‘So democracy and freedom of speech are inseparable. We shall take those democracies in advanced countries as our example.’
— Xinhua DailyFootnote 1
‘Humanity and democracy were two principles essentially irrelevant to the original Westphalian order.’
— Dr Javier SolanaFootnote 2
‘You are my creator, but I am your master–Obey!’
— Mary ShelleyFootnote 3
I. Introduction
The first excerpt above endorsing freedom of expression in the Western style comes from Xinhua Daily, the principal news organ of the Chinese Communist Party (CCP), prior to the founding of the People’s Republic of China (PRC). Over 60 years later, reports about rampant suppression of freedom of expression in China never subside.Footnote 4 Recently, several major propaganda media of the CCP have continued to publish official opinions, arguing that constitutionalism, which encompasses freedom of the press, reflects a capitalist element, aims at the downfall of the CCP and cannot be shared by a socialist country like China.Footnote 5 It is also widely reported that the CCP has issued a ‘No 9 Document’ that listed ‘seven perils’ to its one-party rule including ‘western-style constitutionalism’, ‘universal values’ and ‘freedom of the press’.Footnote 6 The CCP’s recent policies on freedom of expression makes the conflicts between China’s censorship regime and ‘universal values’ endorsed by global constitutionalism ever more conspicuous. Although the international community has long since started its conversation with China on freedom of expression, for a time China viewed any criticism on its domestic situations as confrontational and hostile.Footnote 7 In the past decade, however, the contours of such conflicts have become more visible in cases where China’s censorship regime comes into systematic and regular contact with international law. Two scenarios illustrate this.
Starting in 2009, the working group of the Universal Periodic Review (UPR) of the United Nations Human Rights Council (UNHRC) conduct regular reviews of China’s human rights records every four years.Footnote 8 As of late 2013 two UPRs of China have been completed, and there have been increasingly critical recommendations that admonish China of the need to improve freedom of expression.Footnote 9 However, the Chinese delegation simply disavowed the existence of censorship, as the 2009 working group reported:
On freedom of speech and expression, the delegation noted that China’s laws provide complete guarantees. The Government encourages the media to play a watchdog role and there is no censorship in the country.Footnote 10
The delegation went on to assert that speeches such as those amounting to ‘subversion of government’ would jeopardize the public order, and that, as a question of state sovereignty, states may impose restraints upon speeches, in full conformity with the International Covenant on Civil and Political Rights (ICCPR).Footnote 11 In the 2013 UPR, the Chinese delegation remarked that ‘[C]itizens fully enjoy the freedom of speech’, but that ‘[I]t is the obligation of all governments to crack down cybercrimes of all types’.Footnote 12
Further, as a Member of the World Trade Organization (WTO), China has been frequently engaged in the WTO dispute-settlement proceedings.Footnote 13 In 2009, a WTO Panel issued its ruling on the intellectual property (IP) dispute between China and the United States (US).Footnote 14 One of the allegations the US levelled against China was that Chinese copyright law did not cover enough types of works owing to its strict censorship system. The Panel finally decided in favour of the US regarding this allegation.Footnote 15 Several months later, another WTO Panel found that China’s censorship measures prevented China from equally granting the trading rights regarding certain cultural products to business entities as it promised.Footnote 16 A WTO Appellate Body confirmed this finding subsequently.Footnote 17
The scrutinization of China’s censorship regime at the UNHRC and the WTO shows that China’s censorship is no longer an entirely self-contained regime without any interaction with international law. In conducting censorship, China is fully aware of the need to address the prevailing universal values that endorse freedom of expression. However, China has often waged a self-contradictory policy relating to freedom of expression, as exemplified by the above two international cases. Such a policy envisages the extent of the ‘fragmentation of international law’: the international legal order is composed of different subsystems that focus on different values and seem to be independent of each other.Footnote 18 International law is thus seen as ‘fragmented’ and might allow for China’s self-contradictory practice to go on in different international arenas. Indeed, the WTO Panels and the Appellate Body did not refer to the human rights obligations of WTO members, but remained silent on China’s proposition that the Panel lacked jurisdiction to review its sovereign discretion to conduct censorship. In fact, despite its commitments to the universal values of human rights, China has continued to restrict political speeches in the Internet age, even though the widespread use of the Internet may encourage optimism about more freedom of speech in China.Footnote 19 In this connection, a question apparently persists: how does a fragmented international legal order define itself when faced with China’s censorship regime?
According to Petersmann, WTO law is a leading international legal source that envisions a more dynamic global constitutional order,Footnote 20 facilitating the transformation of such an order based on international law from ‘micro-constitutionalism’ into ‘macro-constitutionalism’.Footnote 21 In this constitutionalist view, protection of human rights becomes a kind of public good that stands at the heart of the entire structure of international law.Footnote 22 Basically, I share this constitutionalist mindset. WTO law is such a prominent source that might touch upon China’s human rights policies.Footnote 23 But WTO law is not the only source. Rather, the fragmented international legal order, composed of diverse sources of norms and institutions, provides the constituent parts of a system of ‘global governance’. Such global governance is characterized by concentration of power, a pluralistic administrative structure and geographical asymmetries.Footnote 24 This paradigm of global governance highlights not only the inconsistency between different subsystems of the fragmented international order, but, more fundamentally, the perplexing relationship between this fragmented international order and state sovereignty, as evidenced by China’s censorship regime in the aforementioned scenarios.
Whereas most scholarship on China’s censorship regime so far focuses on China’s domestic contingencies, this article represents an effort to address China’s censorship regime under global governance. As such, it aims to complement and enrich the former scholarship. I propose that a rejuvenated mentality of global constitutionalism, when tied to the seemingly fragmented international law, might contribute to reducing the severity of China’s censorship regime and eventually changing it. It is the result of the ‘butterfly effect’ which begins with China’s voluntary step into the international legal order and ends by subjecting its censorship regime to the fragmented but interconnected patchwork of international law: just as an innocuous event such as a butterfly flapping its wings can cause a storm on the other side of the world, so too could China’s frequent conversations with different subsystems of international law such as the WTO law render the international human rights law (IHRL) on freedom of expression pertinent, and ultimately have enormous ramifications for a regime as remote and intransigent as China’s censorship.
Taking the two UPRs and the two WTO disputes as vivid examples of such global governance, I focus on how global constitutionalism might help facilitate the effect which international laws prescribing freedom of expression potentially can have on China’s unprecedented censorship regime. This effect will be achieved through the interaction between China’s censorship regime and different subsystems such as WTO law. In fact, while no constitutional authority in global governance can substantially alter China’s uncompromising adherence to its censorship regime, fragmented international law does provide an opportunity to recalibrate this predicament. Whereas China has leaned on the move ‘from territoriality to functionality’,Footnote 25 a move in the reverse direction could eventually reinstate the constitutional dynamics of the international legal order: the evolving normativity of the constitutional status of freedom of expression trumps the fragmenting effects through the functional interrelatedness and triggers a development in the direction of the political accountability of state sovereignty. Essentially, regular and systematic exposure of the censorship regime to the conceptually fragmented patchwork of the international legal order could have a ‘butterfly effect’ on the domestic contours of China’s censorship: the whole patchwork pierces the veil of China’s ingrained mentality of ‘maintaining the security’ of state sovereignty that is used to legitimize the hegemonic rule of the CCP.
Accordingly, I attempt, in the following steps, to advance a premise about the repercussions of the global constitutional order on the censorship regime that overshadows freedom of expression in China. First, I explore China’s regulatory framework of censorship that aims to consolidate the CCP’s monopoly power with an absolutist doctrine of sovereignty. It is, however, no longer a self-contained regime, but subject to institutional externalities and nuanced enforcement approaches that may have an impact on China’s foreign policies. Then I analyse, through the examples of the UPRs of China and the WTO disputes, how China’s censorship regime is exposed to a patchwork of pluralistic global governance. Finally, I propose that the normative-functional-political chain of the fragmented international legal order may ultimately neutralize China’s sovereignty-centred censorship regime.
