Academic journal article China Perspectives

The Compromised "Rule of Law by Internationalisation"

Academic journal article China Perspectives

The Compromised "Rule of Law by Internationalisation"

Article excerpt

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"The participation of China in the WTO would not only have economic and political benefits, but would also serve to bolster those in China who understand that the country must embrace the rule of law."

Martin Lee, leader of the Democratic Party of Hong Kong, O)

Ten years ago, upon accession to the WTO, China committed to a series of specific obligations often referred to as "WTO+," aimed at the progressive transformation of the Chinese legal landscape towards <2> if not a genuine rule of law in the democratic sense of the concept, at least a sui generis model that could result from a greater porosity between the legal order and practices. In the China Perspectives special issue published at that time, I questioned what I had identified as a possible "rule of law by internationalisation" - that is, China's greater attention to of international rules and the positive impact this new familiarity might have on internal reform. From legal drafting to legal implementation and the role of the judiciary in adjudicating disputes, Chinese law, while rapidly reforming, was already confronted with a series of essential limitations.The unique and rigorous character of the Chinese Protocol of accession to the WTO as well as the planned far-reaching legal reforms were nevertheless raised hopes for change, as if this receptivity of the national legal order to international law was giving a helping hand to the Chinese transformation into a rule-led and rule-abiding regime.!3) While one cannot ignore a number of very significant achievements as well as a true political responsiveness to otherWTO Members' concerns, !4) China has not been willing to grasp the WTO opportunity for domestic legal reforms as much as some observers, and also some Chinese leaders, had hoped for.This incomplete transformation does not only create tensions between WTO Members, as evidenced by an increasing number of disputes shedding a direct light on the lack of transparency in the Chinese legal regime, but could also impede fundamental socio-economic evolutions.

After a decade of China's participation in the WTO, this piece reflects upon my own initial findings and predictions, while putting Chinese legal reform into a broader political perspective.

Incomplete transformation

China's initial commitments

From July 1986 to November 2001, China traversed a 15-year diplomatic marathon that ended, at the WTO Ministerial Conference of Doha, with the signing of a Protocol of Accession more than 900 pages long. The American and European insistence on integrating "rule of law"-related requirements in the Chinese Protocol should be put into a historical perspective. While the first phase of negotiations commenced in early 1987, it was abruptly terminated in the immediate aftermath of "Beijing Spring" and the bloody political repression that followed. Reversing into a protectionist strategy, China restored a series of administrative measures to control its foreign trade. By 1992 and the adoption of the "socialist market economy" doctrine at the 14th Congress of the Chinese Communist Party, Beijing found a way to reconcile political and economic objectives and embrace a new period of powerful growth able to restore its international credibility. Hoping to join the WTO before the Uruguay Round negotiations were brought to a close, China was determined to reform and accept its trading partners' requirements. A draft Protocol of Accession had been prepared and presented by the European Commissioner, Sir Leon Brittan, to Wu Yi, China's then Minister of Foreign Trade, during a visit to Beijing on 28 February 1994. But from May 1994, the negotiations stumbled over the question of intellectual property and the serious doubt raised by the US over China's ability to implement its commitments in the context of what remained an immature legal system.The issue of a state governed by law, not to say the rule of law, was touched upon directly by the ambitious draft Protocol for the "reintegration" of China into the GATT, as it already formulated for a whole series of provisions addressing the questions of transparency and judicial review of administrative acts relating to international trade. …

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