General Secretary Xi Jinping pointed out: "China will actively participate in the construction of the global governance system, strive to contribute Chinese wisdom to improve global governance, and work with the people of all countries to promote the development of the international order and the global governance system in a more just and reasonable direction." "The stability of the international order and the building of a global governance system not only depend on fair and reasonable international principles, rules and systems, but also require the joint efforts of all countries. The international rule of law is a natural extension of the domestic rule of law and an inevitable requirement of the era of globalization. China's participation in global governance relies on a sound domestic rule of law, and the path is to integrate into the world by improving foreign-related rule of law, thereby contributing China's wisdom to the international rule of law. Taking the foreign-related rule of law as a link, coordinating the promotion of domestic rule of law and international rule of law, and making China's rule of law go international, is an essential element for realizing the great rejuvenation of the Chinese nation and an inevitable choice for building a community with a shared future for mankind.
I. The Historical Evolution of the Concept of the Rule of Law in State-to-State Interactions
In today's international community, the rule of law has become the most important principle of interaction, which is universally accepted and recognized by all countries. General Secretary Xi Jinping pointed out: "We must put the rule of law in a more prominent position to ensure that mainland society is both vibrant and orderly in the midst of profound changes." The general secretary views the rule of law from the perspective of the survival of the nation and the rise and fall of the country, and he often quotes Han Feizi's words: "The country is impermanently strong, and the country is impermanently weak." If those who follow the law are strong, the country will be strong, and if those who follow the law are weak, the country will be weak" to remind everyone to attach importance to the construction of the rule of law. Today, the rule of law is increasingly becoming a necessary condition for development in the era of globalization. The state uses foreign-related rule of law as a link to connect domestic rule of law with international rule of law, so as to form a complete rule of law governance structure.
In the historical process that the rule of law has become a universal principle of international interactions, both early city-states and modern states have played a central role, and have applied their own concepts of the rule of law and legislative practice to the level of inter-state interactions.
(1) The rule of law in ancient Greece and Rome
The ancient Greek city-states were the place where the idea of the rule of law germinated. From Plato's Republic to Aristotle's Politics, one of the core ideas is "education" and "good governance". However, the idea of the rule of law in ancient Greece was confined to the Greek city-states and made limited intellectual contributions to the field of international rule of law. From the rules of interaction between the ancient Greek city-states and between the Greeks and the Gentiles, we have not yet found the basic elements of the rule of law. There was a lack of awareness of mutual coexistence and interaction between the Greek and Gentile worlds, because they lacked a holistic, all-encompassing spatial order, and thus a regulatory force of the rule of law between the city-states.
Unlike the ancient Greeks, who were good at philosophical thinking, law reigned supreme in the cultural achievements of ancient Rome. In the field of international law, although the various treaties signed by the Roman city-states with other city-states still had a religious background, the principles of the rule of law were everywhere, the most important of which was the jus gentium. In the early years of the Roman Empire, its jus civile law was exclusively applied to Roman citizens. As Rome became a huge commercial center, this closed legal system could no longer be maintained. To this end, Rome created the post of foreign magistrate, who could appoint judges to hear proceedings between Gentiles or between Gentiles and Roman citizens. On this basis, Roman law developed the civil law, as opposed to civil law, which brought the affairs between Romans and non-Romans into the scope of legal regulation. After that, the Roman jurist Gaius made a philosophical general definition of civil law, defining it as a law "created by natural reason in all men and followed by all peoples", so that it achieved a similar status to natural law, thus theoretically giving universal character to civil law.
After the ancient Roman period, the civil law began to transform from the foreign-related rule of law to the international rule of law. Ancient Rome connected the domestic rule of law with the international rule of law through the universal civil law, which is the link of foreign-related rule of law, and built the prototype of the international rule of law governance structure.
(2) The rule of law in the Middle Ages
The series of wars triggered by the collapse of the ancient Roman Empire eventually formed the Christian medieval order in which the church played a central role, and canon law became a model of medieval universal law, and this religious order was decisive for the formation of the structure and form of international law. The Pope, with his solemn spiritual and secular powers, became the supreme representative of the monistic rule of Western civilization during the Middle Ages. Therefore, medieval canon law should be more supranational than interstated. However, this supranational international rule of law is only in theory, and in practice, it is not dominant. On the contrary, the progress of the international rule of law still depends on Christian countries, which promote the development of the international rule of law through the rule of law involving foreign countries.