II. The censorship regime under Chinese law and its potential link with China’s sovereignty-centred foreign policies
China boasts of an unprecedented censorship regime. Be they explicit, tacit or hidden, censorship rules constitute influential regulatory sources in daily life.Footnote 26 Essentially, China’s censorship serves an authoritarian system ruled by one party, while the government often redefines freedom of expression in terms of the prevailing ideology of the CCP under the aegis of an absolutist doctrine of state sovereignty and traditional Chinese values.Footnote 27 Nonetheless, China’s current censorship regime dwells on a highly developed body of laws and regulations. In the past decades China has made stunning progress in modernizing its legal system: China has explicitly undertaken to build a ‘state of rule of law’ under the influence of IHRL,Footnote 28 while respect and protection for human rights have been written into China’s constitution.Footnote 29 Moreover, called on by the UN,Footnote 30 China has been releasing on a regular basis the National Human Rights Action Plans (NHRAP).Footnote 31 In practice, it is becoming increasingly difficult, costly and even self-contradictory to run the censorship regime while maintaining these commitments to universal values embraced by IHRL. If China’s censorship regime used to be a self-contained domestic regime, it now has the potential of influencing China’s foreign policies.
The eviscerated constitutional framework of freedom of expression
Freedom of expression is enshrined in the Constitution of the PRC.Footnote 32 However, the constitutional framework of fundamental rights is vulnerable to both legislative and judicative externalities and is eviscerated by an absolutist doctrine of sovereignty that underpins the CCP’s monopoly of state power. Above all, the Constitution emphasizes the supremacy of sovereignty over civil rights. Entire bundles of civil liberties are subjugated to provisions that prevail where exercise of these rights is likely to jeopardize ‘the interests of the state’, or in case anyone fails to ‘safeguard the unity of the country’, ‘observe public order’ or proves a menace to ‘the security, honor and interests of the motherland’.Footnote 33 In addition, the panoply of the constitutional provisions is reined in by a flagrantly long and hortatory preambular text, which embraces the ‘Four Cardinal Principles’,Footnote 34 as well as a pot-pourri of political ideologies put forward by generations of charismatic Party leaders. Various rhetorical devices aim to ‘harmonize’ the whole nation with an ideology conducive to monolithic rule by the CCP.Footnote 35
Meanwhile, the unreliable judicatory system projects a hazy prospect of constitutional protection of the fundamental rights in judicial practice. The Supreme People’s Court (SPC) mandated,Footnote 36 first implicitly but later categorically, that constitutional rights could not be invoked in criminal or civil trials.Footnote 37 These rules were amended by recent legal practice in tandem with the radical economic reforms.Footnote 38 However, judgments on cases with any tint of political gravity are predetermined.Footnote 39 In fact, the SPC’s impulse to interpret certain provisions in terms of the Chinese Constitution has been confined merely to cases involving economic and social rights.
These factors would serve the constitutional guarantee on freedom of expression at best as a ‘window-dressing’.Footnote 40 In a vacuum of constitutional protection, administrative organs are endowed with legislative functions to formulate censorship regulations, decisions or orders.Footnote 41 While the Westphalian doctrine of state sovereignty conjures up in the Chinese mind an unbearable memory of humiliating diplomacy,Footnote 42 it now underpins China’s one-party rule. Literally, an absolutist doctrine of sovereignty has been commonly venerated in all regulations regarding publications and other media.Footnote 43 Any expressive act will be banned if it contains either contents that militate against ‘the fundamental principles established in the Constitution’ or that may ‘jeopardize the unification, sovereignty and territorial integrity of the state, or divulge state secrets, jeopardize security of the state, or impair the prestige and interests of the state’.Footnote 44
A decentralized institutional framework of censorship
While no statutory law in China explicitly provides for a specific department or official to carry out the duty of censorship, there is a stringent hierarchy of institutional framework exercising the authority of censorship. Perched at the top of the pyramid, the Publicity Department of the Central Committee of the CCP (CPD) keeps a vigilant eye directly on the entire public.Footnote 45 The CPD and its subordinate departments can ultimately determine the substantive content of censorship and instruct relevant state organs to carry out censorship.Footnote 46 In fact, the CPD does not conduct censorship itself, but summons government and non-government organs to accept its ‘brainwashing’ preachings regularly and follow its guidelines strictly. Consequently, in most cases, the guidelines and orders are not directly enforced by Party functionaries from the publicity departments,Footnote 47 but through various state organs, especially those at lower levels, that are directly in charge of public media and private channels of expression.Footnote 48 In that connection, the institutional framework of censorship is being decentralized, which makes it possible for actors with different intents to carry out censorship in different ways.Footnote 49
The central state organs that exercise censorship are the General Administration of Press and Publication (GAPP), the State Administration of Radio Film and Television (SARFT) and the State Council Information Office (SCIO). The GAPP is the highest government authority for deciding whether to approve the establishment of any publishing entity and any piece of journalism on the basis of prerequisites that guarantee the government’s control over the press.Footnote 50 While the SARFT assumes similar functions in administering traditional media facilities,Footnote 51 the SCIO presides over the administration of online news service entities.Footnote 52 Subordinate departments of these central organs exist at all government levels, each of which is empowered to issue and interpret their own censorship regulations.
Furthermore, various government departments cumulatively oversee and enforce censorship. For instance, while the departments responsible for the information industry provide basic technical licenses for Internet facilities,Footnote 53 the municipal departments of cultural administration decide on whether to approve the establishment of business sites for Internet access services as well as all other cultural entities.Footnote 54 However, it is the public security departments that play the key role in online content regulation.Footnote 55 Such a convoluted supervising network renders it difficult to interpret and enforce censorship in a coherent manner.
If foreign entities intend to be engaged in the cultural industry in China, they must be subject to censorship by different government institutions. While the Ministry of Foreign Affairs generally oversees the establishment and the activities of foreign news facilities,Footnote 56 establishment of any Internet news entities with foreign country involvement must be submitted to the SCIO for security assessment.Footnote 57 When it comes to China’s major newspapers and periodicals such as those issued by the CCP, prior examination and approval by the State Council and the CPD are required.Footnote 58 Besides, foreign news entities are not allowed to set up wholly owned media facilities, but may invest in joint ventures subject to certain conditions on shareholdings, and set up offices licensed by the SARFT.Footnote 59 Such an institutional framework may decentralize the institutional framework of censorship further by allowing different censors to intervene at different stages.
A multidimensional process of enforcing censorship norms
As the normative contents of such censorship regulations are invariably vague, it is often up to individual censors to decide what kind of materials should be filtered on a case-by-case basis. Facing constant bottom-up struggle for freedom of expression at different levels, different censors must apply a nuanced control. Therefore, enforcing censorship norms becomes a multidimensional and dynamic process.
