I Introduction
Given the rapid development of data analytics, computational power, machine/deep learning, and other advances in information and communications technology (ICT), a wide range of artificial intelligence (AI) applications and systems have penetrated every sphere of society, with significant economic, legal, ethical, and political ramifications. A term first coined by John McCarthy and his collaborators at the Dartmouth Summer Research Project in 1955, AI has experienced both booms (AI summers) and busts (AI winters) for seven decades, but now readily promises a new wave of industrial and technological revolution.Footnote 1 Artificial intelligence has reemerged as an umbrella term covering machine/deep learning algorithms, robotics, autonomous systems, and natural language processing, among others, as well as an enabling technology that promises to transform the world through self-driving vehicles, digital assistants, robo-advisors, automated mortgage approval, legal services, law enforcement, and court proceedings, all driving significant changes and disruptions across jurisdictions and sectors.Footnote 2
The rise of AI technologies has also raised concerns and controversies. Algorithmically powered tools have been widely adopted in contemporary workplaces to forge business practices for the purposes of efficiency, productivity, and management.Footnote 3 Camera surveillance, data analysis, and ranking and scoring systems are algorithmic tools that have given employers enormous power over their employees, yet their use also triggers serious controversies surrounding privacy, ethics, labor rights, and due process protections.Footnote 4 Apart from businesses, governments are among the primary users of AI-powered tools to surveil, sort, profile, and rate their citizens, creating a data-driven infrastructure of preferences that condition people’s behaviors and opinions.Footnote 5 China’s social credit system, Australia’s robo-debt program, and the welfare distribution platform of the United States (US) are prime examples of how governments employ automated decision-making to allocate resources and provide public services.Footnote 6 The use of algorithmic risk assessment tools to support judges’ sentencing decisions has been particularly problematic.Footnote 7
A growing body of literature has explored critical dimensions of the promises and perils of AI and the need for regulatory responses. Some have pointed to rule of law deficits in the automation of government functions, especially through the use of preprogrammed rules such as expert systems, as well as predictive inferencing systems trained with historic big data.Footnote 8 Others have emphasized how such technologies systematically fuel inequalities due to the typically unintentional bias against and harm to underrepresented populations.Footnote 9 Still others have argued that a society constantly being scored, profiled, and predicted generally threatens due process, justice, and human rights.Footnote 10 While much ink has been spilled on the imminent and critical issue areas of AI law and policy,Footnote 11 given the nature of AI as an enabling, infrastructural technology situated in an evolving socio-techno complex, according to Carrillo, systematic and comprehensive research on AI remains “relatively limited,” if not impossible.Footnote 12 Some of the existing scholarship focuses on a specific issue area, such as autonomous vehicles, smart cities, or algorithmic healthcare, and provides an in-depth analysis of legal, policy, and ethical ramifications, paving the way for regulatory reconfiguration.Footnote 13 Other research explores the regulatory trajectories, preferences, and (proposed) models of the industrialized jurisdictions, such as the European Union (EU) and the US, alluding to their potential for global reference or normative diffusion.Footnote 14 While some portions of existing scholarship discuss global or comparative perspectives, few touch upon issue areas that directly resonate with the diverse context and dynamics of the non-Western world.Footnote 15 Worse, despite the considerable impact of AI on most Asian countries,Footnote 16 there is a significant gap in the literature on AI governance in Asia. The current AI governance literature could benefit from a contextual discussion of how Asian jurisdictions perceive and respond to the challenges posed by AI, as well as how they interact with each other through regulatory cross-referencing, learning, and competition.
This chapter therefore aims to explore various contexts and dynamics of interactions among (East) Asian countries – including China, Japan, Korea, Taiwan, and Singapore – and to examine whether, when, and how the paths of their legal and policy actions cross each other. The diverse legal systems and practices in East Asian countries may affect how governance models are designed to harness AI. How are governments in East Asia (re)shaping their regulatory approaches and institutional designs in response to the multifaceted challenges of AI? Have any normative interactions (or convergences and divergences) emerged in the region, and if so, why? This chapter hopefully offers a clearer picture of the origins and trajectories of various AI governance models in (East) Asia, as well as a contextual understanding of the dynamic interactions between key countries in the region.
II The Rise of AI Governance: Key Players and Initiatives in Asia
As AI systems are increasingly deployed in common and consequential contexts, society is according greater attention to how to govern them. Many governance initiatives – adopted by governments, industry sectors, and hybrid organizations at domestic, regional, and transitional levels – are being deliberated and implemented with the aim of responding to the challenges posed by AI. This section will identify the key players in AI governance in East Asia and their legal and policy initiatives.
A. First Movers in AI Governance in Asia: China, Japan, and Singapore’s Agile Approaches
In Asia, more and more jurisdictions are developing or experimenting with ways of governance in response to AI’s promises and challenges. Among them, the governments of China, Japan, and Singapore are the most active and agile nodes of governance in the region, as they have acted relatively early, contemplated or tested multiple versions and models of governance, and attempted to influence the law and policy landscape beyond their domestic contexts. In terms of Korea and Taiwan, while their industries and academia are generally vibrant in the issue area of AI, these governments have demonstrated less regulatory entrepreneurialism, due to their preference for hard(er) law and their pro-innovation orientation, in effect embracing a wait-until-the-time-is-ripe approach. This chapter examines and characterizes these countries’ respective governance initiatives below.
Viewed by many as a “global leader in AI,”Footnote 17 China not only has taken the lead in AI-related research but has also developed a rigorous set of instruments for AI policy and standards, with the broader aim of shaping global rules and securing the dominance of Chinese AI industries.Footnote 18 As early as 2017, China’s State Council announced the “New Generation Artificial Intelligence Development Plan,” which marks 2025 as the year for China to establish a comprehensive system of AI law, policy, and ethicsFootnote 19 and which highlights the need for market trust, innovation, and ex ante regulation.Footnote 20 In the same year, China’s Ministry of Science and Technology created the Office of the Development and Advancement of the New Generation of Artificial Intelligence, which serves as a coordinating body for fifteen other relevant agencies.
The first white paper on AI standardization, highlighting the gaps in AI safety and ethical norms and the need for standards harmonization, was published in January 2018 by the China Electronics Standardization Institute.Footnote 21 In 2019, the National New Generation Artificial Intelligence Governance Expert Committee released “Governance Principles for a New Generation of Artificial Intelligence: Develop Responsible Artificial Intelligence,”Footnote 22 which sets out eight responsible AI principles with “Chinese characteristics” (which may differ from “AI ethics developed in the Western contexts that emphasize more on individual rights and do not always put the collective at the forefront”)Footnote 23 but simultaneously emphasizes the importance of cross-border dialogue and collaboration.Footnote 24 A number of other AI governance policy papers and initiatives were also adopted or revised from 2019 to 2021. In April 2022, the China Academy of Information and Communications Technology (affiliated with the Ministry of Industry and Information Technology) published the “2022 White Paper on Artificial Intelligence.”Footnote 25 This 2022 White Paper stands out from previous governance instruments because it explicitly points out the imminent risks of AI, such as an algorithmic black box, bias, and discrimination, and makes references to international practices, including those in the US, the EU, Japan, G20, Organisation for Economic Co-operation and Development (OECD), and the G7.Footnote 26 In July 2023, the Cyberspace Administration of China released the “Interim Measures for the Administration of Generative Artificial Intelligence Services,” which regulates generative AI’s development and application considering its social and political implications.Footnote 27
The trajectory of China’s development in AI governance indicates a gradual shift toward clearer, stricter, harder, and more centralized rules for AI governance, with the involvement of all relevant agencies.Footnote 28 Having said that, China has yet to enact a unified, comprehensive AI law nationwide,Footnote 29 although many have been proposed.Footnote 30 According to Weixing Shen and Yun Liu, given that certain pressing issues surrounding AI governance have been addressed by specific laws and regulations (such as data-driven price discrimination),Footnote 31 the soft-law policy papers, principles, and guidelines appear to be adequate at this moment in striking a balance between technological innovation, economic growth, and social governance in a practical sense.Footnote 32
Japan is among the earliest movers in AI and has been keen to leverage industry expertise and resources in shaping the country’s AI governance. Beginning in 2016, the Ministry of Internal Affairs and Communications (MIC) initiated the “Conference toward AI Network Society” to engage with industry, academia, and civil society and foster a multi-stakeholder dialogue.Footnote 33 From 2017 to 2022, the outcomes of the deliberations of this Society were published annually as a report that consolidated developments in AI governance in Japan and internationally.Footnote 34 While such reports do not carry legal force, they hold fairly strong reference power and serve as the nationwide public–private forum and the common basis for policymaking in AI governance. Notably, this Conference helped the Japanese government prepare the “Draft AI R&D Guidelines for International Discussions” as early as 2017 – which propose nine principles for AI research and development, including collaboration, transparency, controllability, safety, security, privacy, ethics, user assistance, and accountability – to serve as the anchor for deliberations in the G7 and the OECD.Footnote 35 On this basis, in 2019, the MIC further developed and issued the “AI Utilization Guidelines: Practical Reference for AI Utilization,”Footnote 36 and the Cabinet Secretariat’s Integrated Innovation Strategy Promotion Council further announced the important “Social Principles of Human-centric AI,” which enumerates fundamental principles on human-centeredness, education, privacy, security, fair competition, fairness, accountability, transparency, and innovation.Footnote 37 Both instruments served as important inputs toward the OECD’s normative activities,Footnote 38 as Japan has been the leader in the AI expert group at the OECD and the OECD Council on Artificial Intelligence that drafted the OECD AI Principles, which are fairly similar to Japan’s principles.Footnote 39
The Ministry of Economy, Trade and Industry (METI) has also issued a few instruments aiming to address specific AI challenges. In 2018, it released the “Contract Guidelines on Utilization of AI and Data Released,” which can serve as a practical template for business transactions and collaboration on AI and big data.Footnote 40 Given AI’s trade, economic, and industrial implications, the METI also adopted a general policy paper in 2021, which was then updated in the same year, taking into account relevant international practices (such as the EU, Singapore, the US, International Organization for Standardization (ISO), and Institute of Electrical and Electronics Engineers (IEEE)).Footnote 41 The METI’s policy paper noted that “[b]ased on the opinions of industries and the direction of improvement of literacy … legally-binding horizontal requirements for AI systems are deemed unnecessary at the moment.”Footnote 42 The METI later issued its first comprehensive “Governance Guidelines for Implementation of AI Principles”Footnote 43 in 2021, based on a consolidated understanding of existing key codes of conduct, guidelines, and policies to offer concrete albeit voluntary action targets for the “Social Principles of Human-centric AI,” and again updated the Guidelines in 2022.Footnote 44 In 2024, the METI and the MIC integrated and updated the existing guidelines, compiled expert deliberations, and jointly released the “AI Guidelines for Business Ver1.0.”Footnote 45 Overall, perhaps due to the “techno-animistic tradition,” a relatively open attitude toward technology, robotics, and AI in society,Footnote 46 and more trust placed in industry self-regulation, Japan’s AI governance strategies have largely been on the soft side, highlighting the need for promoting innovation in the context of certain fundamental principles rather than establishing binding rules.
