By: Gerard J. Sanders
The following is an edited version of the keynote address given by the author, on October 19, 2018, at a conference titled “Rule of Law on the Silk Road,” hosted in Adelaide by the Asia-Pacific Law Forum 2018 and organized by the University of South Australia.
Adelaide and the Silk Road
It is a wonderful treat to be in Adelaide. As everyone knows, this beautiful and historic city is named after the early nineteenth century queen consort of the United Kingdom and much younger wife of the late-marrying William IV. Contemporary accounts describe their domestic living arrangements, both in Hanover and later in England, as “parsimonious,” even “boring.” There is no accounting for being dull, but parsimony may have been explained by William having to support ten children from an earlier relationship with an actress. Or perhaps it owed more to parliament voting for such a small allowance to support the marriage that William thought of calling it off. In any event, we can imagine their frugal homes would have boasted little by way of expensive imports from the Far East, whether porcelain, lacquer, or items of gold and silver, still less the much-coveted luxury commodity that lent its name to the Silk Road.
But the gentry and well-healed merchant classes of Europe would have been accustomed to exotic goods from the furthest eastern reaches of Asia. Economic historians tell us that in Queen Adelaide’s time, on the eve of the Opium Wars, China was the world’s largest economy. It must naturally have been the source of many imports to Europe, although foreign trade played only a limited role in China’s economy. This was so even after recognizing commerce with both tribute-paying neighboring states and merchants from Europe operating under privileged arrangements through coastal cities. Canton was the most important of these for onward shipping, with seaborne trade with Europe having long surpassed in importance transit across the Eurasian landmass, the route most closely associated with what, in 1877, German geographer, Ferdinand von Richthofen, dubbed the Silk Road.
The Demise of the Ancient Silk Road and the Discovery of New Ideas
Difficulties in traversing the land path made more urgent the search for ever more efficient sea routes, particularly from China and South-East Asia to Europe. The voyages of the European seafarers are well known. But they were not alone. For example, in the early fifteenth century, Admiral Zheng He sailed his junks from China to the Persian Gulf and the coast of Africa, returning we are told with a giraffe on board. Possibly he traveled as far as Australia. These expeditions heralded what became known in Europe as the Age of Discovery, sparking a renewed interest in science and enquiry, especially that informed by the observation of nature and reasoning, opening up into the Enlightenment.
This period, the Age of Reason, is closely associated with the birth, or perhaps more accurately, the articulation, particularly in England and France, of liberal conceptions of the rule of law. These were forged by political events and philosophical reflections of contemporaries that are as well-known as they are seminal.
Revolution and Governmental Constraint
In England, the civil war and its aftermath, the Glorious Revolution, the Act of Settlement and the Bill of Rights, together established parliament’s supremacy over the king; that is to say that the monarch, and in the modern sense, the executive, was subject to the law. Echoes of this can be seen in the Magna Carta, many centuries earlier, in 1215, where the king conceded that his powers were not unlimited, and that the exercise of certain sovereign authority was constrained. Some of this authority touched on what we would today understand as human rights, including what can be understood as a right to due process. This is not just very old history. The constitutional subordination of the executive to parliament was only recently reaffirmed by the Supreme Court of the United Kingdom in a proceeding brought to challenge the government’s proposal to initiate the UK’s withdrawal from the European Union without first seeking parliamentary approval.
The judges on the Supreme Court’s panel accepted as a priori the view expressed, in the late nineteenth century, of the constitutional theorist, A.V. Dicey, a jurist who had helped popularize the term “rule of law,” that parliament is sovereign. This is an uncontroversial view today when understood as the UK parliament’s authority in relation to that of the executive. Earlier attempts, most famously by Chief Justice Coke in the seventeenth century in Dr. Bonham’s case, to assert the supremacy of the common law, never gained much traction in English law nor the laws of the Commonwealth generally.
By contrast, in the United States the notion that all authority should be constrained by law took root early. This was achieved at the start of the republic’s history, not only through a formal separation of powers in the constituent document, but by the judicial branch of government early on, in 1803, aggregating to itself, in the case of Marbury v. Madison, the power to determine the constitutionality of decisions of the political branches.
