Written by Christina Ma

Posted on March 25, 2020

In a recent talk for the Centre for Asian Legal Studies, Professor Sarah Biddulph explored the intended and unintended consequences of transparency reforms on government administration in China. Her new book, Good Governance in Economic Development: International Norms and Chinese Perspectives, is co-edited with UBC Law Professor Ljiljana Biukovic.

The concept of “good governance” in economic development is heavily disputed worldwide, but is generally concerned with transparency, accountability and public participation. Often, these norms are imposed top-down by international institutions on nation states and local authorities. At the same time, localities consider local policy goals and institutional capacities before implementing international norms, in a process of “selective adaption”.

Professors Biddulph and Biukovic’s new book asks a different question: is it possible to look at local practice as new episodes in lawmaking, having a “bottom up”  impact on international law? This can also be called the “inside out” perspective. For example, China’s Belt and Road Initiative has impacted international practice on providing loans to developing countries. For instance, the harbor built in Hambantota, Sri Lanka, was funded by the Chinese government through loans on the condition that a Chinese company would be constructing the project. These loans required collateral in the form of long-term leases to China of the port for up to 99 years. There is now potential for a similar framework to be applied to the Gwadar Port in Pakistan.

While the implementation of international standards can lead to good governance, Professor Biddulph further examines an instance where it does not. To join the World Trade Organization, the Chinese government instituted dramatic legal reforms, accommodating the requirements of accountability and transparency in the domestic system. In examining a perverse example where domestic institutions undermine good governance, Professor Biddulph identifies a previously under-recognized problem in the regulation of workplace health and safety: bureaucratic inertia. This problem has been so common across the whole Chinese system that it has been given a term that translates to “lazy governance” and “slow governance”.

Professor Biddulph considers several explanations of the phenomenon: (1) over-politicization, (2) the mismatch of incentives and resources, and (3) mandatory procedure.

First, there is a lack of political support in the enforcement of human rights standards due to over-politization and prioritization of political goals by the Community Party of China (CPC).  It is difficult for workers to enforce their own rights since it requires a multiplicity of steps. Unions in China only have the power to suggest an action to an employer and cannot enforce the order. This increases the importance of government agencies, who have the responsibility to enforce the law. Yet, over-politicization of the workplace creates a culture of impunity for local leaders which discourages them from enforcement of the norms.

Second, President Xi Jinping has emphasizes individual punishment and education. However, institutional and legal issues also contribute to the problem. Workplace safety is a policy area characterized by unclear and overlapping jurisdictional responsibilities. Instructions to co-ordinate in order to solve the problem are issued when a crisis occurs but when the campaign ends, everyone returns to working in their silos. As well, mandates, which are heavily determined by performance targets, incentivize government officials to action. Veto targets are employed which override all other targets. These targets work well in directing officials but they result in blind spots and do not address ordinary, day-to-day performance once the campaign ends. For instance, if a ministry is issued a veto target related to coal mine safety, it would take away attention from the safety of food delivery workers.

Third, mandatory procedures require specific steps which encourage transparency and accountability. However, they impose additional costs and risks that disincentivizes civil servants in government agencies from doing their jobs. Agencies may opt for informal solutions rather than following through with procedure to save costs. As well, there are risks in enforcing the law and, in the instance of workplace safety, employers will likely challenge the agency decision after. Lastly, agencies are only liable if they knew the harm existed and can thus escape liability if they never knew of it. Thus, instead of malfeasance, it is more likely that government agencies will commit non-feasance. This is counterintuitive to the assumption that the main problem in China’s authoritarian system is too much power or the misuse of power.

Professors Biddulph and Biukovic argue that it is fruitful to study how China’s local interpretation of international norms is impacting international law making. Ultimately, by deconstructing the ideas of transparency and accountability, this provides more clarity on China’s role in influencing international norm creation itself.

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