A Nail in the Coffin of Hong Kong’s Rule of Law
Media tycoon and pro-democracy activist Jimmy Lai has been the continued target of prosecution by the Hong Kong government. In a recent judgment, he has been convicted of fraud and handed a prison sentence of almost six years. As a result, another worrying development in a National Security Law (NSL) case against Lai, in which he is accused of inter alia conspiring to ‘collude with a foreign country or external elements’, has received significantly less attention. This concerns a 13 December ruling by the High Court of Hong Kong to adjourn the NSL trial until September 2023, in order for the Standing Committee of the National People’s Congress (NPCSC) to give an interpretation on whether foreign barristers are allowed to represent clients in NSL cases. In this blog post, I will use the NSL case against Jimmy Lai to examine some of the consequences of the NSL for the rule of law and the rights of defendants in Hong Kong.
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Foreign Agents, Diplomatic Skirmishes and the Law on Diplomatic and Consular Relations
In September 2022, the Madrid-based NGO ‘Safeguard Defenders’ published a report entitled ‘110 Overseas – Chinese Transnational Policing Gone Wild’, in which it documented the existence of at least 54 extraterritorial and undeclared Chinese police stations in more than 30 countries, many of them European Union Member States, such as Germany, Ireland, or the Netherlands. These police facilities, operated under the guise of ‘service centres’ supposedly providing diplomatic and consular services such as extending driving licences for Chinese nationals, have hence been located in cities such as Dublin, Rotterdam, Amsterdam, and Frankfurt.
Continue reading >>Hamburger Hafenrundfahrt im Regierungsviertel
Der jüngste Streit um die geplante Beteiligung der chinesischen Reederei COSCO an einem Terminal im Hamburger Hafen hat die Investitionskontrolle in den Mittelpunkt der öffentlichen Aufmerksamkeit gerückt. Während die Gegner der Beteiligung einen Ausverkauf kritischer Infrastruktur an China als systemischen Rivalen in der immer schärferen geoökonomischen Auseinandersetzung um die Vorherrschaft in der Welt sehen, betonen die Befürworter die Gefahr eines Bedeutungsverlusts des Hamburger Hafens. Wer immer sich durchsetzt – das geltende Investitionskontrollrecht gibt hierfür die notwendigen Spielräume. Käme es zu einer Untersagung, so wäre auch kaum damit zu rechnen, dass diese erfolgreich auf dem Verwaltungsrechtsweg angegriffen werden könnten.
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Is Taiwan a State?
Taiwan just celebrated its national day on 10 October 2022. In her speech, President Tsai Ing-wen traced the Republic of China’s resettling in Taiwan in 1949, to its democratization in the 1980s and 1990s, the latter of which transformed it into the Republic of China (Taiwan). Tsai also cautioned the People’s Republic of Chinas (the PRC) “attempts to erase the sovereignty of the Republic of China (Taiwan) have threatened the status quo of peace and stability in the Taiwan Strait and the region.” In contrast, in its “White Paper on Taiwan Question and the Unification of China in a New Era,” the PRC reiterated its longstanding position that Taiwan is an inalienable part of China, and cited United Nations (UN) Resolution 2758 to advance its so-called “One China Principle” internationally.
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Repression by Law
China did not need 9/11 to further restrict civil and political rights, but it jumped onto the bandwagon in using the legitimizing force of counterterrorism to intensify its repressive policies. China’s so-called “People’s War on Terror” has had a stifling impact on the ability to practice Islam in China (and especially in Xinjiang) and is, when discussed in the context of counterterrorism and human rights, therefore best be characterized as a significant encroachment of religious freedoms, bringing China’s human rights record to a new low point in the 21th century.
