Daniel Kempken*

Leer versión en español aquí.

China’s new Rule of Law Concept contradicts in central points the internationally established conception of the Rule of Law. The Chinese proposal stands for rule by law. These ideas should be countered in the international debate as well as by further promoting the current Rule of Law model in cooperation with partner countries and civil society. However, existing judicial dialogues and legal cooperation with China itself should also be continued in an appropriate manner. 

China’s five-year plan to build the rule of law (2020 – 2025) contains a conception of law that departs from the current UN conception of Rule of Law in fundamental respects and contradicts the interests of both the European Union and the United States. The main sticking points are the strict rejection of the separation of powers/independence of the judiciary, a completely different understanding of human rights, data, and privacy protection as well as democracy. Furthermore, digital systems are to replace the decisions of an independent judiciary in important areas.

The bottom line is that ruling by law is taking the place of the Rule of Law. In particular, the digital elements of the Chinese model are reminiscent of a 4.0 version of the dystopia of a total surveillance state described by George Orwell in his novel 1984.

According to the Five-Year Plan, the declared goal is to promote Chinese-style rule of law internationally. For this purpose, China is relying on participation in UN bodies, international cooperation, judicial dialogues, exchange programs and new arbitration procedures. This announcement should set alarm bells ringing. The concept adds a new dimension to legal development, as China challenges the existing international consensus on Rule of Law. 

The strategy however has a realization horizon of almost 15 years. In the meantime, China’s plans will be subject to various internal and external influences. The United States and Europe should use this time to work actively to safeguard the current international Rule of Law understanding. There are three main ways to do this:

1. An active role in the international debate

After the fall of the iron curtain, socialist legal systems lost importance. A global understanding of the Rule of Law, shaped mainly by the UN, the Council of Europe, the OSCE, the European Union and the United States, was consolidated. It is based on values and fundamental decisions such as the separation of powers and the independence of the judiciary, human rights, and equality before the law. Most recently, this concept was reaffirmed in 2012 by UN Resolution A-RES-67-1 (Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels).

However, as early as 2015, an incipient systemic conflict emerged during the negotiations on the 2030 Agenda and SDG 16. The compromise was not to set Rule of Law as a goal, but rather ‘access to justice’, a formulation that can also align with the notions of countries with autocratic tendencies of rule by law. Thereafter, the once widely accepted concept of the Rule of Law has been increasingly called into question. China is the most prominent case in this scenario and through its new Five-Year Plan also the most manifest and at the same time the most operative.

On closer examination, the concept of the Rule of Law in the United Nations reveals a certain disagreement on definition and a corresponding terminological blurring. This vagueness opens up possibilities for questioning the terminology down to fundamental aspects^[1]. The Chinese Five-Year Plan addresses this weakness by undertaking and deepening the beginning polarization already observed during the discussions on SDG 16 and in the following years. 

Therefore, in future negotiations at the international level, it is imperative to defend the current concept of the Rule of Law adopted by the United Nations. In this regard, it should be borne in mind, among other things, that the Chinese side itself also uses the term rule of law when promoting its ideas but understands it as something quite different. 

In this context, it is essential that future declarations establish clear references to existing, previously undisputed formulations and, if possible, reaffirm them. Negotiations therefore require in-depth comparative legal expertise, as well as special attention to the different terminology used.

2. Strengthening the promotion of the traditional Rule of Law in partner countries

According to its Five-Year Plan, China intends to intensify bilateral legal cooperation and promote its alternative judicial concepts. Particular activities are expected in countries that are part of the Belt and Road large-scale investment project. For example, China expects its partner countries to submit to Chinese arbitration. Lawyers from several friendly countries or parties are already being invited and trained for this purpose.

