ArticlePDF Available

Bridging the EU-China’s gap on the Rule of Law?

Authors:

Abstract

As the European Union (EU) and the People’s Republic of China (PRC) celebrate 40 years of bilateral relations, the partnership continues to develop inter alia with the launch of a new Legal Affairs Dialogue, announced during the 17th EU-China summit (June 2015). As Rule of Law approaches greatly differ between the PRC and the EU and contain unbridgeable conceptual gaps, the new Legal Affairs Dialogue might further contribute to changes in the EU’s strategy of external Rule of Law, faced with the PRC’s own narrative and approach to the Rule of Law. On the other hand, the new dialogue might offer room for agreement and convergence on various global, bilateral and domestic levels. Recent domestic adjustments in the PRC and a manifest interest in reforming its legal system at a time when the EU is itself re-thinking its strategy of external rule of law offers a great potential for significant exchanges and an opportunity to bridge the Rule of Law gap between the PRC and the EU.
1 23
Asia Europe Journal
Studies on Common Policy Challenges
ISSN 1610-2932
Asia Eur J
DOI 10.1007/s10308-015-0437-7
Bridging the EU-China’s gap on the Rule of
Law?
Matthieu Burnay, Joëlle Hivonnet &
Kolja Raube
1 23
Your article is protected by copyright and
all rights are held exclusively by Springer-
Verlag Berlin Heidelberg. This e-offprint is
for personal use only and shall not be self-
archived in electronic repositories. If you wish
to self-archive your article, please use the
accepted manuscript version for posting on
your own website. You may further deposit
the accepted manuscript version in any
repository, provided it is only made publicly
available 12 months after official publication
or later and provided acknowledgement is
given to the original source of publication
and a link is inserted to the published article
on Springer's website. The link must be
accompanied by the following text: "The final
publication is available at link.springer.com”.
ORIGINAL PAPER
Bridging the EU-Chinas gap on the Rule of Law?
Matthieu Burnay
1
&Joëlle Hivonnet
2
&Kolja Raube
1
#Springer-Verlag Berlin Heidelberg 2015
Abstract As the European Union (EU) and the Peoples Republic of China (PRC)
celebrate 40 years of bilateral relations, the partnership continues to develop inter
alia with the launch of a new Legal Affairs Dialogue, announced during the 17th
EU-China summit (June 2015). As Rule of Law approaches greatly differ between
the PRC and the EU and contain unbridgeable conceptual gaps, the new Legal
Affairs Dialogue might further contribute to changes in the EUs strategy of
external Rule of Law, faced with the PRCs own narrative and approach to the
Rule of Law. On the other hand, the new dialogue might offer room for agreement
and convergence on various global, bilateral and domestic levels. Recent domestic
adjustments in the PRC and a manifest interest in reforming its legal system at a
time when the EU is itself re-thinking its strategy of external rule of law offers a
great potential for significant exchanges and an opportunity to bridge the Rule of
Law gap between the PRC and the EU.
Introduction
In 2015, the European Union (EU) and the Peoples Republic of China (PRC)
celebrate 40 years of bilateral relations, an anniversary that both sides are taking
very seriously to explore further ways of expanding their already wide-ranging
partnershipcurrently more than 60 bilateral dialogues (Burnay et al. 2014). In this
context, the EU is hoping that the 17th EU-China summit will broaden and deepen
further the partnership by launching a new legal affairs dialogue. In the following,
we argue that the EUs strategy of external Rule of Law promotion is changing
Asia Eur J
DOI 10.1007/s10308-015-0437-7
The views expressed in this paper are those of the authors and do not necessarily reflect those of the EEAS or
European Institutions.
*Joëlle Hivonnet
Joelle.HIVONNET@eeas.europa.eu
1
Leuven Centre for Global Governance Studies, KU Leuven, Leuven, Belgium
2
European External Action Service, Brussels, Belgium
Author's personal copy
because partners like the PRC are developing their own narrative and approach to
the Rule of Law. In this perspective, the article focusses on the Rule of Law
approaches of PRC and the EU. In doing so, we are able to highlight the major
differences between PRC and the EU, and assess whether their respective BRule of
Law^approaches contain unbridgeable conceptual gaps or offer room for agree-
ment and convergence on various global, bilateral and domestic levels (Pan 2012).
The paper then argues that recent domestic adjustments in the PRC suggest that the
Chinese side shows a renewed interest in reforming its legal system at a time when
the EU is itself re-thinking its Rule of Law strategy. As a consequence, the EU and
China might be converging on Rule of Law conceptions and a newly identified
Chinese Bopenness^may offer opportunities to enter discussions on the Rule of
Law between PRC and the EU.
The EU Rule of Law promotion
The EU has long been described as a Bnormative power^, providing norms to the outside
world and making other actors adopt norms via attractive features of the European
Union, be it Bthe enlarging EU^,Bthe EU as a market^or Bthe EU as a trading partner^.
Indeed, authors have shown that the EUs ability to offer accession, access to its market
or liberalising its trade barriers often comes with an inside-out flow of EU norms ().