Singapore has been able to act quickly on AI governance by building on the existing international normative benchmarks. At the World Economic Forum in Davos in 2019, Singapore’s Personal Data Protection Commission (PDPC) released the first edition of the “Model AI Governance Framework” with the Infocomm Media Development Authority (IMDA), providing specific implementation guidance for the private sector worldwide and aiming to garner broader adoption and feedback.Footnote 47 A revision of this Governance Framework was issued in 2020, together with the “Companion to the Model AI Governance Framework: Implementation and Self-Assessment Guide for Organisations,”Footnote 48 the latter of which resulted from a partnership between PDPC, IMDA, and the World Economic Forum Centre for the Fourth Industrial Revolution.Footnote 49 Both of these instruments are closely aligned with their international counterparts (in particular, with those adopted by the European Commission’s High-Level Expert Group, the OECD Expert Group on AI, the IEEE, and the Software and Information Industry Association) in upholding core principles that AI-based decisions should be transparent, explainable, and fair, and that AI-based systems should be “human-centric.”Footnote 50 The Governance Framework also includes recommendations involving internal governance structures and measures, the human role in AI-augmented decision-making, operations management, and stakeholder involvement.Footnote 51 A Compendium of Use Cases was further published by IMDA and PDPC, featuring real-world examples of how various entities have implemented or aligned their practices with Singapore’s Model AI Governance Framework.Footnote 52 The IMDA and PDPC then launched the AI Governance Testing Framework and Toolkit “A.I. Verify” for businesses, which aim to align with the Model Framework in a verifiable manner. The Model Framework has already garnered initial support from companies such as Google, Microsoft, and DBS Bank.Footnote 53 In May 2022, AI Verify was released as a minimum viable product for an international pilot.Footnote 54 Singapore cooperated with the US on the interoperation on their AI governance framework.Footnote 55 All in all, it seems clear that Singapore has been moving swiftly to embrace international instruments in a rather aggressive manner, and in converting them into implementable practices. The primary focus of Singapore’s AI governance seems to remain closely connected to international benchmarks, to help the private sector identify practical and operational rules, and to provide regulatory clarity to the business environment.
B. Korea and Taiwan’s Hard-Law Incrementalism
The Asian Business Council regarded Korea and Taiwan as the “more resilient economies to AI-induced changes,” along with Singapore and Japan, based on their preparedness in the areas of data openness, AI-related tax credits and subsidies, government funding for AI development, policies targeted at job displacement, social safety nets, and the legal responsibilities of AI systems.Footnote 56 Yet, both countries have been relatively incrementalist in AI governance, implementing few initiatives, partly due to both countries’ preference for a hard-law approach backed by the legislature rather than administrative entrepreneurialism.
Korea moved early in adopting a hard-law framework in AI governance at the general level. In 2020, Korea adopted the “Framework Act on Intelligent Informatization,”Footnote 57 a comprehensive amendment that renames and replaces the old “Framework Act on National Informatization of 2009”Footnote 58 (formerly the “Framework Act on Informatization Promotion,” which sought to establish the policy foundation for promoting the ICT industry).Footnote 59 The purpose of the Framework Act on Intelligent Informatization is to realize a smart, well-informed society, to ensure national competitiveness, and to promote the well-being of the population under the fundamental principles of freedom and openness, human dignity and values, safety, privacy protection, and public–private collaboration, among others.Footnote 60 The Act also authorizes the Ministry of Science and the ICT to promulgate AI-related policies,Footnote 61 pursuant to which the Ministry and the Presidential Committee on the Fourth Industrial Revolution announced the “Draft of the National AI Ethical Guidelines,”Footnote 62 with three principles (human dignity, public good in society, and fitness for the purpose of technology) and ten general goals in November 2020 and the “Strategy to Realize Trustworthy Artificial Intelligence”Footnote 63 in May 2021. While the Framework Act on Intelligent Informatization is more legalized, it does not include specific implementable requirements. Additionally, the softer governance instruments that have been adopted under the framework seem to remain high-level, general, and abstract. More recently, the Science, ICT, Broadcasting and Communications Committee of the Korean National Assembly proposed the “Act on Promotion of AI Industry and Framework for Establishing Trustworthy AI” in February 2023,Footnote 64 which aims at ensuring the safety of and trust in high-risk AI technologies.Footnote 65 While the proposed Act has not been finalized, it is known to take the “adopting technology first and regulating later” approach, so as to promote AI innovation and economic development.Footnote 66
In 2017, Taiwan’s Ministry of Science and Technology (reorganized as the National Science and Technology Council) began to pour significant research funding into various fields of AI research and development, including the law and policy groundwork.Footnote 67 Taiwan is also regarded as “a good example for other countries in East Asia,” scoring high in innovation capacity and “having established an R&D framework based on co-innovation between Taiwanese and international companies.”Footnote 68 In some specific issue areas, Taiwan has adopted a hard-law approach to strike a balance between technological innovation and regulatory stability, albeit with a limited scope of application. Noting the disruptions posed by AI, especially when some autonomous vehicles may have been introduced in the market, the “Unmanned Vehicles Technology Innovative Experimentation Act” was enacted in 2018.Footnote 69 It authorizes the Ministry of Economic Affairs to set up a sandbox to regulate the development and testing of autonomous vehicles.Footnote 70 Similar developments appear in the financial sector, such as the enactment of the Financial Technology Development and Innovative Experimentation Act in 2018.Footnote 71 In September 2019, after consulting with experts in AI, the Ministry of Science and Technology announced the “AI Technology R&D Guidelines,” which incorporate three core values – human-centric, sustainable, and inclusive AI – as well as eight guidelines.Footnote 72 The AI Technology R&D Guidelines emphasize the importance of being aligned with relevant international benchmarks and make explicit reference to the “Ethics Guidelines for Trustworthy AI” prepared by the EU’s High-Level Expert Group on Artificial Intelligence, Japan’s “Social Principles of Human-centric AI,” the OECD AI Principles, and the IEEE’s Ethically Aligned Design.Footnote 73 Nevertheless, the AI Technology R&D Guidelines contain only high-level, concise guidelines (comprising only three pages for eight guidelines) and do not seem to be operable or implementable in practice.
In 2019 and 2020, a proposal on the “Basic Act for Artificial Intelligence Development” was introduced in the Legislative Yuan, referencing models and practices found in the US, the EU, the United Kingdom (UK), China, and Japan, but this proposal went no further.Footnote 74 In 2023, the Executive Yuan again postponed the proposal of the Basic Act, considering the changing technological landscape and the need to align with the other regulatory frameworks worldwide.Footnote 75 Nevertheless, faced with the acute challenges posed by the sudden rise of generative AI, the Executive Yuan issued “Guidelines for the Use of Generative AI by the Executive Yuan and its Subordinate Agencies” in late 2023.Footnote 76 In the same year, the Financial Supervisory Commission issued “Core Principles and Policies for AI Applications in the Financial Industry” to strengthen risk management in financial AI technologies.Footnote 77 Overall, Taiwan, like Korea, has a strong focus on technological and economic development and a modest preference for a hard(er) law approach,Footnote 78 which has resulted in its wait-until-the-time-is-ripe approach to AI governance. While there are some guidelines adopted by sector-specific regulatory agencies for certain issue areas with a narrow and concrete scope of application, a hard-law incrementalism seems preferred.
III Inter-Asian AI Governance? Normative Trajectories and Interactions
Interactions in shaping AI governance across East Asian countries have merit and should play a role in the development of AI governance. Some interactions can be encouraged through channels of cross-reference – the laws, frameworks, guidelines, principles, and use cases – while others may be facilitated by informal mutual dialogue, the exchange of best practices, and regulatory learning. Regular, dynamic interactions will likely result in constructive normative outcomes across jurisdictions, together contributing to global AI governance. Moving forward, two dimensions are worth noting in terms of Inter-Asian Law (IAL) and AI governance, as this chapter unfolds below.
A. Promoting Interactions in the Context of Divergent Regulatory Preferences and Technological Competition
Depending on issue areas – climate change, healthcare, financial services, ICT, food safety, and the pandemic – countries with different historical and socioeconomic underpinnings, as well as varying constitutional, administrative, and political environments, tend to diverge in their preferences in regulatory approaches.Footnote 79 This cannot be more evidently demonstrated than the case of genetically modified organisms regulation and the two regulatory extremes of the EU and the US.Footnote 80 Increasingly, regulatory preferences can amass and result in a path-dependent effect in a given issue area, leading to regulatory divergence and even cross-border conflicts.Footnote 81 In some cases, jurisdictional competition in an issue area shapes and reshapes countries’ regulatory preferences and strategies.Footnote 82
In the area of AI governance, while there are numerous voluntary guidelines and principles, divergences in regulatory practices prevail on the ground,Footnote 83 making normative interactions dynamic. For many Asian countries, AI has been regarded as a necessary area for socioeconomic development over the coming decades, and the primary objective of governance is therefore to “create an enabling environment for AI development and deployment.”Footnote 84 Apart from the practical value of incorporating and influencing international benchmarks (such as saving costs in contemplating new rules, seeking legitimacy, or competing for leadership in global AI governance), there is a need for Asian countries to examine each other’s governance initiatives, given the differences underlying their respective political systems, legal traditions, and social contexts,Footnote 85 to secure better competitiveness. Having said that, the established regulatory preferences, legal practices, institutional arrangements, and government–business relationships mean that there are transaction costs whenever a path change takes place,Footnote 86 but more interactions promote mutual understanding and regulatory learning, paving the way for cooperation.
Some East Asian countries have interacted with, and learned from, each other when developing their AI governance frameworks, in addition to referencing relevant international guidelines and principles. Due to the competition among China, Japan, Korea, and Taiwan in the global technology supply chain,Footnote 87 it is crucial for them to stay tuned to each other’s regulatory moves and connected to the international governance vibes. In their eyes, aligning with common standards at both IAL and global levels helps promote industry competitiveness, technology development, and an export-oriented economy, contributing to the maintenance of an enabling environment for AI.Footnote 88 For instance, China’s “2022 White Paper on Artificial Intelligence” explicitly refers to international normative instruments adopted in the G20, the OECD, the G7, the EU, the US, and Japan. Japan’s METI policy paper on “AI Governance in Japan” takes into account international practices of the EU, the US, the ISO, the IEEE, and Singapore. Additionally, Singapore ensures that its practical guidelines closely align with their international counterparts, particularly those adopted by the EU, the OECD, and the IEEE. Taiwan, in turn, looked to most of the above countries in setting its “AI Technology R&D Guidelines” and its proposal on the “Basic Act for Artificial Intelligence Development” – the EU, the US, the UK, France, the IEEE, the OECD, Japan, and China. While the inter-Asian cross-reference activities in AI governance have not been full-fledged, there has been a growing practice of inter-Asian learning. Practically speaking, some of the development and application of AI touches upon sensitive social and ethical values, as well as on public morals, and countries may in the end need to resort to shared standards in the region if not globally.
