PREFACE

China is a dynamic country worth studying in many different aspects, among which Chinese law is a great treasure to unearth. The Spring 2022 issue of Tsinghua China Law Review consists of four articles and two notes and deals with three essential legal topics related to China: First, how does China achieve a green economy through legal instruments, such as green finance and ESG in corporate governance? Second, what is the recent deve- lopment of international law deserving our attention and how did international law root in China? Third, how should we protect personal information while combating severe cyber mis/disinformation? In this issue, all the authors give their novel answers to these questions, which will provoke our thinking.

The first article deals with green finance, which has been a hot topic in recent years. In the article entitled China’s Regulatory Pathway to Green Finance, Dr. Wenting Cheng and Professor Peter Drahos discern two mecha- nisms in China’s implementation of green finance policy, which could be regarded as an alternative answer to how China’s socialist regime operates and on a larger scale, how China succeeds in its own way to achieve its goals, compared to previous theories, such as “command and control,” “top-down regulation,” or “fragmented authoritarianism.” From their perspective, China’s green finance regulation incorporates the pressure-driving mecha- nism, which compels the local authorities to implement the policy of the central government through the effect of promotion tournament, and the experimental governance mechanism, which aggregates local information to test the proposed measures and diffuse those effective ones to other areas. As Dr. Cheng and Professor Drahos see it, China’s experience may set an example for other countries, especially the developing ones.

The next three articles concern the development of international law in the United Nations Security Council and in the history of modern China. In the article entitled Legitimatizing UN Security Council as Legislator — The Constitutive and Socio-Political Rationale, Ms. Hou Meizhu argues that some UN Security Council resolutions could be considered as legislations with a set of examples. She specifies a “three-pillar measurement” to determine these legislative resolutions. First, these resolutions have to consist of terms like “decides” or “requires,” which indicate binding obligations; Second, these resolutions shall be directed to an abstract object, e.g., unspecified terrorists; Third, these resolutions shall be directed to a general subject, such as “all Member States” of the United Nations. Ms. Hou lays out five reasons for the necessity of the Security Council’s legislative resolutions and refutes those dissenting voices. At last, she discusses how to control Security Council legislation to avoid its arbitrariness.

In the article entitled Neither Li Nor Law: An Analysis of the Late Qing China’s Overseas Settlements, Professor Yan Liyuan outlines the develop- ment of Late Qing China’s settlements in Korea, whose existence is beyond one’s imagination as settlements have been seen as a colonial instrument in China because of the long historical experience of being half-colonized by the Western powers. Indeed, China’s settlements in Korea are not quite the same as Western ones. In Professor Yan’s view, China’s settlements are the final attempt to save traditional Chinese Dian-li (典礼, Grand Ritual) and Bin-li (宾礼, Guest Ritual) norms which emphasize preferential treatment to vassal States and had been used to deal with the Sino-Korea relationship in the past. However, they took the form of European international law, which creates an inherent paradox, because European international law was backed by force. In contrast, Japan completely abandoned the traditional Confucian Li (礼) and embraced force-backed European international law. As a result, Japan con- quered and annexed Korea as a colony and kicked China out of sight.

In the article entitled A Linguistic Approach to Late Qing China’s En- counter with International Law, Professor Li Mingqian offers a textual analysis from the perspective of translation of treaties and international law works. She finds that translators in late Qing China resorted to traditional Chinese intellectual resources to fill the cognitive gap when choosing terminology that they deemed proper. Many of these terms were chosen intentionally to add universality and morality to European international law. For Chinese intellectuals, it increased the acceptability of international law. For example, “international law” per se was translated as Gong Fa (公法), meaning “law for all and just.” Sometimes, translators even purportedly used different, often inaccurate terms to achieve their own political aims. The translation of “superintendent” as “领事官” in the Treaty of Nanking is an example. In the view of Professor Li, linguistics matters when reviewing the development of international law in China. 

Besides these four articles, there are also two notes in the column of China Law Update. The first one concerns the development of ESG in corporate governance in China in recent years. In the note entitled Transformation, Challenge, and Optimization: The ESG Evolution of Chinese Corporate Governance, Mr. Li Runqi and Mr. Ren Ke sketch the overall legal and regulatory structure for ESG in corporate governance in China. They elabo- rate on how Chinese companies are required to incorporate the concept of ESG into operation when they deal with internal management and external relations, such as with shareholders, stakeholders, and regulatory authorities. Nonetheless, a lot of challenges exist for companies to comply with these mandates, e.g., no financial incentive for compliance, no industrial pertinence for implementation, or no clear criteria for disclosure. In response to these challenges, Mr. Li and Mr. Ren propose to learn from other countries’ expe- riences. In their view, China shall impose a compulsory obligation to comply with the ESG requirements and unify the disclosure criteria, whereas how to disclose the ESG information shall be left to the corporation directors to decide.

The second note focuses on the Provisions on Management of Internet Users’ Account Information,  which requires Internet information service providers to display the territorial information of the IP address of the Internet user for the public good (mainly to strike cyber mis/disinformation). Since the release of its Draft for Comment,  multiple internet platforms began to comply with the Provisions and show the province (if in China) or the country (if not in China) where users are located. In the note entitled A Balance Between Social Media Users’ Personal Information Protection and Com- bating (Mis) and (Dis)information in China, Ms. Fan Jinghe and Ms. Tang Wenhan scrutinize the legality of the Provisions against the backdrop of the Personal Information Protection Law (2021).  They argue that territorial information is a kind of personal information protected by the PIPL and the disclosure of such information could only be justified by the public interest exception allowed for in Article 13 Paragraph 1(3) of PIPL. However, it does not mean that there is no limit. In their opinion, the disclosure of territorial information to comply with the Provisions needs to pass the test of the proportionality principle.

In the end, we would like to thank Professor Gao Simin of Tsinghua University School of Law for her kind mentorship, and Professor Shen Weixing, the dean of Tsinghua University School of Law, for his continuous support. Special thanks go to the Tsinghua University Humanities and Social Sciences Development Initiative for their generous financial support for this issue. At the same time, we extend our highest gratitude to all the contributors and readers for their constant support of our journal.

CAO Wenjiao & WU Peiyao

Co-Editors-in-Chief

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