Got an email the other day from Dirk Chilcote. Dirk did a guest post for us back in March, entitled, An Inside Look At China’s Ghost Cities. Dirk is now a third-year law student at Washington and Lee University. Before that, (from 2008 to 2011) he worked as an English and international studies teacher in Zhengzhou, China and in 2012 he was a Kathryn Davis Peace Fellow at Middlebury College where he studied advanced Mandarin. He currently focuses on international law, specifically US-China policy.
Dirk’s email included a piece he had written on the Shanghai Cooperation Organization and he asked that I let him know what I think. I responded with the following:
Dirk,I like it. It’s well written and it stakes out a strong and interesting opinion.
Frankly, I think you are 100% wrong, so if you don’t mind me taking a torch to your argument (and you shouldn’t if you are going to become a real lawyer someday), then I would love to run it.
Dirk responded by telling me to “torch away.”
So here goes. First will come Dirk’s portion and then mine:
It’s no secret that one of the biggest obstacles to doing business in China is the ever-present fear foreigners possess about the lack of Chinese adherence to formal law. The blogosphere is replete with posts about some businessperson losing his/her shirt in some deal at the hands of the unscrupulous judge. While many of these stories are no doubt true, often these posts start with the assumption that the foreigner’s claim was legally flawless and only failed because of a complete lack rule of law in China.
Though China is still a developing country with a developing legal system, there are trends in China’s legal world worthy of note. For example, last month the Chinese government announced the first meeting of the heads the Ministries of Justice of the Shanghai Cooperation Organization member nations. In a joint declaration, the six full-fledged member countries (China, Russia, Tajikistan, Kyrgyzstan, Kazakhstan, and Uzbekistan) declared that in line with the general Shanghai Cooperation Charter, they would begin to coordinate on various legal matters. Granted, despite its growing significance, the SCO is still a relatively unknown international body. And the US – who itself applied for membership and was rejected in 2005 – continues to criticize it for its anti-Western stance (not unlike Johnny sticking his tongue out at the kids in the tree house after they post the “no Johnnies” sign on the door).
Nonetheless this unprecedented move toward cooperation in regional rule-making should not be overlooked. Though the organization may not want any Western members just yet, rumor has it that India and Pakistan – already observers in the organization — may become full members within the next few years. This kind of regional organization could not only serve as a positive institution for maintaining security and communication but, with the announcement that it will begin to formally coordinate lawmaking, contribute to the creation and adherence of stabilizing laws inside and outside of China.
The SCO has a long way to go before it reaches the level of coordination and stabilizing effect of the European Union, but it is a start. Whether or not you buy the argument that the SCO is more like an Asian version of NATO meant only as a military counterweight to the United States, the fact is that the organization is looking more and more like a comprehensive attempt to foster economic stability for Chinese government and business. If the byproduct of China pursing its economic interests is cultivation of stronger legal norms, then from a business perspective, the SCO in its current trajectory is all upside.
Dirk, Sorry. As much as I would like to believe that China is heading more towards a rule of law regime, and as much as I actually do think it is doing so, but ever so slowly, I think this whole Shanghai Cooperation Organization is irrelevant for the following reasons:
1. I’m a cynic. I have been practicing law for a long time and dealing with places like China for much of that time. I even went to high school in Turkey back when people thought that it would seamlessly become a part of Europe and become just like France. I’m a cynic when it comes to country groups really effecting change. I still have bets outstanding (and on which I believe I will collect) that there will be no EU come 2018 — I made these bets in 2008. Country groupings are fine for reducing tariffs but they do not do much to reduce nationalism and they do even less to effect rule of law change within individual countries. Something like rule of law comes from within, not without.
2. Even if country groupings do help bring about rule of law changes, why in the world would anyone think that this country grouping would have that sort of impact? I mean, let’s get real here Dirk. Does Uzbekistan have anything to teach anyone about rule of law? And maybe it is just me, but when I cannot remember ever having put rule of law and Tajikistan in the same sentence either. And Kyrgyzstan, Kazakhstan, and Russia are not exactly its poster children either. If joining a country grouping is going to impact an individual country’s progression towards rule of law, isn’t it more likely that China will be negatively influenced by these countries, as opposed to positively influenced?
No Dirk, this Shanghai Cooperation Organization — to the extent it is or becomes anything at all — is going to have zero impact on rule of law in China. Zero. Zero. Zero.
Who’s with me?