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Die neue Abschottung Chinas
In der Berichterstattung zur Eröffnung der Olympischen Spiele gerieten die sportlichen Ergebnisse in den Hintergrund. Vorherrschendes Thema waren und sind die radikalen Maßnahmen, mit denen die Organisatoren Chinas Null-Covid-Strategie auch angesichts des Zustroms von zehntausenden von Athlet:innen, Journalist:innen und Funktionär:innen aufrechterhalten wollen. Und wenn der Olympia-Tross nach dem 20. Februar die Heimreise antritt, wird sich deutlich zeigen, dass die Olympische Blase nur ein Indiz für ein viel grundlegendes Problem ist: die neue Abschottung Chinas.
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Verfassungsstreitigkeiten jenseits von Chinas Regulierung terroristischer Online-Äußerungen
Die Unterdrückung der Meinungsäußerung im Internet durch die chinesische Regierung ist fast schon legendär. Sie bildet einen uneinnehmbaren Eckpfeiler dessen, was der Oxford-Professor Stein Ringen die "perfekte Diktatur" des Parteistaates nannte. Chinas Herangehensweise an terroristische Äußerungen muss im Gesamtbild von Chinas sich entwickelnder Agenda zur Zähmung von Äußerungen im Internet verstanden werden.
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Constitutional Battles beyond China’s Regulation of Online Terrorist Speech
The Chinese government’s suppression of Internet speech is almost legendary. It forms an impregnable cornerstone of what Oxford professor Stein Ringen dubbed the Party-state’s “perfect dictatorship”. China's approach to terrorist speech must me understood within the entire picture of China’s developing agenda of taming speech online.
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Legalising Anti-Corruption Efforts in China
In 2018, the Chinese central government professed its determination to combat ‘corruption’ at a new level by promulgating the Supervision Law (SL). Supervisory commissions (SCs) from the national level down to the county level were systematically set up and became the sole supervisory organ, which has largely modified the constitutional division of powers. I argue that the SC shares much in common with the hybrid type of ombudsman but lacks adequate external constraint mechanisms.
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Masks, vaccines, and investment promises
When the WHO declared a pandemic on March 11, 2020, the spread of the virus was already under control in China. Ever since Beijing has been engaging in widespread health diplomacy. China aims to promote the image of China as a “responsible great power” and of Western states in as powers in decline that are unable to provide solutions for complex international affairs.
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The State Advances, the People Retreat
It is widely agreed that Wuhan, China is the origin of this pandemic. China has also been criticized for its initial mishandling of the outbreak, including local officials’ cover-up, the incompetence of the Chinese Centre for Disease Control (CDC), and the repression of whistle-blowers. In light of what had happened in other countries, however, China’s subsequent responses were nothing short of miraculous. From its lockdown in Wuhan, to the nationwide joint prevention and control system, from border sealing to mass testing and contact tracing, China’s measures were more intense than almost anywhere else in the world.
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Sanctioning the Treatment of Uighurs in China
China has been accused by various states of committing genocide against the Uighurs and other Muslim communities in recent months. Against this background, in March 2021, the United States, the European Union, the United Kingdom, and Canada announced sanctions against the Asian hegemon. Qualifying individual targeted sanctions remains a challenge for international lawyers due to the lack of clear demarcation between sanctions framework and the country-specific restrictive measures. Nevertheless, individual sanctions remain a viable option to pressure violators but alone might not be strong enough to deliver justice to victims.
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Political System Transformation in Hong Kong
China’s National People’s Congress and Standing Committee of the NPC decided in March 2021 to transform Hong Kong’s political system. Within a couple of months, the Hong Kong government will pass local laws to enable elections for a reconfigured Election Committee and Legislative Council to be held, respectively, in September and December 2021, ahead of the Chief Executive election in March 2022. Are the political reforms justified? In examining this question, I consider the aims of the reforms, their implications, and whether they are necessary and reasonable. Overall, I have doubts whether all the reforms are necessary and proportionate to achieving their intended aims.
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Being Naïve or Putting Business First?
The European Union would like to believe that it is acting robustly and cohesively to promote human rights and democracy globally. This (self-)perception as a force of good in terms of responsible business conduct and human rights protection might however be less accurate than many within the EU think. Some details about the recent EU-China Comprehensive Agreement on Investment (CAI) seem to spoil this rosy picture.