The Treaty of Lisbon, in its article 21, puts renewed emphasis on internal/
external coherence and clarifies that the BUnions action on the international scene
shallbeguidedbytheprincipleswhichhaveinspireditsowncreation,development
and enlargement, and which it seeks to advance in the wider world: democracy, the
rule of law, the universality and indivisibility of human rights and fundamental
freedoms, respect for human dignity, the principles of equality and solidarity, and
respect for the principles of the United Nations Charter and international law.^In
that perspective, we must underline that Rule of Law promotion, often presented as
an enabling factor of both Democracy and Human Rights rather than a principle in
itself, has now become a dependent variable, rather than a factor leading to
democratisation or the implementation of human rights.
The EU is advocating the Rule of Law as a normative principle (Magen; Pech). In
this view, the Rule of Law can be seen as having the following features:
&First, a separation of powers, in Europe stemming from the ideas of Montesquieu
and Locke, is meant to prevent the centralisation of power and limit the risks of
abuse of governmental power vis-à-vis legal persons.
&Second, a supremacy of law, meant to restrict governmental discretion, wilfulness
and arbitrariness. The supremacy of the law implies that nobody can claim to be
standing above the law and, hence, everybody is equal before the law. In order to
ensure the supremacy of the law, one also needs to create a culture of legality and
law enforcement mechanisms.
&Third, legal certainty and independence of the judiciary, which means that indivi-
duals and legal personalities can rely on the implementation of their rights and the
interpretation of law by means of an independent judiciary, which, as one of the
states powers, is separated from the legislative and executive.
M. Burnay et al.
Author's personal copy
Given the diversity of Rule of Law approaches across Europe (BRule of Law^,
BRechtstaatlichkeit^,Bétat de droit^),
1
and the diversity of situations and countries that
the EU is dealing with, the EU often needs to balance or prioritise some principles and
the EU may sometimes advocate a Bthin^Rule of Law approach and, at other times, a
Bthick^Rule of Law approach.
2, 3
Thin or formal versions of the Rule of Law limit
themselves to eight principles of legality: they include (1) a need for general rules, (2)
publicity, (3) non-retroactivity, (4) clarity, (5) consistence, (6) possibility for practical
implementation, (7) stability and (8) good enforcement of the norms (Fuller 1969).
Thick or substantive versions of the Rule of Law are more comprehensive and
incorporate elements of political morality that vary depending on the specificities of
the legal, political and social structures of the State concerned. Because political
morality underpins the foundation of western democracies Rule of Law, democracy
and human rights are seen as being totally interdependent.
Nevertheless, according to the internal/external coherence principle and
BNormative Power Europe^approaches, the EU itself needs to jointly implement
a set of norms if it is to persuade Bothers^.
4
In other words, what happens within the
EU, at the conceptual and praxis levels, including the recent Rule of Law crises
faced by the EU, would have inevitably affected the EUs Rule of Law promotion.
The so-called Rule of Law crisis hit two new Member States, Hungary (linked to the
independence of the judiciary in 2011) and Romania (regarding the non-respect of
constitutional court judgments in 2012), but also one of its founding nations,
namely France (as regards the rights of Roma people in 2010). These Battacks^
on the Rule of Law meant that the very cement that holds the EU together was
crumbling and with it the whole European edifice as a BCommunity based on the
Rule of Law^. Such a crisis forced the EU to rethink what the Rule of Law is in the
context of the European Union. If the EU does not want to stand accused of double
standards (internal/external standards) or incoherence (internal/external coherence),
it can only start considering the respective merits of each and every constituent of
the triangle (DemocracyRule of LawHuman Rights) externally once it has done
so internally.
It is in that context that the EU and the Council of Europe have re-discovered the
virtues of the Rule of Law, as one of the key values on which both organisations
were founded at the end of World War II. What is striking is the fact that both the
Council of Europe and the European Union have begun a process of differentiating
between closely related but different concepts, namely Democracy, Human Rights
and the Rule of Lawthe so-called holy trinity. For example, the president of the
Venice Commission recently recognised that BtheRuleofLawis()oneofthe
three pillars of the Council of Europe, together with Democracy and Respect for
Human Rights^adding that Bthe three pillars are closely intertwined, so that none
may be said to exist in the absence of the other two^but explaining that, in recent
years Bincreasing specific attention has () been brought to the Rule of Law as a
1
Rechtsstaat puts a greater focus on the State with the law playing the role of the ultimate barrier against the
absolute power of the ruler through the legislative and judicial power whilst Etat de droit puts a great emphasis
on the judicial constitutional review process.
2
Pech, op cit (fn)
3
Pech, op cit (fn)
4
Ian Manners, op cit. (fn); (Marangoni and Raube 2014)
Bridging the EU-Chinasgap
Author's personal copy
distinct principle and pillar in European circles.^
5
Although it seems evident that
there cannot be democracy without Rule of Law and human rights and no human
rights without Rule of Law, Rule of Law may exist independently of the other two
(provided that the Rule of Law is seen as flexible enough to be used in different
contexts, in particular different political and legal contexts (Russian Federation,
continental EU Member States and UK)).
