Tanner Larkin on "China’s Normfare an­­­d the Threat to Human Rights" (European Chinese Law Research Hub)

 

 

 The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a new paper by Tanner Larkin, China’s Normfare an­­­d the Threat to Human Rights, which will appear as a Note in the Columbia Law Review.

Marianne von Bloomberg explains:

The PRC has been advocating an alternative view on human rights, stressing the economic set of rights over civil and political rights. The government's active work to bring the concept to other parts of the globe is by Tanner Larkin conceptualized as 'normfare'. In his latest paper, he observes the processes behind the strategy as applied on the African continent and finds it to pose a serious threat to the international human rights system.

The essay provides a powerful example of the orthodox approach to the recent and increasingly robust challenges emerging from the People's Republic. Ina sense these are rearguard actions protective of two premises at least one of which is quickly receding into history.  The first is the assumption of convergence around the human rights project the leading forces of which were liberal democratic states, and which were grounded in the sensibilities of liberal democracy as the foundational starting point for all discussion.  That is, to be admitted to the conversation one first had to declare fidelity to the core values of liberal democracy.  The rest of the project then was a matter of elaboration and implementation. The second (and for dangerous to the project of liberal democratic and markets based human rights) was the assumption that the first assumption was not just self evident but unassailable.  So assumed, it followed that there was little need to protect or advance justification for its core premises and evolution. Since the second decade of this century both assumptions have proven to be decisively disastrous for the project of liberal democratic human rights.  It is now on the defensive.  And it must now craft elaborate and viable theories that go to the legitimacy and authority of the project--but that (more importantly) advance the claim that it is right and better described the global ideal.

All of this is important, and necessary. And it is now made inevitable by the rise of a counter narrative of human rights--one that had begged for development out of the great battles over human rights of the 1960s-70s (which the progeny of the elites of the liberal democratic states forget to their great peril). In that context, this essay suggests both the character and objectives of some of the emerging counter offensives that are critical for the continued role of liberal democratic human rights nomos as the vanguard force for the development of that project. It also suggests the strategic nature of that counter offensive.  It will be years before one can with greater certainty begin to determine the result.  At a minimum, global society again fractures human rights (opening a space for additional variations of rights still hidden at the margins--theocratic, identity based, etc.).  Most importantly it foregrounds an essential element of these debates--the justification for the moral superiority of the premises advanced.  For the perspective that may be gleaned from the other side, see Essays on Contemporary China–Heartland, Periphery, and Silk Roads, in Bulletin of the Coalition for Peace & Ethics, Volume 16 No. 1 (Spring/Summer 2021)). 

The greatest virtue of the essay is its quite important discussion of the tactics toward normative revolution that is being developed by the Chinese vision that its proponents believe is on the ascendant.  That discussion is rich.  At the same time it suggests the tactics and strategies that one might eventually see transposed to and used by the liberal democratic camp as both defensive and of proactive measures to protect and propagate its own vision. And indeed, the author makes a convincing case for the adaptation of normfare as a core tactic of those who value the liberal democratic human rights project.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

 

 

China’s Normfare an­­­d the Threat to Human Rights

A new paper by Tanner Larkin

^{“President Cyril Ramaphosa at 2018 Forum on China-Africa Cooperation” by GovernmentZA is licensed under CC BY-ND 2.0}

International human rights law is often associated with the progressive expansion of justice and freedom. But today that link cannot 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. To that end, the PRC is undertaking efforts at the regional, national, and sub-national levels to socialize other actors into its preferred human rights norms through visits and exchanges, academic conferences, multilateral fora, and other means.

The PRC has long possessed a distinctive human rights vision. It recognizes the validity of human rights as a concept, but stresses an absolutist view of sovereignty according to which states are entitled to choose their human rights practices without interference; stability and development are pre-conditions for promoting human rights; and human rights are centered on the state rather than the individual. This doctrine is thus highly conducive to authoritarian rule. That the PRC 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 promoting its vision across the globe and in treating its conception of human rights as an alternative human rights framework, superior to the liberal status quo. This shift is powered by China’s dual aims of augmenting its soft power (and thus geopolitical influence) and neutralizing the perceived threat of liberal human rights norms to the survival of the Chinese Communist Party regime.  

China’s international human rights strategy can be thought of as “normfare,” a neologism that refers to the strategic promotion of favored interpretations of international norms. Its normfare in the human rights field is illuminated by applying Harold Koh’s transnational legal process model for how international norms develop and take root. Per Koh’s model, this occurs in three stages. First, the norm entrepreneur provokes an interaction or series of interactions with other actors. Second, the interaction forces an interpretation or enunciation of a relevant international norm. Third, the transnational actor potentially succeeds in causing the other parties to internalize the new interpretation of the norm into its own internal normative system. Successfully internalized norms may ultimately determine state behavior.

China’s human rights engagement with Africa demonstrates at least a de facto strategy of normfare to diffuse favored norms in a manner that maps onto Koh’s transnational legal process model. In the interaction phase, the PRC creates opportunities for transnational actors to engage with Chinese counterparts and learn about the PRC’s human rights vision, including through new fora such as the Forum on China-Africa Cooperation and the South-South Human Rights Forum, as well as by visits and exchanges involving African political parties, experts, lawyers, and other actors.

These interactions lead to the interpretation of norms in a manner favored by China, thus legitimizing and building consensus for China’s norms. These processes of interaction and interpretation are fueling internalization. This involves (1) social internalization, suggested by the embrace of PRC-style human rights norms by some prominent African academics; (2) political internalization, indicated by the rhetoric of certain African leaders; and (3) legal internalization, evidenced by African states such as Tanzania, Nigeria, and Zimbabwe adopting PRC-style internet-regulation statutes.

The PRC’s human rights normfare may contribute to the construction of an alternative, authoritarian international law and the furtherance of an illiberal, China-dominated global order. To avoid these outcomes, actors—above all, the United States—should push back to blunt the effects of the PRC’s normfare and rebuild a more resilient liberal human rights regime, including by implementing counter-normfare.

China’s human rights normfare poses a grave threat to the international human rights system. By fashioning an illiberal, authoritarian “human rights” doctrine, the PRC debases the coinage of human rights, supplying a currency that will prop up authoritarian regimes and undermine 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.

Tanner Larkin’s paper is forthcoming with the Columbia Law Review and a draft is available here. Tanner Larkin is a second-year J.D. student at Columbia Law School, where he is a Hamilton Fellow and a James Kent Scholar. He is also a Senior Editor of the Columbia Law Review and a board member of the Columbia Society for International Law. Tanner graduated summa cum laude and Phi Beta Kappa from Georgetown University’s School of Foreign Service in 2019. He can be reached at larkin.tanner@columbia.edu or through LinkedIn.