B. Supporting Inter-Asian Institutions as Forums for Governance Dialogue
There is also a need to support regional institutional settings for Asian countries to actively engage with each other (and the world), to forge consensus and collectively invest in substantive norm-making. For instance, the Asia-Pacific Economic Cooperation (APEC) has actively engaged in many AI-related policy activities. In December 2020, China, Chile, Mexico, and New Zealand cohosted the Learning Workshop in Artificial Intelligence: Experiences of APEC Economies to exchange views on various AI governance issues.Footnote 89 Also in 2020, the APEC Business Advisory Council (ABAC) released a report on AI adoption in APEC economies, which noted that APEC members have yet to forge a consensus surrounding critical AI issues, but pointed to the need for greater cooperation on coherent regulatory compliance requirements.Footnote 90 More recently, APEC published two case study policy reports, “Artificial Intelligence in Economic Policymaking”Footnote 91 and “Artificial Intelligence (AI) Policy Recommendation on Digital Transformation for Healthcare Ecosystem – Case Study Report,”Footnote 92 to contribute to regional and global dialogues. Also, in the area of data privacy, Japan, Korea, Singapore, and Taiwan, together with Canada, the Philippines, and the US, jointly adopted the Global Cross-Border Privacy Rules Declaration in late 2022 to ensure the free and secure flow of data.Footnote 93
In addition to APEC, which serves as a forum for inter-Asian AI governance dialogue, it is desirable to foster institutional venues and platforms for Asian countries to exchange best practices, forge a consensus, or draft substantive rules and guidelines. This resonates with the fact that Japan, Singapore, and China have been actively participating and sometimes playing leadership roles in both regional and international platforms. Notably, Japan hosted in November 2022 the Global Partnership on Artificial Intelligence (GPAI) Tokyo Summit, attended by member governments in Asia and beyond, which together adopted the “GPAI 2022 Ministers’ Declaration,” which confirms key commitments, including “protecting and promoting human-centred values and democracy that underpin an inclusive, development-oriented, sustainable and peaceful society,” “[opposing] unlawful and irresponsible use of artificial intelligence,” and is also committed to “[upholding the] multistakeholder approach and … stronger cooperation between public and private actors.”Footnote 94
One potential institutional setting for inter-Asian AI governance dialogue is the Digital Economy Partnership Agreement (DEPA), a module-based collaborative framework initiated by Singapore, Chile, and New Zealand in 2020 to forge common standards and practices that will promote data-driven trade and commerce, emerging technologies, and digital inclusion.Footnote 95 The DEPA includes provisions for Parties to cooperate in “developing ethical and governance frameworks for the trusted, safe and responsible use of AI technologies,”Footnote 96 and calls on its Parties to “promote the adoption of ethical and governance frameworks that support the trusted, safe and responsible use of AI technologies (AI Governance Frameworks).”Footnote 97 Despite its “best efforts” wording, DEPA moves well beyond the Comprehensive and Progressive Agreement for Trans-Pacific Partnership’s and Regional Comprehensive Economic Partnership’s e-commerce (or data flow) chapters in providing a concrete direction, key values, and a template for AI governance.Footnote 98 These are promising first steps toward institutionalized cooperation in inter-Asian AI governance, especially when considering that both China and Korea have applied to join DEPA.Footnote 99 Given its flexible institutional design and inclusive setting, in the long run, DEPA may serve as an important institutional forum for dialogue, the exchange of best practices, the establishment of a common playbook of general principles, and cooperation among (Asian) countries in AI governance.
IV Conclusion
As AI continues to develop and permeate various aspects of society, the need for robust, contextually aware governance frameworks becomes ever more critical. This chapter has examined the dynamic interactions among key East Asian countries, highlighting their diverse regulatory approaches and the importance of normative interactions such as mutual learning, exchange of best practices, and institutionalized cooperation. While China, Japan, Singapore, Korea, and Taiwan each exhibit their own strategies in addressing AI governance, shaped by respective political, legal, and socioeconomic contexts, the evolving nature of AI technology necessitates continuous adaptation and alignment with shared norms and standards, at both the IAL and global levels. The increasing practice of inter-Asian regulatory cross-referencing, joint efforts, and cooperation through international forums underscores the region’s recognition of the benefits of shared standards and collaborative governance. In particular, initiatives like DEPA offer promising platforms for fostering dialogue, best practices exchanges, and the development of AI governance. As East Asian countries navigate the complexities of AI governance and continue with regulatory experiments, leveraging regional institutions and facilitating normative interactions remain crucial to develop collective insights and frameworks that serve as vital references for global AI governance discourse.
I Introduction
Various cities worldwide are engaged in smart city projects, seeking effective solutions to urban issues (e.g., traffic congestion, waste management, and housing) and global ones (e.g., climate change, energy consumption, and population growth). With the onset of the 2019 coronavirus disease (COVID-19) pandemic, smart city projects began to receive increasing attention. While smart city policies are linked to specific urban policies (e.g., smart mobility and smart grids), smart cities are currently understood as a more “holistic” solution to various urban issues. Moreover, smart cities cannot be discussed without mentioning big data or artificial intelligence (AI) technologies.
This chapter is inspired by the “smart city” debate that started in the 2000s, led by scholars in the fields of geography and sociology engaged in urban research. On the one hand, a vast body of literature exists on smart cities against the backdrop of the proliferation of “corporate-oriented smart cities.”Footnote 1 The scholarship criticizes “technology-driven, market-led, and top-down” smart city projects led by big information and communications technology (ICT) corporationsFootnote 2 because they usually propose “one-size-fits-all” solutions for urban development.Footnote 3 On the other hand, instead of such an ICT-centric approach, the smart city scholarship suggests “inclusive,” “participatory,” and “citizen-centric/people-centric” approaches.Footnote 4
However, such debates have largely occurred in the context of European and North American smart city projects. It has been argued: “there are no clear answers as to what a smart city is – anywhere in the world… Most smart city definitions and, thereby its scope, are all western.”Footnote 5 This chapter builds on this core observation and asks whether Asian smart cities provide an alternative to those of the West and, related, what patterns and relationships are observable between Asian approaches?Footnote 6 While the purpose of this chapter is not to provide a comprehensive comparison between Western and Asian smart cities, it suggests that there may be important differences and that these are most fruitfully explored in inter-Asian contexts.
In this regard, the literature on Asian smart cities is growing; scholarly work includes not only case studies (e.g., Singapore, India, China, and South Korea) but also wider comparative studies among Asian countries.Footnote 7 Following this emerging literature, this chapter provides a basis for Asian models by analyzing how Japan, and competitors including South Korea and China, engage with member states of the Association of Southeast Asian Nations (ASEAN) on smart city projects. In particular, it highlights the role of Japan in shaping the ideas and norms of smart cities by exporting smart solutions. Exporting the ideas of smart cities can eventually affect urban governance, including legal infrastructures that local governments adopt. With this analysis, this chapter contributes to the study of Inter-Asian Law (IAL).
The remainder of the chapter is organized as follows. It begins by explaining the complexities embedded in smart city research, including the hard and soft law dimensions in smart cities. Next, it provides an overview of Asian smart cities and explains some of their features. Then, this chapter examines smart city cooperation between Japan and ASEAN countries. Discussion section considers the potential diffusion of the smart city concept and urban governance through Japan–ASEAN smart city cooperation, while simultaneously examining possible regulatory competition among Japan, South Korea, and China to export smart city projects into ASEAN countries.
II Complexities of Smart Cities
In the smart city literature, there has been a long scholarly debate on the definition and concept of smart cities. Since this chapter’s purpose is not a full analysis of the scholarly debate, the chapter provides the Organisation for Economic Co-operation and Development (OECD)’s concept of smart cities as a baseline definition: “initiatives or approaches that effectively leverage digitalization to boost citizen well-being and deliver more efficient, sustainable and inclusive urban services and environments as part of a collaborative, multi-stakeholder process.”Footnote 8 While this definition includes several elements of smart cities which are helpful for understanding developments in Asia, this chapter underscores that defining the contours of smart cities remains contested in the region.
Apart from the debate on the concept and definition, smart cities are complex and dynamic infrastructures in light of the following two dimensions.
A. The Smart City as a Layered System
The first complexity pertains to the fact that a smart city is not itself a technology but rather a system. Smart cities generally have a three-layered structure. First, the bottom level consists of city infrastructure and utilities (e.g., energy management systems, water and waste management systems, and public transportation controls), which are linked to digital equipment (e.g., cameras, GPS, sensors). Second, the middle level consists of data gathered from citizens and public administration bodies that are connected and analyzed using software and applications on a data platform. Finally, at the top level, data-based urban services can be offered in a comprehensive manner, covering multiple sectors such as energy, transportation, waste, education, health, and safety.
Thus, a smart city is a system. However, “smart technologies” play an important role within the system. Smart technologies refer to three elements of technology to deliver urban services: a collection of data, data processing, and automation of decision-making.Footnote 9 On this point, AI technologies are core smart technologies. Accordingly, there are both promises and challenges associated with smart city projects: AI and big data can bring improvements in efficiency and decision-making when providing services while there are increased privacy and security risks.Footnote 10
B. Hard and Soft Laws of Smart Cities
The second complexity relates to soft and hard laws of smart cities with the former mostly preceding the latter.Footnote 11 State action on smart cities typically begins with “soft” instruments – the adoption of national policies and strategies. Smart city policies should be included in the wider policy and planning measures for science and technology of the country. At this initial stage, there will be considerable discussion on the vision, concepts, and ideas of smart cities in the context of each country.
While soft law prevails initially in the design of the foregoing, after the adoption of national policies, legislation related to smart cities (i.e., “hard law”) may come into effect. Various existing laws are relevant to smart city projects such as the laws of the environment, transportation, energy, and education. Apart from these existing laws, new legislation for smart cities may concern “special economic zones” (SEZs). The law for SEZs creates experimental sites for new policies and strategies, including a “regulatory sandbox,”Footnote 12 a concept that invites experimentation in regulatory design, including deregulation for the purpose of demonstrating new technologies. Deregulation aims, fundamentally, to promote new activities rather than to regulate them. Thus, smart city projects are often subject to the laws of SEZs.
For instance, in 2020, Japan amended the law of national strategic special zones to promote smart cities, known as the “law of super cities.”Footnote 13 The amended law has undergone two main revisions.Footnote 14 First, as a “data platform”Footnote 15 is necessary for smart cities, the revision promotes activities such as setting up the data platform and collecting and providing data to relevant business actors. Second, the revision requires responding to the views and concerns expressed by citizens and relevant stakeholders.
Additionally, one of the important existing laws relevant to many regions and cities around the world is the law of data protection and privacy, as smart city projects involve data collection and processing. A core issue is whether the existing laws can function appropriately in the context of data collection and processing in smart cities. In other words, it is important to assure whether existing privacy frameworks can address unique privacy challenges of data collection and processing in the context of smart cities where multiple public and private actors may have access to and share datasets.Footnote 16
III Features of Asian Smart Cities
Building on the foregoing discussion on the complex system and role of law in smart cities, I argue that Asian smart cities demonstrate both similarities to and divergences from Western smart cities. In this section, I suggest that there are three features of Asian smart cities that are unique. While contested within the region, these features distinguish Asian smart cities from Western equivalents.
A. “Problem-Oriented” Projects
A notable feature of Asian smart cities is “problem-oriented” smart projects. In other words, smart cities are tools used to solve specific urban problems in Asia. On this point, the expression “green experimentation” has grown out of low-carbon urban experiences around the world.Footnote 17 Smart city projects are often referred to as “experiments”; therefore, experimental aspects are not a particularly distinctive feature in Asian smart cities.Footnote 18 However, Asian smart cities’ experimentation tends to focus more on environmental protection compared to Western smart cities.
