Chinese Positions on Global Constitutionalism, Community of Common Destiny for Mankind, and the Future of International Law

Abstract

Abstract Global constitutionalism and the Chinese concept of a community of common destiny for mankind provide different master narratives for the future development of the international legal order. This study analyses Chinese legal scholarship and Chinese government statements that relate to elements of global constitutionalism and the community of common destiny in order to identify the values and structures of future international law envisaged by China. We argue that although authors and government statements refute or re-interpret the underlying values of global constitutionalism such as the rule of law, democracy and human rights, Chinese scholarship embraces the idea of a higher order of international norms that derive from the common values of the international community. However, the Chinese government’s position on jus cogens appears to reject a version of peremptory norms that empower non-state actors. We find that he principle of universal security and the principle of openness and inclusiveness that form part of the community of common destiny concept extend to international law the important regime-specific domestic doctrines of social stability and national conditions. In the legal interpretation of the community of common destiny concept, this study finds evidence of a dialectical process of norm-making that consists of both a confirmation of the normative status quo and the pursuit of far-reaching changes to the international legal order.