Difficulties facing the promotion of the Rule of Law can be seen against the
rejection of EU partners to transform their societies according to the standards of
Western liberal democracies. In fact, partners like the PRC appear to have questioned
the EUs earlier approaches and developed their own interpretations and approaches of
the Rule of Law. With regards to the concrete example of China, it has been argued that
EU norms promotion is impossible or Bdead on arrival^(Mattlin 2012) Indeed, against
this background, we have to investigate why that is so and how the EU reacted. In the
context of the Rule of Law promotion, the EUs approach may be contested because it
is perceived as part and parcel of a democracy package and/or because PRC has
developed alternative concepts of the Rule of Law domestically. Overall then, the
particular case of Rule of Law promotion towards partners like the PRC may first tell a
story about the trials and tribulations of normative power Europe, second the develop-
ment of alternative Rule of Law conceptions in PRC, and third the ability of the EU and
PRC to arrive at a common denominator with regards to the Rule of Law in general,
and a Rule of Law dialogue more specifically. To assess this, we first turn to the Rule of
Law conception in the PRC. This analysis will provide the background necessary to
understand the differences in the EUs and PRCs positions with regards to the Rule of
Law, for example in the context of the UN and in ongoing bilateral relations. At the
same time, it will enable us to detect dynamics of the EU-PRC relationship to overcome
differences which may open up possibilities for a mutual Rule of Law dialogue.
Chinas approach to the Rule of Law
Within traditional Chinese society, Rule of Law has never reached the level of prestige
and importance gained in the West. However, for over 2000 years, China had main-
tained and developed a very sophisticated system of legal codes and institutions. In the
traditional Confucian tradition, Li (moral principles) are considered as being more
prominent than the Fa (the legal rules), (Chang 2010) as the following quote by
Confucius illustrates: BGuide them by government decrees and keep them in line with
penal laws, the people will stay out of trouble but will have no sense of shame; guide
them by moral principles and keep them in line with the rites, the people will not only
have sense of shame but also strive for higher standards.^(Brooks and Brooks 1998)
For a long time, rule by virtue (dezhi) prevailed over rule of law (fazhi).
Only recently did China begin to embrace the idea of rule of law in its quest for
reforming its economic and political systems and institutions as well as in order to build
up a modern society. With the opening-up and reforms-policy, the legal system was
rebuilt from scratch and it aimed at restoring social, economic and political stability
5
Les Assises de la Justice21 November 2013Conference held in Brussels under the auspices of the
European Commission, Mr Gianni Buquicchio, President of the Venice Commission
M. Burnay et al.
Author's personal copy
after a decade of cultural revolution (19661976) (Liebman 2009). Law was used to
create the necessary cohesion and openness that would attract foreign investments,
contribute to Chinas socio-economic development and put an end to Chinasisolation
on the international economic and political scene.
By means of a recent re-emphasis of the Chinese leadership, the Rule of Law has
become a political priority, as stated in several White Papers on BChina's Efforts and
Achievements in Promoting the Rule of Law^(2008), BThe Socialist Legal System with
Chinese Characteristics^(2011) (http://www.china.org.cn/government/whitepaper/
node_7137666.htm)andBJudicial Reform^(2012) (http://china.org.cn/china/2012-10/
09/content_26732292.htm). The Rule of Law was discussed during the 2013 3rd Plenary
session of the 18th Central Committee of the CCP. Moreover, The 4th Plenary Session of
the 18th Central Committee of the Chinese Communist Party (CCP), passed the BCCP
Central Committee Decision concerning Some Major Questions on Moving Ruling the
Country According to the Law Forward^in October 2014.The 180 measures foreseen
include the Bprofessionalisation^of the judiciary, changes to the court system, the
strengthening the role of judges and weakening the ability to interfere with them,
greater transparency and more education in Brule of law^. The CCP confirms Chinas
interest in improving its legal system in line with the Legislation law of 2000 which aims
at developing a Socialist Rule of Law with Chinese characteristics that departs from the
Western perspective on the Rule of Law (http://www.china.org.cn/english/government/
207420.htm).
The opening-up and reform-policy has arguably led to three main consequences that
have a strong hold on the development of the rule of law in China.
First, the PRC has enacted a very large number of laws in a dynamic that can be
described as a legal proliferation process. This reconstruction phase has covered a
broad range of fields: Criminal Law (1979), Administrative Litigation Law (1989),
Law on Lawyers (1996), Law on Judges (1999), Legislation Law (2000), National Bar
Exam (2002), Anti-Monopoly Law, Labour Contract Law and Property Law (2007).
Nevertheless, out of the 130 laws adopted between 1979 and 1993, more than a half
were in the areas of economic and administrative law (Weifang 2012) strengthening the
legal capacity of the country. Second, the whole process was accompanied by
organisational and institutional changes in the judicial system. While law schools were
closed during the Cultural Revolution and only 3000 lawyers were accredited by the
early 1980s, in 2010 there were 204,000 licensed lawyers.
6
Third, there has also been
an increase in the public awareness and trust that law and the judicial system should be
privileged instruments to resolve disputes.
7
Domestically, the Rule of Law has been tainted with so-called Chinese characteris-
tics, as made clear by the 2000 Legislation Law that aims at Bbuilding a socialist
country under the Rule of Law^(art. 1) (http://www.china.org.cn/english/government/
207420.htm). The BSocialist Rule of Law with Chinese Characteristics^has its own
specific features that can only be understood in the context of a political system that
remains a one-party system, whilst being open towards the outside world and an actor
in the international politics and law of global governance. On the one hand, the recent
6
To understand recent trends in Chinese courtsreforms, see Liebman (2007)
7
See generally Mary E. Gallagher, Mobilizing the Law in China: "Informed Disenchantment" and the
Development of Legal Consciousness, 40 Law and Society Review 783, 2006
Bridging the EU-Chinasgap
Author's personal copy
development of the Chinese legal system and more particularly of the 1982 Chinese
constitution (with subsequent revisions in 1988, 1993, 1999 and 2004) maintains the
supremacy of the Chinese Communist Party (CCP) over the law, a chaotic hierarchy of
norms, a lack of separation of power and the inability to litigate on the basis of
constitutional rights. On the other hand, China has become an important actor in the
international arena and party to a large number of international treaties which are now
binding in the Chinese legal system. The development of the Chinese legal system is
strongly affected by all the international obligations that China has abided to.