The course taken by the United States in establishing, through its Constitution of 1789, a government of laws and not of men, as John Adams famously stated, followed on from the Declaration of Independence a few years earlier, in 1776. This document and the French Declaration of the Rights of Man and of the Citizen, of 1789, are sometimes together thought of as the two great legal “moments” of the Enlightenment, where the right to revolt against oppression, and to enjoy liberties that are universal, are predicated on natural law.
Although natural law has had its detractors, with Jeremy Bentham having decried natural rights to be “nonsense upon stilts,” the notion has exerted a significant influence on understandings of human rights. The Magna Carta, the English Bill of Rights, the French Declaration of the Rights of Man, and the U.S. Bill of Rights all directly inspired the United Nations Universal Declaration on Human Rights of 1948, a document of immeasurable importance and influence. Of particular note is the third paragraph of the preamble to the Declaration, which recites that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
Rule of Law Rhetoric
This reference to rule of law appears in many documents of the United Nations, often in the context of human rights. The World Conference on Human Rights in Vienna in 1993 saw the General Assembly give renewed prominence to the rule of law. By 2005 the United Nations World Summit was calling for “universal adherence to and implementation of the rule of law at both the national and international levels” and committed its members to “an international order based on the rule of law and international law.” In 2012, a High-level Meeting on the Rule of Law held by the General Assembly resulted in a Declaration on the Rule of Law which provided the most comprehensive treatment of the subject to date. It asserted that “the rule of law and development are strongly interrelated and mutually reinforcing” and that “the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms.” More recently, Goal 16 of the 2030 Agenda, adopted by the UN General Assembly in 2015, places rule of law at the heart of the world’s shared development agenda.
Other organizations outside of the UN system also devote much energy to the rule of law. For example, among policy-oriented international organizations the Venice Commission, established by the Parliamentary Assembly of the Council of Europe, provides legal technical assistance to measure and enhance the rule of law. The Council’s members include countries along or near to the modern Silk Road, including Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Russia, Turkey, Ukraine, and Uzbekistan.
Other policy-oriented organizations engaged in the delivery of rule of law technical assistance include the International Development Law Organization (“IDLO”), which is the only global inter-governmental body dedicated to promoting the rule of law. IDLO’s work program illustrates the breadth of activity that can fall within the rubric of rule of law, with its advocacy and advisory work extending across such diverse spheres as gender justice, food security, rights awareness, and fair trade.
Pursuit of the rule of law has also informed the research and operational policies of other global institutions that foster development. The World Bank’s Doing Business Reports reveal the state of national development using measures that reflect different dimensions of the rule of law. Commercial and financial law surveys of the European Bank for Reconstruction and Development (“EBRD”), which despite its name is active in Central Asia, territory at the heart of the Silk Road, support the EBRD’s view that political and economic openness are positively correlated, advancing and regressing together. Outside of the international financial institutions, other organizations having a global reach also engage in quantitative assessments that bear on the rule of law. Two are well-known. One is Transparency International, which measures the state of corruption worldwide. The other is the World Justice Project whose surveys measure, across most countries, the state of the rule of law with reference to accountability, just laws, open government, and accessible and impartial dispute resolution.
Support on the part of international organizations, including international financial institutions that finance development along the new Silk Road, reflects the enthusiasm of their membership generally for all things rule of law. States and other subjects of international law everywhere profess their adherence to it, often proclaiming the rule of law to be not only essential for sound government and the betterment of the citizenry, but also the panacea for all manner of economic and social ills. This has been possible because the rule of law means different things to different people. Indeed, for some it is an empty slogan. Judith Shklar has said that, at least in an Anglo-American setting, the rule of law “has become meaningless thanks to ideological abuse and general over-use.” And that was in 1987 before what Thomas Carothers has called “the rule of law revival” was in full swing. Unheeded has gone Shklar’s admonition that “no intellectual effort need…be wasted on this bit of ruling-class chatter.”
