Chapter 17 of China NTCs deals with the Chinese perspective towards global governance

Chapter 17 of China NTCs deals with the Chinese perspective towards global governance, including the analysis of non-trade concerns. In particular, the article aims at understanding non-trade concerns from the comparative philosophy of law point of view. Since the role of China is studied, the paper includes a section concerning a comparison between China and Western legal cultures. Considering the case of China, the debate between “Confucians” and “Legalists” in antique China somewhat echoes the one between natural law theorists and legal positivists in contemporary Europe. The author explores the issue of global governance under the light of power and legitimacy, stressing how the two concepts are currently disconnected. On the one hand, power is linked to the concept of supranational entities while legitimacy seems to be still under the control of states. The central issue is understanding how the new global organization can be legitimate. The equivalent of European natural law theorists may be seen in Chinese Confucians, while European legal positivists may be compared to Chinese Legalists what cannot be found in China. The synthesis between natural law and positive law, whose result is the emergence of the concept of the “rule of law” and the establishment of institutional means – constitution, independence of justice, and elections – in relation to which the rulers can be held accountable for their actions. The consequence of this issue is visible nowadays in the difficulties China faces when it comes to formulating a concept of the rule of law entailing a clear distinction from the rule by law. Through this analysis, Professor Heurtebise offers a new account of the rule of law in the global context. He links the concept to human rights. Fundamental rights, overcoming both natural and positive law categories, imply a revision of the concept of rule of law which via the integration of non-trade concerns into WTO rules may open the path to the universalization of constitutionalism. It seems that Chinese scholars and officials are facing difficulties to reconcile the dichotomy rule by law and state sovereignty and rule of law and international accountability. Since Asian cultural conception of rights is focused on economic security and human safety rather than on individual liberty China could naturally accept notions such as the right to food and freedom from want. Therefore, the debate on non-trade concerns within the frame of WTO agreements could be an opportunity for China to take the lead on these issues. China should decide whether choose between universalizing the Asian cultural conception of rights, while opening to the international exigencies of the rule of law, to co-create a world economy based on non-trade concerns, or preserving its integrity in the name of the rule by law to profit from an unsustainable model of development.