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Control through Intervention
In October 2020, the director of the Musée d’Histoire de Nantes announced the postponement of an upcoming exhibition on Mongol history and culture. The exhibition was supposed to be the result of a collaboration between the Nantes museum and the Inner Mongolia Museum in Hohhot, China. The decision of postponement came amidst an accusation of interference from the Chinese Bureau of Cultural Heritage. According to the director, The Chinese Bureau requested unprecedented control over the exhibition’s organization, including eliminating references to the Mongol Empire and Genghis Khan. The director of the Nantes Museum stated that the breakdown in the collaboration was caused by the Chinese Bureau’s attempt to ‘rewrite history and erase Mongol culture’; an effort the museum could not abide by.
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The Counter-Enlightenment Strikes Back
How does one make sense of the piece of legislation known as the “Constitution” in a political context where there are no effective mechanisms for its enforcement, and where constitutional text and political reality diverge dramatically? For the longest part of the post-1989 era, the majority of Chinese jurists approached this predicament with an avowedly reformist attitude. Using the familiar language of Enlightenment universalism, they called for the gradual overcoming, through an empowered judiciary, of the rift separating political reality from normative ideal: China, it was said, was “marching toward an age of rights”.
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The Chinese threat we forgot about: Huawei and ISDS
During the era of coronavirus emergency, the words China and threat tend to suggest the origin of our common affliction. The world to emerge from coronavirus however will face both new challenges and the echo of old ones. An old problem is what to do about Chinese involvement in 5G infrastructure development. In light of the recent ban for Huawei equipment by the UK this post addresses the question of whether the Chinese multinational Huawei would have an investment claim against the German government were they to prohibit its participation in 5G deployment.
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Five Reasons to Question the Legality of a National Security Law for Hong Kong
On 28 May 2020, the National People’s Congress (NPC) resolved to authorize its Standing Committee (NPCSC) to enact a piece of national security law for Hong Kong. Would this decision be in contravention of the Basic Law? Some people may say that this is a stupid question. Maybe it is. But if the Central Government still claims to be abide by the rule of law, and if the NPC is not above the law, then whether its decision would contravene the Basic Law is a serious question about the rule of law.
Continue reading >>Terrible Order
On Hong Kong, Kompetenz-Kompetenz and the necessity of taking sides.
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Entsetzliche Ordnung
Über Hongkong, Kompetenz-Kompetenz und die Notwendigkeit, sich auf eine Seite zu schlagen.
Continue reading >>China’s Response to the Coronavirus Pandemic: Fighting Two Enemies
The reality of China’s coronavirus experience raises distinctive legal-political concerns. The Party has used its vast and concentrated power to fight not only the virus, but also domestic critics of its response, including medical professionals, journalists, human rights activists, a constitutional law professor, and citizens simply speaking up via the social media because they were engaged, or enraged, or both. The fight against one of these ‘enemies’, inevitably, has affected that against the other.
Continue reading >>Kill the Chickens to Scare the Monkeys
As the Chinese saying goes, killing the chickens to scare the monkeys, China’s courts were quick to set examples of people who committed offences in relation to the country’s response to Covid-19 in order to deter potential offenders. However, the punishments of ordinary offenders and responsible officials highlight China’s constitutional setting – the dominance of the Communist Party in state affairs, and the political role of courts in times of national emergency. This is consistent with China’s self-proclamation – the centrality of the Communist Party’s leadership and the division of functions among state organs without separation of powers. Under such a setting, ordinary people and officials are subject to different rules and have different fates.
