October 17, 2022

Rule of Law Challenges in Asia and Human Rights Realities

The statements and analysis expressed in this paper are solely those of the author. The Board of Governors of the American Bar Association (ABA) has neither reviewed nor sanctioned its contents. Accordingly, the views expressed herein should not be construed as representing the position or policy of the ABA. Furthermore, nothing contained in this paper is to be considered rendering legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.

Part 1: Edge of Law project between ABA ROLI and the Bar Human Rights Committee of England and Wales

Rule of law has been placed in a perilous state as a result of rising authoritarianism around the world coupled with the rapid pace of technological advancements that are untethered by meaningful ethical and regulatory limits. Traditional notions of freedom of expression and association are challenged by disinformation and propaganda disseminated at scale and social media's tendency to push people into polarized echo chambers. Technology innovations designed to improve government efficiency and security have increasingly shown to have dangerous consequences, such as the encroaching invasion of personal privacy by surveillance systems and the tampering with elections or power grids by big data analytics.

As then-ABA President Reginald Turner noted in his remarks at a joint ABA /LAWASIA webinar on September 15, 2021, Bar Associations and the Pandemic Response, “...as bar associations we have an obligation to be at the forefront of these challenges, helping governments and communities respond in ways that ensure meaningful access to justice, developing laws that respect human rights and promote a fair legal process, and preserving the independence of the legal profession and judiciary both at home and abroad.  No corner of the globe has been untouched and it is clear that collaboration across borders is necessary to address these challenges.”

The Edge of Law project, a joint initiative between ABA ROLI and the Bar Human Rights Committee of England and Wales, brought together lawyers from diverse countries to virtually connect with one another in a network of active discussion and consideration of the fundamental question: How does the legal profession uphold the rule of law and protect human rights? 

During the course of four months, 12 experts from nine jurisdictions met to discuss forced labor, sanctions, digital rights, and judicial independence and the ways in which their countries are addressing these issues. The specific emphasis on Asia recognizes both the strategic importance of this region within the globe and the wealth of expertise often overlooked in the largely Eurocentric discourse on international order. The perceived ideological battle between the world’s two largest economies plays out most acutely in Asia, where governments and people must balance the competing geopolitical interests of the U.S. and the People’s Republic of China (PRC), while simultaneously addressing a host of domestic challenges. 

While there is not a clear way to solve any of these challenges, the discussions that arose during The Edge of Law are an important first step in developing collaborative solutions. This series of discussions culminated in The Edge of Law report, which synthesized the discussions, and provided key recommendations for bar associations, civil society, and governments to strengthen rule of law and protect human rights within their borders and beyond. 

Part 2: The Shift of the CCP Then and Now

For decades, peer-to-peer exchanges have been a critical tool of diplomacy between otherwise adversarial governments. Providing opportunities for shared learning among non-governmental figures creates spaces for better cultural understandings and illuminates a window into an otherwise closed society. Until very recently, shared learning opportunities between the PRC and the rest of the world have helped to shape diplomatic relations, cool escalating tensions, and provide a thoughtful look into Chinese systems that may otherwise be obscured by state media reports. This has changed, however, in the last few years. As U.S. leaders have been more vocal in their criticism of the Chinese Communist Party’s (CCP) leadership of the PRC, and as CCP leaders have sought to consolidate their strength outside of the liberal democratic order, opportunities for people-to-people exchanges have diminished. The number of students traveling between the two countries has dropped precipitously, while likely due to the pandemic, academics have express concern over their ability to conduct research in the PRC, while programs such as the Department of Justice’s “China Initiative” created a chilling effect among Chinese researchers in the U.S..  Moreover, the CCP’s increasing assertion of control over the types of media consumed by the average person within the PRC—and increasingly (distressingly) in Hong Kong as well—has reduced the opportunity for even virtual engagements on the subjects the CCP deems “sensitive.” 

Equally disturbing (and destructive) is how this approach draws ideological lines– countries are forced to engage in a challenging balancing act that reduces the scope of discussions with people afraid of angering allies. With two major powers, the U.S. and the PRC, and their allies increasingly at odds with one another, the need for alternative modes of communication is urgent. As the world adapts to challenges that are global —including building resilience to the impacts of climate change, understanding and fairly regulating emerging technologies, addressing internal and cross-border exploitation of migrant workers, and ensuring that the rights of all people to live a free, fair, and prosperous life are protected—eliminating a source of dialogue between two of the world's largest countries risks ineffective or miscommunication and creates barriers to seeing people from other countries as just that—people.

Preventing this decoupling, then, is a critical task for non-governmental organizations and professional bodies across the globe. Hong Kong provides a unique and significant jurisdiction in which these discussions can take place. Long seen as a gateway into (and more recently out of) the PRC, Hong Kong’s common law legal system, democratic bureaucracy, deep engagement in the international economy, and connections between academic institutions around the globe create a strong foundation where such discussions can take place. 

On September 28, 2022, ABA ROLI and the Bar Human Rights Committee of England and Wales launched The Edge of Law, a report on emerging challenges facing the rule of law. This paper represents the culmination of four virtual discussions held between December 2021-March 2022 subjects including; forced labor, sanctions, digital rights, judicial independence, and recommendations from legal experts across Asia. Hong Kong’s experience featured prominently, including experts who presented on Data Security and Digital Privacy and Judicial Independence, while others discussed Hong Kong’s background related to forced labor, modern slavery, and sanctions. The open nature of the virtual panels also enabled audience members to ask frank questions of the panelists directly, and while people did not always agree, the discourse remained professional. 

The statements and analysis expressed in this paper are solely those of the author. The Board of Governors of the American Bar Association (ABA) has neither reviewed nor sanctioned its contents. Accordingly, the views expressed herein should not be construed as representing the position or policy of the ABA. Furthermore, nothing contained in this paper is to be considered rendering legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. 

Learn more about ABA ROLI’s work across Asia & the Pacific.