Asian smart cities’ “green” experimentation has been promoted with particular consideration given to Asia’s urban demographic features, that is, its large urban populations, and associated environmental concerns. Scholars have noted that features of urbanization in Asia are distinct from those in other regions.Footnote 19 According to UN-Habitat, “Asia has the highest number of urban dwellers worldwide.”Footnote 20 Furthermore, as of early 2023, “[t]here were a total of 28 megacities with a population of over 10 million inhabitants in the Asia-Pacific region.”Footnote 21 This feature of urban density raises concerns; “High population densities in megacities can often lead to environmental problems. A dense population, and thus heavier reliance on road network infrastructures, causes increased traffic. This in turn can create significant burdens on the environment.”Footnote 22 This explains why Asian smart cities have had a “green” experimentation factor compared to Western smart cities. Related to this point, experts have noted that the initial policy demand for Chinese smart cities was based on the need to combat air pollution.Footnote 23
B. The Role of State-Led Initiatives
In Western smart city projects, the role of local city governments in building and designing smart cities has been pronounced; as for the famous cases of Amsterdam, Barcelona, Helsinki, and Vienna, experts have noted that city governments play a similarly important role, setting up “a strategic framework” and “a collaborative environment” to promote smart cities.Footnote 24 By contrast, Asian smart city projects are more based on national government-driven strategies. Whereas Western smart city projects are also supported by national-level policies in terms of funding and coordination (e.g., the Smart City ChallengeFootnote 25 of the United States (US) or the European Union (EU) Horizon 2020 program),Footnote 26 there is a greater degree of central government engagement in Asia. This suggests that “the state’s central role in smart city development is undeniable and has been highlighted for countries with strong state planning centrality.”Footnote 27 The “developmentalist smart city concept” in Asia is, “hardware-driven projects developed by governments and big businesses who are keen to apply the most cutting-edge technologies.”Footnote 28
Asian smart cities thus demonstrate tighter linkages between entrepreneurs, big tech, and central governments. Ayona Datta, a smart city researcher focused on India, observed that smart cities in Asia have been promoted through “state-centric entrepreneurial intervention.”Footnote 29 Datta argues that the framing of “development,” “modernity,” and “economic growth” in smart cities supports state-driven urban development. For instance, since 2015, India has been making plans to transform 100 cities into smart cities.Footnote 30
Similarly, in 2017, Indonesia launched the “Toward 100 Smart Cities” movement.Footnote 31 After the engagement of national governments, the role of ICT corporations became more prominent. Asian smart cities have been described as “techno-centric”Footnote 32 and “high-tech.”Footnote 33 Datta has pointed out the high degree of “technocratic nationalism” through which smart cities are promoted by a group of people “[believing] in the power of technology.”Footnote 34
At the same time, as Yu-Min Joo argues, there are several variations of Asian state-led smart city projects.Footnote 35 For instance, even China and Singapore, which have been seen as typical developmentalist smart city cases in Asia, have very different pathways when we look at their development and progress. Chinese smart cities, led by a powerful party-state regime, are a distinctive case.Footnote 36 Chinese domestic smart cities are related to “green experimentation” but are primarily concerned with “green growth” and “green development,” thus seeking an alternative development pathway from the conventional economic growth-centric approach.Footnote 37 This is particularly seen in China’s “eco-city”Footnote 38 projects.Footnote 39 These eco-cities were developed against the background of the Chinese government’s announcement of the nation’s 11th and 12th five-year plans (in the 11th plan [2006–2010], there was a shift from “growth first” to “sustainable development,” and in the 12th plan [2011–2016], to “green development and climate change”).Footnote 40 The first eco-city, in Dongtan near Shanghai (launched in 2006), is a well-known example, although the project did not proceed as planned due to several problems such as the land quota allocation and corruption.Footnote 41 Another well-researched Chinese eco-city case is the Tianjin project, which began under the 2007 China–Singapore framework agreementFootnote 42 and is generally regarded as a greener and sustainable case.Footnote 43
However, such a domestic image of smart cities in China has also changed. China exports smart technologies through the “Digital Silk Road” under China’s “Belt and Road Initiative.”Footnote 44 Notably, some Asian smart city projects have been led by Chinese big-tech corporations, such as the Alibaba GroupFootnote 45 and Huawei.Footnote 46 For instance, Huawei has engaged in smart city projects in Malaysia,Footnote 47 Thailand,Footnote 48 and Indonesia.Footnote 49 Such engagements by China in Asian smart cities are also enhanced by the fact that since 2020 “China has accelerated the international promotion of some of its smart city technologies” and “providing ‘anti-epidemic solutions’ has become the new selling point for several Chinese tech companies.”Footnote 50 Indeed, “the COVID-19 pandemic has accelerated the deployment of innovation and technology in urban areas.”Footnote 51 Although surveillance and monitoring technologies were widely used even before the COVID-19 pandemic, digitalized surveillance technologies for disease tracking and contact tracing are now proliferating.Footnote 52
In addition to China, Singapore has been a pioneer in designing certain types of smart cities, for example, the top-down Smart Nation project. Scholars describe Singapore’s initiative as “a state-led initiative orchestrated by civic-minded tech-talent.”Footnote 53 To be specific, the Singapore government “insources” tech talent instead of outsourcing to private sectors in developing the smart city: “Insourcing involves attracting tech talent to Singapore, instilling technical knowledge and capabilities amongst those responsible for city governance, and thus upgrading the technical competencies of the public sector [of Singapore] more generally.”Footnote 54 This is a unique state-led approach that avoids outsourcing projects to private firms as “privatization” in smart cities has raised concerns about the increased role of the private sector eroding that of the government, which is viewed as a negative outcome.Footnote 55
Regarding the role of Singapore government, Singapore has another role in the region – leading the smart city movement in ASEAN countries. The next Section III.C turns to this regional aspect of smart cities.
C. “Technocratic Regionalism”: ASEAN and Smart Cities
In ASEAN countries, “Singapore is highly active in trying to forge a smart cities network and regional platforms.”Footnote 56 At the 2018 ASEAN Summit, Singapore proposed the “ASEAN Smart Cities Network” (ASCN),Footnote 57 and to date, twenty-six pilot cities have been launched.Footnote 58
ASEAN has three objectives for smart city development: competitive economy, sustainable environment, and high quality of life.Footnote 59 Under these objectives, six areas are targeted for smart city development: (1) civic and social, (2) health and well-being, (3) safety and security, (4) quality of the environment, (5) built infrastructure, and (6) industry and innovation.Footnote 60 These targeted areas resonate with the problem-oriented features of Asian smart cities discussed above.
Singapore’s leadership has been described as “technocratic regionalism”;Footnote 61 that is, “[promoting] a technocratic form of regional integration and consolidation,” to develop smart city projects across Southeast Asia.Footnote 62 Singapore’s ambition has motivated other countries in Asia to pursue smart city initiatives. Japan is one of ASEAN’s partners supporting smart city development; other partners include South Korea, China, Australia, the US, and the EU.Footnote 63
Hence, whereas China and Singapore have left their strong presence in inter-Asian smart cities, Japan has emerged as an impactful leader as well. Against this backdrop, Section IV focuses on Japan’s engagement in smart city projects in ASEAN. It first looks at the development of Japan’s smart city policies and then explores smart city cooperation between Japan and the ASEAN countries.
IV Smart City Cooperation between Japan and ASEAN
A. Development of Smart City Policies in Japan
The Japanese government has only recently shown a strong interest in smart cities; yet in that short time, Japan has become a major player in the Asian region. However, it has made some efforts in the past. In the context of promoting renewable energy combined with smart grid technologies, the Ministry of Economy, Trade, and Industry (METI) took the lead (starting before the 2011 earthquake, tsunami, and Fukushima nuclear crisis).Footnote 64 Such efforts served as a pathway to the current Japan’s smart city national policies, and this section discusses three points that mark the Japanese government’s increasingly strong engagement in the promotion of smart city policies.
First, Japan’s engagement can be found in the Sixth Science, Technology, and Innovation Basic Plan (hereinafter, the Sixth Basic Plan) adopted by the Cabinet in March 2021Footnote 65 and covering the period 2021–2025. The Sixth Basic Plan identifies six policies for transforming society in a sustainable and resilient manner, including the development and proliferation of smart cities.Footnote 66 The smart city is framed as an “innovation” and a solution for a sustainable and resilient society. This was the first time in the Science, Technology, and Innovation Basic Plan that smart cities were mentioned – the previous Fifth Basic Plan only mentioned the promotion of a “super smart society.”Footnote 67 Moreover and important for the study of IAL, the Sixth Basic Plan describes the proliferation of smart cities outside Japan, clearly stating that Japan will disseminate the concept of a smart city and export smart-city-related infrastructure and data management systems, particularly with other Asian countries.Footnote 68
The second engagement of the Japanese government relates to the establishment of the concept of smart cities. In April 2021, the Cabinet released the “Smart City Guidebook,”Footnote 69 which explains the need for smart cities and the process of development to support smart city efforts. Notably, the Guidebook specifies “three philosophies” and “five principles” of smart cities.Footnote 70 The three philosophies are: (1) resident-centric, (2) based on visions/challenges, and (3) collaboration among sections/cities.Footnote 71 The first, “resident-centric” framing, actually aligns with the Western smart city debate on a “citizen-centric” or “people-centric” approach. According to the Guidebook, the “resident-centric” concept is aimed at “‘[improving] well-being’ and [taking] a demand side driven approach, in which residents, i.e. primary users, take initiatives, instead of a supply side driven one, in which governments and private companies take initiatives.”Footnote 72 The “five principles” identified by the Guidebook are explained below in the context of the third instance of the Japanese government’s involvement.
Third, the Japanese government has attempted to link smart city policies with data governance concerns, calling for global attention to smart city initiatives from a “data governance” perspective. Smart cities first became an international topic at the G20 Osaka Summit in 2019. Thereafter, the “G20 Global Smart Cities Alliance” was established with the World Economic Forum.Footnote 73 In 2020, the Alliance established five principles for smart cities: (1) equity, inclusivity, and social impact; (2) security and resilience; (3) privacy and transparency; (4) openness and interoperability; and (5) operational and financial sustainability.Footnote 74 The Japanese government has transferred and adopted these five smart city principles into the 2021 Smart City Guidebook,Footnote 75 which illustrates its attempt to align the national smart city policy with global data governance discussions.
B. Exporting Smart Solutions to ASEAN
The Japanese government has provided several routes to support the export of smart city technologies and infrastructure to Asia. Four governmental organizations are involved: the Ministry of Land, Infrastructure, Transport, and Tourism (MLIT), METI,Footnote 76 the Ministry of Environment,Footnote 77 and the Japan International Cooperation Agency (JICA).Footnote 78 Among these, the most active actors are JICA and MLIT.
JICA is a well-known Japanese institution that offers capacity building and training for foreign local governments via official development assistance (ODA) to support foreign developing countries bilaterally.Footnote 79 JICA has been engaged in Asian smart city projects for several years,Footnote 80 including famous cases in Bangkok and Jakarta. Additionally, JICA assists small cities such as Siem Reap in Cambodia. Siem Reap has an iconic temple, Angkor Wat, that has been identified as a world heritage site, and tourism has been growing as its main industry.Footnote 81 The city needed infrastructure and utilities to cope with an increasing number of tourists from abroad and handle rapid urbanization; therefore, the city sought smart solutions.Footnote 82
As in the Siem Reap case, JICA’s smart city assistance is not only about providing technology. The city needed smart city policies, institutions, human workforce, and skills. Thus, JICA focused on the “establishment and human resource development of smart city promotion organization” and the “establishment of institutional framework … for smart city” by dispatching Japanese experts to foreign local governments.Footnote 83
MLIT is a central actor in the Japanese government that has actively engaged with ASEAN, particularly, the ASCN.Footnote 84 Since 2019, MLIT has hosted the annual ASEAN–Japan Smart Cities Network High-Level Meeting. The first meeting was held in Yokohama, Japan, and according to the summary of meeting, the “Japan Association for Smart Cities in ASEAN (JASCA) was established as a framework to facilitate cooperation between ASEAN and Japan, and is composed of potential Japanese partners, both public and private, from various fields.”Footnote 85 More specifically, JASCA’s web page explains its role that “[JASCA] will proactively and continuously disseminate information on the technologies and experiences that promote Japan’s smart cities in ASEAN.”Footnote 86
At the second high-level meeting held in December 2020, the MLIT proposed “Smart City Supported by Japan–ASEAN Mutual Partnership” (Smart JAMP), which is an overseas smart city assistance program.Footnote 87 Smart JAMP consists of four measures: (1) assisting new project formations, (2) offering financial support, (3) strengthening the relationship between ASEAN members and Japanese firms, and (4) sharing information.Footnote 88 Among these, MLIT particularly supports the first measure, engaging with ASEAN countries and cities to form new smart city projects. When MLIT requested proposals from ASEAN countries and cities, thirty-two proposals were raised and nineteen were adopted.Footnote 89
Further, MLIT suggested ASEAN develop the “ASEAN Smart City Planning Guidebook,” which was released in March 2022 and aims “to provide practical insights including frameworks and examples, to support stakeholders involved in smart city development in ASEAN.”Footnote 90 This Guidebook is actually based on Japan’s national “2021 Smart City Guidebook” (as explained above).