Despite tremendous transformations, Chinas legal system cannot be characterised as a
full-fledged rule of law system against Western standards, due to the lack of separation of
powers, supremacy of law, legal certainty and judicial independence. First, although in
theory there appears to be a separation of powers, in practice, state organs are not
independent; there is only a Bsuperficial separation of powers^
8
or rather a Bdivision of
duties^(Blasek 2015). The separation of powers only takes place in terms of
organisational structure but not in terms of functions since the legislative process also
remains under the control of the Communist Party of China. Second, in China, laws are
often ignored instrumentalised to ensure the stability of the State or bent to promote
officialspersonal interests. Also, the inadequacies of Chinas legal system mean that the
guanxi system (or relations system) continues to be influential to solve problems.
Moreover, as of today, there is no truly independent mechanism to interpret, enforce or
review the Constitution and no possibility to invoke constitutional rights or have them
protected.
9
Fourth, the power of the National Peoples Congress (NPC) and the funda-
mental principles of Bgenerality^(Yuanzexing) and Bflexibility^(linghuoxing) leave
plenty of room for conflicting interpretations and rules, as well as arbitrariness, and
citizens and entrepreneurs alike have no legal certainty. Fifth, the system of appointing
of judges, financially dependent courts and the low level of remuneration make judges
vulnerable to the influence of the local authorities, and generate corruption.
10
The Rule of Law in EU-China relations
At United Nations
Both the EU and China engaged actively in the negotiations on the Rule of Law
Declaration at the United Nations. The renewed efforts of the UN to promote the Rule
of Law discussions date back to 2004. Defined by the UN Secretary General in his report
on BRule of Law and Transitional Justice in Conflict and Post-Conflict Societies^,
11
and
8
Weifang, In the Name of Justice, op cit.
9
On the challenge of constitutionalism in China, see Balme and Dowdle (2009)
10
See generally Peerenboom (2006).
11
Secretary General Kofi Annan defined the rule of law as follows: BA principle of governance in which all
persons, institutions and entities, public and private, including the State itself, are accountable to laws that are
publicly promulgated, equally enforced and independently adjudicated, and which are consistent with
international human rights norms and standards. It requires, as well, measures to ensure adherence to the
principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of
the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and
procedur al and legal transparency.^Report of the Secretary General on the Rule of Law and Transitional
Justice in Conflict and Post-Conflict Societies, 23 August 2004, S/2004/616, para. 6.
M. Burnay et al.
Author's personal copy
further discussed at great length at the 2005 World Summit, the Rule of Law became the
focus of attention in most of the UN activities in the field of peacekeeping, development
aid and economic growth among others. The UN General Assembly adopted by consen-
sus a Declaration on the Rule of Law, which stresses inter alia the inter-relationship
between the Rule of Law and the three pillars of the United Nations (UN): (1) peace and
security, (2) development and (3) human rights, as recognised by the UN Charter.
Both the EU and China engaged actively in the negotiations although they clearly
had different priorities and could not agree on a common definition. First, while the EU
aimed at concluding a comprehensive and detailed declaration, China was keener to
agree on a brief political declaration and was reluctant to define the Rule of Law.
Second, China insisted on the need to refer to the existence of different versions of the
Rule of Law and the absence of universal features. Partly because of Chinese pressures,
Paragraph 10 of the declaration mentions the Bbroad diversity of national experiences in
the area of the Rule of Law^.
12
Third, while the EU insisted on the intertwinement
between Human Rights and the Rule of Law, as highlighted in the EUspledge,
13
China
wanted to make as few references to human rights as possible and insisted on the need
to protect the territorial integrity and political independence of UN members. Overall,
the EU and China remained divided over the interpretation of the Rule of Law as a
whole, despite an emerging consensus on the idea of an international community
characterised by legal pluralism and a clear willingness not to link the Rule of Law
only to human rights and democracy principles.
Bilateral level: towards a BRule of Law^and BLegal Affairs^Dialogue
The EU-China Strategic Partnership currently consists of more than 60 specialised
dialogues through which the relationship between the two partners is shaped. In the
context of the EUs attempt to promote the Rule of Law externally, it aims to establish a
Rule of Law dialogue with PRC. While seemingly different domestic interpretations of
the Rule of Law and the concrete implementation of legal systems prevail, the common
signature of a the United Nations Declaration spurred hope on the EUssidetofinda
common ground of interpretation based on which a Rule of Law Dialogue could be
kicked off.
The more specific reasons for the EUs interest in bilateral cooperation with China
on the Rule of Law with PRC are manifold. First, the EU is interested in setting up a
dialogue with China in the context of the negotiations on the EU-China investment
agreement. As a new decisive step in the EU-China strategic partnership, the EU seeks
more legal certainty and stability for European investors in China. So the lack of
independence of the judiciary, the uncertain hierarchy of norms, weak law enforcement
and corruption are meant to be tackled as a matter of urgency for the EU. Furthermore,
there are many areas, including in the field of environmental protection or public
health, that are global issues that can only be addressed jointlyincluding in
multilateral forathrough the introduction and implementation of relevant legislation.