Controlling freedom of speech
While a multitude of censorship regulations have been formulated to ensure censorship on the Internet,Footnote 60 China’s censorship has a dualistic structure in controlling freedom of speech by individuals,Footnote 61 which consists of both government censorship and self-censorship. Essentially, different government departments have built up a cumulative network of Internet censorship. For example, departments of industry and information technology supervise Internet services mainly on a technical basis,Footnote 62 whereas departments of state and public security may adopt a wide range of administrative measures to conduct direct content review.Footnote 63 Moreover, state organs also require Internet service providers (ISP) to help conduct censorship.Footnote 64 In censoring private emails, for instance, ISPs are often obliged to reveal necessary information about email users.Footnote 65 Thus, it is a common practice to require ISPs to conduct self-censorship: even Internet cafes are requested to register the information about its user.Footnote 66
Self-censorship at lower levels is, however, a formidable task, though the Chinese government has invested heavily on diverse Internet censorship programmes. Apart from the ‘Great Firewall’ that aims at blocking ‘hazardous websites’,Footnote 67 the infrastructure of ISPs is technically manipulated to filter or block politically ‘sensitive’ keywords.Footnote 68 Further, ISPs of the Bulletin Board System (BBS), blogs or forums are required at any time to preview, correct, warn against or delete any comment that could be deemed deleterious.Footnote 69 Indeed, automatic blocking or filtering measures are often inefficient for clever netizens who use different Chinese characters to express the same idea so that manual work becomes necessary.Footnote 70 To fulfil the censoring task, a large number of Internet agents are hired to police individual Internet activities around the clock.Footnote 71 Nevertheless, even such an extensive programme has a limit, for the widespread use of digital technology makes it practically impossible to cut off every user from global information flow completely. A recent study led by King finds that China’s contemporary censorship programme in social media websites aims to reduce the chance of collective action that might amount to protests, rather than to suppress criticism of the CCP and its government in individual cases.Footnote 72 Generally, exercising freedom of speech in private circles is more tolerable than doing so in the public.
Controlling freedom of the media
Freedom of the media is an extension of freedom of speech,Footnote 73 but it is also more likely to jeopardize the monopoly power of the CCP through the collective influence of the public media. Thus, the government imposes a more stringent dualistic censorship regime on the public media.Footnote 74 Relevant state organs remain alert within the whole censorship system. Once every year publishing entities are required to submit the plans of publications relating to national security or social stability for prior examination and approval.Footnote 75 Less frequent censorship gives some breathing room for a few publications, but the authors and editors have to bear responsibilities when retroactive censorship is conducted.Footnote 76 Films that have already undergone the prior censorship by relevant media must be submitted to the SARFT for further censorship,Footnote 77 whereupon the SARFT may decide to ‘kill’ a film or to allow it to survive.Footnote 78 The government also regularly tightens control in the domain of Internet news coverage. The SCIO and provincial authorities supervise news information and order them to be deleted,Footnote 79 where the reporting of important events must be preordained in accordance with the Party guidelines.Footnote 80 In addition, all press entities and their editors have the ‘editors’ responsibility’ for conducting ‘self-censorship’.Footnote 81 Film companies, radio and TV stations undertake self-censorship.Footnote 82 Internet news service entities must censor the content of the news and the information they transmit.Footnote 83
Concerning China’s foreign media policies, the dualistic censorship regime is applicable as well. While foreign publications are subject to prior censorship by provincial authorities, the GAPP can directly prohibit the import of any foreign publications.Footnote 84 Likewise, the SARFT is authorized to censor any foreign film, radio or TV programme directly.Footnote 85 Foreign news agencies that release news in China must also look to sovereignty-centred requirements,Footnote 86 for Xinhua News Agency is empowered to identify ‘illegal’ materials and delete them.Footnote 87
Controlling the right to protest
The right to protest is a furtherance of freedom of speech to the extent that it allows expressive acts in the public and challenges the CCP’s utmost concern with potential collective actions that might threaten its rule. The number of collective incidents that occur within a municipal region has even become an important criterion for evaluating the promotion or demotion of government offcials.Footnote 88 Most recently, China’s highest judicial authorities issued an interpretation that criminalizes certain expressive acts in the Internet. Expressive acts would be considered to seriously jeopardize ‘social order and state interests’ if they give rise to collective incidents, public disorder, or damage to the state’s image or state interests.Footnote 89 The interpretation also describes ‘international influences’ as one of such ‘state interests’,Footnote 90 which suggests that China’s censorship has an impact on its foreign policies in which the government must take the international influence of expressive acts into account.
In addition to this, a number of traditional channels for expressing opinions that might potentially give rise to collective actions continue to be blocked. Not only do human rights defenders face insurmountable obstacles in articulating their views,Footnote 91 but lawyers are often forced to practise in a prescribed and selective manner.Footnote 92 Assemblies, processions and demonstrations require prior applications that must be submitted to the competent authorities of public security for permission in terms of sovereignty-centred considerations.Footnote 93 Even complaint letters and visits of individuals or specific social groups, which aim at giving information, making comments or suggestions, or lodging complaints to the government, may allegedly threaten the ‘state interests’ and result in liabilities or penalties.Footnote 94
III. China’s censorship regime enters into the patchwork of pluralistic global governance
In 1979 China signed two bilateral investment treaties with the US.Footnote 95 Since then China has entered into international treaties more regularly and systematically.Footnote 96 China’s accession to international human rights treaties dated back to the early 1980s, but more meaningful contacts that would highlight the asymmetries between China’s censorship policies and different branches of international law were yet to come. Unless such contacts take place in a specific, regular and systematic way, such asymmetries could be submersed in norm parallelism and regime pluralism. Milestone events for such a change came, for example, when China signed the ICCPR in 1998 (without ratification), became a Member of the WTO in 2001 or a Member of the UNHRC in 2009.
China’s censorship regime makes a strategic move from ‘territoriality to functionality’, when it enters into the patchwork of pluralistic global governance emanating from the international legal order. In fact, China’s step into the international law has been self-motivated after it adopted the policy of reforms and opening to the outside world. Aware of the need to be committed to international institutional linkages and economic interdependence,Footnote 97 China has constantly adjusted its foreign policies, which are diversified and cover a wide range of topics such as trade, IP, investment, environment. While China’s entrenched censorship regime often assumes priority over its constitutional promises, it also underlies those laws and policies on foreign relations that are bound to interact with corresponding subsystems of international law. By contrast, the IHRL on freedom of expression often underlies those corresponding legal regimes that have different functionalities.Footnote 98 Consequently, the conflict between China’s censorship regime and the IHRL on freedom of expression is inevitable, imminent and multi-faced.
International law has not only provided a normative framework that conceptualizes the relationship between freedom of expression and censorship, but also furnishes different institutional mechanisms to cope with challenges arising from state actors who assume impunity in disregarding the universal standards. For instance, whereas the UNHRC can address China’s censorship directly, other separate areas of international law such as WTO law, IP law or investment law may also address freedom of expression, albeit in a more indirect fashion. In the latter case there has been either no explicit conflict between these other different subsystems of international law and China’s censorship regime or a limit to capacity to address such conflicts. For example, the aforementioned two WTO Panels have had opportunities to address the censorship rooted in the guardianship of the CCP and dismissed it as inconsistent with, if not deleterious to, the global trade system. In that sense, the WTO system, ‘armed with teeth’ as it might be, did lay these teeth into China’s inexorably stubbon-minded cultural policy, even if this was done somewhat tentatively. But the multilateral trade system, born with a ‘procedural deficiency’,Footnote 99 does not provide an ultimate monitoring arena for non-trade issues. To defend its censorship laws and policies, China often avails itself of an absolutist doctrine of state sovereignty, which has paved the road of international law with thorns of normative fragmentation and institutional segmentation,Footnote 100 and capitalized on the pluralistic struture of global governance.
The IHRL standards for defining boundaries of freedom of expression
Freedom of expression has been embraced qua customary international law.Footnote 101 The classical mandates as encapsulated in Article 19 of the Universal Declaration of Human Rights (UDHR),Footnote 102 though not formally binding, are pivotal to the legitimacy of the political governance of a modern state. The ‘hard law version’ of freedom of expression is mirrored largely in the successive framework of Article 19 of ICCPR which also provides a list of permissible caveats for interference. While pre-censorship can be banned categorically,Footnote 103 censorship for the sake of protection of public interests is not prohibited in general. Thus, Article 19(3) of the ICCPR outlines three prerequisites for imposing restrictions on freedom of expression: i.e., such restrictions shall be ‘provided by law’ (legality), properly serve one of the ‘listed purposes’ (proportionality), and be ‘necessary’ for attaining the purpose (necessity).