V Discussion – How to Shape the Concept of Smart Cities in Asia
Japan’s intention seems to be to diffuse smart city ideas and norms into ASEAN. As seen above, MLIT has been supporting project developments in ASEAN; at the same time, it suggested creating the “ASEAN Smart City Planning Guidebook,” which was a “transplant” of Japan’s Guidebook version. As noted, Japan’s Guidebook includes “three philosophies” (including the resident-centric view) and “five principles” (including data governance guidelines) for smart cities.
How has ASEAN responded? It has officially stated that the ASEAN Smart City Planning Guidebook is “[p]repared by [the] Ministry of Land, Infrastructure, Transport and Tourism (MLIT) in Japan [i]n Consultation with the ASEAN Smart Cities Network (ASCN) and the ASEAN Secretariat.”Footnote 91 Hence, it appears that ASEAN has accepted the Japanese guidebook to some degree but nonetheless retains the Japanese origin for the guidebook. In other words, there seems to be some level of caution in ASEAN’s approach rather than the wholesale incorporation of the Japanese guidebook into its own normative framework.
While the process is not seamless and there are important nation-of-origin distinctions in branding the regulatory and normative bases for Asian smart cities, the diffusion of smart city ideas and norms may eventually lead to the export of Japanese legal infrastructures, which may provoke regulatory competition in Asia. For Japan’s MLIT, there are potential regulatory competitors: South Korea and China.Footnote 92
First, there is South Korea’s Ministry of Land, Infrastructure and Transport (MOLIT), which has been hosting the “K-City Network Global Cooperation Program,” “a new platform and G2G cooperation program for overseas smart city development and export of K-smart city model.”Footnote 93 Under this program, twelve smart city projects were adopted in 2020 and eleven in 2021,Footnote 94 with nine in ASEAN countries. However, as MOLIT’s program also focuses on global projects beyond Asia, the extent to which Japan and South Korea are in regulatory competition to export their own smart city models to ASEAN may be unclear.
China is another possible rival. As noted previously, Chinese big-tech corporations such as Huawei have been engaging in Asian smart city projects. Chinese companies’ technologies and systems can spread through overseas smart city projects along the “Digital Silk Road” under China’s “Belt and Road Initiative.”Footnote 95 Moreover, the Chinese government is engaged in the ASCN. In 2019, China and ASEAN released the “ASEAN–China Leaders’ Statement on Smart City Cooperation Initiative.”Footnote 96 According to the Statement, ASEAN and China agreed to “support private sector collaboration,” “encourage the establishment of mutually beneficial city partnerships between ASEAN cities … and Chinese cities,” and “promote … encouraging exchanges among related government departments, research institutions, enterprises, and other relevant stakeholders to promote the sharing of knowledge, technology and innovative solutions.”Footnote 97
Related to the promotion of “sharing of knowledge, technology and innovative solutions” above, one study pointed out that “China is promoting its smart city expertise through a set of training programmes provided to officials and engineers from foreign countries, particularly developing ones.”Footnote 98 Indeed, the same study argues, “China is not only training foreign officials on the technical dimension of smart cities (infrastructure, maintenance, etc.) but also, increasingly, on how the government can use this expertise for specific social, political or security purposes.”Footnote 99
The COVID-19 pandemic increased opportunities for China to export its own smart city model because the pandemic has expanded and added a new function to smart city development: the need for an urgent response to public health emergencies. Smart city technologies can promote “remote work, online or distance learning, digital and contactless payments, telehealth, online shopping and drone or robot delivery” during health emergencies.Footnote 100 Moreover, smart technologies for surveillance and monitoring, which can track people’s location and movement, have been useful for managing public safety during pandemics. As another study highlighted, “[t]he public sector has regained unexpected power and trust”Footnote 101 in using smart surveillance and monitoring technologies during the pandemic, and “[s]mart-city development will be boosted following COVID-19.”Footnote 102 At this point, China may successfully export its own smart city model, which is useful for responding to public health emergencies and thus has great appeal for other governments.Footnote 103
As noted, China has been extensively engaged in training foreign officials in smart city governance. This differs from what Japan’s MLIT and South Korea’s MOLIT have been doing for smart city cooperation, mainly assisting overseas smart city project formation. As noted, for Japan, capacity building and training for foreign local governments are within the scope of JICA, which uses ODA to support foreign developing countries bilaterally. JICA’s engagement with foreign local governments is possible only after JICA receives official requests for support from foreign (local) governments. Generally, just as “traditional donors have diffused principles, political structures, state reform, and economic adjustment programmes to recipient countries via Official Development Aid,”Footnote 104 JICA can also attempt to diffuse Japanese urban development models through smart city cooperation. However, JICA’s smart city support may be insufficient to compete with the extensive capacity building offered by China.Footnote 105
Simultaneously, the Chinese government’s engagement and big-tech company projects will certainly raise security and privacy concerns regarding smart city development. Arranging the regulatory framework for data governance, including security and privacy issues, is a significant challenge, particularly in Asian smart cities.Footnote 106 In terms of concerns over privacy, China’s approach differs from that of Japan – Japan can differentiate its overseas smart city projects from China’s projects in light of privacy and security concerns.
VI Conclusion
This chapter has examined Japan’s shaping of the ideas and norms of smart cities in Asian countries, particularly in relation to ASEAN in the context of inter-regional competition. Several methods exist for exporting smart solutions by Japanese governmental organizations, including development cooperation, diffusion of ideas, and regulatory competition. While interactions do not yet entail the export and adoptions of specific Japanese legal infrastructures, the MLIT and JICA are attempting to diffuse the norms, ideas, and governance models of smart cities through cooperation with ASEAN. Japan attempts to shape the idea of smart cities as it seeks to strengthen cooperation with ASEAN countries and highlight advantages over rival countries (i.e., China). More precisely, Japan wants to take the lead in exporting the smart city model associated with the “citizen-centric” approach and the importance of privacy and data protection.Footnote 107
What are the consequences of these interactions? It takes time to observe the effects and consequences of any interaction; in the case of smart cities, implementation takes a decade.Footnote 108 Each smart city project encompasses various development pathways; there is no smart city in Asia yet that includes a comprehensive smart “system” achieving all three levels (as illustrated in Section II.A).Footnote 109 It remains to be seen how the interactions between Japan and ASEAN will lead to the creation of the Asian smart city model. For future research on IAL of smart cities, it is necessary to look at interactions involving other key actors (i.e., Singapore, South Korea, and China)Footnote 110 and examine how the dynamism of interactions affects cooperation, diffusion, and competition in shaping the idea of smart cities in Asia.
I Introduction
Since Hong Kong’s reversion to China in 1997, the former British colony’s legal order has reflected sharply increased influence from the now-superordinate People’s Republic of China (PRC) and has begun to look more like the Mainland’s – particularly in aspects of law that are relatively closely related to politics. The impact of the PRC on the law and legal order of China’s first Special Administrative Region (SAR) is an extreme example of the effect of one Asian legal system on another – so much so that Hong Kong might not seem to be a very illuminating or interesting case for the study of “Inter-Asian Law (IAL).” In a formal and fundamental sense, PRC legal influence on Hong Kong is intra-jurisdictional. Amid all the controversies concerning Hong Kong’s post-reversion legal trajectory, it is undisputed that the Hong Kong SAR (HKSAR) is part of the PRC and thus subject to domestic lawmaking by China.Footnote 1
Despite these features – and because of them – the Hong Kong example offers insights into the broader phenomenon of inter-Asian legal influence. In practice, one Asian legal system’s capacity to influence another is a matter of degree. Full sovereign powers are, perhaps, qualitatively different, but they also arguably lie at one end of a broad spectrum of power and influence. Beijing has employed a wide range of methods to shape Hong Kong’s post-reversion legal order – ones that extend well beyond exercises of sovereign lawmaking powers.Footnote 2 These channels are in part (but only in part) the product of the distinctive arrangements that created the HKSAR – the Sino-British Joint Declaration that set the terms for Hong Kong’s reversion, the PRC constitutional provisions that legally underpin the SAR structure, and the Basic Law of the Hong Kong Special Administrative Region that sets forth terms for the interaction and allocation of authority between the SAR and the central government and their legal systems. The People’s Republic of China’s influence also flows along other, often less formal, pathways linking the two legal systems. The Hong Kong experience thus provides an especially comprehensive taxonomy of – or field guide to – the many modes of inter-Asian legal influence. Indeed, one of the striking features of the Hong Kong case is the extent to which PRC influence has occurred through mechanisms other than the clearly dispositive and in-principle available one of formal lawmaking.
Distinctive features of the China–Hong Kong example also spotlight the complexity of, and some of the challenges in assessing, inter-Asian legal influence. As the more detailed discussion later in this chapter indicates, the relationship between PRC legal influence and exportation of PRC legal models or characteristics is complicated. Many of the most prominent and salient features of China’s influence on the HKSAR’s laws and legal order are, at least in a general sense, instances of convergence with PRC templates. Legal changes in Hong Kong that the PRC has influenced, or seems relatively likely to have influenced, have been anti-democratic (as measured against a standard of fully contestatory electoral democracy), illiberal (specifically with respect to civil liberties and political rights), focused on maintaining or fostering political and social order and stability, and unfriendly toward liberal rule of law (including aspects of judicial independence), and so on. Such features are nearly paradigmatic of the PRC legal order. Yet, convergences – even when they are products of PRC lawmaking – are rarely simple transplants. Even where attempts at full imposition of a model or its components would seem feasible, influence has often occurred through more nuanced means. Even some instances of PRC lawmaking for Hong Kong specifically undertake not to impose Chinese law or export features of the PRC legal system, in keeping with the promise of autonomy for Hong Kong in legal affairs and continuity with Hong Kong’s pre-reversion legal order.
The PRC’s legal impact on Hong Kong resonates with the broader discourse of legal transplants and exports of legal models that form the backdrop to the current interest in IAL. The recipient legal order in Hong Kong under PRC rule is largely the product of an earlier and long-recognized type of external imposition or mandated legal borrowing – from the West and from a former colonial power that largely created the Hong Kong legal order that became subject to growing influence from the PRC after 1997. Hong Kong’s post-reversion experience as a weak party on the receiving end of legal influence from a much more powerful external source thus echoes its colonial past. As has happened with post-reversion PRC influence, United Kingdom (UK) authorities had shaped Hong Kong law partly in ways that did not track the homeland model. Indeed, illiberal and undemocratic elements in SAR-era Hong Kong law resemble, and in some cases originated during, the period of British rule – a phenomenon that complicates assessments of PRC influence on the SAR legal order.
II PRC Lawmaking for Hong Kong
An especially potent mode of PRC legal impact on the HKSAR is the most formal – and the least obviously relevant to comparative IAL. People’s Republic of China lawmakers can, and do, make laws that apply in the HKSAR. The Basic Law is the preeminent example. It is authorized by the PRC constitution, which provides, “The State may establish special administrative regions … [with] the systems … to be prescribed by laws enacted by the National People’s Congress [NPC] in light of specific conditions.”Footnote 3 The Basic Law is also provided for by the pact between the PRC and the UK concerning Hong Kong’s return to Chinese rule. The Joint Declaration states that “a Basic Law” would be adopted by the NPC to embody the commitments about Hong Kong’s future governance, including its legal order, set forth in the Joint Declaration (specifically article 3 and Annex I).Footnote 4 As the Constitution and the Joint Declaration envisioned, the Basic Law is an enactment of the PRC’s national legislative body.