Also, because of its commitment to Beffective multilateralism^(Communications on
12
UN General Assembly resolution on BThe rule of law at national and international levels^(A/RES/66/102)
13
Statement by José Manuel Barroso at the General Assembly High Level Meeting on the Rule of law on
BThe European Union and the Rule of law^, United Nations, 24 September 2012.
Bridging the EU-Chinasgap
Author's personal copy
EU-UN 2003), it is only natural that the EU would look for ways of ensuring that UN
commitments are upheld and implemented. On that basis, a dialogue would give rise to
major opportunities for the EU to help China to further modernise its legal system.
In the past, discussing the Terms of Reference of a Rule of Law Dialogue raised
concerns on the Chinese side that the EU would attempt to promote all three pillars of
the European construction (democracy, Rule of Law and human rights) and, by the
same token, changes in the political system of PRC. Until recently, the EU has indeed
focussed on aspects of the Rule of Law that would help promote Human Rights. This is
clear in the 1998 European Commission Communication BBuilding a Comprehensive
Partnership with China^
14
, which refers to Chinas agreement Bon a cooperation
programme designed to strengthen the Rule of Law and promote civil, political,
economic and social rights. Since the dialogue resumed, China has given a series of
encouraging signals, including its decision to sign the UN Covenant on Economic,
Social and Cultural Rights. China has also given an undertaking to examine the UN
Covenant on Civil and Political Rights with a view to signing it, and has increased
dialogue with the UN authorities in the field of human rights^. Nevertheless, the
Chinese side rejected the format and approach proposed by the EU.
Attempting to create new incentives for a Rule of Law dialogue, a major step was
made at the 15th EU-China Summit on 20 September 2012, when the EU and China
made a joint statement regarding Bthe importance of promotion and protection of
human rights and the Rule of Law^. The EU took the joint statement by President
Van Rompuy, President Barroso, High Representative Ashton and Premier Wen Jiabao
on as underlining the importance of the Rule of Law in general, as well as a joint
commitment to the establishment of a new EU-China Rule of Law dialogue more
specifically.
But when the EU and China negotiated the B2020 Strategic Agenda for Coopera-
tion^(adopted at the 16th EU-China Summit on 21 November 2013), it became very
clear to EU officials that it would not be possible to establish a new EU-China Rule of
Law dialogue, as the Chinese side refused to include a reference to BRule of Law^,
preferring instead a joint commitment to Bcontinue to develop dialogue and cooperation
on legal and administrative affairs^in the 2020 EU-Chain Strategic Agenda.
Accordingly, and with a view to facilitating further bilateral action on the basis of a
practical and technical rather than a conceptual approach, the EU proposed to rename
the Rule of Law Dialogue and call it BLegal Affairs Dialogue^.
Still, the reasons for Chinas reticence towards the establishment of a Rule of Law
dialogue are not entirely clear. Referenceseven informal onesto the UN Declara-
tion led to strong reactions of rejection by the Chinese side, with the same objections
voices during the negotiations of the 2012 UN Declaration, in particular against
anything that could resemble the perceived risk of possible interference with Chinas
domestic affairs. Secondly, and along the same lines, China would not accept that the
EU might try to impose its own conception of the Rule of Law that is to say a system
based on EU values, especially as China is trying to develop a system with Chinese
characteristics that will ensure the central position of the CCP and its pre-eminence
over the Constitution. In fact, by means of a terminological change to BLegal Affairs
14
Brussels, 25 March 1998, COM (1998) 181 final at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=CELEX:51998DC0181:EN:NOT
M. Burnay et al.
Author's personal copy
Dialogue^the EU arguably accepted a shift away from a dialogue perceived by the
Chinese side as based on Western conceptions of the Rule of Law to a more practical
dialogue, which could support Chinas transformation of its legal system.
Opportunities and challenges
Domestic change in PRC indicates that time would be ripe to move ahead with bilateral
efforts to promote the legal transformations. In particular, the 4th Plenary Session of the
18th Central Committee of the Chinese Communist Party (CCP), held between 20 and
23 October 2014 in Beijing, which adopted the BCCP Central Committee Decision
concerning Some Major Questions on Moving Ruling the Country According to the
Law Forward^, suggests that the EU and China might be converging on Rule of Law
issues. Although the announcement made at the 4th Plenum might not suffice to bridge
the gap between the EUs understanding of the Rule of Law and Chinas understanding,
it is an indication of more openness and a renewed interest on the Chinese side to
reform Chinas legal system and to learn from best practices on legal affairs and
governance issues. Moreover substantively, the appeal of legal pluralism within the
EU and the implied recognition of Bdifference^and different approaches, as opposed to
a universalist point of view, can help identifying the benchmarks for a BRule of Law^
approach that provides economic, social and political stability in PRC, without the
imposition of a Bone-size-fits-all^system. Furthermore, a Legal Affairs Dialogue would
be beneficial to the PRC in that it would help foster and develop new initiatives of
capacity building in a coherent framework. Finally, the strength and scope of EU-China
relationsupgraded to a strategic partnership in 2003and the fact that legal issues
are cross-cutting issues that would underpin bilateral relations in areas as varied as
trade, urbanisation, protection of the environment or human rights.