In addition, through the internal legislation of Christian governments, merchants from various countries entered a relatively fair and regulated trading environment. In the process, the English invented a set of merchant laws, which were limited to admiralty and local commercial courts, which were seen as a different system of rules from the indigenous "common law" used by the courts of common law countries. Merchant law was considered "universal, unique, and identical to all nations of the world" and was considered "part of the law of nature and of all peoples". In fact, this type of merchant law was created on the basis of the English conception of law using foreign legal material, and was amended through the English legislative process and the basic principles of English law. In the practice of international law, foreign-related legislation such as merchant law has extended the principles of domestic law to the level of international exchanges, and has become an important source of international law, which is also the most important form of building international rule of law since then.
(3) The rule of law in modern times
Since the 17th century, the rule of law has been the main principle of modern state governance, and sovereignty is the basis for equal interaction between states, the former reflecting the hierarchy of domestic law of state governance, and the latter institutionalizing the anarchy of the international community composed of States. In international exchanges, the transition from foreign-related rule of law to international rule of law is not achieved overnight. The theoretical resource that drove this shift continues to be the latest interpretation of the confusing relationship between natural law and civil law, the most influential of which is the Dutch jurist Hugo Grotius.
Grotius tried to construct a general theory of law in an attempt to create order for a chaotic international community. In Grotius's view, membership in the international community is not subject to any fundamental principles or criteria, but this does not mean that there is a lack of rules governing the international community, and binding codes of conduct are based more on natural law than on any other norm similar to what came to be known as positive international law. In Grotius's scholarly thought, a widely accepted principle is that international law derives from nature (embodied in natural law known by human reason), the will of God (divine law), and the will of man (law of all peoples). As one of the most important sources of international law, natural law has the effect of universal application. International relations are regulated first by natural law, and secondly by universal civil law, which complements natural law.
With the birth of sovereign states, the rules of international exchanges have finally broken through the limitations of foreign affairs and formed modern international law, and the civil law has been transformed from a domestic law with a foreign-related nature to an international law for exchanges between sovereign states, and finally promoted the leap from domestic rule of law to international rule of law in international exchanges.
2. From "Internal" to "Foreign": A Natural Extension of a Country's Rule of Law
After sovereign states entered the international arena, exchanges between countries took the rule of law as a principle, and more in the form of treaties, using various treaties as a link to extend the domestic rule of law to the foreign-related rule of law, and playing a role in the foreign-related rule of law through rules such as the most-favored-nation treatment clause. Professor Jackson noted that the Peace of Utrecht of 1713 was seen as the beginning of the most-favoured-nation clause. The Anglo-French Treaty of Amity and Commerce signed in 1860 marked the beginning of the MFN clause as an important part of bilateral treaties. MFN treatment is a scheme in which both parties agree to grant trade or shipping benefits, including preferences and privileges, to others at the time of signing or in the future, to the other party without conditions. France has since emulated this clause of the Anglo-French treaty in its treaties with other European countries. As a result of the introduction of the most-favored-nation (MFN) clause, the Amity and Commerce Treaty led to an end to tariff wars among the countries of continental Europe. Through the most-favored-nation (MFN) treatment, a foreign-related rule of law system, European countries followed the trend of free trade and eventually established a free trade market in Europe.
When history entered the 19th century, with the full rise of free trade, countries raised their national influence to the international level through many actions at the level of foreign-related rule of law, through various domestic legislation and international treaties. The most important of these were the abolition of the English Corn Laws and the signing of the Anglo-French Treaty of Amity and Commerce between France and Great Britain in 1860.
(1) The export of the principle of free trade: the repeal of the Corn Law
Britain in the 19th century became the undisputed most influential country in the field of international trade after the Napoleonic Wars, and the industrial revolution that took place in Britain triggered a fundamental change in the international economic order. In terms of international trade policy, mercantilist tendencies began to weaken, and free trade began to be introduced. In Friedon's words, in the 100 years between the end of the Napoleonic Wars and the beginning of the First World War, the relationship between the monarch and the market began to turn upside down. For the first time, the market, rather than dynastic interests, became the dominant force in international trade, and the merchant class took the place of the monarch in the decision-making power of the trade system. These changes in the UK were gradually reflected at the legislative level, and then had an impact on international trade through the rule of law in relation to foreign affairs, which was epitomized by the political campaign in favor of free trade, marked by opposition to the Corn Laws.
At the beginning of the 19th century, protectionism was prevalent in Europe as well as in other parts of the world. However, the period between 1815 and 1846 saw the liberalization of the British economy take place, and three free trade reforms were carried out in 1822, 1825 and 1828, in which the repeal of the Corn Laws was at the heart of the movement.