Among the many people persevering is Brian Tamanaha, who maintains that the meaning of the rule of law is “elusive” and “is like the notion of ‘the good.’” “Everyone is for the good, although we hold different ideas about what the good is.” Nonetheless, some scholars question this, objecting that the uniformity of treatment that rule of law implies operates to reinforce biases, for example about gender and race, and to entrench privileged positions. Still, the elusiveness in meaning has enabled rule of law to be embraced by both the Left and the Right. Simon Chesterman, in an article questioning whether there is such a thing as international rule of law, cites as examples the Marxist historian E. P. Thompson calling it an “unqualified human good” and Hayek giving rule of law a central place in development policy. Similarly, Rachel Kleinfield writes that what can be learned from a study of the academic literature is that the rule of law “emerges looking like the proverbial blind man’s elephant – a trunk to one person, a tail to another.”
Hence, we see for example that in October 2014 the 4th Plenary Session of the 18th Central Committee of the Communist Party of China dealt with the rule of law, the first time in party history that a meeting with the authority of a plenary session considered the subject in any detail. The resultant Communique refers to building a “socialist rule of law with Chinese characteristics” and to the Communist Party “leadership” of the rule of law. This is an expression of the rule of law that many would see as located in a specific place and time. However, the document also calls for “a law-abiding government” and enhanced “protection of human rights in judicial procedures,” concepts familiar to rule of law discourse more broadly. Bound up in these expressions are competing views of what, when reduced from the abstract to the specific, the rule of law means in practice and what it requires. This poses two further questions: does use of the term “rule of law” imply a particular content? and, whatever its content, need the rule of law be universal?
Thin and Thick Conceptions of the Rule of Law and the Power of Language
Addressing the first question, about content, inevitably leads to a discussion about “thin” and “thick” conceptions of the rule of law. The thinnest conception calls for the government and its officials to abide by known rules, equally applicable to all, with state institutions enforcing compliance. Critics argue, as Theo Angelis and Jonathan Harrison do, that this definition “threatens to legitimate governments that are absolutist, but not arbitrary; ruled by means of public and general, but unjust, rules; and supported by a powerful majority, but oppressive to a powerless minority.” Of course, history also throws up examples of where governments oppressing a minority were elected or where the government oppressed the powerless majority. Kenneth Keith, New Zealand’s leading international jurist and a former member of the International Court of Justice, cites Nazi Germany and apartheid South Africa as cases in point.
This kind of criticism of thin conceptions of the rule of law implies, as the UN Declaration on Human Rights and the international and regional standards it has inspired make express, that law-making must implicate the citizenry in some meaningful engagement and that the laws they make must have some minimum moral content. However, those who take issue with such thick conceptions of rule of law reject the inclusion of democracy and human rights. The argument is that rule of law is concerned with legality alone; by contrast democracy is a system and human rights are about standards. It should not be used, as Chesterman analogizes, as a “Trojan horse to import other political goals.”
Nonetheless, thick conceptions of the rule of law are embraced by liberal democratic governments and promoted by their development arms and the international organizations they dominate, including the United Nations and the major development banks. However, all states borrow from the lexicon of thick conceptions of the rule of law; hence we see terms like accountability, transparency, democracy, human rights and, indeed, rule of law itself, consciously appropriated and then assimilated into the language of government, sometimes after being infused with new meanings, ones that better approximate the interests of the ruling elites.
Universality, Cultural Relativism, and “Asian Values”
This use of rule of law language brings us to a second question, namely whether the rule of law should be understood as universal. Certainly, the theorists and statemen of the Enlightenment professed as much, although talk of rights never or barely extended to the least powerful groups who together made up the majority: men without property, all women, and, especially in the New World, indigenous people and slaves. Perhaps we should not be overly critical. After all, the Magna Carta too has left an enduring legacy, but the barons who exacted concessions from a reluctant King John were hardly representative of the marginalized in society and were acting in their own interests. Still, the vision of universalism has long been the dominant one among those articulating and promoting rule of law and human rights.