The PRCs insistence that the Rule of Law should only be promoted internally along
a Chinese path does suggest defiance. However, although there is no question of merely
transposing Western systems one has to acknowledge that on the brief occasions when
China began to modernise its administrative and judicial systems the inspiration came
from Europe and Japan. A recent example of European influence on the Chinese legal
system comes from the recent adoption of the Chinese competition law that has
arguably been deeply influenced by the European system.
15
This soft legal transplant
has not been imposed but is the fruit of a mutual learning and mutual beneficial process.
Setting up a framework where regular and comprehensive exchanges on the challenges
of legal modernisation can take place would contribute to mutual learning.
Second, discussing the Terms of Reference of a Rule of Law Dialogue would raise
concerns that the EU would attempt to promote all three pillars of the European
construction (democracy, Rule of Law and human rights). However, as we have already
seen, the EU and the Council of Europe are now zooming out on the triangle
(democracy, Rule of Law and human rights) and focussing specifically on the Rule
of Law. This dynamic takes into account the legal diversity present within the EU, as
well as the growing contestation when promoting the Rule of Law abroad. Taking on
board the legal diversity that prevails within the EU, the EU would be in a position to
15
On the Chinese Anti-Monopoly Law, see Wu (2008)
Bridging the EU-Chinasgap
Author's personal copy
draw from the conceptual development of this new approach internally and the
experience of the EU Justice scoreboard in the framework of a Legal Affairs Dialogue,
without the ambiguities of a Rule of Law Dialogue.
Last but not least, Rule of Law issues inevitably raise sovereignty issues, afortiori
with a country like China (Basking serious questions about the proper functioning of the
Rule of Law () goes to the very heart of national sovereignty^).
16
Of course, one
should not overplay the issue of sovereignty in the context of EU-China relations,
bearing in mind that a dialogue is a two-way process and definitely a soft power
instrument. Nevertheless, Chinas insistence to preface the reference to Bdialogue and
cooperation on legal and administrative affairs^by the phrase Bbased on the principle of
equality and mutual trust^does betray concerns about possible interference or
Blecturing^by the EU. The existing difficulties to export norms to the PRC have
nevertheless arguably led to a dynamic of learning within the EU that now
recognises the necessity to take on board the differences in viewing values and
prioritising interests in order to advance fruitful dialogues and cooperation on
legal issues. From a linear approach, the EU is now endorsing a more pragmatic
and open perspective that favours more flexible and a less doctrinal perspective on
the Rule of Law that would be best reflected in a renaming of the dialogue into a
BLegal Affairs Dialogue^.
The EU-China Legal Affairs Dialogue could include a high level segment and the
main focus would be:
&Expertsworkshops, which would bring together small groups of Chinese and
European law practitioners, law-makers and legal academics together to discuss
selected themes identified during the dialogue and would include field visits.
&Specialised EU-China networks should be created to bring continuity in the
exchanges.
The starting point should be an exchange of information on the implementation of
existing laws in China and EU acquis, which could help identify areas of common
interest and open the door to concrete cooperation projects. Possible topics for discus-
sion (to be agreed jointly) could include inter alia consumer, environmental, labour
issues, etc., access to Justice, also at local level including aid to vulnerable people,
combating corruption, also at local level, including public administration.
Conclusion: the way forward
In this paper, we have focused on the Rule of Law approaches of PRC and the EU in
the context of their respective domestic settings, the United Nations and in EU-China
bilateral relations. In doing so, we were able to highlight the major differences between
PRC and the EU, and assess the gaps and potential common denominators in the
attempt to enter a structured exchange on the Rule of Law. At the same time, we
identified major transformations of the Chinese legal system and identified a gradual
16
Vice President RedingCentre for European Policy Studies4September2013
M. Burnay et al.
Author's personal copy
opening for further reforming the Rule of Law internally, given persistent problems of
the Chinese system.
The paper also showed that the EU has an obvious interest in helping the PRC
promote legal certainty and stability in the context of the negotiations of the bilateral
Investment Agreement and more widely because Chinas instability would create
further turmoil in the region.
By establishing a Legal Affairs Dialogue with China, the EU would apply the dis-
amalgamation of the triangular relationship between Rule of Law, democracy and
fundamental rights to its external action, as a means to further develop the EU-China
strategic partnership. A dis-amalgamated approach is, in fact, a sine qua non for setting
up an EU-China Legal Affairs Dialogue not only because it will save time arguing
about definition but also because it will ultimately preserve the EUs flexible approach
to Rule of Law issues.
Establishing a Legal Affairs Dialogue would still provide ample scope for the EU to
discuss the recent legal challenges that the EU has had to face and how such challenges
are being addressed by the EU but it would also give the EU an opportunity to learn
from the PRC and, in particular, how to adapt its legal system in the context of a fast-
developing economy, based on specific legal and political systems and traditions.
Lessons learnt by the EU could be of immense importance when dealing with other
EU strategic partners who are facing challenges similar to those faced by the PRC, for
example in Central Asia, also in the context of multiple modernities.
A legal Affairs Dialogue should include various levels and mechanisms of cooper-
ation to ensure a fruitful mutual-learning process. First of all, an EU-dialogue would
involve high-level strata, possibly at Commissioner level or Director-General level, as
well as an expertslevel, which would concentrate on capacity-building through
training and networking, also drawing on the successful experience of the EU-China
school of law or support to people-to-people exchanges between European and Chinese
legal practitioners.