Continue reading >>Corona Constitutional #13: In Hongkong wird es dunkel
Erinnern Sie sich? In grauer Vorzeit, vor der Krise, im Jahr 2019 gab es eine riesige Protestbewegung in Hongkong. Hunderttausende gingen auf die Straße, um ihre Freiheitsrechte und die Unabhängigkeit ihrer Verfassungsinstitutionen gegen den Zugriff der Zentralregierung in Peking zu verteidigen. Die nutzt jetzt die Coronakrise, um mit ihren Gegnern abzurechnen. Übers Wochenende wurden viele prominente Regimekritiker in Hongkong verhaftet, die Protestbewegung klemmt im Lockdown fest, die Weltöffentlichkeit hat etwas anderes zu tun, als sich über Hongkong aufzuregen. Können wir uns das leisten, in Zeiten, wo ohnehin schon autoritäre Regimes ihr Krisenmanagement als Vorbild anpreisen, das den liberalen Demokratien angeblich überlegen ist? Darüber spricht Max Steinbeis mit der Verfassungsrechtsprofessorin CORA CHAN von der Hong Kong University, die direkt vor Ort von ihrer Einschätzung der Lage berichtet.
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Hong Kong’s Basic Law at 30: A Constitutional Experiment under Stress
On April 4, 2020, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (HK Basic Law) turned 30. The Hong Kong Special Administrative Region has been and continues to be confronted with many challenges, including those concerned with the implementation of the HK Basic Law. Ultimately, it will depend on the Chinese Central Authorities and the Hong Kong institutions if the HK Basic Law is to remain the centrepiece in the governance of Hong Kong.
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The WHO After Corona: Discretionary Powers for the Next Pandemic?
Imagine the World Health Organization (WHO) had declared the outbreak of the mysterious lung ailment in the Chinese city of Wuhan a potential public health emergency of international concern already in late December 2019. It might have been just in time to halt the spread of the disease which by now has become a supreme global emergency of unforeseen proportions.
Continue reading >>Chinese (Anti-)Constitutionalism
Many (Verfassungs-)blog posts on China, be it on tweets, white papers, or the Social Credit System, criticize legal institutions and realities by highlighting their difference from “Western” or constitutionalist traditions. This makes it rather easy for the explicitly anti-Western and anti-constitutionalist official Chinese system of thought, Sino-Marxism, to reject any criticism – either as Eurocentric, (legal) Orientalist, and “culturally hegemonic” or as ignorant of “theoretical basis” of the Chinese system. Knowing Sino-Marxism, which provides powerful political but only limited analytical tools, is thus crucial for transnational and global constitutionalists in order to defend their values without being accused of a lack of understanding – also in the current case of Hong Kong.
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The Battle for Jurisdiction over Hong Kong
Beijing's reaction to the Hong Kong High Court's judgment regarding the constitutionality of the face-mask ban is eerily similar of the approach taken by the German Reichskommissar against the Norwegian Supreme Court during the German occupation of Norway in 1940.
Continue reading >>The Hong Kong Judiciary and Beijing’s Temper Tantrum
On 18 November 2019, Hong Kong’s Court of First Instance held that parts of the Emergency Regulations Ordinance, and the Prohibition on Face Covering Regulation enacted pursuant to the Ordinance, violate the territory’s Basic Law – its constitutional instrument. Beijing’s response to the ruling was the equivalent of a temper tantrum. Viewed in light of the Court's judgment and Beijing’s lengthy history of undermining the Hong Kong judiciary, Beijing’s latest outbursts amount to nothing less than a declaration of war on the territory’s common law legal system.
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Be Aware or Be Next!
In which I call David Law to ask him to explain to me the situation on the ground in Hong Kong.
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Demise of “One Country, Two Systems”?
Hong Kong's existence as a liberal pocket within a socialist party state has been a risky experiment from the outset. The substance of the dispute about extradition to mainland China does not pertain to the viability of the “one country, two systems” governing model. The way in which the saga unfolded, however, reveals flaws in Hong Kong’s political system that, if unrectified, may prove fatal to the model.