In 1815, the Corn Laws became the beginning of a political struggle between two political factions, the pro-free trade and the maintenance of protective trade. Corn laws protect local agriculture against grain imports, trying to maintain an unstable balance between protecting local agriculture and preventing food prices from skyrocketing. For example, the Corn Law stipulates that the price of wheat is fixed at 80 shillings, and more than 80 shillings can be imported. This resulted in higher food prices and wages, which were detrimental to manufacturers trying to cut production costs (low wages) and marked the beginning of a conflict of interest between agriculture and manufacturing.
With the revival of trade after the Napoleonic Wars, two opposing forces emerged in Britain over the repeal of the Corn Laws. The Corn Laws restricted the import of a variety of grains and gained the support of landowners, while manufacturers demanded that the Corn Laws be abolished and labor costs lowered. The Anti-Corn Law League, formed in 1838, was supported mainly by manufacturers (mostly from the cotton textile industry), because the protection of agriculture by the Corn Laws would raise food prices and actually relatively low wages. Their voices were widely supported by the urban middle class as well as the working class, and the question of whether to repeal the Corn Laws soon became hotly debated in the British Parliament. The divisions between the parties were stark, with the Liberal and Radical factions strongly supporting the Anti-Corn Law coalition and the Conservatives, strongly opposing the pro-trade liberalization bill. In addition to taking into account the interests of manufacturers, the Anti-Corn Law Coalition also saw free trade as an important means of maintaining peace between nations.
In 1846, the repeal of the Corn Laws marked the beginning of the era of free trade in Britain, and the final result of the political struggle between the two political factions in favor of free trade and the maintenance of protective trade was reflected in the repeal of the Corn Laws as a foreign-related law, which in turn would have a profound impact on the rules of world trade through changes in the rule of law abroad.
(2) The Rise of Free Trade Rules: The Anglo-French Treaty of Amity and Commerce of 1860
The period of true free trade in Europe in the 19th century began with the signing of the Anglo-French Treaty of Amity and Commerce in 1860. The treaty lifted all trade bans between Britain and France and made significant cuts in tariffs. Under the Anglo-French Treaty of Amity and Commerce, France lifted all bans and replaced them with import duties of no more than 30% (25% from 1 October 1864) and reduced tariffs on liquor by about 80%. Britain allowed a large number of French products to enter freely and abolished the export tax on coal. Both in the process of the conclusion of the treaty and in the content of the treaty itself, the Anglo-French Treaty of Amity and Commerce embodies the link between the domestic rule of law and the foreign-related rule of law, which in turn has an impact on the international rule of law.
With regard to the conclusion of the "Anglo-French Treaty of Amity and Commerce," there was a dispute between conservatism and liberalism in Britain and France. Robert Peele, the leader of the British Conservative Party, was suspicious of protectionism because of the country's widespread economic poverty, but his tariff cuts led to his own expulsion from the Conservative Party, and he and the young Gladstone switched to the Liberal Party. The free trade program developed by the Liberal Party enjoyed broad support from workers and owners of capital. Soon after Gladstone became Prime Minister of the United Kingdom in 1860, he signed the Anglo-French Trade Treaty with France, abolishing all British protective tariffs. In the process of signing the treaty, France found a way to avoid parliamentary adoption, because a parliamentary majority of conservative supporters would be a fatal obstacle to the signing of the treaty. In this way, "a group of theorists succeeded in introducing free trade to France and, indirectly, to most other countries in Europe, albeit against the wishes of the competent officials". We can see from the conclusion of the Anglo-French Treaty of Amity and Commerce that in countries with international influence, a country's legislative intentions, after being finalized through domestic political struggles, will have a substantial impact on international rules through treaties and other foreign-related forms of rule of law.
The Anglo-French treaty included an MFN clause originating in the Peace of Utrecht, which France later copied in its treaties with other European countries. As a result of the introduction of the most-favored-nation (MFN) clause, the treaty of friendship and commerce quelled the tariff war between the countries of the continent, and the trend of free trade arose on a European scale, eventually establishing a European free trade network. The rule of law at home is designed through legal rules such as most-favoured-nation treatment, which ultimately determine the specific form of the rules of international law.
After the emergence of sovereign states, although the concept and idea of using international rules to regulate state behavior has been formed, in international exchanges, influential powers often play a greater role, that is, foreign-related laws formed through their own legislation are applied to or influence many countries, so as to have an impact on other sovereign states. Looking back at the historical process of foreign-related rule of law from the 16th to the 19th century, we can find that the logic of foreign-related rule of law has undergone significant changes in the past few hundred years, that is, the factors that dominate foreign-related rule of law have changed from the initial almost naked political intention to more consider the legal elements of international rules themselves, and then form the constraints of rules on politics, until finally any sovereign state that wants to exert influence through foreign-related rule of law must be carried out within the framework of international rules.