However, universalism has its critics. Most vocal are those who see the rule of law and rights generally as being properly defined relative to the culture of the host state. What has been referred to as “Asian values” is perhaps the best-known expression of the cultural relativity school. This view of rights holds that the imperative of economic development, where the entire population stands to benefit, trumps any selfish concern of the individual about their professed entitlements. Furthermore, it engenders formal respect for the authority of the government in ensuring stability while delivering progress. As Nadège Rolland’s research implies, relativism allows for a differing vision of international relations than that sponsored by the West and it further allows for a concomitant rhetoric. Thus, to join the Belt and Road project, states need not embrace any particular political ideologies, like accountable government or human rights adherence, but may be “values-free.” According to this vision, development, not democracy, leads to stability and peace. Rules-based governance gives way to a rule of virtue.
This cultural relativism has found some expression in regional legal instruments. Most notably, the Bangkok Declaration adopted by the Regional Meeting for Asia of the World Conference on Human Rights in 1993, while nodding to the universality of human rights, stated that they must be “considered” against a background of “national and regional particularities and various historical, cultural and religious backgrounds.” This reflects a view that “western” notions of rule of law, at least in part, may be alien to the Asian experience and perspective. This retreat from universality has, in its turn, been critiqued by those who argue that cultural relativism assumes a flawed view of Asia or the existence of an Asian cultural homogeneity that does not exist. For example, Alice Erh-Soon Tay, an Australian academic who once headed the Australian Human Rights and Equal Opportunity Commission, said that it would be “either condescending or ignorant to treat “democracy” and the rule of law as unfamiliar to Asian states or as totally new concepts there, having no roots or soil in Asian societies.” In noting that cultural relativism is often invoked by autocratic governments, she goes on to say that the “emergence of human rights as a body of customary international law applicable to all nations means that no nation can hide from it, no nation is safe from charges of abuse.”
Conceptions of Asia
This debate about Asian values references only a small part of the geographical area of Asia. The statistical division of the United Nations has Asia extending west all the way to include Cyprus, a member of the European Union having the euro as its currency. The charter of the Asian Infrastructure Investment Bank (“AIIB”) defines Asia to include Oceania and the entirety of Russia, including the area that a cartographer would locate in Europe.
Whatever its precise geographical boundaries, the territory of Asia – the home of the Silk Road – is vast, accounting not only for much of the world’s land area but also its population and economy and a myriad of its cultures. (Generalizations, therefore, about the meaning of Asian values need to be treated cautiously, perhaps skeptically.) It is in Asia too where the first civilizations emerged, around the Euphrates delta, where written languages were invented and recorded history began, where the great world religions emerged, and where the first written laws were made.
The Nature of Early Laws
The oldest surviving of those laws date to Mesopotamia, to around 2100–2050 BC. The laws of the Babylonian kings provide prescriptive rules, in particular prohibitions and punishments. Meanwhile, at the other end of the Asian continent, laws were emerging in China, with legal codes first appearing in the sixth century B.C. These are located in a period of Chinese legal history, between the eighth and third century B.C., where Confucianism and what is known as Chinese Legalism sparred, with the former emphasizing formal reliance on virtue and role obligations and the latter on regulating behavior, especially through punishment.
These laws, like other ancient laws that appeared in subsequent centuries, are sometimes viewed as “rules of man” or “rule by law.” The Ten Commandments, mentioned in the Old Testament books of Exodus and Deuteronomy, might be understood as rules, not of man, but of God issued on Mt. Sanai. But they too cannot be conflated with the rule of law, the idea that law-making is constrained in some manner. Of course, readers of the Bible are taught that God is merciful; but that implies more the temperate exercise of divine discretion than any inherent limitation of divine power. Adherents to Islam also had one of the earliest systems based on the rule of law: rulers must rule in accordance with the law of God, which is interpreted not by the rulers themselves but by theologians.
In any event, religious and similar views continue to animate thinking about the rule of law everywhere, including along the modern Silk Road.
The Belt and Road
What, then, do we mean by the modern Silk Road? Rolland recounts the many attempts that followed the end of the Cold War to revitalize the route, or perhaps more accurately to invoke its name in support of political projects to connect countries along its path.
