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.
This year, 2021, will be very important in the fight against corruption around the world, particularly in Latin America and the Caribbean. For the first time, the United Nations General Assembly will hold a special session dedicated to the fight against corruption (A/RES/73/191); and, at the hemispheric level, it is expected that the IX Summit of the Americas will provide an opportunity for the region to showcase its accomplishments since the adoption of the Lima Commitment of 2018 (“Democratic Governance Against Corruption”).
One can add to these events the arrival of a new Biden-Harris administration to the White House, which announced during its campaign that fighting corruption will be a prominent part of its domestic and foreign policies. One of the priorities for the yet-to-be scheduled global “Summit for Democracy” is the fight against corruption (The power of America’s example: The Biden Plan for leading the democratic world to meet the Challenges of the 21st Century).
At first glance, the zero drafts of the Legally Binding Instrument (LBI) and Optional Protocol (OP) raise serious doubts as to whether they add value to the effort of making business enterprises accountable for human rights abuses. The draft LBI establishes the “effective access to justice and remedy to victims of human rights violations in the context of business activities” as one of its main purposes. However, the OP addresses enforcement mostly through national implementation mechanisms and an international committee of experts, both of which have weak oversight and monitoring powers.