CTN Blog: On our radar: "Constitutional Implications of the Belt & Road Initiative?"

By Cheryl Saunders, CTN Co-Convenor

The Belt and Road Initaitive (BRI), first mooted by the People's Republic of China in 2013, is a global development project of truly enormous proportions in its conception. At its heart are two corridors, to be developed between China and Europe. The Silk Road Economic Belt runs through Central Asia and Russia and draws on historical memories of the ancient Eurasian Silk Road. The Maritime Silk Road runs through South-East Asia, South Asia, West Africa, the Persian Gulf and the Mediterranean. Offshoots extend to the Pacific and potentially further afield: across the Arctic, with a Polar Silk Road and to Latin America.

Well over 60 countries will be directly affected by the BRI, many of them in economically depressed regions of the world.[1] The numbers seem certain to grow. They have been estimated to comprise half the world’s population and almost one-third of the global economy.[2]

The immediate focus of the BRI is economic: the provision of infrastructure, including for transport, and the development of trade. Much of the debate about the Initiative also has had a largely economic focus: whether and how it will work; whether individual projects are useful or viable; whether states will be able to service loans and the consequences if they cannot; the implications of the Initiative for economic development in China itself and, in the context, the extent to which it is propelled by China’s own self-interest.

Inevitably, the Initiative has broader implications for the spread of China’s influence ranging from trade related standards to other incidents of the deepening of a transnational community. Inevitably also, against this backdrop, the BRI has been viewed as a significant geopolitical development, as China’s global influence waxes and that of the United States appears to wane.

The BRI may have constitutional implications as well, for all the countries along its paths.

First, it already has had at least formal impact within China itself. A commitment to "following the principle of achieving shared growth through discussion and collaboration, and pursuing the Belt and Road Initiative," was written into the Constitution of the Chinese Communist Party by the 19th National Congress in October 2017, giving it a normative status in China that it had not had before.[3] Amendments to the Chinese Constitution itself are likely to follow.

Secondly, the BRI has potential implications of a constitutional kind within each of the participating states. Arrangements for entering BRI commitments no doubt vary between the states involved. By way of example, however: at least some states have requirements for public tendering, parliamentary review or other forms of scrutiny designed to protect the public interest that may run counter to the terms and conditions attached to a BRI project.  The resulting tension places pressure on local procedures, which may already be fragile.[4] In an example of another kind, by their very nature, major infrastructure developments within a state, approved by central institutions with foreign investors, can be controversial, cutting across arrangements for devolution, or running foul of environmental, indigenous or other local concerns. In the absence of appropriate procedures within a state to commit to BRI projects, the latter thus may be an additional source of conflict and instability.

One recent announcement suggests yet another way in which the BRI has constitutional implications, affecting both China and participating states. International Courts are to be set up in Xi’an and Shenzhen, with headquarters in Beijing, to deal with trade and investment disputes arising from Belt and Road projects.[5] Reports note the variety of legal systems, cultures and languages in the region and suggest that the new court arrangements would be based on ‘respect for everyone’s legal system’, making it a major exercise in comparative law. The constitutional impact on the participating countries is more direct still. However the international courts are run, they will by-pass national courts and national dispute adjudication procedures, setting up the same tensions over local priorities and national sovereignty that are familiar in the debate over ISDS.[6]

It is trite that the network of transnational arrangements that characterises the current phase of globalisation affects national Constitutions and, perhaps, the concept of a constitution itself. The Belt and Road Initiative is the latest, and one of the largest, additions to an already complex scene. Much more work is needed to understand how it affects the constitutions of the participating states and what constitutional dynamics it is likely to set in train.  ConTransNet has this on our radar and will keep readers updated in future blogs and newsletters.