From the perspective of Hong Kong, the Basic Law is an extraordinarily strong form of PRC legal influence. Although sometimes characterized as the SAR’s “mini-constitution,” it is, for Hong Kong, more entrenched than a constitution. It is not subject to amendment by the people it governs or the SAR government. The power of amendment lies with the central legislative authorities in Beijing, and the NPC Standing Committee (NPC-SC) may invalidate any SAR law that it finds to be not in conformity to the Basic Law.Footnote 5
Yet, the legal arrangements for the HKSAR include ostensibly serious, arguably legally binding, pledges to limit the PRC’s impact on law and the legal system in Hong Kong. In the Joint Declaration – which China regards as a treaty or treaty-like international legal instrument – the PRC declares its “basic policies,” which would “remain unchanged for 50 years.” Those policies include “a high degree of autonomy” for the SAR “except in foreign and defense affairs,” vesting “executive, legislating and independent judicial power, including that of final adjudication” in the SAR, governance by SAR inhabitants chosen in part through local elections or consultation, and continuity in social, economic, and legal systems, and liberal civil liberties.Footnote 6
The Basic Law, as promised in the Joint Declaration, would implement those commitments, and its text largely does so. It authorizes the specific types – and the “high degree” – of autonomy described in the Joint Declaration. It charges the SAR with safeguarding the “rights and freedoms” of SAR residents and adopts a list of liberal civil and political rights and the rights set forth in the International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights. It also mandates that “the laws previously in force” including “the common law” and the “judicial system previously practiced” be “maintained” (with courts directed to “exercise judicial power independently,” and with the “power of final adjudication” given to a new Court of Final Appeal (CFA)). It declares that the “socialist system and policies” of the PRC will not apply to the SAR for fifty years, and grants the SAR government legislative, executive, and judicial power (including final adjudication). It provides for an elected legislature and a consultatively chosen Chief Executive, and declares an “ultimate aim” of selection of legislators and the Chief Executive by universal suffrage (in the case of the Chief Executive, from among candidates nominated “in accordance with democratic procedures”).Footnote 7 The SAR-enabling provision in the PRC Constitution – in a phrase echoed in the Basic Law and other Hong Kong-specific legal documents – arguably imposes another limitation: The SAR’s “systems” are to be framed “in light of specific conditions” in the region.Footnote 8
The Basic Law’s promise of restraint on the application of PRC law or the intervention by PRC lawmaking in Hong Kong was notable. At the time of reversion, there were reasons to make such a commitment, including the seriousness with which the PRC government – at least initially – took commitments made in the international treaty-like Joint Declaration, the plausible argument that making and honoring such commitments were vital to Hong Kong’s continued economic success, the input that Hong Kong representatives had through the Basic Law Drafting Committee, the heightened concern in Hong Kong and abroad about the potential impact of reversion in the aftermath of the Chinese regime’s actions against the protests at Tiananmen Square (and elsewhere in China) in June 1989, as well as Beijing’s broader assessment of what served its interests in a successful return of Hong Kong to Chinese rule.Footnote 9
In principle (under fundamental tenets of PRC law and approaches to international law) and (increasingly in the post-reversion era) in practice, such commitments cannot reliably constrain China’s influence on Hong Kong law and the SAR’s legal order. In the PRC view, the Joint Declaration – although accepted as having at least treaty-like status – does not include the contract-like quid pro quo that is characteristic of typical bilateral treaties and that, in the UK view, characterizes the Joint Declaration. This position is amply reflected in the text. While the British provision states, “The Government of the United Kingdom declares that it will restore Hong Kong to the [PRC]” as of July 1, 1997, the parallel Chinese article asserts, “The Government of the [PRC] … has decided to resume the exercise of sovereignty over Hong Kong” on the same date.Footnote 10 In official and orthodox Chinese views, the nineteenth-century treaties that purportedly transferred sovereignty over Hong Kong Island and the Kowloon Peninsula and granted a 99-year lease to the New Territories were “unequal treaties” and, therefore, void ab initio.Footnote 11 There could be no binding commitment by China concerning the future governance of Hong Kong – including its legal order – in return for the UK’s surrender of sovereignty over two of the three territorial components of Hong Kong. Tellingly, the provision in the Joint Declaration that sketches the arrangement to be fleshed out in the Basic Law states that what follows are “the basic policies of the [PRC] regarding Hong Kong” which will be implemented through NPC legislation.Footnote 12 In recent years, Beijing has declared that the Joint Declaration’s “mission was completed” at the moment of reversion and that the Joint Declaration “does not have any binding power on how the central government administers Hong Kong” and thus no longer imposes (if it ever did) obligations on the PRC, enforceable at the behest of the UK.Footnote 13
The Basic Law cannot be, as a matter of PRC constitutional theory, more unamendable than other NPC legislation. The Basic Law itself affirms the NPC’s broad powers of amendment (although it purports to limit changes to those that do not contravene the PRC’s basic policies regarding Hong Kong).Footnote 14 More fundamentally, in the PRC’s constitutional order, the NPC has full powers to amend legislation, as well as the constitution itself.Footnote 15 If a potentially persuasive legal argument could assert that laws passed pursuant to the SAR provision in the constitution are somehow more deeply entrenched than other NPC legislation (and thus less amenable to discretionary amendment by the NPC), there is no mechanism in PRC law, other than the NPC-SC, to address such a constitutional challenge.Footnote 16
The PRC has not used its powers to amend the Basic Law’s main text to affect Hong Kong’s legal order. But it has engaged in other lawmaking for the SAR, sometimes with major effects. The PRC constitution, unsurprisingly, applies in the SAR, but presumptively with the limitations adopted in the Basic Law, as legislation consistent with the constitution’s rules on SARs. The Basic Law and the Joint Declaration place beyond Hong Kong’s authority some areas of law, particularly matters of foreign affairs and national defense. Annex III to the Basic Law, along with subsequent decisions by the NPC-SC, have made a dozen national laws in those and related fields applicable in the SAR.Footnote 17 Focused on matters such as national symbols, PRC nationality, maritime rights rooted in international law, and foreign sovereign and diplomatic immunity, such laws have not greatly affected Hong Kong’s internal legal order.
In a much more transformative move in 2020, the NPC adopted a National Security Law for the Hong Kong SAR (HKNSL), precipitated by the massive protests that erupted in Hong Kong initially in response to a proposed local ordinance that would have permitted extradition of criminal defendants from the SAR to face prosecution in Mainland PRC courts. With the legislation, PRC lawmakers imposed elements of an illiberal, more PRC-like legal order – and in some instances PRC law itself. The most notable features of the law include: broadly and vaguely defined crimes of secession, subversion, terrorist activities, and collusion with “external” actors to endanger national security in Hong Kong; extensive affirmative obligations of the SAR government to address threats to security, including through establishing an SAR Committee for Safeguarding National Security, accountable to the central government, with broad policy-shaping powers, and with a central government-appointed National Security Advisor; authorization of a central government security force in the SAR and directives to create special SAR police and prosecutorial units; special selection procedures for judges who adjudicate national security cases, including mandatory exclusion of those who have made statements or taken actions “in any manner endangering national security”; permission to suspend a wide range of criminal procedure laws that promise due process (including public trial, jury trial, bail, and restrictions on searches, surveillance, and other investigative measures); and the creation in Hong Kong of a central government Office for Safeguarding National Security with extensive powers that supplement those of SAR institutions and that include taking over investigation and prosecution of serious national security cases in Hong Kong and doing so under the PRC’s Criminal Procedure Law and in PRC-designated courts.Footnote 18
Following several “Decisions” and “Interpretations” of the Basic Law rebuffing calls from Hong Kong for democratic reforms to election rules,Footnote 19 the NPC-SC exercised its lawmaking power to address an especially serious version of a recurring challenge: Pro-democracy candidates had won a landslide victory in elections to local district councils in November 2019, amid the ongoing anti-extradition law and pro-democracy protests and anger over the government’s repressive response. In the shadow of the then-newly enacted HKNSL, the NPC-SC in March 2021 amended Basic Law Annexes I and II, which set forth the mechanisms for selecting the SAR Chief Executive and members of the Legislative Council. The amendments shrank the share of the legislature chosen by universal suffrage (to twenty out of ninety seats). They also expanded and restructured the Election Committee to secure control by reliably PRC and SAR government-friendly members, and empowered it to select forty of the ninety members of the legislature (alongside its long-standing role of nominating all Chief Executive candidates). The new rules further required that candidates for the legislature, Chief Executive, and the Election Committee be vetted by the HKNSL-created SAR Committee for Safeguarding National Security and the SAR police’s new national security unit.Footnote 20
In sum, when the PRC has influenced Hong Kong law, it has sometimes done so by making PRC law that applies in the SAR. While such moves, tautologically, make SAR law converge with PRC law, the pattern has been more complex in terms of substantive content. In a few relatively narrow contexts, originally PRC-applicable law has been extended to reach the SAR. Broadly, PRC lawmaking for the SAR (including the Basic Law) also has promised – at times, and increasingly hollowly – to forego mandating convergence with PRC law or transformative changes to Hong Kong’s inherited legal order. To a large and growing extent, however, Beijing’s lawmaking has effected changes in the SAR to check democratization and (in Beijing’s view) threats to order and security. These measures have altered Hong Kong’s law and legal order in ways that make it more closely resemble the Mainland’s. Such formal lawmaking is not the only means that China has had available and employed.
III PRC Interpretations of PRC Law for Hong Kong
The NPC-SC has issued five formal “Interpretations” of the Basic LawFootnote 21 and one of the HKNSL – exercising powers that Hong Kong-applicable, PRC-made law explicitly grants to the NPC-SC – and several “Decisions” – sometimes explicitly pursuant to the NPC-SC’s general powers under the PRC constitution to interpret PRC laws (a category that includes the Basic Law and the HKNSL).Footnote 22 These NPC-SC actions are framed as interpretations of law already applicable in – and, thus, binding on – Hong Kong. Formally, they are not PRC-generated changes in Hong Kong Law, in that they purport merely to ascertain and explicate the meaning of the PRC-created Basic Law (or HKNSL). In practice, they have profoundly affected the legal order in Hong Kong, most often in the form of pushing back against calls for, or moves toward, liberal democracy or, in one instance, robust judicial powers. Although not requiring imitation or replication of PRC models, these NPC-SC moves blocked divergence of Hong Kong’s legal order from the PRC’s in key areas of law.
In 1996, the Preparatory Committee for the HKSAR, exercising powers conferred by the NPC,Footnote 23 authorized creation of a Provisional Legislative Council for the soon-to-be-established SAR, thereby derailing the so-called “through train” arrangement by which the final colonial-era Legislative Council would have become the first Legislative Council of the SAR.Footnote 24 This move by the PRC-created body gave the power to select the legislature to the same 400-member Selection Committee that would choose the first SAR Chief Executive. The decision effectively overturned democratizing electoral changes introduced by Hong Kong’s last colonial governor, partly on the basis that the reforms violated the Basic Law (or, at least, the PRC’s interpretation of it).Footnote 25 Those reforms – a last gasp of UK influence on Hong Kong law – had greatly expanded the electorate for the one-half of the legislature’s seats that were to be chosen by “functional constituencies,” transforming what had been envisioned as a quasi-corporatist arrangement representing sectoral economic interests and economic elites into one in which most employed Hong Kongers would have one vote in a geographic constituency and a second vote in a functional constituency related to their jobs.