For a long time, ‘national security’ and ‘ordre public’ represent ambiguous concepts that could be employed to restrict freedom of expression.Footnote 104 Thus, freedom of expression could fall prey to often far-fetched justifications for state interference.Footnote 105 In this regard, the difficulty lies in conceptualizing ‘ordre public’ in ‘institutional’ and ‘ideological’ dimensions: whereas the former is worded more precisely under specific national laws, the latter is vulnerable to disruptive definitions in different political and social contexts.Footnote 106 For instance, arbitrary censorship over critical speeches against governments can be covered up by ideological vagueness pertaining to ‘subversion’ of the existing political system or ‘anti-regime’ crimes.Footnote 107 Besides, such restrictive measures often tend to be overly broad.Footnote 108 In this regard, Article 19(3) expels any ‘chilling effect’ of ‘national security’ or ‘ordre public’ where merely peaceful criticisms of or actions against a government or political party are warranted, be they made by individuals,Footnote 109 or in public media.Footnote 110 In any event, restriction of freedom of expression can only be premised on a system that abides by, rather than jeopardizes, the respect for universally accepted values such as freedom of expression.Footnote 111
In 2011 the Human Rights Committee issued its General Comment No 34 to clarify the interpretation of Article 19(3) after decades of its case-by-case rulings.Footnote 112 Specifically, the General Comment cautions against censorship of pure criticism of the political system or any public institution (such as the state, the government, army) and imposition of onerous licensing conditions on media facilities.Footnote 113 Moreover, the General Comment urges states to abandon ‘monopoly control over’ and ‘promote plurality of the media’ in publication, Internet and journalism.Footnote 114 In particular, the General Comment points out that penalizing ‘expression of opinions about historical facts’ or penalizing media facilities or journalists ‘solely for criticizing the government or the political social system espoused by the government’ is incompatible with Article 19(3).Footnote 115 Meanwhile, the 2011 report of the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression refers explicitly to the ‘sophisticated’ and ‘multi-layered’ Internet control and criminalization of legitimate expression in China,Footnote 116 and questions the compatibility of broad and ambiguous sovereignty-centred rules with the criteria under IHRL.Footnote 117 In a sense, the normative determinacy of UDHR and ICCPR has conceptually pierced the veil of China’s censorship regime underpinned by an absolutist doctrine of state sovereignty that aims to legitimize the CCP’s rule.
The UPRs of China: An example of addressing the censorship regime directly
The international community, fully aware of the seemingly impervious cornerstone of sovereignty as inscribed in Article 2(7) of the UN Charter, is confronted with the ‘sovereign paradox’ to admonish and convince national states ‘to be sovereign’ in meeting new standards of legitimizing state power.Footnote 118 Where human rights mandates run the risk of falling prey to the misuse of state power, all available mechanisms shall be employed to pierce the veil of state sovereignty.
A major example for addressing China’s censorship directly is the UPR, which has been established as the most significant mechanism of the UNHRC. By providing a panoramic review of human rights situations in all countries in a four-year cycle,Footnote 119 the UPR ‘shall complement and not duplicate the work of the treaty bodies’.Footnote 120 Since China has been desultory in ratifying the ICCPR, only the Charter-based bodies can exercise direct monitoring on China’s censorship regime. Being essentially a political mechanism that monitors the implementation of the entire pallet of human rights, the UPR could address human rights issues vis-à-vis the principle of state sovereignty.Footnote 121 Whereas in the first UPR of China only five countries referred to freedom of expression, the second UPR of China saw 21 countries suggesting improvements of freedom of expression. Three distinctive features of the UPR are noteworthy.
First, the UPR stresses equal treatment of the information sources concerning the human rights record of the country to be reviewed. It relies on almost all available sources, which fills certain lacunae caused by the brevity of a three-hour review process.Footnote 122 Thus, apart from a state report presented by China,Footnote 123 a compilation of information based on UN resources and a summary of information from other reliable sectors prepared by the Office of the High Commissioner for Human Rights (OHCHR) were available as documents for the UPR, both of which referred to concerns about China’s censorship regime.Footnote 124 However, whether to adopt the views from these alternative sources is still largely up to the states themselves. During China’s first UPR, the Chinese delegation insisted on the non-existence of censorship in China and the compliance of its domestic laws with the ICCPR, while declining any criticisms, advice and suggestions regarding freedom of expression.Footnote 125
Second, the UDHR, the UN Charter, as well as state obligations in ratified treaties and commitments made by relevant countries, have been overwhelmingly affirmed as the fundamental yardsticks for measuring states’ compliance with the IHRL.Footnote 126 In this sense, the framework of the UDHR as incorporated into the ICCPR,Footnote 127 together with China’s commitment in the UPR to promoting human rights through its NHRAP,Footnote 128 shall serve as the applicable criteria of a UPR for China’s censorship regime.Footnote 129 Notwithstanding, there are well-founded doubts about the feasibility of prioritizing treaty obligations in the UPR.Footnote 130 The fact that the PRC remains the lone power in the world that has not ratified the ICCPR shows that the ICCPR constitutes merely a conceptual source for a universal review on China’s censorship.
Third, as a cooperative mechanism the UPR aims to provide an interactive dialogue in a constructive way rather than in a confrontational way that might otherwise amount to ‘politicization’.Footnote 131 Indeed, in monitoring intergovernmental cooperation, the UNHRC has improved its approach of organized discussions among the state members. Corresponding to China’s claim that respect for different customs in different countries required a termination of confrontation,Footnote 132 the 2009 UPR was peppered with laudable comments on China’s progress in freedom of expression,Footnote 133 though only 60 countries that queued up first were able to speak due to the time limit. By contrast, the 2013 UPR allowed each country only 50 seconds to speak and thus 137 countries made remarks on China’s human rights record.Footnote 134
The WTO rulings: An example of addressing China’s censorship regime indirectly
The dispute settlement mechanism (DSM) of the WTO, which is generally considered a peremptory and powerful legal mechanism,Footnote 135 provides a prominent example for addressing China’s censorship indirectly. As a Member of the WTO China is subject to the DSM under the global trade system where any trade disputes arise. Due to the significance of foreign trade, China has become increasingly active in using the DSM and compliant in enforcing the rulings. In both China–IPR and China–Publications, however, China’s ‘content review’ system received more careful scrutiny, where the laws and regulations that inherently form China’s censorship regime aroused its trade partners’ concern about whether and to what extent censorship would affect liberalization of global trade. While the Panels did not decide directly whether China’s censorship was consistent with the IHRL, they did address the censorship regime and ruled that China’s censorship was not appropriate for global trade. In this sense, both proceedings have further facilitated the WTO’s expanding capacity of global governance.Footnote 136
Reviewing China’s censorship regime in China–IPR
In China–IPR, the US accused China of denying the ‘publication or distribution’ of the works of certain authors that have not passed the censorship,Footnote 137 which is inconsistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – one of the WTO’s major pillars.Footnote 138 In particular, the US argued that China derogates from certain substantive provisions of the Berne Convention for the Protection of Literary and Artistic Works (BC),Footnote 139 which have been incorporated into TRIPS. The proceeding thus focused on China’s censorship enshrined in Article 4 of the Chinese Copyright Law, the first sentence of which provides:
Works the publication and/or dissemination of which are prohibited by law shall not be protected by this Law.Footnote 140
According to the US, this clause left certain copyrighted works of Chinese and foreign owners virtually unprotected, which could be published legally in other countries but were not allowed for publication in China. This was contradictory to the principles of national treatment and minimum standards for copyright protection as set forth in the BC and encompassed by TRIPS.Footnote 141 By contrast, China’s philosophy was that works that did not live up to its censorship would be denied ‘authority to publish’,Footnote 142 while censorship was a necessary regime independent of copyright law. The Panel reviewed China’s censorship regimes.Footnote 143 The Panel was convinced that if the censorship organ of the CCP did not uphold the content of a book in the political review, i.e., if such contents were deemed ‘reactionary, pornographic or superstitious’, then the book would ‘not be protected’ and ‘all the presses shall neither publish nor disseminate it’.Footnote 144 The Panel then found that copyright law that is thus subjected to the censorship regime is antithetical to both the national treatment and the union treatment ‘specially granted’ by the BC.Footnote 145
Consequently, China sought to defend its copyright policy and the legitimacy of censorship on the basis of Article 17 of the BC as incorporated into TRIPS,Footnote 146 which recognizes a state’s right to ‘permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary’.Footnote 147 China understood this provision as the legal basis for censorship in terms of a nation’s public order, which should take precedence over any other provision.Footnote 148 Accordingly, the Chinese government was as much entitled as ‘many other countries in the world’ to ban the publication and dissemination of works that were found ‘unconstitutional or immoral’.Footnote 149 Eventually, the Panel didn’t question China’s legitimacy to conduct censorship under the IHRL and the Panel finding does not prevent China from doing so.Footnote 150 Nevertheless, the Panel did clarify that Article 17 of the BC was not meant to disadvantage or bias copyright protection by virtue of public order or censorship.Footnote 151 In this sense, the Panel disagreed with China as to the predominance of its censorship regime over the trade regime.