III. Foreign-related rule of law: an inevitable choice in the era of globalization
Foreign-related rule of law is an integral part of the domestic rule of law, and it is the carrier of a country's rule of law extending from the inside out. The rule of law in foreign affairs is an intrinsic requirement of economic globalization and an external manifestation of legal globalization. Legal globalization refers to the universal application of rules on a global scale, which is mainly manifested in the internationalization of specific rules and the convergence of laws in different countries.
The Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Advancing the Rule of Law adopted at the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China clearly pointed out: "Strengthen foreign-related legal work. Adapt to the deepening of opening up, improve the system of foreign-related laws and regulations, and promote the construction of a new system of open economy. Actively participate in the formulation of international rules, promote the handling of foreign-related economic and social affairs in accordance with the law, enhance the mainland's voice and influence in international legal affairs, and use legal means to safeguard the mainland's sovereignty, security and development interests. "The system of foreign-related laws and regulations is an indispensable part of a sound Chinese legal system, and the foreign-related rule of law is also a necessary part of China's rule of law. Over the past 40 years since the reform and opening up, China's foreign-related laws and regulations have undergone a rapid development process from scratch, from few to many, and from scattered to systematic, and has initially established a system of foreign-related laws and regulations with Chinese characteristics. At the Central Work Conference on Comprehensive Law-based Governance held in November 2020, General Secretary Xi Jinping emphasized: "We must adhere to the overall promotion of domestic rule of law and foreign-related rule of law. It is necessary to accelerate the strategic layout of foreign-related rule of law work, coordinate the advancement of domestic and international governance, and better safeguard national sovereignty, security, and development interests. ”
The key to overall advancement lies in attaching equal importance to the construction of domestic rule of law and foreign-related rule of law. With the deepening of reform and opening up and the advancement of the Belt and Road Initiative, foreign-related rule of law is becoming a series of institutionalized needs. Fundamentally speaking, the rule of law in foreign affairs refers to a country's handling of foreign-related affairs involving the country in a rule of law mindset and rule of law manner, including legislation, law enforcement, justice, legal services and other aspects. From a country's point of view, foreign-related rule of law work deals with the country's foreign-related affairs, and its development needs to rely on the country's own foreign-related laws and regulations, which belongs to the country's own rule of law work. Therefore, the foreign-related rule of law is the external extension and expansion of the domestic rule of law, and is a part of the domestic rule of law. From a global perspective, foreign-related rule of law work deals with affairs related to different countries (international), and its development needs to refer to the laws and regulations of the countries involved, let alone ignore international rules, including customary law and statutory law, so it also belongs to the rule of law work between countries.
Foreign-related rule of law is not only the expression and expression of international rule of law from the perspective of a country, but also the link and bridge connecting domestic rule of law and international rule of law. One of the truths implicit in the overall promotion of domestic and international rule of law is that it is necessary to improve the foreign-related rule of law, and use the foreign-related rule of law to promote the interaction between the domestic rule of law and the international rule of law. In terms of content, a country's foreign-related rule of law contains two meanings: the first meaning refers to the laws enacted by the country that apply to foreign citizens and enterprises within its borders, which is the "foreign-related" object of the law. Since the beginning of reform and opening up, the mainland has formulated a large number of foreign-related laws and regulations aimed at foreign investment, business and other activities in China. The second level refers to the overseas application of the laws formulated by the country, which is the "foreign-related" of the scope of application of the law. With the advancement of the "going out" strategy, more and more Chinese citizens and enterprises are investing and doing business overseas, which has not only enhanced exchanges with other countries, but also caused many legal disputes. Although the source of law involved in the overseas application of Chinese law is Chinese law, the specific space for the occurrence of foreign-related legal relations is abroad or abroad.
The establishment of the World Trade Organization (WTO) marked the dawn of an era of globalization with "global governance" as its core concept. China's accession to the World Trade Organization (WTO) in 2001 meant China's full integration into the world economy. As a concrete actor in fulfilling its obligations as a member of the World Trade Organization, the mainland formulated, amended, and abolished a large number of laws, regulations, and departmental rules before joining the WTO. Nowadays, foreign-related law has become an important part of the socialist legal system with Chinese characteristics.
The legal system of the mainland is based on the Constitution as the commander, with the laws of the relevant laws of the Constitution, civil and commercial law, administrative law, economic law, social law, litigation and non-litigation procedure law and other departments as the backbone, and consists of three levels of legal norms: laws, administrative regulations, local regulations, autonomous regulations, and special regulations. From a foreign-related perspective, it reflects the foreign-related market supervision, the foreign-related market entities and the all-round opening up of the market.
