One of the last panels I attended of the 2019 Annual Meeting of the American Society of International Law (ASIL) (Conference Theme: International Law as an Instrument), entitled Asia's Response to the US Indo-Pacific Strategy was organized by the Pacific Rim Region Interest Group. As is customary the focus of the panel was the reaction-response to the recently announced US "Free and Open Indo-Pacific" strategy advanced by the Trump administration since 2018. The panel's Concept Note explained:
In 2018, the Trump Administration declared the "Free and Open Indo-Pacific" strategy as the new U.S. policy on Asia. The new Indo-Pacific strategy is expected to have far-reaching implications for U.S.-Asia relations. This roundtable will explore some of those issues, in particular, the impact of mega-free trade agreements and South China Sea disputes on international trade. Participants will discuss the extent to which international law facilitates or hinders US trade goals; the legal and political responses to U.S. policy available to nations in the Asia-Pacific Region; how recent diplomatic developments in China and the Association of Southeast Asian Nations (ASEAN) might serve as a counter-balance towards perceived U.S. unilateralism; and whether alternative strategies, such as the CPTPP, the RCEP and the Belt and Road Initiative, might shape international law and commercial transactions.
The focus of this post is on the marvelous presentation of one of the panelists, Matthew Erie, an Associate Professor of Modern Chinese Studies and Associate Research
Fellow of the Socio-Legal Studies Centre at the University of Oxford. Professor Erie spoke to the Chinese Belt and Road Initiative. After bringing his audience up to date on developments in BRI and then offered a quite useful six point structure for approaching BRI study. It is to those points that this post turns below--plus one of my own.
(Source World Bank Group)
It has only been in the last several years that the Chinese Belt and Road Initiative (previously known as the One Belt One Road Strategy) came into sharp focus for Western elites. As has been the practice of those elites (in government as well as its intelligentsia) the original announcement by Xi Jinping in 2013 was dismissed or diminished as either sloganeering, grandstanding or as ideologically motivated daydreaming. Yet it has become real enough, and one deeply interlinked with a number fo other Chinese initiatives to expand its footprint in the global economic order, as well as to develop a means of asserting leadership in the shaping of the ideology of trade and economic interactions among states. (e.g. Reflections on Shen Wei: "One Belt One Road Initiative and Beyond in the Context of (Anti-) Globalization").
What Professor Erie offers us is a quite useful framework for thinking through issues around the BRI as it continues to develop. These he divides into six distinct points:
1. BRI is not one thing.
Professor Erie noted the many parts of BRI, as well as its many faces. The differences between the "belt" portion of the BRI initiative and its "road" element is important, and now underlined in the way in which the BRI courts have been established (seem, e.g., here, and here). Equally important are the differences in the ways in which these belts and road smay be constructed within the context of the needs and practices of the specific parties. The Europeans, for example, believe that they might be best suited for the exportation of their view of human rights and rule of law--the connectivity principle tends to highlight that --and in a way that replicated EU approaches to dealings with other Marxist Leninist states, principally Cuba (on which I have written here:The EU to the Rescue of the Cuban Economy? the Political Dialogue and Cooperation Agreement (PDCA)). Likewise the differences between the construction of BRI for distinct portions of South East Asia (Myanmar-Cambodia-Thailand versus Philippines-Indonesia).
2. BRI is fundamentally bi-lateral.
BRI is a creature of BITs--one which, ironically appears to have generated imitation (as a form of flattery, or potential effectiveness?) in the construction of the America First policy. This is not the sort of multilateralism so near and dear to Western elites (and the states they might have been better at influencing before 2017). And, indeed, BRI can be quite useful as a platform for understanding the evolution of the structures of globalization post Washington Consensus Models. But it also suggests points of challenge for those putting this initiative together, and thereafter, managing it. Surely there is an ideology that is meant to hold this together (and thus my modest contribution as point 7 below). And yet here is a system that is neither anarchic, nor designed in the traditional manner. This framing point also suggests the underlying premise of Professor Srie's organizing principles, the tension inherent in the model between fragmentation and harmonization, one that becomes clearer in the next set of organizing points .
