Fear of China: Huawei and the Rule of Law

Fear of China: Huawei and the Rule of Law

The Rule of Law. Like democracy, the phrase is much used by politicians when they are trying to assume the role of a statesman rather than just being a mouthpiece of their party: they hope that it somehow elevates them to a higher philosophical plane. But practising lawyers know its true meaning: they live by its principles every day.

According to the World Justice Project (WJP), the rule of law is a framework of laws and institutions that embodies four universal principles:

  • Accountability – the government as well as private actors are accountable under the law.
  • Just Laws – laws that are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons, contract and property rights, and certain core human rights.
  • Open Government – the processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
  • Accessible & Impartial Dispute Resolution – justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.

Helpfully, the WJP publishes an annual index table comparing 126 countries worldwide.

The Scandinavians come out in the lead with Denmark, Norway, Finland and Sweden vying for the top spot. They are followed closely by a cluster of Europeans – Netherlands, Germany, Austria, Estonia, the United Kingdom, Belgium, France, the Czech Republic, Spain and Portugal – as well as New Zealand, Canada, Australia – and slightly behind, the United States. Asia is well represented too in the top tier: Singapore, Japan, Hong Kong SAR, and the Republic of Korea all make the grade.

Economies are divided into four bands: high income, upper middle income, lower middle income, and low income. Of the 76 countries in the top two tiers, only two major economies score badly: Russia and China. Overall, Russia is in 88th place and China in 82nd.

‘China has laws, but no rule of law’ says Mo Shaoping, a prominent human rights lawyer who operates his own firm in Beijing, which specialises in criminal law and is known for handling politically sensitive cases, including that of the late Nobel laureate Liu Xiaobo.

Mo recently told the BBC: ‘We (China) have a constitution but no constitutional governance. The law isn’t respected or implemented, especially in connection with organisations and people with state power: they break them knowingly and rampantly, but they are not punished for it.’

So how does China score on eight different criteria applied by WJP? In some areas, it does tolerably well: on Absence of Corruption it ranks 48thand for Order & Security, it achieves a respectable 30th place. Elsewhere, China is mid-ranking: Civil Justice (60th), Criminal Justice (57th) and Regulatory Enforcement (78th).

But in three areas, China is shockingly low: in Open Government it ranks 96th, in Constraints on Government Powers 119th and on Fundamental Rights it is in 121st position. Only Turkey, Myanmar, Ethiopia, Egypt and Iran score less. Meanwhile Venezuela, Zimbabwe and the Democratic Republic of Congo, among many others, score higher.

WJP states: ‘Fundamental Rights recognises that a system of positive law that fails to respect core human rights established under international law is at best “rule by law,” and does not deserve to be called a rule of law system.’

In terms of economic power, trade and investment between the UK and Turkey, Myanmar, Ethiopia, Egypt, Iran, Venezuela, Zimbabwe and the Democratic Republic of Congo are marginal, to put it mildly. But UK-China trade is not. In 2018, the UK received more Chinese investment than any other country in the Western world including the United States.

China already has a strategic stake in major companies, including Rio Tinto, Barclays and BP, and a host of property investments such as the 10 Upper Bank Street skyscraper in Canary Wharf.

And then there is Huawei, the Chinese telecommunications equipment and consumer electronics manufacturer. It is now central to a Whitehall leak inquiry following a National Security Council meeting during which Theresa May approved Huawei being given a limited role in supplying the UK with a 5G communications network.

Five senior cabinet ministers are reported to be opposed to the move – the home secretary, Sajid Javid; the foreign secretary, Jeremy Hunt; the defence secretary, Gavin Williamson; the international development secretary, Penny Mordaunt, and the international trade secretary, Liam Fox.

Security chiefs and some of the UK’s closest allies are equally concerned: the US and Australia have already blocked Huawei from working on their own networks because of security concerns. The US has been vigorously pushing countries to exclude telecomms equipment made by Huawei because it is vulnerable to hacking by state-sponsored actors in China.

Writing in the Sunday Telegraph, Beijing’s ambassador to London, Liu Xiaoming, urged the government to ignore such external pressure, adding: “Countries of global influence, like the UK, make decisions independently and in accordance with their national interests. When it comes to the establishment of the new 5G network, the UK is in the position to do the same again by resisting pressure, working to avoid interruptions and making the right decision independently based on its national interests and in line with its need for long-term development.”

In response to Liu’s article, Bob Seely MP, who sits on the cross-party Foreign Affairs Select Committee, tweeted that China had “a bad record on hacking, IP theft and arguably using big data and AI against [its] own people”. Meanwhile, six Conservative MPs, including Seely, wrote a letter to the culture secretary, Jeremy Wright, which said: “Having China anywhere near our communications systems poses structural risks about the level of Chinese influence in our society. Chinese law demands that Chinese firms work with the Chinese secret services.”

This concern about the rule of law is not political posturing. It is plain speaking. And it is entirely accurate: Huawei does represent a security threat – that much has already been independently determined by the US and Australian governments.

Bloomberg concluded that Britain’s embrace of Huawei is really about Brexit: because the divorce from Europe is imminent, so Britain is under greater pressure to keep China as a trading partner, which would be severely damaged if Huawei’s products were outlawed. Britain also wants to remain a technology hub post-Brexit, and a shortage of 5G networks would diminish that prospect. Britain’s telecoms giants – BT and Vodafone – also argue that banning the use of Huawei’s 5G equipment will impede the rollout of new networks.

The key conundrum in play is the rule of the market vs the rule of law (and in this case, national security). Over the coming decades, this issue will recur with increasing regularity in future trade deals. The hope is that China will change and that the rule of law will gradually improve as it moves incrementally towards becoming a democratic society.

That hope may be in vain.

In 2018, China allowed President Xi Jinping to remain in power for life. The constitutional changes were passed in the National People’s Congress, by a vote of 2,964 to two. This further enables him to continue rule by law which he has pursued against dissenters – both political and religious – in the past six and a half years. US President Donald Trump responded by saying: “President for life… I think it’s great. Maybe we’ll have to give that a shot some day.”

At 65, President Xi could be in office for at least another 20 years – like Vladimir Putin who first became President of Russia in 2000. In China, as in Russia, the rule of law is diminishing rather than increasing. Under strong men, dissent is crushed. For those who are fortunate to live in democracies where the rule of law still operates, it is important not just to champion its value, but to consider the consequences if it is compromised in the interests of trade.

Without the rule of law, we will lose everything we hold dear.

Dominic Carman

Written by:

Dominic Carman, journalist, writer and legal commentator.
www.dominiccarman.com