The current Chinese lead is known as the Belt and Road Initiative (“BRI”), which dates from 2013. The “belt” refers to the land route of the Silk Road of ancient times and the “road” to the complementary maritime route; hence the earlier, now less-favored name, “One Belt, One Road.” There is no one authoritative definition of BRI, with the contours and boundaries remaining amorphous, perhaps deliberately so in order to retain conceptual fluidity and the prospect of inclusivity.
There is much written about the purpose of the BRI, in particular China’s objectives in launching it. Rolland estimates that in China alone more than one hundred dedicated BRI research institutes and centers have been founded in Chinese universities and think tanks. She cites the China Academic Journals Full-text Database as revealing no less than 8,400 BRI-related articles having been published by Chinese scholars in 2015 alone.
Financing the Belt and Road Initiative
The ambition of the BRI is huge. The Asian Development Bank estimates the infrastructure needs of Asia at $26 trillion dollars from 2016 to 2030 (or $1.7 trillion per year). Substantial amounts of funding for projects along the BRI are being provided by the multilateral development banks (although the amounts are modest relative to bilateral lending from national development and export-supporting institutions). While the MDBs were not established to finance the BRI, they all express support for the initiative as being consistent with their respective mandates and many of the projects that they do finance are in BRI countries.
This embrace is reflected in public pronouncements. For example, in 2017 the major MDBs active in Asia signed an MOU with the Chinese government to forge a “closer partnership for interconnected development.” All of them participate in BRI initiatives, most recently the Belt and Road Forum for International Cooperation, which attracted not only the chiefs of those organizations but the 29 heads of state and government and representatives from more than 130 countries. This underscores the political importance that many states, who together heavily influence the direction, policy choices, and operational priorities of the MDBs, attach to the BRI.
These institutions view investment that supports the BRI as advancing their respective development mandates. Critically, those mandates are furthered for the collective benefit of the membership of these institutions, not the interests solely of those countries who stand to benefit most from implementing the BRI or financing any given project within it. This contrasts with the motivations of individual states, who often provide financial support through their development and export-supporting arms. Understandably those agencies are advancing state interests in accordance with domestically set policy objectives and national laws and standards. Of course, cross-border investment activity of the state can also serve a wider or higher purpose. But the distinction is important because it helps explain why MDBs are different.
International Financial Institutions and the Rule of Law
An important difference is how the rule of law speaks to the governance and operations of those institutions financing projects along the BRI. Turning first to governance, it is important to note first that multilateral development banks are creations of, and therefore governed by, public international law and the terms of the treaties that establish them. To the extent that public international law imposes limitations on how subjects of international law may behave – something which the rule of law operating at the international level seeks to achieve – those constraints apply to international organizations. For example, rule of law principles that are embodied within customary international law bind those organizations directly. Furthermore, while treaties rarely include international financial institutions as parties, such organizations will not do anything that their members themselves would be treaty-constrained from doing. This explains why multilateral development banks avoid working with countries or individuals that are sanctioned by their members generally, even though the particular international law instrument establishing the sanctions regime may not bind the organization.
Most governance constraints on international financial institutions, though, derive not from public international law but from the specific terms of the treaties establishing them. While operational limits are a common feature of the charters of international financial institutions, also appearing occasionally are affirmative obligations of the sort familiar to rule of law discourse. The most striking appear in the charter of the EBRD where the institution is confined to operating in countries “committed to the fundamental principles of multiparty democracy, the rule of law, respect for human rights and market economics.” By contrast, the charters of the other major international financial institutions expressly prohibit consideration of the political nature of the borrowing member when making operational decisions.
But the charters do contend with issues where thicker conceptions of rule of law adherence have something to say, most notably about environmental and social issues, as well as engagement with those affected by projects the MDBs finance. All international financial institutions have adopted policies designed to ensure that projects being financed meet standards which often exceed the minimum imposed by the law of the place where the project is located. The content of prescribed standards varies considerably, but typically addresses not only environmental protection but also social issues such as those dealing with labor standards, gender issues, cultural preservation, and indigenous people.