Reviewing China’s censorship regime in China–Publications
In China–Publications, the Panel reviewed China’s censorship regime in a wider scope. In one of its allegations against China the US argued that China failed to comply with its WTO obligation to liberalize trading rights in different industries under the Protocol on the Accession of the PRC (Accession Protocol).Footnote 152 Notably, the Accession Protocol exempted China from granting trading rights regarding a number of important products,Footnote 153 but somehow cultural products such as books and audio-visual products were not written into that accord. Obviously, the censorship regime, which allows the CCP to control those State-owned cultural and media entities easily by limiting the activities of non-State-owned entities, affected foreign entities that intended to import and distribute such cultural products. Therefore, the Panel did not have so much difficulty in finding that certain measures under China’s censorship regime were inconsistent with China’s commitments to the trading rights.Footnote 154 Just as in China–IPR, the really interesting point of China–Publications was the legal basis that China relied upon to justify its censorship regime.
China resorted to Article XX(a) of the General Agreement on Tariffs and Trade (GATT), which allows a member to take regulatory measures that it deems ‘necessary to protect public morals’.Footnote 155 China argued that cultural products were closely related to public morals,Footnote 156 that strict control was necessary,Footnote 157 and, therefore, that the measures employed to restrict non-State-owned entities’ right to import cultural products were legitimate because they could ensure the effective operation of its censorship regime.Footnote 158 Since there was no pre-existing WTO jurisprudence on Article XX(a) of the GATT relating to the public morals, the Panel had to borrow from previous approaches under other relevant provisions such as Article XX(b) of the GATT as applied by the Appellate Body.Footnote 159
Thus, the Panel examined China’s defence primarily on two grounds. First, the Panel evaluated the objective of the measures and assumed arguendo that the public morals that China pursued through its censorship regime were highly important.Footnote 160 While the Panel found China censored content that, e.g., ‘injures the national glory’ or ‘destroys social stability’,Footnote 161 neither the US nor the Panel/Appellate Body bothered to question whether such criteria were consistent with universal principles of freedom of expression.Footnote 162 Second, the Panel assessed the necessity of the measures in relation to the objective. The Panel rejected China’s claim that only State-owned entities were suitable to conduct censorship and maintained that private entities could do so as well.Footnote 163 Besides, the Panel affirmed the alternative, as suggested by the US, that the Chinese government could alone take up the responsibility for conducting censorship,Footnote 164 which, surprisingly, seemed to imply that China could nationalize its decentralized censorship regime.Footnote 165 As China couldn’t raise any convincing counter-arguments to such reasoning, the Panel concluded, as the Appellate Body later confirmed, that China’s censorship measures were inconsistent with the WTO rules.Footnote 166
The thorns of pluralistic global governance
China’s strategy of divide et impera. It seems that neither the UPRs nor the WTO disputes have addressed China’s censorship regime thoroughly in terms of the substantive rules of the IHRL. Instead, China was able to defend its censorship regime by rejecting criticism on it in the UPR and arguing for its legitimacy at the WTO. Indeed, the UPR is neither a tribunal,Footnote 167 nor a podium where states may judge themselves. Its purpose is to meet ‘capacity building needs’ by indicating ‘ways to overcome a certain situation and to recommend … technical assistance or advisory services’.Footnote 168 In the first UPR, although the Chinese delegation promised that in the follow-up process China would create conditions for ratification of the ICCPR and continue cooperation with the special procedures and OHCHR,Footnote 169 it repudiated all recommendations concerning improvement of freedom of expression, and even endorsed Cuba’s suggestion to maintain a ruthless control of human rights defenders who dare to ‘attack the interests of the state’.Footnote 170 It would not be surprising if China rejects such recommendations in the second UPR. This is also a sign of the difficulties in developing customary rules on the basis of UPR recommendations so far.
By contrast, China’s reaction to the two WTO Panel rulings were more compliant and prompt, as China quickly made revisions to its copyright law, as well as a series of regulations relating to publications. For instance, the amended Article 4 of the Copyright Law now reads:
Copyright owners should not exercise their copyrights in a manner that violates the Constitution or relevant laws, or harms the public interests. The state will supervise publication and distribution of the works in accordance with law.
Literally, copyright protection is extended to all ‘works’, which complies with the Panel’s finding. However, the amendments did not affect the existence of the censorship regime itself. Nor do they benefit copyright holders whose works are banned in China. Likewise, China amended its RAP in 2011 under the WTO ruling that the trading rights must be granted equally to all stakers. However, the RAP allows the importation of cultural products on the condition that the government approves such transactions and the importers must be capable of conducting self-censorship.Footnote 171 While both WTO rulings resulted in certain changes to the censorship regime, it is very unlikely that the WTO rulings can change China’s censorship regime thoroughly. After all, censorship policies are guided by the publicity departments of various levels and implemented by corresponding administrative authorities.
Apparently, sovereign states agreed only condescendingly in the WTO to guarantee common standards of market access and competition rules. Where states apprehend or anticipate any usurpation of state authority by commercial force,Footnote 172 the indivisibility of sovereignty allows them to retrieve supremacy and curtail market power. The WTO’s incompetence to address non-trade issues thoroughly is attributable to state members’ reluctance to relinquish sovereignty over certain vital interests – such as those covered by China’s censorship regime. The outcome of the UPRs of China manifests this feature and betrays China’s strategy of ‘divide et impera’. In fact, this strategy is consonant with the pluralistic structure of global governance, which is characterized not only by uncompromising normative diversification but also by irrevocable institutional proliferation.Footnote 173 Such pluralism is formed and driven by the need to balance decentralized global governance against an incrementally interdependent world.Footnote 174 However, the fragmented international legal order is vulnerable to the manipulation of state sovereignty, where both a coherent horizontal heterarchy and an effective vertical hierarchy in international law are absent.