(1) Market regulation involving foreign interests
The basic principles established by the World Trade Organization are "most-favored-nation treatment" and "national treatment", which are also the cornerstone of the multilateral trading system and the criterion for the fulfilment of the obligations of WTO members. On the basis of these principles, WTO members must provide the same standards of market access and protection to all other members in terms of import and export of goods, market liberalization of trade in services (scope of commitments) and protection of intellectual property rights, while also ensuring that the above-mentioned provisions are applied consistently within and without. A typical example of this is the evolution of civil contract law. At the beginning of reform and opening up, as an important law for adjusting foreign-related economic relations, the mainland promulgated the Foreign-related Economic Contract Law in 1985, which, together with the Economic Contract Law passed in 1981 and the Technical Contract Law passed in 1987, constituted the main law for market supervision. The Contract Law, which came into force on 1 October 1999, put an end to the coexistence of the previous three Contract Laws.
(2) Market entities are involved in foreign affairs
This relates mainly to the area of trade in services, and the degree of openness varies according to the commitments of each World Trade Organization member. At present, the import markets of WTO members have been relatively thoroughly opened, and intellectual property rights are protected within the scope of the TRIPS Agreement. The General Agreement on Trade in Services (GATS) divides its regulated trade in services into four types: cross-border services, overseas consumption, commercial presence, and movement of natural persons. Each member makes a trade-off as to which service categories to open under these four categories. The mainland's service trade market has gone through a development process of "undertaking to open up most areas at the time of WTO accession + a transition period" and "the transition period will end five years after joining the WTO" to "basically completely opening up at present." It should be pointed out that the opening up after the end of the transition period is the initiative of the mainland to open up, and many of the fields to be opened up are some important industries such as finance, which shows the breadth and depth of the mainland's opening up to the outside world.
(3) The market is open to the outside world in all directions
Since its establishment, the World Trade Organization (WTO) has been discussing expanding its scope of adjustment to a number of new areas, including environmental protection, competitive neutrality, and e-commerce. Some of these issues are legacy of the Uruguay Round negotiations, while others are emerging at this stage as science and technology and trade have evolved. China is an active defender of the multilateral trading system and an actor in promoting the reform of the World Trade Organization. China has not only participated in the WTO rules reform negotiations, but has also taken the lead in domestic legislation. For example, the E-Commerce Law, which came into effect on 1 January 2019, provides for new issues, new regulatory models and the application of relevant rules in the field of e-commerce, and the relevant departments are actively adjusting and formulating relevant laws, regulations, judicial interpretations and departmental rules. These legislative activities not only respond to the urgent needs of the market in a timely manner, but also provide useful explorations for improving the multilateral trading system.
The mainland's current foreign-related laws and regulations have only begun to take shape, and have not yet formed a scientific and complete legislative system, which is not yet compatible with the mainland's goal of fully integrating into the world economy. The "Plan for the Construction of the Rule of Law in China (2020-2025)" proposes to "adhere to the simultaneous development of legislation, reform, abolition and interpretation, and strengthen legislation in key areas, emerging fields, and foreign-related fields". The premise of institutionalizing and standardizing foreign-related legal relations is that there should be sound legal norms for adjusting foreign-related legal relations, and the lag in domestic law legislation will seriously affect the role of domestic law in adjusting foreign-related legal relations and strengthening foreign-related rule of law. Due to the "international" element of foreign-related laws and regulations, their formulation and improvement must always adhere to the principle of not only conforming to China's national conditions, but also strictly following the universally recognized principles, rules and systems of international law, so that China's domestic rule of law can achieve organic integration with international rule of law through foreign-related rule of law.
International rule of law: an upgraded version of the domestic rule of law
Modern international law was formed on the basis of the habits and rules of interaction of Western countries. Since the Second World War, profound changes have taken place in the world pattern, the influence of developing countries has been expanding, and the connotation and extension of international law have also changed. Although the ancient principle that "treaties must be respected" is still enshrined as the norm of international law, the "principle of common but differentiated responsibilities" reflects the characteristics of the times when international law keeps pace with the times. International law not only regulates sovereignty and territory in more areas related to the destiny of mankind, but also responds to the common voice of the vast number of developing countries.
(1) The nature and characteristics of the international rule of law
The basic characteristic of the international community is its anarchy, which arises from the fact that every member of society is a sovereign State and is equal to one another. The international community can only have organizations among States, and cannot have authority that transcends States. However, although the treaties used by international organizations to regulate their members are negotiated by all, the role of each member in this process is different, and more often than not, draft legislation is proposed by a number of major States as the basis for consultation. After years of research, scholar Ancia Roberts has found that international law is not actually "international" in reality, and that the national label of international law objectively exists.