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A Déjà Vu? The Social Credit System and fajia (Legalism)
While it is certainly beneficial to contrast the SCS to emerging governance mechanisms in the West or principles of civil liberties, it is equally important to connect it to traditional Chinese thoughts which may have influenced the policy-makers. In view of the tendency of associating the SCS with Confucianism, this blog post concentrates on fajia (legalism), a traditional school of political and legal thought that had shaped the mode of governance in imperial China.
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Untrustworthy: Social Credit Isn’t What You Think It Is
Posing questions about how technology can be used to shape citizens, and change what it means to be a citizen, is of critical and immediate importance, but using China as a blank slate on which we project hypotheticals causes more confusion than clarity. It can distract us from more pressing concerns regarding China, technology or both.
Continue reading >>Scoring Systems: Levels of Abstraction
One of the contested issues in this debate relates to similarities and differences between scoring systems in China and in the West – how unique is China? In this post, we will try to reconcile the different perspectives, arguing that both commonalities and differences exist, depending on the adopted level of abstraction. Thus, we shall zoom in the Chines Social Credit System (SCS), examining the features it shares with other systems and point to related issues: it is a scoring system, it is formal, it is ICT based, it is surveillance based, it is opaque and unaccountable. This enables us to distinguish commonalities and differences.
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Data Diets and Democracy: The Chinese Social Credit System From a Machine Learning Perspective
The Chinese Social Credit System trends against democracy. It is being built by a competent and motivated anti-democratic system with social control as one stated goal. The more important question though is whether the Chinese machine learning data diet will make Chinese AI stronger than Western AI, and whether the realities of machine learning will undermine Western-style capitalism and liberal democracy. As this essay argues, I think there is a real chance that both will occur.
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Is a Social Credit System Good for Women?
In a capitalist economy, the value of goods tends to be tied to their exchange value. A Social Credit System is, in principle, able to integrate a wider set of behaviours and characteristics that merit reward than the price mechanism. It could hence turn out to be better at valuing feminine-coded tasks, such as care-work. Yet, I argue, feminists should be sceptical with regards to the emancipatory potential of a Social Credit System, as such a system might turn out to merely reproduce dominant forms of valuing rather than promoting real change.
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The Social Credit System as a New Regulatory Approach: From ‘Code-Based’ to ‘Market-Based’ Regulation
To what extent does the Social Credit System comply with the fundamental principles of democratic legal systems and human rights values?
Continue reading >>Putting ‘Good Citizens’ in ‘The Good Place’?
In this contribution, I will aim to answer the question as to whether a Social Credit System will be more likely to lead a society to a ‘digital republic’ or a ‘digital dictatorship’. After analysing how the Chinese Social Credit System exhibits an enormous gap between policy-making and policy-execution, I argue that instead of a utopia or dystopia, such a system is more likely to lead us to a future of ‘digital bureaucracy’.
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The Citizen, the Tyrant, and the Tyranny of Patterns
Good citizenship cannot be captured or fixed by an algorithm, because: (1) people genuinely disagree about what good citizenship is; (2) there are limits to how any conception of good citizenship can be enforced in states that uphold the rule-of-law; and (3) even the best scheme of algorithmic citizenship would fail to achieve its objectives due to the inherent weaknesses of applying algorithms to social affairs.
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An Illusion of Western Democracies
The thesis I propose is that the reason why the Social Credit System so scandalises Westerners is not because it is contrary to ‘our’ Aristotelian and Arendtian liberal political tradition. Rather, it is precisely because it shows the illusion upon which this tradition is founded. This consists in believing that there is a void at our disposal between people as ‘free’ citizens and the political as a set of laws.
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A Perfect Storm
On 9 June 2019, Hong Kong became the focus of international attention as hundreds of thousands of demonstrators marched on Hong Kong Island to oppose the imminent enactment of a bill that would introduce a rendition arrangement, inter alia, as between Hong Kong and other parts of China (including mainland China, Taiwan and Macau). This legislative proposal has not only led to the largest protests in the history of postcolonial Hong Kong but has also brought about one of the greatest crises of governance in post-1997 Hong Kong.