Where project-affected persons complain that the financing institution has not complied with the international financial institution’s own environmental and social standards, mechanisms for redress are available. The content of these varies considerably but rule of law considerations heavily inform their design.
How, then, does all of this impact our consideration of the rule of law and the Silk Road? Let me conclude with four thoughts:
First, when we talk about the rule of law we need to be careful that we are not speaking at cross-purposes. While most will think of the rule of law positively, we may not be talking about the same thing. In engaging on the subject, are we clear that by the rule of law we discard mere rules of law or rule by law? The outcome worth striving for is one where governments operate under the law and not arbitrarily and where the subjects of the law can reasonably know what it is. For some this is a sufficient outcome, with the correct view of the rule of law excluding considerations regarding how governments ought to be installed and removed and the standards of behavior by which they should abide in relation to their citizenry. For others, rule of law necessarily implies a system of democracy and respect for human rights. Within that latter category, there will be those who emphasize civil and political rights; for others these are either inadequate or, at the other extreme, need to be deprioritized in favor of realizing economic and social aspirations and selected elements of the right to development. We need to consider these differences because of the magnitude of what is at stake.
Secondly, whatever our understanding of the rule of law, ought its meaning in the context of the Silk Road to be influenced by the specificities of the Belt and Road Initiative and the historical and cultural particularities of the countries that run along its route? Does the sheer ambition and impact of the BRI challenge the dominant view of the rule of law as being universal, that is, applicable at all times and everywhere, irrespective of circumstances? Or do we view a universal rule of law as an irreplaceable mechanism that facilitates the proper design, financing, and implementation of projects along the route while protecting the interests of those affected by them? The operating modalities of the Multilateral Development Banks reflect the latter view, but most financing along the BRI is provided from other sources where practices vary. But collectively, all of us would benefit from uniformly high standards. This ought to be a goal to which we aspire.
Thirdly, when we think expansively about the rule of law and the Silk Road, a birds-eye view of a high ideal and of an overarching political initiative may obscure what can be seen and experienced from the ground. When the building of a rural road somewhere along the BRI is being considered, then it is right that we look to the correct processes for ensuring that the project is properly selected, suitably designed, appropriately implemented, and in every manner sustainable. A by-product of this is that local use of these processes can help build development capacity. The most valuable benefit, though, will be in enabling farmers, fishermen, and small producers to get their goods to market faster and fresher, making them more competitive, thereby raising their living standards and creating jobs; reducing the danger to vulnerable people walking long distances to collect water; enabling pregnant women and those with emergency needs to have a level of health care that would otherwise be denied them; and enabling children, including girls, to be bussed to high school for an education they would otherwise not receive. Greater safety and better health and education should lead to greater growth. But Amartya Sen, in his influential book “Development as Freedom,” helped us better realize that, even if growth is not achieved, creating a secure environment in which to live and work, improving the health of the community, and better educating children together expand freedom and are therefore worthy development outcomes. We can also see these achievements, consistent with much rule of law discourse, as better meeting economic and social aspirations and as the further realization of the right to development.
Fourthly, improved infrastructure and enhanced connectivity will not eliminate moral choices. Our rural road somewhere in the BRI may still be used to carry armies for some pernicious purpose, and the children whose busses travel along it to the nearest high school may not all go on to lead socially productive lives. So, we are left with our choices, as we always have been, something which is part of the condition of being human. That frailty, our potential as a society to not treat others the way we ought, especially when we have power or find ourselves in testing circumstances, is part of what makes the rule of law essential.
Gerard J. Sanders is the General Counsel of the Asian Infrastructure Investment Bank. The views expressed in this publication are those of the author and do not necessarily reflect the views of the Bank or its Members. The author wishes to acknowledge the invaluable contributions of Xuan Gao in criticizing earlier drafts, Youzhi Zhang in helping with research, and Beier Lin, Audrey Ortiz, and Steven Wang in providing editorial review. All errors are those of the author.
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