The concepts and rules in today's international law are regarded by many as scientific and universal standards, and the concepts contained in them often come from the experience and traditions of one or some countries, with the initial goal of serving their own interests. "Universality" refers to the fact that these practices, which are derived from local experience, have gradually been accepted by everyone in international exchanges and have become the basic consensus of the modern international community. In this regard, the formation of modern international trade law, which is dominated by technical norms, is a clear example. The United States is unique in its economic development and mature commercial law, and its domestic legislation has a unique impact on international trade law.
(2) The impact of domestic rule of law on international rule of law: A case study of the United States
U.S. foreign trade law is not a single code, but a vast institutional system. The Tariff Act of 1930 was the first relatively complete tariff bill in the United States. Although the United States and other contracting parties have significantly reduced import tariffs under the "most-favored-nation treatment" principle since the establishment of the GATT, the bill is still a "sword of Damocles" hanging over the heads of exporters from non-contracting parties. The Trade Expansion Act of 1962 is not a stand-alone trade act, but a supplement to the existing law, with a focus on Section 232, the "National Security Provisions". The Trade Act of 1974 was the first comprehensive trade act in the United States. Unlike the Tariff Act of 1930, which focused on tariff rules, this Act deals more with trade control measures. Since then, the United States has formed a trade legal system with the Trade Act of 1974 as the core and other laws as supplements.
The Trade Agreements Act of 1979 was the direct result of the GATT on six multilateral trade agreements in the Tokyo Round. Although these agreements are not binding because the GATT lacks the legal personality of an international organization, the United States, since it was the initiator of the Tokyo Round negotiations and the main drafter of the above-mentioned agreements, naturally took the lead in setting an example and aligning its domestic legal provisions with multilateral trade rules. Thus, the Trade Agreements Act of 1979 is a major amendment to the recently enacted Trade Act of 1974. In a sense, multilateral trade negotiations have shaped the current U.S. trade legal system, and U.S. trade legislation has also promoted the in-depth development of the multilateral trading system.
The Trade and Tariff Act 1984 introduced two new concepts: "trade in services" and "trade-related investment measures". The increase in the above content directly reflects the desire to protect the interests of the United States, which is not only the largest exporter of services trade, but also the largest exporter of investment. These changes also became important elements of the Uruguay Round negotiations, which will begin later. The legislative purpose of the Comprehensive Trade and Competition Act of 1988 is as stated in its preamble: "This Act shall be intended to enhance the competitiveness of U.S. industries and achieve other objectives." "An important change in the bill is the integration of intellectual property protection with trade. Since then, the United States' vision of extending the jurisdiction of the World Trade Organization from trade in goods to trade in services and the protection of trade-related aspects of intellectual property rights, as proposed by the United States in the Uruguay Round negotiations, has completed the basis of its domestic legislation.
The NAFTA Enforcement Act and the Uruguay Agreement Act are not substantive rules of U.S. trade legislation, but rather procedural rules that implement the implementation of the two agreements in the United States. The Trade Act of 2002 resembles a bipartisan statement of the United States' support for the multilateral trading system, as the new World Trade Organization Dispute Settlement Body regularly reviews the consistency of the domestic laws of member countries, including the United States, with WTO rules. The Economic Powers in the International Emergency Act and the Regulations Applicable to Antidumping and Countervailing Duty Cases are executive authorities that grant the President extraordinary measures that can be taken during a state of emergency, and the Regulations Applicable to Antidumping and Countervailing Duty Cases, which grant the U.S. Department of Commerce specific authority in antidumping and countervailing duty investigations.
The legalization and internationalization of trade policy is a major feature of the U.S. trade system. The United States has completed a complete trade legislative process in a country governed by the rule of law, and its role as a leader in modern international trade rules can be seen by first making relevant provisions in its domestic law, then promoting these provisions to the North American Free Trade Agreement and the World Trade Organization agreements, and finally translating them into domestic laws as international treaties.