Fragmentation in default of coherent horizontal heterarchy
Fragmentation exists between rules of different treaties on the horizontal level. Attempts to interpret rules of separate branches of international law, such as the WTO law, in accordance with substantive constitutional mandates remain controversial both in discourse and in legal practice.Footnote 175 Further, it may seem too simplistic to hope that the whole pallet of international law can be enforced in the WTO scenario by postulating the moral ethics of states to commit themselves to an overall obligation under international law.Footnote 176 Certainly, ‘general public international law’ has an effect of ‘gravitational pull’ on WTO law once its Dispute Settlement Body (DSB) embarks on interpreting relevant norms,Footnote 177 and the acquis on treaty interpretation may presumably prevail.Footnote 178 But WTO legal practice frequently suggests that reference to extra-regime positive law merely serves peripheral functions.Footnote 179 In principle, where different authorities interpret the same rules, there is a higher risk of contradictory decisions.Footnote 180
Moreover, an institutional arrangement that could remedy the normative inconsistency is also wanting. To maintain its supreme authority in a specific domain, the WTO has been prudent in sharing jurisdiction with alternative authorities over the same issue.Footnote 181 Certainly, it is untenable to assert that the WTO law is completely trade-biased and ignores non-trade values. But so far the DSB’s potential mandate to deal with human rights issues is overshadowed by its institutional disposition in not providing an all-inclusive forum to balance ‘trade values’ against ‘non-trade values’,Footnote 182 despite the efforts to establish the pre-commitment of WTO law to the ethos of global constitutionalism.Footnote 183 If the WTO system were to encompass an extra-regime mandate, it would require a profound and de facto constitutional change, which is not possible in the foreseeable future.
In China–IPR and China–Publications, China was able to resort to the incoherent network of such a ‘heterarchical’ system in which different regulatory regimes have specific functions without interaction between or supremacy over one another.Footnote 184 It is true that different subsystems of international law often rely on the ‘parasitic use’ of the coercive capacities of each other, just as one may hope to materialize the core values of IHRL through the WTO DSM.Footnote 185 But the lack of such mandates within the WTO scenario hinders a direct and de-territorialized ‘system of rule’.Footnote 186
Fragmentation due to lack of effective vertical hierarchy
Fragmentation also extends to the inconsistency between national law and international law.Footnote 187 It reflects the difficulties in verticalizing the international legal order that presumes legitimacy and capacity in governing global issues. Such an approach to global governance derives from the Kelsenian monism of international law,Footnote 188 and envisions an embryonic form of a world government charted by the UN General Assembly, the Security Council and the International Court of Justice. However, international law can be a ‘myth system’ with official but often irrelevant codes that are overshadowed by international politics.Footnote 189 Specifically, efforts towards establishing a hierarchical order through international law-making activities are imbued either with a ‘democratic deficit’,Footnote 190 or with state-oriented request for reallocation of power.Footnote 191 Thus, a realistic global approach to decision making must always take local factors into account.Footnote 192
Consequently, the prospect of applying substantive norms in a vertical order remains ambiguous. It is certainly a legal ideal to treat the UN Charter as a world constitution,Footnote 193 but it is not yet a constitution in the complete sense,Footnote 194 despite its laudable effects of conveying the idea of rule of law to governors around the world. Moreover, the non-derogable jus cogens,Footnote 195 which the ICJ defines as peremptory norms,Footnote 196 can be vulnerable to discursive and unpredictable law-making entities, since state actors may always give or withhold their consent to new interstate arrangements.Footnote 197 Therefore, the nature and effectiveness of substantive norms are subject to the interaction between the ideal law and the law in reality, which underlies the ‘uncertainty and volatility of international law’.Footnote 198
Apparently, in order to maintain its censorship regime, China has taken advantage of the vacuum of a vertical hierarchy in the international legal order: after China’s first UPR an absolutist doctrine of sovereignty still overrides freedom of expression. If there were to be a truly binding normative hierarchy in international law,Footnote 199 then all state actors must defer to the institutional authority of such a hierarchy. However, such institutional authority can only be based on consistent and voluntary concession of state power.Footnote 200 As long as China does not ratify the ICCPR, such concession to IHRL on freedom of expression is not complete.
IV. Towards the butterfly effect engendered by planting China’s censorship regime into fragmented international law
In this era of globalization China’s censorship regime remains a highly instructive phenomenon for understanding the frictions between national and international dimensions of constitutionalism. While any conflict between a fundamental right and the public interest could be solved in the national constitutional system, such recourse does not obtain in international law. It is true that even an authoritarian regime can sometimes relegate itself to render the concept of state sovereignty malleable and fluid enough in the global market economy so as to allow domestic regulation to be diluted by global governance. However, it is less likely that the regime will disregard the indivisibility of state sovereignty when its monopoly power is challenged or jeopardized directly. The examples above show that China can be more compliant with WTO Panel rulings than with the UPRs, both of which are related to freedom of expression. In view of such asymmetries in the effects of the same rules in different subsystems, recasting the relationship between IHRL on freedom of expression and national law such as China’s censorship regime remains a daunting task for global constitutionalism, as China takes a voluntary step into international arenas such as the trade, IP, investment, etc with an ambivalent and opportunistic mask of foreign policies which impinge on matters relating to freedom of expression.
Evolving factors in a new constitutional mindset of international law
The reversionary attempt to counteract the adverse effects of national law on international law has been characterized as ‘constitutionalization’, an approach that rebukes any inconsistency with global constitutional mandates.Footnote 201 It seems that such efforts towards constitutionalization could not work effectively without an underlying authority to which different state actors wish to be subjected. But this is probably because one always starts with the presupposition that global constitutionalism borrows its cognitive framework from national constitutionalism. Conversely, if one takes a step back and makes a ‘Copernican turn’ that, according to Kumm, reverses this hypothesis of constitutionalism based on the ‘statist paradigm’, one can envisage a ‘cosmopolitan paradigm’, i.e., it is not national constitutionalism that lends its hue to global constitutionalism but ‘(C)osmopolitan constitutionalism’ that ‘establishes an integrative basic conceptual framework for a general theory of public law that integrates national and international law’.Footnote 202 In fact, without necessarily bringing a visible form of global governance into being, the evolving dispositions of international law give rise to a new constitutional mindset featuring a three-step chain.
First, global constitutionalism is predicated on the evolving normativity of customary international law that assumes a ‘direct effect’ and ‘supremacy’ just like EU law.Footnote 203 Global interdependence in economic and social development has long since necessitated the reconciliation of state sovereignty with human rights obligations under the motif of ‘the shared responsibility to protect the welfare of its people’.Footnote 204 In an institutional perspective, promotion of human rights, being one of the raisons d’être of the United Nations Charter (UN Charter), requires the willingness of states to be engaged in international cooperation,Footnote 205 which amounts to a mandatory obligation.Footnote 206 In a normative perspective, the UDHR, also mandating the cooperation between nation states,Footnote 207 has fleshed out the human rights principle in the UN Charter with a concrete palette of rights as an authoritative interpretation.Footnote 208 In that sense, the embryonic normativity of global constitution has been established.Footnote 209
Second, the fragmenting effects will not alter the ‘universalist aspirations’ of international law, but merely accentuate the context-specific nature of its materialization.Footnote 210 After all, the fragmenting effect applies to the relationship between norms and not to that between regimes.Footnote 211 In fact, the evolving interrelatedness between asymmetrical legal regimes highlights their symbiosis: certainly, the authority of different branches of international law originates from different values pursued by sovereign states, but these values are inherently interconnected and constantly evolving under the influence of other legal regimes. Consequently, the preponderance of common interests and values is impelling the metamorphosis of a ‘law of passive co-existence’ into a ‘law of cooperation’,Footnote 212 whereupon international law is poised to encroach on arenas previously monopolized by nation states.Footnote 213 Such interests and values may be distinct from those that states seek to pursue in different subsystems of international law, but they develop and grow independent of states’ consent.
