Against the background of what has been described as a crisis of the rules-based international order (Ikenberry 2018), human rights and the rule of law do appear to be increasingly contested. This contestation does not originate only from what has been described as processes of ‘authoritarian advance’ (GGPI 2018) but also from within a number of liberal democracies.
This blog post was first published by Synergy Magazine (n. 68, 2020)
Situations of rule of law backsliding or democratic recession in European Union (EU) Member States (EUMS) such as Hungary and Poland have generated a strong wakeup call for the EU that came up to realise that the very values upon which the European integration process is based – as spelled out in Article 2 of the TEU - are now trembling (Kochenov and Closa 2016).
It is in this context that one should situate the current debate on human rights between the EU and China. Needless to say that cooperation in the field of human rights has always been difficult not least because of the significant normative gaps that exist between the two ‘Strategic Partners’. EU values have hence been described as ‘dead on arrival’ (Mattlin 2012) while the dedicated Human Rights Dialogue has also been criticised by human rights organisations for being ‘a cheap alibi for EU leaders to avoid thorny rights issues in other high level discussions’ (Human Rights Watch 2017). EUMS have also grown increasingly divided making the EU failing largely to be ‘coherent’ in its promotion of human rights to China (Raube and Burnay 2018). The most notable example thereof is the inability of the EU to come up with a joint statement criticising China’s human rights record before the UN Human Rights Council because of a Greek veto back in 2017.
Engagement with China in the area of human rights remains nevertheless central for the EU as recent developments in China’s governance system – that have been coined as ‘the end of an era’ and an ‘authoritarian revival’ (Minzner 2018) – do have significant transnational implications for the EU. In this short paper, I would like to highlight three particular human rights issues, which are very much likely to shape the bilateral relationship between the EU and China in the years to come.
First, the growing influence of the Party State in Hong Kong in general, and the adoption of the controversial National Security Law in 2020 in particular, have sparked major criticisms internationally, including in the EU. In addition to constituting a direct challenge to the ‘One Country, Two Systems’ principle, this law has an important extraterritorial reach as it also applies to individuals who are not permanent residents of the Special Administrative Region and to individuals who may have violated the law outside Hong Kong (Art. 38). It is very much in support of the position of the United Kingdom – the other Party to the Joint Declaration signed by the PRC at the time of the retrocession of Hong Kong – that the European Parliament adopted a very critical Resolution calling the EU to consider the adoption of targeted sanctions against PRC officials and reemphasising the need for the EU to streamline the promotion of human rights across all fields of bilateral relations (2020/2665(RSP)). The evolution of the situation in Hong Kong and the uncertain future of the ‘One Country, two Systems principle’ will definitely inform whether the EU will consider China as a ‘negotiation partner’, an ‘economic competitor’, or a ‘systemic rival’ to use the words of the latest State of the Union speech by Commission President von der Leyen.
Second, human rights issues are also to be found where they are the least expected. It is in application of Art. 207 TFEU that the European Commission has been given a mandate to negotiate a Comprehensive Agreement on Investment with China (CAI) on behalf of the 27 Member States. In line with the EU’s comprehensive approach to investment agreements, the EU is expected (both politically and legally) to take due account of the human rights aspects of the bilateral relationship in the area of foreign investments. In its reflection paper Harnessing Globalization, the European Commission hence made it clear that the EU should develop an investment agenda that does ‘not only opens markets in a reciprocal way but also enhances global governance on issues like human rights (…)’ (2017). Beyond the remaining difficulties in the negotiations of the CAI,[1] it is clear that human rights will play an important role at the time of ratification of the Agreement. As a mixed agreement, in line with CJEU Opinion 2/15 on the EU-Singapore Free Trade Agreement (EUSFTA), the CAI will have to be ratified by both the EU and its Member States. In that process, there is no doubt national (and some sub-national) parliaments will scrutinise the overall human rights situation in China.
Third, recent technological developments in the area of Artificial Intelligence (AI) will have important human rights implications including in the context of EU-China relations. Since the adoption of the ‘New Generation Artificial Intelligence Development Plan’ by the State Council in 2017, the PRC has established turning the country into a world leader in the area of AI as a strategic objective. Not only do AI-enabled technologies, from facial recognition to the use of AI in dispute resolution, transform Chinese society in depth, but are now also being exported all over the world through the Digital Silk Road. Far from being as advanced as other actors in the development of AI technologies, the EU now tries to establish itself as a leader of ‘ethical AI’ and keeps calling for the regulation of AI (European Commission 2020). It is therefore clear that a number of human rights implications of AI will have to be discussed at both bilateral and multilateral levels not least in view of the transnational nature of most AI technologies. Interestingly, the normative/ethical implications of AI were discussed at the occasion of the EU-China Legal Affairs Dialogue that took place in 2019.
As a conclusion, the EU-China ‘Strategic Partnership’, as it has been called since 2003, can no longer be compartmentalised with human rights being only one of the many issues discussed at bilateral levels. Both the political and economic aspects of the Strategic Partnership are shaped by normative differences between the EU and China. The question should not be how the EU can export these values to China but how the EU can engage with the PRC in a way that responds to both the EU strategic priorities and legal obligations. Critical attempts to understand the prospects and challenges for EU-China relations will probably make us realise that this is only by bridging strategic considerations with normative principles that the EU may make sense of its role as a global actor.
[1] Since the first publication of this blog post, it has been officially announced China and the EU reached an agreement ‘in principle’ on investment.