CHINA’S NORMFARE AND THE THREAT TO HUMAN RIGHTS

International human rights law is often associated with the progressive expansion of justice and freedom. But that link cannot be taken for granted. The People’s Republic of China (PRC) is attempting to transform human rights into an instrument of twenty-first century global authoritarianism. This Note seeks to fill a significant lacuna in the literature by focusing on China’s efforts at the regional, national, and subnational levels to socialize other actors into its preferred norms through visits and exchanges, academic conferences, multilateral fora, and other means.

To describe the PRC’s international human rights strategy, this Note coins the neologism “normfare,” which refers to the strategic promotion of favored interpretations of international norms. Applying Harold Hongju Koh’s transnational legal process model of interaction, interpretation, and internalization, this Note illustrates how China is promoting a distinctive, authoritarian vision of human rights. As a case study, this Note examines China’s attempts to socialize actors on the African continent. The PRC organizes interactions, such as academic conferences, which articulate interpretations of human rights norms consistent with its own. As a result, PRC-backed norms are being internalized by at least some African academics, politicians, and legal systems. Chinese 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, this Note argues that actors—above all, the United States—should push back to blunt the effects of the PRC’s normfare and build a more resilient liberal human rights regime, including by implementing counter-normfare.

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* J.D. Candidate 2023, Columbia Law School. With thanks to Professor Benjamin L. Liebman and Columbia Law Review Notes Editor Alexandra Nickerson for their invaluable guidance. Thanks also to Adam Chan and Jacob Galant for their feedback, and to the par¬ticipants of the 2022 Salzburg Cutler Fellows Program workshop and the Columbia Law School Human Rights Student Paper Symposium.

Introduction

International human rights law is often associated with the progressive expansion of justice and freedom. But that link cannot be taken for granted. As illustrated by the United States’ role in establishing a new international legal order after the Second World War, 1 See Robert Kagan, The World America Made 16–17 (2012) (observing that after World War II, the United States laid the foundation for the liberal “political, economic, and strategic order”). with geopolitical preeminence comes influence over the norms, values, and institutions of the global order, including the international human rights regime. Today, as the People’s Republic of China (PRC) seeks to claim a central role on the world stage, it is repurposing human rights into a foundation for twenty-first-century global authoritarianism.

Although existing scholarship has ably explored certain aspects of China’s influence on human rights, this Note seeks to supplement that research by filling two significant lacunae in the literature. First, several scholars have examined China’s aggressive promotion of norms in the context of the Belt and Road Initiative 2 Mikkaela Salamatin, Note, China’s Belt and Road Initiative Is Reshaping Human Rights Norms, 53 Vand. J. Transnat’l L. 1427, 1432–33 (2020) (discussing how the Belt and Road Initiative may reshape human rights norms). and the United Nations (UN). 3 E.g., Ted Piccone, Brookings Inst., China’s Long Game on Human Rights at the United Nations 1 (2018), https://‌www.brookings.edu/‌wp-content/‌uploads/‌2018/‌09/‌FP_20181009_china_human_rights.pdf [https://‌perma.cc/‌SS44-H8V7] (describing China’s actions at the UN); Björn Ahl, The Rise of China and International Human Rights Law, 37 Hum. Rts. Q. 637, 640 (2015) (analyzing the Universal Periodic Review of the UN HRC); Yu-Jie Chen, China’s Challenge to the International Human Rights Regime, 51 N.Y.U. J. Int’l L. & Pol. 1179, 1182 (2019) [hereinafter Chen, China’s Challenge] (studying “the evolving practice of China in the HRC”); Katrin Kinzelbach, Will China’s Rise Lead to a New Normative Order? An Analysis of China’s Statements on Human Rights at the United Nations (2000–2010), 30 Neth. Q. Hum. Rts. 299, 301 (2012) (analyzing China’s statements in UN human rights debates from 2000 to 2010); Yongjin Zhang & Barry Buzan, China and the Global Reach of Human Rights, 241 China Q. 169, 180–84 (2020) (analyzing China’s activism in reinterpreting human rights at the HRC and elsewhere in the UN system); Larry Catá Backer, ‘By Dred Things I Am Compelled’: China and the Challenge to International Human Rights Law and Policy 7–13 (Penn State L., Legal Stud. Research Paper No. 06-2020, 2020), https://‌ssrn.com/‌abstract=3519645 [https://‌perma.cc/‌EAZ9-FPUF] (discussing China’s actions in the UN HRC). But this Note focuses on China’s efforts at the regional, national, and subnational levels. Doing so enables one to look beyond the narrow confines of specific programs and the marbled halls of the UN to see a fuller view of China’s multifaceted strategy of norm diffusion. Second, existing scholarship has focused on China’s articulation of its norms without analyzing its methods for getting foreign actors to actually adopt those norms. 4 E.g., Chen, China’s Challenge, supra note 3, at 1182. Considering China’s discourse alone is useful for understanding how the PRC views human rights but leaves open the question of whether those norms will achieve wider acceptance. Accordingly, this Note considers not just China’s rhetoric but also its concrete attempts to socialize other actors to its norms. This helps illuminate the scope of China’s efforts and the prospect of it realizing an alternative global vision of human rights.

Part I discusses the background issues, including the role of norms in the international human rights regime and China’s external and internal political aims. Part I also introduces Harold Hongju Koh’s transnational legal process model, which can frame China’s human rights strategy. Part II explains China’s distinctive, authoritarian vision of human rights and then maps its methods for exporting certain norms and thus reshaping international human rights law. While the PRC’s vision of human rights is not new, what is new is its revisionist posture in promoting its doctrine as an alternative human rights framework for the world. To describe China’s international human rights strategy, this Note coins the neologism “normfare,” which refers to the strategic promotion of favored interpretations of international norms. As a case study, this Note examines China’s human rights-related engagement with Africa. Finally, Part III discusses the consequences of China’s normfare, which threatens to splinter the international human rights regime and contribute to a China-dominated, illiberal world order. Part III also argues that other actors, particularly the United States, should push back, including by implementing their own normfare to reaffirm liberal human rights norms.