In 2004, the NPC-SC’s second formal Interpretation of the Basic Law and an NPC-SC Decision issued three weeks later combined to reject proposals from Hong Kong to allow universal suffrage elections for the Chief Executive in 2007 and all seats in the Legislative Council in 2008. The NPC-SC actions affirmed that measures to amend the rules for selecting the SAR’s Chief Executive and legislators had to comply with the cumbersome procedures set forth in two Annexes to the Basic Law – on the surface, a rather anodyne point about process, but one that underscored the formidable barriers to democratic changes to electoral laws. More substantively, the NPC-SC Interpretation and Decision determined that there would be no changes to the rules in the near term. The NPC-SC cast the result in part as an interpretation of the principles embodied in the text of the Basic Law (including the Annexes) that changes to election rules would occur only when there is a “need” to change those rules “in light of the actual situation” in Hong Kong and consistent with “gradual and orderly progress” toward the “ultimate aims of universal suffrage.”Footnote 26
In 2007, the NPC-SC reprised this pattern. It issued a Decision that rejected a new set of Hong Kong proposals for universal suffrage elections of the Chief Executive and the Legislative Council, reaffirmed the need to comply with the existing rules for achieving amendments to election rules, and echoed the 2004 Decision’s discouraging tone by stating that changes would be considered “at an appropriate time.”Footnote 27 In 2014, the NPC-SC determined that the SAR government had submitted a report on electoral reform proposals that met the procedural requirement of the Basic Law Annexes, and it authorized the election of the Chief Executive by universal suffrage in 2017. But the NPC-SC Decision pointedly noted that the position of the Chief Executive in the Basic Law framework meant that any occupant of that office must “love the country” and “love Hong Kong,” limited the number of candidates (to two or three), and set a high threshold for nomination (by at least half of the members of a nominating body similar to the Election Committee that had selected the prior Chief Executive). Those requirements meant, of course, a less-than-democratic process that would yield a winner acceptable to Beijing. The Decision also rejected proposals to more thoroughly democratize the process for electing the legislature, keeping the rules for the 2016 election in place for the subsequent round.Footnote 28 The 2014 Decision elicited a strong response in Hong Kong, spawning the pro-democracy protests of Occupy Central and the Umbrella Movement.
In 2016, the NPC-SC issued its fourth Interpretation of the Basic Law, again with the effect of making Hong Kong law less democratic. Candidates from the pan-democratic camp who had prevailed in contests for directly elected seats in the 2016 Legislative Council departed from the prescribed text of the oath required by the Basic Law and administered upon taking office. To convey pro-democracy and pro-Hong Kong positions and to signal negative views of the PRC, they supplemented or altered the text. Responding to a request from the SAR government, the NPC-SC interpreted the Basic Law’s requirement that officeholders “in accordance with law, swear to uphold the Basic Law … and swear allegiance to” the SAR and the PRC. The Interpretation decreed that this provision meant that one who “takes the oath in a manner which is not sincere or solemn” or “intentionally reads out words which do not accord with the wording … prescribed by law” is “disqualified” from assuming the office and has no opportunity to lift the disqualification by retaking the oath properly.Footnote 29 On the basis of the Interpretation, six democratically elected members were barred from the legislature.
In 1999, the first NPC-SC interpretation of the Basic Law affected – albeit somewhat obliquely and indirectly – another element of Hong Kong’s legal order and a different point of contrast with the PRC’s legal order: a robust common-law-style notion of constitutional judicial review. The SAR CFA had exercised its powers of judicial review under the Basic Law to strike down SAR ordinances that required persons of Chinese nationality born outside Hong Kong to Hong Kong permanent resident parents to apply for approval from PRC government authorities to enter Hong Kong (as the Basic Law required for people form non-Hong Kong parts of China). The CFA found that the requirement (although consistent with one relevant Basic Law provision) violated a provision of the Basic Law that accords such persons a “right of abode” in Hong Kong because they are “permanent residents” of Hong Kong.Footnote 30
The CFA went beyond overturning the SAR ordinances and – in a move that echoed or exceeded the US Supreme Court’s assertion of powers of judicial review in Marbury v. Madison – asserted that it had the authority, and duty, to review (and declare invalid) legislative acts by the NPC or NPC-SC for inconsistency with the Basic Law. The NPC-SC Interpretation rejected the CFA’s decision on the merits, interpreting the Basic Law as imposing the requirements that were reflected in the local ordinances.Footnote 31 Earlier, sharp condemnation of the CFA ruling by PRC legal scholars (understood to represent the central government’s views) and an application from the SAR government to the CFA to “clarify” its decision in the case had elicited a statement from the CFA accepting that the NPC-SC had the authority to issue an Interpretation binding on SAR courts and that the CFA “accepts that it cannot question” the NPC’s and NPC-SC’s “authority … to do any act which is in accordance with” the Basic Law.Footnote 32
Much more recently, the NPC-SC issued an Interpretation of the Hong Kong National Security Law that set forth limits to the right to counsel for defendants charged under the law.Footnote 33 Facing charges of colluding with foreign actors to endanger national security, media mogul and pro-democracy activist Jimmy Lai sought representation by an eminent British barrister who was not admitted to practice law in Hong Kong. After SAR courts permitted the lawyer’s participation, the SAR government sought, with the approval of the PRC State Council, the NPC-SC Interpretation. The Interpretation decreed that, in the absence of a certificate from the Chief Executive permitting representation, the SAR Committee for Safeguarding National Security (which was created by the HKNSL and accountable to Beijing) had judicially unreviewable authority to determine whether a case involves national security or evidence that implicates state secrets and, where the Committee so determines, to deny overseas lawyers permission to serve as defense counsel because such representation endangers national security.
Through the NPC-SC’s Interpretations and Decisions, China has, thus, greatly affected Hong Kong law and the SAR’s legal order. It has done so most notably on issues related to democracy and judicial review. By framing its decisions as interpretations of existing law, Beijing has exercised influence without formally creating “new” law for Hong Kong.
Notwithstanding its authority to determine Hong Kong law (whether by enacting or interpreting PRC law for the SAR), China often exerts influence through means that do not depend on exercises of the national government’s sovereign power. Even in politically sensitive areas where Beijing has relatively clear goals and where incentives to use methods under PRC authorities’ direct control would seem to be strong, the modes of influence are often less formal and determinative.
IV Hong Kong Lawmaking
Many of the changes in Hong Kong law that have made the SAR’s legal order more closely resemble the PRC’s are acts of SAR local lawmaking under PRC influence. Such influence has run a gamut from legal mandates, to diffuse and not-fully transparent PRC pressure and preferences – some embraced by local actors. Many examples of local legal change proposed or adopted in post-reversion Hong Kong have contributed to the SAR’s move away from liberal democratic or liberal rule of law models and toward a more PRC-style legal regime. A few of the most important and high-profile instances suggest the broader pattern and illustrate the range of forms of influence.
Article 23 of the Basic Law obliges the SAR to “enact laws on its own to prohibit any act of treason, secession, sedition, or subversion against the Central People’s Government” and to prohibit theft of state secrets and various forms of foreign influence in SAR politics. China thus imposed a legal obligation on the SAR to enact local laws, although without specific content or by a particular date. Shortly after being reappointed to a second term, the first SAR Chief Executive Tung Chee-hwa proposed the National Security (Legislative Provisions) Bill 2003 (popularly known as “article 23 legislation”), perhaps reflecting mounting pressure from BeijingFootnote 34 or perhaps as an act of preemptive compliance – that is, doing what presumably would please the government in Beijing, to which he was legally accountable and whose support was necessary for his appointment and reappointment. The bill would have amended several Hong Kong criminal and public order ordinances and, as critics charged, gone beyond what article 23 appeared to require in terms of restricting civil and political liberties (including punishment possibly for speech, extraterritorial reach, erosions of criminal procedure protections, and bans on PRC-banned organizations). The bill triggered a furious backlash from pro-democracy Hong Kong political leaders, much of the bar, and the Hong Kong public – more than 500,000 of whom took to the streets in protest of the bill (among other issues) – and foreign governments. The SAR government withdrew the bill, and the controversy played a major role (along with flawed handling of the SARS outbreak) in Tung’s resignation in 2005.
In March 2024, in the aftermath of the passage of the HKNSL, the SAR adopted the article 23-implementing Safeguarding National Security Ordinance (Instrument A305). Pressure and influence from Beijing were clear, although the SAR government played a self-proclaimed proactive role as well. SAR Chief Executive Carrie Lam had publicly committed and then reaffirmed a commitment to introduce article 23-implementing legislation in the aftermath of the 2019 protests in Hong Kong (denounced by both SAR and PRC officials for endangering national security), the subsequent PRC enactment of the HKNSL, and the democrats’ victories in the local elections (which would later prompt the anti-democratic revisions to laws governing elections to the SAR legislature).Footnote 35 More pointedly and specifically, an NPC Decision in 2020 that called for enacting the HKNSL also directed the HKSAR to fulfill its “constitutional responsibilities” and “complete the national security legislation” promptly.Footnote 36 The SAR legislation cited Basic Law article 23, the 2020 NPC Decision, the HKNSL, and the NPC-SC Interpretation of the HKNSL as imperatives requiring the legislation. The Ordinance’s fast-tracked passage, with unanimous support from a legislature devoid of pro-democracy representatives (thanks to earlier PRC-mandated changes in election laws) under the administration of Lam’s successor John Lee, had been urged by and drew public praise from PRC authorities.Footnote 37
Much of the content of the 190-article Ordinance echoed, with substantial added detail and with specific amendments to many longstanding Hong Kong ordinances, the HKNSL. Critics in Hong Kong and abroad pointed to features that were consonant with the HKNSL and PRC law (as well as the failed 2003 bill) and arguably went beyond the HKNSL. Concerns included: broad or vague definitions of the crimes of treason, insurrection (and incitement thereto), espionage and improper acquisition, possession or disclosure of state secrets, national-security-endangering sabotage, and external interference that endangers national security; possible criminalization of speech, including political advocacy, disclosure of seemingly unthreatening information to foreigners, and incitement to “disaffection” with the central or local state; broad government powers to ban organizations; authority of the Chief Executive to add, without advance legislative consent, to the list of national security crimes; potential punishments, including for nonviolent offenses, that are much harsher than under inherited colonial laws and that resemble PRC law; expanded investigative powers, free from the ordinarily applicable constraints of Hong Kong law; permissible denial of access to counsel; and extraterritorial reach.Footnote 38
The saga of Hong Kong’s article 23 legislation illustrates some of the complexities of inter-Asian legal influence. In terms of process, as the foregoing sketch suggests, there are mandates from the central government (which are absent in true inter-jurisdictional cases of legal influence), but the contours of the mandates are uncertain and appear to have been imprecise. Binding directives coexisted with more diffuse forms of political pressure and influence from Beijing and possibly acts of political ambition and favor-currying by local officials – traits that are likely to be found in examples of IAL more typical than the PRC–Hong Kong case. A definitive assessment of the relative importance of the various types of influence is elusive, and the effects may, of course, be synergistic. In terms of substance, the preexisting, largely colonial-era, laws in Hong Kong on matters akin to those addressed in the article 23-implementing legislation and the HKNSL were far from paragons of liberal legality. Indeed, as the section of this chapter on “Influencing the Legal Order (Beyond Laws)” addresses, they have proven capacious enough to be a formidable tool, alongside the post-reversion laws, for prosecuting and stifling the regime’s critics, pro-democracy advocates and protesters, and other targets.
The PRC’s impact on SAR-enacted local election law has been simpler and more straightforward. When central PRC authorities have approved or required changes in election law in Hong Kong, the SAR has enacted conforming changes. This pattern was most dramatic in 2020–2021 when extensive amendments (in 475 articles) were made to the Legislative Council Ordinance to implement the detailed changes mandated by the NPC-SC’s amendments to Basic Law Annexes I and II. The heavily PRC-shaped rules resulted in the disqualification of pro-democracy candidates and a sweeping win for government-supporting candidates in the 2021 elections, which had been postponed, with Beijing’s support and quite possibly at its behest, from their scheduled 2020 date. The stated reason was the COVID-19 pandemic but, critics plausibly charged, the goal was to effectuate the election system changes required by the NPC-SC and achieve the electoral outcome sought by Beijing and the SAR government. The SAR review process banned a dozen pro-democracy candidates from the ballot, and the elections produced the legislature that voted unanimously for the 2024 national security ordinance.Footnote 39 (In an earlier, broadly similar move, the SAR government implemented the NPC-SC Interpretation concerning legislative oath-taking by taking local legal measures to disqualify four elected legislators.)
