China and EU's Approaches to the Rule of Law at the International Level：Differences and Developments （Liu Heng）

I. Background

The item of “the rule of law at the national and international levels” continuously keeps on the agenda of each session of the General Assembly of the United Nations (UNGA)since it was included in the provisional agenda of the sixty-first session of the UNGA in 2006.Within this framework, the UN is currently developing a common approach to strengthening the rule of law at the international level, which involves respect for the Charter of the United Nations and international law, and is premised on shared fundamental principles and values long supported by Member States.

In the 64th session of 2009, the sub-topic of “promoting the rule of law at the international level” was with specific examined. Based on the discussions and dialogues, the UN published the Concept Note and Guidance Note concerning the rule of law at the international level in June 2009 and May 2011, respectively, which tried to clarify the key issues for consideration, and guiding principles and framework for the UN assistance for strengthening the rule of law at the international level.

II. Questions to be answered

The central question to be explored here is: How do China (a country under the rule of law) and EU (a Union of values and a community of law) regard, respectively, the process of the UN to strengthen the rule of law at the international level?

What do China and European Union (EU) do for and during this UN process? To date, China and EU have both actively participated in the discussions of this item and made some official statements in almost all sessions with respect to their understandings about the rule of law at the national and international levels. What did they say and what do they want to say? Obviously, whatever they are saying, the same words they may be used sometimes do not necessarily mean the same meaning. For simple example, what is the rule of law? We cannot expect to get the same or similar responses from China and EU.

Based on these official statements and the facts referred to therein, and related documents and other materials, this paper tries to do a comparative study on China and EU’s understandings of the rule of law at the international level. By so doing, to identify the salient features of respective understandings about some hot issues of international law, and main differences between them, and the evolutions, if there exist, of understandings of both during these years and their implications for the rule of law at the international level, for international law and, more broadly, if possible, for international community.

III. Proposed framework

This paper would consist of five parts:

Firstly, brief introduction to the item of “the rule of law at the national and international levels” under discussions of the Sixth Committee of the UNGA, such as, what were examined in each session and their outputs so far. The sub-topic of “promoting the rule of law at the international level” in 2009 will be observed with special attention.

Secondly, general assessment of the situation of the rule of law at the constitutional level within China and EU, and their participation in the process of the UN to strengthen the rule of law at the international level for these years.

Thirdly, to examine the salient features of respective understandings of the rule of law at the international level by picking up several hotly-discussed issues of the rule of law, in particular at the international level on the table of the Sixth Committee of the UNGA, such as international rule of law, rule of law and transitional justice, and so on, and find main differences between them, and demonstrate the evolutions, if there exist, of these understandings and differences.(e.g. their answers to questions, such as, what’s the rule of law at the international level? Which are the core elements of rule of law at the international level? What are the impediments to making the rule of law at the international level more effective?)

Fourth, the sub-topic of this sixty-eighth session since 2013 of “the rule of law and the peaceful settlement of international disputes” will be with specific attention. To take, probably, the Libyan intervention, Syria Crisis and the pending Sino-Philippines arbitration as examples to show how China and EU to deal with “the rule of law at the international level” in practice, it may be concerned some issues like the use of force, the responsibility to protect (RtoP), etc.

Finally, to make a tentative assessment of both China and EU’s understandings of the rule of law at the international level and, possible prospects and explore, based on the aforesaid studies, the implications of their understandings for the UN rule of law item, international law and more broadly, if possibly, for international community.

IV. Preliminary hypotheses

1. The understandings of the rule of law at the international level, to a large extent, are some specific views on international law; and,

2. For China and EU, it concerns respectively, among others, the position of international law within the Chinese domestic legal order and the EU’s legal order;

3. Different understandings of the rule of law at the international level reflect of course different concerns of different parties, however, it would be one source of (1) different interpretation of international law, and (2) accordingly, result in possibly selective application of international law.

V. Methodology (a comparative study)

Main materials on which the study would be based, as above-mentioned, are not some theoretic doctrines and academic literature, but practices of China and EU on the ground and related rules of international law. For example, the study will not indulge in what the rule of law at the international level really is, but what China and EU think it is.

Moreover, based on the tentative review of both China and EU’s understandings of the rule of law at the international level, it may put forward the issue of rule-of-international-law which was examined in my PhD thesis titled “Rule of International Law: from International Rule of Law to Global Governance” in the last part.

（Contant Liu Heng：liuheng@cass.org.cn）