3. BRI exists within a host of parallel institutions.
BRI cannot be studied or understood as existing in some sort of glorious isolation. Chinese approaches to governance makes such a possibility implausible (and I am being kind here). In many ways, BRI reflects the patterns of organization of both the Chinese state apparatus, and its Party structures. Much can be learned by considering these organizations for political culture clues about the way that BRI necessarily might be conceived and the limits of imagination for responses to challenges as they come up. Most are well aware of the relationship between the Asia Infrastructure Investment Bank (AIIB) and BRI. But links to Chinese Sovereign wealth Funds (and the overseas investment banks they control), for example, have yet to be explored.
4. BRI is as much about the rule of soft law instruments as it is a creature of public international law.
Professor Erie rightly emphasized the centrality of multiple governance modalities int he construction of BRI. Critical among them, he suggested, were Memoranda of Understanding (MOUs). Its central importance in the expansion of BRI to Old World G7 states is immense. And indeed, just as the ASIL Conference was starting the much anticipated announcement of Italy's participation in BRI was made (March 24, 2019), memorialized through an MOU ("China and Italy signed here Saturday a memorandum of understanding (MoU) to jointly advance the construction of the Belt and Road during Chinese President Xi Jinping's state visit to the country." here). I leave the irony of these MOUs both to others for the moment, and to a reflection of the value of Professor Erie's points 1 and 2, but even more so that quite distinct possibility that the two sides are speaking past each other, using the same words to mean quite different things (e.g., "The two sides reiterated their commitment to promote multilateralism and maintain the international system with the United Nations at its core." here).
5. BRI serves as a framework for extending legal harmonization based on its core premises.
Professor Erie pointed to the enforcement of judgments as an important example of this point, though not its only one. Soft mechanisms are also potent instruments. China has become quite adept at hosting any number of organizations and meetings through which a binding framework, and the socialization of the members of those initiatives, might be undertaken effectively. In this context both the World Enforcement Conference, and the annual BRI Forums (2017 communiqué here) are quite important. .
6. BRI also serves as a site within which diversity within unity may be practiced.
This is the flip side of legal harmonization, but also intimately connected to that harmonization,. One cannot understand BRI without embracing simultaneously its tendencies toward harmonization and fragmentation. Professor Erie provided examples: the diversification of dispute resolution fora and institutions (centering on those of Hong Kong, Singapore and perhaps Kuala Lumpur), the creation of two BRI courts, and the development of lively markets for dispute resolution around BRI issues.
Professor Erie concluded with the insight that though BRI is now a complex organism with many moving parts, the heart of the enterprise, and the core of its development, is still centered in the Asia Pacific region. It is likely that innovations will be rolled out here before they are generalized for the system--with the usual contextual variations, and modifications for the belt versus road, versus (eventually) space paths all of which eventually will lead to (and maybe through) Beijing. It is there that the core fashioning of the relationship between unity and fragmentation may be worked out.
To these six framing points I have been tempted to add a seventh:
7. BRI is driven as much by ideological principles as they might be by economic or political calculation.
To understand BRI one must first understand the evolving ideology of Chinese Marxist Leninism, and the way in which those evolving principles are then operationalized as policy through the guidelines and policies developed within the Chinese Communist Party for implementation by the state apparatus. BRI is a deeply ideological project. It is tied deeply to changing conceptions of the fundamental contradiction facing Chinese society (after the 19th CPC Congress); it is tied even more deeply to the changing trajectories of the fundamental "reform and opening up" principles developed during the leadership of Deng Xiaoping and now significantly developed further through the ideological work of the CPC under the guidance of Xi Jinping as the Party "core." To think about BRI in Western terms is to miss critical elements of the Initiative and more importantly, to fail to understand the nature of its character and its sense of itself today and going forward.
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