In view of the current impossibility of launching an EU-China Rule of Law dialogue
because in the difference of perception and approach, setting up a Legal Affairs
Dialogue would prove beneficial to both sides and reinforce the partnership between
the EU and China.
The deepening relations between the two entities in themselves lay the basic
foundations for an EU-China Legal Affairs Dialogue, which would aim at the estab-
lishment of effective justice systems based on quality, independence and efficiency. In
that respect, the new EU Justice scoreboard (http://ec.europa.eu/justice/newsroom/
news/130327_en.htm) would provide a useful inspiration with as a first step that
consists in the provision of objective and reliable data assessing the quality,
independence and efficiency of the justice systems, exchange of best practices and
provision of training where appropriate.
The mutual benefits of such a new EU-China Legal Affairs Dialogue would be
threefold. First, there is mutual interest in the modernisation of the PRCs legal system.
Secondly increasing knowledge and understanding of the Chinese system by the EU
and increasing knowledge and understanding of the EU system by the PRC would
enable them to draw lessons applicable to other situations. Thirdly, an EU-China Legal
Affairs dialogue would enable both the EU and the PRC to fulfil their international
obligations in different areas.
Bridging the EU-Chinasgap
Author's personal copy
Ultimately, a Legal Affairs dialogue would be instrumental in bridging the gap
between the EU and China, also in their approach to the Rule of Law.
References
Balme S, Dowdle MW (eds) (2009) Building constitutionalism in China. Palgrave Macmillan, New York
Blasek K (2015) Rule of Law in Chinaa comparative approach. Springer, Heidelberg
Brooks EB, Brooks AT (1998) The original analects: sayings of Confucius and his successors, Columbia
University Press, New York, Analect LY 2.3, p 301
Burnay M, Hivonnet J, Raube K (2014) Soft Diplomacyand people-to-people dialogue between the EU and
thePRC.EurForeignAffRev19(3/1):3555
Chang W (2010) Classical Chinese jurisprudence and the development of the Chinese legal system. Tsinghua
China Law Rev 2:20772
Communications on EU-UN (2003) The choice of multilateralism http://eur-lex.europa.eu/LexUriServ/
LexUriServ.do?uri=COM:2003:0526:FIN:EN:PDF and the European Security Strategy (2003) http://
www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf
Fuller LL (1969) The morality of law (rev. ed.). Yale University Press, New Haven
Liebman B (2007) Chinas courts: restricted reforms. China Quarterly 191:620638
Liebman B (2009) Assessing Chinas legal reforms. Columbia J Asian Law 23(1):23
Marangoni A-C and Rau be K (2014) Virtue or vice? The coherence of the EUs external policies. J Eur Integ,
36, forthcoming
Mattlin M (2012) Dead on arrival: normative EU policy towards China. Asia Europe J 10:181198
Pan Z (ed) (2012) Conceptual gaps in China-EU relations. Global governance, human rights and strategic
partnerships. Palgrave Macmillan, London
Peerenboom R (2006) Judicial independence and judicial accountability: an empirical study of individual case
supervision,55TheChinaJ66
Weifang H (2012) In the name of justicestriving for the rule of law in China. Brookings Institution Press,
Washington, DC
Wu Z (2008) Perspectives on the Chinese Anti-Monopoly Law. Antitrust Law J 75:73116
M. Burnay et al.
Author's personal copy
Article
Full-text available
EU-China relations continue to be limited by a disagreement over values. As the only bilateral channel dedicated to promoting an EU value, the EU-China Human Rights Dialogue (HRD), reflects the principal forum for this normative conflict. Observing poor outcomes, scholars typically maintain that the dialogue's weakness is symptomatic of the EU prioritising its material interests with China. This paper seeks a more nuanced explanation for these shortcomings, exploring the neglected micro-level processes of the HRD. This encompasses the role and impact of EU diplomats, their Chinese interlocutors and EU institutional structures. The micro-level also offers novel theoretical insights into how the EU's normative power practically manifests in such a challenging arena. Through a discourse anaysis of elite interviews, capturing the small group of EU diplomats operationalising the HRD, this paper finds that while the dialogue is significantly weakened by China's systematic obstruction, the EU plays a key role in facilitating this, with ineffective diplomatic approaches and insufficient political backing by member states.
Article
The EU is asked to become an international actor guided by grand vision, strategy and pragmatism, in order to become more effective and legitimate. At the same time, the EU is often told to base its actions on coherence in order to achieve greater effectiveness, credibility and legitimacy. This article argues the EU currently foresees two modes of governance in EU external action: a “coherence mode” and a “strategy mode”. These modes can complement each other, or collide. While each of the modes of governance was meant to enhance legitimacy in the EU’s external action, the example of China shows the EU’s difficulties with applying these modes and questions their utility in enhancing the EU’s legitimacy.
Book
This volume unpacks the relationship between constitutionalism and judicial power in China. It explores how court behaviour intersects with - affects and is affected by - China's evolving notions of constitutionalism.
Book
The contributors attempt to look into how China and Europe differently interpret political concepts such as: sovereignty, soft power, human rights, democracy, stability, strategic partnership, multilateralism/multipolarization, and global governance, to examine what implications of their conceptual gaps may have on China-EU relations. © Zhongqi Pan 2012. Foreword, Gustaaf Geeraerts 2012. All remaining chapters, respective authors 2012. All rights reserved.
