United States should also redouble its efforts to build a more resilient liberal human rights regime, including by engaging in normfare of its own by convening international fora and using its position to influence the political agenda, making public declarations of liberal readings of international human rights norms and guiding states to internalize such positions.
China’s normfare, as demonstrated by the African case study, matters for several reasons. From a theoretical perspective, it undermines any teleological view of human rights as necessarily guiding the world toward ever-greater justice and underscores that international human rights law—and indeed international law generally—is inherently contested by actors and influenced by geopolitics.
From a policy perspective, PRC normfare is a serious challenge for democracies, civil society organizations, and individuals who feel threatened by the rise of China and the prospect of a Sino-centric world order. But the most important implication is the most direct one: China’s human rights normfare poses a grave threat to the international human rights system. By fashioning an illiberal, authoritarian “human rights” doctrine, the Chinese government is turning international law into a means of propping up authoritarian regimes and undermining human rights defenders. Now is the time for action to preserve the integrity of human rights as a check on arbitrary state power and a guarantor of individual liberty.