What is China's Belt and Road Initiative (BRI)? To understand China's developmental strategy, its important to consider both China's unique economic structure and its infrastructure network on its own terms, not just as a threat to the United States or legal internationalism.
I taught China's developmental strategy last week. My students began by reading Mark Wu's China Inc. Wu's work is so clear in showing that this is not just about Chinese state capitalism, bur a complex network involving private firms & Party-state control. harvardilj.org/wp-content/upl…
Wu explains how China Inc. came after China's accession to the WTO. I think Wu's work is crucial to understand, especially considering the WTO's centrality to global economic governance. I'd love to have seen Wu follow up considering the digital silk road (he wrote it in 2015).
The BRI is a complex development project. @MatthewErie describes it as megadevelopment in his extensive work on Chinese development. But I think its important to recognize that the BRI operates on a really different developmental strategy than what we've seen before.
After WW2, the US led legal internationalism - the creation of international rules-based regimes built for liberal, market economies to cooperate w/n a global open economy. Past classes covered new institutional economics, with extensive debates the role of legal institutions.
China's developmental strategy is extremely complex, rather than devoid of law, its a mixture of formal and informal instruments. Best primer is @HengWANG_law forthcoming @trade_review piece which lays out a typology of instruments making up China's BRI. cibel.unsw.edu.au/research/artic…
As Wang explains, China uses a complex network of instruments; some are coordinated with minimal legalization and project-based, which is connected to performance agreements and financing Ks. On top of this is the international engagement with WTO & PTAs (incl foreign investment)
@gregorycshaffer@henrysgao offer the best explanation as to how China's strategy "builds from, layers on, and repurposes existing international economic law." My students really enjoyed this framing for appreciating China's position. academic.oup.com/jiel/article/2…
As finance is a big part of this picture, I invited students to consider Jingyuan Zhou's work on BRI financing, as she unpacks how financing combines Chinese policy banks and the State-owned commercial banks, but also the big multilateral development banks for co-financing.
An important point here is that whereas the IFIs require capital-seeking states to adopt legal reforms (in line with Washington Consensus), the AIIB is governed by the principle of "non-interference", and the departure from the doctrine of conditionality.
In a past week we had considered research as to how the World Bank shifted from the original commitment to not interfere in the political affairs of States to a more intrusive formula for good governance and market-driven ideals.
Without disqualifying concerns about the lack of attention to social and environmental interests in these infrastructure projects, China is fostering a developmental strategy that sets its own standards, breaking from past consensus on setting standards from the top down.
But my students noted that even that is too simplistic - because as I showed them @SammSacks@gwbstr New American DigiChina project work - China is actively engaged in fostering international standards, especially relevant for AI tech. newamerica.org/cybersecurity-…
So, a big element to the BRI is that it is not just on land and in the sea. Its everywhere and its data. Data sovereignty is connected to all of this and Huawei is leading the 5G standard. Enter @MatthewErie@t_streinz latest on the Beijing Effect. papers.ssrn.com/sol3/papers.cf…
Like @anubradford's Brussels Effect, Streinz/Erie research shows how companies are involved in building, operating, and maintaining transnational data governance, which is all the more complex when you factor in Chinese party state & Chinese tech companies.
For those students interested, further readings @henryfarrell@ANewman_forward weaponised interdependence and @geoffreygertz work on US-China geoeconomics could be factored in.
What I appreciated was how students sought to understand China's developmental strategy as distinct, rather than a threat to the US or Western rules-based systems. We studied many developmental strategies over term, they tried to appreciate each State/region fosters its own path.
Interestingly, students were keen to understand the benefits of experimentation and non-interference. While also cautious of China's political system and China's central place in a hub-and-spoke system. In this context, they discussed the role of industrial policy for development
I know there's more work being done on China's BRI. @mercuriobryan@MarkusAWagner@HengWANG_law all have further work on this. @MatthewErie has been working extensively on Chinese law and development and has a forthcoming piece with HILJ.