These efforts will not fall on deaf ears in all countries. Thus, competition between different legal systems will gain in contours. As for Latin America, it is important to note that several countries such as Uruguay enjoy very close economic ties with China. Others like Ecuador already suffer from an unsustainable debt with China. The same applies to some European countries such as Montenegro. A few weeks ago, China indirectly supported the judicial coup d’état orchestrated by the Government of El Salvador, stating through its Embassy in San Salvador that «safeguarding sovereign equality and non-interference in internal affairs of other countries are the most important principles of the UN Charter». At the same time the People’s Republic offered vaccines against Covid 19 and more economic cooperation with Central American countries.

With this geopolitical situation legal cooperation of the United States and Europe, based on the traditional Rule of Law, is more important than ever. Lawyers, judges, and prosecutors are not only ‘experts’ in the sense of classical development cooperation. They are also ambassadors for their Rule of Law understanding and for democracy; they can convince through both advice and dialogue. In this way, it is possible to provide our partner countries with a considerable counterweight to other judicial conceptions.

The legal systems in democratic states respect and protect human rights and fundamental freedoms of their citizens. Civil society organizations are therefore natural partners in projects to promote Rule of Law, whether by organizing observatories of judicial systems or by calling for and promoting access to justice as well as independence and integrity of judicial systems. 

3. Judicial Dialogue and Legal Cooperation between European countries and China

The European Union had a dialogue on legal matters with the People’s Republic of China until 2019. Germany and China have judicial dialogue and legal cooperation during the last 20 years. At first glance the argument against continued cooperation with China seems to be that it would support and legitimize a system diametrically opposed to the protection of human rights as well as established values and interests. Indeed, a clear political signal would be sent by ending the cooperation. 

But it is to be feared that such a signal will not have any lasting effect; such an approach might even be in the interest of the Chinese side. It is not for nothing that China itself has ended the human rights dialogue with Germany. This makes it even more important to remain in dialogue.

Besides the fundamental differences described above, the Chinese legal concept contains objectives that partly coincide with European and American ideas or could be in the interest of countries that cooperate with China economically: these are, for example, legal certainty and the efficiency of judicial systems, reliable civil law, or the digitalization of the judiciary, as well as the regulation of the digital economy, internet finance and artificial intelligence. Development of international arbitration, fight against corruption and transnational crime or asset recovery are also topics of common interest.

In these sub-areas, judicial dialogue can be useful for both sides. Legal certainty in civil and commercial law, for example, is of interest to companies from other countries. We know from the judicial dialogue conducted by Germany that China has achieved impressive successes over the past two decades, for example in the field of legal services. Thus, despite all the fundamental differences, the dialogue with China can provide valuable insights for the development of one’s own judicial systems. 

Opportunities to influence the Chinese judiciary may be small, but they do exist. For example, training and dialogue programs of German Cooperation reached approximately 10% of all Chinese judges. Apart from fundamental provisions taken from socialist legal systems, Chinese law contains many elements of the Anglo-American legal system and the continental European legal system as well. 

Last but not least, profound knowledge of the Chinese legal system, of the sense and purpose of intended legal changes has a value in the international debate that can hardly be underestimated. Such background knowledge cannot be gained from legal science and academic studies in comparative law alone. Practical dialogue and cooperation reveal a much more complete picture of the real situation and thus improve the negotiating position considerably. 

The better one understands the Chinese legal system and its function in the overall political context, the better one can position in international discourse the concept of the Rule of Law that guarantees the independence of the judiciary, fundamental and human rights, equality before the law and the protection of data and privacy. Against the background of these contexts, dialogue, and cooperation of EU countries with the Chinese judiciary are not a pact with the devil, but a necessary confrontation with a competing system. 

^[1] Arajärvi, Noora, The Rule of Law in the 2020 Agenda, KFG Working Paper series, Nr. 9, 2017, 6, 28 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2992016

* Independent consultant on rule of law and anti-corruption. From 2017 to 2019, he was Head of Section for Governance, Democracy and Rule of Law at the German Federal Ministry for Economic Cooperation and Development. Previously he held various functions in German Cooperation and Diplomacy.

Photo: AP Photo/Ng Han Guan