Book
Of all the issues presented by China's ongoing economic and sociopolitical transformation, none may ultimately prove as consequential as the development of the Chinese legal system. Even as public demand for the rule of law grows, the Chinese Communist Party still interferes in legal affairs and continues in its harsh treatment of human rights lawyers and activists. Both the frequent occurrences of social unrest in recent years and the growing tension between China's various interest groups underline the urgency of developing a sound and sustainable legal system. As one of China's most influential law professors, He Weifang has been at the forefront of the country's treacherous path toward justice and judicial independence for over a decade. Among his many remarkable endeavors was a successful petition in 2003 that abolished China's controversial regulations permitting the internment and deportation of urban "vagrants," bringing to an end two decades of legal discrimination against migrant workers. His bold remarks at the famous New Western Hills Symposium in 2006, including his assertion that "China's party-state structure violates the PRC Constitution," are considered a watershed moment in the century-long movement for a constitutional China. With In the Name of Justice, He presents his critical assessment of the state of Chinese legal reform. In addition to a selection of his academic writings, this unique book also includes many of He Weifang's public speeches, media interviews, and open letters, providing additional insight into his dual roles as thinker and practitioner in the Chinese legal world. Among the topics covered are judicial independence, judicial review, legal education, capital punishment, and the legal protection of free speech and human rights. The volume also offers a historical review of the evolution of Chinese traditional legal thought, enhanced by cross-country comparisons. A proponent of reform rather than revolution, He believes only true constitutionalism can guarantee social justice and enduring stability for China. "He Weifang has argued for two decades that rule of law, however inconvenient at times to some of those who govern, must be embraced because it is ultimately the most reliable protector of the interests of the country, of the average citizen, and, in fact, even of those who govern."-from the Foreword by John L. Thornton, chairman, Brookings Institution Board of Trustees and Professor and Director of Global Leadership at Tsinghua University "What struck me-and shocked me as a foreign visitor-was not only that the entire discussion was explicitly critical of the Chinese Communist Party for its resistance to any meaningful judicial reform, but also that the atmosphere was calm, reasonable, and marked by a sense of humor and sophistication in the expression of ideas."-from the Introduction by Cheng Li, director of research and senior fellow at the John L. Thornton China Center at Brookings.
Article
The aim of this article is threefold. Based on academic literature in the field, the first step is to understand the link between 'soft power', 'public diplomacy' and 'soft diplomacy' tools in order to set out the criteria necessary to define what 'soft diplomacy' is and assess whether the P2P is indeed a soft diplomacy tool in the EU-China relationship. Second, a close examination of the diplomatic toolboxes of both the EU and China will demonstrate the benefits of using soft diplomatic instruments to consolidate and further expand the EU-China Strategic Partnership. Third, as the P2P appears as a complementary new tool rather than as a substitute for 'hard diplomacy', it will be evaluated as a precious tool used by the EU and China to try and shape cooperation through governmental as well as non-governmental relations.
Article
A buzzword in the EU since four decades already, coherence is at the centre of the Lisbon Treaty. The risk of incoherence is deeply embedded in the institutional framework of EU external policies. Coherence is seen as a permanent quest, while incoherence carries a negative baggage. Goal-oriented coherence is expected to lead to the EU’s effectiveness, legitimacy and credibility as an international actor, but this positive causality has not been questioned all too often in the literature. This paper aims to fill this void: why, to what extent and for which problems is coherence a ‘miracle solution’? To what extent does coherence actually impact on the EU’s international status? The paper will discuss different theoretical perspectives to the coherence debate. It aims to contribute to the theoretical understanding of coherence in EU external policies and to better explain EU efforts towards enhancing coherence.
Article
The European Union’s (EU) normative roles in global politics have in recent years been a hotly debated topic. The EU promotes its political values outside of the Union, especially with regard to prospective accession countries and small developing countries. However, a normative foreign policy approach encounters considerable challenges when confronted with major powers, such as China and Russia that do not share the political values promoted by the EU. Attempts at pursuing a normative policy towards these countries often come across as halfhearted. This article discusses EU normative policy towards China. It identifies loss of the moral high ground, conflicting positions of EU members and lack of leverage as the three main factors hampering it. It needs to be recognised that these problems are fundamental and stem from the very nature of the EU itself. The article argues that instead of a halfhearted offensive normative approach towards China or ubiquitous dialogues with partners, the EU may be better off with a more determined policy of defensive normativity. This would entail being more insistent in upholding European values within our own community rather than seeking to export them outside of the Union, and favouring demand-driven cooperation. The choice stands between altering the self-image of the EU to make it better correspond to reality, or making reality live up to the self-image.
Article
This article explores the tension between judicial independence and judicial accountability in China, by examining the development, advantages and disadvantages of supervision of "final" court decisions by people's congresses, the procuracy and the courts themselves. Based on a systematic empirical study, the article concludes that while major reforms are required, eliminating individual case supervision (ICS) at this point would deny justice to tens of thousands of people every year. The politics of whether to eliminate or reform ICS - and if so how - illustrate the difficulties of China's legal reform project, why reforms in developing countries all too often fail, and why reforms based on transplants of foreign models frequently fail to take root.