I think in studying the BRI, students came away with a better understanding of the norms of Chinese economic governance, the logic of capitalism, importance of addressing HR, labour, & env't concerns, and the difficulty separating security from economics. /end.
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My class today looked at foreign investment and the goal of development. The initial focus was twofold: first, the HOW, WHY, and WHAT countries sign up for when they conclude investment treaties; and second, the impacts of investment treaties on governance & development.
The groundwork was laid out by @laugepoulsen@JBonnitcha@WaibelM09 great book, The Political Economy of the Investment Treaty Regime. But I paired the introduction and review of the politics of developing countries with a case study on South Africa.
We started with @laugepoulsen article (which is a shortened piece from his book). We discussed the history in South Africa and elaborated on the experience of officials to negotiate these treaties, academic.oup.com/isq/article/58…
Finally able to give serious read @AntheaERoberts@taylor__stjohn recent sum-up of UNCITRAL WGIII talks (TL/DR: take up the pen). The desire to stop high level talks and move to details is a great way to move forward; analogy is to writing - at some point you need to just start.
What is very interesting is the marriage of 2 points by these scholars: 1) EU&MS/Switzerland proposal for text via informal sessions before taking text to broader group; 2) focusing next time on "WHO texts as well as HOW and WHEN that texting occurs."
Its inescapable to compare to WTO struggle to cooperate multilaterally and urgent questions on legality of joint initiatives plus longstanding concerns of developing countries with informal, green room talks. I suspect we will see similar concerns rise up in investment context.
This is an important point from @geoffreygertz and one which @harlangcohen and I have long discussed about the internal debates that led to the creation of USTR. And I hope to support Geoff's ridiculously sharp thread by reflecting on agencies' impact on the trade/security divide
International trading rules structure national security as an exception to rules of non-discrimination and trade liberalisation & this emerged as some saw trade = peace. Security exceptions were important, albeit dangerous for the multilateral trading system = rare formal use.
But the absence of invocation over time never eradicated the significance of national security as a justification or element of international economic relations between countries. As economist Thomas Schelling remarked in 1971, ‘trade policy is national security policy.'
A thread on "Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions", especially for those curious about my big picture thoughts on this project. Michigan J Int'l Law has it up here: repository.law.umich.edu/mjil/vol41/iss…
My intensive archival work into the construction of the security exceptions illuminates, but also complicates, current debates about the interpretation of article XXI GATT, which is relevant for several disputes at the WTO.
My work provides new evidence into the making of the International Trade Organization (ITO), the original post-WW2 multilateral trade institution, through investigation of the internal debates among the lead architects of the exceptions and the ITO preparatory materials.
I’ve seen discussion as to how the judicialization of the WTO is far beyond what the US originally contemplated. What does that mean? I fear, as others do, that the absence of the WTO Appellate Body is not a return to the GATT legal system, it is return to unilateral retaliation.
Without focusing too much on the prescriptions (@nicolas_lamp offers cogent ideas @WorldTradeLaw), the driving force behind the emergence of the multilateral trade system was international cooperation and the shared view that no member should take the law in its own hands.
But, why not go back to the GATT–before the judicialized system? The GATT was a small group of contracting states, and not today's WTO heterogenous group. I note there was thinking about non-market economies, the size of the Chinese economy was not contemplated in the 1940s/50s.
The US has posted its first submission for the US-Certain Measures on Steel and Aluminum Products (s.232 cases). I'll be posting on @WorldTradeLaw about this, as I suspect others will too, but for now, a thread on my initial reactions.
@WorldTradeLaw As expected, the U.S. argues that Article XXI(b) of the GATT 1994 permits any WTO Member to take action to protect its essential security in a manner it considers necessary. It begins with an interpretation pursuant to Article 31 Vienna Convention.
As per the Russia-Traffic in Transit decision, the US argues that Art XXI(b) is entirely self-judging. This means the WTO Member invoking Art XXI(b) may decide what is "necessary", what is "essential security interests" and whether its actions are identified in ArtXXI(b)(i)-(iii)