The folks over at the European Chinese Law Research Hub
(with thanks to Marianne von Blomberg, Editor ECLR Hub, Research
Associate, Chair for Chinese Legal Culture, University of Cologne) have
posted a new paper by Björn Ahl (Professor and Chair of Chinese Legal Culture, University of Cologne), On Global Constitutionalism and the Community of Common Destiny for Mankind.
Since China's increasing influence on international law has become apparent to observers, much ink has been spilled on what said influence consists of precisely. Concepts such as the 'community of common destiny for mankind' and 'socialist rule of law' remain vague. They have, however, been fleshed out in policy documents and interpreted by Chinese scholars. It is this debate that Prof. Björn Ahl observes in his latest paper, seeking to identify the values and structures of the future international legal order as envisaged by the PRC.
The essay provides a powerful analysis of the development of key principles of Chinese approaches to internationalism and the international order. For that reason alone the essay is worth a careful read. At the same time, it also reveals much about the pretensions of the constitutionalization of the international order that has been a sort of pet project of the Anglo-European international academic and policy vanguard certainly since the 1990s when, with the disappearance of European Marxist Leninism they assumed the world was their to capture with a narrative of their construction. That narrative, its promise and failures, comes more sharply into focus against the efforts of Chinese Marxist Leninism and the New Era Communist International to erect a competing and equally ambitious ordering of the world. t
I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.
On Global Constitutionalism and the Community of Common Destiny for Mankind
A new paper by Björn Ahl
China is stepping up its ambitions to become a norm-making power and its capability to achieve this has become a key question in the debate over the international order. In the realm of international law, the government of the People’s Republic has put forward the concept of a ‘community of common destiny for mankind’ which stresses some long-standing norms of global constitutionalism, neglects others and further introduces new ones to the field.
In order to better delineate China’s plans for international law and to identify the values and structures of the future international legal order envisaged by China, Björn Ahl in his latest paper observed both Chinese legal scholarly debates and government statements revolving around the community of common destiny for mankind as well as global constitutionalism and its substantive ingredients: jus cogens, human rights, democracy and the rule of law. Whereas the public debate by no means embodies the full picture of the direction where the PRC’s take on international law is heading towards, it does reveal which elements are accepted and which are rejected.
The Chinese debate on global constitutionalism began with China’s accession to the WTO in 2000. While generally supporting the interpretation of international law in constitutionalist terms, many scholars also point out the dominance of Western viewpoints and call to better align international law with Chinese interests. For instance, peremptory norms of international law (jus cogens), are regarded as one constitutive element of global constitutionalism, however official statements show a very narrow reading of it that is not in line with the scholarly understanding that jus cogens norms have universal binding force and a higher status than ordinary norms of international law.[1] Ahl explains that jus cogens norms as norms imposed on states without their consent empower non-state actors, domestic courts and international tribunals, and are thus not conducive to furthering the interests of authoritarian states like the PRC which seek effective control over the judiciary and civil society.
The rule of law was first officially introduced to the PRC Constitution in 1999 with a significant twist: ‘Socialist rule of law’ emphasizes the supremacy of the party over the law and denies full legal autonomy, features that make it difficult to apply it to the realm of international law. The official debate around the rule of law in China defends the instrumentalist ‘socialist rule of law’ as a legitimate local variation of the international rule of law.
A general trend towards democratisation in international law has been widely acknowledged by Chinese authors in the sense of a power shift away from US dominance. They have also claimed that the dominant notion of democracy as well human rights is limited and advocates Western ideology. One strand of arguments projects the Chinese development model onto the global arena, holding that top-down considerations can better serve developmental goals than antagonistic and individualistic rights-based approaches. Through stating that it “offers Chinese wisdom and solutions for global governance of human rights”[2], the government makes it clear that it works towards disseminating its own official human rights approach in order to bring international human rights standards in line with domestic practices.
The concept of the community of common destiny for mankind is in the scholarly discourse at hand regarded as a precondition for recognising a hierarchy of norms in international law. Scholars argue that the community of common destiny concept contains a set of binding principles of international law. Ahl’s paper dives into official and scholarly takes on these principles: for instance is the very prerequisite for the principle ‘durable peace’ found to be sovereign equality including a free choice of political system and development path. The principle ‘universal security’ is regarded to also cover the political risks to authoritarian systems.
He concludes that the reinforcement of the existing order and fundamental change to that order are both components of the community of common destiny concept. Whereas formal aspects of global constitutionalism overall are viewed favourably, it is also criticized as turning a blind eye to US dominance.
Find Björn Ahl‘s full paper ‘Chinese Positions on Global Constitutionalism, Community of Common Destiny for Mankind and the Future of International Law’, forthcoming in the Chinese Journal of Comparative Law, on SSRN here.
Björn Ahl is Professor and Chair of Cologne University’s Chinese Legal Culture. Before joining the University of Cologne in 2012, he was Visiting Professor of Chinese Law, Comparative Public Law and International Law in the China EU School of Law at the Chinese University of Political Science and Law in Beijing. Prior to that he held a position as Assistant Professor of Law in the City University of Hong Kong. He has also worked as Associate Director and Lecturer in the Sino German Institute of Legal Studies of Nanjing University and as a Researcher at the Max Planck Institute of Comparative Public Law and International Law in Heidelberg. Find him on LinkedIn.
[1] Permanent Mission of the PRC to the UN, ‘Statement by Mr. XU Hong, Director General of the Department of Treaty and Law, Ministry of Foreign Affairs, People’s Republic of China at the 71st Session of the UN General Assembly on Agenda Item 78, Report of the International Law Commission on the work of its sixty-eighth session (Part II: Chapters 7, 8, 9, 10, 11, 12)’ (chnun.chinamission.org, 27 October 2016) last accessed 18 July 2021
[2] State Council Information Office, ‘Seeking Happiness for People: 70 Years of Progress on Human Rights in China’ (gov.cn 22 September 2019 last accessed 18 July 2021.
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