Third, global constitutionalism depends on the dynamic process of state practice that reflects and facilitates a state’s political accountability.Footnote 214 However, state accountability is also an evolving concept that intertwines legal principles with political and moral responsibilities under international law.Footnote 215 While legal principles of state accountability are still developing slowly, the political and legal pressure for finding legitimacy for state sovereignty looms large. Meanwhile, accountable behaviour is subject to ‘the moral purpose of the state’ aligned with the institutional rationality of sovereign states.Footnote 216 Ultimately, the interconnected functionality of different subsystems of international law requires political accountability of state actors and triggers a self-conscious reflection on the border of state sovereignty.
The potential of triggering a butterfly effect
Such can be the potential ‘butterfly effect’ resulting from China’s voluntary step of planting its censorship regime into the fragmented international law: just as a stubborn-minded censorship regime transcends different branches of national law in the direction of the pluralistic global governance and confronts the international standards of the limits to freedom of expression, a chain reaction of international law proceeds in the reverse direction to homogenize the law of freedom of expression. It derives from the evolving normativity of IHRL, works through the functional interconnectedness between ‘fragmented’ regimes and reaches the political accountability of state sovereignty. Through this chain reaction, the self-perpetuating force of international law pertaining to freedom of expression can exert quasi-constitutional influence on the remote domain of censorship.
First, emphasizing the evolving normativity of the constitutional status of freedom of expression will reinforce the legitimacy of relevant subsystems of international law, such as trade, IP, investment, etc, which are often stigmatized by a democratic deficit and tendency towards fragmentation. By contrast, freedom of expression as a core human right conforms fully to the criteria for a global constitutional right premised on its normative hierarchy and institutional entrenchment.Footnote 217 Such is the constitutional status that freedom of expression has earned as a fundamental right that it will hover over any relevant subsystem of international law where state sovereignty still dominates. In this environment, the framework of IHRL advances a new historical phase of global constitutionalism by prescribing an external set of normative limits against those established by the states themselves.Footnote 218 These substantive standards demonstrate the need for verticalizing the relationship between the system of IHRL and the domestic system of civil liberties.
Second, even though the evolving normativity of such a fundamental right as freedom of expression may not directly overcome the fragmentation of international law, the functional interrelatedness between different regimes could serve as a breakthrough for freedom of expression to infiltrate into relevant subsystems. While the UPRs of China show that IHRL may be morally strong and institutionally fragile, international legal arrangements are treated as an all-binding network as a result of bargaining and consensus between charismatic state conglomerates.Footnote 219 Thus, it becomes common perception that the interrelatedness between different subsystems can underpin the effective implementation of the entire legal arrangements ultimately.Footnote 220 Any failure to defer to the functional interrelatedness will catalyse a new ‘struggle for the right’ (‘Kampf ums Recht’),Footnote 221 and spur a new process of reallocation of authority in the entire legal fabric. For one thing, in its attempt to conduct a ‘merger and acquisition’ of human rights law by trade law, constitutionalism succeeds in ‘hijacking’ states for the cause of attaining more respect for human rights.Footnote 222 As shown in China–IPR and China–Publications, the functional interrelatedness between WTO law and IHRL highlights the need to reassess the constitutional status of freedom of expression in international law.
Third, the political accountability of state sovereignty requires state actors to recognize such functional interrelatedness and reconsider the value of different subsystems of international law. Political accountability brings countries of different ideologies and political capacities together to articulate their standpoints and assess benefits from, or reservations against, the uniform implementation of freedom of expression. The aforementioned two factors, which help subjugate any opportunistic foreign policies to the global human rights standards, may at least activate China’s political accountability to reassess its censorship regime. Just as political accountability enables states to chain different values into coherent global universal norms,Footnote 223 freedom of expression would appeal ultimately to the rationality of state sovereignty and urge states to defer to its unequivocal values in their foreign policies.
Piercing the veil of state sovereignty
The UPRs of China and the two WTO disputes are prominent examples that illustrate the butterfly effect created by planting China’s domestic contours of censorship into fragmented international law. Once China’s censorship regime enters into regular and systematic contact with international law, the constantly evolving normativity of IHRL on freedom of expression could pierce the veil of state sovereignty through the functional interrelatedness between different subsystems of international law, and activate the political accountability of China’s state sovereingty.
The normativity of the constitutional status of freedom of expression
Throughout its evolutionary process, freedom of expression has served to provide an ideological basis for the fundamental right to approve or disapprove a government, and has played a pivotal role in taming the absolute state sovereignty into a rational and tractable one.Footnote 224 Certainly, premature obituaries of state sovereignty have often helped to bolster, rather than undermine, the significance of the 1648 Westphalian system in which the entrenched sovereign doctrine continued to flourish.Footnote 225 Yet the whole constellation of omnipotent state sovereignty has turned into ‘organized hypocrisy’.Footnote 226 Indeed, the unrelentingly ‘mythical’ sovereignty,Footnote 227 once condensed into the so-called ‘negative sovereignty’ prior to the end of Cold War,Footnote 228 has been remoulded into ‘positive sovereignty’ with diversified conditionalities.Footnote 229 In this new paradigm the responsibility of state actors to legitimize their sovereigntyFootnote 230 – either by endorsing a democratic mode of governance vis-à-vis the international community,Footnote 231 or by ensuring protection of core human rights of its citizensFootnote 232 – is accentuated not only in the opinio juris of the international community but also in the state practice during the past decades.Footnote 233
The pursuit of and respect for universal human rights as the legitimate goal of all sovereign nations was first inscribed into the UN Charter,Footnote 234 and reinforced subsequently by the UDHR, which has assumed a certain nature of customary international law.Footnote 235 Thereafter, it took two decades to emolliate the absolutist doctrine of state sovereignty by justifying the predominance of human rights as customary international law.Footnote 236 Though sovereignty remains an inalienable tenet in the UN Charter,Footnote 237 the international community has managed to reach consensus on the existence of jus cogens,Footnote 238 which results in the ‘erosion of sovereignty’ and the imposition of the obligation to respect core human rights upon state actors without their prior consent.Footnote 239 Therefore, a hierarchical normative order determines the constitutional status of freedom of expression in taming state sovereignty.Footnote 240
Where IHRL treaties cannot be applied directly in China, they must be transformed into concrete statutory laws, and often subject to inconsistent interpretations.Footnote 241 In civil and commercial fields, however, ratification and approval are not always the prerequisites for international instruments to be legally binding in China. Thus, for example, with broader discretionary leeway courts may interpret domestic civil and commercial laws in terms of customary international law.Footnote 242 Such court rulings would create potentials for interpreting freedom of expression as customary international law in the future.
The functional interrelatedness between trade and freedom of expression
In China–IPR and China–Publications China had the chance to learn the functional interrelatedness between trade and freedom of expression. Although the DSB did not adjudicate directly on China’s censorship, similar issues may arise frequently in all stages of trade liberalization.Footnote 243 While the two WTO disputes required China to restructure its censorship regime only in a limited way, global trade liberalization process may transform ‘conditionality-based’ models of trade-related human rights measures into ‘compliance-based’ models,Footnote 244 facilitating the respect for and protection of freedom of expression in different settings.
