Sarah Biddulph

The Politics of Law and Stability in China

CONTENTS Preface 1. A Short History of the Arbitral Settlement of Interstate Disputes till the Establishment of the PCIJ 2. The Legislative History of the Optional Clause and its Conception 3. Declarations Accepting the Compulsory Jurisdiction of the Court 4. Admissibility of Reservations to Declarations of Acceptence 5. The Legal Character of the Optional Clause System 6. Reciprocity and the System of Optional Clause Declarations 7. Generally Accepted Reservations to Declarations of Acceptance 8. Destructive Reservations 9. Termination and Amendment of Declarations of Acceptance 10. Objecting to the Courts Jurisdiction 11. Reconsidering the Optional Clause System

Rule of Law with Chinese Characteristics: The Role of Campaigns in Lawmaking

China increasingly relies on its legal system to regulate a broad spectrum of social and economic activity. There is, however, widespread failure to observe the law, which periodically leads to social crises and popular unrest. The Chinese state is not, of course, alone in experiencing this, but it responds to enforcement failures in distinctive ways. This article examines one such response. In this article, we explore the role played by the enforcement campaign in the development of the Chinese legal system. We focus on one campaign in particular: the campaign that was waged between 2004 and 2007 to redress the chronic failure to pay wages. Chinese enforcement campaigns are not simply directed at securing greater compliance with existing law. They are integrally linked to cycles of law reform in the PRC. Whilst their main impact is on enforcement, they also have an important role in influencing the drafting of legislation and the interpretation of law. This article documents the impact of this campaign on the production of law: in speeding up the iterative process of lawmaking, interpretation, and implementation, with production of important reforms to existing labour law in 2007 and 2008. It is the strong “planned” nature of the campaign and its emphasis on state leadership of lawmaking and enforcement that continues to shape the development of Chinas particular version of the “rule of law.”

Criminal Justice Reform in the Xi Jinping Era

This paper reviews current criminal justice reforms that have been initiated in recent years under the governance platform Governing the Nation in Accordance with the Law [ yifa zhiguo ]. 1 These initiatives are helping to reframe criminal justice processes to correspond with the broad governance intentions of President Xi Jinping: finessing center-local power relations, making the authorities in the justice system more accountable for their decision-making, and improving procedures that aim to bring about greater fairness and efficiency. We examine these ongoing reforms in two main areas: the handling of minor crimes and the punishment of serious offenses. We find that yifa zhiguo and the reforms made in its name continue to reflect a highly legalist and instrumentalist vision of law whose goal is to enhance Party-state governance to control dissent and crime more effectively through criminal law, to enhance politico-legal institutional credibility, and, ultimately, to sustain Party supremacy and social stability.

Stability and the Law

Social stability is a top national concern of Chinese authorities. Law is essential to achieving and maintaining stability, in the understanding of these authorities and in practice. This volume therefore explores the place of law in judicial and government activism around managing social instability in China today. In official circles, social stability is understood as the political and social security that accompanies orderly, conflict-free social relations. Instability is manifest in what the Communist Party-state deems unharmonious relations within communities and between individuals and the state, brought about by crime, dispute and protest. Disparity in income distribution,1 the underdeveloped welfare system and weak governance oversight mechanisms in local areas are the root causes of festering social unrest that has swept the nation for at least the last 15 years. Well over 100,000 collective protests annually make stability a major political preoccupation. How local courts and governments marshal the forces of law to deter and punish crime, resolve disputes and manage protest has become a central socio-political concern for China’s governing authorities. Social stability has become a defining sociopolitical goal because the Party-state sees social disorder as a threat to future prospects for economic growth, hence to its own future. The studies in this volume observe interactions between law and the stability imperative and how politics figures in these interactions. These studies reach broadly across matters of law in China, including litigation and mediation practices, substantive law, procedural law reform, anti-corruption initiatives, detention centre operations, parapolicing law and administrative law. Running through these studies are two

Of Ceremonial Columns

In China, a huabiao (华表) is a column made of white marble carved with images of dragons and clouds erected at the gates of places of power – palaces and tombs. Two pairs of 500-year-old huabiao columns grace the entrance and the inner gate to the Forbidden City, facing Tian’an Men Square. Huabiaos guard the sides of the spirit way of imperial tombs, or watch the entrance to the burial sites of marquises, dukes and princes. More than existing for mere aesthetic appeal, their value is iconic: the huabiao pillar is a heavily stylised representation of a dagger-axe. The placement of a dagger-axe at the gates of palaces of power – be it the power of the living emperor, or one of his ancestors – is a potent visual reminder of the power to take life, or allow life to be lived. Until the birth of the modern nation-state, such a prerogative was vested in the mystical body of emperors and kings. Then, it became an attribute of the leviathanic body of the state. The story of the huabiao highlights a number of important questions about justice explored in this volume: What are the symbols of justice? What are the changes over time in these symbols and what do they symbolise exactly? And then there are the underlying questions of agency: In whose hands lies the doing or delivery of justice? Who controls the language of justice?

Detention and Its Reforms in the PRC

This article reviews forms of detention and their reforms in the People’s Republic of China ( PRC ). We examine the changing scope and uses of both administrative and criminal detention powers in the reform period and the impact of changing politics, ideology, and law in reform of both detention powers and institutions.In Part 1, we focus on the continuities and discontinuities in the ideology of punishment, the perceived role and uses of detention in shaping society and in social control. In Part 2, we explore the factors relevant to the reform or abolition of range of administrative detention powers. We seek to understand how reforms have occurred, where they have stalled and where they are now possible. We ask how relevant these considerations are to the reform of criminal detention powers and find some distinctive features, not least of which is the comparative rigidity brought about by legal codification. We also note that reform to some administrative detention powers has been accompanied by an expansion in the criminal justice system. Our analysis illustrates that not only is there a wide range of people that the Party-state considers deserve to be placed outside of society, but also that in contemporary China detention is still considered to be a very useful form of social management and control.