A more complicated case of possible PRC influence on Hong Kong law involves another failed attempt at SAR legislation that was part of the backstory to the national security and election law changes of the early 2020s. The protests in 2019 that evolved into broad pro-democracy and anti-SAR-government movement began in reaction to a proposed amendment to Hong Kong’s extradition ordinance backed by Chief Executive Carrie Lam.Footnote 40 The existing law concerning extradition specifically excluded extradition to the Mainland. The amendment – proposed in reaction to a case in which a Hong Kong resident had fled back to the SAR from Taiwan and could not be extradited because the two jurisdictions had no extradition agreement – would have given the Chief Executive power, subject to judicial review, to grant extradition requests from any jurisdiction, including the PRC. The bill was withdrawn in the face of sharp criticism and the large-scale protests.
The extent to which the PRC was pushing for such a change to Hong Kong law is contested. Chinese authorities had been frustrated with difficulties in getting hold of persons in Hong Kong accused of violating PRC criminal laws (and were generally believed to have resorted to kidnapping in at least one high-profile case) and publicly supported the legislation after it was proposed.Footnote 41 In language notably echoed by Beijing, Lam characterized the proposed amendment as a move to “plug a loophole” in Hong Kong law – a statement that suggested that the existing ordinance’s explicit targeting of the PRC was in her view problematic.Footnote 42 In terms of substance, the proposed amendment would not have made Hong Kong law more like PRC law: PRC law does not adopt expansive extradition provisions and prohibits extradition of PRC nationals.Footnote 43 For opponents of the proposed legislation, the principal problem of PRC legal influence lay not in the prospect that PRC or PRC-like law would enter Hong Kong law but, rather, in the threat that people in Hong Kong would become subject to Mainland criminal legal process and prosecution in PRC courts and under PRC laws that did not apply in the SAR.Footnote 44
The People’s Republic of China’s influence through formally autonomous SAR acts of compliance with PRC directives or preferences – and possible limits to such influence – may also characterize another high-profile legal development in early post-reversion Hong Kong. To be sure, the NPC-SC’s Interpretation of the right of abode-related provisions in the Basic Law effectively quashed prospects that the CFA could arrogate to itself Marbury or Marbury-plus powers of constitutional review and led to the CFA explicitly recognizing the limits to its powers articulated by the Interpretation. But the CFA’s statement of compliance was arguably hedged, stating that the Court “accepts that it cannot question” the NPC’s and NPC-SC’s authority “to do any act which is in accordance with” the Basic Law.Footnote 45
V Influencing the Legal Order (Beyond Laws)
The People’s Republic of China’s influence on Hong Kong’s legal order extends beyond effects on formal lawmaking. A legal order is, of course, much more than the laws themselves. In the SAR, much of the change that has brought convergence with Mainland legal norms and practices has occurred in these other dimensions.
In Hong Kong’s executive-led government, the Chief Executive and the Chief Executive’s subordinates wield a large share of local power over law and the legal order. The evolving law for selecting Chief Executives has consistently assured that the top office’s occupant would be acceptable to Beijing and, in turn, so would the SAR government’s stance on legal matters important to Beijing. The shift to universal suffrage for the Chief Executive has not changed that pattern, given the role of the Election Committee in vetting candidates. Some of the Interpretations of the Basic Law discussed earlier in this chapter were sought by the Chief Executive-headed SAR government. The Chief Executive’s alignment with Beijing and practices that diverge from liberal rule-of-law norms have been especially pronounced during the tenure of John Lee, who was the SAR Secretary of Security during the crackdown on the 2019–2020 protests and who, as Chief Executive, has presided over the implementation of the HKNSL and the enactment and implementation of related local legislation.Footnote 46 Particularly after the 2014 Umbrella Movement and the 2019 anti-extradition law protest, the SAR administration undertook large-scale prosecution of movement leaders and protesters for crimes ranging from public order offenses to subversion. For national security cases, such exercises of SAR police and prosecutorial authority occur with additional authority and greater insulation from legal restraints and judicial review – partly thanks to HKNSL-created rules and institutions.
The repeatedly revised rules for the Legislative Council – the SAR’s relatively weak legislature – have contributed to a similar trajectory for another principal law-related organ of SAR governance. Election rules, including the large number of seats from functional constituencies and multi-member districts, always limited the share of seats occupied by pan-democratic camp representatives and, thus, legislative opposition to measures that diverged from liberal and democratic norms and converged with the preferences and, to some extent, paradigms of the PRC. Nonetheless, throughout much of the SAR’s early history, opposition and the prospect of defeat in the Legislative Council checked illiberal or authoritarian-leaning government initiatives, with the 2003 article 23 legislation being a prominent example. Particularly after the changes that followed the NPC Interpretation disqualifying critical pro-democracy and pro-autonomy elected legislators and the sweeping reforms in 2020 to the election rules – including a nomination process to screen out insufficiently “loyal” candidates – the Legislative Council has been more reliably compliant with the agenda of the Beijing-backed Chief Executive, including passing the article 23-implementing legislation in 2024.
Some of the most striking changes have been in the courts. The CFA is permitted by law to have up to thirty non-permanent judges, including from other common law jurisdictions (in addition to six permanent judges drawn from Hong Kong). The purpose of this arrangement was to assure continuity with Hong Kong’s prior legal order and to provide visible reassurance of continuity and autonomy. But the number of foreign non-permanent judges has dwindled to a half-dozen, falling sharply in recent years, including six resignations since 2020. The departures have been interpreted as responses to deterioration of the rule of law and liberal legality in the SAR. In some cases, the exiting jurists tied their decisions explicitly to such concerns (principally to the impact of the HKNSL). Under the regime created pursuant to the HKNSL, foreign judges are not permitted on panels hearing national security cases. Participation by foreign non-permanent judges and citation to foreign – principally common law – precedent has declined steeply in Hong Kong court decisions in recent years, possibly showing the weakening influence of such judges and sources of law.Footnote 47
Careful scholarly analyses of SAR court – and especially CFA – decisions have discerned significant shifts in judicial practices. These trends include greater deference to SAR political branches’ (as well as the PRC’s) actions and choices, approval of reductions in criminal procedure and due process protections, other departures from prior liberal rule of law norms, and broad acquiescence in the erosion of liberal individual rights and Hong Kong’s autonomy.Footnote 48
The courts have reliably convicted and upheld convictions for hundreds of defendants involved in political protests, pro-democracy movements, and other political activities for violating inherited colonial and new SAR-era laws prohibiting disruption of public order, subversion and sedition, and new national security crimes (including subversion) introduced from 2020 onward. Major rounds targeted leaders and participants in the Umbrella Movement and the anti-extradition law protests. Shortly after the HKNSL came into force, forty-seven prominent defendants were charged with conspiracy to commit subversion (in violation of the HKNSL) for their roles in planning an informal “democratic primary” that sought to identify pro-democracy candidates for the 2020 elections that were postponed and later held under revised, undemocratic rules. The forty-five who pled guilty or were convicted included student leaders, a law professor associated with democratic reform efforts, former members of the Legislative Council and other high-profile pro-democracy politicians, and independent media figures.Footnote 49
Such convictions and the resulting removal from active roles in Hong Kong law and politics, along with the broader changes in Hong Kong’s legal order, have led to the chilling, silencing, or departure from Hong Kong of pro-democracy politicians, activists, and liberal and rights-oriented lawyers, and shrinking space for independent media and critical civil society. Those developments, in turn, have weakened forces outside the legal system (narrowly defined) – the larger law-related ecosystem – that might resist trends that have been transforming Hong Kong’s legal order.
These patterns in legal and law-related institutions’ staffing and functioning reflect China’s direct and indirect influence (alongside other, more local factors) on the SAR legal order’s movement away from Hong Kong’s inherited legal order and the once-promised democratic trajectory in the laws governing its political order – and thus movement toward, at least in a general sense, closer resemblance to the PRC.
VI Conclusion: Scope, Variety, and Complexity of Influence
Although this chapter covers a large swath of Hong Kong’s post-reversion legal trajectory, its scope is in some ways narrow. The foregoing discussion focuses on areas of public law (particularly those most closely adjacent to politics) and formal state institutions (legislative, executive, and judicial) and the laws affecting their composition and powers. If we were to widen the aperture to take in developments in, say, commercial law, or the law- and legal order-shaping activities of non-state actors, or legal changes in areas where Beijing appears to have a less fully developed and urgent agenda, some of the less formal and direct modes of influence that emerge in the foregoing account might well appear more prominent and pervasive. At the same time, the indications of such phenomena even in the areas of law considered in this chapter – where they are less likely to be present – may provide especially strong confirmation of their existence, though not their full scope. At a broader and deeper level, much the same is true of the PRC–Hong Kong experience, viewed in the comparative context of more typical cases of inter-Asian legal influence, where the robust formal and practical power that the PRC wields over the SAR is not present.
First, the PRC–Hong Kong case indicates that the mechanisms of trans-jurisdictional legal influence in Asia are sometimes oblique and opaque, mediated through the recipient jurisdiction’s institutions and legal-political actors and reflecting contextual factors. Border-crossing legal influence thus often looks more neocolonial than colonial, even where one party (Beijing) has plenary sovereign authority to pursue full-blown lawmaking or issue binding government mandates to the other (Hong Kong) and even in areas of law where the stronger party’s imperative or temptation to exercise such power seems especially strong. Although this pattern surely reflects the central PRC authorities’ calculations of costs and benefits and possible resistance, it also resonates with a broader feature of China’s growing legal impact abroad: the relatively low salience of the type of “legal model-exporting” agenda that characterized much of the US- and Western-led drives to promote legal reform abroad during the postwar and post–Cold War eras.Footnote 50
Second, the Hong Kong experience illustrates the complicated relationship between exporting models and influencing legal orders, as well as the difficulty of discerning causation. Even where Beijing could have required Hong Kong to adopt PRC models, and even when PRC institutions made or mandated law for Hong Kong, the result generally was not a simple “transplant” of PRC paradigms. Substantive characterizations are difficult and contestable: As Hong Kong has moved away from aspects of the laws and legal order inherited from colonial times and abandoned progress toward the legal elements of a democratic political order that were imagined in the arrangements for reversion (and nudged forward in the late days of British rule), such divergence might not necessarily or incontestably be characterized as convergence with PRC models. In terms of process, the pathway for Hong Kong’s law and legal order toward achieving Beijing’s ends of maintaining social order and stability, illiberal and undemocratic governance, and so on often (although far from always) entailed distinctively Hong Kong (or at least not closely PRC-imitating) lawmaking and law-shaping. The adoption of illiberal or undemocratic legal rules and mechanisms in the SAR includes instances where it is, at best, difficult to untangle the relative importance of demands from Beijing, the more diffuse shadow of Beijing’s preferences, and the agendas of local officials and interest groups. In some cases, tools of illiberal, undemocratic, or repressive law were in the toolkit inherited from colonial times and could be used with little adaptation, albeit by different rulers.
Finally, the Hong Kong example spotlights the phenomenon of competition for influence in a world of plural sources of trans-jurisdictional legal influence, with China as a rising influencer. To be sure, the SAR is an extreme case – and arguably the canary in the coal mine – of PRC influence on legal orders beyond the Chinese Mainland. Still, the progression across the SAR’s history is broadly instructive. While China’s formal authority to shape Hong Kong law has been extremely broad and deep since 1997, Beijing’s apparent exertion of influence and practical impact have increased in scope and scale. And PRC/SAR concern with meeting Western or other foreign metrics for the character and quality of the influenced legal order has waned.Footnote 51 Therein lie possible lessons that warrant attention from analysts of IAL in an era of China’s proclaimed pursuit of “foreign rule of law” [shewai fazhi]Footnote 52 and US–China competition across many fields, including law and transnational legal influence.
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