(3) China's practice of international rule of law
International law is the foundation for maintaining international order and for China's peaceful development. Without this foundation, there will be no order in the international community, and China will not be able to achieve its goals as scheduled. More than a century ago, in the late Qing Dynasty, a group of Qing officials who came into contact with modern international law had a clearer understanding of the role of international law in handling interstate affairs. In the preface to the "New Edition of Public Law" compiled by Ding Yunliang, Li Hongzhang said: "The public law is the public law of all countries in the world, and those who abide by it will be governed, and those who violate it will also be chaotic," expressing his admiration for international law. Although no matter how "fair" international law was in that era of poverty and weakness, it could not save this dying dynasty, at least some Chinese people at that time realized the role of international law in today's international exchanges. The strength of the state is the basis for promoting the development of international law, and the improvement of international law further promotes the progress of nations and society. As the United Nations document stresses: "The rule of law must be respected and enforced at the national and international levels, and reaffirms its solemn commitment to upholding the international order based on the rule of law and international law, which, together with the principles of justice, are indispensable for peaceful coexistence and cooperation among States." ”
Today's world is undergoing changes unseen in a century, and the power and influence of the state are also declining. In the future, the international community will be in a state of sovereign states as its main members and lack central authority for a long time, and the development of international law will depend to a large extent on the positive role played by those major powers, which is also the practical basis for building the international rule of law.
5. China's rule of law in the international arena
Participation in international governance is not a mechanical and passive acceptance of international rules, but a creative use of international rules and the enrichment of international law. Therefore, when China's rule of law goes international, we must properly handle the following aspects:
(1) Clarify the status of international law in the continental legal system
The relationship between international law and domestic law, especially the application of international treaties in the contracting parties, is a basic theoretical issue of international jurisprudence and a problem that must be resolved in practice. The mainland constitution does not stipulate this, but only stipulates in principle the power of the State Council to conclude treaties and the power of the NPC Standing Committee to approve and abolish decisions. As China's rule of law moves internationally, the mainland will join more international treaties. Correspondingly, more and more international treaties will be applied on the mainland. Although some of the existing laws of the mainland provide for the resolution of the problem when the domestic law has different provisions from the international treaties to which the mainland is a party, it does not solve the question of whether the international treaties can be directly applied in the absence of provisions in the continental law. In this regard, some scholars have put forward the following ideas: First, by amending the Legislation Law, adding to its general provisions such content that "on the premise of abiding by the Constitution, the basic principles of international law and the international treaties concluded by China shall be observed, with the exception of the clauses reserved by the mainland," so as to determine the status of international law in the continental legal system as a whole; second, the law on the procedure for concluding treaties enacted in 1998 should be changed into the law on the conclusion and application of treaties, and the legal status of treaties on the mainland should be clearly stipulated in the general provisions.
Until the above vision is realized, a realistic approach would be to distinguish between international treaties at the level of public law, which deal with government administration, and international treaties at the level of private law, which deal with the rights and interests of citizens and legal persons. International treaties at the level of public law must be ratified by the mainland legislature before they become binding on the mainland, and the specific application is to formulate, amend or repeal the relevant laws, regulations and rules of the mainland to make them consistent with the content of the international treaties, that is, the "indirect application" of the international treaties in the mainland. The rules of the World Trade Organization are indirectly applied on the mainland. International treaties at the level of private law that have been approved by the State Council but not approved by the National People's Congress may also take effect on the mainland, but they must not conflict with the existing laws of the mainland in their specific application, which is the "conditional direct application" of international treaties on the mainland.
(2) Advocate the Five Basic Principles of Peaceful Coexistence, and uphold multilateral mechanisms such as the United Nations and the World Trade Organization
General Secretary Xi Jinping described the Five Principles of Peaceful Coexistence as "a major innovation in the history of international relations and a historic contribution to the establishment of a just and reasonable new type of international relations." China is an active advocate and staunch practitioner of the Five Principles of Peaceful Coexistence. The Five Principles of Peaceful Coexistence are enshrined in China's constitution and are the cornerstone of China's foreign policy.
Abiding by the UN Charter is not only an important guarantee for maintaining world peace and tranquility, but also China's international obligations and responsibilities as a responsible major country. The confrontations and injustices that have occurred in the international community are not due to the obsolescence of the purposes and principles of the Charter, but precisely because they have not been effectively implemented. Emphasizing that observance of the purposes and principles of the Charter refers to its spiritual essence and does not represent the Charter in its entirety. As the times evolve, parts of the Charter of the United Nations need to evolve with the times. The current difficulties faced by the WTO are not only due to the institutional reasons of the multilateral trading system, but also related to the lack of cooperation of individual members, and we must unswervingly promote the reform of the multilateral trading system and maintain the stability of the international economic order.