Any legal realist may well ask the question: if a subsystem such as WTO law has no direct control on state members with regard to their human rights obligations, and IHRL cannot bind states with those obligations effectively, then ‘Why Do Nations Obey International Law?’245 This is exactly what China shall learn about the functional interrelatedness between different subsystems of international law. Although neither the WTO rulings nor the UPRs went so far as to discuss whether China’s censorship regimes are consistent with international law, the interaction between WTO law and IHRL cannot be ignored, as the proliferation of international forums demonstrates the need for state actors to reassess such functional interrelatedness.Footnote 246 In the examples above, both the WTO rulings and the UPRs have, conceptually, pushed China into the whirlpool of ‘cosmopolitan constitutionalism’ which is more attuned to ‘hard law’ than to ‘an ideal’.Footnote 247
In turn, a constitutional mindset of international law comes to light when China perceives that, once state sovereignty steps on board, the raft of internationalization of rule of law will ‘unmoor[...] itself’ from the ‘anchor of state consent’,Footnote 248 regardless of what cargo has been loaded. Admittedly, freedom of expression, which provides the necessary linkage to symmetrical information flow, is of fundamental importance to the proper functioning of free markets.Footnote 249 As a member of the global trade system, China can no longer ignore the fact that its long-cherished absolutist doctrine of state sovereignty is being exposed to, and challenged by, commonly accepted norms emanating from diverse precincts of international law.
The political accountability of state sovereignty
The effect of such functional interrelatedness works directly and appeals more profoundly to China’s complete soul of political accountability. For one thing, member states of both the WTO and the UNHRC, even those widely deemed not to affirm liberal democracy, are ‘accountable’ enough to seek to legitimize their sovereignty by clinging to the membership of these two organizations. Global constitutionalism, in contrast to the Westphalian paradigm, dwells on the Leviathan’s self-motivated and voluntary move into international law and its ‘embedded rationality’ which shapes the cognition and choice of ‘how civilized states ought to conduct their affairs’.Footnote 250 The new paradigm exhorts policy makers to process socially relevant information ‘through a cognitive function and return a rational, ergo human rights-sympathetic, response’.Footnote 251
Meanwhile, this cosmopolitan constitutional mindset can be reinforced by the hard law nature of international law. First, disregard of IHRL on freedom of expression not only amounts to lack of legitimacy but may also provoke violation of different subsystems of international law, which then incurs sanctions or revenge in terms of relevant hard law.Footnote 252 Second, even if a state has not consented explicitly to certain international legal norms,Footnote 253 the existence of such norms, by providing ‘model law’ to domestic laws, prevents states from derogation. Finally, even in the absence of effective enforcement mechanism, IHRL has such a status that states would refrain from unilateral actions that could depreciate their reputation easily under institutional pressure.Footnote 254
The prospects of the butterfly effect on China’s censorship regime
This article does not deny that any fundamental change to the censorship regime might depend ultimately on China’s domestic developments of liberal democratization. Rather, the butterfly effect culminating in a constitutionalist approach to China’s censorship regime highlights the external pressure that may endorse, catalyse or accelerate China’s evolutionary process. Indeed, sceptical commentators dismiss the role of international law in promoting China’s progress towards liberal democracy and even propose that China’s foreign policies would affect the international relations at large.Footnote 255 It is true that China’s political accountability is still affected largely by the sovereignty-centred considerations, especially the absolutist doctrine of state sovereignty that seeks to legitimize the CCP’s rule. However, a passive approach would neutralize the positive effects that global constitutionalism might have on China’s censorship. Arguably, a consistent and permanent legal order that pierces the veil of state sovereignty could attenuate China’s incentive to frame opportunistic policies and compel China to defer to the universal values of freedom of expression.
For instance, the Panel of China–IPR reviewed a number of laws and regulations concerning censorship in China and confirmed that any works could be prohibited in terms of various censorship criteria laid down by the government.Footnote 256 From the cluster of censorship regulations in China, the Panel distilled ten categories of identical criteria in China for prohibition of publication of works:
(1) are against the fundamental principles established in the Constitution;
(2) jeopardize the unification, sovereignty and territorial integrity of the State;
(3) divulge State secrets, jeopardize security of the State, or impair the prestige and interests of the State;
……
(10) other contents banned by laws, administrative regulations and provisions of the State.Footnote 257
When measured against IHRL, such broad criteria that define expressive acts as ‘unconstitutional’ or ‘illegal’ may nullify China’s constitutional promises for freedom of expression.Footnote 258 While many criteria for such content review continue to be ideologically vague and controvertible, a catch-all provision could convey a sense of facultative or whimsical power manipulation that fall afoul of the principle of legality.
Moreover, the blurred criteria for imposing such content review give rise to questions about their necessity and proportionality. The Panel established that censorship conducted by relevant authorities could prevail over a decision by the GAPP, though it is presumably the competent state organ to decide whether Article 4(1) of the Copyright Law shall apply.Footnote 259 Meanwhile, the default of an independent judicial system demonstrates the democratic deficit in wielding discretionary power in a censorship regime led by the CPD. Such are the general difficulties in China’s political accountability, which, even through the prism of the institutional linkage of the WTO, could prevent China from restructuring the legal boundaries of freedom of expression.
In this sense, China would have to reconsider the cost of its censorship regime if it really intends to be a responsible and respectable sovereign state. To legitimize its sovereignty, China will find it increasingly difficult to shirk from its responsibility to ensure freedom of expression, which is the precondition to a free market and a democratic society. Being a member of the HRC, China has joined other state communities in acknowledging that it ‘shall uphold the highest standards in the promotion and protection of human rights’.Footnote 260 In its systematic and regular contact with China’s censorship regime, the joint effects of different subsystems of international law, such as those in the WTO disputes and the UPRs, could impose a constructivist view about the effects of the constitutional status of freedom of expression on China’s sovereignty-centred considerations about its censorship regime. For instance, the WTO findings have triggered China’s state accountability to restructure its IP/trade measures that restrict freedom of expression. It remains to be seen whether China’s systematic and regular engagement in different subsystems of international law would provide China further opportunity to reassess its censorship regime in the light of what China openly prescribes as the ‘complete guarantee’ for freedom of expression.Footnote 261
V. Conclusion
China’s censorship regime has become an underlying part of its domestic laws that may have an impact on its sovereignty-centred foreign policies. It eviscerates the constitutional promises about freedom of expression and often relies on vague definitions of state sovereignty. But censorship is not a monolithic regime. It hinges on a decentralizing institutional framework and exists under a double-layered system in different dimensions of freedom of expression. In particular, the government tries to maintain tighter control on freedom of the media and the right to protest than freedom of speech in the private sphere.
However, when China takes a self-motivated step into international law, the pluralistic global governance arising from different subsystems of international law pierces the policy mask of state sovereignty that aims to legitimize the censorship regime. The recent two UPRs of China show that IHRL on freedom of expression addresses China’s censorship regime regularly and systematically, but it may be difficult to make an authoritarian regime accountable for compliance. In contrast, China complied immediately with the two WTO rulings that found the inconsistency between China’s censorship regime and the global trade system without addressing the legitimacy of censorship. Consequently, the absolutist doctrine of state sovereignty can exist in the seemingly fragmented international legal order that is characterized by a coherent horizontal heterarchy and an effective vertical hierarchy.
Although international law faces the quandary of a fragmenting structure, there is an increasing price for taking advantage of the quandary and wielding an opportunistic policy, when this occurs in the face of a resolute constitutionalist approach. Freedom of expression has evolved into a global value which illuminates the corners so far shrouded by state sovereignty and to which the Leviathan now, after descending from its altar, is forced to defer. While the interrelatedness between subsystems is likely to present a paradigm of constitutional interplay in the global governance, responsible states are expected to show rationality in fulfilling their commitments to IHRL standards.
Acknowledgements
I would like to thank Professor Dr Peter-Tobias Stoll for the illuminating discussion which initiated my research on this article. I am grateful to Justice Professor Dr Andreas L Paulus for his valuable comments on an earlier draft. I also benefited from the useful editing suggestions by anonymous commentators of Global Constitutionalism. Finally, I sincerely thank Dr Roslyn Fuller and Dr Andrew McKenzie-McHarg for their helpful comments and meticulous proofreading. Of course, all responsibility for any remaining errors and omissions rests with me.