Continue reading >>Seeing Like an Authoritarian State
It is analytically problematic and perhaps amoral to proceed as if the Social Credit System concept is a purely technocratic initiative that exists at some metaphysical separation from the regime that spawned it.
Continue reading >>The Docile Minds of Perfect Societies
I ardently oppose the use of surveillance mechanisms in regulating the relationship between individuals and governance structures. As a result of three interrelated dynamics, rather than creating ‘perfect’ citizens, social credit systems are more likely to create calculated and passive subjects.
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Social Reproduction and Social Credit Apparatuses
John Cheney-Lippold removes China from the analysis. Abstracting a social credit system allows him to ask more general questions: What do all social credit systems purportedly want? And most importantly: What is the 'social' in social credit?
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Treating China as a ‘Normal’ Country
This blog post suggests that it is preferable to regard China's Social Credit Systems as a specific instance of a wider phenomenon. In this respect, China may be considered as a 'normal country' experimenting with rating-based forms of governance.
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From Defensive to Assertive: China’s White Paper on Human Rights
On December 12th 2018 the State Council Information Office of the People's Republic of China (PRC) published a white paper (WP) titled ‘Progress in Human Rights over the 40 Years of Reform and Opening Up in China.’ The paper, which seems to be targeting more foreign audience than a domestic one, reflects upon the progress China has made in the field of human rights since Deng Xiaoping’s liberalization and opening up reforms that began in 1978.
Continue reading >>The Political Economy of Capital Controls and Liberalization
In the face of rising global tensions the free flow of direct investment capital across borders is in dispute. The self-evidence of free capital movements since the start of the euro can no longer be taken for granted. Concerns have emerged about the intentions of foreign investors acquiring domestic key industries.
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Access to Legal Redress in an EU Investment Screening Mechanism
The proposal for a regulation of the European Parliament and […]
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Investment Screening in the Defence Industry – News from the Bermuda Triangle of EU Law
The national investment screening mechanisms for the defence and security […]
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Rebuilding the Berlin Wall?
On 19 December 2018, the German government has passed amendments […]
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Avenues in European Company Law to Screen Foreign Direct Investment
Screening of foreign direct investments could take place through European […]
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Debate: A Common European Law on Investment Screening?
Volvo Personvagnar AB, Kuka, Aixtron, OSRAM Licht, Daimler, Saxo Bank, […]
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China’s Constitution and the People’s War on Terror
When HU Bo posted his tweet in July 2014, he […]
Continue reading >>‘The Place of the Constitution Is Empty’: Chinese Political Aesthetics of Commanding Constitutional Faith
‘The document emblazoned with the Chinese characters the Constitution of the People’s Republic of China (PRC), the constitution in its material form, was gingerly held and escorted by a military guard of honour onto the lectern at the centre of the podium of the Great Hall of the People in the First Session of China’s 13th National People’s Congress on 17 March, 2018.’ This is the snapshot of a video cap about the inauguration of the PRC’s (new/amended) constitution, which was part of the so-called core leadership’s constitutional oath-taking ceremony before the audience of the members of the National People’s Congress for the first time in the PRC history. Watching that video, I cannot help but attempt an aesthetic read of the unsubstantiated Chinese political order in the light of Claude Lefort’s famous ‘empty place’ thesis.
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“Anticipating the Third Republic of China”
Qianfan Zhang, constitutional lawyer from Peking, came to Berlin to study German federalism – a model that might help to invigorate China’s 2000-year-old centralized system.
Continue reading >>Twenty Years ‘One Country, Two Systems’ in Hong Kong: A Reason to Celebrate?
The 1st July 2017 marks the 20th anniversary of the British-Chinese handover of Hong Kong. Recent developments in Hong Kong illustrate that despite the anniversary, the current state of affairs of ‘one country, two systems’ does not give much reason to celebrate.
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Does China Enjoy Greater Legitimacy Than Any Western State?
I was listening to the radio a little while ago, […]
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