3. Defend the rules of modern international law with the purposes of the UN Charter as the core principle, and make China's contribution to safeguarding world peace
General Secretary Xi Jinping pointed out: "The mainland has entered a critical stage of realizing the great rejuvenation of the Chinese nation. China's relations with the world are undergoing profound changes, the interconnection and interaction between the mainland and the international community have become unprecedentedly close, the mainland's dependence on the world and its participation in international affairs are deepening, and the world's dependence on and influence on the mainland are also deepening. "China's rule of law in the international arena should do a good job in the following two aspects:
The first is to defend the existing universally respected fundamental principles of international law, which are not only the basis for the development of international norms, but also serve as a guide for domestic legislation. The international community should be governed in accordance with the rules and consensus reached by all countries, and should not be left to a few countries to dictate. The Charter of the United Nations is universally recognized as the basic norm governing the conduct of relations between States. Without these international rules, the world will eventually slide into the law of the jungle, which will have disastrous consequences for humanity.
Second, it is necessary to improve and develop the existing international rules, which is also the need of the times. The international rule of law that we aspire to should be a state in which in the absence of a unified legislative and judicial mechanism means that the members of the international community use mutual agreement as the main way to create the rules of international law, and through self-restraint and mutual restraint, the international community is subject to fair rule of law.
(4) Participate in the formulation of international rules and enhance China's voice in the international rule of law
General Secretary Xi Jinping pointed out: "China will actively participate in the construction of the global governance system, strive to contribute Chinese wisdom to improve global governance, and work with the people of all countries to promote the development of the international order and the global governance system in a more just and reasonable direction." "While learning from and absorbing the essence of legal civilization from all over the world, China's rule of law is contributing the wisdom and achievements of China's rule of law to the world, which is also the proper meaning of promoting domestic rule of law and international rule of law in an integrated manner.
Since the reform and opening up, China's rule of law construction has gone through three historical stages: "a new era of the establishment of the legal system", "a new stage of governing the country according to law", and "a new era of comprehensive rule of law". Professor Zhang Wenxian summed up the experience accumulated in the construction of the rule of law in this period from ten aspects, interpreted the relationship between the rule of law and social development from the perspective of law, and explained that the reason why China has been able to achieve world-renowned achievements is that in addition to the correct leadership of the ruling party and the concerted efforts of the people of the whole country, there are also good laws and good governance. These are the foundations for China's rule of law to go global, and they are also China's contribution to the international rule of law. The "Decision of the Central Committee of the Communist Party of China on Several Major Issues Concerning Comprehensively Advancing the Rule of Law" points out: "Actively participate in the formulation of international rules, promote the handling of foreign-related economic and social affairs in accordance with the law, enhance the mainland's voice and influence in international law affairs, and use legal means to safeguard the mainland's sovereignty, security and development interests." This can be said to be the general goal and general requirement for China's rule of law to go international.
5. Practice the concept of a community with a shared future for mankind and promote the development of the international order in a more just and reasonable direction
In the current period of historical transition, the traditional concept of international law can no longer meet the expectations of the international community for the new concept of the rule of law, nor can it meet the needs of guiding the rational development of international law. The theory of a community with a shared future for mankind not only answers the questions of the reasons, goals and paths for strengthening global governance, but also requires the international community to reform the global governance system to overcome global difficulties and challenges, and emphasizes that China should work with other countries to discuss, build and share the global governance system. This concept comes at an opportune time in the context of the complex and ever-changing international community, and has injected new vitality into the development of international law theory and the improvement of the international rule of law.
The foundation of a community with a shared future for mankind is a sovereign state, and the status and role of the state will not be weakened in the process of construction. On the contrary, the role of the State needs to be strengthened in the process. The concept of a community with a shared future for mankind is not divorced from the current international law system, but puts forward higher development goals for the current international law, because it is related to the well-being of the entire international community. The "international community" refers to sovereign states that are aware of the existence of common interests and values among them, and that they should abide by certain common rules and participate in the operation of common mechanisms. Therefore, a community with a shared future for mankind is directed at the interests of the international community, not limited to national interests. As some scholars have said, the international law system with the goal of building a community with a shared future for mankind echoes the concept of the international community, and it will prompt future international law to take more into account the overall interests of the international community.
epilogue
To achieve the great rejuvenation of the Chinese nation, it is necessary not only to promote the rule of law at home, but also to promote the rule of law at the international level, and the two complement each other and are indispensable. The international rule of law is the internationalization of the rule of law, the principle of social order, and it also means the legalization of the way of handling international affairs. The interaction between the international rule of law and the domestic rule of law is an inevitable choice for individual countries to get rid of the trappings of traditional Western governance theories and seek personalized and unique positioning of global governance participation. A country's foreign-related laws, with their characteristics of being based on domestic and paying attention to the international community, constitute a natural link between the domestic rule of law and the international rule of law. Coordinating the promotion of domestic and international rule of law, and making China's rule of law go international, is an essential element for realizing the great rejuvenation of the Chinese nation and an inevitable requirement for building a community with a shared future for mankind.